Dear Harrogate Borough Council,

Harrogate Borough Council (HBC) has yet to insist that ecological reports stop being misleading and a threat to wildlife. That has resulted in planning permission to build 175 houses, in the very centre of what had been the habitat of the largest known population of great crested newts in the country, over which the first and successful prosecution took place in 1996. Those legally protected animals will now face hundreds of permanent death traps, in the form of rainwater drains. HBC has referred to "amphibian friendly drainage". What technological evidence does HBC have, which proves that no drainage system need pose any death threats to amphibians? If such evidence exists, can it be displayed on HBC's website, for the benefit of wildlife charities and the construction industry? Is it simply a matter of one system not being as lethal as another but that all systems will kill?

Yours faithfully,

John Barker.
Hon. Secretary,
Harrogate Trust for Wildlife Protection.

Foi, Harrogate Borough Council

This is an automated response to confirm that your email has been
received, we will be in further contact with you shortly in connection
with your request.

 

Harrogate Borough Council

Freedom of Information

 

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Foi, Harrogate Borough Council

Dear Mr Barker

Thank you for your request for information which we received on
15/04/2019. We are dealing with your request under the Environmental
Information Regulations 2004 as we consider the subject matter to relate
to information that has an effect on the elements of the environment, that
being planning matters in relation to development and their effect on the
environment. This means that –

o if we need more information about what you want, we will contact you
again as soon as we can; the twenty working days in which to give you
the information will start once we know exactly what you want
o if we do not hold the information, we will, if we can, transfer your
request to an authority who does hold it, and tell you what we have
done (please contact us immediately if you do not want us to do this);
otherwise, we will let you know that we do not hold the information
o if we hold the information and there is no reason to withhold it, we
will send it to you as soon as we can.  If there is likely to be a
delay for any reason, we will let you know
o if we believe that there is a good reason why the information should
not be disclosed, we will let you know as much as we can about how we
reached our decision

As required by the legislation, we aim to respond in full within 20
working days from the date we received it. If for any reason we are unable
to meet this deadline, we will keep you fully informed of the reasons for
this.

Regards

 

Rich Kemp

(Debt & Information Law)

Legal & Governance

Harrogate Borough Council

PO Box 787

Harrogate

HG1 9RW

 

tel: 01423 500600 (ext - 58602)

email:  [1][email address]

[2]www.harrogate.gov.uk

 

 

show quoted sections

Elizabeth Sandell, Harrogate Borough Council

Good morning,

 

We have received your request for information below. In order to process
this request, we require further clarification. Are you referring to
specific application sites? If so, can you please provide us with the
address or list of references if you have these.

 

Kind regards,

 

Liz Sandell

Systems, Information & Support Manager

Place-shaping & Economic Growth

Harrogate Borough Council

PO Box 787

Harrogate

HG1 9RW

 

email:  [1][email address]

Tel: 01423 500 600 (Ext 58282)

[2]www.harrogate.gov.uk

 

show quoted sections

Dear Liz,

Thank you for your request for further details.

In view of your request, we must now ask that Harrogate Borough Council (HBC) make clear, whether "amphibian friendly drainage" is technically possible in some circumstances but not others and what that means in terms of, (1) what had in Knaresborough in 1989, been the habitat of largest known population of great crested newts in the UK and planning permission granted on the 08 January this year to build 175 houses in the centre of that habitat and (2) planning application number 19/00028/OUT which physically connects with one of our nature reserves.

Our Freedom of Information request is because correspondence with HBC is not producing answers. It has been sent via the charity What Do They Know, because its website will display lessons of national importance which must be learnt. Those lessons come from harm to legally protected wildlife by, (a) misleading ecological reports and (b) ecologically damaging and destructive planning permissions which would not be issued, if there really was an intention to leave the world in a better state than we found it.

The state of nature cannot be returned to how it was when many of us were born. What is so shocking, is that needless harm continues through relentless damaging and destructive planning decisions.

Harrogate Borough Council is fully aware of the issues. However, to help with the context of your request, background details are shown below.

Yours sincerely,

John Barker.
Hon. Secretary.
Harrogate Trust for Wildlife Protection.

________________________________________

BACKGROUND DETAILS

HBC's records show, that the Planning Inspectorate arranged two public inquiries in early 2017, because of "complex" and "technical" issues about great crested newts, in connection with what had been the largest known population in the UK..

