Natural England's comments

Thanet Ground Water Quality | home

Our ref: TR35-4/ConPlan

Your ref: F/TH/08/0400

Development Control Section

Thanet District Council

By email only, no hard copy to follow

Proposal: Redevelopment of land for B1c, B2 and B8 (industrial and warehouse uses) mixed commercial use with ancillary parking and landscaping

Location: Land at Manston Business Park, Manston Road, Manston, Ramsgate

Thank you for your letter dated 10 April 2008 consulting Natural England on the above application. Our detailed comments in relation to this application are provided in Annex One appended to this letter and a brief summary of our comments is provided below.

It is unclear from the information provided where the surface water drainage resulting from this proposal is to be discharged. The nearby airport discharges into Pegwell Bay, which forms part of the Sandwich Bay to Hacklinge Marshes Site of Special Scientific Interest (SSSI), Thanet Coast and Sandwich Bay Special Protection Area (SPA) and Wetland of International Importance under the Ramsar Convention (Ramsar Site) and the Thanet Coast Special Area of Conservation (SAC). Should this application be proposing to discharge into Pegwell Bay, we would expect any drainage proposal for this site to incorporate measures that will prevent any contaminated run-off entering these sites. Consequently, Natural England recommends the inclusion of a condition on any consent to secure the production of a drainage strategy.

Natural England understands that a number of protected species surveys of the application site are currently underway, the results of which are to be submitted as an addendum to the environmental statement. We will defer making comments on the potential impacts of this proposal on protected species until the survey reports are submitted and recommend that the Council does not determine this application until they have been received and comments sought.

For avoidance of doubt, the comments within this letter refer solely to the impacts associated with the mixed commercial use development and not any potential associated increase in air, road or sea freight which may result when the end users of the units are identified. Natural England would not expect to see any increase in air movements (above those which are currently licensed for the aiport) which may have implications for the nearby Sandwich Bay to Hacklinge Marshes SSSI, Thanet Coast and Sandwich Bay SPA and Ramsar Site and the Thanet Coast SAC resulting from this development. The comments in this letter do not prejudice any comments we may make on future development associated with this site or the airport itself.

Please accept this letter as Natural England’s formal consultation response under Regulation 48 of the Habitat Regulations and Section 28 of the Wildlife and Countryside Act 1981 (as amended). However, should there be any modification or amendment to the application which may affect the SSSI, Natural England must be consulted further.

We would be grateful if the Council were to inform us as to how our comments have been considered when determining this application. If in the meantime you have any queries, please do not hesitate to contact me at the above address.

Adviser, Environmental Planning

Direct dial 01233 811213

Email sean.hanna@naturalengland.org.uk

Annex One: Natural England’s detailed comments in relation to application reference F/TH/08/0400

Natural England’s detailed comments in relation to this application are provided in the following sections.

Statutory nature conservation sites

The application site lies approximately three kilometres from the Sandwich Bay to Hacklinge Marshes Site of Special Scientific Interest (SSSI). This SSSI is part of the Thanet Coast and Sandwich Bay Special Protection Area (SPA) and Wetland of International Importance under the Ramsar Convention (Ramsar Site) and the Thanet Coast Special Area of Conservation (SAC). It is unclear from the information provided in support of this application where the surface water drainage from this site will be discharged. We understand that the drainage from the adjacent airport is discharged into Pegwell Bay. Should it be proposed that the drainage from this site will be discharged into the SSSI, Natural England expects measures to be incorporated into the drainage scheme to ensure no impacts on the designated sites result from this proposal. Therefore, should the Council be minded to grant permission for this application, we recommend that the following condition is appended to the consent:

• Prior to the commencement of the development, a detailed drainage strategy shall be submitted to, and approved in writing by the Local Planning Authority. All works shall then proceed in accordance with the agreed strategy with any amendments approved in writing. This strategy shall detail measures which will be implemented to ensure no contaminated run-off from the application site enters the Sandwich Bay to Hacklinge Marshes Site of Special Scientific Interest (SSSI), Thanet Coast and Sandwich Bay Special Protection Area (SPA) and Wetland of International Importance under the Ramsar Convention (Ramsar Site) and the Thanet Coast Special Area of Conservation (SAC)

