Lawford EN

Essex Naturalist (New Series) 37 (2020)
An Essex case study: Lawford Tye – species records
add weight to planning decision

    Good biological recording, analysis and presentation can be important in the determination of planning applications and Public Inquiries. This is a case study relating to a Public Inquiry regarding 110 new houses on a grassland site called Lawford Tye Field on the edge of the village of Lawford, Manningtree, Essex. There are many speculative development proposals like this throughout Essex, and the UK, and many of these end up at Public Inquiries which engage not only the Local Planning Authority and the developer, but also local Action Groups which put the case on behalf of local residents as to why such development should not be allowed. In many cases, the Planning Inspector responsible for the decision does allow the development and awards Planning Permission – but not always.
    In this case the Lawford Tye Action Group undertook detailed surveys of moths and other wildlife and demonstrated to the Planning Inspector that Biodiversity Action Plan species (UK BAP species), which receive some protection under Section 41 of the Natural Environment and Rural Communities Act 2006 (England), are important. These added weight to the Inspector‟s decision to dismiss the developer‟s Appeal, and Planning Permission was not allowed.
    Lawford Tye Field was spared from development by a combination of good wildlife recording and presentation by volunteers, good archaeological representation from the local Museum and strong representations from the Council relating to landscape quality and appearance. This example shows that if you have good biological records and you present these well, then Planning Inspectors do take this evidence into account.
    It is very common for wildlife and biodiversity to be cited as objections to proposed developments, however, all too often there are too few good records for a Planning Inspector to consider this as compelling evidence in a Public Inquiry – anecdotal views, even if presented by experienced biologists, are not sufficient. Good records are needed as the foundations for a persuasive argument. Even then it is unlikely that wildlife and biodiversity will carry sufficient weight on their own (except for the very best sites) to „tilt the balance‟ against development, such is the strength of the national drive to build more houses. But, when combined with other good evidence, good wildlife records can make the difference.
    Many residents in Lawford near Manningtree were concerned by a planning application (17/01950/OUT) by Gladman Developments (Gladman) to Tendring District Council (TDC) in November 2017 for 110 new houses on Lawford Tye Field (Fig. 1). This 6.9 hectare site was outside the Settlement Boundary of the village, on grassland adjacent to the Parish Council recreation fields and crossed by public footpaths enjoyed by many local people for quiet recreation.
    TDC received over 280 written objections, a large number for a rural location, and refused the application by notice dated 9 April 2018.
    An Essex case study: Lawford Tye – species records add weight to planning decision
    Essex Naturalist (New Series) 37 (2020)
    Gladman lodged an Appeal (APP/P1560/W/18/3201067) against this refusal under Section 78 of the Town and Country Planning Act 1990. They also made a second Planning Application (19/00067/OUT) on the same site to try to bolster their case; this received over 300 written objections. The stage was set for a six-day Public Inquiry which took place in late July 2019, presided over by an independent Inspector appointed by the Secretary of State through the Planning Inspectorate.
    This is a familiar story as developers try to secure planning permissions, in accordance with the National Planning Policy Framework (NPPF), to achieve the national target of over 200,000 new homes per year (increased to 300,000 per year in May 2018). Developers, of course, seek to make significant funds for themselves and their clients through elevating the value of the land.
    Prior to this Inquiry, the Inspector called upon the main parties, TDC and Gladman, to present their case, and also set a timetable for them and any other third parties to make their representations in writing in advance. The local residents formed a Community Group called Lawford Tye Action Group (LTAG) to make sure that local views were well represented.
    The Council’s Reasons for Refusal
    TDC could only make Representations to the Inquiry relating to the Reasons for Refusal which they had given to the original Planning Application because the application conflicted with policies in the Local Development Plan (LDP):
  1. The site was outside the Settlement Boundary given for Lawford, Manningtree and Mistley in the LDP. Although this seems on the face of it a strong reason, it was severely weakened because the LDP was out of date and had not kept pace with the policies in the NPPF.
    Figure 1. Southern Section of Lawford Tye Field, Lawford, Manningtree.
    Photograph © Eleanor Storey
    An Essex case study: Lawford Tye – species records add weight to planning decision
    Essex Naturalist (New Series) 37 (2020)
    Figure 2. Development Plan as submitted by Gladman for 110 new houses at Lawford
    An Essex case study: Lawford Tye – species records add weight to planning decision
    Essex Naturalist (New Series) 37 (2020)
  2. The proposal was out of character with the local area in terms of its appearance and its impact on the rural landscape.
  3. TDC could demonstrate that it had, or was working well towards, the 5 years‟ worth of Housing Land Supply HLS required by national government.
    LTAG’s main objections
    LTAG supported the TDC‟s Reasons for Refusal and wanted to add to these by concentrating on other issues which were important to local residents and which might influence the decision of the Planning Inspector. To be material to the Inquiry such issues must relate to planning policies and planning case law and in particular to the policies in the NPPF. After much discussion in their meetings, LTAG majored on the following:
  4. Challenging Gladman‟s Transport Assessment which argued that 110 new houses would not cause any additional traffic congestion.
  5. Challenging the design of the access to the development, which was proposed from a minor single-track road, Grange Road.
  6. Explaining the impact of additional housing on various services which were already overstretched such as doctors‟ surgeries, primary school places etc.
  7. Setting out why the proposal could not be classed as sustainable, particularly when 1500 additional new houses had recently been given planning permission in the local area.
  8. Explaining that the local bus services to the village of Lawford were not frequent enough nor sufficiently reliable to encourage residents of the new properties to use these as „sustainable modes of transport‟.
  9. A survey of the use of public footpaths on the existing site which showed that many residents valued this for quiet recreation.
