Legal challenge over housing in Thames Basin Heath SPA fails

A Hampshire planning authority has failed to overturn a planning permission approved by Communities secretary Hazel Blears against the advice of a planning inspector and which involved a housing scheme for a site within the Thames Basin Heaths Special Protection Area (SPA).

Hart District Council went to the High Court to challenge the decision in a first of a kind case whose issues are highly significant for planning authorities across Hampshire, Berkshire and Surrey and for developers with residential proposals in and around swathes of heath land in south east England.

The impact of proposals for new housing schemes within five kilometres of the SPA has been a major issue for several years and plans for thousands of new homes have been put on ice while a mitigation regime has been hammered out and agreed involving the planning authorities, developers and Natural England, the Government's statutory wildlife adviser.

The High Court case involved proposals for 170 new homes on land at Hartley Witney some 1.5 kilometres from Hazeley Heath, part of the SPA. Luckmore Homes and Barrett Homes were the developers immediately involved. However, when the case went to court Natural England and Wimpey Homes became associated with the litigation on the same side as the SoS and the developers.

There were four relevant planning applications for the development which had either been refused by the district council or not determined within the requisite time.

The planning authority went to court to argue that the SoS had erred in departing from her inspector's conclusion on the effect of the scheme on the SPA. A key issue for the case turned on whether mitigation measures should be disregarded when assessing whether the project would have a significant effect on the SPA.

Judge Jeremy Sullivan ruled in favour of the SoS after arguing there was no absolute legal rule that mitigation measures should be disregarded in assessing whether the new homes would have significant effect on the SPA. He also held that the SoS was entitled to depart from her inspector's view that there were "serious doubts" over the scientific basis of evidence from the developer. The planning authority is waiting to study the full transcript of the judgement before deciding whether to take the matter to the Appeal Court.

The council claimed in court that the new housing would result in a major increase in dog-walking in the SPA which would have a detrimental impact on populations of endangered bird species like the Dartford warbler, the woodlark and the nightjar.

Roger Milne

8 May 2008