26 August 2008

EPR have been instrumental in achieving a landmark decision for one of its important clients, TaylorWimpey (TW) with respect to mitigating an adverse impact on the Thames Basin Heaths Special Protection Area (TBH SPA).

TW went to appeal over Bracknell Forest Borough Council’s (BFBC) decision to refuse planning permission for The Crescent scheme, a variation to an extant permission for 730 dwellings at The Parks, a development on the former RAF Staff College in Bracknell, Berkshire. The Council’s reasons for refusal related to seven matters, including the potential for adverse effects on the TBH SPA as a result of recreational pressure, an issue that had arisen since the original planning permission had been granted.

Karen Colebourn of EPR assisted TW in its appeal against refusal by appearing as an expert witness.

The argument hinged largely on whether account should be taken of the effects of the permitted scheme on the TBH SPA when considering the effects of the appeal scheme, concluding that they should be considered.

It was accepted that the extant scheme was likely to cause significant harm to the SPA, but Karen argued that, as the appeal scheme would not see an overall increase in the number of dwellings permitted and, moreover, that the appeal scheme would introduce a covenant preventing the occupants of the proposed flats from owning dogs, it would be less harmful than the permitted scheme.

Natural England had objected to the application, but the Inspector found their advice to be unclear, as they seemed uncertain about whether or not there would be an increase in the number of dwellings. BFBC also called upon legal advice given by David Elvin QC, which stated that, in such cases, the Council is required to apply the Habitats Regulations.  The Inspector found no inconsistency between this advice and the approach taken by EPR.

The inspector concluded that “while the dog covenant proposed by the appellant would, if properly monitored and managed, mitigate to some extent the likely effect of the appeal scheme on the SPA, the likelihood is that the appeal scheme will still have a significant effect on the SPA. However, this is outweighed by the fact that it is likely to have less of an effect on the SPA than would the permitted scheme.” As such the inspector concluded that the proposed development would not conflict with the aims of either the Regulations or of the relevant Core Strategy policy.

Despite the above positive outcome the appeal was dismissed on other matters.