Summary: There was no fault by the Council in how it handled planning matters regarding the protection of bat populations. It considered all the relevant information and decided that the applicant had not breached the planning condition.

The complaint

1. Mr B complains that the Council failed to take action in response to reports that the developer was breaching a planning condition relating to protecting the bat population.
2. Mr B also complains that the Council’s response to his complaint was inadequate. He says it was cursory and unhelpful, and referred the matter back to its enforcement process which means he did not get a response to the points he had raised.
3. Mr B says that as a result of the Council’s shortcomings, it has no way of assessing the impact of the development on the bat populations.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

6. I considered the information provided by Mr B and discussed the issues with him. I considered the information provided by the Council including its file documents. I interviewed the relevant officers from the Council’s Planning Service. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement and I considered comments received before issuing this final statement.

Back to top

What I found

7. Bats are protected by United Kingdom and European law. Because of this, councils must consider the impact development will have on bats and their environment when making decisions on development proposals. The government issued guidance in the Office of the Deputy Prime Minister (ODPM) Circular 06/2005:
• The presence of a protected species is a material planning consideration. Where a development might harm a protected species or its habitat, the Council should consult with Natural England before granting planning permission. (paragraph 98)
• The circular states that it is essential that the presence of protected species and the extent to which they may be affected by the proposed development is established before the planning permission is granted, otherwise all relevant material planning considerations may not have been addressed in making the decision. The need for ecological surveys should therefore only be left to be required under planning conditions in exceptional circumstances, as this will result in surveys for protected species being carried out after planning permission is granted. (paragraph 99)
• Where it is likely that a protected species may be affected by the development, the survey should be completed and the necessary measures in place, through planning conditions and/or planning obligations, before the permission is granted. (paragraph 99)
8. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
9. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
10. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)

What happened

11. In 2017, the Council granted planning permission to develop a grade two listed building for residential use. The site is a scheduled ancient monument site and is in an area of special scientific interest, and a special area of conservation. The applicant engaged a consultant ecologist to look at various issues including wildlife conservation and submitted a report on the local bat population.
12. The application site includes a building damaged by fire in 1980’s. This had a bat roost, and there is anecdotal evidence that the colony was displaced to a new roost elsewhere and away from the application site. Mr B, a wildlife specialist, surveys the new roost to monitor the colony. As part of the development, the applicant will replace the roost damaged by fire, with an artificial roost.
13. The Council consulted the County Ecologist on the application, who recommended the Council attach a planning conditions to make sure that this restored roost does not damage the colony currently roosting at the site Mr B surveys.
14. The Council attached a planning condition that no work should take place until it had approved a bat monitoring strategy, that would set out how the bat population would be monitored following construction. The strategy should amongst other things, identity adequate baseline conditions, criteria against which conservation measures can be judged, methods of data gathering and analysis and the details of monitoring. The condition also says that the monitoring strategy will be implemented in accordance with the approved details thereafter, and the applicant must regularly report the results of monitoring to the Council.
15. In 2018, the applicant submitted a bat monitoring strategy. The Council approved the strategy and discharged the planning condition. The strategy said to assess the effectiveness of the new artificial roosts, they would need careful monitoring of the existing roost that Mr B surveys. It will be a full success if the new artificial roosts are used by most of the bat colony there. If the population of the existing roost decreases it would indicate the work was having a negative effect.
16. The strategy said there was insufficient baseline data on the bat population and the displaced colony, and the applicant would contact Mr B and other specialists for baseline data so that it could show the success of a new bat roost on the application site, replacing that lost to the fire.
17. On 18 April 2020, the Council established that the development had commenced. At the end of 2021, Mr B alerted the Council that work was starting without anyone contacting him for baseline bat data in accordance with the strategy. Mr B said this meant the applicant had breached the planning condition, and when the bat population is monitored at various stages of the development, there will be no means to understand the impact of the development on this.
18. In January and February 2022, the Council contacted the applicant and the applicant’s ecologist. The Council’s enforcement report says that the ecologist had contacted Mr B (and others) as set out in the strategy, and Mr B had reported that he had no data as surveying had been stopped during the COVID-19 restrictions. The owner of the land would not allow the applicant access, also due to COVID-19 considerations. Mr B asked the Council to consider the issue as a formal complaint. The Council told Mr B that its preliminary conclusion was that the condition had not been breached because the Council had discharged it prior to any work commencing.
19. Mr B disagreed with the Council and asked it to consider his complaint at stage two of its process. The Council said its planning service had decided there was no breach of planning control at that stage, but that the service would investigate this further to make sure the applicant was implementing the approved strategy.
20. In April, the applicant’s ecologist told the Council that he had been surveying the area since July 2021 in accordance with best practice and the approved monitoring strategy. The Council has not asked the County Ecologist (or any other specialist) to check that this surveying is in accordance with the strategy. It has explained that the applicant’s ecologist is suitably qualified and it has no reason to doubt that the reports produced are fit for purpose.
21. The Council concluded that the applicant had not breached the condition because it had approved the strategy prior to the development starting, and had contacted Mr B and the other interested parties (albeit after starting the work). It also considered that the applicant had implemented the approved strategy because it had requested from the data from Mr B and other third parties. This meant the Council could not take enforcement action.

