Appeal 6002521

The appeal is dismissed and planning permission is refused.

I have used the description of the proposal as set out in the appeal form, which is more concise than that used in the application form. I am satisfied that no party would be prejudiced as a result.

The appeal results from the failure of the Council to determine the application within the prescribed period and so there is no formal Decision Notice. However, the Council’s Statement of Case sets out the reasons why planning permission would have been refused had it been empowered to do so. I have determined the appeal on this basis.

The main issue is whether sufficient information has been provided to demonstrate that an exemption from the requirements of [name] (BNG) applies to the proposal, and its effect on biodiversity.

The site consists of a gateway entrance to a field. It is located off the fast, busy A361. The proposal seeks to create a new vehicular and pedestrian access, set back from the road, together with fencing and areas of hard surface. This would necessitate the relocation of a length of existing hedgerow to be behind the new entrance splays.

The application form states that the BNG condition does not apply because it is subject to the de minimis exemption of development below the threshold. This requires that the proposal does not impact a priority habitat, consists of less than [address] metres of onsite habitat, and contains less than five metres of linear habitats such as hedgerows. All of these criteria need to be met for the exemption to be satisfied.

The application includes an ecological survey. Despite this, there is insufficient detail to be sure that the hedgerows to be removed do not qualify as a priority habitat. The Council’s undisputed calculations are that the area of onsite habitat grassland affected would be greater than [address] metres. The length of hedgerow to be transplanted would exceed five metres in length. It follows that the proposal does not demonstrably meet any of the criteria for the BNG exception.

The current hedgerow has limited thickness, and only a relatively small area of grassland would be lost. The proposal may allow extra cover for nesting birds and small mammals, and provide them with better protection from wind and hedge-cutting activities. Against that, hedgerow translocation can result in a reduction in its condition, for instance because of root disturbance, soil structure changes, and altered connectivity. The appellants’ ecology report gives advice about how the proposal could avoid or minimise harm to protected species. However, it also recommends that a BNG assessment is undertaken, but none has been provided.

For the reasons given, I conclude that the proposal is not exempt from BNG and so is subject to the biodiversity gain condition, together with the minimum information requirements set out in the Planning Practice Guidance1. In the absence of this, the biodiversity gain objective would not be met, and so I cannot be satisfied that the proposal would be acceptable with regard to this matter.

The appellants have made other ecological improvements at the farm, such as the planting of trees. As well as bee farming and food production, they intend to create a small lake, and to install nesting boxes. That said, these benefits have not been quantified for the purposes of the biodiversity metric. As such, I do not have enough data to show that they would result in sufficient biodiversity net gains to justify the proposal.

For the reasons given above, insufficient information has been provided to demonstrate that an exemption from BNG requirements applies to the proposal, and so it could well have a harmful effect on biodiversity or provide insufficient gains. On this basis, it would conflict with policy D20 of the Sedgemoor Local Plan, adopted February 2019, which requires proposals to maintain and where appropriate enhance biodiversity and geodiversity.

The proposal would provide improved visibility for vehicle drivers when leaving the site, and would allow vehicles to pull in off the road while the entrance gate is opened or closed. The hard surface would reduce or prevent mud being left on the highway. The Highway Authority has not objected to the proposal, and it would result in road safety benefits.

Agriculture is an important industry facing difficult circumstances and the appellants intend to provide good quality food to the local community. The installation of a more secure gate would help to deter crime, which has been a recent problem. However, the relevant legislation2 makes clear that the BNG 1 Paragraph: 011 [name]: 74-011-20240214 2 Schedule 7A of the Town and Country Planning Act 1990 as inserted by Schedule 14 of the Environment Act 2021. requirements are mandatory, and so must be followed regardless of the highways and other benefits of the proposal.

The appellants have expressed concern about how the planning application was handled by the Council. They say that it has made unnecessary and expensive requirements, did not visit the farm despite requests, and has failed to make a decision within the determination period. Nevertheless, my focus is on the planning merits of the appeal proposal, rather than how the application was dealt with.

For the reasons given, there would be conflict with the Development Plan, read as a whole. The material considerations identified do not indicate a decision otherwise than in accordance with it, or overcome the conflict with the legislation. I therefore conclude that the appeal must be dismissed and planning permission refused.