EVIDENCE OF COUNCILLOR ADRIAN DARBY ON BEHALF OF WYCHAVON DISTRICT COUNCIL
1.
My name is Adrian Darby OBE, of Kemerton Court, Kemerton, Tewkesbury, GL20 7HY and I am a
member of Wychavon District Council. Because of my previous experience, I was appointed as
the Council’s Heritage Champion with a brief covering both the built and the natural heritage. I
am also a member of the planning committee, and as biodiversity champion I am asked to
comment on issues involving biodiversity when these come before the committee.
2.
I was a fellow and tutor in economics at Keble College, Oxford University (1963–1985), and
visiting lecturer in environmental economics at the University of Pennsylvania in 1978. During
much of that time I also served as Bursar of Keble College. On taking early retirement from
Oxford, I was appointed an Honorary Fellow.
3.
Following my academic career, I became actively involved in nature conservation. I was
appointed Hon. Treasurer (1984-86) and subsequently Chairman (1986-93) of the RSPB, then
Europe’s largest nature conservation organization. I have been Vice-President of the RSPB since
1996. I founded the Kemerton Conservation Trust in 1989. I was appointed Chairman of
Plantlife International 1994-2002, and President 2005-10. I was Chairman of Planta Europa
1998-2004. From 1995 to 2005, I served as a trustee of the Herpetological Conservation Trust. I
served as Chairman of the UK Committee of the World Conservation Union (1996–1999). From
1997, I sat on the board of the Farming and Rural Conservation Agency. From 2004-2007, I
served as Chairman of the Joint Nature Conservation Committee (JNCC), the public body which
advises the UK Government and devolved administrations on UK-wide and international nature
conservation. I was appointed OBE for services to nature conservation in 1996.
4.
I have also served as a regional committee member of the National Trust; a fellow (governor) of
Eton College (1979–1994) and; a county committee member of the Country Landowners
Association. I have been a Liberal Democrat councillor sitting on Wychavon District Council
since 1998. I own and manage a working farm in Kemerton.
5.
I was present at the planning committee meeting at which this application was discussed. I
pointed out to the committee the requirements in relation to biodiversity, which the applicant
needed to meet to enable the committee to grant the application. I was therefore asked to
represent the Council at this inquiry in respect of the fourth refusal reason, which was:
The National Planning Policy Framework asks local planning authorities to minimise impacts
on biodiversity and to provide net gains in biodiversity where possible. Local Authorities also
have a duty to conserve biodiversity under the Natural Environment and Rural Communities
Act 2006.
The application fails to include sufficient information to enable the Planning Authority to
assess the proposal fully against likely impacts to protected and rare species and their
habitats, in particular:
i)
No assessment has been made of European protected species likely to be
affected by the development in areas near to, but outside, the development site.
In particular no assessment has been carried out to ascertain the use/value of
the site by otters or foraging bats.
ii) No assessment has been carried out of the impact of the development on
Kemerton Lake Nature Reserve, a designated Local Wildlife Site less than 400
metres from the site. The site particulars for this LWS cite the European
protected species, otter, great crested newt and bat species, as well as a number
of other species included in the list prepared under section 41 of the NERC Act
2006.
iii) The site is recognised as containing an area of Traditional Orchard, a habitat of
Principal Importance under the NERC Act 2006. It is proposed to safeguard some
of the more important trees in an area of amenity space, and the trees had been
assessed in an arboricultural survey as to their condition. However no specialist
entomological survey had been carried out to identify those moribund trees
which were particularly rich in dead wood invertebrates. It is this fauna which
gives traditional orchards their biodiversity importance.
Paragraph 99 of Circular ODPM 06/2005 states “It is essential that the presence or otherwise
of protected species, and the extent that they may be affected by the proposed development,
is established before the planning permission is granted, otherwise all relevant material
considerations may not have been addressed in making the decision.
The level of ecological assessment information submitted with the application is insufficient
to properly assess the impact of the proposal on features of ecological/biodiversity value. As
such, it is not possible to assess the proposal and whether it would have an adverse effect on
the above species, sites and habitats. For these reasons it has not been demonstrated that,
the proposed development would comply with Wychavon District Local Plan 2006 Policies
ENV5, ENV6 and ENV7, policy SWDP22 of the emerging South Worcestershire Development
Plan and the provisions of the National Planning Policy Framework.
