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Millgate Developments Ltd v Secretary of State for Communities & Local Government

DATE: 14 Jul 2008

 

This was a challenge under s. 288 of the Town and Country Planning Act 1990 to the decision of an Inspector to dismiss an appeal for the demolition of 2 existing dwelling houses and the erection of 14 two bedroom apartments in two blocks of seven apartments at Crowthorne. The Inspector refused permission on the basis that the proposal could, in combination with other plans and projects, have an adverse effect on the integrity of the Thames Basin Heaths SPA having regard to, inter alia, the failure also to make provision for any suitable alternative natural green spaces known as SANGs within the unilateral undertaking offered.

Mr Justice Sullivan dismissed the claim holding that the Inspector had been entitled to rely on the advice of Natural England as regards impact on the SPA. The learned Jugde held that the approach taken was consistent with the decision of the ECJ in Waddenzee case [2004] ECR I-7405 and his own decision in Hart DC v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin).

The Thames Basin Heaths SPA was classified, under Article 4 of EC Directive 79/407/ EEC on the Conservation of Wild Birds ("the Birds Directive"), on 9 March 2005 for nightjar, woodlark and Dartford warbler because it is regularly used by 1% or more of the Great Britain population of these species of wild birds. The SPA covers some 8,400ha and is made up of a number of component SSSIs.

The in-combination impact of housing development within 5km of the SPA has been an issue of contention for some time. Natural England's "Thames Basin Heaths Special Protection Area: Mitigation Standards for Residential Development" known as the "Draft Delivery Plan" which sought to provide strategic guidance on the issues has been the subject of considerable debate in the context of the South East Plan examination-in-public.

Rupert Warren appeared for the Claimant. James Maurici appeared for the Secretary of State.