We commented on Knight Developments saga applying for
100 homes in the Ashdown Forest last year. Although upholding
the High Court's decision to quash the appeal permission, the
Court of Appeal has confirmed that authorities
resisting applications in National Parks and AONB will need to push
the boat out on the duty to co-operate at the Local Plan stage to
avoid being caught out on appeal.
The High Court quashed an Inspector's decision granting
permission following errors in relying on recreational mitigation
measures to offset traffic-related nitrogen deposition impacts on
the Special Protection Area (SPA) and Special Area of Conservation
(SAC). The Court of Appeal agreed – by failing to identify
any 'solid' S106 mitigation proposals, it was impossible to
establish with reasonable certainty that the relevant mitigation,
including heathland management, would actually be delivered for the
purposes of applying the precautionary principle to assessing
The High Court also rejected the Inspector's approach to
considering Objectively Assessed Needs (OAN) when applying the
NPPF116, which states that (emphasis added):
"Planning permission should be refused for major
developments in these designated areas except in
exceptional circumstances and where it can be
demonstrated they are in the public interest. Consideration of such
applications should include an assessment of:
the need for
the development, including in terms of any national considerations,
and the impact of permitting it, or refusing it, upon the local
thecost of, and scope for, developing elsewhere outside
the designated area, or meeting the need for it in some
any detrimental effect on the
environment, the landscape and recreational opportunities, and the
extent to which that could be moderated.
The Inspector dismissed the alternative sites put forward by the
authority not because they were unsuitable, but because "
the existence of other sites, which collectively still fall
short of the full OAN, does not amount to an
alternative". He therefore did not use the constrained
version which the Core Strategy was designed to meet (taking the
SAC/ SPA and other constraints into account). The High Court
judgment appeared to suggest that alternative sites must be
considered in detail, regardless of whether they would meet the
Clunking Fist of OAN
The Court of Appeal disagreed:
There is nothing in the NPPF
requiring alternative sites to be looked at across the whole of a
local planning authority's administrative area, or to an area
larger or smaller than that. The area of search will be fact
specific. As a matter of fact, the Inspector had looked at both the
local and the wider District housing land supply position.
Because most of the district was
within the AONB, there were few alternative sites suitable for
housing development that were "not equally constrained"
as the appeal site. The view that such other available housing
sites were unlikely to meet unconstrained OAN was a matter of
Although it upholds the High Court judgment on the SAC/ SPA
mitigation point, the Court of Appeal judgment nonetheless
expressly endorses the use of FOAN as the benchmark for considering
the relevance of alternative sites in National Parks, the Broads
and Areas of Outstanding Natural Beauty. Where up to date Local
Plans are adopted to deliver a constrained OAN, these areas are
still open to appeals where the level of housing need not being met
through the duty to co-operate is less than the up to date FOAN
(and the decision-maker is prepared to give meeting needs
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