6.
I believe that the relevant wildlife legislation and planning guidance is as follows:
The Wildlife and Countryside Act 1981 (as amended) (WCA)
The WCA implements parts of the EC Birds Directive 2009 and the Berne Convention (1979) into
national legislation. It includes a number of schedules which are reviewed (usually every five
years) in which details of the protected species and their level of protection are given.
The Conservation of Habitats and Species Regulations 2010 (S.I. 2010 No. 490)
This Statutory Instrument transposes the EC Habitats Directive into national law. Article 12(1)
of the Habitats Directive requires strict protection for the animal species listed in Annex IV.
Regulation 41(1) states that a person who deliberately disturbs wild animals of any European
protected species, damages or destroys a breeding site or resting place of such an animal, is
guilty of an offence. Regulation 41(2) states that ‘disturbance’ includes any disturbance which
is likely to impair the ability of a European protected species to survive, to breed or reproduce,
or to rear or nurture its young, or to hibernate or migrate. It also includes any disturbance
which is likely to affect significantly the local distribution or abundance of a European protected
species.
Natural Environment and Rural Communities Act 2006 (NERC Act).
Section 40(1) 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.”
Section 41(1) states “The Secretary of State must… publish a list of the living organisms and
types of habitat which in the Secretary of State’s opinion are of principal importance for the
purpose of conserving biodiversity.” This list was last updated in August 2010.
ODPM Circular 06/2005
Part 3 A 84 states: “The potential effects of a development, on habitats or species listed as
priorities in the UK Biodiversity Action Plan (BAP) [also known as Species and Habitats of
Principal Importance], and by Local Biodiversity Partnerships, together with policies in the
England Biodiversity Strategy, are capable of being a material consideration in… the making
of planning decisions.”
Part 4 A 98 states: “The presence of a protected species is a material consideration when a
planning authority is considering a development proposal that, if carried out, would be
likely to result in harm to the species or its habitat. Local authorities… should also advise
developers that they must comply with any statutory species’ protection provisions
affecting the site concerned. For European protected species… further strict provisions
apply… to which planning authorities must have regard.”
Part 4 A 99 states: “It is essential that the presence or otherwise of protected species, and the
extent that they may be affected by the proposed development, is established before the
planning permission is granted, otherwise all relevant material considerations may not have
been addressed in making the decision. The need to ensure ecological surveys are carried
out should therefore only be left to coverage under planning conditions in exceptional
circumstances, with the result that the surveys are carried out after planning permission
has been granted… the survey should be completed and any necessary measures to protect
the species should be in place, through conditions and/or planning obligations, before the
permission is granted. In appropriate circumstances the permission may also impose a
condition preventing the development from proceeding without the prior acquisition of a
licence under the procedure set out in section C below.”
Natural England Standing Advice Species Sheet: Bats, 2013
Section 4.1 states “All surveys should be undertaken by suitably experienced, and where
necessary, licensed surveyors... The Bat Surveys Good Practice Guidelines published by the
BCT provide comprehensive advice on how and when to undertake bat surveys.”
Section 5 states “LPAs must consider whether proposals have attempted to avoid impacts and
whether there are any satisfactory alternatives to the proposed scheme, which would have
less of an impact on protected species in determining whether to grant planning
permission.”
Section 5.1 (Indirect impacts) states “As well as direct impacts upon bats and their breeding
sites or resting places, development activities may result in indirect impacts and these
should be fully considered at the application stage. Such indirect impacts could include:
 Lighting - the use of lighting (be it street lighting, security lighting or flood
lighting) may affect bats... Depending upon the species involved, it may also
impact upon their feeding and commuting areas with some species actively
avoiding lit areas…
 Loss of commuting habitat - if key habitat linkages such as... woodland and
shelter belts are lost or severed, this may have indirect impacts upon the breeding
site or resting place used by bats... For significant roosts or where there are high
levels of bat activity, the survey should identify important habitat linkages and,
where impacts are likely, the mitigation scheme should ensure maintenance of
these linkages and key flight lines to and from the roosts…”
Bat Conservation Trust: Bat Surveys Good Practice Guidelines, 2012
Box 2.1 Planning and Development Trigger List for Bat Surveys (p.9) states that bat surveys
should be undertaken for any proposal involving the felling or removal of mature trees with
obvious holes and cracks, and for all proposals in sites where bats are known to be present.