  10. A representation relating to the archaeology of the site and the impact of the proposed development on Tye Henge, a Scheduled Ancient Monument (SAM) – a 4500 year-old Neolithic feature (Taylor 2015).
  11. A representation relating to the wildlife and biodiversity of the site and any protected species which included skylarks, bats, grass-snakes, invertebrates and moths in particular.
    Members of LTAG then prepared a great deal of information about each of these issues which included collecting first-hand evidence, analysis and writing of detailed representations in a format which was recommended by an experienced Planning Advisor employed by LTAG. Each representation was linked to planning policies and specific paragraphs in the NPPF.
    Which of LTAG’S objections were judged important?
    When it came to the Public Inquiry in July 2019, different members of LTAG presented to the Inspector. Over 60 local residents attended the Public Inquiry to add their support for LTAG. It was only after making the presentations that LTAG gained a feeling for which might influence the outcome of the Inquiry. This approach will probably be familiar to others who have been involved with Action Groups and they may not be surprised to learn that, although all presentations were listened to attentively by the Inspector, it became clear that only two of LTAG‟s representations would carry any weight:
     Archaeology and the Impact on the Tye Henge SAM
     Biodiversity and the impact on protected species and sites
    Which of the Councils Reasons for Refusal were important?
    TDC had undertaken meticulous work to substantiate their Reasons for Refusal. The Inspector, however, attached very limited weight to the site being outside the Settlement Boundary and, following a marathon argument between TDC and Gladman over the details of every individual
    An Essex case study: Lawford Tye – species records add weight to planning decision
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    area allocated for house building across the whole of Tendring District, the conclusion was that TDC could demonstrate at best 3.7 years of Housing Land Supply – far short of the 5 years required as a minimum. The Council‟s case therefore hinged upon one of their Reasons for Refusal: Character and Appearance – was the proposed development out of character? And to this the Inspector did attach substantial weight as we later learned in her decision report – because the development would “detract from key characteristics of the settlement pattern, the rural character and appearance of the setting…. and would fail to enhance landscape quality and would be contrary to paragraph 127 of the NPPF 2018”.
    Key issues for the Inquiry
    Three key issues therefore emerged during the process of the Public Inquiry:
     Character and Appearance – presented by TDC
     The impact on the Scheduled Ancient Monument presented by Philip Cunningham of the Local Museum and History Group, supported by Patrick Taylor
     Wildlife and Biodiversity presented by John Hall on behalf of LTAG and supported by Dr Chris Gibson.
    It only became clear in the final decision notice (not announced until 23 October 2019, three months after the Public Inquiry) that the combined weight of these three issues led the Inspector to dismiss the Appeal.
    Figure 3. Aerial view of Tye Henge and other crop marks in 1990 by SEAX
    An Essex case study: Lawford Tye – species records add weight to planning decision
    Essex Naturalist (New Series) 37 (2020)
    Here we concentrate on the weight added by Wildlife and Biodiversity as this may assist professional and amateur biologists who are engaged in similar planning matters.
    Wildlife Records for Lawford Tye Field
    Moth records
    In 2018 John Hall ran a Robinson light trap on 24 nights between 7 April and 19 October, which was the last date that evidence could be submitted to the Public Inquiry (the Public Inquiry was not heard until July 2019, but earlier dates for the Inquiry had been set only to be postponed for various reasons). The aim was to get a trap night at least once every two weeks and fit in other trap nights when the weather was reasonable. The trap was set in the garden of (the now sadly late) Reg Fry, adjacent to the southern end of Lawford Tye Field where the housing development was proposed. The trap was not set on the development site because this was open to the public and could easily have been vandalised. However, the trap was within 2m of the field boundary. It was switched on at dusk and collected as soon after dawn as practical. John Hall went through the trap the same morning, always with others present so they could witness and verify the species caught: serendipitously, a local moth group „The Mothketeers‟ had been formed the previous year and had grown to about 18 members. Some were very experienced naturalists, like Sam Chamberlin, Bob Gooding and Jenny Francis; others were novices so there were always keen eyes to witness and verify. Unfortunately Reg Fry, an eminent entomologist who ran the superb website Eggs, Larvae, Pupae and Adults Butterflies and Moths ( was not well enough to run the moth trap himself.
    Photographs were taken of any notable species and, after identification and counting, all moths were returned to the trap and held over to the evening when they were released back where they were caught.
    Figure 4: Some of the significant moths recorded adjacent to Lawford Tye Field:
    Ghost moth female, Hepialus humuli.
    Photograph © Bob Gooding
    Blotched Emerald Comibaena bajularia.
    Photograph © Sam Chamberlin
    An Essex case study: Lawford Tye – species records add weight to planning decision
    Essex Naturalist (New Series) 37 (2020)
    Lunar Yellow Underwing Noctua orbona.
    Photograph © Sam Chamberlin
    Oak Hook-tip Watsonalla binaria.
    Photograph © Sam Chamberlin
    Small Emerald Hemistola chrysoprasaria.
    Photograph © Bob Gooding
    Scorched Carpet Ligdia adustata.
    Photograph © Sam Chamberlin
    Latticed Heath Chiasmia clathrata.
    Photograph © Bob Gooding
    Feathered Gothic
    Tholera decimalis.
    Photograph © Sam Chamberlin
    An Essex case study: Lawford Tye – species records add weight to planning decision
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    The moth records were compiled and Bob Gooding sent all records through to the National Moth Recording Scheme and to the Essex Moth Recorder.
    Further field work on moths
    During the course of 2018 it became clear that we had several notable species of moths in the Robinson trap. Obviously, adult moths could fly into the trap from any direction and from outside the boundary of the proposed development. In discussion with several entomologists and Sharon Hearle from Butterfly Conservation, it was clear that we needed to establish, at least for some important species, whether the adult moths were just flying through or the species was breeding on the field.
