A district council has won a Planning Court appeal after an inspector granted outline permission for a 103-dwelling development.
Wealden District Council had refused to grant Knight Developments permission for the site at Steel Cross, north of Crowborough in East Sussex.
However on 16 July 2015 a planning inspector upheld the company’s appeal.
The council then applied under section 288 of the Town and Country Planning Act 1990 for that decision to be quashed.
In Wealden District Council v Secretary of State for Communities and Local Government & Anor  EWHC 247 (Admin) the council advanced three grounds in the Planning Court. These related to:
i) Nitrogen deposition (through the additional traffic generated). The Inspector had erred in law when concluding that the proposals would have no significant effect on the Ashdown Forest Special Area of Conservation (SAC), pursuant to section 61 of the Habitats Regulations, in particular:
a) in finding that contributions to SAMMS (Strategic Access Management and Monitoring Strategy) would mitigate any such effect; or
b) by failing to have regard to evidence that proposed contributions to heathland management could not effectively mitigate any such effect.
ii) NPPF 116 & alternative sites. The Inspector had erred in his consideration of National Planning Policy Framework (NPPF) 116 when concluding that there were no alternative sites to meet the need for the proposed development, by failing to take into account relevant evidence or acting unreasonably.
iii) Inadequate reasons. The Inspector's reasons for his findings on grounds (i) and (ii) above had fallen below the required standard.
Both defendants – the Secretary of State for Communities and Local Government and Knight Developments – submitted that the inspector's decision did not disclose any error of law.
Alternatively, they argued that if the inspector did err as alleged under grounds (i) or (ii), the court ought nonetheless to uphold the decision in the exercise of its discretion because, even absent any error, the decision on these issues would properly be the same.
Mrs Justice Lang found in favour of Wealden. She said that in light of various mistakes and failures that had been identified, the inspector’s decision under regulation 61 of the Habitats Regulations that the proposed development was not likely to have significant effects on the SAC was unlawful by reason of his flawed decision-making process.
“As I have set out in my summary of the law…., he could only properly exclude the risk of significant effects, in reliance upon mitigating proposals, if he was sure, on the basis of objective information, that there would be no significant harmful effects. A precautionary approach ought to have been adopted,” the judge said.
“Here the Inspector mistakenly believed that heathland management to reduce nitrogen deposition was part of the SAMMS, and had been agreed with the Conservators. In fact there was no agreed heathland management scheme in existence, which was a highly relevant consideration which he failed to consider.”
Mrs Justice Lang continued: “Moreover, in reaching his conclusion, he failed to consider and take into account the evidence of the Council (Mr John), raising concerns about the efficacy of the proposed mitigation. The Inspector thus failed to meet the requirements of lawful decision-making….”
The judge added that, “bearing in mind the importance of the SAC and the legal requirements of the Habitats Directive and Regulations”, it would have been unsafe for her to exercise her discretion not to quash the decision.
On the second ground the judge said: “Unfortunately the Inspector did not adequately investigate or assess whether the Steel Cross development could be located at an alternative site, either in Crowborough or the wider district, and so he did not properly apply NPPF 116, nor did he take into account all relevant considerations, as required in public law decision-making.
“I consider that this was a significant failure, given the high level of protection afforded to AONBs [Areas of Outstanding Natural Beauty] under national planning policy.”
The judge added that it would not have been appropriate for her to exercise her discretion not to quash the decision on this ground “since, on the evidence, it is possible that a suitable alternative site might be identified, which could alter the overall judgment made on whether the presumption against development ought properly to be rebutted in respect of this development”.