The information supplied as part of the application indicates the presence or potential presence of the following protected species on or near the application site:

Protection legislation

The Wildlife and Countryside Act 1981 (as amended) The Conservation (Natural Habitats &c.) Regulations 1994 (as amended)

The Wildlife and Countryside Act 1981 (as amended)

The Protection of Badgers Act 1992

Paragraph 98 of ODPM Circular 06/20051 states that ‘The presence of a protected species is a material consideration when a planning authority is considering a development proposal that, if carried out, would be likely to result in harm to the species or its habitat.’ Paragraph 99 also states that ‘It is essential that the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before the planning permission is granted otherwise all relevant material considerations may not have been addressed in making the decision.’

Relevant legislation

1 Office of the Deputy Prime Minister Circular 06/2005 Government circular: Biodiversity and geological conservation- statutory obligations and their impact with the planning system.

Details of the legislation relevant to this application are set out in Annex Two appended to this letter.

While information on protected species surveys has been submitted as part of the application, the surveys were undertaken using insufficient survey methods and at an inappropriate time of the year. Therefore, Natural England considers the information submitted to be inadequate and advises that additional survey information should be obtained from the applicant. We understand that surveys for bats, breeding birds, reptiles, badgers, invertebrates and amphibians are currently underway. The results of these surveys will be submitted as an addendum to the environmental statement and we will therefore defer making comments on the potential impacts of this proposal on protected species pending the submission of this additional information.

It is recommended that, where the presence of a protected species is suspected, as a minimum, the information submitted with the planning application should include a detailed survey for these species and details of measures that have been incorporated into the scheme to avoid contravention of the law. These should consider any impacts that will either affect the species directly or indirectly, whether within the application site or in an area outside of the site which may be indirectly affected by the proposals. All surveys should be carried out at an appropriate time of year, following good practice guidelines and they should employ methods that are suited to the local circumstances. It is important that this work is undertaken by an experienced, reputable, qualified and, where appropriate, suitably licensed person.

If any protected species are found the survey reports should include details of:

• The species concerned;

• The population level at the site affected by the proposal;

• The direct and indirect effects of the development upon that species;

• Full details of any mitigation and/or compensation that might be required;

• Whether the impact is acceptable and/or licensable.

Biodiversity Enhancements

This application has many opportunities to incorporate features into the design which are beneficial to wildlife such as the incorporation of roosting opportunities for bats, the installation of bird nest boxes or the use of native species in the landscape planting, for example. As such we would recommend that should the Council be minded to grant permission for this application, measures to enhance the biodiversity of the site are secured from the applicant. This is in accordance with Paragraph 14 of Planning Policy Statement 9. Additionally, we would draw your attention to Section 40 of the Natural Environment and Rural Communities Act (2006) which states that ‘Every public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity’. Section 40(3) also states that ‘conserving biodiversity includes, in relation to a living organism or type of habitat, restoring or enhancing a population or habitat’.

Ongoing habitat management

Where habitats are created as mitigation or enhancement for a development, these habitats should be subject to long term management and monitoring to ensure that the populations of species affected are conserved, and wherever possible enhanced. Therefore Natural England recommends that a management plan and monitoring programme should be produced for all habitats and species affected by this application and recommends that should the Council be minded to grant permission for this application, such a strategy is secured from the applicant through an appropriately worded condition. In addition, funding should be secured for the implementation of the management plan in perpetuity and we recommend that a Section 106 agreement is the most appropriate means of securing this.

