Wiltshire Council (18 016 592)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 04 Jul 2019

The Ombudsman's final decision:

Summary: Ms B complains about how the Council considered the environmental impact of a proposed housing development when it dealt with the application for planning permission. The Ombudsman finds no fault in the Council’s action in this matter. However, there was a delay in responding to Ms B’s complaint about it.

The complaint

  1. The complainant, whom I shall call Ms B, complains on behalf of a community group about the way the Council dealt with a planning application for development in their area. Specifically, she complains the Council failed to take proper account of the environmental impact of the proposed development. In addition, she complains the Council failed to deal properly with her complaint about the matter.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. If we are satisfied with a council’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)

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How I considered this complaint

  1. I considered all information submitted by Ms B about her complaint. I made written enquiries of the Council and took account of the response it provided. I provided Ms B and the Council with a draft of this decision and considered all comments received in response.

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What I found

Background

  1. The Council received a planning application for outline permission for up to 28 dwellings and access on agricultural land. Ms B submitted several objections to the proposed development, principally on grounds of loss of bio-diversity.

The views of the ecology officer

  1. One of the consultees in respect of the proposed development was the Council’s senior ecology officer.
  2. The officer’s first response, in February 2018, was an objection because she considered the ecological appraisal the developer had submitted was inadequate in several respects to support the application. The officer noted that the extent to which habitat losses could be offset by the proposed mitigation package needed to be brought out in the report.
  3. In April 2018, the developer submitted an ecological impact assessment report. The Council’s ecologist considered this report remained deficient in some respects: there was no additional survey, analysis remained vague and some judgements were inadequately substantiated. A habitat survey had only been conducted on one day in November and that was contrary to the Council’s own planning guidance which sets out optimal, sub-optimal and unreliable months for surveys of various species. The Council’s ecologist visited the site in May 2018 to make her own assessment of the site’s habitat quality, potential for protected species and its relationship with offsite areas. But the officer maintained her objection to the application at this point, because there were still matters which needed more information, for example relating to measures to mitigate the impact of the development on wildlife habitats and the lack of survey information relating to bats.
  4. In June 2018, the developer submitted more information and considering this the ecologist amended her consultation response. She was satisfied that overall the grounds for objection she had previously highlighted no longer applied. Although the formal consultation response still showed the response as ‘Objection’, the officer subsequently confirmed in an email exchange with the planning officer a few days later that she had intended before submitting it to amend it to show ‘No objection’. I shall return later in this statement to the key issues considered by the officer at this point which have been raised as issues of concern by Ms B.

The approval of the planning application

  1. The planning case officer prepared a report for committee. It noted that over 200 letters of objection had been received and that some consultees had also objected. A large section of the extensive report referred to ecology issues.
  2. The National Planning Policy Framework refers to to “minimizing impacts on biodiversity and providing net gains in biodiversity where possible”.
  3. The relevant Council policy on biodiversity is Core Policy 50 (CP50). The policy states that “Major development in particular must include measures to deliver biodiversity gains through opportunities to restore, enhance and create valuable habitats, ecological networks and ecosystem services”, but goes on to refer to compensation (that is, mitigation, so far as is possible) where other approaches cannot guarantee no net loss of biodiversity. It says, “Damage or disturbance to local sites will generally be unacceptable other than in exceptional circumstances where it has been demonstrated that such impacts cannot reasonably be avoided; are reduced as far as possible; are outweighed by other planning considerations in the public interest; where appropriate compensation measures can be secured through planning obligations or agreements”.
  4. In the case officer’s report, reference was made to a proposed buffer zone to mitigate impact of the development, and concluding this part of the report the planning officer said that while a net biodiversity gain could not be achieved, the Council’s ecologist considered that subject to ecological buffer zones it would result in no net loss.
  5. After initial consideration at committee a site visit for Members was arranged, and the matter was then brought back to committee for determination. During the debate on the application Members then had the opportunity to ask questions of planning officers and topics included the lack of a bat survey and the implications of habitat regulations. One Member moved refusal on grounds which included concerns about inadequate information relating to harm to European protected species, and the view that the proposal would result in a net loss to biodiversity, contrary to CP50. The planning officer said in response that the application was supported by an illustrative masterplan which included provision for new landscaping and densely planted buffers between new housing and the site boundaries, and the proposal had the capability of delivering net biodiversity gains through the planting of native species, improving boundary connectivity and delivering new habitats. Regarding bats, the Council’s ecologist had been satisfied, having considered the matter, that a bat survey was not necessary. Members were satisfied with the responses provided and the move to refuse was lost.
  6. After further debate, the Members were ultimately satisfied they had enough information to decide the application and they resolved that permission should be granted in line with the officer’s recommendation. The Council subsequently issued the approval, with pre-commencement conditions which included the submission and approval of a construction method statement (to include measures for the protection of the natural environment); a landscape and ecological management plan to include specified information; and a construction environmental management plan (to include specified details relating to avoiding harm to biodiversity features).

