Anyone who loves our wildlife will be incensed to read the report put forward by SDRHA’s consultant green Ecology for the resubmission of their plans. Apparently they can’t find any dormouse nibbled nuts now ( shame!), they think they don’t need a licence to clear their habitat- even though they should be protected by European legislation ( its better not to have to ask Natural England in case they refuse isn’t it?) Anyway- bulldozing the valley won’t affect the ‘favourable conservation status’ of the valley will it??
The Council’s ecologist says he will accept this sub standard report as sees no objection to their mitigating works ( to replace semi natural ancient woodland with a roadside hedge.) I’m frankly disappointed, as a council officer he should be standing up for wildlife on behalf of us all.
We say that’s rubbish- and so in fact do a great many dormouse experts and qualified ecologists we’ve been in touch with. Here’s the reasons why in a response I have written to that application- Read on- take any points you wish to make in your own letters or emails- but PLEASE DO WRITE IN too.
REMEMBER THE DATE FOR RESPONSES HAS BEEN EXTENDED TO 15th DECEMBER now! Thank you.
Response to Dormouse nut survey ( Oct 2016) and conclusions that affect planning application 14/0142/15/F Brimhay, Dartington.
This response focusses on the above report, previous findings and observations made in the judgement of the judicial review on 18th July 206 that resulted in the quashing of the above planning permission.
As a reminder of the importance of dormice on this site- PTES states in their Dormouse Conservation Handbook that-‘Dormice are important because they are a ‘flagship species’; where dormice occur, the habitat is usually very suitable for a wide range of other species too. They are also important as ‘bioindicators’ as they are particularly sensitive to habitat and population fragmentation, so their presence is an indication of habitat integrity and sustainable populations of other sensitive species.’
Bright et al in his 1996 studies based on the Great Nut Hunt led by volunteers nationwide, concludes that 24% of dormouse habitats are in Devon and that the county is a stronghold for the species. He also points out that as allow density small mammal, the dormouse is particularly vulnerable to the fragmentation of the habitat.
As planners are aware, the fact that Brimhay provides good dormice habitat and that evidence for dormouse activity was found there, means that an EPS licence to disturb dormice- a species protected by European Wildlife law- would have to be sought from Natural England (NE). Whether planning permission was granted or not, NE would decide whether the wooded slopes could be cleared for development. This safeguard to protected wildlife has been relied upon by planners, councillors on the Development Management Committee and the public. This additional report seeks to bypass this level of expert consultation and hence wildlife protection by arguing that since dormice may not be present in the area in question, then an EPS licence does not have to be sought from NE.
We would like to point out that in resubmitting the planning application above, the ‘goalposts’ have been moved as far as the public and councillors are concerned. SDRHA are attempting to obviate the involvement of the expert wildlife opinion and protection of NE, so that the reassurance that wildlife protected by European wildlife law will be covered by the ‘safety net’ of NE’s involvement will no longer exist. Therefore any decisions made by councillors should take this into account.
This response first questions the methodology used and results concluded and reminds decision makers, with references to the judgement, that NE has still a role to play in safeguarding the habitat and that further survey is required to establish any meaningful conclusions regarding the habitat and presence of dormice on site and nearby.
The habitat for dormice
The area in question forms part of an important wildlife corridor that connects ancient woodland and unimproved wet grassland/meadow at Peak Plantation opposite Droridge Lane through a corridor of woodland behind the gardens of Droridge through the valley adjoining Brimhay to the riverside and coppice woodlands around Bidwell Brook and on to the River Dart. PTES points out that dormice are primarily arboreal and cross their habitats above ground from trees and through scrub. They need a variety of foods throughout the year and with sloe, other fruits, hazel nuts and insects close by this wildlife corridor can provide ideal conditions. Dormice do not travel across open ground however as they are vulnerable to predators here. If this development were to go ahead, there is no way that planting some hazel shrubs could mitigate for the gaps in the wildlife corridor. With the added hazard of domestic pets as predators, dormice would be unlikely to inhabit or survive in the suburban setting of the proposed scheme.
