Housing Delivery in the South East and The Thames Basin Heaths Special Protection Area
Background
1, A major issue has recently arisen in relation to proposals for new housing developments in the South East which are located near the Thames Basin Heaths (TBH) Special Protection Area (SPA). The TBH SPA covers over 8,000ha of land and is divided into 13 main parts, each of which is a Site of Special Scientific Interest (SSSI). Currently 11 LPAs are affected across Berkshire , Hampshire and Surrey and a further 4 LPAs may be affected in the future (Annex B).
2, A large number of houses are proposed via allocations in local development frameworks, local plans, structure plans, and the South East Plan (the Regional Spatial Strategy). There is also a large number of planning applications being made for infill development and redevelopment of existing residential areas close to the SPA. The Inspectorate is having to deal with an increasing number of appeals, some of which relate to small scale housing proposals, because LPAs are refusing planning permission partly due to representations from English Nature (EN) following statutory consultation. A number of appeals have already been determined, some are currently outstanding, and more are anticipated, and the Inspectorate needs to ensure that a consistent approach is taken.
3, In some cases EN has objected to any proposal which would result in an increase in the housing stock within an area up to 5km from the SPA boundary, which EN believes research has shown to be the distance that many people will travel to visit the heaths for leisure and recreation, especially for dog-walking, thus potentially increasing the disturbance of the birds and pressure on their habitats. For developments closer to the SPA, EN’s concerns also relate to increases in the number of cats that may hunt on the SPA. In some cases, EN has advised LPAs to adopt the precautionary principle (embodied in the Habitats Regulations) and many LPAs have treated this as an objection.
4, To seek a consistent approach to housing delivery in the areas potentially affecting the TBH SPA, we understand that EN has been working up, and discussing with LPAs and regional partners, the ‘Thames Basin Heaths Delivery Plan’. Drafts have been circulated amongst LPAs and some consultants, and it is understood that formal consultation will take place shortly. The aim is to provide for LPAs a template Supplementary Planning Document (SPD) with a formula by which a mitigation requirement for each allocated and non-allocated residential proposal can be calculated in the form of contributions to the provision of alternative greenspace. We understand that the draft Delivery Plan makes reference to zones, which suggest tiered levels of mitigation according to proximity to the TBH SPA as follows:
Zone A – 0-400m
Zone B – 400m-2km
Zone C – 2-5km
5, These indicative zone boundaries are shown on the map at Annex C by the red, yellow and blue lines respectively. The green hatching indicates the SPA. It is not intended that this map should be used to identify whether a particular appeal site is within the suggested mitigation zones.
6, EN hope that, taking into account local circumstances, LPAs will use the template as a basis for preparing their own SPD. EN’s Delivery Plan approach is not Government-endorsed, and our understanding is that at present not all LPAs are content with it and those that may be will need to prepare their own SPD for public consultation. Moreover, it is understood that some of the consultants who are aware of the emerging Delivery Plan are not satisfied that it will be workable.
7, SPAs (in addition to cSACs and SACs) are heavily protected by the EC Birds and Habitats Directives, specific provisions of which are applied in the UK by the Conservation (Natural Habitats, &c.) Regulations 1994. They place particular responsibilities on a decision maker in relation to such sites. Inspectors must have regard to these requirements, as advised in Circular 06/2005 ‘Biodiversity and Geological Conservation’. Circular 06/2005 sets out the procedure a competent authority should follow in deciding whether to approve a proposal that will potentially affect a European site ie cSACs, SACs and SPAs (Circular 06/2005 paragraphs 3 – 33 and Figure 1 on page 7, a copy of which is at Annex D).
8, As the TBH SPA is also comprised of several SSSIs, provisions in Part II of the Wildlife and Countryside Act 1981, as amended, also apply. This Act places a general duty on any authority specified in section 28G, which includes an Inspector, to take reasonable steps in the exercise of their functions, to conserve and enhance the special interest features of SSSIs. Such authorities must also ensure particular requirements have been and are followed where they are authorising or consenting to any activity likely to damage the special interest features of a SSSI. Paragraphs 56-67, 74, and Figure 4 of Circular 06/2005 refer.
