Appeal 6003059

The appeal is dismissed.

The proposal is for permission in principle. Planning Practice Guidance (PPG) advises that this is an alternative way of obtaining planning permission for housing-led development. The permission in principle consent route has two stages: the first stage (or permission in principle stage) establishes whether a site is suitable in-principle, and the second (technical details consent) stage is when the detailed development proposals are assessed. This appeal relates to the first of these two stages.

Article 5B of the Town and Country Planning (Permission in Principle) Order 2017 (as amended) (the Order) sets out that permission in principle must not be granted for development which is habitats development. This is defined in Article 5B(5)(a) and (b) of the Order as including development which is likely to have a significant effect on a European site (either alone or in combination with other plans or projects) and is not directly connected with or necessary to the management of the site; and for which the competent authority has not given consent, permission or other authorisation in accordance with regulation 63 of the Conservation of Habitats and Species Regulations 2017(as amended) (the Regulations).

Regulation 63 prevents the competent authority from granting permission unless the proposal would not adversely affect the integrity of the European site. I am the competent authority for the purposes of this appeal.

In accordance with the order and having regard to the planning practice guidance, in circumstances where a proposed permission in principle development is likely to have a significant effect on a qualifying European site the scheme would be deemed habitats development unless suitable mitigation measures are in place. An Appropriate Assessment (AA) must be carried out and if the outcome of the AA is unfavourable, it would preclude the grant of permission in principle.

The proposal site comprises a broadly rectangular, grassed parcel of land located to the rear of existing dwellings fronting [address] and [address]. Hedgerows enclose the appeal site to the north, west and south. Several trees stand within or next to these boundaries and immediately adjacent to these, further field boundaries form hedgerows enclosing tracts of grassland, with woodland areas a short distance from the public footpath.

The appeal site is located within the [name] (CZ) band C, as set out in the Mells Valley Special Area of Conservation (SAC) Guidance on Development document, Version 2.1 dated May 20191 (the Guidance). The guidance relates to the potential impact of development on the SAC bats, and outlines that the varying sizes of the CZ’s are qualified by an accumulation of data, including radio tracking reports and studies of maternity roosts within the SAC.

The SAC is protected as a European Site of Nature Conservation Importance subject to statutory protection through the Conservation of Habitats and Species Regulations 2017 (as amended)(the Regulations). The ecological characteristics associated with the qualifying features of the SAC, include its significant population of [name] bats. The conservation objectives of the SAC are to ensure that it contributes to achieving the favourable conservation status of its qualifying features, by maintaining or restoring the [name] bat population ensuring the long‐term viability of its maternity roosts, hibernation sites, and supporting habitats.

Notwithstanding the size of the appeal site and its distance from the SAC, due to the suitability of the existing vegetation and the current lack of lighting on the site, as well as its location within CZ band C, the proposal could lead to a permanent loss of vegetation, potential loss of habitat and impact foraging and commuting areas used by [name] bats. A likely significant effect cannot be ruled out.

The Guidance advises that for proposals within CZ band C, developers should at an early stage consult with an ecologist to identify and assess any impacts on [name] bats. In their statement of case, the appellant sets out that these would form part of the [name] submission. Therefore, there is no ecological survey undertaken by a suitably qualified expert before me.

The submitted illustrative block plan provides an indicative layout for six dwellings and garages. The layout does not provide any assurance that the existing hedgerows would be retained. These are features which could provide foraging habitats and commuting corridors for [name] bats.

The Guidance outlines at paragraphs 4.13 and A.1.9. 3, that [name] bats are known to be a very light sensitive species and will avoid lit areas. Forcing them to find an alternative route away from light sources could lead to isolation and fragmentation of the bat population from key foraging areas and/or roosts.

The addition of six dwelling could result in the loss of foraging habitats, commuter routes and introduce illumination of the abovementioned natural features through internal and external lighting sources. The intensity of such illumination would 1 The guidance includes the [name] and [name] and the Bath and Bradford on [name]. likely go beyond the existing situation and the appeal details provide no mitigation and no such assurances in this regard.

Consequently, adopting a precautionary approach, I cannot be satisfied that the appeal proposal would not adversely affect the foraging habitat and commuting routes for [name] bats. Accordingly, I cannot be certain that the integrity of the protected site would not be harmed as a result of this proposal, either alone or in combination with other plans and projects. In addition, it has not been shown that the development must be carried out for reasons of overriding public interest.

The proposal would constitute habitats development for the purposes of Article 5B of the Order. Accordingly, it lies outside of the remit of the permission in principle regime.

The Council’s reasons for refusal refer to additional considerations, including the suitability of the site’s proposed location and the potential effects of the proposal on the living conditions of neighbouring occupiers. However, it would not be appropriate for me to address these matters or those raised by the appellant or the interested parties as permission in principle must not be granted in this instance, and to do so may fetter the judgement of any future decision maker.

For the above reasons, the appeal should be dismissed as it does not comply with Article 5B (1) of the Town and Country Planning (Permission in Principle) Order 2017 (as amended).