It is now more than 15 years since the Thames Basin Heaths (TBH) were designated as a Special Protection Area (SPA) and Natural England (then English Nature) first objected to a planning application for an increase in housing citing the impact of that dwelling on the ground nesting birds in the SPA. The Nightjar, Woodlark and Dartford Warbler have since become an unwanted and unwelcome feature of the planning system, inadvertently preventing new development, costing developers thousands of pounds in mitigation contributions and sparking more debates than any other topic. This article condenses the last 15 years into a few paragraphs explaining how the situation, whilst evolved, continues to affect our day to day work.
There were rumours of issues before the TBHSPA was even designated. Old Local Plans referred to “proposed” SPAs and there were even policies erroneously suggesting ways to deal with the future designations. Little did the writers of these Plans realise how naïve the suggested policies would be.
SPAs are designations through the Habitats Regulations, originally adopted by the European Union in 1992. A combination of high population density and inherent fear of the European Courts by decision makers has proved the perfect storm for the 11 Authorities within 7km of the TBHSPA.
Natural England’s concern has been consistent throughout. New dwellings mean new people in the area and therefore greater pressure on the heathlands through recreational activities. There appeared to be little regard for changing demographics, reduced household sizes or any other changes in society. It was clear, more houses mean more people. But how far would people be prepared to travel to the SPA for these recreational activities? Natural England settled on a 5km zone around the SPAs (except when more than 50 dwellings were proposed, at which point it became a 7km zone – because, obviously, if you live on a bigger development you will travel further) but there was clearly an element of convenience about these arbitrary numbers.
A 400m exclusion zone (apparently the distance that a cat will wander from home) was introduced and in this zone, no net gain in dwelling numbers would be allowed. Interestingly, if the site straddles the 400m line, make sure the front door is outside of the 400m and the cats will not manage to reach the SPA on their nightly stroll. You see, diligent cats will only use front doors and have an inbuilt 400m threshold (although it is also questionable why a ground nesting bird would settle right on the edge of the SPA, next to the built up area, when it could pick from the whole of the heathland).
Back to the 5km and 7km zones. Any residential development outside of the 400m but in these zones initially sat on a shelf at the Council with an objection from Natural England on the file and no prospect of it moving forward. The writer worked for a Local Authority affected at the time and there were hundreds of files just sitting, waiting for a solution. Natural England’s concern was that there was no way to assess the cumulative impact of the development and therefore the decision maker (ironically called “the competent authority”) couldn’t make an “appropriate assessment” of the development with any confidence. The impact on the SPA became a political tool with some authorities clearly seeing it as an excuse for not approving houses.
Slowly but surely a solution appeared with some Local Authorities picking up on the idea quicker than others. The concept of Sustainable Alternative Public Greenspace or SANG was born and nowadays it is commonplace to see road signs pointing to a SANG which 95% of the population will have absolutely no idea what it means. Essentially it is new public open space brought up to an attractive standard through development mitigation money in the hope that people will travel to these open spaces rather than the SPA for their leisure activities.
Larger developments can provide their own SANG (make sure there is an attractive 2.3km walk or people will not use it) or developers can pay a contribution towards another’s SANG. A matrix has emerged whereby a contributory payment is made by the developer (and in turn the householder) for each additional person within a household (based on the number of bedrooms). Ironically this is a way of quantifying the impact of the development in isolation when previously Natural England were concerned it wasn’t possible to make such a judgement because of the in-combination effect of all development on the local protected area.
Some SANG are owned by the Local Authorities, some by Parish Councils, some by developers and some by individuals. Therefore the solution should be clear; pay the money, get the consent, build your development. But alas no, all owners have their own terms.
Some Local Authorities will only offer the option of mitigation in their SANG to the developments they support (in other words, withhold SANG from sites they do not like and boost their appeal success rates because it is doomed to failure simply on the lack of secured SANG). Parish Councils take a similar approach, weeding out all the development that they don’t support (even if the Planning Authority finds it acceptable).
And, of course, no one would travel to a local SANG if it was in a different district (or woe betide, different county) so if your site sat right next door to a SANG that fell within the boundaries of a different Local Authority to the one you’re applying to, that wasn’t an option for mitigation either. But hang on, we even have scenarios of Local Authorities stating that SANG isn’t available because it has been offered to neighbouring authorities to help them deliver houses (politics or philanthropy, you decide). How ironic, people can travel one way but not the other…
I don’t think anyone involved in the process 15 years ago thought it would still be an issue now. How little did we all know. As the UK prepares for a future outside of the EU, developer clients often ask whether this will change the approach to SPAs. Given that, certainly in the short to medium term at least, EU law will become enshrined in UK law we have little hope that the situation will change for the better any time soon.
If you would like to understand more about how SANG affects your plans for development, please contact Partner Nick Cobbold (just don’t mention the birds… or the cats).
Eastern South East