Appeal 6006315

The appeal is dismissed.

The decision notices cites conflict with Policy SP03 of the Babergh and Mid Suffolk Joint Local Plan (2023) (JLP) which relates to the location of new housing development. Given the nature of the proposed development, this policy has not been determinative.

Since the determination of the application Natural England have updated their advice with regard to how the habitats found beneath solar panels are recorded within the biodiversity net gain metric. Consequently, the Council have confirmed that as grassland already exists on site beneath where the solar panels are proposed to be installed, the application is exempt from further biodiversity net gain requirements and withdraw their second reason for refusal which related to an absence of biodiversity net gain information.

The main issues in the appeal are: • the effect of the proposal on Great crested newts, and • the effect of the proposal on the living conditions of the occupiers with particular regard to noise.

Policy LP25 of the JLP supports renewable energy proposals subject to, amongst other matters, that impacts on ecology have been fully taken into consideration and where appropriate, effectively mitigated.

Great crested newts (GCN) are a [name] (EPS). GCN’s require both terrestrial and aquatic habitats, spending the majority of time within grassland, woodlands, scrub and hedgerows, migrating to ponds to breed.

Under the provisions of the Conservation of Habitats and Species Regulations 2017 (as amended) (Habitat Regulations), I am required to consider whether any EPS, such as Great crested newts, would be affected by the proposed development and whether any measures would be effective in mitigating any harm.

The Council’s ecologist advises that the site is within an ‘amber risk zone’ for GCN’s, a designation covering areas that comprise suitable habitats for this protected species. The ecologist also states that there are eight waterbodies within 500 metres of the proposed development, five within 250 metres, with the closest pond located approximately 75 metres away to the south east of the proposed development site and have advised a precautionary working method statement should be submitted.

The appellant has submitted a GCN statement (no author, no date) with the appeal. It is not clear whether this has been completed by a suitably qualified ecologist. Notwithstanding this, the statement indicates that there are 4 ponds within the local area, although the distances of these ponds from the appeal site vary from those stated by the Council’s ecologist, 3 of them are listed as being within 250 metres and all within 500 metres of the appeal site. However, the statement appears to largely comprise of observational evidence from the appellant and a screenshot from MAGIC (an online mapping portal), which suggests that there are no GCN’s present. The submitted information does not appear to comprise of an ecological survey of the site and, furthermore, the information from MAGIC appears to only reference pond surveys from some years ago, between the period of 2017 to 2019. The appellant considers that because they consider GCN’s to be absent, a precautionary working method statement is unnecessary.

Standing advice from Natural England for GCNs, outlines several criteria for when it is appropriate to seek a survey for GCN’s. One criterion is where there is a suitable water body such as a pond or ditch within 500 metres of the development, even if it only holds water for some of the year.

Circular 06/20051 states that it is essential that the presence or otherwise of protected species, and the extent that they may be affected by development, is established before planning permission is granted, otherwise all relevant material considerations may not have been addressed in making the decision. A planning condition would therefore not be appropriate.

Given the presence of waterbodies within close proximity to the site and in the absence of a recent site specific GCN survey, undertaken by a suitably qualified ecologist, I cannot be satisfied that GCN’s are not present in the area. I am therefore unable to make an informed decision about the effect of the proposal on the protected species, and in the absence of a precautionary working method statement I am also unable to assess whether any mitigation measures would adequately safeguard against any harm. 1 Circular 06/2005: Biodiversity and Geological Conservation

Consequently, on this issue, I am not satisfied that sufficient evidence has been submitted to demonstrate that the proposal would have an acceptable effect on ecology with regard to GCN’s. The proposal would therefore conflict with Policy LP25 of the JLP as it has not been sufficiently demonstrated that the proposal would not have an adverse effect on ecology. It would also conflict with the Habitat Regulations.

Policy LP25 of the JLP supports renewable energy proposals subject to, amongst other matters, the impacts on residential amenity having been fully taken into consideration and where appropriate, effectively mitigated.

The Council raised concerns that limited information was submitted with regard to the location of the inverters and associated plant equipment and that potential noise emanating from these could cause disturbance to the living conditions of nearby residents.

As part of the appeal the appellant has stated that the invertors and associated plant would be located within the red line boundary where the solar panels would be located. I have no reason to doubt this. The appellant has also submitted information on the type of inverter unit and battery storage that would be installed, included anticipated levels of noise being less than 30decibals.

The solar panels would be located in the field adjacent to [site address] and would be a substantial distance away from the property and any other residential property. Given the anticipated levels of noise from the equipment and separation distance from the nearest dwelling, the proposal would not result in any harm to the occupiers living conditions with regard to noise. [name] have been minded to allow the appeal, I am satisfied that a suitably worded condition would secure the technical details and location of the plant equipment. I also note that the [name] raised no objection, subject to the invertor being installed as described by the appellant, including the stated decibel level.

Given the above, the proposal would not have an adverse effect on the living conditions of the occupiers with particular regard to noise. The proposal would therefore accord with Policy LP25 of the JLP in so far as relevant to this main issue.

Section 38(6) of the Planning and Compulsory Purchase Act 2004 sets out that planning decisions must be made in accordance with the development plan unless material considerations indicate otherwise.

The proposal would make a positive contribution towards renewable energy generation and the National Planning Policy Framework (the Framework) directs me to give significant weight to the benefits arising from this. However, the Framework also advises that planning permission should be refused if significant harm to biodiversity resulting from a development cannot be avoided or adequately mitigated.

For reasons previously stated, insufficient information has been submitted with regards to GCN’s. I cannot therefore be sure that significant harm would not arise to this EPS. I am thus also unable to discharge my duty under the Habitats Regulations. Consequently, notwithstanding the benefits, I must dismiss the appeal.

I conclude that the proposal conflicts with the development plan and the material considerations do not indicate that the appeal should be decided other than in accordance with it. The appeal is therefore dismissed.