Buckinghamshire Council refused planning permission for residential development in Chesham on 22 October 2021. The applicant appealed to the Secretary of State and the appeal proceeded by written representations. In its statement of case, the Council raised a ‘new issue’ that had arisen since their initial determination of the application: Habitats Regulation Assessment (‘HRA’) of a nearby local plan had identified a Zone of Influence (‘ZoI’) for the new Chiltern Beechwoods Special Area of Conservation (‘SAC’). It had been identified that recreational pressure was having an adverse effect on the SAC, and Natural England had identified the potential for serious conflict between new development and the conservation objectives of the protected features of the SAC. A mitigation strategy was in the process of being worked out, but NE had advised that until this was in place planning permission that would result in new residential development would require an HRA. The Council’s position was that permission could not at the present time be granted, and the Appellant in its ‘Final Comments’ acknowledged the difficulty and submitted the decision should be delayed pending the mitigation strategy.
On 2 September 2021 the Inspector allowed the appeal, and, in doing so, made no reference at all to the new Habitats issue that had been discussed by the parties.
The Council challenged this decision on the basis that the Inspector had materially erred in failing to address the impact of the development on the SAC and making no reference to the SAC issue or the need for HRA in his decision letter, despite it having been raised in submissions by both parties.
The Defendant (Secretary of State for Levelling Up, Housing and Communities) accepted the decision stood to be quashed on that basis and therefore consented to judgment.
This case is a salient reminder of the need to keep abreast of relevant changes occurring between determination of a planning application and the disposal of an appeal by an Inspector, which may follow some time later (in this case, almost 11 months). The longer the time between the two dates, the more likely it is that a new material consideration might arise. It is also an example of the challenges for ‘live’ planning applications when new Zones of Influence are identified necessitating HRA and the agreement of a mitigation strategy – which can take some time.
Jonathan Welch represented the successful Claimant.