Appeal 6004614

The appeal is dismissed.

For clarity and certainty, I have used the agreed revised description of development given on the Council’s Decision Notice in the banner heading above.

The main issues are: • whether or not the proposed development would be compliant with the requirements in respect of [name] (BNG); and • the effect of the proposed development upon trees.

The Biodiversity Gain Requirements (Exemptions) Regulations 2024 (the Regulations), confirm the biodiversity gain condition does not apply where a development impacts less than 25m2 of on-site habitat that has a biodiversity value greater than zero (the de minimis exemption). In the planning application form the appellant considers the proposed development to be below the de minimis requirement due to the size of the proposed development being under 25m2 and that it would not constitute the loss of habitat due to the current condition of the rear yard, which consists of a hard standing gravelled area.

Whilst the appellant has sought to claim exemption, Article 7 (1A) of the Town and Country Planning (Development Management Procedure) (England) Order 20151 (the DMPO) sets out that an application must be accompanied by a (a) statement 1 The Town and Country Planning (Development Management Procedure) (England) Order 2015 as to whether the applicant believes that planning permission, if granted, would be subject to the biodiversity gain condition. Conversely, where (b) the applicant believes planning permission would not be subject to the biodiversity gain condition, reasons for that belief.

In this regard the Planning Practice Guidance2 advises that “when providing reasons for the de minimis exemption, an applicant should provide sufficient evidence to support their justification”. This places the onus on the appellant to demonstrate that a development would meet the de minimis exemption. Whilst the appellant has confirmed they wish to apply for exemption, little further information or evidence of substance has been supplied to justify this request. Indeed, I note that there is no dispute from the appellant that the development footprint is greater than 25m2.

The evidence from the Council’s delegated officer report strongly indicates the site previously had landscaping, with features of biodiversity value. The appellant has suggested the presence of gravelling to the rear yard of the appeal property results in a negligible baseline biodiversity value. However, there is no baseline assessment to address what is set out in the Council’s report, confirming the exact date of any clearance and whether or not it constitutes degradation between 30 January 2020 and the relevant date3 and other supporting substantive evidence to justify the appellant’s conclusion. As the proposal does not provide the minimum information set out in Article 7 of the DMPO, and based on the evidence before me, it cannot be assured that it meets the de minimis exemption set out in the Regulations and whether the biodiversity gain objective would be applicable.

I acknowledge the appellants suggestion that the matter of biodiversity enhancement could be dealt with via the imposition of a planning condition or through minor on-site enhancements. However, the delivery of BNG is not simply a matter of applying planning policy, it has a legal basis within the Regulations, requiring important specific information to be included within an application and given the nature of this, the imposition of a planning condition to address this matter would not be appropriate.

From the evidence before me I cannot be satisfied that the proposed development would be compliant with requirements in respect of BNG. Consequently, it would not accord with Policies GI6 and GI10 of the Liverpool Local Plan 2013-2033 (LLP) which seeks to protect biodiversity value and ensure that development proposals contribute to ensuring net gain in biodiversity.

Whilst the appeal site itself does not include any trees there are a number of semi-mature trees in close proximity to the boundary. Due to their size and form they are prominent in the surrounding area, particularly when viewed from [address], and make a positive contribution to the character, appearance and overall amenity of the area. They are positioned close to the rear boundary wall of the appeal property and their canopies over sail the rear yard area. I observed during my site visit the presence of exposed tree roots which may indicate that their root systems are under the rear yard area. 2 Paragraph 004: [name]:74-004-20240214 3 Paragraph:036 [name]: 74-[phone]

No information has been provided in the form of a Tree Survey or Aboricultural Impact Assessment to explore the existing and future relationship of these trees with the proposed development, the potential impact of the proposed development on the health of the trees and, should there be an adverse impact, any appropriate mitigation measures and how these would be secured.

I note the appellant has suggested that this matter could be dealt with via the imposition of a pre-commencement condition requiring adequate tree protection measures. Despite the appellant’s assertions, they have not provided the detailed root protection areas. Such is the proximity and development coverage, it would cover much of the yard and result in the need for new foundations. This would cover and could interfere with what might be quite a significant proportion of the root protection area where important tree roots are expected to be present, which could inherently result in significantly adverse effects upon the trees future health and contribution to the area.

Therefore, given the lack of information on the impacts to the trees it is not clear whether a pre-commencement condition detailing an acceptable scheme could even be complied with. As it stands, the effect upon the trees as a material consideration to weigh in the overall balance is highly uncertain, and it is also unclear if a suitable and policy compliant scheme could be secured and whether any condition imposed would meet the reasonable test set out in paragraph 57 of the National Planning Policy Framework. Therefore, the matter cannot be left to a planning condition.

Consequently, based on the information before me I cannot be satisfied that the proposed development would not have a detrimental effect on trees. It conflicts with Policy GI9 of the LLP which states that where development is sited within 3m of the outer extent of the canopy spread of any tree, a tree survey, Aboricultural Impact Assessment (AIA) and [name] (AMS) must be submitted alongside the planning application.

The appeal proposal would result in limited temporary economic benefits during the construction and when occupied some greater commercial floorspace and some on-going support to the local economy, services and facilities, as well as social benefits from the provision of improved commercial space and a new 5-bedroom House in [name]. These are modest benefits that attract limited weight in favour of the appeal scheme. [name] to agree the proposal was compliant with policies such as those in respect of the living conditions of future and neighbouring occupiers and highway safety, these would be neutral matters. However, the policy compliance and benefits of the proposal are outweighed by the harm from the policy conflicts in respect of BNG and trees, which are important matters that are attributed significant weight against the scheme.

The proposed development conflicts with the development plan when read as a whole. There are no material considerations advanced, including the policies of the framework, which indicate the decision should be made other than in accordance with the development plan. Therefore, for the reasons given, the appeal should not succeed.