In 1996, we were left to force a successful prosecution over that population, because English Nature (EN) was content to ignore the fact that, (a) those legally protected animals were constantly being killed in a quarrying company's water pumping system and (b) the habitat was being very seriously damaged. Also, EN's advice to that company was in stark conflict with sound research from its own Chief Scientist's Directorate. Consequently, any reasonable person could see, that EN would force that vast population into radical decline. That is exactly what happened and recent decisions of HBC and Natural England (NE) will inevitably ensure that decline continues. That is contrary to extant law and national planning policy, e.g. that large populations "should" be restored.

In 2016 in the run-up to the public inquiries, we put the ecological issues to HBC but did not receive a response, e.g. about lessons from research commissioned by the DEFRA from the Durrell Institute of Conservation and Ecology in the University of Kent.

Curiously, neither public inquiry addressed those issues. That is something we have yet to raise with the CEO of the Planning Inspectorate, not least because that omission appears to be a breach of the legally binding duties imposed on planning inspectors, by the Civil Service Code and associated Statutory Guidance. See local newspaper report via
https://www.harrogateadvertiser.co.uk/ne...

On the 05 October 2018, we raised concerns with HBC about a planning application to build 175 houses in the centre of the above habitat, which had been the subject of the successful 1996 prosecution. There was a deafening silence from HBC for three months. It provided minimal information at the 11th hour. That made it too late to alert local councillors to the nationally significant issues, before a planning committee meeting on the 08 January this year.

The previous day, we issued in vain, an urgent call for the decision on the planning application to be postponed, until ecological risks had been adequately considered. That we said, would be an expectation of the courts. We also called for HBC to insist that reports from ecologists stop being misleading. It had become very obvious that they have not been revealing the whole truth, about that and other sites. The unintended consequence of ecologists having to earn a living as consultants to developers, is that the priority is to "help developers develop". How things work at present, put considerable power in the hands of developers with deep pockets. They are the pipers calling the ecological tune and that is not being challenged by statutory organisations, such as HBC and NE.. Wildlife conservation ends up as mere window dressing, with the full extent of threats not being analysed and explained.

HBC's records contain this background information.

We submitted our Freedom of Information request, because HBC's ecologist has not before or since the 2017 public inquiries, dealt with the "complex" and "technical" issues mentioned by the Planning Inspectorate.

We emailed HBC's ecologist on the 25 March 2019, about the recommendation to have "amphibian friendly drainage", in connection with outline planning application number 19/00028/OUT. That was imposed in a planning condition on the 20 March 2019.

The text of that email is as follows.

"The implication is that all aspects of any drainage scheme can be made [amphibian] friendly, i.e. there is absolutely nothing in any foul and rainwater drainage schemes, which need pose any risk to amphibians.

If you read our objection [to the planning application], you will know that ecologists have not mentioned, that great crested newts (young and adults) were being drowned in the domestic rainwater drains at Delvers Lodge and as a consequence, those were sealed off.

It might be assumed, that amphibians can climb out of drains at the points were they overflow into underground pipes. If that were true, they would not pile up in roadside gulley pots.

Our rainwater drains [adjacent to the planning application site] discharge into a tank, so if any amphibians had been crawling along underground pipes or got flushed through, they would have ended up in that tank. It has a ramp for amphibians to climb in and out, i.e. it truly is amphibian friendly.

By contrast, soakaways are underground dead ends, so are permanent death traps for amphibians. The same must be said of underground rainwater storage tanks, unless escape routes are built into those. If pumps are used, those may or may not kill amphibians but if they are permanently trapped, they will die anyway.

In view of the above, please provide details of technical possibilities, which ensure all aspects of drainage schemes for both foul and rainwater, can be amphibian friendly".

________________________________________

Harrogate Borough Council has responded to this FoI request but in answer to a different subject.

Please provide the answer to this specific FoI request, in this part of the What Do They Know website. Then, all those interested in the UK will be able to learn from the information, ranging from developers to full time volunteers working tirelessly to protect and promote threatened wildlife, from harmful planning permissions.

JB

Elizabeth Sandell, Harrogate Borough Council

Good afternoon,

I have re-sent the response through to this address. Hopefully it is now matching with the request.

Kind regards,

Liz

Liz Sandell
Systems, Information & Support Manager
Place-shaping & Economic Growth
Harrogate Borough Council
PO Box 787
Harrogate
HG1 9RW

email:  [email address]
Tel: 01423 500 600 (Ext 58282)
www.harrogate.gov.uk

show quoted sections

David Clothier, Harrogate Borough Council

Dear Mr Barker

 

FREEDOM OF INFORMATION REQUEST

 

In your email which we received on 15th April, you asked for the following
information:

 

Harrogate Borough Council (HBC) has yet to insist that ecological reports
stop being misleading and a threat to wildlife. That has resulted in
planning permission to build 175 houses, in the very centre of what had
been the habitat of the largest known population of great crested newts in
the country, over which the first and successful prosecution took place in
1996. Those legally protected animals will now face hundreds of permanent
death traps, in the form of rainwater drains. HBC has referred to
"amphibian friendly drainage".

