Heffalump Traps: The Ashdown Forest Cases

The Ashdown Forest in East Sussex is unique. Lindblom LJ recently described it as follows:
“Ashdown Forest contains one of the largest continuous blocks of lowland heath in south-east England. The [Special Area of Conservation] which extends to about 2,700 hectares, comprises both Northern Atlantic wet heaths with Erica tetralix and European dry heaths. It is a “European site” under regulation 8 of the Habitats regulations. The [Special Protection Area] was designated mainly for the protection of two species of bird: the Nightjar and the Dartford Warbler, both included in Annex 1 of EU Directive 79/409/EEC on the conservation of wild birds, as amended. Ashdown Forest is also designated a Site of Special Scientific Interest (“SSSI”), for its heaths, birds, invertebrates, reptiles and amphibians, including the Great Crested Newt.”

The Ashdown Forest was of course also the inspiration for A.A. Milne’s Winnie the Pooh:

“Anyone who has read the stories knows the forest and doesn’t need me to describe it. Pooh’s Forest and Ashdown Forest are identical.” (Christopher Milne)


This honeypot is particularly vulnerable to the indirect effects arising from development in two respects:

– nitrogen deposition caused by motor vehicles

– impacts from recreational use of the forest
It can be particularly difficult to model the levels at which those effects are likely to arise. Any standardised thresholds are bound to be simplistic and to err either on the side of unnecessary restriction of development or on the side of risking significant harm to the forest. But we can’t embark on a huge multi-disciplinary research project every time any change is proposed – and, even then, will the results be accurate?

Whether we are in or out of the EU, I assume that we all accept that there are some particularly special places such as Ashdown Forest that require longterm protection due their nature conservation value and which can be harmed in a number of ways by the incremental effects (direct and indirect) of development? Equally, I’m sure we all recognise that a balance has to be struck in the level of survey work and assessment that local planning authorities and developers should do to determine whether development will acceptable?

It would never be easy to construct a legal regime that provides a fair and efficient process for determining what survey work and assessment is required and where the dividing line is between what is acceptable and unacceptable. As both a Special Area of Conservation and Special Protection Area, the Ashdown Forest is protected under the EU’s Habitats and Birds Directive, transposed in England and Wales by the Conservation of Habitats and Species Regulations 2010.
In basic summary, if it cannot be proven, beyond reasonable scientific doubt, that there will be no significant effect on the site either alone or in combination with other plans or projects, “appropriate assessment” is required, namely consideration of the impacts on the integrity of the European site, either alone on in combination with other plans and projects, with regard to the site’s structure and function and its conservation objectives. If the assessment determines that there will be adverse impacts which cannot be mitigated or avoided by alternative solutions, the plan or project can only proceed in extremely limited circumstances. Appropriate assessment can be a significant undertaking. Relevant for what follows, policy makers have come up with a pragmatic mechanism of requiring contributions by developers to Suitable Alternative Natural Greenspace (“SANGs”) to provide for areas to come forward that will take recreational pressure away from protected sites as a standardised form of mitigation, often thereby avoiding the need for individual, development by development, appropriate assessment. 
Additional levels of protection, not just relevant to European designated sites, are provided by the Strategic Environmental Assessment Directive (in relation to the formulation of plans or programmes whose policies may give rise to significant environmental effects) and by the Environmental Impact Assessment Directive (in relation to certain categories of development projects which may give rise to significant environmental effects). Each has a screening stage, by which the need for detailed assessment work can be avoided if it can be shown that significant environmental effects are unlikely to arise. 
The Great Repeal Bill will operate post Brexit so as to continue to give legal effect in the UK to all of these regimes until such time as Parliament reviews each of them. The Government published on 30 March its White Paper, Legislating for the United Kingdom’s withdrawal from the United Kingdom. It contains this details-free passage on environmental protection:
“The Government is committed to ensuring that we become the first generation to leave the environment in a better state than we found it. 

The UK’s current legislative framework at national, EU and international level has delivered tangible environmental benefits, such as cleaner rivers and reductions in emissions of sulphur dioxide and ozone depleting substances emissions. Many existing environmental laws also enshrine standards that affect the trade in products and substances across different markets, within the EU as well as internationally. 

