Appeal 6004383

The appeal is dismissed.

Planning Practice Guidance (PPG) advises that permission in principle is an alternative way of obtaining planning permission for housing led development. The first stage establishes whether a site is suitable in-principle, whereas the second technical details consent (TDC) stage is when detailed development proposals are assessed. This appeal relates to an application for permission in principle. The scope of the considerations for such applications is limited to location, land use and amount of development.

The appeal site lies within the buffer zone for recreational pressure on the Salisbury Plain Special Protection Area (SPA) and the ‘yellow’ medium risk zone of the [name] (TBMS) associated with the Bath and Bradford on Avon Bats Special Area of Conservation (SAC), which are [name] afforded protection under the Conservation of Habitats and Species Regulations 2017 (as amended) (the Habitats Regulations).

Article 5B(1) of the Town and Country Planning (Permission in Principle) Order 2017 (as amended) (‘the Order’) states that permission in principle cannot be granted for development which is habitats development. Habitats development is defined in the Order as development which is likely to have a significant effect on a qualifying European site (either alone or in combination with other plans and projects) and is not directly connected with or necessary for the management of the site.

If a proposed permission in principle development is likely to have a significant effect on a qualifying European Site without any mitigating measures in place, an Appropriate Assessment (AA) must be undertaken by the competent authority to establish whether the development would adversely affect the integrity of the protected site. If the outcome of the AA is unfavourable, it would preclude the grant of permission in principle, and it becomes unnecessary to consider any further matters in relation to location, land use and amount of development.

For the purposes of this appeal, I am the competent authority responsible for considering the effects on European sites and undertaking an AA.

The Salisbury Plain SPA is an area of calcareous grassland which is designated for its qualifying feature of breeding and wintering birds, including the Stone-curlew. Such ground nesting birds are vulnerable to disturbance from walkers, especially those with dogs. As the appeal site lies within the 6.4km [name] Zone there is therefore potential that residents from the proposed housing, in combination with other development, could result in adverse effects on the integrity of the SPA through additional recreational pressure.

The appellant highlights that the Council’s strategy to protect the integrity of the SPA from such recreational pressure is outlined in its Habitats Regulations Assessment and [name] for [name]. This confirms that the Council, as a CIL charging authority, would specifically collect funding via its CIL to mitigate the effects of housing on the SPA.

In view of the above, given that the Council would be able to secure funds via the CIL to deliver the infrastructure necessary to support initiatives at the SPA to mitigate recreational pressure, I am satisfied there would be no adverse effect on the integrity of the SPA.

The Bath and [name] comprises a network of significant underground sites including caves, mines and man-made tunnels which are used by bats for hibernation and breeding. Although not part of the SAC designation itself, lying in the surrounding yellow medium risk zone, the appeal site is identified as an area with habitats vital for the bats for feeding and commuting.

The proposal would be likely to displace some grassland and hedgerow and therefore encroach physically into habitat that contributes to supporting the bat population. In addition, up to three dwellings would have associated lighting and human activity which could deter foraging and commuting bats.

It has been put to me that the individual effects of the development on the SAC would be limited (being restricted to ‘the loss of grassland and some potential hedgerow loss’) and as such, the proposal does not comprise Habitats Development for the purpose of the Order, since it necessitates a ‘significant effect’ not a ‘limited’ effect on a European Site. However, the Habitats Regulations require me to consider the effect on the SAC either alone or in combination with other plans and projects. Such repeated relatively modest residential development within a sensitive zone for bats would be likely to have a significant impact. On that basis, I do not agree that this prevents the proposal from amounting to habitats development for the purposes of the Habitats Regulations. Consequently, I find the proposal would be likely to have a significant effect on the SAC.

It is therefore appropriate to consider whether mitigation measures could address the harmful effect. To ensure development does not result in adverse effects on the integrity of the SAC, the TBMS expects that residential development proposals in the yellow zone to fully mitigate the loss of habitat on site. This should be demonstrated by use of an established metric (preferably the [name] or subsequent version). Secondly, proposals are expected to make a proportionate financial contribution towards strategic habitat mitigation.

Given the limited details associated with a permission in principle application, doubt remains as to the extent of habitat loss, and therefore, whether it could be fully mitigated on site.

In addition, the main parties agree that a financial contribution would be required in accordance with the tariff set in the TBMS in order to mitigate the effects of the development on the SAC. However, there is no mechanism before me to secure such a financial contribution.

Hence, the information before me fails to show beyond all reasonable scientific doubt that any adverse effect on the integrity of the SAC would be avoided.

Neither is it shown that there are imperative reasons of overriding public interest of a social or economic nature sufficient to overcome the harm that would be caused to the SAC. Nor has it been demonstrated that there are no alternative solutions. Ultimately, this results in an unfavourable AA.

It is contended that mitigation measures could be specified and secured at a TDC stage. Logic dictates that this could only follow a grant of permission in principle. I am not provided with any substantive evidence as to how such an approach would avoid the proposal from amounting to habitats development at this point. The Order explicitly states that a local planning authority (and by extension a planning inspector) may not grant permission in principle in relation to development which is habitats development. In the absence of evidence to show otherwise, I am not satisfied such a course of action would be lawful.

My approach is reinforced by that of the Inspector in an appeal brought to my attention (APP/Y2620/W/25/3368039). In that case the Inspector went on to grant permission in principle only having first established that the development, with mitigation, would not adversely affect the integrity of protected sites. Unlike the case before me, in that instance mitigation was set out and secured by way of legal agreements at the permission in principle stage.

For the above reasons, I therefore conclude that irrespective of the merits of the scheme, it is exempted from qualifying for permission in principle because it amounts to habitats development. It is therefore unnecessary to consider the matters of location, land use and amount any further as they would not be determinative to the outcome of the case. Accordingly, the proposal must be rejected on procedural grounds.

For the reasons given above I conclude that the appeal should be dismissed.