Court Of Appeal Confirms Full OAN Benchmark For Sensitive Area Developments

We commented on Knight Developments saga applying for 100 homes in the Ashdown Forest last year. Although upholding the High Court's decision to quash the appeal permission, the Court of Appeal has confirmed that authorities resisting applications in National Parks and AONB will need to push the boat out on the duty to co-operate at the Local Plan stage to avoid being caught out on appeal.

Mitigation certainty

The High Court quashed an Inspector's decision granting permission following errors in relying on recreational mitigation measures to offset traffic-related nitrogen deposition impacts on the Special Protection Area (SPA) and Special Area of Conservation (SAC). The Court of Appeal agreed - by failing to identify any 'solid' S106 mitigation proposals, it was impossible to establish with reasonable certainty that the relevant mitigation, including heathland management, would actually be delivered for the purposes of applying the precautionary principle to assessing SAC/SPA harm.

Exceptional Circumstances

The High Court also rejected the Inspector's approach to considering Objectively Assessed Needs (OAN) when applying the NPPF116, which states that (emphasis added):

"Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated they are in the public interest. Consideration of such applications should include an assessment of:

the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated. The Inspector dismissed the alternative sites put forward by the authority not because they were unsuitable, but because " the existence of other sites, which collectively still fall short of the full OAN, does not amount to an alternative". He therefore did not use the constrained version which the Core Strategy was designed to meet (taking the SAC/ SPA and other constraints into account). The High Court judgment appeared to suggest that alternative sites must be considered in detail, regardless of whether they would meet the FOAN.

Clunking Fist of OAN

The Court of Appeal disagreed:

There is nothing in the NPPF...