Tetlow King Planning (TKP) has achieved a major success in persuading Cornwall Council to grant planning permission for 22 affordable homes at St. Stephen for Registered Social Landlord, Devon & Cornwall Housing Association (DCHA). Members overturned Officers’ recommendations to refuse the application.
A preliminary ecological appraisal of the site identified features that could accommodate bats and dormice. Given the potential for the presence of protected species at the site, the Council’s Ecologist requested DCHA to undertake a detailed survey of bats and dormice prior to its determination of the application.
The Council’s Planning and Legal Officers agreed with the Ecologist that it would be illegal and unacceptable for a condition to be attached to planning permission requiring ecological surveys to be carried out post determination.
The Officers’ demand for the ecological surveys to be undertaken prior to determination seriously threatened the deliverability of the affordable housing scheme. The application proposal had attracted grant funding from the Homes and Communities Agency and Cornwall Council subject to planning permission being granted. However, this funding could only be secured if the application was granted by 31 January 2010. Permitted survey periods meant that the bat and dormouse surveys that the Ecologist was seeking could not be commenced until March 2010. Consequently, DCHA was very concerned that if Members resolved to grant permission subject to ecological surveys instead of granting permission subject to conditions, the funding would have been lost and the 22 affordable homes would not have been delivered.
DCHA instructed TKP to assess whether it was reasonable for Members to grant planning permission with conditions attached to ensure that the detailed ecological surveys are carried out. Jonathan Adams, Director at Tetlow King Planning reviewed Officers’ objections and the material considerations in favour of the application proposal.
Officers referred to a court case – the judgement of Regina v Cornwall County Council ex parte Jill Hardy, September 2000 – where it was held that the Council should not impose a condition to request further work to identify the likely environmental impacts after permission has been granted. Jonathan advised Cornwall Council that the court case involved a site where the evidence revealed that it was highly likely that protected species were present at the site that would have been adversely affected by the proposed development.
Jonathan advised that the court case was significantly different to the application scheme because there was no certain evidence of bats or dormice at the application site. Even if protected species are found to be present at the site, the removal of only a small element of their potential habitat would have an extremely negligible impact.
Officers also referred to PPS9 ‘Biodiversity and Geological Conservation’, which advises that protected species are a material consideration in the planning process. Jonathan reiterated the applicant’s willingness to accept conditions to provide the surveys albeit post determination. The County Council’s Ecologist also referred to ODPM Circular 06/2005 ‘Biodiversity and Geological Conservation – Statutory Obligations and Their Impact within the Planning System’. Importantly, paragraph 99 of Circular 06/2005 explains that ecological surveys can be subject to planning conditions where there are exceptional circumstances:
“The need to ensure ecological surveys are carried out should therefore only be left to coverage under planning conditions in exceptional circumstances.”
Jonathan made the case to Cornwall Council that it was acceptable to grant planning permission subject to planning conditions requiring the bat and dormouse surveys and agreed mitigation measure for the following reasons:
- It was clear that the 22 affordable homes was a highly important material consideration that would benefit the local community;
- If Members resolved to grant planning permission subject to the bat and dormouse surveys being completed, the funding would not have been secured and the 22 affordable homes would not have been delivered. This was clearly an exceptional circumstance in accordance with Circular 06/2005 that warranted planning permission being granted subject to conditions;
- There was no certain evidence that showed bats or dormice are present at the site; and
- Even if bats and dormice are present, the proposed development would not adversely impact their habitat if the planning application was granted subject to appropriate conditions.
Despite the recommendations of Officers, Members at Cornwall Council agreed with Jonathan that the provision of affordable housing was an exceptional circumstance that warranted approval of the application scheme subject to the further ecological surveys being undertaken by conditions post determination.
Cornwall Council granted the planning application in January 2010. The 22 affordable dwellings will contribute to the acute need for affordable housing in St. Stephen and the wider area.