Natural England Standing Advice Species Sheet: Eurasian Otter, 2013
Section 4.1 states “All surveys should be undertaken by suitably experienced, and where
necessary, licensed surveyors. Surveys should be undertaken where it is likely that impacts
would result.”
Section 4.2 states “Avoidance measures built into development proposals may remove the need
for detailed survey work and Local Planning Authorities (LPAs) should seek expert advice in
determining cases when this may be applicable. Similarly, mitigation measures built into
proposals may also reduce the amount of survey work required (including survey effort and
spatial extent), though there must still be sufficient information supplied to understand the
nature of impacts and their likely effect on the conservation status of the species
concerned.”
Section 5.1 (Assessing impacts) states “The loss or degradation of habitat, severance of habitat
connectivity, loss and disturbance of holts or resting places and changes to water quality
can all result in impacts upon otters and these should all be avoided or fully mitigated…”
Natural England Standing Advice Species Sheet: Great crested newts, 2013
Section 4.1 states “Natural England has published detailed guidance on surveys to inform
development. All surveys should be undertaken by suitably experienced, and where
necessary, licensed surveyors. A survey for great crested newts may be required when there
is:
 Any historical record for great crested newts on the site, or in the general area.
 A pond on or near the site (within around 500m provided that they are not
separated by significant barriers to dispersal such as a major trunk road or
motorway), even if it holds water only seasonally. Note that muddy, cattlepoached, heavily vegetated or shady ponds, ditches and temporary, flooded
hollows can be used by great crested newts.
 Sites with refuges (such as piles of logs or rubble), grassland, scrub, woodland or
hedgerows within 500m of a pond provided that they are not separated by
significant barriers to dispersal such as a major trunk road or motorway.
Section 4.2. states “Avoidance measures built into development proposals may remove the need
for detailed survey work and Local Planning Authorities (LPAs) should seek expert advice in
determining cases when this may be applicable. Similarly, mitigation measures built into
proposals may also reduce the amount of survey work required (including survey effort and
spatial extent), though there must still be sufficient information supplied to understand the
nature of impacts and their likely effect on the conservation status of the species concerned.
Again, LPAs should seek expert advice in determining cases when this may be applicable
Natural England Standard Comment on Local Wildlife Sites (LWS)
In its consultation response to the Council on recent planning applications, Natural England has
submitted the following standard comment with relation to Local Sites: “If the proposal site is
on or adjacent to a local site, e.g. Local Wildlife Site (LWS), Regionally Important
Geological/Geomorphological Site (RIGS) or Local Nature Reserve (LNR) the authority should
ensure it has sufficient information to fully understand the impact of the proposal on the local
site before it determines the application.”
REASONED JUSTIFICATION FOR REFUSAL REASON 4 IN THE LIGHT OF THE ABOVE
7.
The Council is concerned that the development will have unacceptable negative impacts on
biodiversity. The Council recognises that the site is not statutorily designated for its ecological
or biodiversity importance. However, this is a particularly sensitive site, integrally located
within a cohesive ecological network that includes Kemerton Lake LWS (330 metres to the east)
[LWS designation sheet, Appendix 1], Kemerton Wood Nature Reserve (immediately to the
east), Upstones Orchard (traditional damson orchard immediately to the east), and Benshams
Wood Nature Reserve (immediately to the west) [see map submitted to the Planning
Inspectorate by Kemerton Conservation Trust, 13 June 2014, Appendix 2]. The site thereby
forms a key component of the Green Infrastructure in the Bredon locality. Accordingly, the
Council is of the view that the site forms an important part of a ‘coherent ecological network’
as referred to in paragraph 109 of the NPPF. Development of the appeal site would be likely to
cause harm to individual species as well as reducing connectivity between neighbouring
habitats.
8.