Annex Two: Legislation relevant to application reference number F/TH/8/0400

Under Section 1 of the Wildlife and Countryside Act 1981 (as amended), wild birds are protected from being killed, injured or captured, while their nests and eggs are protected from being damaged, destroyed or taken. In addition, certain species are included in Schedule 1 of the Act and are protected against disturbance while nesting. An up-to-date list of the species in Schedule 1 is available on the RSPB’s website2

Schedule 5 of the Wildlife and Countryside Act 1981 (as amended) lists species of animal (other than birds) which are provided special protection under the Act. This protection is contained in Section 9 of the Act (as amended), which makes it an offence to:

• intentionally kill, injure or take any wild animal included in Schedule 5 (see Section 9(1));

• possess or control any live or dead wild animal included in Schedule 5 (see Section 9(2));

• intentionally or recklessly damage, destroy or obstruct access to any structure or place which any wild animal included in Schedule 5 uses for shelter or protection;

• disturb any such animal while it is occupying a structure or place that it uses for shelter or protection (see Section 9(4)); or

• sell or advertise for sale any wild animal included in Schedule 5 or possess any such animal (or part of one) for the purpose of sale (see Section 9(5)).

Not all species in Schedule 5 are afforded the complete protection described above. Certain species are only protected against certain actions. An up-to-date list of the species included in Schedule 5 and the protection that they are afforded is available on the JNCC’s website3.

In addition to the protection afforded by the Wildlife and Countryside Act 1981 (as amended), certain species are also covered by European legislation. These species are listed in Schedule 24 of the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended), which is usually referred to as the Habitats Regulations. While the protection afforded these species is similar to that afforded by the Wildlife and Countryside Act 1981, the licensing requirements are much more stringent. Where a development affects a species protected under the Habitats Regulations, a licence issued by Natural England will be required to derogate from the provisions of the Regulations. The licence will only be granted where certain tests, as set out under Regulation 44, have been satisfied.

The Council may wish to note the implications of the case of Regina v Cornwall County Council ex parte Jill Hardy with respect to protected species as a planning consideration. .

The Protection of Badgers Act 1992 was introduced in recognition of the additional threats that badgers face from illegal badger digging and baiting. Under the Act, it is an offence inter alia:

• to kill, injure or take a badger, or to attempt to do so;

• to cruelly ill-treat a badger; or

• to interfere with a badger sett by (a) damaging a sett or any part of one; (b) destroying a sett; (c) obstructing access to or any entrance of a sett; (d) causing a dog to enter a sett; or (e) disturbing a badger when it is occupying a sett.

The purpose of this legislation is to ensure that badgers are humanely treated. There is no provision in the legislation for culling badgers for the purpose of development and no provision for any action that will cruelly ill-treat badgers. The offence of cruel ill-treatment could, in certain instances, extend to the destruction of, or removal of badger’s access to, areas of land that badgers use for foraging.

2 http://www.rspb.org.uk/policy/wildbirdslaw/birdsandlaw/schedules.asp

3 http://www.jncc.gov.uk/page-1815

4 http://www.opsi.gov.uk/si/si1994/Uksi_19942716_en_8.htm#sdiv2

Where it can be demonstrated that interference with a badger sett is both unavoidable and will not adversely affect the population of badgers, it may be possible to obtain a licence from Natural England. However, it should be noted that any such interference should only be considered as a last resort and that Natural England places restrictions on both the timing and methodology of any works affecting a badger sett.


