Appeal 6003614

The appeal is dismissed.

The proposal is for permission in principle (PiP). The Planning Practice Guidance (PPG) advises that this is an alternative way of obtaining planning permission for housing-led development. The PiP route has two stages: the first stage (or permission in principle stage) establishes whether a site is suitable in-principle, and the second ‘technical details consent’ stage is when the detailed development proposals are assessed. This appeal relates to the first of these two stages.

The scope of considerations for PiP is limited to location, land use and the amount of development. All other matters are considered as part of a subsequent technical details consent (TDC) application if PiP is granted. As such, I have treated the plans of the dwelling as indicative only.

The site lies within the High Weald National Landscape (NL) and I am required to give great weight to conserving and enhancing the natural beauty of the NL. However, this is not a matter in dispute between the parties and from the evidence before me, I have no reason to disagree. As such I do not need to deal with this matter further.

The appeal site lies within the zone of influence (ZOI) of the Ashdown Forest Special Protection Area (SPA) and the Ashdown Forest Special Area of Conservation (SAC). Both are designated European habitat sites protected under the Conservation of Habitats and Species Regulations 2017 (the Habitat Regulations), which I refer to collectively as ‘the habitat sites’ hereafter.

The main issues are: • the effect of the proposal on the integrity of the habitats sites; and • whether the site is a suitable location for a residential dwelling, having regard to the spatial strategy and its accessibility to services and facilities.

Article 5B (1) of the Town and Country Planning (Permission in Principle) Order 2017 (as amended) (hereafter the Order) states that PiP cannot be granted for development which is habitats development. This is defined in Article 5B (5) of the Order as development which is likely to have a significant effect on a qualifying European site1, either alone or in combination with other plans and projects, and is not directly connected with or necessary for the management of the site. If a proposed PiP development is likely to have a significant effect on a qualifying European site without any mitigating measures in place, an Appropriate Assessment (AA) must be undertaken by the competent authority to establish whether the development would adversely affect the integrity of the protected site. If the outcome of the AA is unfavourable, it would preclude the granting of PiP.

Policy WCS12 of the Wealden District Core Strategy Local Plan (2013) (CS) seeks to protect Ashdown Forest SPA and SAC by reducing the recreational impact of visitors from new housing development. Additionally, it seeks to reduce associated nitrogen emissions emanating from the increased number of vehicles in its vicinity. Amongst other things, saved Policies EN1 and EN15 of the Wealden Local Plan 1998 (WLP) seek to pursue sustainable development, through considering location and assessing the effects of proposals on the environment, and to safeguard protected areas, including Ashdown Forest, having regard to their status, securing conditions and/or planning obligations to provide appropriate compensatory measures.

The SAC includes one of the largest continuous blocks of lowland heath in south-east England supporting various species of flora and fauna, including European dry heaths and [name] wet heath. The conservation objectives are to ensure the favourable conservation status of its qualifying features including by maintaining and restoring qualifying habitats. The main threat to the SAC relates to air pollution, related to the increase in traffic in its vicinity from visitors.

The evidence before me indicates that both Natural England and the Council are content that this level of development either alone or cumulatively, would not adversely affect the integrity of the SAC regarding air quality, and that no mitigation is necessary. In light of this, as the competent authority in this appeal, I have no reason to reach a different view. As such, I am satisfied that a likely significant effect on the SAC can be ruled out.

The SPA is an extensive area of common land comprising a mosaic of wet and dry heath, valley bog and woodland, supporting uncommon plants and a rich invertebrate fauna. Its qualifying features are the [name] and [name], both species of breeding birds. The conservation objectives for the SPA are to ensure that the integrity of the site is maintained or restored as appropriate, and to ensure that the site contributes to achieving the aims of the [name]. The main threats to the SPA are through development pressures and 1 As defined by regulation 8 of the Conservation of Habitats and Species Regulations 2017 (as amended). additional recreational disturbance, resulting in damage and disturbance to the bird’s habitat.

The proposal would create a net gain of one dwelling and, in combination with other developments permitted in the area, there would be a likely significant adverse effect on the SPA.

My attention is drawn to the Ashdown Forest SPA Mitigation Zone Background Paper (2019) and the Ashdown Forest SPA Strategic Access Management and Monitoring Strategy Tariff Guidance (2019). These set out a strategic approach to mitigation by pooling tariff style financial contributions made per dwelling, towards a range of mitigation and avoidance measures. The strategy includes the provision of Suitable Alternative Natural Greenspace (SANGS) to provide an alternative destination for visitors and a programme of [name] and Mitigation (SAMM) as well as monitoring.