    One of the most notable species was Lunar Yellow Underwing Noctua orbona, the adults of which we had caught in September 2018. Butterfly Conservation knew a great deal about this declining species and the need for its conservation, and they provided us with photographs of the caterpillars and details of its life cycle, timings, behaviour and food plants. Therefore, on several occasions in February 2019, several Mothketeers would be seen crawling across Lawford Tye Field in the dark with head torches looking for the caterpillars. A cool February night may seem improbable for caterpillar hunting, but we were armed with the knowledge that the caterpillars of this species feed in grass tussocks (preferably those with both fine- and broad-leaved grasses), that they are nearing full size in February and March, and that after dusk they crawl out of the grass tussocks on to tall stems and stay there for an hour or so – it is presumed they are drying off to avoid fungal disease which could kill them if they were continually damp. It really did feel like looking for needles in haystacks; however, we persisted and on several nights in February we found the caterpillars of Lunar Yellow Underwing behaving just as Butterfly Conservation had indicated. We searched again in early March but by then there were no caterpillars to be found. The number and location of the caterpillars was recorded, and photographs taken for verification.
    Birds Wing Dypterygia scabriuscula.
    Photograph © Bob Gooding
    L-album Wainscot Mythimna l-album.
    Photograph © Sam Chamberlin
    An Essex case study: Lawford Tye – species records add weight to planning decision
    Essex Naturalist (New Series) 37 (2020)
    Bat records
    In September 2018 several bats were noticed flying at dusk along the hedgerows in the southern section of Lawford Tye Field. To gain clear evidence of these, John Hall used a „Batscanner‟ on several evenings in early October 2018 and picked up clear echolocation calls of three bat species: Soprano Pipistrelle Pipistrellus pygmaeus, Common Pipistrelle P. pipistrellus and Noctule Nyctalus noctula. Videos were taken of the bats flying ensuring that the „Batscanner‟ screen was also visible on the video and including the location and date with voice captions.
    Skylarks Alauda arvensis were heard singing in Lawford Tye Field. Bob Gooding was asked to verify this: he made regular walks through the field and recorded two singing males.
    Grass Snake
    Several verbal reports of Grass Snakes Natrix helvetica were received from residents adjacent to Lawford Tye Field. These anecdotal reports were included in the presentation to the Inquiry.
    Small Heath butterfly
    John Hall observed the adults of Small Heath Coenonympha pamphilus butterfly flying at Lawford Tye Field. This is also a noteworthy species and Reg Fry had recent records of the caterpillars feeding on the site.
    Results and Analysis
    204 species of moths were recorded through the year of 2018; 13 of these were micro-moths (not all micro-moths were recorded – only those easily recognised); 191 were species of macro-moths. Waring, Townsend & Lewington (2009) gives a summary of the national status of the macro-moths and this enabled the following summary:
    Legally protected Species under Wildlife and Countryside Act 1981 0
    Red Data Book species RDB 0
    Nationally Scarce A species Na (recorded from 16 – 30 10 km squares since 1980 0
    Nationally Scarce B species Nb (recorded from 31 – 100 10 km squares since 1980 5
    Local species (recorded from 101 to 300 10km squares since 1980 25
    Section 41 UK BAP Priority species 27
    Note that the UK Biodiversity Action Plan (BAP) Priority species are identified by the Joint Nature Conservation Committee (JNCC) and included under Section 41 of the Natural Environment and Rural Communities Act 2006. The original selection of UK BAP Priority species was produced between 1995 and 1999. Most of the moth species which qualified for UK BAP priority species were not added to the list until 2007 and many of these were added for „Research Purposes‟ because they were examples of species which were recorded as declining and needed research and action at a national level. As such these species for „Research Purposes‟ are not regarded as species of „Principal Importance‟ nevertheless they are listed as Section 41 species and give an important insight into the biodiversity of a site.
    The inherent weakness of the moth records from any light trap is that adult moths are, of course, drawn to the trap from a wide area – probably from up to a distance of about 100 metres. This means that the catch was drawn in part from Lawford Tye Field and also from Reg Fry‟s garden, and indeed from several other gardens and fields and woodland which are within 100 metres of the trap – a point which we predicted that Gladman would use in their arguments at Public Inquiry.
    An Essex case study: Lawford Tye – species records add weight to planning decision
    Essex Naturalist (New Series) 37 (2020)
    Table 1 lists all species recorded at the site which fall in the above categories. A full list of moth records is available from the lead author on request.
