March 21st, 2017 by James Goudie KC

Ashdown Forest is a Special Area of Conservation (“a SAC”). This designation, in 2005, was pursuant to the Habitats Directive (“the Directive”). The designation was given for a number of reasons, including the SAC’s extensive areas of lowland heath, which is vulnerable to nitrogen dioxide pollution from motor vehicles. The SAC covers 2,729 hectares and lies wholly within the area of Wealden District Council. This is the local planning authority for Wealden District, save for that part of it (to the south) which falls within the South Downs National Park.

In Wealden District Council v SoS for CLG and others [2017] EWHC 351 (Admin) there was a challenge to quash part of the Lewes District Plan known as the Joint Core Strategy 2010-2030 (“the JCS”). The JCS was jointly prepared under the Planning and Compulsory Purchase Act 2004 by Lewes District Council and the South Downs National Park Authority as local planning authorities.  The JSC forms part of the statutory development plan for the district of Lewes, including the extent of the National Park which falls within it.

Jay J set out the following legal principles applicable to the application of Article 6(3) of the Directive (any plan that is likely to have a significant effect on the management of a site shall be subject to appropriate assessment) and Regulation 102 of the Conservation of Habitats and Species Regulations 2010, S.I. 2010/490 (where a land use plan is likely to have a significant effect on a European site, such as the SAC, the plan-making authority must make an appropriate assessment of the implications for the site in view of the Site’s conservation objectives):-

(1)       The consideration of whether there are likely significant effects is a “trigger” for an appropriate assessment;

(2)       Where there is a risk of significant adverse effects to a protected site, there should be an appropriate assessment; and such a risk exists “if it cannot be excluded on the basis of objective information that the plan or project will have significant effects on the site concerned”; and “in case of doubt as to the absence of significant effects such an assessment must be carried out”;

(3)       “Appropriate” is not a technical term but means that the assessment should be appropriate to satisfy the responsible authority that the project will not adversely affect the integrity of the site concerned, to a “high standard of investigation”; and this issue is a matter of judgment for the authority;

(4)       In respect of the second stage the competent authority must be certain that the plan or project in question will not adversely affect the integrity of their site concerned: there should be “no reasonable scientific doubt” remaining as to the absence of such effects;

(5)       This involves a “strict” precautionary approach;

(6)       The appropriate assessment “cannot have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned”;

(7)       A third party alleging that there was a risk that cannot be excluded on the basis of objective information must produce credible evidence that there was a real as opposed to hypothetical risk that must have been considered; and

(8)       A decision-maker discharging its duties under the Directive and the Regulations should give the views of a statutory consultee considerable weight: however that advice is not binding and it does not have to be given such weight if cogent reasons can be given for departing from it.

Jay J held that the development plan documents in this case were flawed for legal error, in reliance on advice from Natural England, that was plainly incorrect. Policies in the JSC were partially quashed.


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