Appeal 6001998

The appeal is allowed and planning permission is granted for the installation of a [name], substation, underground cabling, access, landscaping and ancillary infrastructure & equipment to include water tower, security fence, acoustic fence & gates at Land at [address], Walsall [postcode] in accordance with the terms of the application, Ref 24/0853, and subject to the conditions set out in the schedule to this decision.

The main issues are: • the effect of the proposed development on flood risk, with particular regard to surface water; • whether the proposed development would be capable of delivering the minimum required net gain in biodiversity; and • the effect of the proposed development on trees.

The submitted evidence indicates that the risk of flooding on the appeal site from all sources is, at most, low. With regards to surface water flooding, much of the site is identified as being at very low risk, with only a small section on the edge of the site being at low risk. The maximum flood depth predicted in that area would be between 150-300mm, and most of it would remain undeveloped. The batteries, switch gear and substation would also not be positioned there and would thus be in the parts of the site with the lowest risk of flooding.

The available evidence indicates that the Council’s Flood Risk Management team/the Lead Local Flood Authority (LLFA) provided several sets of comments on the flood and drainage details submitted prior to the Council’s decision. This includes in response to the appellant’s first addendum to the Flood Risk Assessment (FRA) (dated 26 March 2025), which contained additional and updated flood risk and surface water drainage information. Following the decision notice being issued, a second FRA addendum (dated 26 November 2025) was submitted with the appeal.

However, the Council does not appear to have engaged with the latest details in that document. Nor has the LLFA provided any comment on it. As such, the Council’s appeal statement does not identify what, if any, shortcomings are considered to remain with respect to surface water flood risk. However, based on the evidence before me, including the two FRA addendums and the associated surface water drainage strategy and report, it seems to me that the LLFA’s requests for further details have now been sufficiently met and the concerns it raised adequately resolved. For example, the second FRA addendum, which contains an updated surface water drainage report, includes a 40% allowance for climate change and provides sufficient details, for this stage, on drainage methods (including pollution management), levels, exceedance events (and how any contaminated water would be contained onsite), and maintenance. Requiring what appears to essentially be a detailed surface water drainage strategy now is neither necessary nor reasonable, and a full strategy can be secured by condition.

For the above reasons, and subject to conditions securing full drainage details and a fire safety management plan (with regards to managing any potentially polluted surface water), I conclude that the proposed development would not unacceptably effect flood risk, with particular regard to surface water. I therefore find that it accords with Policy ENV5 of the Black Country Core Strategy which, amongst other aspects, seeks to minimise the probability and consequences of flooding. The proposal would also be consistent with the provisions in the National Planning Policy Framework (Framework) in relation to meeting the challenge of climate change, flooding and coastal change, including in relation to paragraph 164.

Under the statutory framework for biodiversity net gain (BNG), subject to some exceptions, every grant of planning permission is deemed to have been granted subject to the condition that the biodiversity gain objective is met (the ‘biodiversity gain condition’). The objective requires development to deliver at least a 10% increase in biodiversity value relative to the pre-development biodiversity value of the onsite habitat. The increase can be achieved through onsite biodiversity gains, registered offsite biodiversity gains or statutory biodiversity credits.

The proposed development is not exempt from the statutory framework for BNG. As such, it is subject to the biodiversity gain condition and, as set out in Article 7 of The Town and Country Planning (Development Management Procedure) (England) Order 2015, the minimum information requirements. It is not alleged that the minimum information requirements have not been met. Based on the available evidence, including the details in the application form and the appellant’s Biodiversity Net Gain Plan (January 2025), I have no reason to disagree.

To achieve the minimum 10% increase in biodiversity, which does not have to be exclusively onsite, the appellant intends to enhance some existing onsite grassland habitat and purchase some registered offsite units. I recognise that there is some doubt that the enhanced onsite habitats could achieve the good/moderate conditions targeted and that a lower condition would be likely to require other onsite gains or purchasing further offsite units for example. The submitted biodiversity metric does also not include the area of scrub as part of the pre-development biodiversity value of the onsite habitat, despite the site clearly containing trees (and the development leading to the removal of several of them).

