APP/H1840/A/14/2226234 APPEAL BY EDWARD DAVIES
REFUSAL OF PLANNING For FOUR PULTRY BUILDINGS
AGAINST
THE
Representation by Councillor Adrian Darby OBE
Although I am Wychavon District Council’s Natural Heritage Champion and a member of its
planning committee, I am writing to you as an individual.
I have considerable experience in nature conservation having served as Chairman of the
RSPB, Plantlife, the Joint Nature Conservation Committee and Kemerton Conservation
Trust. I was appointed OBE for services to nature conservation in 1996
Previous History
When the original application for 2 broiler houses W/13/01511/OU was refused by Wychavon
DC, reason 2 was:
Paragraph 120 of the Framework also states that 'to prevent unacceptable risks from
pollution…planning policies and decisions should ensure that new development is
appropriate for its location'. It is considered that the proximity of the site to the Piddle Brook
is likely to result in the potential contamination of a major watercourse. This watercourse is a
designated County Wildlife Site, which, together with its tributaries drains most of the
eastern part of the east Worcestershire plain, forms a valuable wildlife corridor and is part of
a wider ecological network. By reason of the broiler units' proximity to medium and high risk
flood zone areas, it is considered that there is strong likelihood that the site would be subject
to flooding and that the run off of waste generated by the development from the site would
discharge into the Piddle Brook and adjacent ditch. In addition, a particular high level
pollution risk would arise regularly when the broiler units are being cleaned out between the
flock cycles and when manure is being removed from the site. Therefore, the Piddle Brook
would be put at unacceptable risk from water pollution, which would have an adverse impact
upon biodiversity and the natural environment. The proposal is therefore contrary to Saved
Local Plan Policies ENV5 ; ENV6 & ENV7; emerging South Worcestershire Development
Plan (2013) Policy SWDP22 as well as guidance contained in the National Planning Policy
Framework.
The inspector in granting an appeal against
APP/H1840/A/13/2207644) argued as follows:
this
decision
(Appeal
Decision
Watercourses and wildlife
12. The site of the proposed unit is within 160m of Piddle Brook, a watercourse which has a
history of flooding in the locality. The brook is also a County Wildlife Site. The Council
contend that contaminants from the manure and yard area would be washed into the
watercourse and pollute it, to the detriment of this wildlife corridor and the wider ecological
network. Also, concern has been raised by local residents that the proposed unit would
exacerbate flood conditions in the vicinity.
13. Control of flooding and protection of the environment from pollution is the responsibility
of the Environment Agency (EA). With regard to flood protection, the appeal site lies within
Flood Zone 1 – which is a low flood risk location. EA is satisfied that the proposed
development would not significantly increase the risk of flooding along Piddle Brook.
14. Clean surface water runoff from yard areas and roofs will be diverted through a swale
which would also be within Flood Zone 1. The swale would both filter the run off through a
SuDS1 system, and act as a holding or balancing pond during periods of high flow in the
brook, such that surface water from the unit would be delayed from release into the brook
until the volumes could be accommodated without adding to the risk of flooding either
upstream or downstream of the unit. I do not consider that the proposed scheme would lead to
an increased flood risk either in the immediate vicinity of the unit, or in the wider catchment
area of the brook.
15. Contaminated run off from yard washings and water from washing out the buildings at
the end of each flock cycle would be separately gathered into a holding tank and taken off
site by tankers for disposal. This would be a waste 1 Sustainable Drainage System Appeal
Decision APP/H1840/A/13/2207644 www.planningportal.gov.uk/planninginspectorate 4
disposal operation which needs to be controlled through an Environmental Permit (EP) issued
by EA. The terms of the EP would be set out in conditions on the permit. Failure to comply
with the conditions would attract a quick response from EA to remedy the breach, up to and
including closure of the unit until compliance could be secured. A breach of EP conditions
also leaves the EP holder vulnerable to prosecution through the courts. In my experience, the
EP procedures can be relied upon to control pollution of the environment. In this case, I
consider that there would be good safeguards in place so as to prevent harm to the County
Wildlife Site and other nearby ecological interests.
