Appeal 6005417

The appeal is dismissed.

An application for costs has been made by the Council against the appellant. This is the subject of a separate decision.

The description of development used in the banner heading above is taken from the planning application form. I observed during my site visit that an occupied mobile home already exists on the appeal site.

A Unilateral Undertaking has been submitted with the appeal, dated 14 May 2026 (the UU). This has been taken into account in determining the appeal.

The main issues are: - Effects on designated habitats sites; - Whether the site could accommodate acceptable drainage; - Whether the development provides acceptable living conditions for its occupants, with particular regard to noise disturbance.

The main parties agree the appeal site to be within 400 metres of the Wealden Heaths Phase II Special Protection Area (SPA). The Wealden Heaths SPAs form part of a complex of heathlands that support breeding populations of European importance and is divided into [name] and [name]. The SPA supports three qualifying species of birds, being nightjar, Dartford warbler and woodlark, and is comprised of habitats including heath and scrubland, improved grassland, deciduous and coniferous woodland. The conservation objectives for [name] of the SPA are to ensure that the integrity of the site is maintained or restored as appropriate, and ensure that the site contributes to achieving the aims of the [name], by maintaining or restoring, among other things, the extent, distribution, structure and function of the habitats of the qualifying features.

Natural England have identified threats to the SPA which include, among others, outdoor sports, leisure and recreational activities arising from public access. Recreational pressure causes direct disturbance to birds that can lead to increased stressed levels and reduced fitness and breeding success, as well as habitat degradation through damage to vegetation, soil compaction and littering, among others. Being ground nesting birds, nightjar and woodlark are also particularly sensitive to the effects of dog walking.

The development has introduced residents onto the appeal site who would be very likely to use the SPA for recreational purposes given it is a short distance from the site, for the lifetime of the development. As such, a likely significant effect on the qualifying features of the SPA that would undermine its conservation objectives, either alone or in combination with other plans or projects, cannot be ruled out. This is consistent with the findings of the appellant’s Habitats Regulations Assessment (HRA), dated January 2026.

The Council’s ‘[name] Special Protection Area’ Supplementary Planning Document 2018 (the SPD) set out the approach the Council would take to a net increase in windfall residential development within 400 metres of the SPA, including Gypsy and Traveller pitches. In summary, it set out a windfall allowance of 43 dwellings in this zone supported by Natural England, since this would amount to a sufficiently small increase in total housing stock that it could be considered de minimis in scale. Of that windfall allowance, 32 dwellings had already been ‘used up’ and a further 4 allocated, resulting in only 7 dwellings being left in the allowance at the time the SPD was written. The Council report the remaining capacity was reached in February 2022, as set out in its 2025 [name].

An FOI request by the appellant suggests the number of Council tax paying properties within the 400m buffer of the SPA is in fact greater than listed in the 2018 SPD. Accordingly, the appellant suggests the number of dwellings in the windfall allowance could be increased by two dwellings to 45. In addition, it is suggested that some of those permissions granted within the allowance appear not to have been built out and may have expired. While these concerns raise some doubt in the number of windfall homes which could be accommodated here, there is not sufficient supporting evidence before me to demonstrate beyond all reasonable doubt that is the case, or that there is in fact capacity for the appeal scheme within the windfall allowance. Neither is there evidence of support from Natural England on these matters. Overall, and adopting the precautionary approach required by the Habitats Regulations, it cannot be established that the effects of the appeal scheme are de minimis.

The appellant refers to approved schemes where alternative natural greenspace has been provided, and in some cases overprovided, which could help reduce the effects of development in the 400m buffer1. However, it is not clear whether those have been delivered and they are some distance away from the appeal site. Residents of the development may also choose to use the fields and woodland to the south of the site for some recreational purposes, although the level of public accessibility to that land is not apparent from the evidence. Overall while these may provide alternative spaces for occupants of the development to visit, I cannot be certain that occupants would not visit the SPA given its proximity or that the level of effects on it would be de minimis.

