August 25th, 2020
A “significant case” – Crondall Parish Council v Secretary of State for Housing, Communities and Local Government
We have now concluded the statutory review hearing for the Crondall PC v SoS H,C & LG matter. This case has been big news for ELF as we have remained in place as the instructing party to see the case to its conclusion, something we haven’t done before. Last month our instructed QC Robert McCracken took his arguments before Dove J with Horatio Waller who had been advising all along, both of FTB, assisting Robert. It has been a really wonderful example of team work, between the PC, barrister and ELF. ELF supported the litigation but with the PC covering practical matters such creating court bundles, we have worked effectively. By staying in position ELF has been able to support a PC who would not otherwise have been able to continue with the litigation due to the financial implications.
CPC came to ELF in September last year over a Planning Inspector’s decision to allow permission for 30 new dwellings to be built outside of the settlement area of Crondall village, a historic village in Surrey. With emerging and previous planning policy to limit development in the open countryside, when the Inspector approved permission against local policy, the PC sought ELF’s assistance. The enlightened decision of the ECJ judgement “People over Wind” which has been a very important judgement for nature meant that the Inspector’s decision not to consider whether there was a requirement for a Habitats Regulation “Appropriate Assessment” was questionable, the site being near to the Thames Basin Heaths SPA, a European Protected site. The People over Wind case, says that mitigation can no longer be taken into account when assessing whether there will be significant effects on a European protected site. This ECJ case has recently seen changes made to the National Planning Policy Framework at para 177. Para 177 of the NPPF, mentions appropriate assessment and habitats, and in line with the ECJ ruling has been amended so that the presumption in favour of sustainable development will not apply where there are effects on a European site, unless an appropriate assessment concludes that negative impacts will not occur.
As in this instance, Harts District Council local planning policy requires the provision by developers of Suitable Alternative Natural Green Space (SANGS) as mitigation, where there are potential impacts on European sites. A financial contribution in this instance towards SANGS mitigation had been previously accepted by the local authority. Arguing that the proposed mitigation was inadequate, the chair of the Parish Council, in detailed analysis through the submission of a Witness Statement illustrated that in fact the SANGS that was proposed to mitigate against recreational impacts of the development on the SPA, was wholly inadequate in this instance and actually more generally a failing policy. When scrutinised, with one entry point for the SPA being half the distance from the development as the proposed SANGS, it was at least arguable that the SANGS mitigation was unlikely to act as an alternative recreational area, thus making the SANGS meaningless.
Horatio Waller explains : Whilst argument (a) is an argument commonly run in environmental law cases, argument (b) is of nationwide importance because success in the case carries the potential of causing knock-on-effects on a wide range of residential development schemes, which might have to wait for more robust assessment of potential adverse impacts on special protection areas. Because of this, the case was labelled by the High Court as significant and listed before Mr Justice Dove, a highly experienced planning law judge.
In addition we argued that the Parish Council was entitled to rely on the Aarhus Convention and therefore the costs capping regime. In a judgment by the High Court, which may also potentially have significant consequences, the court accepted that the Parish Council was permitted to rely on the Aarhus Convention and therefore its potential costs liability to the defendants should be capped at £10,000. This was a significant decision for the PC and we hope for future Parish Councils.
We would like to acknowledge the contribution that the young barrister who played such a vital role in this matter, gives to ELF. We want to thank Horatio Waller for all he does for the organisation and those that he assists through ELF.