1. What technological evidence does HBC have, which proves that no
drainage system need pose any death threats to amphibians?

2. If such evidence exists, can it be displayed on HBC's website, for the
benefit of wildlife charities and the construction industry?

3.Is it simply a matter of one system not being as lethal as another but
that all systems will kill?

 

Further clarification that was provided in relation to whether there were
specific applications that you were wanting a response for:

 

In view of your request, we must now ask that Harrogate Borough Council
(HBC) make clear, whether "amphibian friendly drainage" is technically
possible in some circumstances but not others and what that means in terms
of, (1) what had in Knaresborough in 1989, been the habitat of largest
known population of great crested newts in the UK and planning permission
granted on the 08 January this year to build 175 houses in the centre of
that habitat and (2) planning application number 19/00028/OUT which
physically connects with one of our nature reserves.

 

In response:

 

Your request has been considered under the Environmental Information
Regulations 2004 as we consider the subject matter to relate to
information that has an effect on the elements of the environment. 

 

Application 18/03499/OUTMAJ - Bar Lane, Knaresborough

 

In response to the specific questions asked:

 

1. "What technological evidence does HBC have, which proves that no
drainage system need pose any death threats to amphibians?" Is exempted
under regulation 12(4)(a) – information not held.

 

2. "If such evidence exists, can it be displayed on HBC's website, for the
benefit of wildlife charities and the construction industry?" Is exempted
under regulation 12(4)(a) – information not held.

 

3. "Is it simply a matter of one system not being as lethal as another but
that all systems will kill?" Is exempted under regulation 12(4)(a) –
information not held.

 

To clarify the current status of the above application, on 08/01/19
members were minded to grant approval subjection to a Section 106 Legal
agreement, which is still being drafted. Therefore the decision on this
application has not yet been issued and permission has not yet been
granted to date.

 

The link to the agenda is here:
[1]https://democracy.harrogate.gov.uk/ieLis....

 

Following any decision being issued on this application, as this is an
outline application the details of "amphibian friendly drainage" will be
provided within the detailed site highway design. This was proposed by the
Ecology branch of CSA Environmental consultants, which is attached.

 

The conditions in the report also seek further details within will
require:

 

Prior to the commencement of development a Construction Environmental
Management Plan (Biodiversity) must be submitted for the written agreement
of the local planning authority. For the avoidance of doubt this shall
include measures in relation to pre-commencement bird check and bat
activity, bat roost potential check of trees and pollution pathway
avoidance measures in relation to the Hay-a-Park SSSI.

 

Prior to the commencement of development, an Ecological Mitigation and
Enhancement Scheme including details of native tree, scrub and wildflower
planting, the creation of ponds and terrestrial newt habitat, provision of
bat and swift bricks and bio-diversity measures shall be submitted to and
agreed in writing by the Local Planning Authority. The approved scheme
shall be implemented in full.

 

In addition to the above information, we would like to provide the
following in terms of response from the Council’s Ecologist:

 

HBC is requiring the use of what has been termed "amphibian-friendly
drainage" because it seems (based on an internet search of generally
available information) that such techniques can substantially reduce
amphibian mortality that may occur from falling into standard gully pots
without any mitigating features (e.g. being set back from the kerb, use of
soft kerbs etc.).

 

Great Crested Newts are European Protected Species and legally protected
under the Habitats Directive through a licencing system which is operated
in this country by Natural England. Natural England also issue Standing
Advice to local planning authorities, which constitutes a material
consideration for planning.

 

Natural England's Standing Advice on "Mitigation and compensation methods"
is available
"[2]https://www.gov.uk/guidance/great-creste...
it is addressed at ecological consultants and advises:

"Include with your planning or licence application an assessment of
impacts caused by hard surfaces such as:

•roads

•car parks

•buildings

Avoid habitat fragmentation, for example by:

•creating corridors or ‘stepping stones’ of habitat to join up populations

•altering road routes

•installing ‘green bridges’ or underpasses

•creating new breeding and terrestrial habitats on one side of the road

Design new habitats to avoid trapping newts, for example by:

•using sloping kerbs either side of gully pots

•creating draining schemes without sumps

•not using kerbs

Position mitigation ponds away from busy roads - use permanent amphibian
fencing if that’s not possible.

