168 Honey Lane, WALTHAM ABBEY, EN9 3BE

168 Honey Lane, WALTHAM ABBEY, EN9 3BE — Epping Forest District Council — Appeal Decision Site visit made on 19 October 2021 by Darren Hendley BA(Hons) MA MRTPI an Inspector appointed by the Secretary of State Decision date: 25th November 2021 Appeal Ref: APP/J1535/W/21/3273285 168 Honey Lane, Waltham Abbey EN9 3BE • The appeal is made under section 78 of the Town and Country Planning Act 1990 against a failure to give notice within the prescribed period of a decision on an application for planning permission. • The appeal is made by Mr Rakesh Kainth, Montague TSK Limited against Epping Forest District Council. • The application Ref: EPF/0195/21, is dated 25 January 2021. • The development proposed is a redevelopment to provide two semi-detached houses. Decision 1. The appeal is dismissed. Procedural Matters 2. The appeal was submitted on the basis of the failure of the Council to determine the planning application within the prescribed period. The Council has submitted an appeal statement which sets out its putative reason for refusal. As this concerns the matter of dispute with the appellant, it forms the basis of the main issue in this case. 3.

168 Honey Lane, WALTHAM ABBEY, EN9 3BE — Epping Forest District Council — Appeal Decision The appellant submitted a Habitat Regulations Assessment and a draft Deed of Unilateral Undertaking Under Section 106 of the Town and Country Planning Act 1990 (UU) during the course of the appeal. The Council subsequently commented on these matters. The appellant also confirmed that it is this version of the UU that is for my consideration. Consultation has also been undertaken with Natural England (NE) as the Statutory Nature Conservation Body and the main parties were given the opportunity to comment on the NE response. Accordingly, I have considered these documents in my decision, together with the comments that were made. 4. The revised National Planning Policy Framework (revised Framework) has been published since the appeal was submitted. The main parties have also had the opportunity to comment on this matter during the appeal. I have considered it in my decision. Main Issue 5. The main issue is the effect of the proposal on biodiversity interests, in particular the Epping Forest Special Area of Conservation (SAC). https://www.gov.uk/planning-inspectorate

168 Honey Lane, WALTHAM ABBEY, EN9 3BE — Epping Forest District Council — Appeal Decision Appeal Decision APP/J1535/W/21/3273285 Reasons 6. The appeal site comprises a bungalow property with a side garage that lies on a spacious plot. The site frontage is largely open. It is located within a row of detached and semi-detached houses that are set out in a linear form of development on this side of Honey Lane. There are also residential properties on the opposite side of the road that are predominantly bungalows. 7. The Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations) transpose the Habitats Directive and the Birds Directive into law. The aim of the Directives is to conserve key habitats and species. Sites designated under the Habitats Regulations include Special Areas of Conservation. 8. The SAC lies within approximately 1400 metres (m) of the site. It consists of predominantly a large deciduous woodland area and also grassland, heath, other vegetation and water bodies. The qualifying habitats and species for the SAC are Atlantic acidophilous beech forests, Northern Atlantic wet heaths with Erica tetralix and European dry heaths, and the stag beetle. 9. The proposal has the potential to affect its interest features.

168 Honey Lane, WALTHAM ABBEY, EN9 3BE — Epping Forest District Council — Appeal Decision This is both by way of the recreational pressures arising from its future occupiers and an increase in traffic using the roads through the SAC associated with the proposal. Accordingly, there would be a pathway to affect the designated features of the SAC with the potential for increase of both recreational usage and atmospheric pollution resulting from traffic associated with the proposal. Whilst I am mindful of the contents of the appellant’s HRA, there is limited evidence before me in relation to what the existing pollutant concentrations are and what the in-combination effects might be in practice with such developments. 10. When dealing with matters in relation to the SAC, a precautionary approach must be taken. Thus, the proposal would be likely to have a significant effect on the interest features, alone or in combination with other plans and projects. Mitigation cannot be considered in coming to such a view following the People Over Wind judgment1. As a consequence, the proposal must be the subject of an Appropriate Assessment (AA) and it falls on me to carry out the AA for the proposal as the competent authority. 11.

168 Honey Lane, WALTHAM ABBEY, EN9 3BE — Epping Forest District Council — Appeal Decision With regard to the recreational effects, it is evident that the SAC is a popular visitor destination. It has a verdant character and is close to large areas of population. It would be easily accessible from the proposal given the intervening short distance. As a consequence, there would be the potential for the future occupiers to cause disturbance to the qualifying features. 12. In relation to the effects of atmospheric pollution, the qualifying features are sensitive to adverse effects from air quality. The roads nearest to the site that pass through the SAC are well-trafficked and well within the 200 m of the qualifying features as an indication of the sensitivity. I see no reason therefore why the related emissions would not reach the SAC even though the increase in traffic, and therefore the atmospheric pollution, associated with the proposal would be limited. The HRA refers to a low annual average daily traffic level. However, this also needs to be considered in conjunction with other traffic. 1 People Over Wind & Peter Sweetman v Coillte Teoranta C-323/17 https://www.gov.uk/planning-inspectorate 2

168 Honey Lane, WALTHAM ABBEY, EN9 3BE — Epping Forest District Council — Appeal Decision Appeal Decision APP/J1535/W/21/3273285 The in-combination effect would require mitigation. Such a view is also consistent with the requirement of the Habitats Regulations, as well as the Wealden judgment2 that has been referred to in submissions, in relation to in- combination effects. 13. Nor am I persuaded that the Epping Forest District Local Plan Submission Version (2017) (Draft Local Plan) can be wholly relied on in relation to such effects and therefore be scoped out. I have been referred to not insignificant outstanding matters with the Draft Local Plan and the SAC, and which in any event would not specifically account for this proposal. 14. On this basis, it cannot be ascertained that the proposal would not adversely affect the integrity of the SAC in relation to both recreational effects and atmospheric pollution. Whilst the HRA considers that mitigation is not seen as necessary, I disagree for the reasons that I have set out. 15. Irrespective of the findings of the HRA, the appellant does however propose mitigation. A financial contribution is proposed in line with the Council’s Interim Approach to Managing Recreational Pressures on the Epping Forest Special Area of Conservation (2018).

