Appeal 6003671

The appeal is dismissed.

An application for costs was made by [name] against [name] and West Norfolk Borough Council. This application is the subject of a separate Decision.

In the heading above, I have utilised the address given on the appeal form as on the application form it was incomplete.

The Council’s description of development reflects the amendment made during the application process reducing the quantum of buildings. However, it also references ground mounted solar panels not shown on proposed plan no. 001 [name], which both parties agree is the correct plan upon which my decision should be based. Accordingly, I have amended the description in the header above to more accurately reflect the proposal before me.

An Ecology Update1 has been submitted with the appeal. This does not make substantive changes to the scheme but offers clarity and a response to the ecological reasons for refusal. All parties including the Council, have had the opportunity of commenting on it. No procedural unfairness would ensue by my acceptance of it, and I proceed on that basis.

The main issues are: 1 January 2026 by Eco-Check • whether sufficient information is advanced to allow for an adequate assessment of the effects of the proposal on the landscape character and the environment, • the effect of the proposal on the ecological value of the site, including habitat and protected species; and • whether the proposal is capable of delivering [name].

The appeal site comprises a former gravel pit that has previously been subject to a restoration scheme. Land levels within the site are uneven, with the centre of the site forming a basin which is set considerably lower than the highway from which it is accessed.

Limited information is provided with regards to existing or proposed levels, and no topographical survey has been presented. Compared to the road, the appellants submission refers to the centre of the site as being deeply excavated at 25 metres (m) in depth but elsewhere references this to be 75m. As such, the existing levels within the site are not clear and these discrepancies are significant.

Given the uneven land levels, it is inevitable that earthworks and engineering operations will be necessary. For example, in the interests of highway safety, the site access route needs to be at an appropriate gradient which the Highways Authority (HA) indicate should not exceed 1:12 for the first 20m. The absence of this information does not allow me to conclude with any certainty that the access shown on the drawing is capable of achieving this.

Furthermore, the central hardstanding area, including the turning and parking spaces, must be broadly level to function effectively, as noted by the Highway Authority. In the absence of clear information on the extent of earth excavation required, it is not possible to robustly assess the proposal’s wider landscape or environmental impacts. While the plans indicate the creation of 900mm high earth bunds, Section 3 of the appellant’s Statement of Case states that no bunds are proposed. This inconsistency raises concerns about whether the development has been planned on a sound and reliable basis.

Calculations have been provided for the volume of earth to be removed/ re-purposed in forming the proposed ponds. However, no equivalent information has been submitted for the land-levelling required elsewhere on the site. It has therefore not been demonstrated that the volume of excavated material would correspond to the areas intended to receive it. This gap in information raises the prospect of additional, unassessed environmental effects, including potential impacts on the highway network should significant quantities of soil or waste need to be transported off-site.

The majority of the development is due to take place within the depressed area of the site which will limit the effects on the character and appearance of the landscape. However, without a topographical survey, proposed levels and information on how component parts of the site will assimilate into the landscape, its full effects cannot be properly assessed as to whether this development responds sensitively and sympathetically to the landscape and the consequential environmental effects.

It is advanced that these matters can be adequately left to condition. However, it would not be appropriate to defer these matters, as they go to the heart of whether the development is appropriate, for example in terms of whether it could achieve safe access and a development that adequately responds to its surrounding context.

For these reasons, I find that insufficient information has been advanced to allow for an adequate assessment of the effects of the proposal on the landscape character and the environment. This brings the scheme into conflict with Policies LP07, LP18 and LP21 of the [name] and West Norfolk Local Plan 2021-2040 (Local Plan). Amongst other things these policies expect sustainable economic development that is not detrimental to the local environment, that responds to context and character and demonstrate safe access.

The Preliminary Ecological Appraisal (PEA) advanced with the scheme, identifies that [name] is present on site. The baseline Habitat Map2 indicates this covers a significant portion of the site including some developable areas. There is dispute between the parties regarding whether [name] is listed as a ‘habitat of principal importance’ albeit it is common ground that it is a ‘priority habitat’ requiring action through the Norfolk Biodiversity Action Plan (NBAP) in order to conserve, enhance and restore Norfolk’s biological diversity.

