Draft Wealden Local Plan - Planning Inspector's decision.
(followed by WDC Media Release)


Wealden District Council Local Plan Examination
Inspector: Louise Nurser BA(Hons) Dip UP MRTPI
Programme Officer: Lynette Benton
lynette.benton@wealden.gov.uk - Mobile: 07977 415678

20th December 2019

Dear Ms Brigginshaw

WEALDEN LOCAL PLAN EXAMINATION.

1. The Wealden Local Plan (LP) was published for consultation under Regulation 19 from August to October

2018 and was submitted to the Secretary of State on January 18, 2019. I have now completed the hearing

sessions related to Stage 1 of my examination of the Submission version of the Local Plan and I am now in

position to set out my conclusions. I am sorry to have to tell you that the submitted plan cannot be taken

forward to adoption because it has failed one of the requirements for legal compliance, that of the Duty to Co-

operate (DtC). In addition, there are some significant failings in respect of the soundness of the submitted Plan,

which are discussed in the text of this letter.

2. The Duty to Co-operate is set out in s33A of the Planning and Compulsory Purchase Act. It requires that

each person on whom the duty falls must co-operate in maximising the effectiveness of the preparation of

development plans and activities that support or can reasonably be considered to prepare the way for activities

that support the preparation of development plan documents. There should be constructive, active and ongoing

engagement. Regard must be had to any guidance given by the Secretary of State about how the duty is to be

complied with, and in this case the Wealden Local Plan falls to be examined using the 2012 version of the

National Planning Policy Framework (NPPF) and the associated Planning Practice Guidance (PPG) as it was

submitted to the Secretary of State before January 24, 2019.

3. The NPPF is explicit that the Government expects joint working on areas of common interest to be diligently

undertaken for the mutual benefit of neighbouring authorities. Local planning authorities should make every

effort to secure the necessary cooperation on strategic cross boundary matters before they submit their Local

Plan for examination. Cooperation should produce effective and deliverable policies on strategic cross

boundary matters.

4. My central concern in respect of the legal compliance of the plan relates to the lack of constructive

engagement with neighbouring authorities and Natural England in respect of impacts on habitats and landscape

and in respect of the issue of unmet housing need in Eastbourne.

5. I shall start with the issue of habitats and air quality because the Council's position in this regard had the

potential to affect the distribution of development and the willingness to address unmet needs from Eastbourne.

It has been clear for several years that the extent and impact of nitrogen deposition has been a significant

strategic cross boundary matter in relation to European protected sites. Wealden District includes the Ashdown

Forest Special Area of Conservation (SAC) and shares the Pevensey Levels SAC with Rother District Council.

The neighbouring Lewes Downs SAC lies within the administrative boundary of Lewes District Council and the

South Downs National Park Authority.

6. The Council has been working on an iterative methodology to consider how to identify and model air quality

impacts on the Ashdown Forest and other SACs including the effects of nitrogen from road traffic. Within the

Habitats Regulations Assessment (HRA), the Council's air quality consultants set out three modelled scenarios

of future baseline conditions. Emissions model A represents the existing baseline situation with respect to both

emissions per vehicle and emissions released outside of the study area such that, when applied to the future,

there will be no improvements to air quality over time; Emissions model B applies partial reductions in

emissions relating to vehicle (and other sector) data predicted by Defra; and Emissions model C applies full

reductions of vehicle (and other sector) emissions as predicted by Defra.

7. Emissions model B is the Council's air quality consultants own, bespoke, conservative model (CURED 3A)

and it does not uncritically accept Defra's anticipated reductions. It is consistent with the precautionary

principle established in relation to HRA. The Council's air quality consultant considers it the most likely

scenario, and Natural England also accepts it to be the most appropriate Emissions model, set out within the

HRA.

8. It would be unreasonable and lacking in scientific credibility to conclude that Emissions model A should be

used as the basis on which to model future emissions and to assess impacts on the integrity of the SAC.

Emissions model A assumes that vehicle fleet emissions make no improvement over the Plan period, the

composition will remain unchanged from that at 2015 and that background emissions remain static. It allows for

no emission improvements in conventional vehicles between 2015 and 2028 and assumes no electric vehicles

will join the fleet. This is contrary to what is already known. Improvements arising from previous emissions

regulations will continue to work through the fleet and further improvements will occur through national and

international actions including the Clean Air Strategy and National Emissions Ceiling Directives to reduce

background and vehicle emissions, together with the Road to Zero, which would require that by 2040 that no

new fully petrol or diesel cars are to be sold within the UK. Whilst there may be other possible influences over

nitrogen oxides and ammonia concentrations and nitrogen deposition, there is very little to suggest that such

factors would have a significant effect. This position is therefore lacking in scientific credibility.

