A major issue arose in 2005 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). Currently, 13 LPAs are affected across Berkshire, Hampshire and Surrey and a further 2 may be affected in the future (Annex B).
The TBH SPA was fully designated in March 2005, covers over 8,000ha of land and is divided into 13 main parts, each of which is a Site of Special Scientific Interest (SSSI). The draft conservation objective for the SPA is under review but is currently to maintain, in favourable condition, the habitats for the populations of Annex 1 bird species of European importance, with particular reference to lowland heathland.
SPAs (in addition to Special Areas of Conservation [SACs] and candidate SACs [cSACs]) 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 (as amended). 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’. This Circular 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 (paragraphs 3 – 33 and Figure 1 on page 7, a copy of which is at Annex D). This is known as a Habitats Regulations Assessment (HRA). The UK Government has chosen to additionally apply these procedures to Ramsar sites and potential SPAs (pSPAs) although they are not European sites as a matter of law.
As the TBH SPA comprises 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.
A large number of houses have been proposed via allocations in local development frameworks, structure plans, and the draft Regional Spatial Strategy (RSS) ie the Draft South East Plan (SEP). Many planning applications have been made for infill development and redevelopment of existing residential areas close to the SPA. The Planning Inspectorate has received a large number of appeals, some of which relate to small scale housing proposals, because LPAs have refused planning permission partly due to representations from Natural England (NE) following statutory consultation.
In some instances NE 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. NE believes research has shown this 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, NE's concerns also relate to increases in the number of cats that may hunt on the SPA.
Originally, NE considered that the distance from a proposed development to the nearest boundary of the SPA should only be measured as a linear distance. Following the close of the Examination in Public (EiP) of the draft SEP and the submission of the Assessor’s Report (see below), they changed their approach and considered that it was acceptable to apply linear and/or travel distance. However they have since reverted to their original stance and consider that it is only appropriate to apply linear distance. This appears to be for reasons of ease of measurement. As a result the type of measurement applied by NE and LPAs will vary depending on when an application was made. Appellants will often rely on travel distance in their evidence and Inspectors will need to consider such evidence on a case by case basis.

Natural England’s Draft Delivery Plan

NE, in order to seek a consistent approach to housing delivery in the areas potentially affecting the TBH SPA, prepared a draft strategy known as the ‘Draft Delivery Plan’ (DDP) (latest version dated 26 May 2006). The aim was to provide a template which, taking into account local circumstances, would be used by LPAs as a basis for preparing their own Supplementary Planning Document (SPD). The DDP suggests that the impact of new residential development on the SPA could be avoided or mitigated by the provision or enhancement of accessible green space that provides similar recreational opportunities to the SPA. NE refer to this space as ‘Suitable Accessible Natural Green Space’ (SANGS). The DDP contains a formula for calculating the amount of SANGS required to mitigate a proposal’s effects. Where a developer is unable to provide sufficient SANGS as part of their proposal, the DDP suggests that they can make financial contributions through a S106 planning obligation towards the provision of new or enhancement of existing SANGS by the LPA.
The DDP 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

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.
NE consider that it is extremely unlikely that the impact of new development in Zone A could be effectively avoided or mitigated.

Draft South East Plan Examination in Public (EiP)

The DDP is not Government-endorsed. It has had a varied reception from the affected LPAs, and some planning consultants who are familiar with it are not satisfied that it will be workable. Peter Burley was appointed as an Assessor for the Draft RSS EiP specifically to consider TBH SPA and NE’s DDP. His Report to the Panel was published on 19th February 2007, followed by an Addendum Report in April, and the Panel Report was submitted to the Department for Communities and Local Government (CLG) on 6 August 2007.
Both the Assessor’s and the Panel’s Report have been cited as a material consideration in the conduct of Section 78 and Section 77 casework, and parties have suggested that they should carry some weight. However, given that the submission of the Reports represented steps in the process of considering the SPA issue, and that process will not be concluded until the SoS has issued her decision on the RSS, decision-makers are currently not in a position to rely upon the Assessor’s or the Panel’s conclusions and recommendations as representing the final position of the SoS on the SPA issue.
The Secretary of State (SoS) has considered the Panel Report and issued a consultation in July 2008 on proposed changes to the draft RSS, including a revised TBH SPA policy. This may be raised by parties and may be a material consideration. However it should be borne in mind that the policy is only at consultation stage. The consultation closes in October 2008 and after considering the consultation responses, and subject to any further changes, it is anticipated that the SoS will publish the final version of the Plan in early 2009.