The starting point for development proposals is to avoid adverse impacts in line with Local Policy LP19 which sets out that development should seek to avoid, and where this is not possible, with justification, mitigate or compensate for any adverse impacts on biodiversity. Whilst it has not been fully demonstrated that this scheme has been designed to avoid the most harmful effects in line with the hierarchy, it is now common ground that the loss of [name], could be offset by the creation of acid grassland and be secured through an appropriate habitat mitigation and monitoring plan.

The Conservation of Habitats and Species Regulations 2017 (as amended) (the Habitat Regulations) imposes a duty on decision makers to consider whether [name] species would be affected by the development and whether associated mitigation measures would be effective. Bats and [name] (GCN) are examples of such protected species.

Given the habitats present, the PEA accepts that it is highly likely that foraging and/or commuting bats use the site. Bat activity surveys have not been undertaken. The justification for the absence of surveys relates to it being overly burdensome and disproportionate for the small-scale scheme. However, to determine flight paths, species present and features within the on-site habitats used by bats and indeed the scale of such use, I find these are necessary to inform appropriate and proportionate mitigation proposals. This aligns with good practice guidelines from the Bat Conservation Trust. 2 Drawing number 25-1607

Part of the site is within an [name] (designated by Natural England) for GCN and it is common ground that the site contains terrestrial habitat that could support GCN. The lack of significant barriers between the appeal site and the surrounding habitat, including the presence of water bodies at the [site address] Pit Site of Special Scientific Interest to the west, means that this transient species could potentially move between sites. The results of the Habitat Suitability Index Assessment (HSIA) have not been provided, but the evidence indicates that conclusions have been drawn on assumptions and that only 2 of the 10 indicators have been considered. The lack of survey data is unsurprising given the appellants own request for survey access to the third party owned water bodies was said to have been denied, and accordingly it is not persuasive of their absence. These are all factors that lead me to find that the presence of GCN cannot be ruled out.

While the [name] suggests that a restored quarry diminishes its interest value for invertebrates, the PEA acknowledges that the site, with its patchwork of habitats, is likely to be of value to invertebrates, including species listed within the NBAP of conservation concern. Despite this, further surveys were not undertaken to aid the understanding of impacts, which could be significant.

At over 3 hectares in area, this appeal site constitutes a major development3 such that I do not agree that the development can be considered small-scale. Moreover, in the absence of these surveys to determine both direct and indirect impacts of the proposal, it is not possible to fully appreciate the significance of any loss or whether the mitigation advanced is adequate.

I am therefore not satisfied that the suggested mitigation of an appropriate lighting strategy is sufficient to mitigate the impact on bats from habitat loss. Neither am I satisfied that the impacts on GCN can be reasonably screened out or that the impact on invertebrates could be reduced to ‘minor adverse-neutral’ with mitigation.

Circular 06/2005 advises that such surveys should be carried out before planning permission is granted otherwise all relevant material considerations may not have been addressed in making the decision and should only be covered by a planning condition in exceptional circumstances. There are no exceptional circumstances in this case to indicate that surveys could be secured by condition. Furthermore, insufficient evidence is available to satisfy me that imposing a condition to secure a district level licence in respect of GCNs would be reasonable.

Given that I have already concluded that insufficient information is advanced regarding the effects on land levels across the site, level changes not accounted for within the ecological submission could further compound the harm to the ecology value of the site.