Action
9, For appeals and called-in applications Inspectors are the competent authority. Essentially, permission can only be granted where there is no significant adverse effect on a European site or where, in the absence of alternatives, there are imperative reasons of overriding public interest (subject to necessary compensatory measures being secured by the developer).
10, Where it is clear from the evidence that the effect of a proposal on the TBH SPA is an issue you must follow the approach set out in Annex A before granting permission.
11, As in other cases, the onus is on the parties to bring forward all relevant evidence. However, if the effect of a proposal on the TBH SPA has not been raised as an issue by the parties in their evidence but you consider that the proposal could have a possible impact on the SPA you must canvas it with the main parties and EN.
12, In written representations cases, where it is clear from the evidence that the effect of a proposal on the TBH SPA is an issue but EN do not appear to have been consulted by the LPA, EN should be given an opportunity to comment if you are minded to grant permission (paragraph 7 and footnote 12, Circular 06/2005). If you intend to refuse permission for reasons other than the TBH SPA, referral to EN will not be necessary. However you may wish to indicate in your decision that the matter has been raised by [whom], adding that if the proposal had been acceptable in other respects, this is a matter on which you would have required further clarification.
13, In hearing/inquiry cases, where the effect of a proposal on the TBH SPA is raised at a late stage you must allow the parties and EN a chance to comment. If you are not satisfied that it would be reasonable to expect the parties to address and make representations on the issue during the programmed days of the inquiry, you should adjourn to a later date, but ask EN and the parties to submit their representations in writing by an agreed date prior to the reopening of the event. If EN were not present at the event you should ask the office to request their comments. The main parties must be given the opportunity to comment on any representations from EN.
14, We have written to LPAs asking them to consider notifying EN about any appeals for new housing within 5km of the SPA if they did not do so at application stage. This is in an effort to avoid the inevitable delay that would occur whilst EN were consulted about an appeal in the event that an Inspector was minded to grant/recommend granting planning permission for a development. It could also help to avoid potential adjournments of hearings/inquiries.
15, As with any emerging policy/advice/guidance, Inspectors must carefully consider the weight to be attached to any reference to the EN Delivery Plan, or any SPD based upon it, having regard to the process that it has undergone and the stage that it has reached.
16, Selected copies of decisions relating to the TBH SPA are accessible via the following links:
| LPA | Appeal Reference | Date of Decision |
|---|---|---|
RB Windsor & Maidenhead |
11 March 2008 |
|
RB Windsor & Maidenhead |
10th October 2007 |
|
Hart DC |
28 December 2005 |
|
RB Windsor & Maidenhead |
18 January 2006 |
|
Woking |
12 September 2006 |
|
Elmbridge Borough Council |
20 September 2006 |
|
Bracknell Forest District Council |
20 September 2006 |
|
Surrey Heath BC |
16 January 2007 |
67kb
61KB Annex A
The approach to handling cases that may affect the TBH SPA
(All paragraph references relate to Circular 06/2005)
a, You must decide whether the proposal is likely to have a significant effect on the site, alone or in combination with other plans and projects (paragraphs 13-16), ie taking into account existing and other proposed development. If you decide that there will not be a significant effect permission may be granted.
b, If you decide that there is likely to be a significant effect, and there are no other reasons why permission may not be granted, an appropriate assessment of the implications for the integrity of the site in view of the site’s conservation objectives is required (paragraphs 17 – 19). However, if for other reasons, you do not intend to grant permission you do not need to make an appropriate assessment, and steps c – h below do not apply.
