We have just had through the Inspectors letter on the Medway Core Strategy, arguably one of the key decisions so far, for great interest because of the infamous Skylarks issue at the newly designated Chattenden Woods and Lodge Hill SSSI and the reputed instruction from the Prime Minister to Natural England to ‘Get it fixed’.
Chattenden Woods and Lodge Hill has become a nature conservation cause-celebre as you can see in the articles written by Simon Jenkins and George Monbiot on the issue, and the inspector showed the value of a robust politically independent inspectorate, the issue here I think is if this site is not guaranteed to deliver is it the right course of action for the whole of the core strategy to fall?
Lets get back to the letter. The Core Strategy (plan) includes a strategic allocation (Policy CS33) for a new freestanding settlement at Lodge Hill on the Hoo Peninsula, a former MOD site. Chattenden Woods and Lodge Hill was notified as an SSSI on 13 Mach 2013 an enlargement of the Chattenden Woods SSSI. Consultation on notification is still underway and the notification must be confirmed (with or without modification) within nine months of the notification date, or it will cease to have effect. One of the key reasons for the extension is the presence of Nightingales on the Lodge Hill site.
Just to clarify here Nightingale are not listed in schedule 1 of the Wildlife and Countryside Act 1981, Annex Ito the EC Birds Directive or section 41 of the Natural Environment and Rural Communities Act (species of principal importance forthe conservation of biodiversity in England). I tis an amber‐listed ‘Bird of Conservation Concern’ and is subject to the general provisions protecting wild birds and their eggs and nests in part 1 of the Wildlife and Countryside Act 1981. Therefore there are no issues of European Law (the Habitat Directive) applying, solely issues of UK law. A report to the English Nature Board on the 11th March 2013 included legal counsels advice on possible notification as an SSSI :
There has been case law on this point and both the High Court and Court of Appeal were clear that if the science supports the designation of a SSSI then the Board should designate it as such. In other words, as regards section 28(5) [of the W & C Act] there is very little discretion if the science indicates that the site is of special scientific interest.
As the NPPF is clear that proposed SSSIs are to be treated as SSSIs in terms of national policy it is clear the Inspector had little discretion also in taking impact on the habitat of the site into full consideration.
Natural England advises that the development envisaged at Lodge Hill under Policy CS33 would damage a substantial proportion of the SSSI. It estimates that it is likely that 83% of the nightingales on the site would be lost. NE are not currently aware of any other sites with greater than 1% of the British population and the site is therefore particularly important for the population of nightingales….
Whatever the proportion of the site that is previously developed, the fact that it has been designated as a SSSI and is therefore of high environmental value means that its development does not benefit from
any particular support from the Framework in this respect. Policy CS1 of the CS, which encourages the use of previously developed land, is not wholly compliant with the Framework, because it does not include the caveat regarding high environmental value.
Now we move onto the controversial issue of biodiversity offsetting. For those who think offsetting doesn’t apply to SSSIs they have conceded in this case that it can
I give significant weight to the conclusions of the BTO [British Trust for Ornithology] study that: it is ‘theoretically feasible to create habit that will be occupied by nightingales in lowland England’ and that ‘if the right conditions are satisfied (my emphasis), there is greater probability of achieving success in Kent than in most parts of the Country’.
The report on compensatory sites can be prepared very late in the day and their were doubts about the delivery of some of the sites and whether landowners had been properly consulted.
Taking all factors into account I agree with Natural England’s conclusion that habitat compensation for nightingale has a good chance of success, providing the sites chosen meet agreed criteria on design location and scale, but that it is not without risk.
Paragraph 152 of the Framework advises that significant adverse impacts on any of the dimensions of sustainable development should be avoided by, wherever possible, pursuing alternative options.
Development at Lodge Hill would have a significant adverse impact on the SSSI and the Framework’s objective of halting the overall decline in biodiversity. For the reasons given above, I am not convinced that there are no reasonable alternatives to the proposed development at Lodge Hill. The Framework only requires mitigation and compensation measures to be considered where adverse impacts are unavoidable.
However, in considering the balance to be struck between all the dimensions of sustainable development I am not persuaded that the social and economic benefits that would flow from development on this site would outweigh the harm to a site of national importance for biodiversity…of the allocation site as a SSSI are material changes in circumstances. I conclude that Policy CS33 is not consistent with national planning policy and is therefore unsound.
In other words even if biodiversity offsetting is possible and of an appropriate location, scale and degree of risk according to the recently published Natural England Metrics the NPPF rules against it unless it is ‘unavoidable’. Of course biodiversity offsetting was not directly included in the NPPF (though it was in open source planning) because at the time Natural England had not concluded the pilots.
My conclusions regarding the Lodge Hill allocation (and the lack of any contingency), in conjunction with the shortcomings relating to objectively assessed needs, mean that the extent of main modifications required .would be so significant as to amount to the plan being rewritten. A significant amount of further work and consultation would have to be undertaken. I consider the changes required are so significant that I am unable to deal with the matter through main modifications and that the only reasonable course of action is for the Council to withdraw the CS and prepare a new Local Plan.
Now the issue here is whether the loss of such a key site would make the plan unsound. The NPPF of course does contain a let out in the case of European sites where alternatives have been exhausted. But this is not a European site and alternatives have yet to be properly explored.
One key issue is whether or not the inspector should have simply considered the plan sound, but for a reduced period of less than 15 years, and ordered an early review.
Some plans have been allowed through on these occasions, Milton Keynes, Hertsmere for example, where the plans were prepared in line with the South East Plan and of course this was then revoked. This is somewhat more controversial in the case of Dacorum where it was deliberately prepared contrary to prevailing policy and to undershoot housing need. There are two counsels opinions supporting the view of this blog that is beyond the reasonable interpretation of the NPPF – the council cites caselaw saying the inspector has flexibility in interesting national policy – I say the supreme court has ruled this cannot mean the planning world of Humty Dumpty – making the NPPF mean the opposite of what it means.
Pending the outcome of the Dacorum case I do wonder if the pragmatic thing to do would be to make the plan sound and order an early review, after all there are other big sites in Medway that need to be gotten on with and there is no reason why these cannot start now. Medway prepared their plan in good faith – so they should be given the benefit of the doubt. By then it is likley the NPPF will (for right or wrong and I am a sceptic) excluded offsets sites from the NPPF definition of serious harm.
One can imagine bungalow bob trying to explain the subtleties of this issue to the Prime Minister. There was a time when the department employed ‘fixers’ such as Henry Cleary, John Hack, and Joyce Bridges, to resolve such problems, now they are all gone and no-one of such caliber to sort big key sites out.
Also I think Medway made a key tactical mistake, arguing against the nature conservation value of the site and claiming that because some of it was brownfield this trumpted all – both untenable positions that would have been unsustainable on JR if it came to that.Their press release today is just ridiculous.
(I am always available for consultancy work on this issue).