16. It would be appropriate to require details of the surface water drainage scheme and
associated holding tanks to be specifically considered before development commences so as
to ensure that they would be effective in intercepting and controlling all likely sources of
pollution of Piddle Brook.
17. It may be that the wildlife interest in the vicinity of the site could be increased with the
possibility of the landscape planting scheme incorporating, or providing the opportunity for
local wildlife to create for itself, new habitats, foraging areas or migration routes. Such
enhancements for wildlife are included in the Wold Ecology Ltd., report which supported the
planning application.
18. I do not consider that the proposed scheme would represent a threat to local wildlife
interests nor lead to an increased flood risk locally. In which case there would be no conflict
with WDLP Policies ENV5, ENV6 and ENV7.
The current appeal
It was in the light of this decision that consideration by the planning committee of
Application W/14/00708 for four poultry houses on the same site took place on 11
September 2014.
At the committee meeting concern was again expressed about the risks of contamination of
the Piddle Brook as outlined above, and it was pointed out that if the site were flooded
contamination would not only affect the Brook itself but might also spread overland to the
Naunton Court Meadows SSSI. Anecdotal evidence from a neighbouring farmer was quoted
to show that such overland spread had occurred in a recent flooding event. It was also pointed
out that contamination of the Piddle Brook would adversely affect the European protected
species, European Otter, Lutra lutra, which is cited in the LWS designation for the Piddle
Brook, although it was not included in the list of UK BAP species that were to be found
within 2km of the site according to the applicant’s Ecological Report. However given the
inspector’s decision cited above it was felt that pollution of the Piddle Brook could not be
used as a refusal reason.
It was also pointed out that poultry production produces large quantities of ammonia which
has the potential to seriously damage species-rich grassland and ancient woodland. However
we had been informed that the Environment Agency had screened out this application for
ammonia and that Natural England had raised no objection on the basis of this screening out.
The planning officers did not therefore consider that an objection could be sustained on this
ground. Consequently the only refusal reason given was that the development “would have a
harmful visual impact upon and would undermine the character, appearance and
openness of the countryside.”
I appreciate that Wychavon District Council cannot use any further reason for the inspector
dismissing the appeal, and that if the inspector is to consider harm to biodiversity as a
refusal reason I must make the case as an individual objector.
The Natural and Rural Communities Act 2006 (NERC Act) states “Every public authority
must, in exercising its functions, have regard so far as is consistent with the proper exercise
of those functions, to the purpose of conserving biodiversity.” Wychavon District Council
must therefore in interpreting national policy and in framing its own local planning policies,
fulfil this “biodiversity Duty”. The national and local policy and guidance was listed in my
earlier email and is repeated below.
1.
NPPF paragraph 109
The planning system should contribute to and enhance the natural and local environment
by:
(3rd bullet point) minimising impacts on biodiversity and providing net gains in
biodiversity where possible, contributing to the Government’s commitment to halt
the overall decline in biodiversity, including by establishing coherent ecological
networks that are more resilient to current and future pressures.
2.
NPPF paragraph 113, footnote 24
Circular 06/2005 provides further guidance in respect of statutory obligations for
biodiversity conservation and their impact within the planning system. [Part 4 A 99 of
the Circular states that the presence or otherwise of protected species and the extent that
they may be affected by the proposed development, must be established before planning
permission is granted. It further states that the need to ensure ecological surveys are
carried out should only be left to coverage under planning conditions in exceptional
circumstances.]
3.
NPPF paragraph 118
When determining planning applications, local planning authorities should aim to
conserve and enhance biodiversity by applying the following principles:
(1st bullet point) if significant harm 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;
(5th bullet point) planning permission should be refused for development resulting in the
loss or deterioration of irreplaceable habitats, including… the loss of aged or
veteran trees found outside ancient woodland, unless the need for, and benefits of,
the development in that location clearly outweigh the loss.
4.
NPPF paragraph 165
Planning policies and decisions should be based on up-to-date information about the
natural environment and other characteristics of the area… this should include an
assessment of existing and potential components of ecological networks.