Nine European protected species of bat have been recorded, either on the site or within
neighbouring Upstones Orchard / Kemerton Wood / Benshams Wood, in annual surveys
undertaken since 2009 by Kemerton Conservation Trust and Worcestershire Bat Group. These
include Daubenton’s (Myotis daubentonii), whiskered (Myotis mystacinus) / Brandt’s (Myotis
brandtii), Natterer’s (Myotis nattereri), Leisler’s (Nyctalus leisleri), noctule (Nyctalus noctula),
brown long-eared (Plecotus auritus), common pipistrelle (Pipistrellus pipistrellus), pygmy
pipistrelle (Pipistrellus pygmaeus) and lesser horseshoe (Rhinolophus hipposideros). There are
six bat roosting boxes 85 metres west of the site in Benshams Woods. There are a further eight
bat roosting boxes 150 metres south-east of the site in Kemerton Wood. The site lies on a flight
corridor directly between the two woods.
9.
Based on Natural England’s Standing Advice Species Sheet: Bats, the Council is concerned that
the proposal is likely to sever key habitat linkages, with the result that the local abundance and
distribution of bats are affected. The use of domestic lighting associated with the proposal may
have negative impacts upon bats’ feeding and commuting areas. The appellant has provided no
specialist survey evidence to show how bats might be affected by the proposal, or how negative
impacts might be avoided, mitigated or compensated for. The proposal therefore fails to satisfy
NPPF paragraphs 109 (third bullet point), 118 (first bullet point) and 165, NPPG paragraph 016,
ODPM Circular 06/2005 parts 4 A 98 and 4 A 99, Local Plan policy ENV6, and emerging local
plan policy SWDP 22 (A).
10. Otter (Lutra lutra) is a European protected species. Otters are regularly recorded at Kemerton
Lake LWS, which is a particularly important refuge when the rivers Carrant and Avon are in
flood and food sources are displaced. The only access otters have to Kemerton Lake is via the
outflow stream that passes 60 metres south of the appeal site. The Council is concerned that
the proximity of housing and disturbance by domestic pets may inhibit otters from using this
stream and thereby accessing Kemerton Lake. Natural England’s Standing Advice Species Sheet:
Eurasian Otter states that “severance of habitat connectivity … can all result in impacts upon
otters and these should all be avoided or fully mitigated”. The appellant has provided no
specialist survey evidence to show how otters might be affected by the proposal, or how
negative impacts might be avoided, mitigated or compensated for. The proposal therefore fails
to satisfy NPPF paragraphs 109 (third bullet point), 118 (first bullet point) and 165, NPPG
paragraph 016, ODPM Circular 06/2005 parts 4 A 98 and 4 A 99, Local Plan policy ENV6, and
emerging local plan policy SWDP 22 (A).
11. Great crested newt (Triturus cristatus) is a European protected species. Great crested newts
are recorded on the site designation sheet for Kemerton Lake LWS (Site No: SO 93/12) in
Appendix 1, referred to above. The most suitable breeding habitat for newts within the LWS is
the former settlement pond at its western extremity, approximately 330 metres from the
appeal site. However, there are also several small and seasonal ponds in Kemerton Wood,
which may provide breeding habitat within 150 metres of the site. According to Natural
England Standing Advice Species Sheet: Great Crested Newts, a moderately busy road such as
Cheltenham Road (B4079) would not provide a significant barrier to newt dispersal. The
Council therefore considers it reasonably likely that great crested newts are present in and
around the appeal site. The appellant has provided no specialist survey evidence to show how
great crested newts might be affected by the proposal, or how negative impacts might be
avoided, mitigated or compensated for. The proposal therefore fails to satisfy NPPF paragraphs
109 (third bullet point), 118 (first bullet point) and 165, NPPG paragraph 016, ODPM Circular
06/2005 parts 4 A 98 and 4 A 99, Local Plan policy ENV6, and emerging local plan policy SWDP
22 (A).
12. The Council is concerned that the development will have negative impacts on a Local Wildlife
Site. It will have the effect of extending the built edge of Bredon in the direction of Kemerton
Lake LWS. The boundary of the LWS is approximately 330 metres east of the appeal site,
however the hinterland of the LWS (Kemerton Wood and Upstones Orchard) extends right to
the appeal site itself. Both Kemerton Wood (native woodland) and Upstones Orchard
(traditional damson orchard) are managed as nature reserves by a wildlife charity and together
with the appeal site and Benshams Wood, form a continuous ecological network with the LWS.