    Table 1 NOTABLE MOTH RECORDS FROM ROBINSON TRAP AT GRANGE ROAD, LAWFORD, CO11 2JB IN 2018COUNTS (Year: 2018)MOTH SPECIES07-Apr21-Apr11-May26-May10-Jun15-Jun22-Jun29-Jun06-Jul12-Jul14-Jul20-Jul26-Jul03-Rustic1112Beautiful Hook-tip121143Beaded Chestnut11031144Birds Wing1115Black Arches1113166Bloodvein125223147Blotched Emerald1228Brown-tail1111149Brown -Spot pinion111210Buff Ermine111221711Calamotropha paludella11112Centre-barred Sallow12213Cinnabar12214Coronet13315Cream Bordered Green Pea11116Deep Brown Dart11117Dioryctria slyvestella11118Dot Moth112121719Dusky Thorn11120Dwarf-cream Wave11111421Ear Moth113512633022Feathered Gothic11761423Festoon124Frosted Green11125Ghost Moth11♂1♂, 1♀1♂, 1♀Dagger1112121827Kent Black Arches11128L-Album Wainscot1121429Large Wainscot111230Latticed Heath11321731Least Carpet112442111532Lunar-spotted Pinion11133Lunar Y.U.1111234Maiden’s Blush11135Mottled Rustic151652881611109936Oak Hook-tip112337Olive11138Orange Footman111239Ostrinia nubilalis18840Poplar Kitten111241Rosy Footman111242Rosy Minor1111343Rosy Rustic1151251111744Rufous Minor11145Rustic1632211446Sallow111247Scarce Footman12461111548Scorched Carpet111249Shoulder Striped Wainscot11110328213750Small Emerald111151Small Rufous112352Small Square Spot11153Striped Wainscot1322754Treble-brown Spot11155White Ermine155TOTALS27525B.A.P. S41 speciesNationally scarce ‘
    B’Local speciesB.A.P. S41 speciesNationally scarce ‘
    B’Local species
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    2JB IN 2018COUNTS Jul12-Jul14-Jul20-Jul26-Jul03-Aug13-Aug19-Aug25-Aug01-Sep07-Sep16-Sep27-Sep05-Oct12-Oct19-OctTOTALS1Autumnal Rustic1112Beautiful tip121143Beaded Chestnut11031144Birds Wing1115Black Arches1113166Bloodvein125223147Blotched Emerald1228Brown-tail1111149Brown pinion111210Buff Ermine111221711Calamotropha paludella11112Centre-Sallow12213Cinnabar12214Coronet13315Cream Pea11116Deep Dart11117Dioryctria slyvestella11118Dot Moth112121719Dusky Thorn11120Dwarf-Wave11111421Ear Moth113512633022Feathered Gothic11761423Festoon124Frosted Green11125Ghost 526Grey Dagger1112121827Kent Arches11128L-Wainscot1121429Large Wainscot111230Latticed Heath11321731Least Carpet112442111532Lunar-Pinion11133Lunar 1111234Maiden’s Blush11135Mottled Rustic151652881611109936Oak tip112337Olive11138Orange Footman111239Ostrinia nubilalis18840Poplar Kitten111241Rosy Footman111242Rosy Minor1111343Rosy Rustic1151251111744Rufous Minor11145Rustic1632211446Sallow111247Scarce Footman12461111548Scorched Carpet111249Shoulder Wainscot11110328213750Small Emerald111151Small Rufous112352Small Spot11153Striped Wainscot1322754Treble-Spot11155White Ermine155TOTALS27525B.
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    Caterpillar Records for Lunar Yellow Underwing
    The numbers and locations of Lunar Yellow Underwing caterpillars are presented in Table 2.
    Table 2. Records of Caterpillars of Lunar Yellow Underwing
    found by Torchlight Surveys in Feb 2019
    Lunar Yellow Underwing is a Nationally Scarce B species (Nb) and it is listed as a Section 41 UK BAP Priority species, where it is also designated as a species of „Principal Importance‟. The Atlas of Britain and Ireland‟s Larger Moths (Randle et al. 2019) shows that this species has a limited distribution, being recorded mainly from East Anglia and an area in Hampshire/Wiltshire. The Atlas also shows that this species is in decline. Unfortunately, this Atlas was not available at the time of the Public Inquiry but it now provides a very useful summary for this present paper and the Atlas will be very useful in future for the distribution of macro-moths.
    The fact that we did have records and photographs of the caterpillars of Lunar Yellow Underwing for this particular site in 2019 was significant in the Inquiry. For the other notable species where we recorded the adults in the light trap, we had to rely on the fact that the foodplants of all these moth species were present in Lawford Tye Field and it was therefore likely, but not certain, that these moth species would be using these food plants in their life cycle.
    Number of caterpillars found
    Number of Surveyors
    Approx length of search
    in minutes
    Figure 5. Lunar Yellow Underwing Caterpillar. Photograph © Bob Gooding
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    Other wildlife records
    The presence of three bat species, Soprano Pipistrelle, Common Pipistrelle and Noctule was accepted by all parties at the Public Inquiry. However it is worth noting that the videos of bats and Batscanner were not considered to be „admissible evidence‟ to the Inquiry because they did not have means of playing them in the Inquiry room.
    The evidence of Skylarks and Grass-snakes was classed as „anecdotal‟ and was therefore of limited significance to the Inquiry.
    The evidence of Small Heath butterfly and the records of this species breeding was significant, and was cited by the Inspector. This species is also listed as a Section 41 species of ‘Principal Importance’.
    Main points relating to wildlife and biodiversity that were significant at the Public Inquiry
    When a Local Planning Authority (LPA), Planning Committee and Planning Officers assess a Planning Application they have to take into account their own Planning Policies and the NPPF. Developers like Gladman are, of course, very aware of these same policies and the NPPF and they structure their Planning Applications accordingly. If the LPA refuses a Planning Application, they must give „Reasons for Refusal‟ and, if the matter goes to a Public Inquiry, these reasons are likely to be tested: they must be defensible otherwise the LPA could face an award for significant costs.
    LPAs are required to have an up to date Local Development Plan (LDP) which must take account of the policies in the NPPF. If the LDP does not, or it is out of date, then this is likely to be challenged at Public Inquiry. The policies in the NPPF are updated regularly so LPAs have to keep up to speed with these updates, as do developers, and so it is crucial that those presenting wildlife and biodiversity information to Public Inquiries are also up to date. When Gladman made their planning application in November 2017 the NPPF 2012 was current and the Tendring LDP 2007 was out of date as of 2013. By the time of the Public Inquiry in July 2018, NPPF 2018 was current and the Tendring LDP still had not been updated, such that the LDP was significantly out of line with national policy. This is significant to planning decisions, Public Inquiries and those presenting evidence (including wildlife evidence) at a Public Inquiry. To appreciate this, it is important to understand „the presumption in favour of Sustainable Development‟ (Para 14 of NPPF 2012 or Para 11 of NPPF 2018). These paragraphs include the following policy:
    “…where there are no relevant development plan policies or the policies are out of date, …. Then planning permission should be granted unless
    i) There are clear reasons to refuse the development
    ii) Any adverse impacts of the proposed development would significantly and demonstrably outweigh the benefits”
    This is referred to as ‟tilted balance‟, which effectively means that the balance, or scales, are tilted in favour of the developer unless there is sufficient „weight‟ to tilt the scales otherwise. One has to understand this policy if wildlife and biodiversity, or indeed any other evidence are to be material to the planning decision.