	Thanet Ground Water Quality \| home Return to post and other links \| Thanet Ground Water Quality \| Thanet Ground Water Quality table \| Manston map \| Benzine \| From the China Gateway environmental report \| Xblocks \| Phases \| Source Protection Zones \| EA \| Environment Agency's Response \| My response to the Environment Agency \| My initial objection to the development \| Executive Director of East Kent Opportunities LLP \| Title 15 \| Title 16 \| CPRE Kent \| CPREKent2 \| Title 19 \| Title 20 \| Title 21 \| Environment Agency being difficult \| Information Request \| Letter to Doug 5.7.8 \| Natural England's comments \| complaint ref 1342 \| Title 33 \| power of the sea \| BRIEFING DOCUMENT FOR THANET DISTRICT COUNCILLORS \| More from the EA \| Southern Water discharge consent letter. \| INFRATIL LETTER \| Recommendation to the planning committee to approve \| Explosive \| Developers clarification of points raised at the planning meeting \| Doug Emails \| CUMMINS POWER GENERATION LTD. \| Title 47 \| voting \| Sericol Investigations \| Title 50 \| the history at Thor \| EA letter to KIA 19.12.08 \| EA letter to KIA 18.12.08 Natural England's comments Date: 12 May 2008 Our ref: TR35-4/ConPlan Your ref: F/TH/08/0400 Mr Doug Brown Development Control Section Thanet District Council PO Box 9 Cecil Street Margate Kent CT9 1XZ By email only, no hard copy to follow Dear Mr Brown Proposal: Redevelopment of land for B1c, B2 and B8 (industrial and warehouse uses) mixed commercial use with ancillary parking and landscaping Location: Land at Manston Business Park, Manston Road, Manston, Ramsgate Thank you for your letter dated 10 April 2008 consulting Natural England on the above application. Our detailed comments in relation to this application are provided in Annex One appended to this letter and a brief summary of our comments is provided below. It is unclear from the information provided where the surface water drainage resulting from this proposal is to be discharged. The nearby airport discharges into Pegwell Bay, which forms part of the Sandwich Bay to Hacklinge Marshes Site of Special Scientific Interest (SSSI), Thanet Coast and Sandwich Bay Special Protection Area (SPA) and Wetland of International Importance under the Ramsar Convention (Ramsar Site) and the Thanet Coast Special Area of Conservation (SAC). Should this application be proposing to discharge into Pegwell Bay, we would expect any drainage proposal for this site to incorporate measures that will prevent any contaminated run-off entering these sites. Consequently, Natural England recommends the inclusion of a condition on any consent to secure the production of a drainage strategy. Natural England understands that a number of protected species surveys of the application site are currently underway, the results of which are to be submitted as an addendum to the environmental statement. We will defer making comments on the potential impacts of this proposal on protected species until the survey reports are submitted and recommend that the Council does not determine this application until they have been received and comments sought. For avoidance of doubt, the comments within this letter refer solely to the impacts associated with the mixed commercial use development and not any potential associated increase in air, road or sea freight which may result when the end users of the units are identified. Natural England would not expect to see any increase in air movements (above those which are currently licensed for the aiport) which may have implications for the nearby Sandwich Bay to Hacklinge Marshes SSSI, Thanet Coast and Sandwich Bay SPA and Ramsar Site and the Thanet Coast SAC resulting from this development. The comments in this letter do not prejudice any comments we may make on future development associated with this site or the airport itself. Please accept this letter as Natural England’s formal consultation response under Regulation 48 of the Habitat Regulations and Section 28 of the Wildlife and Countryside Act 1981 (as amended). However, should there be any modification or amendment to the application which may affect the SSSI, Natural England must be consulted further. We would be grateful if the Council were to inform us as to how our comments have been considered when determining this application. If in the meantime you have any queries, please do not hesitate to contact me at the above address. Yours sincerely Sean Hanna Adviser, Environmental Planning Direct dial 01233 811213 Email sean.hanna@naturalengland.org.uk Annex One: Natural England’s detailed comments in relation to application reference F/TH/08/0400 Natural England’s detailed comments in relation to this application are provided in the following sections. Statutory nature conservation sites The application site lies approximately three kilometres from the Sandwich Bay to Hacklinge Marshes Site of Special Scientific Interest (SSSI). This SSSI is part of the Thanet Coast and Sandwich Bay Special Protection Area (SPA) and Wetland of International Importance under the Ramsar Convention (Ramsar Site) and the Thanet Coast Special Area of Conservation (SAC). It is unclear from the information provided in support of this application where the