The development of housing at the appeal site would remove the existing buffer between the
built-up edge of Bredon and the LWS. It would lead to an increase in disturbance by people and
domestic animals at the LWS and its hinterland. The development would bring the LWS within
the normal daily range of a significant additional number of domestic cats. The negative effects
of cat predation on wildlife populations have been well-documented in a number of peerreviewed academic studies. American Bird Conservancy states that “scientists now list invasive
species, including cats, as the second most serious threat to bird populations worldwide.”
[Appendix 3]. In having negative impacts on a LWS, the proposal fails to satisfy NPPF
paragraphs 109 (third bullet point) and 118 (first and fifth bullet points), Local plan policies
ENV5 and ENV7, and emerging local plan policies SWDP 22 (B and C).
13. The Council has obtained an up-to-date list of all records of protected species and Species of
Principal Importance within 1 km of the appeal site. This contains significantly more records
than the list included in the appellant’s Statement of Case, Appendix 5. A Summary of Records
has been prepared [Appendix 4] to show which species are potentially using the appeal site,
and which species are breeding locally and therefore more likely to be adversely affected by the
appeal proposal.
14. The Council believes that the proposed development may have negative impacts on species
protected under the WCA. Kemerton Lake LWS has records of 33 bird species protected under
WCA Schedule 1, as well 10 mammal, 2 reptile and 5 amphibian species protected under WCA
Schedule 5. Most of these species are also recorded in the hinterland around the LWS. Many
of the mammal, reptile and amphibian species are also likely to be present on the appeal site
itself. ODPM Circular 06/2005 Part 4 A 98 states that “The presence of a protected species is a
material consideration when a planning authority is considering a development proposal that, if
carried out, would be likely to result in harm to the species or its habitat”. Some of these
protected species are not regarded as being affected by the proposal, including the rare species
which occasionally visit Kemerton Lake. However, others are likely to suffer disturbance and a
contraction in their range, particularly those identified as breeding on or close to the site in the
Summary of Records in Appendix 4, referred to above. The appellant has provided no survey
evidence to show how a number of protected species might be affected by the proposal, or
how negative impacts might be avoided, mitigated or compensated for. For all these reasons,
the proposal fails to satisfy NPPF paragraphs 109 (third bullet point), 118 (first bullet point) and
165, NPPG paragraph 016, ODPM Circular 06/2005 parts 4 A 98 and 4 A 99, local plan policy
ENV6, and emerging local plan policy SWDP 22 (A).
15. In addition to protected species, the Council believes that the proposed development may have
negative impacts on Species of Principal Importance as determined by Section 41 of the NERC
Act. Under ODPM Circular 06/2005 part 3 A 84, Species of Principal Importance are capable of
being a material consideration in the making of planning decisions. At Kemerton Lake and its
hinterland, 20 bird species, 3 mammal species, 14 invertebrate species, 1 fungus species and 2
plant Species of Principal Importance have been recorded (not including species protected
under the WCA which are also Species of Principal Importance). These have also been included
in the Summary of Records in Appendix 4, referred to above. Under ODPM Circular 06/2005,
such species are capable of being a material consideration in the making of planning decisions.
The appellant has provided no survey evidence to show how many of these species might be
affected by the proposal, or how negative impacts might be avoided, mitigated or compensated
for. In the absence of such information, the Council is unable to meet its duty under the NERC
Act to have regard to the purpose of conserving such species. For all of the above reasons, the
proposal fails to satisfy NPPF paragraphs 109 (third bullet point), 118 (first bullet point) and
165, NPPG paragraph 016, ODPM Circular 06/2005 parts 4 A 98 and 4 A 99, and emerging local
plan policy SWDP 22 (B).
16. Traditional Orchard is listed by the Secretary of State as a Habitat of Principal Importance for
Conservation. Under ODPM Circular 06/2005 part 3 A 84, Habitats of Principal Importance are
capable of being a material consideration in the making of planning decisions. Furthermore,
NPPF paragraph 118 states “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”. NPPG Paragraph 023 states that guidance as to whether
trees are ‘aged or veteran’ trees is provided by Natural England publication Veteran Trees: A
guide to good management (IN13). This states that “a veteran tree can be defined as a tree
that is of interest biologically” [Chapter 2, p.13], and that “veteran orchard trees have a very
distinct invertebrate fauna associated with them” [p.21, paragraph 2.3.4.7].