The Great Repeal Bill will ensure that the whole body of existing EU environmental
 law continues to have effect in UK law. This will provide businesses and stakeholders with maximum certainty as we leave the EU. We will then have the opportunity,
over time, to ensure our legislative framework is outcome driven and delivers on our overall commitment to improve the environment within a generation. The Government recognises the need to consult on future changes to the regulatory frameworks, including through parliamentary scrutiny. ”
That may sound benign, but let’s keep an eye on that reference to ensuring “our legislative framework is outcome driven”. “Too much red tape’ appears to be the knee jerk reaction of many politicians to EU environmental legislation, viz recent jabs at protected species such as the great crested newt and at SANGs.
So have we got the balance right in our current legislation? Ashdown Forest has in the last two years given us four court rulings (three at Court of Appeal level) which in different ways identify the difficulties and complexities that inevitably arise in practice. If the sensitivity of a site such as the Ashdown Forest is a given, how would any other system better regulate the competing interests at play and provide an effective regime for determining forensically what are often complex and difficult environmental and ecological scientific issues?
Chronologically (if we ignore famous proceedings that ran from 1876 to 1882 as to the extent of commoners’ rights over the forest versus the rights of a landowner, the 7th Earl De La Warr), the cases have been as follows:

Ashdown Forest Economic Development LLP v Wealden District Council and South Downs National Park Authority (Court of Appeal, 9 July 2015)

This was a challenge by local landowners, including in fact the 11th Earl De La Warr, to policies in the Wealden Local Plan, including a requirement for SANGs provision in relation to housing developments within 7 kilometres of the forest. The Court of Appeal quashed the requirement, holding “with a degree of reluctance” that the council and the national park authority had failed to consider reasonable alternatives to the 7 kilometres cordon, in breach of the requirements of the Strategic Environmental Assessment Directive, overturning Sales J’s first instance ruling.  
Sales J had also rejected the landowners’ challenge to a cap on housing numbers in the plan, which had been justified on the basis of seeking to ensure that traffic movements did not increase beyond 1,000 AADT (annual average daily traffic flows on any road in the forest, equivalent to a 1% increase), treated by the authorities and Natural England as a threshold beyond which appropriate assessment would be required under the Habitats Regulations. The landowners were not given permission to appeal that ground and so that housing numbers policy stands. 
Secretary of State v Wealdon District Council (Court of Appeal, 31 January 2017)
This was a challenge by Wealden District Council to an inspector’s decision to allow an appeal against the refusal of planning permission for the construction of 103 dwellings, 42 of them to be provided as affordable housing, and the provision of 10 hectares of SANGs and public open space, on land at Steel Cross, a small settlement to the north of Crowborough. The site is about 2.4 km from the edge of the forest. The inspector had found that there would have been a need for appropriate assessment despite the 1,000 AADT threshold not having been reached, but for proposed mitigation in the form of financial contributions towards heathland management. The challenge had succeeded at first instance before Lang J and the Court of Appeal had to address a number of submissions from the opposing parties based on SAC and SPA issues:
– did the inspector adopt too strict an approach in concluding that there was no need for an appropriate assessment? 
– was he wrong to assume that heathland management to mitigate the effects of nitrogen deposition would be carried out under a strategic access management and monitoring strategy (“SAMMS”)? 

– did he fail to take into account evidence given for the council on the efficacy of heathland management?

