Wayne Ward & Anor v Secretary of State for Housing, Communities and Local Government & Anor

In a planning challenge involving protected habitats, the competent authority must apply the requirements of regulation 63 of the Conservation of Habitats and Species Regulations 2017. Water use arising from an unauthorised occupation is not necessarily part of the lawful baseline. It was lawful to treat the phrase “otherwise accounted for” in Natural England’s guidance as akin to immunity from planning control, provided that approach fell within the reasonable range open to the decision-maker.

A request to hold an appeal in abeyance need not be addressed as a principal important issue where it is insufficiently formulated and raises no workable proposal as to duration, process or outcome. Similarly, an inspector is generally not required to consider a split decision for part of a development unless the applicant makes a clear request.

The claimants challenged a Planning Inspector’s dismissal of their appeal against refusal of permission for a residential unit and stable block. The proposed site lay within the Sussex North Water Supply Zone and was potentially affected by water neutrality requirements concerning the Arun Valley protected sites.

Grounds 1 and 2 alleged errors in the Inspector’s approach to regulation 63 of the Conservation of Habitats and Species Regulations 2017, including failure to address a request to hold the appeal in abeyance pending a mitigation strategy. Ground 3 alleged that the Inspector should have granted permission for the stable block by making a split decision.

1. Ground 1 dismissed. The Inspector understood the claimants’ argument that their occupation of the site before Natural England’s September 2021 guidance meant that permission would maintain the status quo. He considered that argument, sought Natural England’s view, and explained why the relevant appeal decisions were distinguishable. Treating “otherwise accounted for” as akin to immunity from planning control was within the range of reasonable approaches open to the Inspector.
2. The Inspector’s approach was consistent with regulation 63(5) of the Conservation of Habitats and Species Regulations 2017. An appropriate assessment was required, and a condition requiring future water neutrality would not provide the necessary certainty. No strategic mitigation had been identified.
3. Ground 2 dismissed. The duty to give reasons, stated in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, extends to principal important controversial issues, not every material consideration. The request to hold the appeal in abeyance was unclear as to duration, procedure, the consequences if mitigation did not materialise, and the parties’ position during the delay. It therefore did not amount to a sufficiently articulated or workable proposition requiring express consideration.
4. The request did not constitute a mandatory material consideration under the approach in R (Samuel Smith Old Brewery) v North Yorkshire CC [2020] PTSR 221. The court nevertheless rejected the submission that delaying the appeal would necessarily conflict with regulation 63: postponement would not itself grant permission or authorise the existing unlawful use.
5. Ground 3 dismissed. An inspector may make a split decision, but the authorities establish that no obligation ordinarily arises where no clear request has been made. The claimants’ witness statement expressed a future intention to seek permission for stabling, rather than requesting a split decision. The Inspector was therefore not legally required to address that possibility.
6. The claim was dismissed.