Wealden District Council v Secretary of State for Communities and Local Government & Anor

On a challenge under section 288 of the Town and Country Planning Act 1990, the court reviews legality, not the merits of planning judgment. An Inspector must base a habitats decision on accurate facts and objective information. Where mitigation is relied upon to exclude likely significant effects, the competent authority must be sure that the mitigation is defined, available and effective, applying the precautionary principle. A failure to engage with material contrary evidence is unlawful. Under paragraph 116 of the NPPF, alternative sites are a mandatory consideration in deciding whether major development in an AONB should proceed. The inquiry is whether the particular development could be located elsewhere, not whether the alternatives collectively meet the area’s entire housing need.

The Council applied under section 288 of the Town and Country Planning Act 1990 to quash an Inspector’s decision allowing Knight Developments’ section 78 appeal against refusal of outline permission for 103 dwellings and associated development at Steel Cross, within the High Weald AONB.

The challenge concerned nitrogen deposition and recreational effects on Ashdown Forest, the Inspector’s treatment of alternative sites under NPPF 116, and the adequacy of his reasons. The Inspector had concluded that mitigation contributions would avoid likely significant effects on the protected habitats and that exceptional circumstances justified major development in the AONB.

1. The claim succeeded and the Inspector’s decision was quashed. The court declined to withhold relief because the technical evidence was uncertain and it could not safely conclude that a properly directed Inspector would reach the same result.

2. Under regulation 61 of the Conservation of Habitats and Species Regulations 2010, the competent authority had to consider likely significant effects, alone or in combination, and could exclude that risk through mitigation only if it was sure, on objective information, that no significant harmful effects would occur. The Inspector made a material mistake of fact by treating SAMMS contributions, which addressed recreational effects on the SPA, as including an agreed scheme for reducing nitrogen deposition on the SAC. No such scheme or agreement existed.

3. The Inspector also failed to engage with material evidence challenging the efficacy, practical basis and ecological consequences of heathland management. His reliance on the absence of contrary evidence was therefore legally flawed. The precautionary principle and the continuing uncertainty concerning nitrogen deposition made it unsafe for the court to uphold the decision despite the errors.

4. Under NPPF 116, the need for development, the scope for developing elsewhere or meeting the need otherwise, and environmental effects are mandatory considerations. The alternative-sites inquiry concerns whether the particular proposal can be located outside the AONB. It is not enough to reject available sites because, collectively, they do not meet the area’s full objectively assessed housing need. The Inspector failed to assess the suitability of sites in Crowborough and the wider district and therefore failed properly to apply NPPF 116.

5. The reasons challenge was unnecessary to determine.

The judgment was a first-instance decision on a statutory planning challenge. The Inspector’s decision allowing the section 78 appeal was quashed.