Appeal 6002623

The appeal is dismissed.

The Council has confirmed that the appeal site is not within the Green Belt and therefore it does not wish to defend the first of its refusal reasons. On the evidence before me, I see no reason to conclude otherwise. Consequently, the main issue in this appeal is the effect of the proposed development on the integrity of the Epping Forest Special Area of Conservation (“the EFSAC”).

The EFSAC is a legally protected habitats site under the Conservation of Habitats and Species Regulations 2017 as amended (“the Habitats Regulations”), which the information before me indicates is designated for the nature conservation importance of its habitats and species. The evidence indicates that atmospheric pollution arising primarily from vehicle emissions is harmful to the nature conservation interests of the EFSAC.

To mitigate the adverse effects of atmospheric pollution on the integrity of the EFSAC, the evidence indicates that the Council has adopted the Interim Air Pollution Mitigation Strategy which provides the necessary strategic measures to mitigate those harmful effects. It sets out that the delivery of those measures would, amongst others, be funded through securing financial contributions from qualifying planning permissions.

The appellant’s Habitats Regulations Assessment identifies that occupation of the appeal development would contribute to an increase in the [name] on roads within the EFSAC and its buffer zone, and a consequential increase in atmospheric pollution from vehicle emissions. Unless those effects are mitigated through measures including the provision of electric vehicle charging points and the payment of a proportionate financial contribution towards the delivery of the Interim Air Pollution Mitigation Strategy, occupation of the proposed development would be expected to have significant adverse effects on the nature conservation interests of the EFSAC arising from air pollution.

Under the Habitats Regulations it is my duty as the Competent Authority to undertake an Appropriate Assessment to determine whether those mitigation measures would be properly secured to avoid those likely significant adverse effects on the EFSAC. In doing so, I have taken a precautionary approach to this matter given that the EFSAC is an important legally protected habitats site.

The main parties agree that a legal agreement would be needed to secure a planning obligation for payment of the financial contribution to mitigate the proposed development’s harmful effects on the nature conservation interests of the EFSAC. However, no legal agreement is before me in this appeal. This is despite the Council’s decision notice stating that a legal agreement is necessary.

I am satisfied that the very exceptional circumstances set out in the appeals guidance1 do not exist to justify delaying a decision on the appeal until a legal agreement has been submitted. No cogent explanation for the absence of a legal agreement has been given. The guidance is clear that if the appeal is following the written representations procedure the appellant must ensure that an executed and certified copy of the planning obligation is submitted at the time of making their appeal.

If a legal agreement was submitted now, it would need to be considered and publicised by the Council, and the views of Natural England as the appropriate nature conservation body would need to be sought on its content. Even if its content was satisfactory, there would be a delay in decision making that would likely stretch over several weeks.

The efficient operation of the appeals process necessitates that I determine this appeal on the evidence before me and therefore I shall not delay my decision whilst a legal agreement is sought. I have therefore declined the appellant’s request to delay my decision to allow for a legal agreement to be submitted.

I have considered whether there are any effective alternative mechanisms to a legal agreement. However, the Planning Practice Guidance is clear that the payment of money cannot be required by a planning condition2. In having regard to the guidance on planning obligations in the Planning Practice Guidance3,4 there are no very exceptional reasons on the evidence before me to justify imposing a planning condition to secure the necessary legal agreement. The guidance states that discussions about planning obligations should have taken place as early as possible in the planning process to avoid delays in decision making.

As the Competent Authority in this appeal, I cannot be satisfied beyond reasonable scientific doubt that the necessary measures to mitigate the harm to the EFSAC would be properly secured if planning permission was granted. For the reasons given above, I therefore conclude through my Appropriate Assessment that occupation of the proposed development would have significant adverse effects on the nature conservation interests of the EFSAC, from atmospheric pollution arising 1 Chapter 18 of the Procedural Guide: Planning appeals – England. For appeals relating to applications dated on or before 31 March 2026. 2 Paragraph: 005 [name]: 21a-005-20190723 3 Paragraph: 010 [name]: 21a-010-20190723 4 Paragraph: 013 [name]: 23b-[phone] from vehicle emissions. It would be contrary to Policies DM2 and DM22 of the Epping Forest District Local Plan 2011-2033 [name], [name] 2023, which seeks to ensure that development does not cause adverse effects on the integrity of the EFSAC, having regard to the mitigation measures in the Air Pollution Mitigation Strategy, and paragraph 187.a) of the National Planning Policy Framework. No other solutions, imperative reasons of overriding public interest to permit the development, or other compensatory measures have been put forward by the appellant as alternatives.

The proposed development would have a significant adverse effect on the integrity of the EFSAC, irrespective of its benefits and the absence of any other harms being identified by the Council. This is a determinative matter that requires me as the Competent Authority to refuse planning permission as directed by Regulation 63(5) of the Habitats Regulations.

For the reasons given above the proposed development would be contrary to the development plan as a whole. The material considerations do not indicate that the appeal should be decided other than in accordance with the development plan. The proposed development is therefore unacceptable, and the appeal should be dismissed.