Only use tunnels or culverts to help the newts reach habitat across a road
if:

•there’s no alternative way to maintain dispersal routes

•there’s a fencing system to channel the newts in - this will need regular
maintenance

•you monitor the tunnel’s effectiveness"

 

A number of these measures are incorporated in the mitigation proposals
for the Bar Lane scheme (CSA Environmental consultants Ecology Report).

 

Where developments may have some impact on amphibians, the national
amphibian conservation charity Froglife supports the use of mitigation
measures "By improving schemes through the correct application of tools
such as tunnels, ponds, wildlife fencing and wildlife friendly kerbs as
outlined in the department of transports Design manual for roads and
bridges (applicable to all counties in Mainland UK), as well as
anticipating negative impacts of amphibians being drawn to new sustainable
drainage systems, the impact of new schemes and renewal projects can be
greatly reduced.

([3]https://www.froglife.org/what-we-do/toad...

 

The term "amphibian friendly" comes from an internet search for mitigation
techniques such as
[4]https://www.arguk.org/info-advice/survey...

 

It is up to the applicant, using the professional advice of their
ecological consultant, to provide the details of how mitigation is to be
achieved for their proposed schemes for agreement by the local planning
authority when discharging conditions. In my view, it would be preferable
to utilise suds schemes which avoid gully pots in the first place but
obtaining developer co-operation and satisfactory adoption and maintenance
agreements is often very difficult. Overcoming the obstacles to the more
widespread use of such techniques is also something I would very much
welcome.

 

"Amphibian harm-mitigation drainage techniques” is only one aspect of
ecological mitigation. Natural England increasingly interprets European
legislation in terms of impacts on the local ‘favourable conservation
status’ of a species, with less emphasis on individual animal welfare. In
the case of Bar Lane, these included the maintenance of existing and the
provision of new GCN breeding ponds on site. Ultimately, where it appears
that harm might otherwise be caused to European Protected Species, it is
Natural England’s responsibility to assess whether or not to grant a
European Protected Species Licence and the courts have recognised that NE
is in a stronger position to assess their prospects of achieving
‘favourable conservation status’ in detail through EPS licensing than
local planning authorities are able to through the planning system. As NE
wrote to HBC (14 December 2018) in response to our request for specific
advice in relation to the purported exceptional GCN population which had
been found on the site prior to its post-mineral extraction restoration: 
“If planning permission is granted, Natural England will consider the
appropriateness of the mitigation when the Applicant applies for a
European Protected Species Licence from our Wildlife Licencing Team”.

 

West Winds, Scotton - 19/00028/OUT

 

The Harrogate Borough Council Ecologist, was very involved in this site
and recommended the two conditions (below) which request a construction
environmental management plan and an ecological mitigation and enhancement
scheme which seek to protect Great Crested Newts in addition to other
species. 

We have asked for details of amphibian friendly drainage arrangements to
be provided and we will assess the details when they are submitted to see
whether they meet the requirements or not. 

 

7 A) Construction Environmental Management Plan (Biodiversity) must be
submitted for the written agreement of the local planning authority prior
to the submission of any reserved matters application. Mitigation measures
should be based on the recommendations of section 7 of the Ecological
Appraisal (Envirotech, revised November 2018) in relation to the
protection of bats, great crested newts, nesting birds and native
vegetation during construction. A copy of the CEMP (biodiversity) must be
available on site for access by site operatives at all times during
construction.

 

8) An Ecological Mitigation and Enhancement Scheme including details of
native tree and shrub planting, amphibian friendly drainage arrangements,
a wildlife-sensitive lighting scheme and provision of bat and swift bricks
must be submitted and agreed by the Local Planning Authority prior to the
submission of any reserved matters application (this scheme may be
incorporated within the site landscape management plan).

 

If you are not satisfied with the way your request has been handled,
please contact - 

 

Freedom of Information Officer, PO Box 787, Harrogate, HG1 9RW

 

or email [5][Harrogate Borough Council request email]

 

The Council has an internal review procedure.  If your complaint is about
the decision which has been made you will usually be entitled to have your
case reviewed by a senior officer from a department which has not been
involved in the decision previously. Your request for internal review must
be received by the Council within 40 working days from the date that the
response to your initial request is issued.

 

If, after their decision, you are still not happy, you may appeal to- 

 

The Information Commissioner

Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF

Tel: 0303 123 1113

website: [6]https://ico.org.uk/

 

For the avoidance of doubt the provision of council (and other) officer
names and contact details under FOI or EIR does not give consent to
receive direct marketing via any media and expressly does not constitute a
‘soft opt-in’ under PECR.

