Appeal 6000928

The appeal is dismissed.

At the time of my site visit the overall development had been commenced and appeared to accord with the submitted plans, though the landscape features which are the subject of this appeal were not in place. For the avoidance of doubt, I have therefore determined the appeal based on the submitted plans.

My attention has been drawn to several non-material minor amendment (NMM) applications to planning consent 0292/24/VAR, the same consent which is the subject of this appeal. The first, 1496/25/NMM, was for the installation of pedestrian gates into the same plot numbers as the appeal application, together with the replacement of a section of fence with a [name] and the raising of the finished floor level of the garage to Plot 57. This was refused on 6 June 2025.

A further NMM application, 1801/25/NMM, consisted of the replacement of a section of fence with a [name] and the raising of the finished floor level of the garage to Plot 57. This was approved on 7 July 2025. However, the appellant has drawn my attention to the fact that the drawings approved on this NMM application, are the same as the drawings which are submitted in this appeal. They further note that the above NMM approval expressly requires the development to be carried out strictly in accordance with the approved drawings, which include the pedestrian access gates to the same residential plots.

Having examined the evidence, I note the approval notice issued by the Council for 1801/25/NMM, specifically notes in its ‘Informatives’ section, that the approval relates only to the non-material amendments sought in the application, namely the change of the section of fence to a [name], and the change to the finished floor level of the garage to Plot 57. Accordingly, whilst the same drawings may have been submitted and approved for the above NMM, the intention for the Council would appear clear that such approval does not relate to the installation of the access gates within the [name]. If the appellant believes otherwise, then it would be for the main parties to resolve this issue under a separate process. It is not within my remit, during an appeal against refusal to grant planning permission under section 73 of the Town and Country Planning Act 1990 (as amended), to determine anything other than the appeal in question.

The appeal site was previously noted as being within the South Hams Special Area of Conservation (SAC) [name] for [name]/SAC. The Senior Ecologist at Devon County Council (DCC) has stated that the [name] for the [name] hibernation roost does not now extend across the appeal site. She confirms it does, however, remain within the South Hams Special Area of Conservation (SAC) [name] (GHS) [name]. I have had regard to this in my determination of the appeal.

The appeal site forms part of a new residential development of 80 houses, known as [name], and located at [site address] , Dartington. The consented development includes a series of measures to avoid or mitigate potential impacts from residential development, to commuting or foraging bats associated with the South Hams Special Area of Conservation (SAC).

The measures include a wide dark ecological corridor, the retention of existing hedgerows, scrub and woodland habitat, and the creation of habitats which support bats, together with low levels of surrounding lighting from roads and properties. The management of the corridor has been approved via a Landscape and Ecological Management Plan that is proposed to be overseen by a management company and secured via a S.106 Agreement, which I comment on further in the other matters section of this decision.

The appeal proposal seeks the installation of pedestrian access gates from the residential curtilages of plots 57, 58, 69, 71, 72 and 73, through the Devon hedges which separate these plots, from the adjacent wide dark ecological corridor, to provide access for future occupiers.

Having regard to the above, the main issues are therefore, the effect of the above proposals on; (i) the ecological corridor, including the integrity of the South Hams Special Area of Conservation (SAC) [name] Zone; and (ii) the character and appearance of the area.

The appeal site lies within the South Hams Special Area of Conservation (SAC) [name] Zone. This is a qualifying European site under the Conservation of Habitats and Species Regulations 2017 (as amended) (hereafter referred to as the Habitats Regulations). The SAC is designated to protect the population of [name] (GHS), a rare and endangered protected species and to prevent damage to its foraging and commuting habitats.

The Habitats Regulations place a duty on me, as competent authority, to consider whether the proposal would be likely to have a significant effect on the integrity of the SAC, either alone, or in combination with other development.

The residential development at the appeal site was approved via an outline planning permission1 with a subsequent approval of reserved matters2. At the outline application stage, a Habitats Regulations Assessment (HRA) was carried out by the Council, having concluded that the development proposed could have a likely significant effect on bat foraging and commuting habitat. The HRA concluded that with the inclusion of several mitigation measures, it could ensure no adverse effect on the integrity of the SAC would result. This was subsequently agreed by Natural England.