5.
NPPG paragraph 016
An ecological survey will be necessary in advance of a planning application if the type
and location of development are such that the impact on biodiversity may be significant
and existing information is lacking or inadequate… Where an Environmental Impact
Assessment is not needed it might still be appropriate to undertake an ecological survey,
for example, where protected species may be present… Local planning authorities
should only require ecological surveys where clearly justified, for example if they
consider there is a reasonable likelihood of a protected species being present and
affected by development.
6.
Local Plan policy ENV5
Development proposals which would have adverse effect or which would result in an
unacceptable risk of an adverse effect on a Local Nature Reserve, Special Wildlife Site
or a Site of Wildlife Importance (subject to a Section 39 Agreement under the Wildlife
and Countryside Act 1981) will not be permitted unless it can be demonstrated that:
a) the reasons for the development outweigh the intrinsic value of the site and the
need to safeguard the network of such sites;
b) there are no reasonable alternative sites or solutions to accommodate the
development proposed; and
c) appropriate compensatory habitat provision or management is provided.
7.
Local Plan policy ENV6
Development proposals which would have an adverse effect or which would result in an
unacceptable risk of an adverse effect on any species protected by National Legislation
will not be permitted unless:
a) there are over-riding reasons for the development that are in the public interest
and that outweigh the protected status of the species; and
b) the Council is satisfied that there are no reasonable alternative sites or solutions to
accommodate the development proposed; and, where appropriate
c) measures have been taken to reduce disturbance to the species to a minimum, and
included to facilitate the survival of individual members of the species.
Development proposals which would have an adverse effect on any species protected by
European Legislation will only be permitted where, in addition to a), b) and c) above, it
can be demonstrated that the impact of the proposal is not detrimental to the
maintenance of the species’ population at a favourable conservation status in its natural
range.
8.
Local Plan policy ENV7
Development proposals will be required to retain important ecological features,
including natural habitat and features of nature conservation value in situ. Proposals
which would have an adverse impact on the integrity of other habitats, species and
features will only be permitted where:
a) the reasons for the proposal outweigh the impact on the intrinsic nature
conservation value of the habitat, species or feature;
b) the Council is satisfied that there are no reasonable alternative sites or solutions to
accommodate the development proposed; and
c) compensatory habitat provision or management is provided in appropriate
circumstances.
Developers will be required to prepare an ecological assessment on all proposals likely
to affect important ecological sites.
Developers will be required to prepare a professional assessment in all proposals likely
to affect sites of ecological importance.
9.
South Worcestershire Development Plan policy SWDP22
A. Development within, or that would compromise, the favourable condition
conservation status of a Special Area of Conservation (SAC)50, other international
designations, a Site of Special Scientific Interest (SSSI)51, Ancient Woodlands (AW),
Veteran Trees or the favourable conservation status of European or nationally
protected52 species or habitats (as shown on the Proposals Map), will not be
permitted.
B. Development within, or that would compromise, the favourable conservation status or
favourable condition of a Grassland Inventory Site (GIS), a Local Wildlife Site (LWS),
a Local Geological Site (LGS), a Plantation or Ancient Woodland site, an important
individual tree, e.g. “veteran” tree or woodland, species or habitats of principal
importance recognised in the Biodiversity Action Plan or listed under section 41 of
the Natural Environment and Rural Communities Act 2006, will only exceptionally be
permitted if:
i. the need for development has clearly been demonstrated to outweigh the
importance of the biodiversity / geodiversity interest; and
ii. there are no reasonable alternative sites available; and
iii. full compensatory provision is secured and will where necessary be established
via legal agreement.
C. All new development must be designed to enhance biodiversity / geodiversity interest
and safeguard ecological corridors. Development should also contribute towards
securing coherent, robust ecological networks at both a local and wider landscape
scale, including designated areas such as the Abberley and Malvern Hills Geopark,
Nature Improvement Areas and their successors. Whilst a reduction in on-site
biodiversity / geodiversity may be mitigated by off-site compensation, this will only be
acceptable where on-site mitigation is clearly not possible.