9. Yet despite this obvious evidential background and against the advice of Natural England, the Council relied

on Emissions model A. Natural England and the Council's own Air Quality advisers consider Emissions model A

likely to over-estimate future vehicle pollutant emissions. In coming to this conclusion, I have carefully

considered the advice within Natural England's supplementary advice on conserving and restoring site features

relating to the Ashdown Forest SAC and the non-statutory guidance published by the Institute of Air Quality

Management in June 2019 that improvements in air quality should not be ignored. I have also considered the

legal representations made, but the findings in the Dutch judgements (CJEU C-293/17 and C-294/17) are not

equivalent to the issues before me in this case, noting that the reliance on autonomous measures is not in the

form of mitigation, and that there is no attempt to avoid the need to engage with the Habitats Regulations. As

such, they do not preclude an approach which takes into account anticipated improvements in air quality when

establishing the future baseline of emissions over the Plan period.

10.The Council's approach was not justified on any reasonable assessment of the evidence. The Council

chose not to follow Natural England's advice in this regard. Whilst the Council may be entitled to take a different

view from the advice of a nationally important body and an acknowledged expert in the subject, it needs to

support its position with adequate evidence. It did not do so but instead took a position which was in scientific

terms lacking in credibility. In coming to this conclusion, I have carefully considered the detailed critique by

Professor Sutton of both the Council's and other's evidence. However, it is clear that there is a significant

problem with the substantial evidence base which supports the HRA and therefore the LP is not justified even if

I had concluded that the DtC had been met.

11.There are other examples of inadequate engagement with Natural England. The Council purchased Natural

England's Discretionary Advice Service from the later part of 2017 onwards, to assist in the preparation of its

evidence to inform the plan and the HRA. But Natural England's long-standing advice on atmospheric pollution

on Pevensey Levels was only accepted late in the day prior to the submission of the LP. The relevant changes

both to the LP and Sustainability Appraisal (SA), could have been made before the Regulation 19 consultation

version of the plan had been finalised. Moreover, the Council did not liaise with Natural England on the

proposed allocations within the LP prior to the Regulation 19 consultation stage and was therefore unable to

benefit from its expert advice in considering the impact of the allocations within the High Weald Area of

Outstanding Natural Beauty.

12.I now turn to the way the Council approached cross-boundary issues with other authorities. Following the

"Wealden judgement" of March 2017, the Ashdown Forest Working Group (AFWG) was formed, which included

representatives from Natural England, other local planning authorities and the Council. The first meeting took

place in May 2017. The primary role of the working group was to address the in-combination effects of traffic

generation arising from proposed development in Local Plans on the Ashdown Forest SAC through the HRA in a

robust and co-operative manner.

13.The AFWG is an important vehicle to share evidence and to enable the individual competent authorities to

undertake effective plan making on a strategic and cross boundary basis with particular reference to the

Ashdown Forest SAC. It provides, in theory, the opportunity for each local planning authority to work

cooperatively with each other, on an ongoing basis and in a constructive manner to maximise the effectiveness

of plan preparation. The AFWG membership also includes Natural England, who, as the Government's adviser,

has a significant role in advising and being consulted upon the individual local authorities' HRAs and who, had,

since the 'Wealden judgement', revised, and subsequently published, its internal advice re air quality matters.

14.The Council holds significant amounts of data which could potentially be of use to other local planning

authorities in producing their evidence base and would support work on the strategic cross-boundary matter of

air quality, with particular reference to impacts on the Ashdown Forest. However, the Council did not share the

information on a constructive basis with all its fellow members of the AFWG. It redacted evidence, and initially

withheld the specific location of transects and air quality monitors. Moreover, it only gave one week for the

other AFWG members to look at the redacted document prior to its wider publication, giving little time for

constructive engagement.

15.The reason given to withhold the full detailed information was that monitors had been vandalised and

sabotaged in the past and this could happen again if the locations were made public. The Council would not

even share detailed information with other authorities on a professional in-confidence basis, arguing that the

locations would still be vulnerable to any Freedom of Information requests. However, since Natural England was

allowed access to the data it was clearly illogical not to share the information with the other councils on a

similar basis.

16.By repeatedly refusing to release data, the Council did not work constructively or in the spirit of cooperation.

The other members of the AFWG had a legitimate interest in being able to interrogate, comment on, understand

and potentially influence Wealden's evidence base which relates to a strategic matter of significant cross

boundary significance. This active lack of cooperation is underlined as Natural England was allowed access to

the data yet others in the AFWG were not.