 

Kind regards,

 

Liz Sandell

Systems, Information & Support Manager

Place-shaping & Economic Growth

Harrogate Borough Council

PO Box 787

Harrogate

HG1 9RW

 

email:  [7][email address]

Tel: 01423 500 600 (Ext 58282)

[8]www.harrogate.gov.uk

 

 

David Clothier

Service Improvement & Development Manager

Place shaping & Economic Growth

Harrogate Borough Council

Civic Centre

St Lukes Avenue

HARROGATE

HG1 2AE

Email – [9][email address]

Web – [10]www.harrogate.gov.uk

Tel – 01423 500600 ext.58641

 

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show quoted sections

Elizabeth Sandell, Harrogate Borough Council

Dear Mr Barker

 

FREEDOM OF INFORMATION REQUEST

 

In your email which we received on 15th April, you asked for the following
information:

 

Harrogate Borough Council (HBC) has yet to insist that ecological reports
stop being misleading and a threat to wildlife. That has resulted in
planning permission to build 175 houses, in the very centre of what had
been the habitat of the largest known population of great crested newts in
the country, over which the first and successful prosecution took place in
1996. Those legally protected animals will now face hundreds of permanent
death traps, in the form of rainwater drains. HBC has referred to
"amphibian friendly drainage".

1. What technological evidence does HBC have, which proves that no
drainage system need pose any death threats to amphibians?

2. If such evidence exists, can it be displayed on HBC's website, for the
benefit of wildlife charities and the construction industry?

3.Is it simply a matter of one system not being as lethal as another but
that all systems will kill?

 

Further clarification that was provided in relation to whether there were
specific applications that you were wanting a response for:

 

In view of your request, we must now ask that Harrogate Borough Council
(HBC) make clear, whether "amphibian friendly drainage" is technically
possible in some circumstances but not others and what that means in terms
of, (1) what had in Knaresborough in 1989, been the habitat of largest
known population of great crested newts in the UK and planning permission
granted on the 08 January this year to build 175 houses in the centre of
that habitat and (2) planning application number 19/00028/OUT which
physically connects with one of our nature reserves.

 

In response:

 

Your request has been considered under the Environmental Information
Regulations 2004 as we consider the subject matter to relate to
information that has an effect on the elements of the environment. 

 

Application 18/03499/OUTMAJ - Bar Lane, Knaresborough

 

In response to the specific questions asked:

 

1. "What technological evidence does HBC have, which proves that no
drainage system need pose any death threats to amphibians?" Is exempted
under regulation 12(4)(a) – information not held.

 

2. "If such evidence exists, can it be displayed on HBC's website, for the
benefit of wildlife charities and the construction industry?" Is exempted
under regulation 12(4)(a) – information not held.

 

3. "Is it simply a matter of one system not being as lethal as another but
that all systems will kill?" Is exempted under regulation 12(4)(a) –
information not held.

 

To clarify the current status of the above application, on 08/01/19
members were minded to grant approval subjection to a Section 106 Legal
agreement, which is still being drafted. Therefore the decision on this
application has not yet been issued and permission has not yet been
granted to date.

 

The link to the agenda is here:
[1]https://democracy.harrogate.gov.uk/ieLis....

 

Following any decision being issued on this application, as this is an
outline application the details of "amphibian friendly drainage" will be
provided within the detailed site highway design. This was proposed by the
Ecology branch of CSA Environmental consultants, which is attached.

 

The conditions in the report also seek further details within will
require:

 

Prior to the commencement of development a Construction Environmental
Management Plan (Biodiversity) must be submitted for the written agreement
of the local planning authority. For the avoidance of doubt this shall
include measures in relation to pre-commencement bird check and bat
activity, bat roost potential check of trees and pollution pathway
avoidance measures in relation to the Hay-a-Park SSSI.

 

Prior to the commencement of development, an Ecological Mitigation and
Enhancement Scheme including details of native tree, scrub and wildflower
planting, the creation of ponds and terrestrial newt habitat, provision of
bat and swift bricks and bio-diversity measures shall be submitted to and
agreed in writing by the Local Planning Authority. The approved scheme
shall be implemented in full.

 

In addition to the above information, we would like to provide the
following in terms of response from the Council’s Ecologist:

 

HBC is requiring the use of what has been termed "amphibian-friendly
drainage" because it seems (based on an internet search of generally
available information) that such techniques can substantially reduce
amphibian mortality that may occur from falling into standard gully pots
without any mitigating features (e.g. being set back from the kerb, use of
soft kerbs etc.).

