Appeal 6001360

The appeal is dismissed.

A signed planning obligation under Section 106 of the Town and Country Planning Act 1990 (as amended) was submitted as part of the appeal. I return to this matter later in my decision.

The main issue is the effect of the proposal on the integrity of the Thames Basin Heath Special Protection Area (TBHSPA).

The appeal site is located within 400m of Bramshill Site of Special Scientific Interest, which is part of the TBHSPA, as designated under the Conservation of Habitats and Species Regulations 2017. The TBHSPA comprises a mix of heathland, scrub and woodland which supports important breeding bird populations including Nightjar, Woodlark and [name]. The conservation objectives of the TBHSPA include maintaining or restoring the birds’ habitats, along with the processes upon which they rely and the population and distribution of the birds.

These birds nest on the ground and as such are particularly vulnerable to predation or disturbance including as a result of increased recreational pressure, cat predation, fire risk and urbanising effects.

The Thames Basin Heaths Special Protection Area Delivery Framework established a 400m exclusion zone around the TBHSPA. This zone is set at 400m linear distance from the TBHSPA boundary. Policy NBE3 of the Hart Local Plan (Strategy and Sites) 2032 (LP) states that in the exclusion zone permission will not be granted for development that results in a net increase in residential units unless it can be demonstrated through an Appropriate Assessment that there will be no adverse effect on the integrity of the TBHSPA.

The appeal scheme would result in a net increase of one residential unit within the exclusion zone, approximately 120m from the boundary of the TBHSPA. Although the proposed dwelling would be for a farm worker, it is likely that they, and any family members would wish to spend leisure time away from their place of work. Given the proximity of the TBHSPA it is very likely that recreational walking, would occur in this area. As such the occupation of the dwelling would increase recreational pressure within the TBHSPA, along with domestic activity including noise, disturbance, light and pet ownership which would be likely to disturb or harm the bird population therein.

The appellant contends that the appeal site has been used in connection with equestrian activity, including the riding of horses in the TBHSPA with dogs in tow and that the proposal would reduce activity in the area. Insufficient evidence has been provided in respect of the regularity or intensity of this activity to allow an accurate comparison. However, in any event, the residential use of the site would be likely to result in frequent occurrences of recreational pressure within the TBHSPA as well as domestic activities nearby as a result of continuous occupation, which would not otherwise occur.

Consequently, the proposal would result in adverse effects on the integrity of the TBHSPA, both alone and in combination with any other residential development in the Zone of Influence.

Measures which seek to mitigate the effects of the proposal on the TBHSPA are proposed by way of a planning obligation. These include the provision of Suitable Alternative Natural Greenspace (SANG) on a site known as [name] and the payment of a contribution to the [name] and Monitoring (SAMM) tariff. However, for SANG to be effective, it would need to be nearer to the proposed development site than the TBHSPA. It is unlikely that residents of the appeal site would regularly opt to travel to the SANG land for recreation purposes in preference to locations nearer to the appeal site, including within the TBHSPA. As such I am not convinced that the proposed provision of SANG would effectively mitigate the effects of recreational pressure.

The obligation includes a requirement that no domestic cats and no more than one domestic dog be kept on the land. However, such an obligation seeks to control personal behaviour and could not realistically be enforced. Were the occupiers to acquire more than one dog or a cat it is unlikely that the Council would become aware or that this would be apparent even if the Council were able to routinely visit the site. As such the obligation would not effectively mitigate the harm which would occur as a result of bird predation, or the recreational pressure which would come about including dog walking. Obligations in relation to fires, amplified sound and lighting would not fully mitigate the harm to the integrity of the TBHSPA as they would not resolve issues around recreational pressure and predation.

The obligations in respect of the restoration of the pond and the planting of an area with wild bird seed, would enhance biodiversity on the site itself. However, I have no certainty that these measures would be appropriate for the birds which comprise the qualifying features of the TBHSPA such that they would adequately compensate for any harm which would occur. Furthermore, if the protected birds were to be attracted to the pond or area of new planting they would be in even closer proximity to domestic and farming activity and more vulnerable to pet predation.

Overall, I am not satisfied that these obligations would have the effect of fully mitigating the harm to the integrity of the TBHSPA which would otherwise occur.

As the Competent Authority, I have exercised my own judgement in coming to this view. However, I am also mindful that Natural England (NE) object to the proposal and are of the view that the mitigation measures are unlikely to protect the integrity of the TBHSPA. I give the opinion of NE considerable weight. Having considered the implications of the proposal through an Appropriate Assessment, and in applying the precautionary principle, I am unable to determine, beyond all reasonable scientific doubt that an adverse effect on the integrity of the TBHSPA can be ruled out.

I conclude that the proposal would result in harm to the integrity of the TBHSPA. It would therefore conflict with Policy NBE3 of the LP and Saved Policy NRM6 of The South East Plan ([name] 2009). Together these policies seek to ensure that proposals do not result in harm to the integrity of the TBHSPA.

I have been provided with a copy of an appeal decision which relates to 36 appeals at [address], and other sites which lie partly in the exclusion zone. [name] have not been provided with full details of these appeals, I note that a comprehensive package of mitigation was proposed including barriers to prevent entry to the TBHSPA, a new nature reserve within the TBHSPA and SANG located between the site and the TBHSPA. Furthermore, [address] is a mansion within large, private grounds within which to recreate. The appeal property would have a modest garden and would be located on a working farm which would not offer the same degree of recreational opportunities. Consequently, the circumstances of the [address] appeal were very different to the appeal which is before me, and it is of limited relevance to my decision.

I recognise that the agricultural workers dwelling is proposed on a temporary basis of three years. However, even if I were to allow the appeal for a short period of time, the harm which would occur in respect of the integrity of the TBHSPA would be significant and as such this would not address my concerns.

The appellant contends that there are no reasonable alternatives to the proposal. However, even if this were the case there are no credible reasons to believe that there would be ‘imperative reasons of overriding public interest’ which would justify the scheme as required by the habitats regulations.

The proposal would result in a small contribution of one dwelling, in the context of a lack of five-year housing land supply. However, the National Planning Policy Framework is clear at paragraph 195 that the presumption in favour of sustainable development does not apply where the plan or project is likely to have a significant effect on a habitats site (either alone or in combination with other plans or projects), unless an appropriate assessment has concluded that the plan or project will not adversely affect the integrity of the habitats site, which is not the case here.

Nevertheless, I recognise that in addition to the provision of a dwelling the proposal would result in other benefits including biodiversity enhancements within the site, landscaping and securing a use for the land. The proposal would provide minor economic and social benefits through the construction and occupation of the dwelling and the establishment of a rural enterprise. However, these benefits are not of sufficient magnitude to outweigh the harm which I have identified in respect of habitat sites.

The proposal conflicts with the development plan taken as a whole and the material considerations including the Framework do not indicate that the appeal should be decided other than in accordance with it.

Therefore, for the reasons given above the appeal is dismissed.