The mitigation measures included the provision of an ecological, wide dark bat ecological corridor, avoidance of construction phase lighting, the location of operational buildings away from the corridor, restricting light spill entering the corridor, and the protection of all boundary hedges, trees and woodland. It required the submission of a Landscape Ecological Management Plan (LEMP), a Construction Ecological Management Plan (CEMP), a Woodland Management Plan (WMP) and a [name], together with compliance monitoring for these. The HRA considered the application in combination with other applications in the area, concluding that provided the mitigation measures were secured, there would be no likely adverse effects on the integrity of the SAC alone or in-combination with other proposals or projects.

The above mitigation measures were included within the reserved matters application, and were secured either by condition, or under a completed obligation under S106 of the Town and Country Planning Act 1990 (as amended) (the Act).

After commencement of development, the appellant submitted a section 73 application for the installation of a pedestrian access gate from the garden of Plot 79 though the [name]. This application was refused by the Council but was subsequently the subject of a successful appeal3. The justification for the Plot 79 gate was to provide access to an area of the ecological dark corridor for the purposes of establishing and maintaining beehives. The Inspector, having examined the evidence, found that a single gate for the purpose of the siting of beehives would not adversely affect the ecological corridor or have a likely significant harmful effect on the integrity of the SAC, due to the access being controlled by the management company, and the beehives potentially providing an ecological benefit to the biodiversity of the corridor.

This appeal proposal now seeks to insert 6 pedestrian access gates through the [name] which separate the residential curtilages from the ecological dark corridor, within plots 57, 58, 69, 71, 72 and 73. The appellant has submitted no justification for the need for these gates, other than that as a result of the approval of the gate to Plot 79, which the Inspector found to be acceptable in the previous appeal, the addition of further gates would have no further detrimental effect on the wide dark ecological corridor. 1 3842/20/OPA 2 4442/21/ARM 3 APP/K1128/W/24/3345036

The appellant has referred to the Building with Nature: Devon Technical Guidance – Maintaining dark corridors through the landscape for bats (January 2022), a document prepared by joint local authorities across Devon, Devon County Council and Natural England. They suggest this document gives support to dark corridors being part of the public realm rather than being separate, isolated corridors. They therefore contend that greater access to the ecological corridor would not go against this advice. The Council dispute this interpretation, noting that as a project specific HRA was carried out and a LEMP is in place for the development. Any amendment which undermines the mitigation established within these processes, would require a revised HRA and LEMP to demonstrate that they would have no likely significant harmful effects on the integrity of the SAC.

Having examined the submitted evidence, the wide dark ecological corridor is clearly required to mitigate the likely significant effects that the overall residential development would have on the SAC and its qualifying features. The ecological corridor is proposed to be sown with a mix of species of wildflower and grasses which would support the habitats for a variety of insects which would be prey for GHS bats. The importance of the corridor is therefore not just one of being a dark buffer corridor, but of being an important habitat which supports a protected and endangered species.

It has been confirmed that the grass and wildflower mixes proposed within the buffer corridor are chosen for their specific benefits for GHS bats, and that they would not stand up to repeated trampling under foot. Whilst the appellant avers that the access gates would be lockable, restricting access to the residents of the specified plots, and the ecological corridor would remain under the control of the management company, I find that this would be highly unlikely to provide sufficient control. The management company would be unlikely to be monitoring the corridor daily, and any misuse of the corridor by specific residents would be difficult to prove or control, unless CCTV or other such methods were employed. It would also be difficult to limit such use by condition that would meet the statutory tests contained in the Planning Practice Guidance (PPG) or the National Planning Policy Framework (the Framework).

The introduction of six further access gates directly from residential plots would encourage domestic use of the corridor, resulting in difficulty for the ecological corridor to fully establish to the point where it would provide ecological benefit, and would likely result in the degradation of the species planted and sown. Allowing this appeal would inevitably lead to subsequent further section 73 applications for further gates from other plots, which would be hard to resist, and likely result in the ecological corridor becoming further domesticated.