It is clear that the contributions towards the SANGS and SAMMS are necessary to mitigate adverse impacts, which would be used towards supporting an alternative recreational destination and thereby relieving pressure from the SPA, an approach supported by Natural England.

The SAMM Strategy Tariff Guidance requires mitigation to be secured prior to the determining of a planning application, and in the case of a PiP, it is the granting of the TDC which has the effect of granting planning permission for the development. However, in these circumstances, the PPG is clear that PiP can only be granted if, after taking account of mitigation measures in the AA, a decision-maker concludes the development would not adversely affect the integrity of the habitat sites. To come to such a conclusion, I must be satisfied beyond all reasonable scientific doubt that any adverse effect on the integrity of the habitat sites would be avoided.

This means there must be certainty that any necessary mitigation would be delivered. I note the appellant is inclined to deal with the mitigation at TDC stage. However, in carrying out this AA, I must take a precautionary approach. In the absence of an effective mechanism before me through which the payment of the tariff could be secured, I do not have the necessary certainty that any adverse effects on the integrity of the habitat sites would be avoided. A condition would not be appropriate in this situation. Furthermore, no legal agreement or undertaking is before me to include the mitigation provisions with the trigger for its delivery linked to the associated TDC.

Imperative reasons of overriding public interest of a social or economic nature are not present that would be sufficient to overcome the harm that would be caused to the habitat site. In the absence of any mitigation, the proposal for a new dwelling would be likely to increase recreational pressure, and thus would, in combination with other plans and projects, have a likely significant effect on the integrity of the SPA. Therefore, I must conclude that the proposed dwelling would have an adverse effect on the SPA, contrary to the Habitats Regulations. The proposal would also be contrary to CS Policy WCS12 and [name] EN1 and EN15, the objectives of which, I have already outlined above.

As the outcome of the AA is unfavourable, irrespective of the merits of the scheme, it is exempted from qualifying for PiP. Consequently, it follows that PiP cannot be granted. Nevertheless, for completeness, I will now consider the other matter in dispute. Suitable location - Spatial strategy

A strategic approach to development is set out in the CS which focuses development towards the ‘Primary centre’, which sits at the top of the district’s seven tier settlement hierarchy and has the infrastructure to support growth.

The appeal site relates to a small holding which, amongst other things, contains a modest sized open fronted agricultural structure within the [site address] site, to the north of [site address] , Hurstwood. Located outside of any defined settlement boundaries, the appeal site lies within the open countryside.

The nearest settlement is said to be [name], a ‘Neighbourhood centre’ within the sixth tier of the settlement hierarchy. It is defined in the CS as a settlement ‘with limited, basic or no facilities but with access to another centre, or a settlement with facilities but poor accessibility or access only to a service or local centre’. Crowborough lies further afield. This is a third tier ‘District centre’ settlement and according to CS Policy WC32, is expected to contribute to housing development during the plan period.

CS Policy WCS6 sets out a rural area’s strategy. It contains 4 tiers of rural settlements expected to accommodate a proportion of growth over the plan period. [name] is not named in this policy as a settlement expected to contribute to growth. Moreover, development in the open countryside is strictly controlled by Policies GD2 and DC17 of the WLP, unless it accords with other specific policies of the plan. I have not been pointed to any other policies that it conforms with, bringing the scheme into conflict with them.

Despite the age of these policies, they remain broadly consistent with the objectives of the National Planning Policy Framework (the Framework) insofar as they seek to direct development to the most sustainable locations, reduce the need to travel and protect the countryside from inappropriate sporadic development. - Accessibility

WLP Policy EN1 is clear that the Council will pursue sustainable development, having regard to principles in government guidance and its own strategies for the environment, in considering the location of development. Furthermore, [name] SP07, seeks to encourage the reduction of the need to travel by car by concentrating development where it can most closely relate to public transport opportunities, and by making it easier to travel by more sustainable modes of transport. These policies align with the thrust of the Framework which highlights that priority should be given first to pedestrian and cycle movements, and second to facilitating access to high quality public transport.

While the site is not isolated given the presence of a neighbouring dwelling to the east, it would be relatively remote from the services and facilities upon which future occupants would rely. There is dispute between the parties over the distance from the site to Crowborough, a ‘District centre’ containing a range of services and facilities, including public transport which is not reliant on other centres within the district to meet residents’ day-to-day needs. The appellant indicates the distance is around 2.5km but the Council suggest the distance exceeds 4.5km to the centre.

Irrespective of the exact distance, the site is in a distinctly rural location. Access to facilities in Crowborough that would meet residents’ day‐to‐day needs would be highly likely to occur by private car, given the absence of public transport connections and the hilly, winding nature of the country lanes leading to the site, which are subject to the national speed limit and devoid of footpaths and streetlighting. These factors would be strong deterrents to the use of more sustainable transport modes.