Nevertheless, these are matters to be dealt with via the final biodiversity gain plan (BGP), which should include the pre-development biodiversity value of the on-site habitat, as per paragraph 14(2) of Schedule 7A of the Act. The BGP is secured under the deemed biodiversity gain condition. The Planning Practice Guidance (PPG) also identifies that the application of the [name] is to be taken into account when determining whether to approve the BGP rather than at this stage. In any event, with the intention to provide some onsite gains, it is clear that the appellant has not moved straight to relying on registered offsite units or statutory credits.

Accordingly, and on the basis of the available evidence, I am satisfied that the biodiversity gain condition is capable of being successfully discharged. Imposing an additional condition on the permission to secure a Landscape and Ecological Management Plan would also be sufficient to obtain, amongst other aspects, details related to monitoring and management of onsite habitats.

For the above reasons, I conclude that the proposed development would be capable of delivering the minimum required net gain in biodiversity. I therefore find that it accords with Policy ENV23 of the Walsall Unitary Development Plan (UDP) which, amongst other aspects, seeks enhancement of the natural environment.

In relation to this main issue, the Council has also referred to part a) of Framework paragraph 193. That sets out that planning permission should be refused if significant harm to biodiversity cannot be avoided, adequately mitigated or compensated. However, it has not been alleged that the proposed development would result in significant harm to biodiversity. The submitted evidence does not indicate otherwise, and conditions covering lighting details and boxes for birds and bats would ensure the development would not harm those species. Given this main issue relates to BNG, it seems to me that part d) of paragraph 193 is also more pertinent; and the proposed development does include some onsite habitat enhancement as well as some tree planting (a measure which could, it appears, also be accounted for in the calculations as part of the final BGP).

The Council’s second refusal reason also alleges a lack of tree protection measures. However, the submitted arboricultural impact assessment (AIA) identifies that the proposed security fencing around the site’s perimeter would serve as tree protection for retained trees. The AIA also identifies the necessary production of a detailed arboricultural method statement and tree protection plan prior to the development commencing. These can be secured by condition.

For the above reasons, I conclude that the proposed development would not unacceptably harm trees. I therefore find that it accords with [name] ENV18 and ENV23. Amongst other aspects, these seek to protect mature/semi-mature trees and expect losses to be minimised.

With regards to the second reason for refusal, which covers both BNG and trees, the Council’s Decision Notice also alleges a conflict with UDP Policy ENV14. However, as my attention has not been drawn to any words in that policy that are relevant to either issue, it has not been determinative in my decision.

I have had regard to the various suggested planning conditions and considered them against the tests in the Framework and the advice in the PPG. I have made such amendments as necessary to comply with those documents and for clarity and consistency. The pre-commencement conditions I have included are all matters which are fundamental to be resolved prior to development commencing. However, I have not included all details in some of the conditions suggested because the parties can discuss and agree such aspects at the relevant time.

In addition to the time limit condition, I have imposed a condition requiring the carrying out of the development in accordance with the approved plans in the interests of certainty. Condition 3, which covers the Council’s third, fourth and fifth suggested conditions, is necessary to ensure the permission is time limited and the development is subsequently decommissioned and the site restored.

Covering two of the Council’s suggested conditions, condition 4 is necessary to ensure that no works commence until a scheme is in place to safeguard highway safety, public amenity, drainage, the environment and wildlife during construction. Condition 5 is necessary with regards to flood risk and water quality. However, I have rejected the appellant’s alternative timing clause because it is necessary to confirm the provision of a suitable drainage scheme prior to commencement of development, and such a condition is suggested in the second FRA addendum.

Covering two of the Council’s suggested conditions, condition 6 is necessary with regards to protecting and enhancing biodiversity. Condition 7 is necessary in relation to protecting retained trees, in the interests of the natural environment and visual amenity. This condition goes further than that suggested by the Council on the basis that full, final details of tree protection measures and working methods are required before the development commences, as proposed by the submitted AIA. Although not included in the Council’s suggested list of conditions, in the interests of public health I have imposed condition 8 because the site is in an area previously used for a coal-fired power station and elevated levels of ground gas, requiring various measures to be implemented, have been found on adjacent sites.