    In this case study at Lawford Tye Field, the LDP was out of date by at least 5 years and the policies in the NPPF had been amended significantly in 2012 and 2018 so the LDP policies did not take these amendments into account. Indeed, the LPA agreed in its Statement of Case at the Inquiry that the policies were out of date and that „tilted balance‟ did apply. This is not an unusual situation – at the time of writing there are about 150 Councils in the UK in the same position of their LDP being out of date. Gladman and other developers know this and they
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    target Council areas which are in this position because it increases their chances of getting Planning Permission.
    In this Lawford case, the scales were therefore tilted in favour of the developer being awarded planning permission and the Council and any third parties like LTAG had to demonstrate there are „clear reasons to refuse the development‟ and/or there are „adverse impacts of the proposed development which would significantly and demonstrably outweigh the benefits‟ (that is the benefits to the nation of providing much needed housing and any other benefits offered by the developer such as support for local infrastructure eg improvements to roads, footpaths, doctor‟s surgeries, schools, greenspace etc.)
    An additional factor in this case study (and many others around the country) which tilted the balance in favour of the developer relates to Housing Land Supply (HLS). There is a Standard Method (SM) of calculating the HLS required for each Council area in the UK which essentially relates to the size of the population of that area. However, this SM can be adjusted for Unattributable Population Change (UPC), for example, if the population is shown to be declining as was the case in Tendring. The Adjusted Method for Tendring produced an HLS requirement of 550 houses per year and meant that Tendring could demonstrate that it had 5 years of HLS. However, where the LDP is not up to date, the Council is required to use the Standard Method without adjustment, and this produced a requirement of 863 houses per year for Tendring. This higher target meant that Tendring Council could demonstrate, at best, 3.7 years of HLS – well below the 5 years required by the NPPF. This shortfall was considered as significant by the Inspector and added weight to the developers‟ side of the scales.
    Footnote 6 of the NPPF proved crucial to the Lawford case and may well be important in other cases where wildlife and heritage are significant. Footnote 6, highlighted by the Inspector, explains “the policies include those relating to habitats sites (as listed in NPPF Para 176) and also designated heritage assets and other sites of archaeological interest”.
    In the Lawford case, the proposed development is within 2km of the Stour and Orwell Estuaries Special Protection Area (SPA) and Ramsar Site, and there is also a Scheduled Ancient Monument (SAM) Tye Henge on the site. Para 177 of the NPPF explains that where there is a habitats site, the „presumption in favour of sustainable development‟ will not apply unless an Appropriate Assessment (AA) is undertaken and this AA concludes that the development plans would not adversely affect the integrity of the habitats site.
    Gladman did undertake a detailed AA to assess what impact the proposed development would have on the SPA (essentially that residents might walk to the SPA with or without dogs and cause some disturbance), to determine appropriate mitigation (contributing some funds towards a warden for the SPA and ensuring there was about 1.9 hectares of green space next to the proposed housing so that residents and their dogs would use this rather than walk to the SPA). In this way Gladman argued that there would be no significant impact on the SPA and therefore the presumption in favour of sustainable development and titled balance would apply. The Inspector did not agree with this. It is therefore useful to include here an extract from the concluding section of the Inspector‟s decision – a 25-page document with numbered paragraphs where the decision is summarised in Paras 138 to 144.
    Extract from Appeal Decision APP/P1560/W/18/3201067
    Overall Balance
  12. Likely adverse effects on the integrity of the SPA by reason of disturbance from increased recreational visits cannot be screened out on the basis of the proposed avoidance or reduction measures. There are no imperative reasons of overriding public interest to justify permission despite a potentially negative effect on site integrity. The potential for significant harm to European sites (the Stour and Orwell Estuaries SPA) attracts great weight against the
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    proposal. The presumption in favour of sustainable development does not apply and permission should be refused.
  13. However, I identified that a more rigorous planning obligation would be an alternative. Had satisfactory provisions been made then it is probable that the AA would have concluded that the likely adverse effects on the integrity of the SPA would be screened out on the basis of avoidance or reduction measures. In that scenario, the presumption in favour of sustainable development would apply. I now set out the effect that would have had in the planning balance.
  14. I found the HLS to be roughly 3.7-years. Notwithstanding the effect of the UPC in Tendring, the Council‟s inability to demonstrate a five-year HLS is significant. The proposed „up to 110‟ dwellings, including 33 affordable units would contribute toward the delivery of housing. But even if I had accepted the Appellant‟s evidence that the HLS is only 3.34 years, for reasons given, the weight I attach to the scheme‟s contribution to the social objective of delivering new homes is great, but not substantial. Socio-economic benefits attract moderate weight in favour.
  15. The proposal would fail to maintain and enhance landscape quality and local distinctiveness and would visually detract from key characteristics of settlement pattern and form, the rural character and appearance of the setting of the settlement and the rural character of Grange Road in the vicinity of the site. The proposal would conflict with advice at paragraph 127 of the Framework for the creation of well-designed places that add to the overall quality of an area and are sympathetic to local character, including landscape setting. These harms attract substantial weight against the proposal. However, for reasons given, conflict with TDLP Policies EN1 and QL1 attract only limited weight and conflict with the eLP Policies PPL3, SPL1 and SPL2 very limited weight.