 

Great Crested Newts are European Protected Species and legally protected
under the Habitats Directive through a licencing system which is operated
in this country by Natural England. Natural England also issue Standing
Advice to local planning authorities, which constitutes a material
consideration for planning.

 

Natural England's Standing Advice on "Mitigation and compensation methods"
is available
"[2]https://www.gov.uk/guidance/great-creste...
it is addressed at ecological consultants and advises:

"Include with your planning or licence application an assessment of
impacts caused by hard surfaces such as:

•roads

•car parks

•buildings

Avoid habitat fragmentation, for example by:

•creating corridors or ‘stepping stones’ of habitat to join up populations

•altering road routes

•installing ‘green bridges’ or underpasses

•creating new breeding and terrestrial habitats on one side of the road

Design new habitats to avoid trapping newts, for example by:

•using sloping kerbs either side of gully pots

•creating draining schemes without sumps

•not using kerbs

Position mitigation ponds away from busy roads - use permanent amphibian
fencing if that’s not possible.

Only use tunnels or culverts to help the newts reach habitat across a road
if:

•there’s no alternative way to maintain dispersal routes

•there’s a fencing system to channel the newts in - this will need regular
maintenance

•you monitor the tunnel’s effectiveness"

 

A number of these measures are incorporated in the mitigation proposals
for the Bar Lane scheme (CSA Environmental consultants Ecology Report).

 

Where developments may have some impact on amphibians, the national
amphibian conservation charity Froglife supports the use of mitigation
measures "By improving schemes through the correct application of tools
such as tunnels, ponds, wildlife fencing and wildlife friendly kerbs as
outlined in the department of transports Design manual for roads and
bridges (applicable to all counties in Mainland UK), as well as
anticipating negative impacts of amphibians being drawn to new sustainable
drainage systems, the impact of new schemes and renewal projects can be
greatly reduced.

([3]https://www.froglife.org/what-we-do/toad...

 

The term "amphibian friendly" comes from an internet search for mitigation
techniques such as
[4]https://www.arguk.org/info-advice/survey...

 

It is up to the applicant, using the professional advice of their
ecological consultant, to provide the details of how mitigation is to be
achieved for their proposed schemes for agreement by the local planning
authority when discharging conditions. In my view, it would be preferable
to utilise suds schemes which avoid gully pots in the first place but
obtaining developer co-operation and satisfactory adoption and maintenance
agreements is often very difficult. Overcoming the obstacles to the more
widespread use of such techniques is also something I would very much
welcome.

 

"Amphibian harm-mitigation drainage techniques” is only one aspect of
ecological mitigation. Natural England increasingly interprets European
legislation in terms of impacts on the local ‘favourable conservation
status’ of a species, with less emphasis on individual animal welfare. In
the case of Bar Lane, these included the maintenance of existing and the
provision of new GCN breeding ponds on site. Ultimately, where it appears
that harm might otherwise be caused to European Protected Species, it is
Natural England’s responsibility to assess whether or not to grant a
European Protected Species Licence and the courts have recognised that NE
is in a stronger position to assess their prospects of achieving
‘favourable conservation status’ in detail through EPS licensing than
local planning authorities are able to through the planning system. As NE
wrote to HBC (14 December 2018) in response to our request for specific
advice in relation to the purported exceptional GCN population which had
been found on the site prior to its post-mineral extraction restoration: 
“If planning permission is granted, Natural England will consider the
appropriateness of the mitigation when the Applicant applies for a
European Protected Species Licence from our Wildlife Licencing Team”.

 

West Winds, Scotton - 19/00028/OUT

 

The Harrogate Borough Council Ecologist, was very involved in this site
and recommended the two conditions (below) which request a construction
environmental management plan and an ecological mitigation and enhancement
scheme which seek to protect Great Crested Newts in addition to other
species. 

We have asked for details of amphibian friendly drainage arrangements to
be provided and we will assess the details when they are submitted to see
whether they meet the requirements or not. 

 

7 A) Construction Environmental Management Plan (Biodiversity) must be
submitted for the written agreement of the local planning authority prior
to the submission of any reserved matters application. Mitigation measures
should be based on the recommendations of section 7 of the Ecological
Appraisal (Envirotech, revised November 2018) in relation to the
protection of bats, great crested newts, nesting birds and native
vegetation during construction. A copy of the CEMP (biodiversity) must be
available on site for access by site operatives at all times during
construction.