17.The Council did eventually release some of the redacted information a month after the Air Quality Monitoring

Reports were published. It provided the locations of the air quality monitors, where they were not co-located

with ecological monitoring sites. However, by this time any opportunity for constructive input into the documents

had passed. Moreover, not all the information was shared.

18.In August 2017 the members of the AFWG, including the Council, agreed to produce a Statement of

Common Ground (SoCG). This would potentially have provided an opportunity for the Council to signal where it

considered that it had cogent reasons to legitimately disagree with the approach of Natural England and other

local planning authorities, and to increase a shared understanding of the technical issues between the different

parties in relation to atmospheric pollution, vehicle emissions and its potential impacts on the integrity of the

SACs. The production of the SoCG was to be facilitated by the Planning Advisory Service and to be completed

and agreed by January 2018. The deadline slipped and a further deadline was set of March 29, 2018 but by

that date the Council considered that it was not in a position to sign; it wished to raise further issues and to

take further advice from its consultants. It eventually offered to sign the SoCG just before the South Downs

National Park Authority was due to submit its submission plan to the Secretary of State, but this was too late for

that plan given that the SoCG had been amended by the other parties to it following the Council's decision not

to sign.

19.It would have been useful to all parties that the Council's position was accurately presented in the SoCG

and that the technical differences between the parties were clear. It was stated in the minutes of the November

2017 AFWG and in various emails that where a party disagreed, the text within the SoCG would need to be

concise and to the point but this did not occur. The Council's insistence on significant amounts of text being

inserted into the document ensured that it was not in a position to sign at the appropriate time.

20.Lewes Downs SAC falls outside Wealden's administrative boundary and lies within Lewes DC and the South

Downs National Park. The Pevensey Levels SAC extends into neighbouring Rother District. Through the

AFWG, Eastbourne together with Lewes and the South Downs National Planning Authority had previously made

the Council aware of the differences in opinion as to the potential impacts of changes in air quality on the

SACs. However, in the production of this plan, none of the neighbouring authorities in which the SAC lie were

directly asked to be involved with, and to engage constructively with the individual Air Quality studies relating to

Lewes Downs and the Pevensey Levels SAC other than through the provision of data to inform the traffic

modelling. Nor was there active engagement with the individual local authorities prior to the Regulation 19

consultation to consider how or if any mitigation was required and to consider any implications, including on

viability, and how this would impact on other infrastructure requirements. It was not until Regulation 19

consultation stage that the Council determined that changes in air quality would not result in an adverse effect

on the integrity of the Pevensey Levels SAC and prepared a proposed main modification to remove the

relevant references from the LP. However, no update was made to the SA. Not directly approaching the

Councils earlier, or even Natural England, demonstrates a lack of active, constructive and ongoing

engagement.

21.Moreover, it was only halfway through the Regulation 19 consultation that the Council arranged a general

briefing session on the HRA. As part of this session, a package of mitigation measures was discussed. These

were linked to the SACs which fell within the neighbouring authorities. These mitigation measures included

collecting a tariff which would go towards offsetting the alleged impacts of the atmospheric pollution on the two

SACs. This session was too late for the local planning authorities to undertake meaningful engagement as the

policies had already been drafted.

22.I turn now to the approach the Council took in respect of unmet housing needs in Eastbourne Borough.

Eastbourne is a severely constrained borough, both physically and due to significant infrastructure limitations to

growth. It is commonly accepted, including by the Council, that Eastbourne is unable to meet all its housing and

employment needs. It lies within Wealden's Housing Market Area and shares a Functional Economic Market

Area. As such, there is a close functional and geographical relationship between the two local planning

authorities.

23.Its unmet housing and employment needs are strategic priorities. The Framework and PPG are explicit that

local planning authorities should meet their own housing need and meet the needs of other authorities in the

same housing market as far as is consistent with the policies set out in the Framework. This includes policies

for the protection of the built and natural environment.

24.Work began on the Wealden Local Plan in early 2015, including meetings with neighbouring local planning

authorities. Consultation took place on the Issues, Options and Recommendations Plan for six weeks in

October 2015. At this point the proposed plan period was to run from 2013 to 2037 and the emerging plan

specifically included additional housing to cater for some of Eastbourne's unmet needs.

