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By James Henson

Jun 8th, 2015

Housing Developments in the Countryside

One of the continuing areas of controversy throughout our densely populated country is the issue of new housing development and its effect on the local environment. The politicians and developers point to the need for more housing stock whilst environmental campaigners seek to protect the countryside.

Normally, these conflicts are resolved satisfactorily but a local dispute reached the Court of Appeal only this year. Mansfield District Council had granted permission for a significant area of residential development on a site near Harlow Wood, which was the home of several bird species including nightjar and woodlark. In addition, there was a nearby site which was of a Site of Special Scientific Interest. Quite properly, Mansfield District Council consulted Natural England as this was a potential Special Protection Area under the Wild Birds Directive and also a possible Special of Area of Conservation.

It was accepted by Natural England that the planning application had been accompanied by an extensive Ecological Assessment which included provisions to reduce the effect of any development on the local bird life, including fencing and a water barrier. It was also agreed that this area of Sherwood Forest was not, in any event, a Special Protection Area. In its report to the Council, Natural England explained that it could not object nor support the proposal but that the effectiveness of the water barrier was, as yet, unproven.

In the planning process, the Council did not produce an additional written report but the officer in question passed on Natural England’s observations as part of the verbal assessment. In short, the District Council granted permission subject to a number of conditions and an objector to the scheme sued the Council, alleging that it was in breach of its legal duty. She claimed that the Council did not follow Natural England’s advice to carry out a risk based assessment and its officers misled the Council about Natural England’s true position on the matter.

The Appeal Court Judges considered the issues and noted that in fact Natural England was not a Statutory Consultee in the circumstances, although its advice would be a material consideration for the Council. It was accepted that the Council had proposed mitigation measures which included the imposition of a restrictive covenant, amongst other things, to prevent the keeping of cats.  The Appeal Court Judge who gave the leading judgment stated that it was ‘very difficult to understand precisely what more the Council was supposed to do’. As a consequence, the Appeal failed and the decision by the Council was allowed to stand. All such cases stand entirely on the merits of each individual case but this is a perfect illustration of the tensions that arise between the two sides of the argument when the need for development interfaces with the desire to preserve the countryside.

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