surface water drainage from this site will be discharged. We understand that the drainage from the adjacent airport is discharged into Pegwell Bay. Should it be proposed that the drainage from this site will be discharged into the SSSI, Natural England expects measures to be incorporated into the drainage scheme to ensure no impacts on the designated sites result from this proposal. Therefore, should the Council be minded to grant permission for this application, we recommend that the following condition is appended to the consent: • Prior to the commencement of the development, a detailed drainage strategy shall be submitted to, and approved in writing by the Local Planning Authority. All works shall then proceed in accordance with the agreed strategy with any amendments approved in writing. This strategy shall detail measures which will be implemented to ensure no contaminated run-off from the application site enters the Sandwich Bay to Hacklinge Marshes Site of Special Scientific Interest (SSSI), Thanet Coast and Sandwich Bay Special Protection Area (SPA) and Wetland of International Importance under the Ramsar Convention (Ramsar Site) and the Thanet Coast Special Area of Conservation (SAC) Protected species The information supplied as part of the application indicates the presence or potential presence of the following protected species on or near the application site: Species Protection legislation Bats The Wildlife and Countryside Act 1981 (as amended) The Conservation (Natural Habitats &c.) Regulations 1994 (as amended) Great crested newts The Wildlife and Countryside Act 1981 (as amended) The Conservation (Natural Habitats &c.) Regulations 1994 (as amended) Birds The Wildlife and Countryside Act 1981 (as amended) Widespread reptiles The Wildlife and Countryside Act 1981 (as amended) Badgers The Protection of Badgers Act 1992 Paragraph 98 of ODPM Circular 06/20051 states that ‘The presence of a protected species is a material consideration when a planning authority is considering a development proposal that, if carried out, would be likely to result in harm to the species or its habitat.’ Paragraph 99 also states that ‘It is essential that the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before the planning permission is granted otherwise all relevant material considerations may not have been addressed in making the decision.’ Relevant legislation 1 Office of the Deputy Prime Minister Circular 06/2005 Government circular: Biodiversity and geological conservation- statutory obligations and their impact with the planning system. Details of the legislation relevant to this application are set out in Annex Two appended to this letter. While information on protected species surveys has been submitted as part of the application, the surveys were undertaken using insufficient survey methods and at an inappropriate time of the year. Therefore, Natural England considers the information submitted to be inadequate and advises that additional survey information should be obtained from the applicant. We understand that surveys for bats, breeding birds, reptiles, badgers, invertebrates and amphibians are currently underway. The results of these surveys will be submitted as an addendum to the environmental statement and we will therefore defer making comments on the potential impacts of this proposal on protected species pending the submission of this additional information. It is recommended that, where the presence of a protected species is suspected, as a minimum, the information submitted with the planning application should include a detailed survey for these species and details of measures that have been incorporated into the scheme to avoid contravention of the law. These should consider any impacts that will either affect the species directly or indirectly, whether within the application site or in an area outside of the site which may be indirectly affected by the proposals. All surveys should be carried out at an appropriate time of year, following good practice guidelines and they should employ methods that are suited to the local circumstances. It is important that this work is undertaken by an experienced, reputable, qualified and, where appropriate, suitably licensed person. If any protected species are found the survey reports should include details of: • The species concerned; • The population level at the site affected by the proposal; • The direct and indirect effects of the development upon that species; • Full details of any mitigation and/or compensation that might be required; • Whether the impact is acceptable and/or licensable. Biodiversity Enhancements This application has many opportunities to incorporate features into the design which are beneficial to wildlife such as the incorporation of roosting opportunities for bats, the installation of bird nest boxes or the use of native species in the landscape planting, for example. As such we would recommend that should the Council be minded to grant permission for this application, measures to enhance the biodiversity of the site are secured from the applicant. This is in accordance with Paragraph 14 of Planning Policy Statement 9. Additionally, we would draw your attention to Section 40 of the Natural