Given the remoteness of services and facilities, the proposal would make only a very limited contribution to maintaining or enhancing the vitality of the rural community. The site therefore does not occupy a location supported by Paragraph 83 of the Framework.

The lack of accessibility of the location compared to services and facilities is not a matter that could be adequately mitigated by condition. I acknowledge that opportunities to maximise sustainable transport solutions will vary between urban and rural areas and the proposal is not a significant development. Nevertheless, the proposal would not represent a location which is sustainable, as contrary to the Framework, it would not be located where the need to travel would be limited. - Conclusions on suitable location

There is an acceptance by the Council that settlement boundaries will need to be breached to achieve the necessary housing requirements. [name] would expect an action plan to include strategies like considering development on land immediately abutting settlement boundaries. I do not have a Housing Action Plan before me in evidence. Nevertheless, I find that its inaccessibility far from services and facilities would render this scheme particularly unsustainable.

Drawing the above together, the appeal site is not a suitable location for the development, having regard to the spatial strategy and its accessibility to services and facilities. The appeal scheme runs counter to [name] GD2, EN1 and DC17 and [name] SPO7, SPO13, [name] WCS2, WCS6 and WCS14, the objectives of which I have outlined above, and amongst other matters, seek to achieve sustainable development and expect real contributions to addressing climate change issues.

The appellants assert that if they were able to reside on site, it would negate twice daily vehicle movements associated with animal welfare checks. However, whilst the site currently accommodates a small number of animals, this may not always be the case, as any planning permission would run with the land not the appellant. As such, this carries only limited weight in favour of the appeal.

The appellant suggests that the site is previously developed land (PDL). Having regard to the Framework definition, this specifically excludes land that is or was last occupied by agricultural or forestry buildings. Noting the evidence before me, including the appellants own description of the site, it has not been demonstrated that the land constitutes PDL in whole or in part.

My attention is drawn to a number of appeal decisions. Limited information is before me in respect of them. Two of these2 relate to development in the Green Belt, where development would be assessed against different policy and criteria. The main issues in another decision3 cited, focused on highway safety and living conditions, not whether it was suitably located.

The appeal decision relating to Perrysfield Farm4 comprised an application for full planning permission for 29 dwellings, including 10 affordable homes and 10 for older active persons, and related to the conversions and demolition of dwellings, such that even noting it had compromises in terms of sustainability of transport options, it had an entirely different context to the appeal before me. Similarly, the PiP appeal relating to the Barn at [address] Lane5 was also of greater scale, related to the conversion of an agricultural building, had better options for pedestrians and was closer to public transport connections.

The PiP appeal on land rear of Godolphin View6 was an affordable housing led scheme of greater scale, that in contrast to this appeal before me, was located to immediately abut existing housing. Better accessibility options were available in respect of the dwelling at the heart of the appeal relating to land at Thornhill Stables7, and the housing land supply position was considerably worse at just 1- year, than in the case before me. Consequently, none of these appeals cited are directly comparable and they do not alter my findings.

The Council can only demonstrate a 3.44 years supply of housing land, representing a sizeable deficit against the five years supply requirement. WLP Policy WCS14 relates to the presumption of sustainable development and despite its age, broadly aligns with the Framework. Paragraph 11(d) of the Framework states that where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, granting permission unless (i) the application of policies in the Framework that protect areas or assets of particular importance provides a strong reason for refusing the development proposed.

Footnote 7 of the Framework identifies that habitat sites are areas of particular importance in this context, and I have found the lack of mitigation would indeed provide a strong reason for refusal. The presumption in favour of sustainable development does not therefore apply.

Even had this not been the case, whilst the scheme would deliver a small but important boost to housing supply in a district where housing need is pressing, and even taking into account the associated economic and social benefits which collectively weigh heavily in favour of the appeal, as a scheme for just one dwelling, in my judgement the harm from its unsustainable location would have still significantly and demonstrably outweighed those benefits.

The proposal conflicts with the development plan and there are no material considerations, either individually or in combination, that outweigh the identified 2 APP/M3645/W/24/3347328 and APP/M3645/W/24/3347815 3 APP/C1435/W/25/3367636 4 APP/M3645/W/24/3352066 5 APP/C1435/W/25/3364183 6 APP/D0840/W/24/3349443 7 APP/Z3825/W/25/3361339 harm and associated development plan conflict. Moreover, the unfavourable AA means that it is exempted from qualifying for PiP, and it cannot be granted.

Therefore, I conclude the appeal is dismissed.