Interim strategies/miniplans

Pending the SoS’s decision, several LPAs, in liaison with NE, implemented interim strategies based on the DDP, generally referred to as ‘miniplans’. Those LPAs are:

Bracknell Forest
Elmbridge
Guildford
Runnymede
Waverley
Woking

Essentially, the miniplans aim to secure contributions towards the LPA’s provision of new or enhanced green space that can function as SANGS via a Section 106 planning obligation. Where an LPA considers that an application accords with a miniplan, NE has agreed with the LPAs that they do not have to be consulted and that they will not object, and the SPA will not usually be a reason for refusal. Inspectors must be satisfied that such arrangements are in line with Circulars 11/95 and 5/05 on the basis of the evidence before them, including on the availability of such land. In some cases developers are understood to have offered, and LPAs are understood to have accepted, cheque payments rather than contributions made via a S106 obligation towards the provision of green space. However, this does not appear to accord with the advice in Circular 5/05 on properly securing a means of payment.

The draft Interim Strategic Delivery Plan

Following a recommendation in the Assessor’s report, in order to coordinate a cross-boundary approach the affected LPAs, South East England Regional Assembly (SEERA) and other key organisations formed a Joint Strategic Partnership Board (JSPB). The JSPB published a draft Interim Strategic Delivery Plan (ISDP), consultation on which closed in February 2008. It is understood that those LPAs now preparing miniplans are using the draft ISDP as the basis for their interim strategy rather than the DDP. The draft ISDP may be raised by parties in casework and may be a material consideration. It should normally be accorded greater weight than the DDP.

LPAs without implemented interim strategies/miniplans

In the absence of an implemented miniplan, developers may suggest that they can mitigate the effects of a development through a planning obligation or by the imposition of 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. Inspectors must be satisfied that such arrangements are in line with Circular 11/95 or 5/05 on the basis of the evidence before them, including the availability of such land. Where an LPA has not published a draft SPD for public consultation and in view of the draft status of the DDP/ISDP, Inspectors must carefully consider whether such a planning obligation or condition can be regarded as acceptable.
Developers may highlight alternative areas of greenspace which have not formally been identified as SANGS and suggest that they will avoid a significant effect on the SPA as they will draw future residents away from the SPA. Inspectors will need to consider the effectiveness of this alternative land in avoiding a significant effect. Among other factors, Inspectors will need to take into account the proximity of the alternative greenspace as compared with the SPA to the proposed development, ease of access to it, and the nature of the greenspace. It does not need to replicate the heath land, but must be capable of meeting the recreational needs of the residents by providing recreational opportunities similar to those provided by the SPA in order to deflect visitors from the SPA.
In SPA cases involving LPAs who have not implemented miniplans, the main parties should have submitted evidence on the issue, and the LPA should have consulted NE at application stage. However, the approach LPAs take will vary depending on their view of NE’s position. One LPA, for instance, has approved some applications that result in a net increase in dwellings in the absence of mitigation measures and despite an objection from NE. Where the LPA was minded to approve an application on SPA grounds but refused permission on other grounds or failed to determine the application there is often limited evidence on the issue at appeal stage. In such cases, the Planning Inspectorate has written to the main parties at an early stage, asking if they wish to make any further comments.

Pet covenants

In relation to the effect of dog-walking on the SPA, developers often suggest that a condition requiring a pet covenant will be effective in preventing residents from keeping dogs and therefore will mitigate such effects. The enforceability of such a condition may vary depending on the type of development and the degree of subsequent supervision that will be available on the site eg warden or concierge. Inspectors must consider the condition according to the usual Circular 11/95 tests.

Information packs

Developers also often suggest that they can mitigate the effect of a development by providing information packs for residents, which identify alternative green spaces in the area and set out the sensitivities of the SPA. Inspectors must satisfy themselves about the effectiveness of such a measure taking into account the individual circumstances of each case. However, it is unlikely that on its own it would warrant significant weight.

Access Management agreements

Some developers have entered or suggest that they can enter into Access Management agreements with local landowners, such as the local wildlife trust, to improve or enhance local green spaces, in order to mitigate the impact on the SPA. Inspectors will need to judge the effectiveness of such measures according to the individual circumstances of the case.