For the above reasons, I am not satisfied that the effect of the development on the ecological value of the site, including habitat and protected species would be acceptable, given the lack of required surveys. This would conflict with LP Policy LP19, the objectives of which I have already set out. It would also run counter to Part 15 of the National Planning Policy Framework (the Framework) which seeks to minimise impacts on biodiversity. Moreover, it also fails to accord with the requirements of the Habitat Regulations. 3 as defined by The Town and Country (Development Management Procedure) (England) Order 2015

Amongst other things, Local Plan Policy LP19 expects all development covered by the 10% [name] (BNG) set out in the statutory framework (introduced by Schedule 7A of the Town and Country Planning Act 1990 (as amended) (the Act) will need to be supported by an ecological assessment that identifies how this can be delivered.

It is common ground that the development would be required to provide statutory BNG. Therefore, if the appeal were to succeed, it would be subject to the statutory pre-commencement biodiversity gain condition (‘the condition’) as set out in the Act. In this scenario, guidance contained in the national Planning Policy Guidance (PPG) states that it would generally be inappropriate, when determining a planning application for a development subject to BNG, to be refused on the grounds that the biodiversity gain objective will not be met. The PPG advises that more broadly, consideration may be required as to whether ‘the condition’ is capable of being successfully discharged.

It is common ground that the application was supported by sufficient baseline ecological information to validate the application. The dispute relates to whether it is sufficient to demonstrate that the biodiversity gain condition is capable of being successfully discharged. It has been advanced that BNG would be provided on site.

Government guidance4 advises that in addition to the minimum requirements, further information may need to be provided to assist the consideration of BNG as part of the planning application, such as a draft habitat management and monitoring plan. This may include where there are particular considerations around significant on-site biodiversity enhancements and/or the use of off-site biodiversity gains. It also indicates that it is good practice for developers to submit information about any potential planning obligations and that if there may be a need for an off-site biodiversity gain site specifically to provide gains for the development, developers should clearly set out the obligations that they are likely to be bound by in a section 106 agreement, if permission is granted.

In this case, proposals for on-site biodiversity enhancements are not significant and the proposal does not explicitly suggest it would be provided off site, such that the justification for further information specifically for BNG is limited.

Notwithstanding, I have already found there to be a lack of information relating to the treatment of land levels within the site. This would have consequential effects on the habitat that is able to be retained, which could significantly impact on the ability of the appeal site to accommodate the mandatory 10% net gain, particularly given the relatively high baseline.

Nevertheless, ‘the condition’ sets out that development cannot begin until the Biodiversity Gain Plan (BGP) has been approved. It would be for the Council to consider the BGP, and whether or not the measures set out at that time are acceptable and secured. I am cognisant that BNG could, in principle, be achieved off-site. Although no other land has been identified as being within the control of the appellant, it is possible for a Planning Obligation to be entered into at BGP stage. In any event, off-site provision could still be achieved through an appropriate conservation covenant, which is separate to the planning process, or through the 4 Biodiversity net gain: what local planning authorities should do, November 2024 purchase of biodiversity credits as a last resort. As such, I am as satisfied as I can be, that ‘the condition’ is capable of being discharged, broadly following the hierarchy.

[name] am not satisfied that the proposal meets the expectations of Local Plan Policy LP19, this is more onerous than the statutory framework and I afford it reduced weight accordingly. As such, I find the development is capable of delivering the mandatory requirements for BNG, in accordance with the statutory framework.

The proposal would help support the rural economy with its regional grain production needs and would represent a highly sustainable, off-grid, low carbon development and would bring about local economic benefits during the construction phase of the development. It would also represent an efficient use of land. These benefits attract significant positive weight.

However, I have found that the lack of sufficient information means that it is not possible to conclude that the proposal would have an adequate effect on the landscape character or the wider environment including the ecological value of the site.

Taking a precautionary approach, I afford the potential harm to the ecology and particularly to protected species very significant weight. This aligns with the expectations of the Framework, which sets out that if significant harm to biodiversity resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated, or, as a last resort, compensated for, then planning permission should be refused.

In my judgement, the harms clearly outweigh the benefits, and the proposal would be in conflict with the development plan as a whole. There are no material considerations, including the Framework, that indicate a decision should be made other than in accordance with the development plan.

For the reasons I have set out, the appeal should be dismissed.