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What’s up in Wealden?

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WDC’s consideration of nitrogen deposition in the planning process and judicial outcomes.
Presented by Adrian Meurer
24th May 2017

Published in: Environment
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What’s up in Wealden?

  1. 1. WHAT’S UP IN WEALDEN? WDC’S CONSIDERATION OF NITROGEN DEPOSITION IN THE PLANNING PROCESS AND JUDICIAL OUTCOMES ADRIANMEURERMCIIEM hankinson duckett associates
  2. 2. Ashdown Forest SAC - 2729 ha in East Sussex - Designated on basis of wet and dry lowland heathland habitats - Sensitiveto eutrophication through nitrogen deposition - Crossed and bordered by several major roads including the A26,A22 andA275 Image taken from Lewes District Council HRA
  3. 3. Core Strategy Local Plan 2012 - Supports use of Design Manual for Roads and Bridges (DMRB) methodology - DMRB test scopes out development that results in <1000 Annual Average Daily Traffic (AADT) - WDC identify increase of 950AADT on 275m stretch of A26 – ‘the Critical Link’ as a result of the Core Strategy - Core Strategy Inspector considers this to leave “very little headroom” for further development, and requires further research - Initial findings of research due in 2017
  4. 4. Steel CrossAppeal - 103 homes 2.4km from Ashdown Forest SAC - WDC concede no impact ‘alone’ and issue relates to traffic on the A26 ‘critical link’ only. - AADT on critical link is only 43 so DMRB test passed (still only 993 AADT with WDC traffic) - Nitrogen modelling confirms deposition arising is <1% critical load on all roads. - Inspector grants planning consent but takes “more precautionary approach” than Natural England (para 70) and takes into account ‘heathland management contribution’ to arrive at the project having “a significant beneficial effect on biodiversity in the AF and so also offsetting any small chance of harm as a result of N deposition.” (para 68) - PIns ref: APP/C1435/A/14/2223431
  5. 5. Steel Cross Judicial Review - Despite the Steel Cross Scheme doing more to demonstrate no likely significant effect than their entire Core Strategy, WDC decide to JR the Inspector’s decision. - WDC’s case was largely related to ambiguous wording in the Inspector’s report. - WDC argued confusion by Inspector in reference to the heathland management contribution as ‘SAMMS’ (which eventually related to mitigation for recreational pressure in Wealden) - Court of Appeal ruled that if the Inspector was relying on SAMMS or Heathland Management Contribution, then he had insufficient evidence to guarantee its implementation/ efficacy. - Ref: Wealden DC v SSCLG [2017] EWCA Civ 39
  6. 6. Some smaller development allowed where no net gain in AADT ▪ Land West of Culpepper Close (WD/2016/1718/MAO) – Development of 10 homes offset increase in nitrogen against closure of local pub 1.5 years previously to demonstrate 950 AADT on critical link not exceeded. ▪ Some smaller schemes granted planning permission on similar basis (e.g. April Cottage – a former doctor’s surgery)
  7. 7. Recent developments… ▪ WDC issue note in March 2017 ‘Briefing Document for the Ashdown Forest Nitrogen Deposition position – 13th March 2017’ ▪ WDC recognise that critical loads are already exceeded adjacent to many roads. ▪ WDC move towards assessment of revised local plan using Environment Agency’s 1% of critical load threshold. ▪ WDC identify that all development would exacerbate a current issue and therefore all development must either: 1. Demonstrate no net gain in emissions on roads crossing the SAC; or 2. Provide mitigation or compensation. WDC are exploring a strategic approach to compensation.
  8. 8. High Court hearing: WDC v. SoS, LDC, SDNP & NE ▪ WDC initiated judicial review of the Joint Core Strategy (JCS) of LDC and SDNP. ▪ Principle Issue: Whether LDC and the SoS had acted unlawfully in concluding, on advice from Natural England, that the JCS would not be likely to have a significant effect on the Ashdown Forest SAC, in combination with the Wealden Core Strategy. ▪ WDC’s case rested on the AADT of the A26 critical link being exceeded by the JCS AADT of 190 with WDC’s 950 AADT, arguing that the JCS had not been subject to an in combination assessment. ▪ Mr Jay J did not appear aware of most widely accepted use of DMRB (and that of Natural England) to identify whether there is need for further assessment to establish potential for a likely significant effect to arise (e.g. para 12). ▪ Mr Jay J subsequently takes approach that in using DMRB methodology in- combination effects should be considered from the outset. ▪ Whilst recognising that thresholds can be used by a competent authority, he does not identify an alternative to that provided by the DMRB or 1% rule (para 53). ▪ Mr Jay J’s judgment was handed down in March 2017, effectively quashing the Joint Core Strategy where it relates to development within the SDNP. ▪ My Jay J subsequently recommends that (1) Natural England reconsider its advice in light of his judgment and (2) the DMRB is re-examined and clarified.
  9. 9. What does this teach us? 1. We need a robust, clearly worded methodology to identify plans or projects which have potential to result in cumulative effects on designated sites thereby requiring further investigation. 2. Further investigation should, if appropriate, be clearly separated from ‘appropriate assessment’ (where a likely significant effect has been identified). 3. Use of the methodology should be fully supported by statutory nature conservation and environmental consultees. 4. Where the methodology is tested at appeal, public inquiry and court hearings, appropriately qualified practitioners should be present to guide advocates, Inspectors and Judges.
  10. 10. Any questions?

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