“10.69. The removal of the small areas of hedgerow could result in the legislation protecting great crested newts and their habitats from being contravened in the absence of appropriate licensing and mitigation measures. This assessment has been made on the assumption that great crested newts are present within water bodies within a 500 m radius of the site. On-site mitigation and enhancement measures are proposed as part of the report to demonstrate how the status of great crested newts will not be compromised. The creation of ponds, woodland, shrub planting, hedgerow planting, species-rich grassland creation and hibernacula creation will improve the terrestrial habitats present on site in comparison with those that exist at present. 10.70. The report advises that a further survey for great crested newts will be undertaken in order to determine their current status on site to inform whether a licence will be required from Natural England to allow works to proceed lawfully. If a licence is required the method statement accompanying the licence application will fully detail the mitigation measures that will ensure that the favourable conservation status of great crested newts is maintained. Should evidence for the presence of European protected species be detected, it would be necessary to consider the development in relation to the “Three Tests” specified by theHabitats Directive and Conservation of Habitats and Species Regulations 2010 and as set out in the Natural England Advice Note: European Protected Species and the Planning Process in respect of protected species. 10.72. These three tests are: • Test 1: the consented operation must be for “preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment”; • Test 2: there must be “no satisfactory alternative”; and • Test 3: the action authorised “will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range”. 10.73. Test 1: A crematorium conveniently located to serve the people of the area is an acknowledged unmet need. The provision of this facility represents a social and economic benefit. In so far as the development may result in an adverse impact on protected species, it is considered that this impact could be significantly reduced by effective mitigation measures. The provision of a crematorium is considered to be in the public interest and, overall, beneficial to the environment. 10.74. Test 2: The need for a crematorium in the Aylesbury area is established. The selection of the site follows an extensive search for a suitable site. It is considered that there are no more satisfactory alternatives to the site proposed. 10.75. Test 3: Although the presence of protected species has not been established, the applicants are aware that if species are detected, a Natural England licence will be required to allow works to proceed lawfully, and that the licence is required to detail the mitigation measures that will ensure that the favourable conservation status of great crested newts is maintained. 10.76. The Natural England Guidance explains that there are always going to be alternatives to a proposal and in terms of licensing decisions it is for Natural England to determine that a reasonable level of effort has been expended in the search for alternative means of achieving the development whilst minimising the impact on European Protected Species and that a proportionate approach is taken. Natural England will also consider whether the LPA has appropriately discharged its duties in respect of the development proposal when determining whether a specific need is being addressed. 10.77. Paragraph 118 of the NPPF states when determining planning applications, local planning authorities should aim to conserve and enhance biodiversity by applying the following principles: • If significant harm resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated or, as a last resort, compensated for, then planning permission should be refused; • Development proposals where the primary objective is to conserve or enhance biodiversity should be permitted; • Opportunities to incorporate biodiversity in and around development should be encouraged; • Planning permission should be refused for development resulting in the loss or deterioration of irreplaceable habitats, including ancient woodland and the loss of aged or veteran trees found outside ancient woodland, unless the need for, and benefits of, the development in that location clearly outweigh the loss.” • Test 1: the consented operation must be for “preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment”; • Test 2: there must be “no satisfactory alternative”; and • Test 3: the action authorised “will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range”. • If significant harm resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated or, as a last resort, compensated for, then planning permission should be refused; • Development proposals where the primary objective is to conserve or enhance biodiversity should be permitted; • Opportunities to incorporate biodiversity in and around development should be encouraged; • Planning permission should be refused for development resulting in the loss or deterioration of irreplaceable habitats, including ancient woodland and the loss of aged or veteran trees found outside ancient woodland, unless the need for, and benefits of, the development in that location clearly outweigh the loss.”