168 Honey Lane, WALTHAM ABBEY, EN9 3BE — Epping Forest District Council — Appeal Decision A further contribution would be made under the Epping Forest Interim Air Pollution Mitigation Strategy (2020) which relates to smaller sites including windfall sites. Cycle storage and electric vehicle charging capacity are also proposed that would have a bearing on atmospheric pollution. 16. NE has referred to the interim approach for recreation in relation to Strategic Access Management and Monitoring, which is said to be supported notwithstanding that there is a shortfall in provision. In relation to air pollution, NE states that the Council’s strategy could in principle mitigate for development provided that it is coming forward in accordance with the modelled scenario presented in the August 2020 Habitats Regulations Assessment relating to the Draft Local Plan. Based on the evidence before me, though, this is not the current position as regards mitigation with the reported outstanding matters with this plan. Whilst I appreciate this situation may cause some frustration for those wishing to bring development forward, as I have set out above, I have to follow a precautionary approach. 17.

168 Honey Lane, WALTHAM ABBEY, EN9 3BE — Epping Forest District Council — Appeal Decision Even if I was to disagree with NE’s stance in relation to the air pollution, the UU that sets out the arrangements for the contributions is not complete. It is simply a draft version that is not signed or dated, amongst other matters. It would not therefore secure the mitigation because if the appeal was to be allowed, it would not have effect. Whilst a draft version may meet the Council’s validation requirements, it is not sufficient when making a planning decision. 18. Cycle storage and electric vehicle charging capacity could be addressed by way of the imposition of planning conditions, but this would not fully mitigate the harm that would arise. It cannot therefore be ascertained that the mitigation would enable the proposal to not adversely effect the integrity of the SAC. Nor does the addition of one dwelling unit amount to an imperative reason of overriding public interest to sufficiently override the harm. 2 Wealden DC v SSCLG, Lewes DC and South Downs NPA [2017] EWHC 351, https://www.gov.uk/planning-inspectorate 3

168 Honey Lane, WALTHAM ABBEY, EN9 3BE — Epping Forest District Council — Appeal Decision Appeal Decision APP/J1535/W/21/3273285 19. I conclude that the proposal would have an unacceptable effect on the biodiversity interests, in particular the SAC. As such, it would not comply with saved Policies NC1, CP1 and CP6 of the Council’s Epping Forest District Local Plan (1998) and Alterations (2006) where they are concerned with affording protection to SACs and minimising impacts on the environment, amongst other considerations, and similarly with regard to Policies DM 2 and DM 22 of the Draft Local Plan. 20. The proposal would also not accord with the revised Framework where it is concerned with protecting and enhancing biodiversity. It would also not accord with the Habitat Regulations because there would be an adverse effect on the integrity of the SAC. Other Matters 21. The proposal would contribute as a small site towards the supply and mix of housing, under the Framework. It would also optimise the potential of the site in as far as it is comparatively large for the existing one dwelling. It is also intended that the proposal would meet accessibility standards in order to assist with mobility, and be energy efficient.

168 Honey Lane, WALTHAM ABBEY, EN9 3BE — Epping Forest District Council — Appeal Decision The appellant also considers that the proposal would be reflective of the character of the houses in the area, and incorporate the use of good quality materials and design. However, the protection that is afforded to the SAC is of a high order and these benefits would not outweigh the harm that would arise. 22. Nor would the presumption in favour of sustainable development as is set out in the Framework apply, even with regard to the Council’s reported Housing Delivery Test position. Paragraph 182 sets out that the presumption does not apply where the plan or project is likely to have a significant effect on a habitats site (either alone or in combination with other plans or projects), unless an appropriate assessment has concluded that the plan or project will not adversely affect the integrity of the habitats site. For the reasons that I have set out, this is not the position that I have reached in my decision. 23. Policy H1 of the Draft Local Plan is purported to resist the loss of bungalows and the Council has also referred to the evidence of the need for such properties.

168 Honey Lane, WALTHAM ABBEY, EN9 3BE — Epping Forest District Council — Appeal Decision Nonetheless, the Council accept in this case that the appellant has obtained prior approval to build an additional storey on the existing bungalow to turn it into a 2 storey house. This is a clear fallback position and so the loss of the bungalow under the proposal does not add to my concerns. 24. Interested parties have raised a number of other issues. However, as I am dismissing the appeal on other grounds, such matters do not alter my overall conclusion and have therefore not had a significant bearing on my decision. Conclusion 25. The proposal would have an unacceptable effect on the biodiversity interests, in particular the SAC, and this is decisive. Accordingly, I conclude that the proposal conflicts with the development plan when taken as a whole and there are no material considerations to outweigh this conflict. Therefore, the appeal should be dismissed.

168 Honey Lane, WALTHAM ABBEY, EN9 3BE — Epping Forest District Council — Darren Hendley INSPECTOR https://www.gov.uk/planning-inspectorate 4