7Km Ashdown Forest Exclusion Zone Policy Overturned by Court of Appeal

Something of a surprise in a hellishly complex case.  Big implications for other euepopean habitat policy issues.

Balli  Ashdown Forest  Economic Development Llp and (1) Wealden District Council(2) South Downs National Park Authority

My conclusion, arrived at with a degree of reluctance, is that policy WCS12, in so far as it relates to the 7 km zone, was adopted in breach of the duty under regulation 12 of the SEA Regulations relating to the assessment of reasonable alternatives. That makes it necessary to consider the question of relief.

The fact that nobody suggested alternatives cannot, however, validate the Council’s failure to consider the question at all.

The big consequence is that an Appeal at Stone Cross Crowborough is now likely to succeed.

The key issue was that the SANGS approach wasnt working and Natural England had backed down

there is evidence that the effect of policy WCS12 has been to prevent new residential development within the 7 km zone because of the unavailability of SANGs and notwithstanding the willingness of developers to make a financial contribution towards the provision of SANGs. The delay caused by the absence of SANGs provision is a matter of real concern.

Natural England’s own stance has changed, at least partly in reaction to this concern. This appears from correspondence with the Council on which Ms Colebourn relies in her second witness statement. In a letter of 15 April 2013, Natural England stated:

“We are aware that the current approach is a matter of concern, and that the SANGS requirement in particular is seen by developers as an obstacle to housing delivery. Our expectation is that a combination of different measures would be most effective in protecting the  forest  from the effects of an increase in recreational disturbance but we are mindful that reliance on SANGS for this does present a risk of delay in putting in place a scheme which would stream line the granting of planning permission for housing. In order to avoid such a delay, our advice is that a strategic scheme of avoidance and mitigation measures can be put in place, in a phased approach, so that at no point is it necessary to refuse planning permission on strategic (non case specific) grounds relating to recreational disturbance on the SPA and SAC.

Our understanding is that in the next two to three years, approximately about 800 houses are likely to come forward in your two authority areas and figures have been provided to indicate that this will increase visitor numbers on the  forest  by about 1.7% ….

In order to ensure that we are aware of the options to safeguard the SPA and SAC which will be least burdensome to developers, we have explored with the Conservators of  Ashdown Forest  their views on access management and monitoring. They have indicated to us that in principle they would be willing to take on additional resources, as part of a broader programme of measures, to increase the level of monitoring and wardening on the  forest . Our advice is that this could be made sufficient to address at least the potential increase in visitor numbers on the scale indicated above ….

Early implementation of a scheme for increased monitoring and wardening would not only have benefit itself in enabling development to proceed, but with the monitoring built in, it should also provide information to inform the balance of measures put in place over the longer term. This would help to ensure their effectiveness in safeguarding the SPA and SAC, at lowest cost to development.”…

 to quash the relevant part of policy WCS12 would not leave a serious lacuna in protection pending adoption of a replacement policy. Development would still be subject to the screening/assessment requirements of regulation 61 of the Habitats Regulations; and if the avoidance of adverse effects on the  Ashdown Forest  SPA could only be achieved by the provision of SANG, a requirement to that effect could be imposed on a site-specific basis.

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