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

At the screening stage under article 6(3) of the Habitats Directive, the competent authority must apply the low, precautionary threshold for likely significant effects. Mitigation may be considered, but mitigation essential to the screening conclusion must be secured with reasonable certainty and supported by adequate reasons.

National policy for major development in an Area of Outstanding Natural Beauty requires planning judgment on exceptional circumstances and the public interest. The assessment of development elsewhere is context-sensitive. It need not cover a prescribed geographical area or examine every potential alternative site individually.

A planning inspector granted permission for 103 dwellings in the High Weald Area of Outstanding Natural Beauty, near the Ashdown Forest Special Area of Conservation and Special Protection Area. He concluded that financial contributions towards heathland management would overcome any possible likely significant effects from nitrogen deposition, so no appropriate assessment was required.

Wealden District Council successfully challenged the decision under section 288 of the Town and Country Planning Act 1990. Lang J quashed it in [2016] EWHC 247 (Admin). The Secretary of State and the developer appealed. The principal questions were whether the inspector lawfully relied on the proposed mitigation and whether he correctly applied national policy governing major development in an Area of Outstanding Natural Beauty.

1. Appeals dismissed. The inspector lawfully adopted the precautionary approach required by article 6(3) of the Habitats Directive and regulation 61 of the Conservation of Habitats and Species Regulations 2010. The threshold for likely significant effects is low. It was a matter for the inspector, as competent authority, to judge whether that threshold was crossed. He was entitled to consider mitigation at the screening stage and to conclude that, without mitigation, a likely significant effect could not be excluded.
2. The inspector’s reliance on heathland management was nevertheless unlawful. Because that mitigation was essential to his conclusion that no appropriate assessment was required, he had to establish with reasonable certainty that relevant, timely and effective measures would be delivered. The planning obligation secured financial contributions but did not secure any identified heathland-management project or commitment from those who would implement it. The inspector misunderstood the extent to which the contributions would fund such work.
3. The inspector also failed to address material evidence questioning the effectiveness and possible ecological consequences of heathland management. A lawful decision required a reasoned conclusion showing that he had considered the competing expert evidence and explaining why he preferred the developer’s case. The court could not supply the missing reasons.
4. Lang J properly declined to withhold relief. This was not a case in which the court could confidently conclude that the decision would have been the same absent the errors. Natural England’s views deserved potentially considerable weight, but they did not bind the inspector. The judge could not reconstruct the inspector’s assessment or substitute her own findings on the technical evidence.
5. The inspector did, however, apply paragraph 116 of the National Planning Policy Framework lawfully. That policy calls for planning judgment on exceptional circumstances and the public interest. Its consideration of the cost and scope of development elsewhere does not prescribe a geographical search area or require every potential site to be examined individually. The inspector was entitled to consider unmet market and affordable housing need throughout the district, the limited land outside the designated area, and the neutral landscape effect. Although this ground succeeded, the errors concerning the European site independently required the inspector’s decision to remain quashed.

1. Court of Appeal (Civil Division): In [2017] EWCA Civ 39, dismissed both appeals and upheld the order quashing the inspector’s decision. The court held that the inspector lawfully applied the Area of Outstanding Natural Beauty policy but unlawfully relied on uncertain and inadequately reasoned mitigation.
2. Administrative Court, Planning Court: Lang J, in [2016] EWHC 247 (Admin), allowed the council’s challenge under section 288 of the Town and Country Planning Act 1990 and quashed the inspector’s decision.
3. Secretary of State’s inspector: Allowed the developer’s planning appeal and granted planning permission.