The (what I believe is...) curious case of the appeal at Church Farm West, Bramshill Road, Bramshill, Hook

An appeal popped up in my feed. As they do.

Happens most days. You get them too, no doubt.

Some are of interest. Most are not. If they are anything to do with me then am sure its click/delete ??

This one was posted by a Barrister (and leading one at that..) so I always take notice.

My interest deepened when I noticed it involved an SPA and SAC, the Habitat Regulations and associated considerations and also included Enforcement Action for residential use in a 400m exclusion zone.

To be clear. I don't usually take a deep dive into other LPA cases and appeals. We've got enough work to be getting on with and can do with out more. But, this case looked and appeared to be set out differently. Even on the skim through, I thought it looked a bit odd. Also, as spoiler alert, it allowed residential use inside 400m exclusion zone, I knew I could set a stopwatch before it was thrust in front us here in Wealden as a precedent.

So, this is more self interest to get ahead of things before its advanced as a material consideration. No more, no less.

The original post on LinkedIn

I may as well share this, in fairness to Ashley Bowes at Landmark. It was his post and as you can see, we exchanged a couple of points.

I wanted to say more but didn't want it to look like we were rowing or indeed me elbowing my way into his post.... hence me setting out detailed thoughts here.

Anyway, here it is:

Dr Ashley Bowes post

The basic parameters Ashley set out in his comments are this:

"Inspector accepted that the fallback position of keeping workers' accommodation on site for a season (under Part 5 GPDO) outweighed the conflict with the development plan represented by the location and landscape impact of the permanent workers' accommodation".

and

"The key analysis is at DL,50-55 and will be very useful for those promoting similar accommodation schemes in future"

So I got to looking into this.

Fall back and PD

Its worth reviewing the appeal to follow the thread set out and written in the decision.

Appeal and full case is set out on Hart DC Public Access:

24/00008/ENF | Appeal against without planning permission, the material change of use of the land from agriculture to a mixed use for agriculture, the stationing of caravans for residential occupation and the erection of six utility sheds used in association with the unauthorised residential use | Land Adjacent To Warren Farm Bramshill Road Eversley Hook Hampshire (hart.gov.uk)

Before going any further, you should know - though you probably do already - that there is a link between the Likely Significant Effect (LSE) of development authorised as PD on the GDPO and the Habitats Regulations.

For LPAs, its Reg 75 which imposes a condition of any planning permission granted by a general development order made on or after 30th November 2017, and it basically pulls up a brake on PD unless you "the developer has received written notification of the approval of the LPA under Reg 77 (approval of the LPA). There is also Reg 76 is for Nature Conservation body (AKA Natural England) where an application them them may be made to draw on PD rights.

I don't read them as linked Regulations. More on that in a sec.

What's the problem...?

Well. As Ashley says, the Insp places weight on fall back allowed by PD (by link to agricultural use and Caravan and Sites Act) but then concedes (under the Ground C appeal for the Enforcement Notice) that it can't be PD due to the Habitats Regulations (which I think is correct).

What troubled me is that the Insp then went onto the look at the PD link and seemed certain that the LPA would agree under a 2010 Reg 73 (2010 Habitat Regulations applies as development pre-dated November 2017 and so that earlier and extant version of the Regulations are in play). The conclusion reached - was that permission would be given by the LPA). I doubted the Insp could presume such consent would absolutely be granted and stated I didn't think he could (be so sure). The wording on this is very specific:

"50.Under the appeal on ground (c) I considered whether the development was in accordance with Article 3 of the GPDO. I concluded it was not, solely because of the implications of the Habitats Regulations. However, given my conclusions in relation to the SPA following appropriate assessment, it must be the case that if the appellant were to remove the caravans and apply for a determination under Regulation 73 of the 2010 regulations, that would be approved. On that basis, the return of the caravans for seasonal use would comply with Article 3 of the GPDO."

In my mind, it seems odd to have phrased para 50 in the the Insp did and then place weight on it.