Condition 9 is necessary with regards to highway safety. However, I have not included reference to drainage in the condition because this matter is covered by other conditions. Condition 10 is necessary with respect to character and appearance. Condition 11 is necessary to ensure that suitable fire safety management procedures are provided in the interests of health, safety and the environment. Furthermore, as the details secured by conditions 10 and 11 are not needed in relation to all construction works, I have amended the wording so that neither are pre-commencement conditions.

Condition 12 is necessary with regards to character and appearance. Condition 13 is necessary for the same reasons and in the interests of the environment. However, I have not imposed the Council’s suggested conditions covering site levels, soil management and site security because the justifications provided do not demonstrate that they are necessary to make the development acceptable. Furthermore, site levels are covered by other conditions where relevant whilst site security would be provided by the proposed CCTV and boundary treatment.

For the above reasons, and having had regard to all other matters raised, I conclude that the proposed development accords with the development plan as a whole. The appeal is therefore allowed.

The development hereby permitted shall begin not later than three years from the date of this decision.

The development hereby permitted shall be carried out in accordance with the following approved plans: Site location plan ([name] AEM007-SP-01); Site layout plan ([name] AEM007-PL-03, Rev 03); Planting plan (Drawing 3726.001, [name]); 33kV substation ([name] AEM007-SD-01, Rev 02); 40ft customer switchgear ([name] AEM007-SD-02, Rev 02); 20ft Spare parts container ([name] AEM007-SD-03, Rev 02); Twin skid ([name] AEM007- SD-04, Rev 02); Compact skid ([name] AEM007-SD-05, Rev 02); PCSK inverter ([name] AEM007-SD-06-Rev 02); [name] ([name] AEM007- SD-07, Rev 02); 240,000L water tank ([name] AEM007-SD-08, Rev 02); Water hydrant ([name] AEM007-SD-09, Rev 02); Security fence and gate ([name] AEM007-SD-10, Rev 01); Acoustic fence ([name] AEM007-SD-11, Rev 01); CCTV camera and post ([name] AEM007-SD-12, Rev 01); and Access track ([name] AEM007-SD-13, Rev 01).

The permission hereby granted shall be limited to a period of 40 years from the date when electricity is first stored from or distributed to the electricity network (whichever is first) ([name]). Written confirmation of the [name] shall be given to the local planning authority within 14 days of the [name]. Within 12 months of the expiry of this permission or the development ceasing to store electricity and distribute it to the electricity network for a continuous period of 12 months (whichever is sooner), the development and associated infrastructure shall be dismantled and removed from the site and the land restored in accordance with a decommissioning and restoration scheme that shall first have been submitted to and approved in writing by the local planning authority.

No development shall commence until a Construction, Environmental and [name] (CESWMS) has been submitted to and approved in writing by the Local Planning Authority. The approved CESWMP shall be adhered to and implemented throughout the construction period in accordance with the approved details.

No development shall commence until a detailed surface water drainage scheme for the site, in general conformity with submitted [name] (dated October 2025, by [name]) and based on sustainable drainage principles and an assessment of the hydrological and hydrogeological context of the development, has been submitted to and approved in writing by the local planning authority. The submitted details shall include: i) A detailed drainage plan including infiltration testing results where necessary, cover levels, invert levels, proposed SuDS, existing and proposed discharge rate calculations, and the discharge rate restricted to greenfield run off rates. ii) Full background calculations ([name] or similar) to demonstrate the performance of the drainage scheme for a range of return periods and storm durations, including accounting for 40% climate change return periods. iii) Supporting information to demonstrate that sufficient water quality measures have been incorporated into the design for all sources of runoff. iv) Exceedance plans illustrating flooded areas and flow paths of all hardstanding and soft landscaping in the event of exceedance of the drainage system including drainage levels. v) A timetable for implementation of the drainage scheme. vi) A management and maintenance plan demonstrating that the drainage scheme will be managed and maintained for the lifetime of the development. The plan shall include a schedule of activities and the frequency of each, and the details of the party/parties responsible for the management and maintenance of the scheme.

