Planning & Design Practice have recently won an appeal for a replacement dwelling in a Green Belt location to the north-east of Derby. The existing house had been extended and altered incrementally over the years, resulting in a somewhat sprawling property with restricted roof space in some parts and a layout that did not function well for the owners. It was not a historic building and had no architectural merit in its current form and design. The proposed scheme for a replacement dwelling had been subject to extended pre-application discussions between the architects for the scheme and the Local Planning Authority, Erewash Borough Council. The proposed new house had a smaller footprint and only a very slight increase in volume, and was initially considered acceptable in all respects by the Council. There were some delays while bat activity surveys were carried out during the active season for bats (May to August/September) and there was found to be a small common pipistrelle summer bat roost (between 1 and 10 individuals) in part of the building. As the proposal was for complete demolition of the existing building, it would result in the destruction of a resting place (roost) of the bat as a European Protected Species which would contravene Article 12(d) of the Habitats Directive. This would trigger the requirement for a derogation licence to undertake the redevelopment. Licences can only be issued by Natural England, as the licensing body.
The application was all set for approval, with no objection from Derbyshire Wildlife Trust, subject to conditions requiring suitable mitigation being provided for the bats. At the last moment, the Council realised that as the decision maker they should address the “3 tests for ecology” when considering the application before them (in the same way that Natural England have to when issuing a licence), namely that the proposal is:
i) for the purpose of preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment; and
ii) that there is no satisfactory alternative; and
iii) that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.
The Council took the view that although the third test could be met (Derbyshire Wildlife Trust were happy with the proposed mitigation), they did not consider that the first two tests could be met and therefore thought that a Licence would not be issued by Natural England.
At this point, the considerable experience of Planning & Design Practice Ltd was drawn upon, and we were instructed to help resolve the problem. We sent relevant Legal Judgements to the Council prior to determination of the application, demonstrating that this was a matter for Natural England (as the licensing body), several examples of how other Planning Authorities had easily dealt with this matter in their reports, along with further additional information. However, in spite of this, the application was refused, so we were subsequently instructed to submit an appeal on behalf of the client.
In the Appeal Decision, the Planning Inspector reached the view that the proposal complied with the relevant local, regional, and national planning polices and guidance, and that there were indeed wider benefits to the public interest, including improved energy efficiency of the replacement building. She also considered that there was no satisfactory alternative because other options for altering or extending the property had been explored and refused for other planning reasons. The conclusion therefore was that there was no evidence before her to indicate that there was not a reasonable prospect of a licence being granted by Natural England, and so the appeal was allowed.
The Council were unable to provide any evidence during the appeal that they had dealt with this issue before. It is possible that this appeal was viewed as a test case by the Council concerned, and that in future they may take a more reasonable approach to dealing with the issue of the “3 tests for Ecology” in relation to European Protected Species and the requirement for a derogation licence.
If you have any ecology related planning issues, please do not hesitate to get in touch.
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