Major Development – proposed minerals sites West Sussex Joint Minerals Local Plan Soft Sand Review November 2019 1. INTRODUCTION 1.1 The purpose of this paper is to provide evidence that the national and local policies on major development in a national park have been fully considered throughout the production of the Soft Sand Review (SSR) of the West Sussex Joint Minerals Local Plan (July 2018). This is necessary in the context of the NPPF, which states in paragraph 172: Great weight should be given to conserving and enhancing landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to these issues. The conservation and enhancement of wildlife and cultural heritage are also important considerations in these areas, and should be given great weight in National Parks and the Broads54. The scale and extent of development within these designated areas should be limited. Planning permission should be refused for major development55 other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest. Consideration of such applications should include an assessment of: a) the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy; b) the cost of, and scope for, developing outside the designated area, or meeting the need for it in some other way; and c) any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated. 54English National Parks and the Broads: UK Government Vision and Circular 2010 provides further guidance and information about their statutory purposes, management and other matters. 55For the purposes of paragraphs 172 and 173, whether a proposal is ‘major development’ is a matter for the decision maker, taking into account its nature, scale and setting, and whether it could have a significant adverse impact on the purposes for which the area has been designated or defined. 1.2 Additional advice is given in Planning Practice Guidance, paragraph 005 Reference ID: 8-005- 20140306. This states: “Planning permission should be refused for major development in a National Park, the Broads or an Area of Outstanding Natural Beauty except in exceptional circumstances and where it can be demonstrated to be in the public interest. Whether a proposed development in these designated areas should be treated as a major development, to which the policy in paragraph 172 of the Framework applies, will be a matter for the relevant decision taker, taking into account the proposal in question and the local context. The Framework is clear that great weight should be given to conserving landscape and scenic beauty in these designated areas irrespective of whether the policy in paragraph 172 is applicable.” 1.3 The South Downs Local Plan (adopted July 2019) (SDLP) is also considered material. The SDLP explains that the NPPF does not define major development. The National Park Authority has 2 sought legal opinions1 on what constitutes major development. These opinions are that the definition of “major development” is based on whether, prima facie, the development might potentially have adverse impacts on a national park, rather than whether, after a careful and close assessment, it will have such adverse impacts. 1.4 As such, it is necessary at the plan-making stage to consider whether sites shortlisted for possible selection have the potential for adverse impacts on the South Downs National Park due to their scale, character or nature and are therefore considered to be major development in the National Park for the purposes of plan-making. The consequence of failing to do so would be to risk allocating land for major development that was undeliverable in a National Park because it was contrary to both paragraph 172 of the NPPF2 and Policy SD2 of the South Downs Local Plan. The major development test will also apply at the planning application stage, as set out in paragraph 172 of the NPPF and in Planning Practice Guidance, as set out in paragraphs 1.1 and 1.2 above. Inspector’s Report for the West Sussex Joint Minerals Local Plan 1.5 The West Sussex Joint Minerals Local Plan was examined by an independent Planning Inspector in 2017-18. Of particular relevance to the issue of major development were the Inspector’s conclusions on Policy M2, to commit the Authorities to starting an early focused review of the soft sand strategy. This is because he found the proposed strategy of not considering the allocation of soft sand sites in the National Park as unsound. 1.6 The Inspector’s reasoning is set out in paragraphs 22 to 39 of the Inspector’s Report. He concluded that reasonable alternatives to the strategy of ‘managed retreat’ from the National Park had not been considered as part of the sustainability appraisal process, and that it was premature to rule out sites in the National Park on the basis of there being no exceptional circumstances to justify major development. 1.7 The Inspector’s conclusions on the issue of major development and exceptional development in a national park underline the need to consider these issues at the plan-making stage. It is the reason why one of the strategy options published during the Issues and Options consultation in January 2019, Option B, is to ‘supply from sites within West Sussex, including within the National Park.’ 1 Legal Opinion In the Matter of the South Downs National Park Authority and in the Matter of Paragraph 22 of PPS7 (James Maurici, 2011); Legal Opinion In the Matter of the National Planning Policy Framework and In the Matter of the South Downs National Park Authority (James Maurici, 2014); Further Opinion in the Matter of the National Planning Policy Framework and in the Matter of the South Downs National Park Authority (James Maurici, 2014) 2 See ‘Major Development Advice’ – Legal Opinion in the matter of the South Downs National Park and in the Matter of Paragraph 116 of the NPPF (Toby Fisher, Landmark Chambers, Oct 2017) published as Core 11 in the SDLP core document library 3 2. APPROACH TO MAJOR DEVELOPMENT IN THE SOUTH DOWNS NATIONAL PARK The National Park purposes 2.1 The purposes of National parks are set out in the National Parks and Access to Countryside Act 1949, as amended by the Environment Act 1995 as follows: Purpose 1: To conserve and enhance the natural beauty, wildlife and cultural heritage of the area; Purpose 2: To promote opportunities for the understanding and enjoyment of the special qualities of the National Park by the public The National Park Authority also has a duty when carrying out the purposes: To seek to foster the economic and social well-being of the local communities within the National Park. 2.2 In addition, Section 62 of the Environment Act 1995 also requires all relevant authorities, including statutory undertakers and other public bodies, to have regard to these purposes. Where there is an irreconcilable conflict between the statutory purposes, statute requires the Sandford Principle to be applied and the first purpose of the National Park will be given priority. Determining major development 2.3 The SDLP includes Core Policy SD3: Major Development which sets out the approach taken to determining what constitutes major development in the National Park. In short, this relates to whether development, by reason of its scale, character or nature, has the potential to have a significant adverse impact on the natural beauty, wildlife or cultural heritage of, or recreational opportunities provided by, the National Park. The SDLP also sets out a set of principles to consider when applying Policy SD3 at the planning application stage to determine whether development constitutes major development: A judgement will be made in light of all of the circumstances of the application and the context of the application site; The phrase ‘major development’ will be given its common usage, and will not be restricted to the definition of major development in the Town and County Planning (Development Management Procedure) (England) Order 2015, or to proposals that raise issues of national significance; The determination as to whether the development is major development will consider whether it has the potential to have a serious adverse impact. It will not include an in- depth consideration of whether the development will in fact have such an impact; The application of other criteria may be relevant to the considerations, but will not determine the matter or raise a presumption either way. 2.4 These principles will be applied in the consideration of shortlisted sites in the section below. 4 Exceptional circumstances evidence 2.5 The NPPF sets out, in paragraph 172, examples of what may constitute exceptional circumstances to justify development in a national park. These are set out in full in paragraph 1.1 above. In short, they relate to the need for the development; the cost of (and scope for) meeting the need elsewhere or in another way; and the impact on landscape/recreation and how this might be mitigated. Furthermore, major development must be shown to be in the public interest. SDLP Policy SD3: Major Development also sets out the same exceptional circumstances as paragraph 172 of the NPPF. 2.6 A brief analysis of what, if any, exceptional circumstances might be considered at the appropriate time, are set out in the section below. 5 3. ASSESSING POTENTIAL MINERALS SITES 3.1 The following section provides a proforma-based analysis of the sites which have been considered for allocation in the SSR. This draws information from the Soft Sand Site Selection Report (4SR) (WSCC/SDNPA, 2019) which was prepared for the Issues and Options consultation stage for the SSR.