Is there a genuine fall back?..

Ashely thought the Inspector could presume here because NE had written to say there was no LSE and "under Reg.76(6), their opinion is conclusive (under the Reg.75 process). The same is true under the 2010 Regs (see Reg.74(6))".

Go read the Habitats Regulations yourself. Don't just take my word.

Is NE opinion (conclusive) for Reg75? It doesn't say that in Regulations. It says its conclusive for Reg76 and I can’t see anywhere that the opinion of the Nature Conservation body applies and overrides Reg 75. In Reg 75 (2010 Regs (see Reg.74(6)) its still up to LPA as competent authority which is the key to accepting PD fall back in this appeal case.

It’s well established that a competent authority is entitled, and can be expected, to give significant weight to the advice of an “expert national agency” with relevant expertise in the sphere of nature conservation, such as NE.

This comes from the judgment of Lord Justice Sales, as he then was, in Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174; [2015] PTSR 1417, at para 84, and the first instance judgment in R. (on the application of Preston) v Cumbria County Council [2019] EWHC 1362 (Admin), at para 69).

A competent authority may lawfully disagree with, and depart from, such advice.

But if it does, it must have cogent reasons for doing so (judgment of Baroness Hale in R. (on the application of Morge) v Hampshire County Council [2011] 1 W.L.R. 268, at para 45, the judgment of Sales L.J. in Smyth, at paragraph 85, and the first instance judgment in R. (on the application of Prideaux) v Buckinghamshire County Council [2013] Env. L.R. 32, at para 116).

And the court will give appropriate deference to the views of expert regulatory bodies (see, for example, the judgment of Lord Justice Beatson in R. (on the application of Mott) v Environment Agency [2016] 1 W.L.R. 4338, at paras 69-77).

So, case law is clear. I think.. Tread really very carefully LPAs but the view of NE is not overriding. LPAs must give weight - and significant weight at that - but can depart from NE views if there is a cogent reason to do so.?

It’s not as this subject appeal decision sets out in para 50, “a given”. Far from it.? And as this subject seemed to turn on that, it’s all a bit flabby.

Is there and effect on 400m and what did NE say?

In this appeal at Hook it is correct that NE position was that even though the caravans - with seasonal residential use - were within 400m of the SPA, they were content to accept no LSE.

This was basically because they were seasonal workers. So not there all the time - which from my reading means Winter. So on this site, for a reasonable chunk of the rest of the year. But that wouldn't cause in combination impacts on the (clearly) very nearby SPA. Indeed one that could be reached just outside the appeal site boundary and less than 400m away....

Hmnnn,

Does this stack up?

Of course it doesn't.

Just because these are for temporary seasonal workers does not mean they will not have leisure needs. It does not mean they will not got for a walk on and within the SPA. To suggest that there is a distinction based on how they work on the land seems quite bizarre. Where would that type of case end...? I can see a variation of the argument now :

"Please may we have permission for a +1 dwelling in 400m, we don't need to mitigate our impact as we assure you we absolutely will not go off the site into the SPA as we work really hard elsewhere and very long hours, we have a large garden that serves all our leisure needs, and so have absolutely no time or need to get off the site.... “

I mean, it’s a laugh, right? Except isn’t. We must, as a starting point, have consistent decision making otherwise that causes unfairness and that goes behind sound decision making.

Haven't I got better things to than go on about this...?

Yes, but am at lunch as I type this, and if don't do something else, I'll just keep working ??

Why do I care and am droning on about this… as I said at the start, this decision is going to cross my desk as a precedent and in relation to Ashdown Forest.... Well, I don't see it. In fact, it looks like this appeal is factually wrong and Insp has misdirected himself.

But who am I ....

Maybe it is a genuine game changer and we can begin to support our farmers who are in and abutting SPA ands SACs.

I'd be up for that (genuinely) It is them that work the land after all and often add to biodiversity

Views mine, even if it does seem like am looking the other way - SR