Appeal 6002377

The appeal is dismissed.

I have taken the description of development in the banner heading above from the Decision Notice of the Council as it describes the development in a more concise manner than that on the Application Form. Whilst there is no record of a formal agreement to the change in front of me, given that the appellant has utilised this description on their appeal form I am satisfied that neither party is prejudiced by this course of action.

The main issue is the effect of the proposal on biodiversity.

The appeal site is an undeveloped parcel of land within a residential area that includes a mix of shrubs, trees and hedgerows. It is clear to me that significant clearance would be required to facilitate the construction of the proposed dwelling.

Schedule 7A of the Town and Country Planning Act 1990 (as amended) (the Act) introduced a statutory framework for [name] (BNG) and it applies to all planning applications for non-major development submitted on or after 2 April

Under the statutory framework, subject to some exceptions, every grant of planning permission is deemed to have been granted subject to the [name] (BGC), which requires that at least a 10% increase in biodiversity value is met. It follows that the proposal is subject to the general BGC, as set out in the Act.

A BNG statement which includes a summary of the BNG metric has been provided with the appeal. The scheme as presented would result in an 89.02% net loss in hedgerow units and a 27.83% loss in habitat units. There is no evidence before me to suggest that this deficit could be realistically addressed on site.

The Planning Practice Guidance (PPG) states that it would generally be inappropriate for decision makers, when determining a planning application for a development subject to BNG, to refuse an application on the grounds that the BNG objective will not be met. However, the PPG continues that decision makers may need to consider more broadly whether the BNG condition is capable of being successfully discharged, with matters for consideration including the appropriate balance expected between on-site gains, off-site gains and the use of statutory biodiversity credits for the development, taking account of the [name].

In this case the 10% net gain would need to be delivered off-site on a registered site or through the purchase of statutory biodiversity credits. However, the appellant has confirmed that the development would be financially unviable if BNG requirements were met off-site. Given the statutory nature of BNG, viability arguments cannot be used to avoid compliance. Whilst the mandatory condition can be used to secure a gain, it can only be used where the decision maker is satisfied that the biodiversity gain objective can be met and the gain legally secured for a minimum of 30 years. For the reasons set out above, I am not satisfied BNG objectives can met in this instance.

To conclude, the proposal would fail to provide the statutorily required 10% BNG through either on-site or off-site provision and therefore would unacceptably harm biodiversity. The proposal would therefore be contrary to Policy SP29 of the East Staffordshire Local Plan 2015. This policy seeks, amongst other matters, to secure that development produces a net gain in biodiversity. Furthermore, the development is unable to meet its statutory duty as set within Schedule 7A of the Town and Country Planning Act 1990 (as amended).

The appellant contends that BNG matters should still be addressed via condition even if the appellant is not in a financial position to discharge any such condition at the current time. However, I cannot impose a condition without being satisfied that it could be complied with. In this instance, it has not been demonstrated that the appellant would be in a position to discharge the condition in the foreseeable future and therefore imposing such a condition would not be appropriate.

The appellant has been critical of how the application was handled by the local planning authority. However, in reaching my decision I have been concerned only with the planning merits of this case.

For the reasons given above, I find that the proposal would conflict with the development plan, read as a whole and would fail to meet statutory requirements as set within Schedule 7A of the Town and Country Planning Act 1990 (as amended). Therefore, the appeal is dismissed.