Action

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).
Inspectors are the competent authority in appeal cases. Although the SoS as the decision maker is the competent authority in recovered and called-in cases, the Inspectorate has agreed with CLG that where it is necessary to undertake an appropriate assessment (AA), Inspectors will do it on behalf of the SoS.
Where it is clear from the evidence that the effect of a proposal on the TBH SPA is an issue, Inspectors must follow the approach set out in Annex A before granting permission.
However, if the effect of a proposal on the TBH SPA has not been raised as an issue but an Inspector considers that the proposal could have a possible impact on the SPA he/she must canvas it with the main parties and NE.
The Planning Inspectorate has written to the affected LPAs asking them to consider notifying NE about any appeals for new housing within 5km of the SPA if they did not do so at application stage. This was in an effort to avoid the inevitable delay that would occur whilst NE were consulted about an appeal in the event that an Inspector was minded to grant/recommend granting planning permission for a development.
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, exceptionally, NE do not appear to have been consulted by the LPA or PINS at an earlier stage (and there is no indication that they did not require consultation, such as where a miniplan is in place), NE should be given an opportunity to comment if an Inspector is minded to grant permission (paragraph 7 and footnote 12, Circular 06/2005). If an Inspector intends to refuse permission for reasons other than the TBH SPA, referral to NE will not be necessary. However an Inspector may wish to indicate in his/her decision that the matter has been raised, adding that if the proposal had been acceptable in other respects, this is a matter on which he/she would have required further clarification.
In hearing/inquiry cases, where the effect of a proposal on the TBH SPA is raised at a late stage the Inspector must allow the parties and NE a chance to comment. If he/she is 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, he/she should adjourn to a later date, but ask NE and the parties to submit their representations in writing by an agreed date prior to the reopening of the event. If NE was not present at the event (which is usual) the office should be asked to request its comments. The main parties must be given the opportunity to comment on any representations from NE.
As with any emerging policy/advice/guidance, Inspectors must carefully consider the weight to be attached to any reference to the DDP, ISDP or any SPD, having regard to the process that it has undergone and the stage that it has reached.

Annex A

The approach to handling cases that may affect the TBH SPA

(All paragraph references relate to Circular 06/2005)

There are basically 7 steps in the Habitats Regulations Assessment. However, once one of the steps has been met there is no requirement to go on to consider the remaining steps.

Step 1 – Is the proposal directly connected with or necessary to the management of the site?
(If the answer is yes, planning permission can be granted, providing no other harm is identified)
Step 2 - Is the proposal likely to have a significant effect on the internationally important interest features of the site, alone or in combination?
(If the answer is no, planning permission can be granted subject to the same caveat as above)
Step 3 – If it is, then an AA must be undertaken to determine whether or not the development will have an adverse affect on the integrity of the site.
(If the answer is no, planning permission can be granted as above)
Step 4 – If it would have an adverse affect can the effect be overcome by conditions or other restrictions such as a S106 agreement or undertaking?
(If it can, then planning permission can be granted subject to the necessary conditions being attached and/or the requisite S106 being signed and sealed).
Step 5 - If it can’t, are there alternative solutions that would have a lesser effect?
(If the answer is yes, than the appeal must be dismissed)
If there are no alternative solutions the next step is dependent on whether or not a priority habitat or species would be adversely affected.
Step 6a - If a priority habitat or species would not be affected are there imperative reasons of overriding public interest, which could be of a social or economic nature, sufficient to override the harm to the site?
(If the answer is no, the appeal must be dismissed)
Step 6b - If it does affect a priority habitat or species are there imperative reasons of overriding public interest relating to human health, public safety or benefits of primary importance to the environment?
(Again, if the answer is no, then the appeal must be dismissed)
Step 7 - If there are imperative reasons of overriding public interest can it be determined whether all the compensatory measures necessary to ensure the overall coherence of Natura 2000 is protected have been or would be undertaken?
(If appropriate compensatory measures cannot be provided then the appeal should be dismissed)