The Court of Appeal held that the inspector’s approach to the potential relevance of even relatively small additional traffic numbers had not been wrong but he had failed to justify why, in the face of contrary evidence from the council, he considered that heathland management would amount to adequate mitigation. Furthermore:
“As Mr Price Lewis submitted, the inspector did not explain how he thought the financial contributions in the section 106 obligation were in fact going to be translated into practical measures to prevent or overcome the possible effects of nitrogen deposition to which he had referred, as well as funding the SAMMS projects which would tackle the potential effects of recreational use. He did not say what he thought was actually going to be done, by whom, and when, in implementing the “habitat management” upon which his conclusion on the need for “appropriate assessment” was predicated. That conclusion depended on his judgment that, with mitigation, including heathland management to mitigate the effects of nitrogen deposition, the proposed development, together with other proposals, was not likely to have significant effects on the European site. Such mitigation, as he made clear, was essential to his “precautionary approach”. So if there was any real doubt about the requisite heathland management coming forward, his conclusion that an “appropriate assessment” was not required would, to that extent, be undermined. It was necessary for him to establish with reasonable certainty that the relevant mitigation, including heathland management, would actually be delivered. But he did not do that. He did not identify a solid proposal for heathland management, relevant to this proposed development, to which there was a firm commitment on the part of those who were going to carry it out. His conclusions in paragraphs 68 and 71 of his decision letter, and in paragraph 105, clearly depended on the concept that the “contributions to SAMMS” in the section 106 obligation “would” – as he put it – actually be used, in part, to fund “projects” of “habitat management”. These projects would involve measures, such as cutting and grazing to reduce, “offset” or “outweigh” the effects of nitrogen deposition attributable to this development in combination with other proposals, including “additional eutrophication”. But which “projects” he had in mind is obscure.”
The planning permission was quashed. 
R (DLA Delivery Ltd) v Lewes District Council (Court of Appeal, 10 February 2017)  
This case raises a number of issues in relation to neighbourhood planning (see my 19.2.17 blog post, Five Problems With Neighbourhood Plans ) but for the purposes of this blog post the relevant question before the Court of Appeal was whether the neighbourhood plan for Newick, approximately 7 km from the forest, contravened the Strategic Environmental Assessment Directive in that the need for strategic environmental assessment had been screened out, relying on on the emerging sustainability appraisal work carried out by Lewes District Council and the national park authority. The claim had been brought by a promoter of a scheme which had not been allocated for development in the plan. If SEA had been found to be required, this would have given it the opportunity to promote its site as a reasonable alternative for those allocated, given that it was outside the magic 7 km radius of the forest. Whilst the court found errors in the council’s reasoning for arriving at a negative screening opinion, they were not such as to vitiate the decision and the plan was not quashed. 
Wealden District Council v Secretary of State, Lewes District Council and South Downs National Park Authority  (Jay J, 20 March 2017)
The forest lies within Wealden’s and the national park authority’s respective administrative areas. Lewes District Council’s boundary is around 5-6km from the forest. This was a challenge by Wealden District Council of a joint core strategy prepared by Lewes and the national park authority. Wealden claimed that Lewes and the national park authority had acted unlawfully in concluding, on advice from Natural England, that the joint core strategy would not be likely to have a significant effect on the SAC in combination with the Wealden core strategy. 
Natural England had advised that if the expected increase in AADT flows on any route within 200m of a protected site was less than 1,000 cars per day or 200 HGVs per day, equivalent to less than a 1% increase in traffic, then appropriate assessment was not necessary. The expected increase turned out to be 190 AADT, but the expected increase of 950 generated by proposals in the Wealden core strategy was ignored. The defendants tried to argue before the court that the 1,000 AADT threshold was “sufficiently robust and precautionary to cover any likely scenario of in-combination effects. The amounts of nitrogen dioxide in play are so small that they are effectively de minimis and of neutral effect”. 
The judge held that Natural England’s approach was “plainly erroneous”. There was “no sensible or logical basis” for excluding the Wealden core strategy from account” and a “clear breach” of the Habitats Directive. 
A couple of additional points to note:
– The challenge was to policies in the joint core strategy, but (unlike the national park authority) Lewes had adopted it more than six weeks before the challenge had been brought. Accordingly only the policies relating to the provision of new housing in the national park authority’s area were quashed. 
– In an extreme case of nominative determinism, Natural England’s expert advisor, as in a number of these cases, was one Marion Ashdown. 

Controversy relating to Ashdown Forest is likely to continue if a recent Daily Mirror piece  on the Mid-Sussex local plan inspector’s 20 February 2017 preliminary conclusions on housing requirements is anything to go by…
So what do we conclude from all of this?
Even once we agree that complex eco-systems such as Ashdown Forest need protection, the dividing line between an appropriate precautionary approach to house-building in the vicinity and inappropriate over-protection is really hard to draw, and it is equally difficult to apply triage so as to reduce the amount of detailed assessment work required. 
The necessary predictions draw upon scientific disciplines such as chemistry, statistics, ecology and psychology as much as they are about planning or law. 
Perhaps there is room for greater clarity. After all, it is concerning when even the Government’s statutory advisory body can be “plainly erroneous” in its approach. And it is concerning that so many complex cases are reaching the courts – and leading to the quashing of decisions and policies. This hardly gives a certain basis for house building. 
But don’t think that this is ever going to be easy or that the problems mainly lie with the nature of the EU directives from which the legal principles flow. We will reinvent the wheel at our peril. 

After all that, perhaps there is one thing on which we can all agree?

It is more fun to talk with someone who doesn’t use long, difficult words but rather short, easy words like “What about lunch?” (A.A. Milne)

Simon Ricketts 8.4.17
Personal views, et cetera