c, The decision on whether an appropriate assessment is necessary must be made on a precautionary basis ie if it cannot be excluded that a proposal may have a significant effect, an appropriate assessment must be made (paragraph 13). The assessment must identify all the aspects of the proposal by itself or in combination with other plans and projects that affect the site’s conservation objectives. One may have been prepared at application stage but it is more likely that there will be none before you. In view of the wide ranging nature and complexity of the required assessment it is unlikely that you will be able to obtain adequate information from the parties including EN unless its scope can be agreed by all of them.
d, If there is no appropriate assessment or it is concluded that the appropriate assessment is inadequate, it cannot be ascertained that there will be no adverse impact on the integrity of the site. The competent authority must be ‘convinced’ that there will be no adverse impact. (paragraphs 20-21). Footnote 26 of the Circular clarifies that it is implicit in the wording of Regulation 48(6) that the term ‘adverse effect’ refers to a significant adverse effect.
e, If the appropriate assessment indicates that the proposal will have an adverse effect on the integrity of the site or if the effects on integrity are uncertain but could be significant, you must decide whether any conditions (or other restrictions) could be imposed on the permission that would mean the site’s integrity would not be adversely affected (paragraph 22). If an appropriate condition can be imposed permission may be granted. As indicated in paragraph 4 above, EN has indicated that mitigation in the form of alternative greenspace may be acceptable in some circumstances. It might be suggested to you that this could be achieved by a planning obligation or by a Grampian condition which prevents the occupation of permitted new dwellings until the developers have made and agreed arrangements for the provision of new or enhanced greenspace with the LPA. You will have to satisfy yourself about the reasonableness of such arrangements (in line with Circulars 11/95 and 5/05 on conditions and planning obligations respectively) on the basis of the evidence before you, including on the availability of such land. In the current absence of any LPA having published a draft SPD for public consultation and in view of the as yet (formally) unpublished nature of the EN draft Delivery Plan, you will be required to carefully consider whether such a condition or planning obligation can be regarded as a reasonable approach.
f, If it is not appropriate to impose a condition you must consider whether there are alternative solutions that would have no effect or a lesser effect on the site’s integrity (paragraphs 23-24) whilst still delivering the objective of the development proposal. If there are alternative solutions that deliver the desired objective of the development proposal permission must not be granted.
g, If there are no alternative solutions, you must consider whether there are imperative reasons of overriding public interest why permission should be granted (paragraphs 25-28). If there are imperative reasons permission may be granted subject to any necessary compensatory measures being taken (paragraphs 29-32):
- If there is no priority habitat or species on the site you must consider whether there are imperative reasons of overriding public interest, which may be of a social or economic nature, sufficient to override the harm to the site (paragraphs 25-26). If there are none, permission must not be granted.
- If there is a priority habitat or species on the site which may be adversely affected by the proposal, you must consider whether there are imperative reasons of overriding public interest relating to human health, public safety or benefits of primary importance to the environment. If there are none, permission may only be granted if there are other imperative reasons of overriding public interest agreed by the EC (paragraphs 27-28). Our understanding is that the TBH SPA has no priority habitat or species.
h, Where you intend to grant permission against EN’s advice for a development that is ‘likely to damage’ the special interest features of a SSSI you must attach a condition to the permission that prevents the development being commenced for a period of 21 days from the date of your decision (paragraphs 7 and 66). This is to provide EN with the opportunity to consider any further action such as contacting the applicant to discuss ways of mitigating any effects; offering a management agreement; or, in exceptional circumstances, legal action. The condition should be worded in similar terms to the following example:
- ‘The development hereby permitted shall not begin before the expiration of 21 days from the date of this permission.’
Annex B
LPAs currently affected
Bracknell Forest
Elmbridge
Guildford
Hart
Runnymede
Rushmoor
Surrey Heath
Waverley
Windsor and Maidenhead
Woking
Wokingham
LPAs that may be affected in the future
Basingstoke and Deane
East Hampshire
Mole V alley
West Berkshire
Annex C
View a larger version of Annex C (316KB)
Annex D
Text only version of the above chart
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