Appeal 3357348

The appeal is dismissed.

An application for costs was made by [name] against Bath and North East Somerset Council. This application is the subject of a separate Decision.

Planning permission was granted by the Council on 30 October 2024 for the erection of a single storey dwelling following demolition of existing stable buildings1. The original permission included sixteen conditions. The appellant disputes one of those conditions (condition 7), which they consider to be unnecessary and unreasonable.

Disputed condition 7 requires the submission of a Biodiversity Gain Plan and a Habitat Management Plan for approval by the Council and their implementation in accordance with an agreed timetable. The Council’s reason for imposing the condition is to protect and enhance ecological interests in accordance with Policies D5(e), NE3, NE3A and NE5 of the Bath and North East Somerset Local Plan: [name] and Placemaking Plan incorporating the Local Plan Partial Update (adopted January 2023) (LP).

Bearing in mind this background, the main issue is whether disputed condition 7 is reasonable and necessary in the interests of biodiversity.

The appeal is proposed as a self-build dwelling. Planning Practice Guidance confirms that in order for self-build development to be exempt from [name] (BNG) rules, the development must consist of no more than nine dwellings, be on a site that has an area no larger than 0.5 hectares and consist exclusively of dwellings that are self-build or custom housebuilding as defined in Section 1(A1) of the Self-build and Custom Housebuilding Act 2015.

The appellant has suggested a planning condition to secure the proposal as a self-build so that the proposal would be exempt from the BNG requirements set out in Schedule 7A of the Town and Country Planning Act 1990 (inserted by the Environment Act 2021).

However, a planning condition requiring the initial owners of the proposed dwelling to be those that had built or completed it would not pass the National Planning Policy Framework’s enforceability test for conditions. A planning obligation would therefore be the most appropriate method of ensuring that the development is self or custom build housing rather than market housing.

Such a planning obligation is not before me so I cannot be certain that the proposal would provide self-build or custom housebuilding. Given the absence of a planning obligation to secure the appeal proposal as a self-build house, I am not satisfied that the proposed scheme would be exempt from the BNG rules. 1 Planning application reference 23/03709/FUL

In any event, there is a clear requirement of the development plan for harm to biodiversity to be mitigated and, where appropriate, compensated. Furthermore, the planning permission for the dwelling was granted, despite it being contrary to the Council’s spatial strategy, as there were benefits of the scheme that made it preferable to the fallback position created by an approved Class Q scheme for the conversion of the existing building to a dwelling2. The ecological enhancement resulting from the planting of trees in the adjacent field was part of the overall package of benefits arising from the appeal development.

As such, there would still be a need for a planning condition to be attached to the permission to secure the conservation and enhancement of biodiversity. However, as it has not been established that the proposal can be secured as a self or custom build dwelling, disputed condition 7 in its current form is reasonable and necessary.

For these reasons, I conclude that disputed condition 7 is reasonable and necessary in the interests of biodiversity. Consequently, the proposal would conflict with Policies D5(e), NE3, NE3A and NE5 of the LP, which collectively seek, in part, to secure no net loss and appropriate net gain of biodiversity, and for development to mitigate, and as a last resort, compensate harm to biodiversity to at least equivalent ecological value, make a positive contribution to ecological networks, and provide new or improved wildlife habitats and features.

For the reasons given above, the proposal would conflict with the development plan and the material considerations do not indicate that the appeal should be decided other than in accordance with it. As such, the appeal should be dismissed.