DC Casebook: Appeal cases - DC Forum

Email your queries or your replies to earlier queries to casebook@haymarket.com or post them to Development Control Casebook Forum, DCS Ltd, Casebook Suite 1, Fullers Court, 40 Lower Quay Street, Gloucester GL1 2LW. Comment and post at PlanningResource.co.uk/forum/dc

New queries

When we discovered that bats are using a barn proposed for conversion, our ecologists requested a condition requiring that the development shall not commence until a European protected species licence has been issued and a copy of this submitted to the local planning authority. My understanding is that conditions requiring compliance with other regulatory schemes are ultra vires and I wonder whether they would comply with Circular 11/95? NH.

My council's ecological advisers are currently recommending conditions for pre-determination or post-determination surveys for bats. While I recognise that bats are a protected species and there are regulations that require them to be dealt with properly, surely this is covered by separate legislation and does not need to be the concern of the local authority? MH.

Generally, it is possible for local planning authorities to impose requirements or controls that ostensibly fall within the remit of other statutory regimes if there is sufficient doubt as to their effectiveness in regulating a problem with implications for planning control.

It is a criminal offence under the Wildlife and Countryside Act 1981 and the EU habitats regulations to kill, injure or take bats or disturb their roosts. However, policing these powers is only as effective as staffing and information resources allow.

A licensing system administered by Natural England on behalf of DEFRA may allow certain closely justified activities involving bats. The planning system is, of course, heavily involved with general matters of nature conservation through designations and policies contained in development plans, as set out in the biodiversity guidance of PPS9.

The role of the development control process is explained in more detail in Circular 06/2005. This states that the presence of a protected species is a material consideration when considering a development proposal that would be likely to result in harm to the species or its habitat if it goes ahead.

The circular advises that local authorities should consult Natural England before granting permission and consider imposing an appropriate condition or require a planning obligation under which the developer would take steps to secure the long-term protection of the species. It notes that it is essential that the presence of protected species is known before planning permission is granted, but stipulates that developers should not be asked to carry out surveys unless there is a reasonable likelihood of the species being found.

It follows that planning authorities may legitimately require a bat survey before permission is given for the reuse of roof spaces or the removal of buildings where they are reasonably certain that bats are or have been present. As a result of their findings, they may impose conditions that would mitigate any harm.

However, it is of practical interest that in an appeal case from Swindon (DCS Number 100-038-798) involving demolition of a barn, a condition was imposed requiring later approval of an ecological survey including any necessary mitigation measures. The inspector reasoned that this did not have to refer to the fact that a DEFRA licence might be needed for any possible relocation, as this involved a statutory requirement under powers outside planning. GH.

An authority with which I am dealing has regular closed meetings between officers and members to discuss the merits of major applications. The authority has a long history of being dominated by members and officers couch their negotiations in terms of what will be acceptable to them. Although minutes are kept, these meetings are held before officers write their reports. So there is clear scope for reports to follow members' opinion. Is this unlawful or just poor practice? JM.

This practice is specifically cautioned against by the government and the Local Government Association. In the leaflet Positive Engagement - A Guide for Planning Councillors, which is also endorsed by bodies such as the Planning Advisory Service and the RTPI, it advises that councillors should not seek to influence officers or put pressure on them to follow a particular course of action in relation to an application.

Officers who are members of the RTPI are bound by a professional duty to make impartial recommendations unfettered by the views of members. I am unaware of any cases in which the legality of this practice has been tested. The codes of conduct that have to be adopted by local authorities under the Local Government Act 2000 do not usually cover the issue as such.

It is of significance that the positive aspects of pre-committee meetings were put forward in a study conducted by Arup for the DCLG entitled Councillor Involvement in Planning Decisions (Planning, 12 January, p4). The study team argued that such meetings can ensure that matters upon which members may wish to comment are highlighted in advance.

The main benefit of this approach is to ensure that there are no surprises at the committee stage. Other benefits cited include the resolution of issues that might necessitate a deferral at committee, clarification of what a development comprises and how it relates to its setting.

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