Appeal 6000750

The appeal is dismissed.

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 consent route has 2 stages: the first stage (permission in principle stage) establishes whether a site is suitable in principle and the second stage (‘technical details consent’) is when the detailed development proposals are assessed. This appeal relates to the first of these 2 stages.

The scope of the considerations for permission in principle is limited to location, land use and the amount of development permitted, as set out in the PPG. All other matters are considered as part of a subsequent [name] application if permission in principle is granted. I have determined the appeal accordingly and considered the illustrative site plan and section plan as indicative only.

The main issues are whether the site is suitable for residential development, having regard to its location, land use, and the amount of development, with particular regard to: • the effect on the River Wye Special Area of Conservation (SAC) and, • the character and appearance of the surrounding area.

Article 5B(1) of the Town and Country (Permission in Principle) Order 2017 (as amended) provides that permission in principle cannot be given for habitats development. This is defined in Article 5B(5) of the Order as development which is likely to have a significant effect on a European site1 either alone or in combination with other plans and projects and is not directly connected with or necessary for the management of the site. If a proposed permission in principle development is likely to have a significant effect on a qualifying European site without any mitigating measures in place, an Appropriate Assessment (AA) must be undertaken by the competent authority to establish whether the development would adversely affect the integrity of the protected site.

Even if the appeal site is over 20km from the [name], it is within the catchment area for the [name], which is part of the [name]. The SAC is identified under the Habitats Regulations as being of international importance for its aquatic flora and fauna. There are a number of qualifying species in the SAC, which include white clawed crayfish, sea lamprey, brook lamprey, river lamprey, alis shad, twaite shad, Atlantic salmon, bullhead and otter. Additionally, qualifying habitats of the SAC include transition mires and quaking bogs and water course of plain to montane levels with Ranunculion fluitantis and Callitricho-Batrachion vegetation (rivers with floating vegetation often dominated by water-crowfoot).

The present condition status of the [name] is unfavourable-declining, with the [name] component of [name] catchment in an unfavourable condition due to phosphates. In such areas any additional development that would result in a net increase in population served by a wastewater system, would require suitable mitigation measures to avoid further nutrient pollution. Consequently, the proposed dwelling would have likely significant effects on the integrity of the [name] due to nutrient pollution. Therefore, I must undertake an AA in accordance with Regulation 63 of the Habitats Regulations.

To mitigate the effects of the proposed development on the SAC, the appellant proposes either a [name] package treatment plant to treat water discharge before discharging to the [name] sewer, or a suitable package treatment plant to retain all water discharge on-site that would meet relevant compliant standards. Additionally, aligned with the approach accepted by the Council when planning permission was granted for the 2 dwellings on the wider site (Council ref 214123), if deemed necessary, the appellant would purchase phosphate credits from the Council towards the [name] scheme.

While the 2 dwellings were granted planning permission subject to conditions, including to restrict the occupation of the dwellings until the Tarrington integrated wetland scheme could provide effective mitigation for the effects of that development on the [name], the PPG sets out that it is not possible to impose conditions on a permission in principle. Therefore, I have considered the appeal proposal based on its own merits.

The evidence provided does not include substantive drainage design details to demonstrate that the proposed development would not cause nutrient pollution, harmful to the integrity of the SAC. Also, I have no substantive evidence that phosphate credits can and have been purchased in respect of the proposed development, to ensure such appropriate SAC mitigation measures would be secured for the proposed dwelling. 1 As defined by Regulation 8 of the Conservation of Species and Habitats Regulations 2017 (as amended) (the Habitat Regulations)

[name] set out there is capacity within the sewage network; to accommodate the foul drainage from the proposed dwelling and the appeal site is not within an area identified to be at high risk of flooding. Also, it is proposed that water butts would intercept water from downpipes, permeable hardstanding used for parking areas and the internal water facilities of the new dwelling would be fitted with efficiency measures. However, despite such matters and that the proposal is for one dwelling, based on the evidence provided and that there is no mechanism is in place to secure the SAC mitigation measures, I cannot be certain the proposed development would not have an adverse effect on the integrity of the [name]. In such circumstances, I must dismiss the appeal on the basis it does not comply with Article 5B(1) of the Habitats Regulations.

For the same reasons, the proposal would not accord with Policies SS6, LD2 and SD4 of the Herefordshire Local Plan Core Strategy (October 2015) which, amongst other matters, require development proposals to conserve and enhance environmental assets, including the biodiversity of sites and species of European importance.

In view of my findings above, that the appeal must be dismissed having regard to the Habitats Regulations, it is not necessary for me to go on to consider the effect of the proposal on the character and appearance of the surrounding area or any

I have found that the proposal would constitute habitats development which is exempted from permission in principle under Article 5B(1) of the Order. Consequently, permission in principle cannot be granted.

It is undisputed that the Council cannot demonstrate a 5 year supply of housing land, stated to be just over 3 years, and there would be other social and economic benefits from the construction and occupation of the new dwelling. However, Footnote 7 of the National Planning Policy Framework provides a strong reason for refusing the proposed development. Consequently, the presumption in favour of sustainable development set out in paragraph 11d) ii does not apply.

In conclusion, for the reasons given above, the proposal conflicts with the development plan and the material considerations, including the protection afforded by Footnote 7 of the Framework, do not indicate that the appeal should be decided other than in accordance with it.

Accordingly, the appeal should be dismissed.