To understand the dormice present on site, it is useful to refer to PTES who explain that ‘Dormice have a patchy distribution, even within the same woodland. This may be associated with patchiness in food supplies, but might also be a result of social or territorial behaviour. Male dormice are territorial in the breeding period (May to September) and may attack each other, so the population tends to be spread thinly. Even the best habitats may not support more than about four adult males per hectare.’ So when Dominic Sheldon, Consultant for Green Ecology states that ‘it can be assumed that they only exist at a very low density’, I would argue that ‘dormice live at low numbers, even in the best habitats’ (PTES) and that we can expect 1.3- 2 dormice per hectare from hedgerow and woodland habitats respectively (PTES figures). I estimate that the dormice habitat within the SDRHA site is less than 0.2Ha, so that would suggest a low occurrence of dormice within that site but that this would be entirely normal and within the density for good dormouse habitat.
Bearing in mind that dormice move through the habitat, I would question the reliability of surveying only over the area to be developed. The reports do not say that areas outside the SDRHA site were surveyed.
PTES explains that ’small woods will contain few dormice, perhaps not enough to constitute a viable population unless the site is connected to a larger area of habitat’. PTES warns- ‘Small woods of less than 20 ha often provide excellent habitat (because of lack of shading and large areas of shrubby edge habitat), but if they are not linked to other sites nearby they probably contain too few dormice to sustain a permanently secure population ‘ Therefore fragmentation of the habitat is a real threat not only to any dormice found on the site but to the wider populations in the area. Safeguarding wildlife corridors is a vital issue in the conservation of the species.
Devon Biodiversity Records centre shows that dormice have been recorded within ¼ mile- at Yarner Bungalow and at the Shops at Dartington. I understand that Dartington Hall Trust who owned the site until December 2014 had undertaken dormouse surveys with traps (still in evidence in adjacent Forder Lane). The active management of the coppice and planting of hazel whips just 2 or 3 years ago, plus this monitoring points to conservation management being undertaken for dormice and other species. Research into trust records is currently being undertaken.
The survey methodology.
Green Ecology state that they conducted a nut survey in January 2015 and again on 7th September 2016. It is assumed that they worked according to the guidelines set by Bright et al. Over such a small area ( probably 0.2 Ha of habitat within SDR ownership), well under one dormouse would be expected and hence it might be expected that in January 2015 only one confirmed chewed nut could be found. Since much of the area of the SDRHA site is also stream and banks that flood regularly, I would also argue that many of the available nuts to survey- if surveying was done in January after the winter floods, would be washed away or lost in flood detritus.
Referring to Government guidance on the surveying of dormouse habitats, I would question the sole use of nut surveys in the area in an area and relying on one such resurvey to argue that an EPS licence is not needed to clear the habitat.
In its guidance document on dormouse surveys, the advice is- ‘You can limit surveys to visual searches for nests and opened nuts if the work only involves losing small amount of habitat, for example: gaps in hedgerows removing a small amount of bramble scrub For more damaging projects and licence applications, acceptable methods for surveying dormice are: using nest tubes, using nest boxes’. Government guidance does not prescribe an area that would be considered as ‘small’, however removing 93% of the trees and scrub over a this habitat and creating a distinct gap in a vital wildlife corridor, needs some more robust survey methods and one that can build a picture of dormouse populations and movement along the valley corridor if possible. Reversing the conclusions of their own 2015 survey after one nut search in early September (when many of the nuts are still green) is tenuous evidence, especially considering the controversial nature of this development.
Further government advice to ecologists is;
‘Only use this method: alongside another method or to update an older survey if the development was delayed, in areas dominated by fruiting hazel trees between September and December’. No other methods of survey have been used at Brimhay.