“Once sufficient information has been received the County Archaeological Service will be able to advise the local planning authority of the likely effect of the development on any archaeological or related historic interest and recommend appropriate action to determine the application. If heritage assets could be adversely affected by the development then the preferred option is normally for the applicant to preserve them within the development. Where substantial harm would be caused to the significance of a designated heritage asset then NPPF paragraph 133 will apply and planning permission should normally be refused.”
“I refer to your comments on the proposed crematorium at Cane End Lane, Bierton, which we received on 12 August. This planning application was considered by this Council’s Strategic Development Control Committee on 09 July; the proposal received support from the Committee, and the application was delegated to officers for approval subject to the completion of a Section 106 agreement. We are now close to the end of the process of drafting the agreement. Your comments, received at such a late stage in the process came as a bit of a surprise as we have no record of any archaeological sensitivity on or near this site, and consequently had not carried out a consultation. Your comments request archaeological investigation, including a geophysical survey and trial trenching, prior to the determination of the application. At this late stage I feel this would be hard to justify (although I do appreciate that having been on leave recently it has taken me a month or so to take this matter on board). I understand you have spoken to James Corcoran of Haverstock Architects, who is acting as agent. He advises that you are able to agree to the requirement for investigation to be covered by a condition. Our standard condition in these cases is as follows: ‘No development shall take place until a programme of archaeological work/archaeological building recording in accordance with a written scheme of investigation has been submitted by the applicant and approved in writing by the Local Planning Authority. The development shall only be implemented in accordance with the approved scheme. Please also see note no. 6 on the back of this notice. REASON: To record or safeguard any archaeological evidence that may be present at the site and to accord with AVDLP policy GP59 and advice in the NPPF. I would be grateful if you could confirm in writing (email is fine) that the use of this condition is acceptable to you.”
“Being pragmatic a condition as proposed is acceptable in this case, but we would normally expect investigation to be undertaken prior to consent.”
“No development shall take place until a written scheme of archaeological investigation has been submitted by the applicant and approved in writing by the local planning authority. Investigatory works required by the approved scheme shall be carried out as specified by the approved scheme subject to the requirements set out in condition 7…”
“To record or safeguard any archaeological evidence that may be present at the site and to accord with AVDLP policy GP59 and advice in the NPPF.”
“No development shall take place until a program of archaeological work/archaeological building recording in accordance with a written scheme of investigation has been submitted by the applicant and approved in writing by the local planning authority. The development shall only be implemented in accordance with the approved scheme. Please see also note 6 on the back of this notice. Reason: to record and safeguard any archaeological evidence that may be present at the site and to accord with AVDLP policy GP59 and advice in the NPPF.”
“121. In my judgment a consideration is “material”, in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker’s scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues. 122. In my judgment, an authority’s duty to “have regard to” material considerations is not to be elevated into a formal requirement that in every case where a new material consideration arises after the passing of a resolution (in principle) to grant planning permission but before the issue of the decision notice there has to be a specific referral of the application back to committee. In my judgment the duty is discharged if, as at the date at which the decision notice is issued, the authority has considered all material considerations affecting the application, and has done so with the application in mind – albeit that the application was not specifically placed before it for reconsideration. 123. The matter cannot be left there, however, since it is necessary to consider what is the position where a material consideration arises for the first time immediately before the delegated officer signs the decision notice. 124. At one extreme, it cannot be a sensible interpretation of section 70(2) to conclude that an authority is in breach of duty in failing to have regard to a material consideration the existence of which it (or its officers) did not discover or anticipate, and could not reasonably have discovered or anticipated, prior to the issue of the decision notice. So there has to be some practical flexibility in excluding from the duty material considerations to which the authority did not and could not have regard prior to the issue of the decision notice. 125. On the other hand, where the delegated officer who is about to sign the decision notice becomes aware (or ought reasonably to have become aware) of a new material consideration, section 70(2) requires that the authority have regard to that consideration before finally determining the application. In such a situation, therefore, the authority of the delegated officer must be such as to require him to refer the matter back to committee for reconsideration in the light of the new consideration. If he fails to do so, the authority will be in breach of its statutory duty. 126. In practical terms, therefore, where since the passing of the resolution some new factor has arisen of which the delegated officer is aware, and which might rationally be regarded as a “material consideration” for the purposes of section 70(2), it must be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of that new factor. In such circumstances the delegated officer can only safely proceed to issue the decision notice if he is satisfied (a) that the authority is aware of the new factor, (b) that it has considered it with the application in mind, and (c) that on a reconsideration the authority would reach (not might reach) the same decision.”