17. The appeal site contains two significant remnants of traditional orchard which together form
the central part of a larger block of traditional orchard, comprising a section of overgrown
orchard to the west, and Upstones Orchard to the east. Upstones Orchard has recently been
restored by a wildlife charity. The Council is concerned that the proposal will result in the loss
of an important remnant of traditional orchard, as well as degrading the neighbouring orchards
which will no longer benefit from such a high degree of ecological connectivity. In these
respects, the proposal fails to satisfy NPPF paragraphs 109 (third bullet point), 118 (first and
fifth bullet points), Local Plan policy ENV7, and emerging local plan policy SWDP 22 (B and C).
18. No detailed specialist invertebrate survey of the site has been carried out by the appellant. This
is despite the fact that the main ecological value of traditional orchard lies in providing suitable
conditions for saproxylic invertebrates that depend on dead or dying wood. The site’s
importance is therefore hard to assess. However a preliminary entomological investigation
carried out by Mr Paul Whitehead for Kemerton Conservation Trust on 11 January 2013 gives
an indication of the potential value of the site. [my Appendix 5]. Mr Whitehead is an
internationally recognised entomologist and landscape consultant who has exceptional
knowledge of the invertebrate fauna of Worcestershire. He has made almost 600 contributions
to scientific literature, and several beetle species have been named after him. He has a
particular expertise in saproxylic invertebrates. Steven Bloomfield of the Worcestershire
Wildlife Trust describes him as an “experienced ecologist with a strong background in the range
of invertebrates relevant to this application” [email to the Council of 27 September 2013]. Mr
Whitehead was only granted access to a small fraction of the site for a brief period, at an
unsuitable time of year. Nonetheless, he was able to record a number of rare or scarce
invertebrates. These include the Red Data Book species Prionychus melanarius (diagnostic of
veteran trees), the nationally scarce Dorcatoma dresdensis, and Trox scaber (associated with
nests of cavity-nesting birds and bats, and an indicator species of extensive systems). While
these results cannot be considered comprehensive, they do indicate that a detailed
invertebrate survey is merited so that the impact of development can be properly evaluated.
[NB. The findings of this investigation were made available to Bredon Parish Council, who in
turn emailed them to the Council on 22 January 2013 as evidence that a Tree Preservation
Order was needed to halt the felling of veteran fruit trees which had begun that month]. Mr
Whitehead made a second brief visit to the site on 6th June 2014, when he mostly looked at the
land around the site. He subsequently prepared a Brief Overview of the Invertebrate Fauna of
Benshams, which was posted on the Council’s planning website on 15 Jul 2014 under Appeal
Correspondence from Paul Whitehead [Appendix 6]. This overview states that “the site is
significant in the maintenance of regional biodiversity” and that further work “will be required”.
In failing to provide a detailed invertebrate survey, the proposal fails to satisfy NPPF paragraph
165, NPPG paragraph 016, and ODPM Circular 06/2005 part 4 A 99.
19. Mr Whitehead also wrote to the Planning Inspectorate on 1 May 2014. He argued that the
importance of the appeal site for invertebrates was not limited to the areas of traditional
orchard. Across the site there were remnant features of a medieval Great Field and that “these
extensive systems and their correspondingly rich biotas are vulnerable and sensitive”. These
archaic features are not recognised as a Habitat of Principal Importance, but nonetheless they
deserve consideration when assessing the biodiversity importance of the site.
ASSESSMENT OF THE SURVEY EVIDENCE PROVIDED BY THE APPELLANT
20. NPPF paragraph 165 states that “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.”
21. NPPG paragraph 016 states “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”. It further states “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”. It also states “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”.
22. OPDM Circular 06/2005 part 4 A 99 (confirmed by NPPF paragraph 113, footnote 24) 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.
23. Therefore, in order to comply with national planning policy and guidance, any planning
proposal needs to satisfy two tests.
Test One
Applicants need to demonstrate whether or not protected species are likely to be affected by
development. This requires an ecological investigation which may consist of desk top studies,
walk-over surveys or detailed surveys. However, investigations should incorporate all available
data, and be of sufficient scope to establish whether or not any protected species (either on or
off the development site) is likely to be affected by the proposal.