The government guidance also states-‘You’ll also have to survey suitable habitat next to the site. This includes woody areas, even if the habitats are fragmented. ’In Green Ecology’s report, no details are given of the are covered inside and beyond SDRHA’s ownership, or the number of quadrats taken.
Interim advice from natural England on dormouse surveys states that ‘Nut searches can be a useful additional tool in heavily fruiting areas of hazel, but there are very few sites where this technique alone should be applied and there is significant risk of false negatives, especially where low densities of dormice occur……. Nut searches should not be used as evidence of likely absence of dormouse on any site’. The NE advice is to use nest tubes and nest boxes over the active spring and summer months. Green Ecology could have done this but didn’t. I would argue that the surveys done are inadequate and inconclusive.
The Government guidance document states that ‘The survey should be from the current or previous active season. Surveys up to 3 years old are acceptable if the habitats haven’t significantly changed.’
So I would conclude that the nut survey carried out in January 2015 provides valid data for three years. In this case there was no need to resurvey the area with a simple nut survey, which fortunately for the developer offered no dormice chewed nuts, collected by an ecologist but not observed by any independent individual. I would suggest that to ensure a more complete survey of the habitat, placing nest tubes or nest boxes on site would have elicited a far more reliable and incontrovertible result.
Suggested mitigation measures.
In the accompanying ecology report, Green Ecology suggest some measures of mitigation.
On reading of this report, the measures do not seem to satisfy the recommendations of government guidance that
‘Management and site maintenance after development
You’ll need to consider:
who owns the site in the long term
who’ll be responsible for managing and maintaining the dormouse population
how long the maintenance can be guaranteed for
who’ll fund it
For large sites, make sure that ways to manage the dormouse population are included in any landscape or ecological management plan.’
As the dormouse habitat areas will be divided by high close boarded fences (to help exclude light spill to the valley for foraging bats,) into small gardens, any hazel whips planted in that area rely upon the knowledge and goodwill of private individual owners to maintain and coppice. I would suggest that this is a completely unfeasible management situation. There will be no organisation in charge of that area of the site after development is complete. Adding in the rights of house owners to cut down the hazel, pave their garden and install sheds etc, plus the likelihood of a large increase of cats and dogs from new home owners, then the situation for dormice would be disastrous. To suggest that they may relocate into a new ‘hedgerow’- that for many years will be a straggly line of whips- and that right beside Forder Lane – is incompatible with the needs of these secretive creatures.
The alternative plan
An alternative scheme for Brimhay has been proposed by Dartington Parish Council and is now with SHDC planners for determination. This a scheme demonstrates that social homes can be built with a cross subsidy of less, but high quality desirable eco homes- what’s more, these can be built around a communal green/ garden- leaving the wild valley and a considerable buffer zone of amenity grassland alone. This would become a Community Nature Reserve. This alternative scheme is viable, has been costed and has the support of hundreds of local people; many of whom are appalled at the potential loss of such valuable habitats unnecessarily. This scheme would not require an EPS licence as it does not impinge on the habitats of dormice or the bats that feed and forage in this valley.
With this alternative on the table, NE should not grant an EPS licence to the SDRHA scheme, so it is somewhat convenient that this latest nut survey fails to find a dormouse chewed nut. Pointing to the lack of thorough and recommended surveys and the validity of the survey undertaken last year, I now explain the discussion during the Judicial Review on 18th July this year.
Judicial Review- Relevant observations from the judgement
I refer to the Judicial Review in that it sets the suppositions of this application against legally tested applications that involve dormice and other EPS species, as well as offering legal opinion on this case.
Ground 2 of the Judicial Review of the Brimhay application was based on the contention that SHDC erred in its derogation under the Habitats Directive.