  16. The evidence is not sufficient to demonstrate that on-site biodiversity interests including species protected by s41 of NERC and the WCA would be satisfactorily conserved or adequately mitigated or compensated by imposition of conditions. These potential harms also attract moderate weight against. However, the application of policies that protect areas or assets of particular importance did not provide a clear reason for refusing the development.
  17. The effects of open space, GI and highway works would be neutral. I attach limited weight in favour of the preservation in situ of the SAM and provision of interpretation boards. A combination of potential effects could result in minor- moderate irreparable harm to the setting and significance of the SAM but I found no conflict with TDLP Policy EN29 or eLP Policy PPL7 and the harm would be less than substantial. Nonetheless, potential harm to an irreplaceable heritage asset attracts moderate weight against the proposal. All of the benefits of the scheme do not outweigh the harm to the setting of the SAM.
  18. Applying the tilted balance, the adverse impacts of granting permission, when assessed against the policies in the Framework as a whole, would significantly and demonstrably outweigh the benefits.
    Conclusion of the Inspector
  19. Having regard to all other matters raised, including by LTAG and other interested parties, I conclude that the appeal should be dismissed.
    Notable Points from the Inspector’s decision
    Para 138 in this decision is very noteworthy. At the time of the Public Inquiry we did not know that the Inspector would reject the provisions proposed by the developer to reduce any impact on the SPA. This rejection meant that the Inspector removed the “presumption in favour of Sustainable Development” and recommended refusal. This is refreshing but surprising because Natural England (NE) and Essex County Council Place Services had considered the provisions reasonable and TDC had followed this lead and not cited it as a „Reason for Refusal‟.
    Para 139 The Inspector considered that Gladman and its consultants could have made better provisions to reduce the impact on the SPA which would have restored the „presumption in favour of Sustainable Development‟. The Inspector, however, does not leave it at this – she goes on in Para 140 to 143 to conclude what the outcome would have been if tilted balance was restored.
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    Essex Naturalist (New Series) 37 (2020)
    Para 140 demonstrates the weak position of the TDC regarding HLS which actually added moderate weight in favour of the developer’s proposal.
    Para 141 covers the substantial weight against the proposal relating to landscape and character presented by TDC.
    Para 142 covers the moderate weight against the proposal relating to the on-site biodiversity including the Section 41 species.
    Para 143 covers the moderate weight against the proposal relating to the Tye Henge SAM.
    It is the combination of these „weights against‟ which tilts the scales against the developer‟s proposal – none can do it on their own, but together they do.
    Section 41 species in planning decisions
    This paper concentrates on the contribution that biodiversity information can play in Planning decisions, and we therefore expand on that element. There are few examples where „listed‟ (but not „specially protected‟) species such as Section 41 species have added weight to a planning decision. Usually it is the designated habitat sites (Ramsar, SPA, Site of Special Scientific Interest (SSSI), Local Nature Reserve (LNR), County Wildlife Sites (CWS)) which carry weight or the presence of the few legally protected species (such as Otter, Badger, Bats, Water Vole, herpetofauna etc. – or from the Lepidoptera, Fisher‟s Estuarine Moth). In this Lawford case it is the reliable records of not one but five nationally scarce and 27 Section 41 BAP Priority species which the Inspector found to be “credible and plausible” (the Inspector‟s words). These records convinced the Inspector that the biodiversity of the site was better than the developer had presented.
    Net gain of biodiversity in relation to Planning
    The developer had systematically undervalued the biodiversity of the site by undertaking very limited surveys for invertebrates. The developer then set out to demonstrate that their proposal would achieve net biodiversity gain. NPPF Para 175d states that “opportunities to incorporate biodiversity improvements in and around developments should be encouraged, especially where this can secure measurable net gains in biodiversity”. Therefore, many developers try to argue that their plans will achieve net biodiversity gain to add „weight‟ to their proposals. In this case the developer‟s argument was that the biodiversity of the site was poor, that they would build houses on 60% of the site thus removing the little biodiversity in that part, but they would establish green infrastructure on the remaining 40% of the site which would develop good biodiversity, so overall there would be a net gain in biodiversity.
    Because the NPPF asks for „measurable net gains in biodiversity‟, Gladman set out to quantify the net gain using a metric that has been developed by the Environment Bank ( The use of this metric has been adopted by many developers‟ consultants in the last few years. The principle of this metric is to calculate the Loss of Biodiversity caused by destroying a number of hectares of habitat to create building land and then calculate the Gain of Biodiversity by creating a number of hectares of new habitats as part of the green infrastructure or compensation habitats. The Environment Bank calculator provides you with an estimate of the Net Loss or Net Gain of Biodiversity. Using this calculator Gladman estimated a measurable Net Gain of 7.13 Units. To arrive at this Gladman scored the existing grassland as „poor‟.
    In the Inquiry we successfully argued that the Environment Bank calculator is a crude tool for assessing net biodiversity gain – a view supported many others (eg Woodfield 2019, who advised caution). Bearing in mind the good diversity of moth species on Lawford Tye Field, including the large number of Section 41 species, we argued that the existing grassland must be at least of moderate value and when this is used in the Environment Bank calculator this
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    Essex Naturalist (New Series) 37 (2020)
    estimates a measurable net loss of 1.81 Units. The Inspector accepted that, although a metric like this may have uses, the Environment Bank calculator is not a substitute for good biological recording and the Inspector highlighted in her decision (Para 48) that Government National Planning Guidance Circular 6/2005 states that “it is essential that presence or otherwise of protected species and the extent that they may be affected is established before Planning Permission is granted” and “ a precautionary approach must be adopted”. Gladman had put forward evidence that net biodiversity gain added weight to their proposals. The Inspector concluded “I attach little weight to this evidence”.
