The recent Askham Bog case shows the difficulties in obtaining planning permission for housing adjacent to a Site of Special Scientific Interest (SSSI).
Background
The proposal involved developing up to 516 homes, a local centre, and sports pavilion on land adjacent to Askham Bog. This was a hybrid application, as it was accompanied by an application for full planning permission for an Ecological Protection and Enhancement Zone (EPEZ). It was the developer’s intention that the EPEZ would form a suitable boundary between the Bog and new development, thus affording the SSSI some protection.
The EPEZ was to include attenuation ponds for the development site (necessary for storm water management), with an earth embankment between the ponds and the SSSI.
The City of York Council’s Planning Committee refused to grant permission for the scheme in July 2019, causing the developers to appeal to the Planning Inspectorate.
Planning Inspectorate
The Inspector had concerns that the EPEZ would harm the landscape, and the attenuation ponds would cause harm by reducing the amount of nutrients in the Bog’s water supply.
The Inspector reached the conclusion that,
CUMULATIVE DISPROPORTIONATE BENEFITS OF THE PROPOSAL WOULD NOT CLEARLY OUTWEIGH THE COMBINED EFFECT OF THE HARM TO THE GREEN BELT, THE HARM TO THE LANDSCAPE AND THE HARM TO THE SSSI.
Appeal – Secretary of State
Following consideration of the Environmental Statement, and the Planning Inspector’s Report, Mr Jenrick concluded that the proposed development would cause harm “to the interests for which Askham Bog is cited as an SSSI, and to the deterioration of irreplaceable fenland habitat.”
He formed the opinion that the benefits of the development did not outweigh its likely impact, and that there were no wholly exceptional circumstances which would justify the deterioration of the habitat.
Mr Jenrick also considered the Green Belt balance, and concluded that the very special circumstances required to justify the development (such as the housing crisis in York) could not be said to exist, despite the considerable benefit that the provision of housing would offer. In refusing the appeal, Mr Jenrick concluded that the policy presumption in favour of sustainable development did not apply in this case.
Position in Scotland
In Scotland, Scottish Natural Heritage (SNH) is responsible for choosing SSSIs based upon the results of detailed surveys and evaluation, following criteria established by the Joint Nature Conservation Committee (JNCC).
SNH’s view will form part of the material considerations taken into account during the determination of a planning application which may have an impact on a SSSI, such as proposed development adjacent to a SSSI, as in the Askham Bog case.
Interestingly, SNH’s view is not binding upon the planning authority. If, however, the planning authority decides to grant permission against the recommendations of SNH, they must notify the Scottish Ministers of their decision to do so. This provides the Ministers with the opportunity to ‘call-in’ the application to allow a decision to be made.
A recent example is the Coul Links golf course. Highland Council notified the Ministers of their intention to grant planning permission, despite an objection from SNH due to impact on a SSSI, as well as a Ramsar site. The Ministers called-in the application and refused it, following the holding of a lengthy public inquiry (which my colleague Neil Collar appeared at).
Refusal decisions such as Coul Links and Askham Bog show how challenging it can be for developers to secure planning permission for development near to SSSIs and other protected sites.