Test Two
If it is established that protected species are likely to be affected (either through Test One or
otherwise), then applicants are required to carry out detailed surveys for those species.
Surveys should aim to establish the possible impacts of development on protected species, and
whether harms might be avoided, mitigated or compensated for. Surveys should broadly
comply with British Standard BS42020:2013 (Biodiversity Code of Practise for Planning &
Development), which is intended to provide guidance for ecology practitioners, local authorities
and other professionals involved in the preparation and determination of planning applications.
24. The appellant’s consultants, AA Environmental Ltd, have submitted an Ecological Statement as
part of the appellant’s Statement of Case, Appendix 5. This summarises the ecological
investigations that have been carried out by the appellant in four sub-appendices: A, B, C & D.
The scope and methodology each of these investigations will be looked at in turn.
A. Ecological Appraisal dated 16 January 2013 (also referred to as ‘Ecological Letter Report’
in Appendix 5).
This appraisal does not meet the required standards set by BS42020:2013.
Correct timing is critical when carrying out ecological surveys. This appraisal is based on a
walk-over survey which was carried out on 3 January 2013. This is a totally unsuitable time
of year for surveying many of the protected species for which records exist in close
proximity to the appeal site. Grass snake (Natrix natrix), slow-worm (Anguis fragilis) and
terrestrial newts are extremely hard to locate in their hibernation quarters. All of the bat
species recorded around the site would be confined to hibernation roosts. None of the
summer visitor bird species would have been present.
The walk-over survey appears to have been cursory. It failed to record even some of the
more common species found by Mr Whitehead in his brief visit of 11 January 2013.
The appraisal fails to identify records held at the Worcestershire Biological Records Centre
for a number of European protected species, WCA protected species, and Species of
Principal Importance occurring in close proximity to the site.
The appraisal fails to identify the significance of the site as a component of an ecological
network, and does not consider how the proposal would affect species in the neighbouring
areas of high biodiversity rather than on the site itself.
B. Preliminary Appraisal of Invertebrate Interest (PAII) by Colin Plant Associates based on a
survey carried out on 2 June 2013 (also referred to as ‘Invertebrate Assessment’ in
Appendix 5).
This appraisal does not meet the required standards set by BS42020:2013.
The scope of this survey is too narrow, and seems to have been confined solely to the
search for noble chafer (Gnorimus nobilis). Mr Plant himself acknowledges this, stating
that “it was not our intention to obtain a list of invertebrates on this visit”. He implies that
it is possible to appraise the habitat without investigating in detail what invertebrates are
actually present. The serious limitations of this approach are summarised by Mr
Whitehead in his email to Wychavon Planning Department of 19 September 2013: “The
published surveys I have seen cannot be regarded as surveys in the known sense of the
word because, from what I can see, they lack facts and they lack evidence.” [Appendix 7]
The survey appears to have been cursory. It failed to record any of the rare or scarce
invertebrates noted by Mr Whitehead in his visit of 11 January 2013 at a sub-optimal time
of year.
The appraisal fails to recognise the relationship between traditional orchards and a group
of associated saproxylic invertebrate species, documented in publications such as English
Nature Scientific Report no. 707 [The biodiversity of three traditional orchards within the
Wyre Forest SSSI] and Natural England Research Report NERR025 [Biodiversity studies of six
traditional orchards in England].
The appraisal fails to evaluate the site as a component of an ecological network. Indeed,
Mr Plant reveals a lack of understanding of the nature of such ecological networks. He
states that “the site is flanked on two sides by larger areas of derelict orchard… that are…
far more likely to support ecologically interesting or important invertebrates that are
associated with derelict orchards”. In fact, the opposite of this is true. The appeal site is
more likely, not less likely, to contain important species due to the proximity of other
suitable habitat. Importantly, the value of the network is greater than the sum of its parts.
The appraisal also fails to recognise that the invertebrate value of the site is not confined to
the veteran fruit trees. This is demonstrated by Mr Whitehead’s submission, referred to in
section 19 above.
Mr Whitehead states the following in his email to Wychavon Planning Department of 19
September 2013: “The published surveys I have seen cannot be regarded as surveys in the
known sense of the word because, from what I can see, they lack facts and they lack
evidence.”
