Seeing the wood for the trees: Government updates Consultation Direction to capture development affecting ancient woodland

On 26 January, the Government introduced a new duty requiring local planning authorities to consult the Secretary of State regarding developments that impact ancient woodland. 

For many years, a direction has been in place requiring planning applications for certain forms of development to be referred to the Secretary of State before local planning authorities (“LPAs”) may grant permission (“Consultation Direction”). The new Consultation Direction creates a further procedural hurdle for developments to surpass if they harm this unique habitat. 

Background 

During its passage through Parliament, the House of Lords amended the Levelling Up and Regeneration Bill to add a new provision requiring the Secretary of State (“SOS”) to vary the Consultation Direction. The Consultation Direction would need to be updated within 3 months of the passing of the Act, by adding development affecting ancient woodland to the list of development types upon which the SOS must, by law, be consulted before planning permission can be granted. Baroness Young, the Labour peer behind the amendment, highlighted that it “would require the Government to fulfil a promise they made nearly two years ago, during the passage of the Environment Act, to amend the consultation direction in planning law to require local planning authorities to notify the secretary of state if a planning application would damage or destroy an ancient woodland”.

The Act was passed on 26 October 2023, including this provision at Section 136, and so the clock started ticking.

New Consultation Direction

In the nick of time, the SOS made a new Consultation Direction – The Town And Country Planning (Consultation) (England) Direction 2024 – on 26 January 2024. The 2021 version of the Consultation Direction was revoked.

The 2023 version also requires LPAs to notify the SOS of planning applications which would “result in the loss or deterioration of ancient woodland, where the local planning authority considers that potential adverse impacts cannot be mitigated”. Ancient woodland is defined as “an area in England which has been continuously wooded since at least the end of the year 1600 A.D”. This definition will be familiar to planners given its similarity to the definition in the National Planning Policy Framework (“NPPF”).

This means that from 26 January 2024, no English planning application for development which adversely impacts ancient woodland can be granted without first being referred to the SOS. The usual rules would then apply: the application must be forwarded to DLUHC and the LPA must not grant planning permission until the SOS has either stated that he does not intend to call it in or a period of 21 days has elapsed without a response from the SOS.

Regardless of whether there is a duty to consult the SOS, the SOS has the residual power to call in a planning application for their own determination. In policy terms, the power is used sparingly and only in respect of the most strategically significant developments.

Commentary

Ancient woodland is already strictly protected in planning policy. The NPPF, the country’s overarching framework for planning policy, provides that LPAs should refuse applications for “development resulting in the loss or deterioration of irreplaceable habitats (such as ancient woodland and ancient or veteran trees) … unless there are wholly exceptional reasons and a suitable compensation strategy exists”.

This is a very challenging policy test to overcome and therefore developers are generally at pains to avoid causing harm to ancient woodland in the first place. Initial site assessments often flush out potential impacts and schemes are designed or re-designed to avoid or minimise harm. In real terms the new Consultation Direction may not add much in terms of additional protection. However, the introduction of automatic referral – and the spectre of a SOS call in which could add years to application timeframes – could deter developers even further from proposing a development which affects or harms ancient woodland.

Co-authored by Ellie Stubley