I find the proposal would not gain support from the Inspector’s decision on the previous appeal for an access gate from Plot 79, which was solely for the purposes of access to locate and maintain beehives, an act of development perceived as being beneficial to the ecological corridor, and not detrimental to GHS bats and the SAC. The proposal has no such beneficial justification.

Having regards to all of the above, and the duties placed on me by the Habitats Regulations, I cannot conclude that the introduction of six access gates into the wide dark ecological corridor, formed to mitigate the effects of the residential development on the SAC, would not have a likely significant harmful effect on the SAC and its qualifying features.

For the above reasons, I conclude that the proposal would have a harmful effect on the ecology corridor, including the integrity of the South Hams Special Area of Conservation Greater Horseshoe Bat Landscape [name]. Accordingly, it would be contrary to Policy DEV26 of the Plymouth & South-West Devon Joint Local Plan 2014-2034 (2019) (the JLP), which requires development, amongst other things, to support the protection, conservation, enhancement and restoration of biodiversity and to give the highest level of protection to [name], not permitting development unless it will not adversely affect the integrity of a European site, either alone or in combination.

The ecological corridor would be separated from the domestic gardens of the adjacent residential development by almost continuous [name], which almost encircle the development. There would be limited pedestrian and field access gates within these [name], primarily for the purpose of providing access for the management company responsible for the maintenance of the ecological corridor areas.

[name] would, within a relatively short period of time from construction, obtain a natural appearance consistent with other such hedges common within the county, and would support a variety of plant and wildlife, adding to the purpose and viability of the ecological corridor, and supporting the commuting corridor for GHS bats.

The proposal would result in a series of timber pedestrian access gates being inserted within the previously approved [name] from the gardens of several residential properties. Whilst the appellant considers that these would not be visible from the public realm, and would therefore be satisfactory, I find that the insertion of the gates from plots 69, 71, 72 and 73 would be readily visible from the existing housing on the adjacent [site address] . They would appear as a series of gates which would degrade the natural appearance of the [name], resulting in the domestication of their appearance.

Similarly, the gates proposed to be inserted adjacent to Plots 57 and 58, would be readily visible from the shared access road to these properties, as well as from properties in the existing [site address] estate which sits in an elevated position to the north, looking over this area. These gates would also introduce a more domestic aesthetic, degrading the natural appearance of the [name].

For the above reasons, I conclude that the proposal would harm the character and appearance of the [name] and therefore that of the area. It follows that it would therefore conflict with Policy DEV23 of the Plymouth & South-West Devon Joint Local Plan 2014-2034 (2019) (the JLP), which, amongst other things, requires development to conserve and enhance landscape, townscape and seascape character and scenic visual quality, avoiding significant and adverse landscape or visual impacts.

This appeal is against the Councils refusal to grant planning permission under section 73 of the Town and Country Planning Act 1990 (as amended) for the development of land without complying with conditions subject to which a previous planning permission was granted. That previous permission, Ref 0292/24/VAR, was itself granted via a successful appeal4 against the Council’s refusal of a section 73 application for planning permission without complying with a condition on permission Ref 4442/21/ARM, an approval of reserved matters associated with a previously approved outline planning permission, Ref 3842/20/OPA, which together, formed the original permission.

The outline planning permission was granted following a planning obligation securing certain financial contributions under Section 106 of the Town and Country Planning Act 1990 (as amended) (the S106 Agreement). Whilst the evidence submitted does not contain the S106 Agreement, the inspector’s Decision Letter for the previous appeal confirms that under the definition of “Permission”, the S106 Agreement clarifies that it relates to all approvals granted together with any planning permission subsequently granted under section 73 of the Act. It would, therefore, continue to apply to the permission Ref 0292/24/VAR, to which this appeal relates. I have, therefore, taken this into account in my determination.

For the reasons set out above, I conclude that the appeal proposal would conflict with the development plan, when read as a whole, and that there are no material considerations, including policies in the Framework, that would justify determining other than in accordance with the development plan. Therefore, the appeal should be dismissed.