“13. My task would therefore appear to be to analyse the factual information which is relied on by the Claimant and to decide whether it is a material consideration in accordance with the test set out in paragraph 121 of Kides set out above. I remind myself that this is an objective test and the views of the decision maker are not relevant. This is an issue of law for me to decide and is not a rationality challenge to the decision of the decision maker not to refer the consideration to the planning authority. If I find the information is a material consideration I then have to consider whether the officers or the planning authority discovered or anticipated the consideration or whether they ought reasonably to have done pursuant to paragraph 124 of Kides. Only if they did or could have known of the matter of concern do I then address the threefold test set out in paragraph 126 of Kides. The relevance of Dryit seems to me is to urge the application of common sense to this exercise and not to place too heavy an emphasis on the first part of paragraph 126 which is guidance to planning officers as to what is advisable rather than a strict legal test.”
“There can be no dispute, in my view, as to the existence of a third and fourth in Oliver LJ’s list: the existence of an alternative site for the same project which might have a lesser adverse effect on the countryside, and a situation in which there could only be one permission, or alternatively a limited number of permissions for such development.”
“It is considered that the design and layout of the development proposed would not be inappropriate to the local context or the countryside location of the site.”
“It is considered that the wider impact on views from the surrounding areas would be mitigated to a degree that would render the impacts acceptable in an overall consideration of the proposal.”
“29. In my judgment this goes too far and puts too great a responsibility on the Planning Committee whose only obligation under regulation 3(4) is, I repeat, to “have regard to the requirements of the Habitats Directive so far as [those requirements] may be affected by” their decision whether or not to grant a planning permission. Obviously, in the days when the implementation of such a permission provided a defence to the regulation 39 offence of acting contrary to article 12(1), the Planning Committee, before granting a permission, would have needed to be satisfied either that the development in question would not offend article 12(1) or that a derogation from that article would be permitted and a licence granted. Now, however, I cannot see why a planning permission (and, indeed, a full planning permission save only as to conditions necessary to secure any required mitigating measures) should not ordinarily be granted save only in cases where the Planning Committee conclude that the proposed development would both (a) be likely to offend article 12(1) and (b) be unlikely to be licensed pursuant to the derogation powers. After all, even if development permission is given, the criminal sanction against any offending (and unlicensed) activity remains available and it seems to me wrong in principle, when Natural England have the primary responsibility for ensuring compliance with the Directive, also to place a substantial burden on the planning authority in effect to police the fulfilment of Natural England’s own duty. 30. Where, as here, Natural England express themselves satisfied that a proposed development will be compliant with article 12, the planning authority are to my mind entitled to presume that that is so. The Planning Committee here plainly had regard to the requirements of the Directive: they knew from the Officers’ Decision Report and Addendum Report (see para 8 above and the first paragraph of the Addendum Report as set out in para 72 of Lord Kerr’s judgment) not only that Natural England had withdrawn their objection to the scheme but also that necessary measures had been planned to compensate for the loss of foraging. For my part I am less troubled than Ward LJ appears to have been (see his para 73 set out at para 16 above) about the UBS’s conclusions that “no significant impacts to bats are anticipated” – and, indeed, about the Decision Report’s reference to “measures to ensure there is no significant adverse impact to [protected bats]”
“45. Furthermore, the United Kingdom has chosen to implement article 12 of the Directive by creating criminal offences. It is not the function of a planning authority to police those offences. Matters would, as Lord Brown points out, have been different if the grant of planning permission were an automatic defence. But it is so no longer. And it is the function of Natural England to enforce the Directive by prosecuting for these criminal offences (or granting licences to derogate from the requirements of the Directive). The planning authority were entitled to draw the conclusion that, having been initially concerned but having withdrawn their objection, Natural England were content that the requirements of the Regulations, and thus the Directive, were being complied with. Indeed, it seems to me that, if any complaint were to be made on this score, it should have been addressed to Natural England rather than to the planning authority. They were the people with the expertise to assess the meaning of the Updated Bat Survey and whether it did indeed meet the requirements of the Directive. The planning authority could perhaps have reached a different conclusion from Natural England but they were not required to make their own independent assessment.”
