Appeal 3330555

The appeal is dismissed.

The appeal site straddles the boundary between Braintree and [name]. This appeal relates only to the planning permission referenced in the banner heading above issued by Braintree District Council.

Since the planning permission was granted, the statutory framework for securing biodiversity net gain (BNG), as introduced by Schedule 7A of the Town and Country Planning Act 1990 (inserted by the Environment Act 2021), has come into force. However, the statutory BNG provisions do not apply to the appeal scheme, which was determined before the legislation came into effect. I have considered the appeal on this basis.

Planning permission was granted on 1 September 2023 for the expansion of an existing stock pond to create a lake. The development would necessitate the loss of some trees. However, the planning application proposed significant additional and replacement landscaping, which would include planting over 800 new trees. A calculation of BNG was also provided with the planning application, which concluded that the proposal would result in a 19.46% increase in habitat units and a 59.58% increase in hedgerow units.

The planning permission was granted subject to conditions, including condition 6, which requires the submission and approval of a Landscape and Ecological Management Plan (LEMP) prior to the first use of the development. Although the reason given for Condition 6 refers only to legislative provisions in relation to biodiversity, the evidence also makes reference to the need to secure the aims and objectives of the biodiversity metric calculation tool submitted with the application. The appellant is seeking to have Condition 6 removed.

The planning permission also includes other conditions relating to landscaping and ecology. Condition 3 secures the implementation of tree protection measures to ensure retained trees, shrubs and hedges are protected. Condition 4 requires the implementation of the landscaping scheme and the replacement of any trees or plants which die, are removed, or become seriously diseased within a period of five years from the completion of the development. Condition 5 requires ecological mitigation measures to be implemented in order to conserve and enhance protected and priority species.

The main issue is whether Condition 6 is necessary and reasonable, with particular regard to securing landscaping and biodiversity enhancements.

Policy LPP63 of the Braintree District Local Plan 2013-2033 Section 2 (LP), and the Framework, require development proposals to protect and enhance the natural environment, habitats, and biodiversity. This applies to all development proposals, not just those related to large-scale developments and housing. Therefore, it is a requirement of national and local planning policy that the natural environment is protected and enhanced as part of development proposals, including the appeal scheme.

The Development Plan does not specify a particular percentage increase in BNG. However, the landscaping and tree planting proposals nonetheless formed part of the planning application as it was submitted to the Council. Consequently, the Council took account of these matters, and the significant BNG arising, when it made its decision on the application. It is, therefore, entirely appropriate that the Council should seek to secure those benefits through condition. Indeed, the Planning Practice Guidance states that planning conditions may be appropriate to provide for monitoring and or biodiversity management plans where these are needed. This means that Condition 6 is relevant to planning and to the development permitted.

I have had regard to the other conditions on the planning permission which relate to the natural environment, including those which secure the protection of retained trees and the safeguarding of protected species. However, these conditions do not secure landscaping or biodiversity net gain. Therefore, they do not serve the same purpose as Condition 6 and renders the disputed condition necessary.

Moreover, given the scale of tree planting proposed, it would take more than 5 years for the landscaping scheme to become fully established, and for the biodiversity net gains to be achieved. Therefore, that Condition 4 requires the tree planting to be carried out and maintained for a period of five years, does not negate the need to secure the maintenance and monitoring of the planting over a longer duration. It follows that Condition 6 is necessary to ensure that the landscaping and biodiversity enhancements put forward in the planning application can be secured in the longer term.

I recognise the concerns put forward by the appellant that the requirements of Condition 6 impose unnecessary costs and regulatory burdens on a small, family farming business. However, whilst the condition includes a list of matters that must be covered in the LEMP, it is not overly prescriptive or onerous in terms of how those criteria could be fulfilled. It is therefore entirely feasible that the condition could be discharged without undue cost and unnecessary bureaucracy. Therefore, I am not persuaded that the requirements of Condition 6 would prohibit the development from being implemented. In consequence, Condition 6 is precise and reasonable.

Furthermore, whilst I note the potential for future development proposals to come forward on the site, any such proposals are only speculative at this stage and there is very limited information before me about any potential schemes. In any event, any future planning applications would need to be considered on their own merits. Therefore, there is no substantive evidence before me to indicate that the long-term management of the landscaping proposals would prevent future development proposals from coming forward on the site.

Overall, I conclude that Condition 6 is necessary and reasonable in order to secure the proposed landscaping and biodiversity enhancements. Its removal would be contrary to Policy LPP63 of the LP, and the Framework, which require development proposals to protect and enhance the natural environment, habitats and biodiversity.

The appellant has referred to a previous approval for three shepherd’s huts with no condition for a LEMP. However, the shepherd’s huts permission appears to predate the adoption of the LP, and I have not been provided with the relevant, historic, policies. Therefore, the shepherd’s hut permission has not been determinative to my decision.

For the reasons given above the appeal should be dismissed.