Appeal 6001282

The appeal is dismissed.

The permission in principle (PiP) route provides an alternative means of obtaining planning permission for housing-led development. It comprises two stages. The first stage, relevant to this appeal, establishes whether a site is suitable in principle for the proposed land use and amount of development. The second stage, technical details consent (TDC), considers the detailed design, layout, mitigation and all other reserved matters.

The scope of PiP is therefore intentionally limited. At this stage, the decision must be confined to location, land use and amount. Conditions cannot be imposed, and detailed mitigation measures fall to be secured, where necessary, at the TDC stage.

Article 5B of the Town and Country Planning (Permission in Principle) Order 2017 (the Order) prevents the grant of PiP for development that constitutes “habitats development”. This includes development likely to have a significant effect on a European site, unless directly connected with its management. The competent authority must therefore consider whether the proposal is likely to have such an effect, and whether sufficient information exists to rule out adverse effects on site integrity.

The Shadow Habitats Regulations Assessment (sHRA) was submitted by the appellant for the first time at appeal. I have considered whether accepting this evidence would give rise to procedural unfairness. The document is proportionate, self-contained and does not rely on seasonal survey work or information that could not reasonably be verified by the Council. The Council has had a full opportunity to comment on the assessment during the appeal process, and no prejudice to its position has been identified. I have therefore taken into account the content of the sHRA when reaching my decision.

The main issue is whether sufficient information exists at the permission in principle stage to conclude that the proposal would not adversely affect the integrity of the Bath and Bradford on Avon Bat Special Area of Conservation (SAC), having regard to the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations).

The site lies within the [name] of the [name] (TWBMS), an area recognised as contributing to the ecological functioning of the Bath and Bradford on [name]. The SAC is designated for greater horseshoe, lesser horseshoe and Bechstein’s bats, and its conservation objectives require the maintenance and restoration of habitats essential to these species. Development within this zone therefore carries a heightened risk of undermining the SAC’s ecological integrity.

Regulation 63 of the Habitats Regulations imposes a strict legal test: permission may not be granted unless the competent authority can be certain that the proposal would not adversely affect the integrity of the SAC. This precautionary requirement is absolute. Where any uncertainty remains, permission must be refused.

The sHRA, prepared by a suitably qualified ecologist, identifies impact pathways relevant to the SAC’s qualifying species. While it records the absence of roosting features on the site, this does not remove the need for certainty regarding other potential effects. The identification of any credible pathway is sufficient to engage Regulation 63 and prevents the competent authority from concluding that the proposal falls outside the scope of habitats development.

The site does not contain strategic commuting corridors, but the absence of such features does not eliminate the identified risk. The retained vegetation along the northern and western boundaries, although not part of a known commuting route, remains susceptible to functional disturbance, and its presence contributes to the overall uncertainty regarding the site’s ecological role.

The foraging habitat present, although limited in extent and value, nonetheless forms part of the ecological baseline. Its partial suitability for lesser horseshoe bats means that its loss or alteration cannot be dismissed as ecologically irrelevant. The fragmented and peripheral nature of the habitat does not remove the need for certainty that its disturbance would not undermine the SAC’s conservation objectives.

The TWBMS sets out measures necessary to avoid adverse effects on the SAC, including lighting controls and strategic habitat contributions. None of these measures can be secured at the PiP stage. Because the proposal relies on mitigation that cannot lawfully be securing at this stage, the competent authority is left without the means to ensure that adverse effects would be avoided.

The sHRA identifies potential light spill affecting approximately 146 metres of retained vegetation. This constitutes a clear effect pathway to which the qualifying species are sensitive. In the absence of secured mitigation, the competent authority cannot exclude the possibility of adverse effects. The existence of this unresolved pathway means that the proposal fails the Regulation 63 test.

The Council’s reference to the absence of a financial contribution under the TWBMS further highlights the legal barrier. Where a proposal depends on a strategic habitat contribution to avoid adverse effects, and where such a contribution cannot be secured at PiP, the competent authority is legally prevented from concluding that the proposal would not harm the SAC.

Following Appropriate Assessment, I conclude that the appellant’s contention that the proposal is not likely to have a significant effect is dependent on mitigation that is not secure at this stage. Regardless of the housing supply situation and any benefits that may result from the development, it is, therefore, habitats development within the meaning of Article 5B of the Order. PiP cannot, therefore, be granted.