Appeal 6003467

The appeal is dismissed.

An application for costs has been made by [name] against Northumberland County Council. This application is the subject of a separate decision.

I observed a cabin at the appeal site that is not shown on the submitted plans and does not form part of the appeal scheme. As such, for clarity, I have determined the appeal on the proposed development as shown on the plans which were before the Council when it made its decision.

The main issue is the effect of the proposal on an ecological buffer zone.

While within the ownership of the appellant, the appeal site falls within an ecological buffer zone, the extent and layout of which is shown on the plans submitted to discharge condition 15 imposed on the outline permission1 for the wider housing site. Condition 15 sought a permanent restriction that prohibits built development including lighting, domestic gardens and formal landscaping within a buffer zone to the [name]. Notwithstanding criterion C. of condition 15, there is no evidence that decision ref 17/00307/DISCON relates to the discharge of condition 15 only for the duration of the construction phase.

It is possible that there has been conflation between the 10 metre (m) buffer zone required by condition 15 and a buffer zone to the [name] not less than 20m wide for the duration of development works, imposed by condition 18 of the outline permission. Furthermore, a physical barrier has not been installed to 1 Decision ref: 14/0272/OUT delineate the buffer zone. Nevertheless, it is beyond the scope of this appeal to consider the validity or otherwise of the discharge of condition 152, which whether the appellant agrees or not, establishes the extent and layout of the buffer zone.

The approved site layout plan associated with a variation of condition permission3 does not show a fence between the garden and riverbank. However, the decision notice includes, at condition 12, a requirement that the development is carried out in full accordance with the buffer zone details approved under the discharge of condition 15 (of the outline permission). The variation of condition decision does not therefore alter the appeal site’s location within the ecological buffer zone.

Surveys undertaken as part of the outline permission of the wider housing site identified that the [name] is of high ecological value and the buffer zone was subsequently imposed to protect the watercourse and wider ecological network. No further survey work is before me to establish the current ecological value of the area.

The appellant’s submissions state that in functional terms, ever since moving into their property, all of the land within their ownership has been used as residential curtilage. Even if the appellant’s immediate neighbour is an active wildlife monitor, there is no clear evidence to substantiate their assertion that using the appeal site for purposes ancillary to the enjoyment of the appellant’s home has had zero impact on local wildlife.

The Council’s ecologist has concerns that the proposed change of use would increase disturbance in an area where protected species including bats, otter and white clawed crayfish are present. By bringing residential curtilage closer to the watercourse, it is indicated that the proposal would be detrimental to the ecological functioning of an important area. I have no clear reason to doubt the concerns of the environment and design team, which are a matter of consequence as they are responsible for preserving and enhancing Northumberland’s wildlife and habitats.

Despite being a relatively small area of land, given the sensitive location of the appeal site adjacent to the [name], a designated local wildlife site with ancient semi-natural woodlands on both banks of the river and nearby to local nature reserves it is reasonable to take a precautionary approach. In the absence of any robust evidence to the contrary and taking account of the species and habitats that have been identified to be present nearby to the site and in the wider ecological network I cannot be confident that the proposal would avoid significant harm to biodiversity. In these circumstances, the National Planning Policy Framework (the Framework) sets out that permission should be refused.

As a result of the very limited information provided in relation to the effect of the proposed change of use on the ecological value of the area this is not a matter that can be resolved through the imposition of conditions, including those suggested by the appellant. This is because they would be imprecise and it is not known whether they would be reasonable, there is little certainty therefore that would meet the prescribed tests set out in Framework paragraph 57.

To conclude, the proposal would have an unacceptable effect on an ecological buffer zone and would be in conflict with Policies STP3 and ENV2 of the 2 Decision ref 17/003073/DISCON 3 Decision ref: 20/01740/VARYCO Northumberland Local Plan 2016 – 2036 (2022) and Policies Des1, Env1 and Env5 of The Morpeth Neighbourhood Plan 2011-2031 (2016). Amongst other things, these policies require development to contribute to net gains for biodiversity and establish a coherent and resilient ecological network, where development safeguards, respects and enhances the natural environment and secures the continued management of ecological features created as a result of development.

The appellant has invested in ecological enhancement measures within the wider garden area and I have no clear reason to doubt that they have acted in good faith in how they have used land within their ownership and in seeking to regularise the use of the appeal site, or that they are committed to a long term, ecologically positive outcome for the site. However, this matter has not affected my consideration of the planning merits of the case.

My above findings bring the proposal into conflict with the development plan, read as a whole. There are no material considerations, including the Framework, that indicate a decision should be made other than in accordance with it. Therefore, I conclude that the appeal should be dismissed.