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Cases

Bats buffered in Devon in the end

12.06.2020

A perennial problem with long-standing projects as they progress through the planning system is whether and when baseline survey information becomes out of date and no longer fit for purpose. A recent case in Devon has provided something of an answer, at least in the case of surveys for Greater Horseshoe Bats (GHBs), although you have to delve into the detail to find it.

The site was an urban extension of some 1,200 homes at Wolborough on the southern edge of Newton Abbot. Its open fields and hedgerows provided suitable habitat for 'commuting' GHBs associated with the South Hams SAC (although the site was some distance from the nearest part of the SAC). The site had been allocated in the local plan in 2014, without the benefit of site surveys for GHBs, on the basis that the policies required bespoke GHB mitigation plans to be approved at the planning permission stage. This approach survived a challenge in the High Court (Abbotskerswell Parish Council v Teignbridge DC [2014] EWHC 4166 (Admin)).

An outline planning application was submitted in 2017, supported by a GHB mitigation plan, informed by GHB surveys undertaken in 2013-2014. The LPA, as advised by Natural England, asked for more up-to-date GHB survey evidence in order to undertake an Appropriate Assessment and sign off the GHB mitigation plan but the applicant declined to provide these, on the basis that the outline application simply sought confirmation of the principle of development as per the local plan allocation and nothing had changed 'on the ground' since the 2013/14 surveys. In 2018 the applicant appealed for non-determination. The appeal was heard at a public inquiry in 2019. In the meantime, the LPA had commissioned its own GHB surveys but the spring-autumn duration of the survey period meant that the results were not available to inform the Inquiry.

At the Inquiry, the appellant and the LPA locked horns on whether new GHB survey evidence was needed to carry out an Appropriate Assessment, and the appellant applied for costs on the basis that the LPA demand for new surveys was unreasonable because the existing survey evidence plus the reserved matters stage in due course was sufficient to allow outline permission to be granted. After the close of the Inquiry, the LPA surveys were completed and the LPA informed PINS that, in the light of the up-to-date GHB survey results, it was now satisfied with the GHB mitigation plan (which included buffers to allow for GHB commuting routes) and considered that an Appropriate Assessment could safely conclude no adverse effect on the integrity of the SAC. In post-Inquiry exchanges, Natural England ultimately took the same view.

The Inspector made her recommendation taking into account the new GHB survey evidence and the changed position of the LPA, and recommended that permission could be granted. The Secretary of State agreed in a decision letter dated 3 June 2020. In neither the Inspector's report nor in the SoS's decision letter is there an indication of what the decision would have been if the matter had been decided simply on the Inquiry evidence (and without the up-to-date surveys, commissioned by the LPA). Thus, it might seem as if the question of whether the 2013/14 surveys were out-of-date was left unresolved.

However, in the costs report the Inspector did have to grapple with whether the LPA had a justified basis for its non-determination, and at para 35 of her report she stated that:

"The Council were entitled to find that at the time of consideration of the proposal, insufficient evidence had been submitted to enable them, as the then Competent Authority, to make a determination as to whether the proposal would have an adverse effect on the integrity of the South Hams SAC."

The Inspector therefore accepted as reasonable behaviour the LPA's position that the submitted GHB 2013/14 surveys were an insufficient basis even in 2017/18 to allow it to discharge its responsibilities as competent authority. That position clearly could only get stronger by the time of the Inquiry in 2019, some 5 or 6 years after the surveys were completed. The SoS agreed with the conclusions of the Inspector and rejected the appellant's costs claim.

It can therefore be taken that, at least where adequate surveys are needed to inform an Appropriate Assessment, a promoter of a site would do well to refresh survey work in the run-up to an appeal. In most cases, a promoter will not be able to rely on a LPA commissioning its own survey data to make good any omissions by the promoter.

A further point of interest in the case is that the Inspector and the SoS rejected a claim by the local NHS Trust for a payment of over £1m to meet its additional running costs (a claim not supported by the LPA) on the basis that the site was allocated and such matters should be, and should have been, addressed at the plan-making stage.

A copy of the appeal decision and Inspector's report can be found here and a copy of the costs decision and costs report can be found here.

Michael Bedford QC acted for Teignbridge District Council.