    Double counting the value of greenspace
    Another crucial point that emerged during the Inquiry which was picked up by the Inspector related to double counting. Gladman had allocated 2.94 hectares of the site for green infrastructure. On the face of it this appeared a generous allocation. However, the AA had identified, following advice from NE and Essex Place Services, that 1.94 hectares were required as mitigation for any disturbance that the future residents might cause to the SPA – this was referred to as 1.94 hectares of „Suitable Accessible Natural Greenspace‟ (SANG). This would include circular dog walks, an area for dogs off leads, various landscape buffers, informal seminatural habitat, some shrub and tree planting, a play area as well as areas of meadow grassland. The management of this would need to be secured by a Section 106 agreement with the Council. This is all very well to reduce pressure on the SPA, but the Inspector pointed out (Para 45) that there was insufficient evidence to demonstrate how all the SANG and BAP aims could be satisfactorily achieved on the same small area of green infrastructure. The Inspector had understood that, if the green infrastructure was managed as mitigation for the SPA then this would not be the tussocky grassland that was suitable for many of the Section 41 BAP species.
    Understanding the ecology and life cycle of a species
    There is a place for good ecology in Planning decisions. LTAG as a third party had to present its evidence before the end of February 2018 for an Inquiry that would take place in July 2018. This is so that evidence is not sprung last minute on the main parties, TDC and Gladman. Gladman therefore had sight in advance of LTAG‟s surveys, one of which showed that caterpillars of the Lunar Yellow Underwing had been found on Lawford Tye Field in February 2018. Gladman‟s consultants FPCR organised their own torchlight surveys for caterpillars, but they did not undertake these until early May. Gladman presented to the Inspector that they did not find caterpillars of Lunar Yellow Underwing on the site and argued that it was very unlikely they were breeding on the site. We explained to the Inspector that the life cycle of this moth is such that the caterpillars feed throughout the winter but by May they would be in a dormant prepupal stage prior to emergence as adults in June. This explained why LTAG found caterpillars in February but Gladman did not in May – they looked at the wrong time. The Inspector accepted our explanation and referred to this in the decision notice.
    Ensuring the Planning process respects evidence relating to biodiversity
    Dr Gibson explained to the inquiry that he was acting independently and unpaid – he had no view as to whether houses should be built on the site. He was offering his experience to ensure that the process regarding biodiversity was robust.
    Dr Gibson took issue with statements made by Gladman‟s consultant FPCR that “the moth records provided by LTAG cannot be relied upon to justify LTAG‟s claims that the site is of higher ecological value than judged by FPCR.” Dr Gibson considered that FPCR had summarily dismissed, in an unacceptably unprofessional manner, the biodiversity evidence provided by LTAG. At the very least FPCR should have accepted these data, which were freely given, and undertaken their own surveys to confirm the presence (or otherwise) of these moth species. They did not. They had sought to systematically undervalue the current biodiversity of
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    Essex Naturalist (New Series) 37 (2020)
    the site. Dr Gibson also expressed his concerns that the site was labelled as of low ecological value and that it was categorised as Poor when using the Biodiversity Metric.
    This strong representation from Dr Gibson attracted a rebuttal from Gladman. However, it is clear from the Inspector‟s decision that she found Dr Gibson‟s contribution useful and persuasive.
    The final challenge
    The Inspector‟s decision in this case was to dismiss the Appeal by Gladman. Gladman then went on to challenge the Inspector‟s decision by seeking a Judicial Review at the High Court. In such circumstances the case is reviewed by a High Court Judge to decide whether there is a case to be answered at the High Court. The case was reviewed by High Court Judge Timothy Mould QC and he refused permission for this case to go to the High Court on 25 February 2020, and therefore the Inspector‟s decision to dismiss the Appeal stands.
    What happens in a Public Inquiry?
    If a Planning Application is refused by a Local Planning Authority or the Authority does not determine the Application within a reasonable time, the Applicant has the right to Appeal to the Planning Inspectorate. A Planning Inspector is appointed and decides whether to hold a Public Inquiry or alternatively a Public Hearing or to take in Written Representations, whichever is appropriate to decide the Appeal.
    Typically, a Public Inquiry will involve the Main Parties (the Planning Authority and the Appellant) who would most likely have the legal representation of a solicitor and/or a barrister. A Public Hearing will not normally involve legal representatives and Written Representations would usually be reviewed from the Inspectors desk and not involve any public meeting.
    Public Inquiries relating to Planning Appeals usually sit for 3 to 6 days. The Council will give notice to all parties involved, including members of the public who objected to the original Planning Application. The Inspector sets a date for the Inquiry to start and a timetable by which all parties have to submit their written evidence in advance to give the Inspector and everyone time to read this. Members of the public can attend the Inquiry but usually they can speak only if they register their interest on the first day of the Inquiry and then they will be timetabled into the programme.
    Typically, the Appellant and the Council will each have a barrister and several specialist consultants who can be called upon to give evidence. Third Parties like LTAG can put up speakers at the discretion of the Inspector, but there are likely to be some limits on the number and time agreed for representations.
    At the start of a Public Inquiry the Inspector introduces the process and the issues, then calls upon the Appellant to state their case and the Council to respond. An Inquiry is often adversarial with the Appellant‟s barrister or Council‟s barrister cross-examining witnesses and arguing points of planning law and referring to case law. Third parties like LTAG will be called to speak by the Inspector and, after speaking they too can expect to be questioned by the Inspector or the barristers. Towards the end of the Inquiry the Council and the Appellant make their closing statements and the Inspector explains the timetable for decision which is often about 3 months. The Inspector uses this time to review the evidence, write a report in which the decision is announced – either the Appeal is Dismissed or the Appeal is Allowed and Planning Permission is thereby Refused or Awarded respectively. Once the Inspector‟s decision has been announced the only way to overturn it would be to apply for a Judicial Review at the High Court – an expensive route.