Under this it is ‘a criminal offence to deliberately disturb, damage or destroy the breeding or resting place of an EPS’. A licence to do so is only granted by NE under IROPI- ie ‘imperative reasons for overriding public interest including those of a social or economic nature’. Justice Hickinbottom pointed out that the IROPI should be of long term and not short term interest. I would add that with current housing law, unfortunately social housing cannot be guaranteed to remain as such. Nor can specialist housing be immune to a change of use. There may well be a case at Brimhay that the social flats may be sold privately and the end result be a standard and in this case cramped, development of houses at the expense or high quality habitat.
Justice Hickinbottom explained that the interest must be BOTH ‘public’ and ‘overriding’, such to be weighed up against the Habitat Directive’s objectives of conservation of EPS.
With little direction from NE and little case law on the meaning of IROPI, two cases were discussed. In Elliott v the Secretary of State- a similar case for cross subsidy of a scheme for Crystal Palace Park, with economic and community benefit- albeit of far larger scale than Brimhay, was over ruled as not meriting IROPI.
The implications of article 16 (Habitats Directive) implications were discussed and it was emphasised that the scheme allowed should be in the PUBLIC interest and satisfy the ‘imperative’ and ‘overriding’ terms of the condition of IROPI.
The judge understood that SHDC councillors did not feel too burdened by the results of their decision since NE would be there to stop the development of the valley if NE thought it too damaging. This latest nut survey is an attempt to avoid seeking NE’s opinion or permission. I would argue that a precautionary approach– to apply for a licence, would seem the sensible and advisable one, since it should be up to wildlife experts to decide the application and understanding of law applying to EPS. Judge Hickinbottom accepted that the single nut found confirmed the presence of dormice on site.
Annabel Graham Paul, barrister stated that in the case of applying IROPI to Brimhay, then any small affordable or social housing scheme could obviate the Habitats Directive. The benefits of the SDRHA scheme do not seem to match up to the ‘overriding’ and ‘imperative’ IROPI standards for derogation. In addition, the ‘satisfactory alternative’ scheme- already submitted for a pre application meeting prior to the decision on Brimhay, should mean that NE would not grant a licence to SDRHA.
The argument that SDRHA have used that ‘refurbishing the bungalows would be prohibitive’ (Saira Khan QC),and so the SDRHA scheme is the only option for Brimhay, has never been evidenced by figures. The community has received two quotes from builders estimating refurbishment to decent homes standard to be within £20,000 per property. This would retain 18 social homes instead of losing 6 as in the SDRHA scheme. It could easily be funded by the building of just 2 or 3 quality family homes on site- without compromising the wild valley. More detailed quotes are now being sought.
Recommendations made by the planning case officer at committee that there was no evidence that the development would affect the favourable status of dormice was not backed by scientific research. PTES and government advice, plus the findings of Bright et al suggest otherwise. To suggest to councillors that NE would be likely to grant a licence anyway was presuming upon specialist wildlife knowledge and would sway councillors. The fact is, he and councillors could not know. Because NE had not come to a final view and because there was little case law On IROPI Justice Hickinbottom only concerned himself with the legality of the decision made by councillors on the wildlife aspect of this scheme. The defendant’s lawyers have stated to NE that if a dormice licence is applied for and granted, with a ‘satisfactory alternative’ scheme available, it is likely they will issue a legal challenge to NE.
In the light of the above arguments, I believe that the Green Ecology survey is inconclusive and inadequate to argue that an EPS licence be sought to develop the site. The fact that this clearance also affects the foraging areas of five species of bats would also require an EPS licence- but this is not mentioned in the report. Further surveys using nest tubes and nest boxes over a period of spring and summer months and surveys by independent experts is advised for this argument to hold.
The 2015 survey data is still valid and as such cannot be overridden by this latest survey data.
That the method statement that details clearance of the area by extreme disturbance and damage by contractors to both dormice and bats- roosting or foraging amounts to a contravention of the Habitats Directive for both damage to dormice and bat habitat.
Interim natural England Advice note- Dormouse Surveys for mitigation licensing- Best practice and misconceptions.