In this case, the Court of Appeal (Richards, McFarlane and Christopher Clarke LJJ) allowed Ashdown Forest Economic Development LLP’s appeal against Sales J.’s dismissal of their challenge to Policy WCS12 of the Wealden District (incorporating part of the South Downs National Park) Core Strategy Local Plan, which required all new development within 7km of the Ashdown Forest to provide Suitable Alternative Natural Green Space (“SANGS”) to mitigate the impact of increased visitors to the Forest. In the absence of any deliverable SANGS scheme identified by the Council, developments as small as a single dwelling had been refused planning permission by reference to Policy WCS12.
Richards LJ, with whom McFarlane and Christopher Clarke LJJ agreed, held that in adopting Policy WCS12 the Council had failed to comply with the requirements of the Strategic Environmental Assessment Directive 2001/42/EC and the Environmental Assessment of Plans and Programmes 2004. This was because no regard had been given to whether there were reasonable alternatives to the 7km SANGS zone which ought to be subject to environmental assessment alongside the Council’s preferred approach. Contrary to the judgment of Sales J., it could not be said that the Habitats Screening Assessment prepared in conjunction with the draft Core Strategy had considered the reasonable alternatives since its sole focus had been whether the 7km SANGS zone would avoid the risk of harm to the Ashdown Forest SAC/SPA and thus avoid the need for appropriate assessment pursuant to the Habitats Directive 92/43/EEC and the Conservation of Habitats and Species Regulations 2010. It was not the function of the Habitats Screening Assessment to consider alternatives and therefore it did not follow its conclusions that there were no alternative means of ensuring the necessary protection of the Forest.
The Court’s judgment serves as an important warning to local planning authorities of the distinct roles of Habitats Assessment and Strategic Environmental Assessment and highlights the dangers of confusing the two processes.
David Elvin QC and Charles Banner appeared for the successful appellants, Ashdown Forest Economic Development LLP, instructed by Simon Ricketts and Juliet Munn of King Wood Mallesons LLP.