Appeal 6005287

The appeal is dismissed.

The proposal is for permission in principle. The Planning Practice Guidance (PPG) advises that this is an alternative way of obtaining planning permission for housing-led development. The permission in principle consent 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 the considerations for permission in principle is limited to location, land use and the amount of development permitted. All other matters are considered as part of a subsequent technical details consent application if permission in principle is granted. I have determined the appeal accordingly.

Article 5B of the Town and Country Planning (Permission in Principle) Order 2017 (as amended) states that Permission in Principle must not be granted for development which is habitats development. This means development which is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), is not directly connected with or necessary to the management of the site, and for which the competent authority has not given consent, permission, or other authorisation in accordance with Regulation 63 of the Conservation of Habitats and Species Regulations 2017.

The main issue is whether the appeal site (the site) is suitable for residential development, having regard to its location, the proposed land use, and the amount of development.

The Epping Forest Special Area of Conservation (the SAC) is designated for its beech forest, wet and dry heaths and stag beetle population. The conservation objectives are to ensure the integrity of the site is maintained and restored, and that the site contributes to achieving the favourable conservation status of these cited qualifying features.

As set out in the Epping Forest Interim Air Pollution [name] (2020) (the IAPMS), new development in the wider area may result in increased traffic on roads that cross the SAC, and air pollution from those additional vehicles would harm the health of its qualifying features. Whilst the site is outside the zone of influence for the SAC, there is a reasonable likelihood that the proposal would increase traffic through it. Therefore, the proposal has the potential, either alone or in combination with other development in the area, to have a likely significant effect on the SAC.

The IAPMS and the Epping Forest Strategic Access Management and [name] (2021) (the SAMM) set out a tariff-based approach, in which contributions fund mitigation measures. These include air pollution reduction schemes, path management, signage, and visitor engagement campaigns. This has been developed alongside advice from Natural England. I am satisfied that this approach would overcome any adverse effects on the SAC, if secured through a reliable mechanism such as a planning obligation.

The PPG states that planning obligations cannot be secured at the permission in principle stage. The appellant draws my attention to a previous appeal at a different site1 in which the Inspector explained there is, nevertheless, no legal reason why an obligation could not be entered into at any time. I recognise that this is so.

However, in that previous appeal the Inspector was satisfied that two unilateral undertakings provided by the appellant would ensure appropriate mitigation for the development in question. In contrast, in the appeal before me it is not evident that an appropriate, signed and dated obligation exists.

The appellant informs me of a deed of unilateral undertaking under s106 of the Town and Country Planning Act (1990) (as amended) (the Act). His statement of case refers to this as having been entered into previously or, somewhat alternatively, as having been accepted and with payment provided. The distinction is crucial, as the latter does not suggest the existence of a signed obligation upon which I may rely.

Indeed, the Council is clear that an appropriate obligation has not been secured. The appellant has provided an excerpt from an October 2022 email exchange involving the Council’s solicitors. This, however, does not show me that a secure obligation is in place. Moreover, it appears to refer to an earlier and different planning permission.

Ultimately, the appellant has not supplied me with a signed, dated copy of any effective obligation. Given the second reason for refusal of the application and the approach taken by the Council in its appeal statement, including reference to a pertinent previous appeal2, I find they have had ample opportunity to recognise the 1 2 significance of the issue and address it. I proceed on the basis that an appropriate planning obligation does not evidently exist.

The PPG states that an obligation may be agreed at the technical details consent stage. However, I must determine the appeal as it is presented to me, and I cannot be certain that an adequate obligation would be secured at a later stage. As such, I cannot be certain that adverse effects on the SAC would be avoided.

I recognise that the Council delegated report appears to find that mitigation could be secured at the technical details consent stage. That said, the second reason for refusal was explicit. I have determined the appeal as if the application had been made to me in the first instance, in line with section 79(1) of the Act.

Several other matters have been raised in the appeal. I need not consider them, as they are not capable of altering my conclusion; The proposal would constitute habitats development which is excluded from a grant of permission in principle under Article 5B of the Town and Country Planning (Permission in Principle) Order 2017 (as amended).

I conclude that the appeal should be dismissed as it does not comply with Article 5B(1) of the Town and Country Planning (Permission in Principle) Order 2017 (as amended).