Over the Christmas holidays an East Sussex council received the unwelcome news from a planning inspector that it had failed in its legal “duty to cooperate” with Natural England and neighbouring planning authorities.
Alarm bells were rung in May last year when planning inspector Louise Nurser warned Wealden District Council of "significant issues" with its draft local plan relating to the way air pollution might affect protected habitats. The council forged ahead anyway, eventually identifying space for 950 new homes to be built every year until 2028.
But in a bruising nine-page letter sent to the council last month, Nurser condemned the draft local plan, which lacked “credibility” and showed “inadequate engagement” with Natural England.
So what went wrong? The council’s cooperation failures lay chiefly in two parts – on habitats and air quality, and failing to engage in a meaningful discussion over how to deal with unmet housing need in the district of Eastbourne Borough Council.
EU Directive 92/43/EEC: On the conservation of natural habitats and of wild fauna and flora
22 Jan 2013
The inspector’s first objection related to the council’s forecasts of nitrogen dioxide (NO2) from traffic linked with new housing that would affect the Ashdown Forest – an EU-protected special area of conservation (SAC) that inspired the setting of the Hundred Acre Wood in Winnie-the-Pooh.
The 2,700-hectare SAC is made up of 1,100 hectares of mixed woodland and 1,600 hectares of shrubland, which includes one of the largest single continuous blocks of lowland dry and wet heath in south-east England.
To maintain the integrity of Pooh Bear’s woods, the council modelled future air pollution scenarios on the assumption there would be no improvements to air quality by 2028. But this course of action ran contrary to Natural England’s advice and the local authority’s own air quality advisers who told the council that its approach was “likely to overestimate future vehicle pollutant emissions.”
"Whilst the council may be entitled to take a different view from the advice of a nationally important body and an acknowledged expert in the subject, it needs to support its position with adequate evidence,” the inspector said.
Wealden District Council had not supplied any such evidence, said Nurser.
“If a council is to disagree with an environmental or any other regulator, they need to be able to show good and compelling reasons for doing so,” said planning lawyer Carl Dyer from Irwin Mitchell LLP.
“Firstly, an appeal inspector or a court are likely to give great weight to the views of a statutory regulator… and secondly, some environmental activities are criminal offences and no amount of democratic mandate is a defence to that.”
He added: “In this instance, sadly, the inspector’s finding was that the council had failed properly to cooperate with the environmental regulator, and that is definitely risky, as the council discovered.”
The planning inspector summarised the council’s approach to air quality modelling as lacking in “scientific credibility” as it had assumed zero uptake in electric vehicles and vehicle technology improvements by 2028 and had ignored improvements from tighter emissions regulations arising from the National Emissions Ceiling Directives and the government’s Clean Air Strategy (which puts an end to the sale of new petrol and diesel cars across the UK by 2040).
Jaquelin Clay, chair of JFA Environmental Planning consultants, described the inspector’s comments as a “warning shot over the bows” for other planning authorities dealing with EU-protected sites.
“If I was a planning officer in other districts facing a similar situation, I would be alarmed,” she said.
But the recommendations may also provide some solutions moving forward.
“Air quality is nothing but modelling from top to bottom. So if the inspector’s comments show an outcome that is robust and therefore is the model that should be better to use… that is particularly useful,” said Clay.
Dyer added that the inspector’s recommendations were also “helpful” to the government insofar as Nurser had endorsed the principle of factoring in future improvements in air quality.
Other criticisms levelled against Wealden’s air quality approach included its unwillingness to share its air quality data "on a constructive basis" with a working group of other planning authorities. The Ashdown Forest working group – comprising 12 local authorities and Natural England set up in the wake of the 2017 Wealden judgement to solve the issue of cumulative ecological impacts on the Ashdown Forest SAC – was denied access to Wealden’s air quality data. According to the inspector’s findings, the council had repeatedly refused to share its data with the group, redacted air quality evidence and even withheld air quality monitor locations which could have helped other local authorities develop an appropriate assessment on a “strategic cross-boundary basis”.
While Wealden claimed the information was sensitive – revealing the air pollution stations could open them up to vandalism, it argued – the inspector branded its actions “illogical” because the data had already been shared with Natural England and so could be open to a freedom of information request.
On habitats and air quality, Wealden had failed in its legal duty to cooperate, the inspector concluded.
More criticism was levelled at Wealden council and its “inability” to cooperate with its closest neighbour, Eastbourne Borough Council – a “severely constrained” borough for house building – on unmet housing need. According to national planning policy, local planning authorities should seek to meet their own housing need and also engage in a meaningful discussion over how they can help meet the needs of other authorities in the same housing market in such situations, Nurser said.
But Wealden did not help. The sum total of the council’s failings mean the submitted plan "cannot proceed further in examination", Nurser concluded.
The council’s leader, Bob Standley, said he was "disappointed" by the inspector’s conclusions of its local plan, which he said protected the environment.
“Unfortunately, the planning inspector… has found that we put too great an emphasis on protecting the environment and that we need to do more to build houses in Wealden which our neighbouring councils cannot accommodate,” Standley said.
Based on Natural England’s recommended approach to air modelling, plus a requirement to contribute to meeting Eastbourne Council's unmet housing need, Wealden’s housing target could rise to at least 1,231 homes per year, a council spokesman told ENDS.
A new timetable for the local plan process will now be discussed by the authority’s local plan sub-committee.
Moving forward, Clay believes the obvious thing the council could do is revisit its housing land supply and allocate sites it had not wanted to for what could be political reasons.
“It’s a pretty NIMBY-ish area,” said Clay. “But they’re going to have to look again about how they can provide their housing supply figure.”
There is a more drastic line of action available to the council. It could follow Sevenoaks Council’s example and defy the inspector’s local plan withdrawal request. Like Wealden, Sevenoaks failed in its duty to cooperate with its neighbouring councils over the issue of unmet housing need but this month vowed to press ahead anyway, arguing that an inspector's recommendations are non-binding.