Draft Schedule of Main Modifications to Section 2 Colchester Local Plan
Representation ID: 8920
Respondent: Natural England
Legally compliant? Not specified
Sound? Not specified
Duty to co-operate? Not specified
Whilst noting that this main modification (to move the text from preamble to Policy) responds to one of our previous recommendations, a further minor modification might give more clarity to the meaning of the statement. This would be achieved by moving the second sentence to the end so that it would read as follows: Proposals in close proximity to a habitats site must demonstrate through HRA screening that the scheme will not lead to likely significant effects to the integrity of the habitats site. Where this cannot be ruled out a full appropriate assessment will be required to be undertaken. Additionally, any planning application within 400 metres of a habitats site must provide mechanisms to prevent fly tipping, the introduction of invasive species and vandalism.
Natural England’s concerns about text and policy wording in the submission draft Section 2 Local Plan have been addressed in the main modifications. However, within the full schedule of main modifications, there are certain cases of text and policy wording that may require amendment for clarity. Our observations and recommended adjustments to the main modifications are set out below
Part C of the policy (ENV1) relates to the Biodiversity and Geodiversity merits of a proposal. Part C sets out the policy requirement for all proposals in the first section and the second section concerns proposals that would cause significant harm to designated sites, protected species, habitats and species of principle importance. It is a concern that the proposed wording for the policy indicates that the expectations in relation to mitigation and biodiversity net gain (BNG) for developments that have adverse effects on biodiversity are less stringent than for those developments that would not cause such adverse impacts. The key criteria to compare would be
criterion (v) of the first section and criterion (iii) of the second section. The fact that criterion (iii) seems to set a lower bar means that there is also an inconsistency between the proposed wording of the policy and the proposed modification to paragraph 13.8 (MM17) which states that: “As a minimum 10% biodiversity net gain is required…”. Also, the specific wording proposed for criterion (iii) would mean that either “satisfactory biodiversity net gain” or “mitigation” are required to meet the criterion rather than both being required.
As this site (Middlewick Ranges) is not a nationally designated site, Natural England did not make any comment on its draft allocation as a growth area at the Regulation 19 stage. However, the site is designated as a Local Wildlife Site and, accordingly, the Local Planning Authority will need to demonstrate that it has had regard to its statutory duty to conserve biodiversity (under S40 of the Natural Environment and Rural Communities Act 2006) when it develops the site’s masterplan and determines any planning application for the development of the site. Consideration will also need to be given to relevant National Planning Policy (particularly Paragraphs 174, 175, 179, and 180 of the National Planning Policy Framework) and relevant Local Plan policy, including draft policy ENV1 referred to above. In this context, the Local Authority should give careful consideration to
survey information that has very recently come to light concerning the presence of a number of Section 41 invertebrate species at the site. It is noted that a large number of main modifications are proposed to the text in the preamble to the policy and to the wording of the policy itself, some of which relate to the impacts of the
development upon the site’s recognised biodiversity value and how those impacts will be identified, avoided, mitigated and compensated for. Proposed modifications to text and policy also identify the minimum expectation for biodiversity net gain. The modified text and policy refer variously to “compensation/mitigation land”, “mitigation land” and “net gain land”. It is understood that these references are to land immediately to the south of the growth area site that will host compensatory habitat created by the physical relocation of acid grassland moved from the ranges within the development site. There should be consistency in the terms used to describe this land and it should also be defined on the proposals map for clarity as its location is not apparent from the text in the preamble to the Policy. In addition, there is an inconsistency between the preamble and the policy on the expectation for BNG that the development will deliver. The preamble text at proposed modified paragraph 15.56 (MM37) states “the Council will be seeking a minimum of 10% biodiversity net gain on the development site..”(our emphasis) whereas the modified policy text at criterion (vii) is less explicit. As a result, it is not clear whether the BNG could be secured on the “mitigation land” which would risk confusion between measures which are compensatory and those which are clearly BNG. In addition, the preamble text states “the Council will be seeking a minimum 10% biodiversity net gain on the development site, following the application of the mitigation hierarchy,…” (our emphasis). This text should also be included in the policy-wording so that it is clear (in line with the precautionary principle) that the mitigation hierarchy has been applied before any assessment of BNG is made. In view of the precautionary principle, the Local Planning Authority will also need to satisfy itself that there is sufficient evidence to support the claim that acid grassland turf can be successfully translocated. Without the evidence, there must be doubt that the relocated habitat (both in terms of the habitat and the species it supports) qualifies as “compensation”, as required by the principles set out in paragraph 180 of the National Planning Policy Framework. Lastly, it should be noted that the Environment Bill now has royal assent so reference in the paragraph 15.58 to “emerging legislation (Environment Bill 2020)” could be updated.
This policy (SS12b) applies to proposals for development on the seaward and landward side of Coast Road, West Mersea and sets out the criteria that such proposals would need to comply with. Criterion (iii) relates to the consideration of effects on adjacent Habitats sites and references the Essex Coast RAMS. As worded in the main modification, this policy would require that development either has no likely significant effect on the adjacent Habitats Site or that it provides mitigation in accordance with the Essex Coast RAMS. As these development proposals could include residential development, there is the potential for both direct impacts as well as in-combination impacts and it is recommended that the modified wording is amended by the deletion of “or” and insertion in its place of the words “and, where appropriate,”.
Whilst noting that this main modification (to move the text from preamble to Policy) responds to one of our previous recommendations, a further minor modification might give more clarity to the meaning of the statement. This would be achieved by moving the second sentence to the end so that it would read as follows: Proposals in close proximity to a habitats site must demonstrate through HRA screening that the scheme will not lead to likely significant effects to the integrity of the habitats site. Where this cannot be ruled out a full appropriate assessment will be required to be undertaken. Additionally, any planning application within 400 metres of a habitats site must provide mechanisms to prevent
fly tipping, the introduction of invasive species and vandalism.