C. Supplementary Ecological Report dated August 2013.
This report does not meet the required standards set by BS42020:2013.
This report is primarily limited to addressing the failure of the Ecological Appraisal to list
the relevant Local Wildlife Sites, as discussed above.
It lists 20 protected/notable animal species recorded within 2 km of the site. However, this
list omits records held at the Worcestershire Biological Records Centre for more than 100
European protected species, WCA protected species, and Species of Principal Importance
recorded within 1km of the site [see the Summary of Records in Appendix 4, referred to
above]. In particular, the report makes no mention of bats, which are known to forage and
roost close to the appeal site, or of otters, which use the watercourse 60m to the south.
In particular, the report omits all ground nesting birds except skylark (Alauda arvensis), a
group which would be particularly likely to be affected by the increased disturbance
generated by the proposal.
The report fails to identify the significance of the site as a component of an ecological
network, and does not consider how the proposal would affect species in the neighbouring
areas of high biodiversity rather than on the site itself.
The report states that a further walk-over survey was completed on 1 August 2013.
However, no details are given of this except the statement “The results of the follow-up
survey support the previous findings, with the site in a similar condition as previously
recorded with no notable changes.” This statement seems inadequate, given that the
previous findings were undertaken in mid-winter rather than mid-summer, when an
entirely different set of results would be expected. No indication is given of the weather
conditions, of the time or the duration of the survey, or whether operations such as ‘insect
sweeping’ were undertaken. The date of the survey is unsuitable for recording some of the
protected species likely to be found on or around the site. It is too late in the year to
detect adult newts returning from their breeding ponds, and approximately two weeks too
early for detecting ‘efts’ (the young of the year).
D. Extracts from Magic showing Traditional Orchard Sites.
The MAGIC map extract confirms the presence of traditional orchard on the site and helps
to illustrate the importance of connectivity. However, it is worth noting that the extract is
drawn so as to exclude the one known site for noble chafer (Gnorimus nobilis) in Bredon
lying 1.4km to the south-west.
25. The National Planning Policy Framework and Planning Practice Guidance is clear that pursuing
sustainable development includes moving from a net loss of biodiversity to achieving net gains
for nature. Also, that a core principle of planning is that it should contribute to conserving and
enhancing the natural environment. The appeal proposal will result in the loss of an area of
Habitat of Principle Importance, and seems likely to have negative impacts on the wider
ecological network, as well as on some protected and important species.
26. In order that the Council could properly evaluate these impacts (and thereby discharge its duty
under the NERC Act to have regard to conserving biodiversity), it was essential that appropriate
surveys were undertaken prior to approval being granted. As stated above, such surveys are
also a requirement of national planning policy and guidance. The ecological investigations
submitted by the appellant have been cursory and inadequate, both in terms of scope and
execution. For example, a specialist bat survey should have been carried out, taking account of
the effect of light pollution on commuting and foraging bats. An otter survey should have been
undertaken to examine the impact of development on otters using Kemerton Lake LWS. A
great crested newt survey should have been undertaken in accordance with best practice (e.g.
pitfall trapping from March to May, or in September, as recommended in the Great Crested
Newt Mitigation Guidelines published by Natural England in August 2001, p.25). A reptile
survey should have been undertaken, given that protected reptile species are recorded
immediately adjacent to the site. A dead wood invertebrate survey should have been carried
out, given that traditional orchard is a Habitat of Principal Importance. In the absence of the
necessary information, the Council has been unable to evaluate the ecological impacts of the
proposal, and above all to understand which harms should be avoided, mitigated, or as a last
resort compensated for.
SUMMARY OF RELEVANT NATIONAL AND LOCAL PLANNING POLICY AND GUIDANCE
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;
th
(5 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.
NPPG Paragraph 023
Guidance on the features and importance of veteran trees is provided by Natural England – link
to Natural England publication Veteran Trees: A guide to good management (IN13). [This
publication states that “a veteran tree can be defined as a tree that is of interest biologically”
[Chapter 2, p.13], and that “veteran orchard trees have a very distinct invertebrate fauna
associated with them” [p.21, paragraph 2.3.4.7]].
7.
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.
8.
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.
9.
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.
10. 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.