AC-2024-LON-004013 - [2025] EWHC 2194 (Admin)

Fecha: 22-Ago-2025

Introduction

Introduction

In this claim for planning statutory review under section 288 Town and Country Planning Act 1990 (‘TCPA 1990’), the Claimant challenges the decision of the First Defendant, dated 25 October 2024, in which she accepted the recommendation of her Inspector to approve reserved matters, in respect of a development of 280 dwellings on land at Kilnwood Vale, Crawley Road, Faygate, Horsham, subject to Condition 6 which prevents occupation of the approved dwellings until water neutrality has been demonstrated.

The Claimant, who is the developer, appealed under section 78 TCPA 1990 against the failure of the Second Defendant (‘the Council’) to determine its application for reserved matters approval for layout, appearance, landscaping and scale for Phase 3 DEFG of the Kilnwood Vale development. The Inspector, Mr D. McCreery MA BA (Hons) MRTPI held a public local inquiry in March 2024. On 8 April 2024, the appeal was recovered for the First Defendant’s determination, pursuant to section 79 TCPA 1990.

Horsham’s water supply is, in part, abstracted on the River Arun, at a site near a group of nature conservation sites, known as the Arun Valley Sites, that are designated for their rare and protected habitats. On the recommendation of the Inspector, the First Defendant concluded that Condition 6 was necessary to restrict development to ensure compliance with regulations 63(5) and 70(3) of the Conservation of Habitats and Species Regulations 2017 (‘the Habitats Regulations’), until such time as access into the Council’s Water Offsetting Scheme (‘SNOWS’) or an equivalent scheme has been secured.

Condition 6 provides:

“No dwelling hereby permitted shall be first occupied until written agreement from the Local Planning Authority has been provided that either:
i)
A water neutrality mitigation scheme has been secured via Horsham District Council’s adopted Offsetting Scheme (in line with the recommendations of the Sussex North Water Neutrality Study: Part C – Mitigation Strategy, Final Report, December 2022), OR
ii)
A site-specific water neutrality mitigation scheme has been (a) agreed in writing with the Local Planning Authority as being equivalent to Horsham District Council’s adopted Offsetting Scheme AND (b) implemented in full.”

The Claimant submitted that the imposition of Condition 6 was unlawful on two grounds:

Ground 1: The Inspector and the First Defendant erred in law and acted irrationally by proceeding on the basis that groundwater abstraction at Hardham might continue at a level that could not be excluded from resulting in harm to protected habitats, by reliance on “imperative reasons of overriding public interest” (‘IROPI’) under regulation 64(1) of the Habitats Regulations.

ii)

Ground 2: The Inspector and the First Defendant erred in their approach to the effect of uncertainty in the appropriate assessment under the Habitats Regulations. The lack of specificity as to the future actions of the Environment Agency (‘EA’) and Southern Water was not a proper basis for a finding of uncertainty as they could be expected to fulfil their legal obligations under the Habitats Regulations. What was required was certainty as to the end, not the means. The Inspector and the First Defendant erred in the interpretation of regulations 9(3) and 63 of the Habitats Regulations, and by failing to have proper regard to the application of regulation 63 to the discharge of the EA’s functions under section 52 of the Water Resources Act 1991 (‘WRA 1991”).