 

8) An Ecological Mitigation and Enhancement Scheme including details of
native tree and shrub planting, amphibian friendly drainage arrangements,
a wildlife-sensitive lighting scheme and provision of bat and swift bricks
must be submitted and agreed by the Local Planning Authority prior to the
submission of any reserved matters application (this scheme may be
incorporated within the site landscape management plan).

 

If you are not satisfied with the way your request has been handled,
please contact - 

 

Freedom of Information Officer, PO Box 787, Harrogate, HG1 9RW

 

or email [5][Harrogate Borough Council request email]

 

The Council has an internal review procedure.  If your complaint is about
the decision which has been made you will usually be entitled to have your
case reviewed by a senior officer from a department which has not been
involved in the decision previously. Your request for internal review must
be received by the Council within 40 working days from the date that the
response to your initial request is issued.

 

If, after their decision, you are still not happy, you may appeal to- 

 

The Information Commissioner

Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF

Tel: 0303 123 1113

website: [6]https://ico.org.uk/

 

For the avoidance of doubt the provision of council (and other) officer
names and contact details under FOI or EIR does not give consent to
receive direct marketing via any media and expressly does not constitute a
‘soft opt-in’ under PECR.

 

Kind regards,

 

Liz Sandell

Systems, Information & Support Manager

Place-shaping & Economic Growth

Harrogate Borough Council

PO Box 787

Harrogate

HG1 9RW

 

email:  [7][email address]

Tel: 01423 500 600 (Ext 58282)

[8]www.harrogate.gov.uk

 

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Dear Elizabeth Sandell,

Re. our FoI request, 'Is "amphibian friendly drainage" lethal?', we have just been notified, that the reply has now been placed under the correct heading, on the 'What Do They Know' charity website and we respond as follows.

We must now request that for accuracy, credibility and so as not to unintentionally mislead wildlife charities, the construction industry and council tax payers, that Harrogate Borough Council (HBC) agree to stop referring to "amphibian friendly drainage".

It is, for example, a requirement of administration law that public services ensure information is accurate.

Civil servants are additionally required by statute law, to comply with standards which ensure inconvenient facts are made clear and no-one can be misled, by what is said and what is not said. When that standard is breached, the law requires that they must make corrections, "as soon as possible". That is very strict, unlike the more flexible principle of 'as soon as reasonably practical'.

HBC staff are not civil servants but as a matter of principle, it seems unlikely that they would agree to work to lower standards, especially standards which inadvertently mislead over threats to legally protected wildlife.

Natural England is a threat to wildlife and when constituted as English Nature, put in place an action plan in 1989, to cause the collapse of the largest known population of legally protected great crested newts in the UK., right on our doorstep.

The process of destruction is now accepted policy within Natural England, so its advice and recommendations cannot be taken seriously. It is not only a serious threat to wildlife but a threat to the government's intention, to leave the world in a better state than we found it.

In summary, our three FoI questions were as follows and we give short answers, based on HBC's reply. If anything in the answers is wrong, misleading or unfair in any way, we will gladly make corrections and/or clarifications.

Question 1.
What technological evidence does HBC have, which proves that no drainage system need pose any death threats to amphibians?

Answer 1.
There is no known drainage system which can prevent the deaths of amphibians.

Question 2.
If such evidence exists, can it be displayed on HBC's website, for the benefit of wildlife charities and the construction industry?

Answer 2.
No such evidence exists so it cannot be displayed as requested.

Question 3.
Is it simply a matter of one system not being as lethal as another and that all systems will kill?

Answer 3.
Yes, all drainage systems are lethal but some are less lethal than others.

Yours sincerely,

John Barker.
Hon. Secretary,
Harrogate Trust for Wildlife Protection.

Elizabeth Sandell, Harrogate Borough Council

Dear Mr Barker,

 

Just to clarify on the statements that you have made in response to your
FOI request.

 

In relation to your request for the term "amphibian friendly drainage" to
not be used across the whole of Harrogate Borough Council, this has been
passed on to the relevant people for consideration. However, Dan McAndrew
our Ecologist, has committed, for the sake of clarity, to avoid using the
phrase in his consultation responses for planning applications in future.

 

In relation to the original questions that were posed, I would like to
refer you back to the answers that were provided in our original response.
However, for further clarification, we would like to off the following:

 

Answer 1. "There is no known drainage system which can prevent the deaths
of amphibians"

It is not possible to have exhaustive knowledge in this area, on all known
drainage systems. However, some forms of Suds and soakaways may not be
lethal to newts and these are generally preferable to gully pots but
unfortunately may not often be currently feasible to install. Sustainable
Urban Drainage Systems (SuDS), should always be any developers first
consideration. SuDS assist in tackling surface water runoff problems at
source using features such as soakaways, permeable pavements, grassed
swales, ponds, wetlands and green roofs etc. SuDS can have a significant
impact in reducing surface water flows to the wider catchment, which can
assist in reducing overall flood risk in the area. However, SuDS are not
always viable due to specific site constraints such as site levels, clay
soils, available surface water outfall, ground water depth etc.