“61. That then raises the question of the scope of the duty on the inspector under regulation 9(5) of the Regulations and whether he discharged that duty. In my judgment, if an inspector (or the Secretary of State) when exercising the functions of considering an appeal under 78 of the 1990 Act against the refusal of planning permission considers that planning permission should, otherwise, be granted, he is ordinarily entitled to grant planning permission unless, on the material before him, he concludes that (1) the proposed development would be likely to offend Article 12(1) and (2) be unlikely to be licensed pursuant to the derogation powers in Article 16 of the Habitats Directive. 62. The inspector here proceeded on the basis that the proposed development could offend Article 12. It is clear that the inspector also considered whether a licence would be granted and it is implicit, in my judgment, that he did not consider that it was unlikely that any such licence would be granted. He was entitled, on the material advanced before him during the planning inquiry to come to that conclusion. No one was contending that the grant of a licence would be unlikely. The claimant planning authority and the applicant for planning permission considered that any issues relating to the removal of European Protected Species could be adequately dealt with. There is no suggestion that any other person or body advanced any evidence or argument that the grant of a licence, if it ultimately proved necessary to obtain one, would be unlikely. In those circumstances, the inspector was entitled to grant planning permission. In my judgment, he was not required, in the absence of advice from Natural England, to undertake a detailed assessment of each element of Article 16 to determine whether there was a likelihood that those elements would be satisfied so that the likelihood was that the relevant licensing body would grant a licence. 63. I reach that conclusion for the following reasons. First, as a matter of domestic law, the obligation is "to have regard" to the requirements of the Habitats Directive. Secondly, the function of deciding if a licence is necessary and should be granted is for the relevant licensing body not the inspector dealing with the section 78 planning appeal. It is not to be expected or inferred that the need to have regard to the requirements of the Habitats Directive requires a planning inspector to make a detailed assessment of matters that are primarily the responsibility of another body. Thirdly, that approach is consistent with the judgments of Lord Brown and Baroness Hale in Morge and the decision of Lindblom J. in R (Prideaux) v Buckinghamshire County Council and FCC Environment UK Ltd.[2013] EWHC 1054 (Admin.) at para. 96.”
“As the final decision in Morge makes clear, regulation 9(5) does not require a planning authority to carry out the assessment that Natural England has to make when deciding whether there would be a breach of article 12 of the Habitats Directive or whether a derogation from that provision should be permitted and a licence granted. If a proposed development is found acceptable when judged on its planning merits, planning permission for it should normally be given unless in the planning authority's view the proposed development would be likely to offend article 12(1) and unlikely to be licensed under the derogation powers (see paragraph 29 of Lord Brown's judgment in Morge).”
“It should be recognised that there are always going to be alternatives to a proposal and, in terms of licensing decisions, it is for Natural England to determine that a reasonable level of effort has been expended in the search for alternative means of achieving the development whilst minimising the impact on the EPS. In other words, Natural England expects the applicant to demonstrate that alternatives have been considered, explain what those alternatives were, and provide a justification for their decisions to select their preferred option and discount the others as satisfactory. As part of the process we always require the applicant to have considered the ‘do nothing’ scenario.”