No development shall commence until a Landscape and Ecological Management Plan (LEMP), in general conformity with the Preliminary Ecological Impact Assessment (dated May 2023, by [name]) and Biodiversity Net Gain Plan (dated January 2025, by [name]) has been submitted to and approved in writing by the local planning authority. The LEMP shall include: i) a description and evaluation of retained/enhanced/new features to be managed; ii) ecological trends and constraints on the site that might influence management; iii) aims and objectives of management; iv) appropriate management options; v) prescriptions for management actions; vi) preparation of a work schedule; vii) details of implementation and delivery organisation(s) and how the long-term implementation of the plan will be secured; viii) monitoring and remedial measures and a timetable for submission of monitoring and remedial reports covering the monitoring and remedial work undertaken during lifetime of the development; and ix) the locations and installation of bat and bird boxes. The development shall be carried out in accordance with the approved details and the monitoring and remedial reports submitted to the local planning authority in accordance with the agreed timetable.

No development shall commence until a scheme for the protection of the retained trees (the finalised tree protection plan) and the appropriate working methods (the detailed arboricultural method statement), in accordance with paragraphs 5.5 and 6.1 of [name] 5837: Trees in relation to design, demolition and construction - Recommendations (or in an equivalent [name] if replaced), has been submitted to and approved in writing by the local planning authority. The scheme for the protection of the retained trees shall be carried out as approved. In this condition "retained tree" means an existing tree which is to be retained in accordance with the approved plans and the Arboricultural Impact Assessment (dated July 2024, by [name]) and its tree retention and removal plan ([name]_5781_02, dated 08/07/2024).

No development shall commence until an assessment of the risks posed by any contamination, carried out in accordance with [name] 10175: Investigation of potentially contaminated sites - Code of Practice and the Environment Agency‚ [name] (LCRM) (or equivalent [name] and [name] if replaced), has been submitted to and approved in writing by the local planning authority. If any contamination is found, no development shall take place until: i. a report specifying the measures to be taken, including the timescale, to remediate the site to render it suitable for the development hereby permitted has been submitted to and approved in writing by the local planning authority; ii. the site has been remediated in accordance with the approved measures and timescale; and iii. a verification report has been submitted to and approved in writing by the local planning authority. If, during the course of development, any contamination is found which has not been previously identified, work shall be suspended until: i. additional measures for the remediation of the site have been carried out in accordance with details that shall first have been submitted to and approved in writing by the local planning authority; and ii. a verification report for all the remediation works has been submitted to and approved in writing by the local planning authority.

With the exception of site clearance and the provision of the tree protection measures detailed in condition 7, no other development shall commence until details of vehicular and pedestrian accesses, turning areas and parking facilities have been submitted to and approved in writing by the local planning authority. The development shall not be brought into [name] until the approved accesses, turning areas and parking facilities have been provided, which shall thereafter be retained for the lifetime of the development and shall not be used for any purposes other than for access, turning and parking respectively.

With the exception of the installation of the tree protection measures, no other development above ground level shall take place until full details of hard and soft landscape works have been submitted to and approved in writing by the local planning authority. The details shall include: a plant schedule to comprise species, sizes, numbers and density; planting specification; details of tree pits; plant protection measures to prevent damage from animals; hard surfacing materials; existing and proposed finished levels; all boundary treatments; and an implementation programme. The landscaping works shall be carried out in accordance with the approved details and the agreed implementation programme. If within a period of 10 years from the date of the planting of any tree, shrub or plant, that tree, shrub or plant, or any tree shrub or plant planted in replacement for it, is removed, uprooted, destroyed or dies and/or becomes seriously damaged or diseased in that period, another tree, shrub or plant of the same species and size as that originally planted shall be planted at the same place.

With the exception of the installation of the tree protection measures, no other development above ground level shall take place until take place until a Fire Safety Management Plan (FSMP) has been submitted to and approved in writing by the local planning authority. Prior to [name] of the development, the measures contained in the FSMP shall be implemented and thereafter retained and maintained for the lifetime of the development.

Prior to their installation, details of the proposed finished floor levels and exterior finish (including colour) of all buildings, equipment/apparatus and other structures hereby permitted shall be submitted to and approved in writing by the local planning authority. The submitted floor level details shall be measured against a fixed datum and shall show the existing and finished ground levels, eaves and ridge heights of surrounding properties. The development shall be carried out in accordance with the approved details and thereafter retained for the lifetime of the development.

Prior to the installation of any external lighting on the site, full details including height, design, location and intensity shall be submitted to and approved in writing by the local planning authority. The lighting installation shall then be carried out in accordance with the approved details. END OF SCHEDULE