Additional Argument for Refusal on Biodiversity Grounds
I consider that if it had granted permission for this development Wychavon would have failed
in its biodiversity duty on the following grounds.
1. The applicant did not carry out a survey of the Piddle Brook for a European protected
species, Otter Lutra lutra, which was likely to be in the vicinity of the development and
did not consider how any potential harm to this species could be mitigated. This species
is cited as one of the species present in the designation sheet for the Piddle and Whitsun
Brooks Local Wildlife Site.
2. The appellant’s ecological report only referred to two designated sites, Naunton Court
Meadows SSSI and Yellow House Meadow SSSI. Since these were over 750 metres
distant the consultant regarded them as being too far away to be affected, although he
gave no justification for this distance. His desk study found no local wildlife sites,
although he did consider the Piddle Brook without seeming to recognise that it is in fact a
LWS. In fact one would normally expect all sites of interest within 2 km to be listed after
such a desk top study. If he had done this he would have considered the effect on the nine
further local wildlife sites shown in the attached map to be situated within 2 km of the
appeal site. All of these, except for Naunton Court Orchard, are semi-natural neutral
grassland, which is what people think of as epitomising traditional flower-rich hay
meadows. Lowland neutral grassland is arguably the most important semi-natural habitat
in Worcestershire. The county has approximately 20% of the remaining UK resource of
this threatened and declining habitat and it has been a focus for conservation effort in the
county for many years. It is a habitat of principle importance listed under section 41 of
the NERC Act and occurs in complex mosaics across Worcestershire, meaning that many
small fragments are of increased value because of their place in the wider grassland
landscape framework. Given this rich resource and the number of sites involved many of
the county’s best grasslands have been missed out of the SSSI series (which only aims to
select a representative fraction of the candidate sites) and yet are probably of national
importance. Taken together the sites are at threat from isolation, fragmentation,
agricultural intensification, neglect and development pressures and it is essential that we
take appropriate steps to retain and enhance this precious resource, for which the county
has such a responsibility. The importance of these Local Wildlife Sites is recognised in
Local Plan policies ENV7 and SWDP22 – see above.
3.
I consider that the damage to semi-natural grassland habitats could occur in three
possible ways.
A) Direct pollution of the Piddle Brook which would affect those sites downstream and
within its floodplain. This was the only harm considered by the inspector in the earlier
appeal.
B) Pollution outside the normal floodplain of the Piddle Brook caused by overland flows
in times of exceptional rainfall. I understand that there is evidence that such a flow has
affected the Naunton Court Meadows SSSI in the previous decade and that Natural
England was not aware of this at the time it made its comments.
C) Atmospheric nitrogen deposition through the release of Ammonia leading to
eutrophication, which is now the principal cause of the deterioration of our semi-natural
grasslands.
4. Releases of ammonia may also have a deleterious effect on ancient woodland, both
through the effect on lichens and bryophytes growing on the trees and on the ground
flora. Grafton Wood SSSI lies only 2.2 km to the north east (i.e. downwind) of the site.
5. The planning authority did not have before it sufficient information as required in
paragraph 165 of the NPPF to assess the harm of the network of grassland sites which
this application might produce. This concentration of unimproved grasslands along and
to the north of the Piddle Brook has the potential to achieve conservation of a meadow
landscape which for this vegetation type (MG5) would be one of the most important in
the country. I have sought information on whether all these local wildlife sites were taken
into account by the Environment Agency in its initial screening. I have been given a list
of the sites which were included. This contains all the SSSIs as far away as Portway Farm
Meadows (2.8 km away), but only two of the LWS, Piddle Brook and North Piddle
Meadows. This is presumably because a smaller distance was considered appropriate for
non-statutory sites. However I would argue that for Wychavon, in fulfilling its
biodiversity duty, it is more important to consider the impact of ammonia deposition on
the network of much closer LWS meadows. Ecologically, this group of meadows, taken
as a whole, is of national significance It is disappointing that this point cannot be
examined in more detail at a hearing or public inquiry where the Environment
Agency could be asked to explain and justify its procedure.
Adrian Darby
11 November 2014