    Because Public Inquiries are formal, you have to be well prepared if you are going to speak and make any impact in the short time that you will be allotted.
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    Essex Naturalist (New Series) 37 (2020)
    The Authors
    John Hall retired as Chief Executive of Essex Wildlife Trust in 2015, a position he held for 28 years. He received an MBE for his services to the environment and was made an Honorary Fellow of University of Essex. He has a BA degree in Zoology and specialised in entomology. He has been interested in insects and particularly moths from a young age.
    Dr Chris Gibson retired following 31 years with Natural England and its predecessor bodies – much of his experience relating to Planning matters . He has a BSc and a PhD in an ecological subject. He has run a moth trap regularly over a period of more than 15 years and has expertise in a wide range of flora and fauna.
    We are pleased to thank the following for their commitment and time:
    Lawford Tye Action Group: Eleanor Storey, Robert Lewis, Sam Harty, Andy Baker, Caroline Hall, Fiona Jones, Julie Thomas, Julie Tull and Planning Advisor Sharon Smith from Fisher Jones Greenwood Solicitors, Colchester.
    Manningtree Museum and Local History Group: Philip Cunningham with specialist support from Francis Pryor, Colchester & Ipswich Museums and the late Patrick Taylor.
    The Mothketeers, and in particular Bob Gooding, Sam Chamberlin and Jenny Francis.
    Sharon Hearle, Butterfly Conservation
    Lawford Parish Council.
    Over 300 residents of Lawford who made written objections, 60 of whom attended the Public Inquiry.
    What is the National Planning Policy Framework NPPF?
    The NPPF sets out the national Government‟s planning policies for England. It is issued by the Secretary of State for the appropriate Ministry – currently Housing, Communities and Local Government.
    All Local Authorities are required to prepare Local Development Plans (LDP) and to keep these up to date. There are clear policies for Plan Making in the NPPF and LDPs must take these into account. All LPAs are required to make timely decisions on Planning Applications and there are policies in the NPPF which guide this decision making.
    The NPPF is reviewed and changed regularly. In addition, the Government issues Planning Policy Guidance Notes relating to how the policies in the NPPF should be implemented.
    At a Public Inquiry the respective barristers will be at pains to emphasise where any actions or proposals would be consistent with the NPPF. The NPPF is high in the mind of the Inspector when making the decision to dismiss or allow an Appeal.
    When presenting at Public Inquiry you would be well advised to relate your evidence and arguments to the NPPF as well as to the LDP.
    A Final Note
    Major reforms to the Planning System are proposed by the government White Paper PLANNING FOR THE FUTURE which was issued in August 2020. Readers should bear in mind that the Public Inquiry relating to Lawford Tye took place in 2019 under the Planning System that operated at that time.
    An Essex case study: Lawford Tye – species records add weight to planning decision
    Essex Naturalist (New Series) 37 (2020)
    RANDLE, Z., EVANS-HILL, L.J., PARSONS, M.S., TYNER, A., BOURN, N.A.D., DAVIS, T., DENNIS, E.B., O’DONNELL, M., PRESCOTT, T., TORDOFF, G.M. & FOX, R. (2019) Atlas of Britain and Ireland‟s Larger Moths. Pisces Publications.
    TAYLOR, P. (2015) Timber Circles in the East. Polystar Press.
    WARING, P., TOWNSEND, M. & LEWINGTON, R. (2009) Field Guide to the Moths of Great Britain and Ireland (Second Edition). British Wildlife Publishing.
    WOODFIELD, D. (2019) Biodiversity Accounting. British Wildlife 20 (2): 117-120.
    What is life?
    40 Pentland Avenue, Chelmsford, Essex CM1 4AZ
    Most civilizations and religions postulate the existence of some mythical creator to provide a vital spark, which causes a collection of chemicals to become alive. There is no scientific evidence to prove these ideas, the scientific facts and ideas about what life is are written below.
    1) Living things metabolise i.e. they obtain and then release energy which they use to maintain order within their walls. They are chemical, physical and informational machines constructing their own metabolism to power maintenance, growth and reproduction.
    2) Living things possess organized complexity involving great numbers of different atoms arranged in intricate ways to form bounded, physical entities including unicellular organisms but not viruses which only grow and reproduce using the metabolism of their hosts.
    3) Living things reproduce themselves to produce similar offspring with heritable long-term variations (not if they reproduce asexually when their offspring are identical to their parents and to each other.) (Short-lived variations from sexually reproducing organisms do not enable evolution by natural selection to occur either.) They also duplicate the mechanism that enables further copying to take place in their offspring.
    4) Replication in most living things requires mitotic cell division, which is genetically controlled by a gene called cell division cycle 2 (cdc2), which codes for a protein kinase enzyme that phosphorylates other proteins when combined with proteins called cyclins forming cyclin dependent kinases. At least three different cyclins oscillate in concentration during the cell cycle first switching on DNA synthesis (S phase) and later mitosis proper (M phase). These cyclins undergo a cycle of synthesis and degradation in each cell cycle.
    5) Living things undergo development that involves growth, changes in shape and in function. Development is now known to be controlled by homeotic genes such as the gene that produces legs instead of antennae in fruit flies; these genes code for proteins called transcription factors that bind to different DNA sequences in the genetic switch in the promoter of another gene. The switches contain signature sequences, which correspond to the position in the embryo from „left to right‟ where this gene that the promoter precedes is switched on or off. Some of these homeotic mutations found in all animals control development in the anterior region of the embryo and others control the posterior region.

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