In responding to the planning application, Natural England had requested and obtained further information on the potential impact on great crested newts from the developer. The agency was not consulted again, and in refusing permission the council concluded that the scheme was likely to have an adverse impact on the newts, a protected species under the Conservation of Habitats and Species Regulations 2010.
The appeal inspector determined that the development as a whole was sustainable, in part because the council could not demonstrate a five-year supply of housing land. In its court challenge, the council claimed that inadequate reasons had been given for this conclusion. In addition it was stated that in assessing sustainable development, the glossary to the NPPF defines "economic development" as excluding housing development.
The council alleged that the inspector may have overlooked the fact that the housing development here was not "economic development" and assumed that the development had economic benefits favouring the grant of permission when it did not. It further asserted that the inspector should have considered whether a licence was required under article 9(5) of the 2010 regulations.
Mr Justice Lewis held that the inspector was not obliged to identify precisely the amount of housing land available and had used his own judgement to assess whether the council’s calculations were correct. He had been aware of the difference between housing development and economic development and had drawn a distinction between them, he found.
In the judge's view, the inspector had made appropriate reference to the regulations governing protected species and had noted that some animals might need relocating, requiring a licence from Natural England. However, he had also recognised that there was significant scope for habitat improvement and had concluded that a licence was likely to be forthcoming. Adequate reasons for the decision had been provided, the judge ruled.
Cheshire East Council v Secretary of State for Communities and Local Government;
Date: 28 October 2014; Ref: CO/2346/2014