Appeal 6000749

The appeal is dismissed and permission in principle for a residential development of between 3 to 5 self-build and custom-build dwellings along the road frontage is refused.

The proposal is for permission in principle. The Planning Practice Guidance (PPG) advises that this is an alternative way of obtaining planning permission for housing-led development. The permission in principle (PIP) consent route has two stages: the first establishes whether a site is suitable in-principle and the second (technical details consent - TDC) is when the detailed development proposals are assessed. This appeal relates to the first of these two stages.

The scope of the considerations for permission in principle is limited to location, land use and the amount of development permitted. All other matters are considered as part of a subsequent TDC application, if permission in principle is granted.

The appeal relates to a planning application that was not determined by the Council within the prescribed period. I note that the Council would have refused permission in principle, should it have made a decision on the proposal.

Certain types of development are excluded from the grant of permission in principle. Habitat development is one such exclusion1 which is defined by Article 5B(5) of the Town and Country Planning (Permission in Principle) Order 2017 (as amended) (hereafter referred to as the Order) as including development, which discounting mitigation measures, is likely to have a significant effect on a qualifying 1 Article 5B(1)(b) of the Town and Country Planning (Permission in Principle) Order 2017 (as amended). European site under the Conservation of Habitats and Species Regulations 2017 (as amended) (hereafter referred to as the Habitats Regulations).

Having regard to my duties for the purposes of this appeal, as competent authority under the Habitats Regulations, an appropriate assessment should be undertaken at the outset to establish whether the development would adversely affect the integrity of the protected site. If the outcome of the appropriate assessment is unfavourable, it would preclude the grant of permission in principle.

The proposal is identified by the Council as falling within the buffer zone of the Bath and Bradford on Avon Bats Special Area of Conservation (SAC). The SAC covers a wide area of the Bath and [name] and Wiltshire Unitary Authority / County areas. The Habitat site is recognised for its national and international importance for nature conservation. Its qualifying features are its protected priority habitats and species including important populations of [name], [name], of which the SAC supports 15% of the UK population, and [name].

There is no overarching mitigation scheme for the effects of development on the SAC. Proposals should provide, with the application, site specific details of survey work which establishes the existing presence on and use of the application site by protected species, together with the species types and numbers. The information should establish the likely effect of the development on the protected species. Detailed mitigation measures should be submitted at the application stage, in accordance with the Bat Special Areas of Conservation (SAC) – Planning Guidance for Wiltshire document, produced by the Council in association with Natural England.

The evidence does not contain any baseline ecological surveys of the appeal site to demonstrate the presence of, use by, or type of protected species which may be affected by the proposals. No mitigation strategy or proposals were submitted with the application or have subsequently been submitted with the appeal.

The PIP application is for a range of between 3 to 5 new dwellings. The site is substantially open farmland, with mature field hedges with interspersed trees to three sides. These features may be used by Bats as roosting, foraging or commuting corridors. There is no evidence submitted to establish otherwise.

It is not possible at this stage to determine the full effects of the proposal on areas of these site features and habitats, and how much would be lost to provide vehicular and pedestrian access to the future dwellings. There is an existing access from the highway to the appeal site at its north-east corner which may, or may not, be used for future access to the appeal proposals at the TDC stage, subject to meeting visibility splay standards, which might limit loss of established habitat. However, this may result in significant areas of the site being used for access roadway, thereby resulting in a lack of sufficient space to accommodate the proposed dwellings.

By contrast, the use of individual access points to each future dwelling, could maintain sufficient land for the future dwellings but result in significant loss of the hedge and habitat to the road frontage boundary, to provide adequate vision splays. Either option, could significantly affect the habitat of the protected species.

The proposal would introduce between 3 and 5 new dwellings within the site, leading to the introduction of new built form, and the potential for domestic paraphernalia, gardens and vehicular movements, together with increased light levels and disturbance, which could detrimentally affect the protected species.

For the above reasons, I conclude that the appeal proposal has not demonstrated that it would not have, either alone, or in combination with other development, likely significant adverse effects on the SAC and its qualifying features. No mitigation measures have been included with the application, which would seek to mitigate any such likely significant effects. Accordingly, in accordance with Article 5B(5) of the Order, I find the proposal would represent habitats development.

Therefore, having carried out an appropriate assessment as competent authority under the Habitats Regulations, I have found the proposal to have a likely significant effect on the Bath and Bradford on [name] and its qualifying features. I have also found that the proposal would represent habitats development. Therefore, in accordance with Article 5B(1)(b) of the Town and Country Planning (Permission in Principle) Order 2017 (as amended), the appeal should be dismissed and permission in principle should be refused.

It therefore follows, that irrespective of the merits of the scheme, it is exempted from qualifying for permission in principle. It is therefore unnecessary to consider the matters of location, land use and amount of development any further, as they would not be determinative to the outcome of the case. Accordingly, the proposal must be rejected on procedural grounds.

For the reasons set out above, I conclude that the proposal is habitats development and as such, permission in principle cannot be granted on procedural grounds. Therefore, the appeal is dismissed and permission in principle is refused.