As a designated ancient woodland, Epping Forest in Essex has a long history. But recently, the forest's protected status has proved something of a thorn in the side of planners and developers in the area. For almost two years, Epping Forest District Council has imposed a moratorium on determining planning applications for new development near the protected area of woodland.
Since mid-2018, the council said, following advice from Natural England, the government's nature conservation advisor, it has been unable to process applications that involve an increase in vehicle movements on roads within 200m of the Epping Forest Special Area of Conservation (EFSAC) because of the potential impact on air quality levels. The EFSAC covers more than 1,600 hectares and the majority of the district is affected by the moratorium, though the council would not specify how much when asked. Natural England's concerns also mean that the council has been unable to progress work on its draft local plan, which proposes a minimum of 11,400 new dwellings up to 2033.
According to John Philip, the council's Conservative planning portfolio holder: "Development in Epping Forest district is severely constrained as 93 per cent of it is in the green belt or subject to another environmental designation with the 1,600-hectare forest at its heart." According to a statement from Natural England: "The SAC is sensitive to air pollutants and Natural England considers the site to be in unfavourable conservation status in respect of air pollution." It adds that "the forest is located close to roads where increased traffic from new development is expected to travel".
Natural England tightened up its advice on development in or near protected sites following a series of European Court of Justice rulings in early 2018, including the landmark People over Wind case. In late 2018, the so-called 'Dutch case' rased the bar even further when it came to mitigating potential pollution impacts on such habitats. "Recent European Court judgments require the local authority to demonstrate beyond reasonable scientific doubt that any development proposal or plan will not affect the integrity of the forest," Philip said.
"The council expects the new plan to be agreed by the end of this year which will allow the moratorium on planning consents to be lifted and facilitate major housing schemes in the district," he said. Since November, ten of the 100-plus held-up applications have been approved, he added, after the council accepted that they "would not generate additional vehicle movements close to or within the forest".
"Applicants have been told that because their schemes would generate any, even the slightest, increase in traffic movements close to the forest, they are being held up until effective mitigation strategies have been agreed between the council and Natural England," said Karen Howard, partner at law firm Shoosmiths. "We are working with one developer for a small site for around 25 homes which cannot progress because of the modest increase in traffic it would cause," she said.
"The forest is designated as a special area of conservation (SAC) under the EU Habitats Directive," said Philip, "which means all plans and planning applications that might affect its integrity require a habitats regulations assessment (HRA). Progress on the local plan relies on a satisfactory HRA being agreed between the council, the local plan inspector and Natural England."
A new HRA that examined all the sites in the draft plan was prepared by consultancy AECOM last year at Natural England’s instigation, he said. However, it was "deemed unsatisfactory by the plan inspector". In a letter after the hearing, the inspector wrote that she "could not conclude from the HRA beyond reasonable scientific doubt that the proposals in the plan will not adversely affect the integrity of the SAC". The HRA states that "it is considered that all development in Epping Forest District will result in a likely significant effect" in terms of air quality.
"Some progress has been made addressing one of Natural England’s concerns," said Philip. "Last year, we agreed a mitigation strategy to address recreational pressures on the forest from new housing development. Developers will have to pay a financial contribution towards the provision of alternative green spaces."
However, the air quality issue "poses a greater challenge," according to Rebecca Brookbank, technical director at environmental consultancy EPR, which is working on several housing schemes in the district. "Until a strategy is agreed to mitigate the impact on air quality from new development, the moratorium on the consideration of planning applications is unlikely to be lifted, or the local plan adopted," she said.
Mike Newton, director of planning consultancy Boyer, claimed that major developments including the Harlow and Gilston Garden Town scheme - of which 3.900 new homes are proposed in Epping Forest district - and other major schemes around Harlow cannot progress until the plan is agreed. He said that developers are likely to be reluctant to submit applications because it is highly unlikely that they will be determined.
Andrew Smith, vice chair of the local civic society, the Epping Society, called for the draft plan to be revised so that development is concentrated on existing housing areas and around the underground station. "The council could consider car free housing at some of those locations," he suggested.
"Similar issues arose with Ashdown Forest in East Sussex," said Brookbank. A moratorium was imposed by Wealden District Council in 2017 on determining planning applications affecting the forest, also an SAC, because of air quality impacts. It was lifted in 2018 after about a year following discussions with Natural England. However, the council's draft local plan was withdrawn earlier this year after the inspector raised serious issues about its legality and soundness, including concerns about whether its air quality policies met the latest Natural England advice.
"With the number of major housing proposals coming forward, fragile natural habitats are coming under threat across the country," said Philip Ridley, natural resources spokesman for the Planning Officers Society and head of planning at Suffolk Coastal District Council. "Natural England requires the resources to work with councils to find pragmatic solutions which protect those habitats but also allow housing development," he said. "Councils along the Suffolk coast have agreed a mitigation strategy with Natural England, that protects the bird habitats on sensitive sites along the coast from increasing numbers of dog walkers living in new housing."