The level of occupancy on the neighbouring site does also not provide assurances on this matter, since the Council’s approach, and that supported by Natural England, relates to the number of dwellings rather than number of occupants, which I am not convinced could reasonably be secured. Neither am I convinced that the use of the site for equestrian purposes would have a more harmful effect on the SPA than residents of this development.

The UU relates to a financial contribution of £3,000 towards suitable alternative natural greenspace (SANG) as well as a contribution to the Council’s monitoring of the obligation. It prioritises its spending at [address] and any other provisions within 2km of the appeal site. This contradicts the appellant’s HRA (Shadow) report2 which identifies that mitigation is not feasible in this instance since SANG mitigation routes are currently not applicable to the appeal site. Neither is there evidence to suggest this approach is supported by Natural England, who commented during the course of the application that mitigation measures here are unlikely to protect the integrity of the SPA.

The Council’s 2025 [name] states the Council do not manage any SANG and, based on the information before me, a new SANG at [address] is described only as potential, and consequently its delivery and the time that it might be available, is unclear. Neither is there certainty surrounding any other SANGs within 2km of the appeal site, including what and where they may be or the certainty of them being delivered or comprising realistic alternatives to the SPA. Together, and in the absence of substantive evidence to the contrary, this casts significant doubt on the ability of the financial contribution to be spent for its intended purpose and the mitigation to work in practice.

Furthermore, it is not clear how the contribution here has been calculated, and, even if this approach to mitigation was accepted, it has not been demonstrated that the amount is fairly and reasonably related in scale and kind to the development. The appellant has evidenced an [name] published by the Council relating to development in the buffer zone3, however being dated 2014 it predates the above situation regarding windfall sites and the exclusion zone and does not provide assurances that this mitigation would be appropriate here. 1 Council’s references 55587/001 and 29294/006 2 Habitats Regulations Assessment (Shadow) dated 28th January 2026 3 Appendix 6 of the [name] – ‘Habitats Regulations Information Note published by East Hampshire District Council, South Downs National Park Authority and Waverley Borough Council 2014

I have had regard to an earlier appeal decision at [address] in May 20254 regarding potential mitigation. It appears the evidence before that Inspector included the [name] which I have considered above. [name] do not have details of the specific evidence before that Inspector and do not find that decision binds my own nor provides certainty regarding the effects of this scheme.

While mitigation was not secured for the neighbouring development approved in March 20225, I understand this scheme occupied the last space in the windfall allowance and consequently fell within the de minimis effects. Its circumstances were therefore different to this appeal. The other site evidenced by the appellant6 is described as having exceptional circumstances arising from physical barriers restricting the access of residents to the SPA, which is not the case here. The lack of an objection from the Council’s Ecologist, and lack of an initial response from Natural England, do not provide assurances regarding these effects.

Overall, for the reasons given, there is not evidence before me to demonstrate that the effects of the appeal scheme would be sufficiently mitigated by such contributions or that this is an approach supported by Natural England. It has not been substantiated that there are not alternative solutions here which would have a lesser effect on the integrity of the SPA. Nonetheless, even if this were the case, given the quantum of pitches proposed here and for the reasons set out further below, I am not satisfied that there are imperative reasons of overriding public interest to override the harm to the SPA.

In conclusion on this main issue, an adverse effect on the integrity of the habitats site cannot be ruled out. In the absence of a HRA to demonstrate that either no adverse effect on the ecological integrity of the SPA will occur or that adequate measures will be put in place to avoid or adequately mitigate any adverse effects, and in the absence of agreement with Natural England, the development is contrary to Policy CP22 of the JCS7.

The appellant has provided a drainage report as part of the appeal, which sets out installation of pervious tarmac to facilitate surface water drainage, as well as details of soakaway and foul drainage connecting to the public sewer. While the details do not include relevant approvals from [name], I have no strong reason to doubt that this could reasonably be achieved. Such drainage could be secured by condition if the proposal were otherwise acceptable. The development complies with Policy CP25 of the JCS insofar as it relates to drainage and management of surface water run off.

