I object to the planning proposal to build 70 holidays cabins at Fineshade on the grounds that it would harm the conservation status of a European Protected Species (Dormouse). Also, that the proposed development would not pass either of the first two of the ‘three tests’ needed before such a damaging development could be approved. The information provided to the planning authority by the developer is clearly woefully inadequate.
The Dormouse is a European Protected Species (EPS). As such, it receives special protection which in the UK is transposed in to law by the Conservation of Habitats and Species Regulations 2010 (as amended). Fineshade Wood has, according to the applicant’s ecologists a history of this species. In the completely inadequate single site visit on the 29/08/2014 they recorded a single nut, albeit outside the red-line boundary (development area), but contiguous with it; i.e. no ecological barrier. Quite rightly, they concluded that dormice are present within Fineshade Wood and likely to be within the proposed development footprint.
I have checked the appropriate survey guidelines (attached) which are readily available online and the recommended survey methods have not been followed. The single visit in August does not remotely constitute sufficient survey although it confirmed the presence of Dormice, it doesn’t give any meaningful indication of distribution or population. This is relevant to the application as the local planning authority needs to assess the application against the ‘three tests’.
Any plan or project which potentially affects the favourable conservation status (FCS) of any EPS, has to take into account obligations set out in the Conservation of Natural Habitats and of Wild Fauna and Flora Directive 1992 (92/43/EEC) see The Habitats Directive – Environment – European Commission for more information on this Directive (see https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/69622/pb13840-habitats-iropi-guide-20121211.pdf for a guidance document).
Any plan or project that would likely have a significant effect on the FCS of an EPS is required to pass the ‘three tests’ set out in Article 6(4) of the Habitats Directive. The three tests are sequential and all three have to be met. The first two have to be met, before you consider the third.
The three tests are:
1) there must be no feasible alternative solutions to the plan or project which are less damaging to the affected European site(s); THIS TEST IS NOT MET
2) there must be imperative reasons of overriding public interest for the plan or project to proceed; THIS TEST IS NOT MET
3) all necessary compensatory measures must be secured to ensure that the overall coherence of the network of European sites is protected THIS TEST IS NOT RELEVANT
Given that the surveys undertaken failed to comply with the published guidelines and nor did they justify deviating away from them, in my view, the LPA cannot discharge their obligations under the 2010 Regulations. How can they determine if there are no feasible alternative solutions (within the context of the woodland block) if they don’t know where the dormice are? Do they use the woodland uniformly, or do they avoid certain areas? If they avoid certain areas, would these not be alternative solutions? Without the survey evidence (or at least a reasonable attempt to answer the question), they are not in a position to proceed beyond the first test – and remember, all three must be met. How can the third test be met when they don’t know where and how many and what sub-habitat within the wood the dormice use? Is the habitat management, which is proposed as a condition of planning permission in the officer’s report, appropriate/ sufficient? The LPA are not in a position to answer this; and they need to be. The law requires this (see the Woolley case (see a useful document here: http://www.bsg-ecology.com/News/Images/Briefing%20Note_Aug09.pdf – note that the Regulations have been updated but the case-law applies).
On this basis, in my view, the LPA cannot determine the application.