25.However, by the March 2017 draft version of the LP, the end date of the proposed Plan period had been

brought forward from 2037 to 2028 and the Council no longer intended to provide for any of Eastbourne's unmet

housing needs. A DtC meeting took place in January 2017 between officers at Wealden and Eastbourne, where

amongst other matters, housing matters were discussed, and in the Council's DtC evidence, three individual

meetings are cited where the Council outlined its OAHN and its housing target to Eastbourne. However, the

evidence indicates that there was no meaningful discussion about how Eastbourne's unmet needs could be

met. The change in the plan period and the presentation of constraints were simply presented to Eastbourne

without proactive discussion from Wealden Council about how the issue of unmet needs could be addressed

within the original plan period. There is no sign that there was any meaningful discussion of scenarios or

alternatives.

26.Eastbourne requested a further meeting in early January 2018 so as not to delay its plan making and to

discuss a SoCG. After further requests, a meeting eventually took place in May 2018. Whilst this was before

the formal Regulation 19 consultation had commenced, the Council did not respond constructively to

Eastbourne's requests to engage. This meeting provided limited opportunity to influence the plan as by this time

the LP was virtually finalised. It is clear from the email correspondence that the Council did not intend to

constructively engage at this meeting for the mutual benefit of the two authorities but took the meeting simply as

an opportunity to exchange information. This approach is reiterated in the language used within the Council's

response to my Matters, Issues and Questions relating to the DtC. It appears these meetings, rather than being

an opportunity to work collaboratively to address and find strategic solutions to overcome the serious obstacles

to delivering development both in Wealden and in Eastbourne, were a forum to communicate the constraints

which the LPA considered would prevent them from helping. For example, at the November 2017 meeting, which

Eastbourne instigated to request a joint planning approach for the HMA of Eastbourne and Southern Wealden,

the Council 'explained' or 'EBC were also made aware' of the nature of the constraints preventing it from taking

on some of Eastbourne's housing needs. This is not indicative of constructive engagement.

27.Eastbourne had requested at the May 2018 meeting that a SoCG be formulated between both councils. The

Council did not take up this opportunity to demonstrate effective cooperation and replied that a 'statement of

working together' was a more appropriate approach. A draft Memorandum of Understanding between

Eastbourne and the Council was circulated amongst officers on 11 December 2018. This sets out an approach

for future cooperation between the councils but to my knowledge it is yet to be agreed. It was produced at a

very late stage well after the closure of the Regulation 19 consultation and has therefore not had member

approval. Even if the document had been signed, its initiation at such a late stage in the plan making process is

not indicative of active, ongoing constructive engagement.

28.The PPG states that the outcomes of cooperation should be considered, not just whether local planning

authorities have approached others. There was no constructive engagement to address the substantive

strategic matter of Eastbourne's unmet housing needs, which remain for now unmet.

29.The trigger for the review of the Plan under draft Policy WLP 13 provides a framework for considering

Eastbourne's unmet housing needs in a future iteration of the plan, but those acknowledged needs have not

been dealt with at the right time, which is now. Work on common areas of interest has not been diligently

undertaken by the Council for the mutual benefit of the District and neighbouring authorities.

30.On the issue of broader co-operation, it is notable that my conclusions in regard to the Council's inadequate

record in terms of engagement under the DtC are endorsed by the representations of 5 neighbouring local

planning authorities: Rother District Council, Eastbourne Borough Council and a group who put forward a joint

representation: Lewes District Council, South Downs National Park Authority and Tunbridge Wells Borough

Council. They argued that the Council had failed to meet DtC in relation to air quality matters, cross boundary

impacts on the SACs, Eastbourne's unmet housing and employment needs, and strategic infrastructure. On

December 20, 2018 the Council's Director and Deputy Chief Executive Planning wrote to these authorities

asking that they withdraw their objections in relation to the DtC, citing examples of recent actions that had been

taken following the receipt of the Regulation 19 representations. However, the sending of such a letter at such

a late stage in the process, less than a calendar month before submission, setting out examples of the

Council's actions and requesting that the respective Councils withdrew their objections, does not remedy the

failure throughout the preparation of the Plan to engage with these authorities. All five Councils have maintained

their position.

31.Having regard to all the above, it is not possible to escape the conclusion that, had the Council properly

engaged with and heeded Natural England's advice and had the Council properly involved itself in a

constructive discussion with neighbouring authorities about both the impacts of the plan and the ability to help in

meeting Eastbourne's unmet housing need, the overarching development strategy of the submitted LP – the

planned quantum and distribution of development, and whether the Council considers itself to be in a position to

be able to take any of Eastbourne's unmet housing needs – could have been different. As has been shown, the

Council chose not to accept the advice of Natural England in respect of emissions modelling but selected a

model which failed to take into account known factors influencing future emissions. This approach, by

overstating future emissions and hence likely effects on the Ashdown Forest and potentially other SACs, has

had the potential to magnify constraints, constrain development potential and so inappropriately influence

possible development scenarios. The Council has not been transparent when presenting these constraints to

Eastbourne Council and other authorities. It has not actively shared its evidence base and addressed key

cross-boundary issues with other authorities in a timely manner (including contributing meaningfully to SoCGs)

and has not worked collaboratively in jointly addressing the implications of the reduction of its plan period and

has not engaged in constructive discussion in respect of the distribution of development and the

accommodation of Eastbourne's unmet needs.