Environment and Rural Communities Act (2006) which states that ‘Every public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity’. Section 40(3) also states that ‘conserving biodiversity includes, in relation to a living organism or type of habitat, restoring or enhancing a population or habitat’. Ongoing habitat management Where habitats are created as mitigation or enhancement for a development, these habitats should be subject to long term management and monitoring to ensure that the populations of species affected are conserved, and wherever possible enhanced. Therefore Natural England recommends that a management plan and monitoring programme should be produced for all habitats and species affected by this application and recommends that should the Council be minded to grant permission for this application, such a strategy is secured from the applicant through an appropriately worded condition. In addition, funding should be secured for the implementation of the management plan in perpetuity and we recommend that a Section 106 agreement is the most appropriate means of securing this. Annex Two: Legislation relevant to application reference number F/TH/8/0400 Under Section 1 of the Wildlife and Countryside Act 1981 (as amended), wild birds are protected from being killed, injured or captured, while their nests and eggs are protected from being damaged, destroyed or taken. In addition, certain species are included in Schedule 1 of the Act and are protected against disturbance while nesting. An up-to-date list of the species in Schedule 1 is available on the RSPB’s website2 Schedule 5 of the Wildlife and Countryside Act 1981 (as amended) lists species of animal (other than birds) which are provided special protection under the Act. This protection is contained in Section 9 of the Act (as amended), which makes it an offence to: • intentionally kill, injure or take any wild animal included in Schedule 5 (see Section 9(1)); • possess or control any live or dead wild animal included in Schedule 5 (see Section 9(2)); • intentionally or recklessly damage, destroy or obstruct access to any structure or place which any wild animal included in Schedule 5 uses for shelter or protection; • disturb any such animal while it is occupying a structure or place that it uses for shelter or protection (see Section 9(4)); or • sell or advertise for sale any wild animal included in Schedule 5 or possess any such animal (or part of one) for the purpose of sale (see Section 9(5)). Not all species in Schedule 5 are afforded the complete protection described above. Certain species are only protected against certain actions. An up-to-date list of the species included in Schedule 5 and the protection that they are afforded is available on the JNCC’s website3. In addition to the protection afforded by the Wildlife and Countryside Act 1981 (as amended), certain species are also covered by European legislation. These species are listed in Schedule 24 of the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended), which is usually referred to as the Habitats Regulations. While the protection afforded these species is similar to that afforded by the Wildlife and Countryside Act 1981, the licensing requirements are much more stringent. Where a development affects a species protected under the Habitats Regulations, a licence issued by Natural England will be required to derogate from the provisions of the Regulations. The licence will only be granted where certain tests, as set out under Regulation 44, have been satisfied. The Council may wish to note the implications of the case of Regina v Cornwall County Council ex parte Jill Hardy with respect to protected species as a planning consideration. . The Protection of Badgers Act 1992 was introduced in recognition of the additional threats that badgers face from illegal badger digging and baiting. Under the Act, it is an offence inter alia: • to kill, injure or take a badger, or to attempt to do so; • to cruelly ill-treat a badger; or • to interfere with a badger sett by (a) damaging a sett or any part of one; (b) destroying a sett; (c) obstructing access to or any entrance of a sett; (d) causing a dog to enter a sett; or (e) disturbing a badger when it is occupying a sett. The purpose of this legislation is to ensure that badgers are humanely treated. There is no provision in the legislation for culling badgers for the purpose of development and no provision for any action that will cruelly ill-treat badgers. The offence of cruel ill-treatment could, in certain instances, extend to the destruction of, or removal of badger’s access to, areas of land that badgers use for foraging. 2 http://www.rspb.org.uk/policy/wildbirdslaw/birdsandlaw/schedules.asp 3 http://www.jncc.gov.uk/page-1815 4 http://www.opsi.gov.uk/si/si1994/Uksi_19942716_en_8.htm#sdiv2 Where it can be demonstrated that interference with a badger sett is both unavoidable and will not adversely affect the population of badgers, it may be possible to obtain a licence from Natural England. However, it should be noted that any such interference should only be considered as a last resort and that Natural England places restrictions on both the timing and methodology of any works affecting a badger sett.