The padel centre includes internal courts and I understand planning permission exists for external courts on the far side of the building. The appellant’s noise report identifies some audible noise from the padel centre at the site boundary, arising from padel ball impacts and customers shouting. This is consistent with my observations on site, where these sounds were observed intermittently, albeit muffled by their containment within the building. The site is otherwise on the edge 4 Appeal ref APP/M1710/W/24/3352249 5 Council’s reference 57573/006 6 Council’s reference 29294/006 7 East Hampshire District Local Plan: [name] adopted 2014 of the settlement, adjoining a distinctly rural landscape to the south where the noise report refers to some road and occasional aircraft noise.

Although acknowledging the shortfalls highlighted by the Council in the methodology used by the appellant, given the location of the courts involved, the hours of use and the findings of my site visit, I consider the overall scope for harmful noise disturbance from the padel centre is limited. Given the open spaces and fields to the south of the site I have no strong reason to believe that any other nearby uses cause unacceptable noise disturbance, including during the night time period. I find the development is compliant with Policy CP29 of the JCS which includes that development must help to create places people want to live.

The Council accept that it cannot demonstrate a five year land supply of pitches and the appellant states the Council’s supply could be as low as 1.9 years which is a very significant shortfall. The provisions of paragraph 11d) of the National Planning Policy Framework (the Framework) are therefore relevant to the appeal. However, since the application of policies in the Framework which protect habitats sites provide a strong reason for refusing the development, it does not benefit from the presumption in favour of sustainable development set out in the Framework.

While there is not detailed information regarding the occupant, or intended occupants of the site, for the purpose of balancing material considerations I have assumed the site would be occupied by those meeting the definition of Gypsies and Travellers provided by the Planning Policy for [name] (PPTS) as set out in the evidence. The provision of an additional pitch contributes to the identified short fall, and this is in an established built up area with good access to services and facilities nearby. The development does not dominate the settlement and these represent important benefits of the scheme. I also recognise compliance with other policy requirements, including that the site promotes a healthy lifestyle and has acceptable visual effects.

Having regard to the considerations of paragraph 25 of the PPTS, I do not have substantive details surrounding potential alternative accommodation and therefore cannot conclude that no alternatives exist. Nor do I have details of other personal circumstances of the occupant or intended occupants. As such I cannot give additional weight to these factors in favour of the development.

Nonetheless, dismissing the appeal would represent an interference with the home of the occupant such that Article 8 of the Human Rights Act is engaged. There is also a positive obligation imposed by Article [address] of life. The development meets the needs of those persons with a relevant protected characteristic, by reason of race, and so, as required by section 149(1) of the Equality Act 2010, the public sector equality duty is applicable. There is therefore a need to have due regard to eliminating discrimination, advancing equality of opportunity and fostering good relations.

The human rights interference associated with this conclusion is in accordance with the law and is necessary in a democratic society to protect environmental interests which is a legitimate objective. The public interest cannot be achieved by means that cause less interference with the appellant’s rights. Therefore dismissing the appeal is a proportionate response in these circumstances and a violation of rights under Article 8 would not occur.

In accordance with the public sector equality duty, due regard has been paid to minimising the disadvantages suffered by the intended occupier of the site, assuming they are a person without a permanent home and to meeting their needs in so far as they are different to those without a relevant protected characteristic. Whilst ultimately the appeal is to be dismissed, these considerations have been at the forefront of the decision-making process and given the nature of the objection identified here, the outcome is a proportionate one.

Overall the harm identified in respect of the first main issue attracts substantial weight and the benefits of the scheme and other material considerations do not outweigh that harm or justify a decision other than in accordance with the development plan and the requirements of the Habitats Regulations.

I have considered whether to grant temporary planning permission. However, the development would still present harmful effects on the SPA during that period and conflict with the development plan and Habitats Regulations would remain, even if temporarily. The benefits in that instance would similarly not be sufficient to outweigh the harm caused by a temporary development.

The development conflicts with the development plan and there are not material considerations of sufficient weight which indicate a decision should be made other than in accordance with it. The appeal is therefore dismissed.