32.In conclusion, I consider that the Council has not undertaken constructive engagement with neighbouring

authorities. The absence of such engagement means the submitted plan has not been shaped by an adequate

consideration of the strategic issues discussed above, nor has the Council adequately engaged with

neighbouring authorities to assist in their plan-making processes.

33.The Duty to Co-operate places a legal duty on local planning authorities to engage constructively, actively

and on an ongoing basis to maximise the effectiveness of Local Plan preparation in the context of strategic

cross boundary matters. If a local planning authority cannot demonstrate that it has complied with the duty at

the independent examination of their Local Plans, then the Local Plan will not be able to proceed further in

examination. I am sorry to have to tell you that it is my conclusion that the Council has failed in this legal duty

and that the submitted plan cannot proceed further in examination. Whether you would choose to withdraw the

Plan or await a detailed report, which is unlikely to add further detail than set out above, is a matter for you to

consider and for you to advise me via the Programme Officer.

34.I have asked that the Programme Officer posts a copy of this letter on the website. However, I am not

inviting comment from other examination participants.

Yours Sincerely

Louise Nurser
INSPECTOR


New approach to Local Plan

Wealden District Council is disappointed by the decision of the Planning Inspector to find that it cannot proceed

with its current draft Wealden Local Plan.

"Throughout the Local Plan process, we have always tried to find the right balance between the need for growth

in housing and employment land, and the need to protect our unique environment," said Councillor Bob Standley,

Leader of Wealden District Council.

"Our approach to protect the environment has been supported by our Councillors and many of our residents.

"Unfortunately, the Planning Inspector, following last summer's Examination in Public of our Local Plan, has

found that we put too great an emphasis on protecting the environment and that we need to do more to build

houses in Wealden which our neighbouring councils cannot accommodate.

"Regrettably, this will inevitably have impacts on our communities. We acknowledge that there is already

significant pressure on infrastructure; such as roads, doctors, dentists, schools and sports facilities. A

requirement to build more homes will only have a greater impact on those facilities, which will require further

investment."

Councillor Ann Newton, Deputy Leader and Planning and Development Portfolio Holder, added, "We are

disappointed at the time taken to reach this decision and the resulting uncertainty created since these issues

were discussed in May last year.

"In recommending to withdraw our Local Plan and starting afresh, we will continue to do all we can to ensure

that extra growth is accommodated in a way that is sensitive to the needs of existing residents. We will

continue to strive for sustainable growth that provides infrastructure for our communities and is consistent with

our commitment to become a carbon-neutral District."

A full copy of the Planning Inspector's findings of the draft Wealden Local Plan can be found on the Local Plan

Examination pages of the Wealden website:

http://www.wealden.gov.uk/Wealden/Residents/Planning_and_Building_Control/Planning_Policy/Wealden_Local

_Plan/Wealden_Local_Plan_Examination.aspx

A new timetable for the Local Plan process will be discussed by the Local Plan Sub-Committee. Planning

applications to the Council will continue to be decided on their merits, taking account of all material

considerations.

Notes to editors:

For further information:

Cllr Bob Standley
Leader
Wealden District Council
Tel: 01892 783579
Email: cllr.bob.standley@wealden.gov.uk

Jim van den Bos
Communications Officer
Wealden District Council
Tel: 01892 602745
Email: jim.vandenbos@wealden.gov.uk

Cllr Ann Newton
Planning and Development Portfolio Holder
Wealden District Council
Tel: 01825 890103
Email: cllr.ann.newton@wealden.gov.uk

Isabel Garden
Director of Planning, Policy & Environmental Services
Wealden District Council
Tel: 01892 602404
Email: Isabel.garden@wealden.gov.uk

Wealden District Council Local Plan Examination
Inspector: Louise Nurser BA(Hons) Dip UP MRTPI
Programme Officer: Lynette Benton
lynette.benton@wealden.gov.uk - Mobile: 07977 415678

All contents©2010-2020 Chalvington with Ripe Parish Council     Website: MassMedia Ltd       update 09/01/2020