Considering the steps in more detail, Step 1 is fairly straightforward. Proposals which meet this requirement are unlikely to come to appeal very often. Unless it is suggested by the parties that the proposal falls into this category, Step 2 can normally be proceeded to directly.
Step 2 is more complex. This stage of the process must be carried out on a precautionary basis. The question is whether there is a probability or a risk that the plan or project will have a significant effect on the site. It is not necessary to identify that it would have at this stage, merely whether there is a risk that it might. In line with the judgement in Waddenzee it can only be concluded that a proposal would be unlikely to have a significant effect if such a risk can be excluded on the basis of objective information. However, on the basis of the judgement in Hart District Council v The Secretary of State for Communities and Local Government, Luckmore Limited & Barratt Homes Limited, any proposed avoidance or mitigation measures, which are part of the proposal, should normally be taken into account in considering this step.
At appeal it is for Inspectors to decide what weight to attach to the evidence with which they are presented. However, they should be aware that the Secretary of State (or Welsh Assembly Government) regards NE (or Countryside Council for Wales) as their scientific adviser on this subject. Although its evidence should always be tested, as with evidence presented by any other party, it should only be rejected where there is clear objective scientific evidence which contradicts it.
It is important to remember that the determination must be made not only on the basis of the effect of the proposal alone but in combination with any other plans or projects that have been approved or are likely to take place. Clearly any development that has been granted planning permission must be taken into account. Paragraph 16 of Circular 6/2005 also states that it will normally be appropriate to take into account current planning applications as well as consents or applications under other relevant regimes, eg discharge consents or abstraction licences. Regard should also be had to proposals in adopted development plans.
Inspectors should not limit their consideration to plans and projects mentioned by the parties, particularly where they are aware of other plans or projects that may have an impact. However, if consideration of other plans or projects that have not been mentioned by the parties would be likely to be material to the decision it will be necessary to allow the parties an opportunity to comment.
How far emerging plans and proposals should be taken into account will be a matter of judgement based on the extent to which there is a realistic prospect of their being implemented. However, in coming to a view regard should always be had to the precautionary principle. Unless there is objective evidence to indicate that an emerging plan or project is unlikely to be adopted and/or implemented regard should normally be had to it.
If it cannot be excluded on the basis of objective evidence that the proposal will have a significant effect then an AA must be undertaken under Step 3, unless it is proposed to refuse the proposal on other grounds. Such an assessment should be proportionate. It doesn’t need to be unduly elaborate. The level of detail should be consistent with the likely impact. Generally it should be undertaken on the basis of the information that is already available to the Inspector. Only in exceptional circumstances should proceedings need to be adjourned or a decision delayed in order to allow the parties time to produce further evidence.
Sometimes an AA will already have been undertaken by the LPA but it will need to be checked to ensure that it fully meets the requirements of the Regulations and that any alterations to the proposal have been taken into account, particularly if changes have been made to the scheme since the appeal was submitted.
In undertaking an AA the impact of the proposal on the site needs to be considered in the light of the site’s conservation objectives. Some sites still do not have their own conservation objectives. If there are none, then regard should be had to the reasons for the site’s designation and any objectives there may be for constituent parts of the site, ie SSSIs, which are relevant to its European designation. The ultimate test is whether the proposal would adversely affect the integrity of the site. In considering this test the protected site should be looked at as a whole and not just the part which is nearest the appeal site.
If the appeal is to be allowed and planning permission granted the Inspector must be certain that there would be no adverse effect, ie there must be no remaining reasonable scientific doubt that such effects will occur.
If there would be a significant adverse effect, or the effect is uncertain but could be significant, then it is necessary to consider whether it could be overcome through the imposition of conditions or a planning obligation which would achieve effective measures to mitigate the effect (Step 4). These could include habitat or access management measures or the provision of alternative land which would reduce the potential pressure on the affected site to a sufficient degree such that any effect was no longer adverse (notwithstanding that such measures can also be taken into account when considering at the earlier stage the likely significant effect).
It is important to ensure that any condition meets the tests in Circular 11/95 and that any obligation under section 106 complies with the advice in Circular 05/2005. In particular, the Inspector should not accept the parties’ view that the obligation would resolve the problem without first satisfying themselves that it would do so.
If the harm cannot be mitigated then consideration needs to be given to whether there are alternative solutions which would have a lesser effect (Step 5). These could include locating the development elsewhere. This is a stiff test and there are unlikely to be many proposals where some form of alternative solution would not be available.
If there are no alternative proposals then it is necessary to go on to Step 6. It is essential at this stage to establish whether or not a priority species or habitat would be affected before undertaking this step as different criteria apply where this would occur. Our understanding is that the TBH SPA has no priority habitat or species.
If a priority habitat or species would not be affected, then it is still necessary to conclude whether there are imperative reasons of overriding public interest to justify granting planning permission. The reasons can be fairly broad in this scenario and can include social or economic reasons. However, given that the reasons have to be imperative and of overriding public interest, the bar to allowing development is still fairly high. It would be normal in such cases to expect some indication from Government policy that the proposal would meet this test before allowing the appeal. Even where no such indication exists it will still be necessary to consider whether such reasons exist but there would need to be very sound evidence for concluding that they did before allowing the appeal.
If a priority habitat or species would be affected, the grounds for allowing the appeal are far more restricted. There must be imperative reasons of overriding public interest either on health or public safety grounds or benefits of primary importance to the environment. Alternatively it must be for other imperative reasons of overriding public interest agreed by the European Commission.
As paragraph 28 of Circular 06/2005 points out, there will be few cases where it can be judged that imperative reasons of overriding public interest will allow a development to proceed which will have a potentially negative effect on the integrity of a European site.
Finally, if it is concluded that there are imperative reasons then the final stage in the process (Step 7) is to consider whether or not compensatory measures have been secured as required by Regulation 53 (see paragraphs 29-32 of Circular 06/2005).

Annex B

LPAs currently affected

Basingstoke and Deane
Bracknell Forest
Elmbridge
Guildford
Hart
Mole Valley
Runnymede
Rushmoor
Surrey Heath
Waverley
Windsor and Maidenhead
Woking
Wokingham

LPAs that may be affected in the future

East Hampshire
West Berkshire

Annex C

Map showing the Indicative Zone Boundaries as suggested tiered levels of mitigation according the proximity to the TBH SPA

View a larger version of Annex C (316KB)

Annex D

Annex D Graph showing possibilities

Text only version of the above chart

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