3 Development Control in SSSIs
(a)Consultation Requirements – General
13.152 The Wildlife and Countryside Act 1981 requires local authorities to take such reasonable steps, as are consistent with the exercise of their functions, to further the conservation and enhancement of the special conservation features of an SI.291 When granting planning permission, this would require them to consider whether it is necessary to impose planning conditions to secure the appropriate future management of the site, whether to include compliance monitoring of planning obligations, and to take such enforcement action as may be necessary.292 If it intends to authorise or grant permission for the carrying out of operations likely to damage the special conservation interest of an SI, then it must notify Natural England before making its decision.293 This will be so whether the development is to take place within – or outside the boundaries of – an SI, in every case where the operation will impact upon the special interest of the site.
Natural England then has 28 days in which to tender its advice, during which time the planning authority cannot grant planning permission or otherwise consent the operation in question.294 The authority must take account of Natural England’s expert advice, including any suggestions as to the attaching of conditions to the permission. If they propose to give planning permission contrary to Natural England’s advice they must notify the conservation body as to the terms of which it is proposed to grant it (including for example any planning conditions to be imposed) and how (if at all ) it has taken the conservation body’s advice into account. It must then allow a further period of 21 days before the operations can commence.295 This will give Natural England time to consider its response including, if appropriate, taking legal action to challenge the validity of the planning permission.296(b)Consultation on Development Consent Applications in an SI
13.153 The consultation requirements outlined above apply whether a proposed development or operation requiring local authority consent is within or outside an SI.
They also apply whether the local authority consent required is planning permission or some other form of authorisation – the only relevant criterion is whether it will be likely to damage the special interest features of the site.13.154 Specific and additional consultation arrangements apply before a local authority can grant planning permission for any development which is either;
•In or likely to affect an SI or
•Is in a consultation area around an SI notified to the planning authority by Natural England or its predecessor English Nature or
•Is in an area of particular natural sensitivity or interest which the local authority considers may be affected by development involving the siting of new establishments (or the modification of existing ones) which could have significant implications for major accident hazards, or which may increase the risk or consequences of major accidents.
13.155 The GDO permits the conservation body to notify a consultation zone around an SI of up to 2 kilometres, within which it must be consulted on any planning application. Planning policy guidance in England also requires a consultation with Natural England where a development is likely to affect an SI, even if it is outside the notified consultation area around the site.297 Consultation should take place as soon as possible and the local authority cannot determine a planning application that could affect an SI within 14 days of initiating a statutory consultation. If it proposes to give planning permission, and this will result in operations being carried out that are likely to damage the special interest of the site, then a longer consultation period of 28 days will apply.298 The consultation requirements do not apply if Natural England has advised the authority that it does not wish to be consulted or where it has provided ‘standing advice’ to the planning authority about specific types of planning application (of which the application is one).299 Consultation with the conservation body will nevertheless be required if a planning authority proposes to give permission which will damage the special interest features of the site300 or where it may give rise to major hazards.
(c)Material Factors in Development Control Decisions
13.156 The features comprising the special interest of an SI – and the potential impact of the development upon them – will be one of a number of ‘material considerations’ to be weighed when assessing an application for development consent, alongside the development plan.301 Planning permission can be granted for an operation which has been notified as an OLDSI in the site notification.302 If planning permission is given this will constitute a ‘reasonable excuse’ for carrying it out without Natural England’s consent.303 Where an operation requires consent from both the planning authority and another public body, such as a statutory undertaker, then the permission of both must be obtained if this is to constitute a ‘reasonable excuse’.304
13.157 If a proposed development on land within or outside an SI is likely to have an adverse effect on the site’s special interest features then planning guidance stresses that planning permission should not normally be granted.305 This does not preclude the grant of planning permission where other material factors outweigh the conservation interest, but it signifies that special weight must be attached to the conservation interest in development control decisions.
Where an adverse impact on an SI is likely, an exception should only be made (and permission given) where the benefits of development clearly outweigh both the impacts that it is likely to have on the features of the site that make it of special scientific interest and any broader impacts on the national network of SIs.306 Where permission is granted then local authorities should use conditions and/or planning obligations to mitigate the harmful effects of the development and, where possible, to ensure the conservation and enhancement of the sites biodiversity or geological interest.(d)Permitted Development Rights in SIs
13.158 Development that may have a detrimental effect on an SI may in some circumstances be permitted without formal planning permission eg where the development is carried out with the benefit of permitted development rights307 or a certificate of lawful development. Operations likely to damage the nature conservation interest of the site (‘OLDSI’) will be notified to the landowner with the SI site notification,308 irrespective of whether they require planning permission. Where an OLDSI benefits from permitted development rights, the land owner has a choice: he can either apply to Natural England for operational consent,309 or he can apply for full planning permission. If planning permission is granted it will constitute a reasonable excuse for carrying out the operation without Natural England’s consent.310 It is not necessary to request operational permission from Natural England before applying to the local planning authority for planning permission – but this may be advisable as they will be statutory consultees on the planning application and may be prepared either to give consent or negotiate a compromise that will protect the nature conservation interest of SI.311
13.159 If development has taken place in breach of development control, the landowner can apply for a certificate of lawful development.312 If granted by the local authority or secretary of state this will legitimate the development for planning purposes and render it immune from enforcement action under the Town and Country Planning Act 1990. If the development is also an operation that was specified as likely to damage the conservation interest (an OLDSI) in the site notification,313 then the grant of a lawful development certificate will not provide a reasonable excuse for the purposes of the Wildlife and Countryside Act 1981.314 Even if a certificate of lawful development is granted, therefore, the landowner will have committed an offence and will be vulnerable to prosecution by Natural England under the 1981 Act.