Ms B complains to the Council

  1. Ms B complained to the Council. The main points of complaint concerned her view that as a result of the information either presented or submitted to committee, Members could not have formed a balanced, reasonable or proportionate view of the environmental value of the site. She did not consider that there was evidence that there would be opportunity for net biodiversity gain, and she felt that the ecology officer had come under pressure to withdraw her objection and had said there were no European species of bat present even though no survey had been undertaken.
  2. Responding to the complaint, the Council said the officer’s report necessarily summarised consultation responses and confirmed that Members have access to the full responses and submissions. The Council said the issue was whether the officer’s report was so deficient or inaccurate that there was a risk Members did not have the opportunity to properly address all material planning considerations relevant to the application. While it accepted there were some omissions in information presented to Members on the ecological value of the site, it said that overall they were presented with a generally accurate summary of the relevant issues and able to make a reasoned decision.

My views on the key issues

  1. On the matter of the case officer’s report and information available to Members, I do not consider this was fatally flawed. The report was clear in its conclusion, in the balancing section of the report, that it could not be concluded that the development would achieve a net gain in ecology terms. That does not mean the application should automatically have been refused: it is clear that mitigation in the form of buffer zones and additional planting was a relevant consideration. Members could question aspects of the proposal which concerned them and they did so, and ultimately, they were satisfied they had enough information to decide to approve the application.
  2. Regarding the Council’s consideration of relevant legislation relating to ecology, the first consideration in planning was whether an Environmental Impact Assessment (EIA) was required. The Council as planning authority must complete a screening process to determine whether a proposed project falls within the remit of the UK Environmental Impact Regulations 2017, then whether it is likely to have a significant effect on the environment and therefore requires an assessment. In this case the Council completed a comprehensive screening opinion and concluded an EIA was not required. That was a decision the Council was entitled to make, and the process it followed in doing so was not affected by fault.
  3. A further relevant consideration was the need to consider a Habitats Regulation Assessment which may be undertaken where a development has the potential to have an impact on a European protected site. The relevant regulations in this regard are the Conservation of Habitats and Species Regulations 2017. The Regulations provide for the designation and protection of 'European sites', the protection of 'European protected species', and the adaptation of planning and other controls for the protection of European sites.
  4. Under the Regulations this planning application required screening for likely significant effects because the development proposed would discharge foul water to sewage treatment works within the catchment of the River Avon Special Area of Conservation (SAC). The Council has confirmed that at the time this planning application was dealt with, to comply with the Regulations, all development would have to be ‘phosphate neutral’. Once a Memorandum of Understanding had been drawn up and signed by relevant parties, demonstrating how phosphate arising from developments would be offset, the Council’s ecologist was able to conclude that the proposed development would not lead to a likely significant effect on the River Avon SAC. That was a view the Council was entitled to reach, and the process it followed in doing so was not affected by fault.
  5. On the issue of bats, the Council’s ecologist has explained her position and reasoning as follows. The first question is whether the development could lead to likely significant effects on designated areas (the SAC, or Special Protection Areas, or Ramsar wetland sites of international importance). If so, then a full appropriate assessment for European Protected Species (EPS) must be completed. In this case, if surveys had found evidence of SAC features (which for these sites include lesser horseshoe bats, greater horseshoe bats, barbastelle and Bechstein’s bats) using this site, it would not have been screened in for a Habitat Regulations Assessment as the application site is well beyond the consultation zone for the Bath and Bradford on Avon Bats SAC and the Chilmark Quarries SAC in the Council’s Bat SAC Guidance. Having considered several factors the officer concluded that regardless of survey evidence, a robust argument could be made to demonstrate there would be no adverse effects on EPS as a result of the development. The only EPS likely to use the site would be bats for foraging, and loss of such foraging on site was compensated for within the buffer zone, which is within the application boundary. This together with other factors such as likely inconclusive findings led the officer to conclude a survey was not necessary.
  6. When the Council responded to Ms B’s complaint on this point it said that it was a matter of professional judgment that the development could be approved without a bat survey. I agree with that response. Although the Council’s ecologist’s expressed views changed during the planning process from the initial consultation response to the final one, this was informed by additional information from the developer’s ecological impact assessment and her own site visit, and it is not fault to keep matters under review to take account of available information: it would have been fault if the officer had not done so.
  7. The Council’s complaint handling in this case was affected by fault. There was considerable delay in providing the response at the second stage of the Council’s procedure. The Council’s published complaints procedure refers to a 30 working day response time at this stage, which may be extended by a further ten working days. In this case Ms B made her request for escalation of her complaint to stage two on 17 October 2018 and provided a detailed letter setting out her reasons on 28 October 2018. The substantive response was not issued until 22 February 2019. The Council did keep in touch with Ms B about the delay in December and January and offered apologies. However, the delay was fault and that was not acknowledged in the stage two response.

Agreed action

  1. In recognition of the frustration caused to Ms B by the delay in responding to her complaint at stage 2, I recommended that within four weeks of the date of the decision on this complaint the Council issues her with a formal written apology. The Council agreed to my recommendation. However in her response to my draft decision Ms B confirmed she did not require such an apology and so no further action by the Council is needed in respect of this.

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Final decision

  1. I have completed my investigation on the grounds set out above.

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Investigator's decision on behalf of the Ombudsman

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