We’ve recently written to the Natural England Wessex Area Team (copied to the planning team at Somerset Council) regarding their ‘no objection’ to the planning application. Our correspondence has now been added to the planning portal but we thought helpful to also share with our supporters here on our website. Here is what we wrote:
FAO: Natural England Wessex Area Team
I am writing on behalf of People for Packsaddle in relation to your recent consultation on the above planning application. Your consultation conclusion was that you had “No Objection subject to mitigation”. Following this, Somerset Council adopted the applicant’s Shadow HRA (SHRA) to fulfil its responsibilities under Regulation 63 the Conservation of Habitats and Species Regulations 2019.
We wanted to inform you of a material factor of which you were not made aware as part of your consultation, and notify you of the conclusion of our legal counsel (Tim Taylor from Khift Ltd and Richard Moules KC from Landmark Chambers) on this matter.
In the summer of 2022, Somerset Council carried out substantial mechanical clearance works at the proposed development whilst the applicant was carrying out its baseline ecological surveys. The council mowed the entire site to ground level (the area had been previously been left wild for many years), substantially cut back hedgerows and removed bramble scrub. These actions were carried out in two phases – the first phase in the 3rd week of July and the second phase at the end of August.
These actions undoubtedly reduced the ecological baseline of the site, destroyed some of the survey equipment including dormouse tunnels and reptile mats and, crucially, impacted the efficacy of the bat surveys. This is key given that the site lies within the Mells Valley Bat Special Area of Conservation (SAC) consultation zone.
The site clearances were not mentioned at all in the applicant’s SHRA on which you were consulted. This is a material factor which should not have been omitted. Whilst the clearances were mentioned in the applicant’s EIA (which you may or may not have been sent), their description is factually and materially incorrect, making the EIA’s conclusions invalid.
The applicant’s EIA stated that the site was cleared at the end of August. This is not correct, clearance started in the 3rd week of July. As the EIA states, the Site lies within Bat Consultation Zone Band B for the purposes of the North Somerset and Mendip Bats SAC Guidance on Development SPD (“the SPD”). The SPD requires, among other things, a survey by automated detectors over a period of 50 days from April to October and to include at least one working week in each of the months of April, May, August, September and October.
As the clearance of the Site took place in the third week of July 2022 and again in late August 2022, when comparing the dates of the automated bat surveys set out in the appendix to the EIA with the dates on which clearance of the Site occurred, only 15 days of surveying occurred prior to clearance rather than the 50 days required by the SPD. Accordingly, the survey work fails to meet the requirements of the SPD and will not have correctly captured the extent of bat activity on the site.
We have taken in depth legal advice on this matter and our legal counsel has concluded that the SHRA’s reliance on the survey results in the EIA means that the SHRA is not an appropriate assessment within the meaning of the Conservation of Habitats and Species Regulations 2017, and that any grant of planning permission on the basis of that assessment would be in breach of Regulation 63 and liable to be quashed. We will be writing to Somerset Council to inform them of this and we are considering our legal options.
Given the significance of the inadequacies of the baseline biodiversity analysis, we would ask you to reconsider your position in light of the defects in the underlying data used in the SHRA and this new information that is being brought to your attention.