Was there fault by the Council causing an injustice?

22. There was no fault in how the Council decided that the applicant had discharged the planning condition in 2018. The Council had considered and approved the submitted strategy.

• The task then was for the Council to decide whether the applicant had breached the condition. It is accepted that the developer does not have the baseline data as envisaged. There is no criticism of Mr B or the owner of the neighbouring building for not having data or allowing a survey due to COVID-19 considerations at that time. However, I am not persuaded that the Council would have taken enforcement action on this point, given that there was no data available.

23. The key issue for Mr B is that the baseline data is inadequate and so the impact of the development on the bat colonies cannot be properly assessed. However, this is not due to fault by the Council. The planning condition requires that the applicant’s strategy is implemented. I have considered whether the Council should have consulted the County Ecologist or some similar specialist to make sure that the applicant was properly implementing the approved strategy. However, there is no fault in the Council’s decision that this is not necessary because the applicant’s ecologist is suitably qualified and there is nothing that calls their reports into question.
24. It is open to the Council to decide that the applicant implemented the strategy when it asked Mr B and others for baseline data. It follows then that the Council decided that there had been no breach of the planning condition, and so there was no basis for it to take enforcement action.
25. HThe Council has shown it gave its decision due to consideration, taking into account the wording of the condition, and the information it gathered about the strategy and how this had been implemented. There is no fault in its decision-making and so no basis for me to criticise its decision that it cannot take enforcement action.
26. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended).
27. In this case, Mr B has raised that the Council should not have granted planning permission without the baseline date. Mr B had these concerns when the Council granted permission in 2017 and so could have complained to us then.
28. However, I can see that Mr B may have considered the planning condition could have been sufficient to protect the bat population, and so it may be that his cause to complain to the Ombudsman came later on, when Mr B realised that the developer would have no baseline data from him or the owner of the building with the nearby roost. For this reason, I have considered whether there was fault in the Council grating planning permission subject to a condition to survey the bat population.
29. It is regrettable that the applicant has not been able to get baseline data from Mr B and others as envisaged. The government guidance says that the Council should know the extent of the bat populations, and the likely impact of the development before it grants permission.
30. It is for the Council as local planning authority to grant or refuse planning permission, and to decide on any conditions. In this case, the County Ecologist and Natural England considered the bat survey data that the applicant submitted as part of the application. This gave the information about the bat populations and the likely impact of the development. The County Ecologist and Natural England considered that the data needed strengthening so as to monitor the impact on the bats, but also considered that this could be controlled by planning condition. I acknowledge that it is for the Council to ultimately decide this point, but we would expect it to take into account the advice of those specialists.
31. Provided that it has considered the survey information submitted with the application and the advice of the specialists, it is open to the Council to decide that this is within the government guidance to grant planning permission with a condition regarding monitoring of the bat populations.
32. Mr B says the developer committed to other surveys which would inform the data and he suspects these have not been completed. However, the strategy requires regular reporting to the Council and there is no evidence that the developer’s ecologist has not undertaken the surveys as agreed. It hopes that in due course, it will be able to add recent data from Mr B’s surveying, and that the owner of the nearby property will allow the developer’s ecologist or another suitable professional access to survey there.
33. The Council dealt with the complaint adequately. It is sufficient for the Council to respond to the complaint with a plan for further investigation it considered necessary.

Back to top

Final decision

34. I have completed my investigation. There was no fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman