Says Bob Milton

As a result of further consideration of the ‘balancing’ argument put forward by Richard Holland I have waited until the Chobham decision to gather my thoughts on the subject so set out below is my position and opinion.

I find nothing in the legislation in connection with part 3 CA2006 which uses the word ‘balance’ in respect to restricted works. The only consideration is to ‘have regard to-‘ as set out in s39 (1) & (2). This to me is not a balancing act as stated by both Steven and Richard, which is open to any bias of or guidance given to the person acting for the appropriate authority. I believe that each section must be considered separately such that to fail on one then the application must fail.

As an extreme example if an application is made that meets the tests in relation to occupiers but does not meet the test of nature conservation it must fail. Therefore the reverse must be true in any of the possible combinations in s39.1 a-d as well as the four tests within the definition of s39.1.c as set out in s39.2 for example where public access [s39.2.c.] is restricted to such an extent by say private interests [s39.1.a.] as to be de facto removed or un-useable then the application must fail.

An other example would be where the appropriate authority found that a proposed scheme was not in the interest of the neighbourhood or the public interest in relation to the landscape but ignored that or gave it no weight in the final decision seeking to give preference to another consideration. Would not this scenario be perverse?

Considerations as to funding mechanisms [s39.1.d] could be seen as bias as schemes which are generally relied on to implement conservation objectives are paid for by the same national advisor [NE] as is giving advice to the Secretary of State in meeting its own PSA [public service agreement] targets and objectives in support of its own funding and making agreements with applicants to fund the schemes which is being applied for. An added twist is it seems that consultation which is paid for in many cases by Natural England under its stewardship agreement with the applicant does not mean take any notice and is seen by many as just a public relations stunt and one that the applicant and the SoS can ignore or give no weight.

I look forward to hearing from Pins further on this subject.