 

Developers often choose to use a mix of SuDS techniques for the wider
development and more traditional  drainage methods to drain highways, for
example; highways tend to be drained through gully pots in order to trap
heavy pollutants from motor vehicles and smells from the sewer system,
which if not captured have the potential to pollute the natural
environment and ultimately the wildlife in the area. Developers generally
agree the highway specification details with the highway authority through
the planning process, NYCC highway design guide and a subsequent section
38 agreement (Highways Act 1980).  

 

Answer 2. "No such evidence exists so it cannot be displayed as
requested".

We do not hold this information as an authority. Under the Freedom of
Information Act Request, we only provide information which is specifically
held by this authority.

 

Answer 3. "Yes, all drainage systems are lethal but some are less lethal
than others"

Some systems such as Suds and soakaways may not result in any amphibian
deaths. Our ecologist agrees that all gully pot-based systems which are
currently available probably have some capacity to be lethal to
amphibians. However, available evidence indicates that use of dropped
kerbs and recessed kerbs and those which are set away from hard kerbs do
substantially reduce potential mortality.

 

In addition, our ecologist would like to provide some additional
information for context:

Great Crested Newts are widespread (although localised and probably
declining across lowland parts of the District) - so it is not possible to
completely avoid development from impacting on GCNs in some form, in order
to meet demand for housing and jobs. In my view, it is the limitations of
size and condition of the available breeding ponds and terrestrial habitat
which is more likely to fundamentally drive the population dynamics of
newt populations than entrapment of individual animals in gully pots.
Therefore any mitigation measures (including measures to reduce amphibians
becoming trapped) need to be seen in their overall context of trying to
safeguard and where possible extend existing newt habitat in association
with planning applications. This does require the provision of up to date
survey data, as the LPA needs such evidence in order to request
appropriate mitigation measures. Ecological surveys are often snap shots
in time and place and can often be helpfully supplemented by information
from local naturalists. Biological records, in order to be credible, need
to provide information on which species are present and their numbers
(preferably specific counts), the location, the date of the record and the
name(s) of the recorder. In-context photographs may be sometimes helpful.
Data which have been validated and accepted by an independent body such as
the North and East Yorkshire Environmental Data Centre have much higher
value than anecdotal accounts or newspaper reports alone, which are
unlikely to stand up to wider scrutiny. The Local Planning Authority can
then reasonably request appropriate mitigation or enhancement measures, on
the basis of widely accepted quantitative and fully attributed evidence,
including that provided by third parties.

 

HBC does endeavour to avoid harm to GCN and other wildlife in the course
of development and, where possible, seeks net biodiversity gain in
accordance with emerging Local Plan Policy NE3.

 

If you require any further information on the above, please contact Dan
McAndrew directly, as the Freedom of Information Act is for obtaining
information that the authority holds, rather than seeking an opinion.

 

Kind regards,

 

Liz Sandell

Systems, Information & Support Manager

Place-shaping & Economic Growth

Harrogate Borough Council

PO Box 787

Harrogate

HG1 9RW

 

email:  [email address]

Tel: 01423 500 600 (Ext 58282)

www.harrogate.gov.uk

 

 

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Dear Liz Sandell,

Thank you for your helpful reply.

We trust that the decision of HBC's ecologist, Dan McAndrew, to put a stop to references about so-called "amphibian friendly drainage", will not be overturned, by the other "relevant people" to which you refer.

From HBC's internal information, we must now request the following:-

(1) evidence of designs of soakaways which are "amphibian friendly" and if there are no such designs, to have an assurance that HBC will also put a stop statements about soakaways being "amphibian friendly";

(2) evidence for a design of drainage interceptor which removes all known pollutants.

Regarding (1), as far as we have been able to ascertain, all soakaways are lethal - please see below for more details.

Regarding (2), HBC stated in its 2016 report about the Persimmons planning application between Bar Lane and Hazleheads Lane, that with a planning condition to fit an interceptor to the surface water drainage system, "There is no reason to believe that development will not deal adequately with foul and surface water drainage, land contamination and pollution issues".

That, would seem to require magical technology. However, If all of that is unequivocally true and not misleading, then it is the solution to all forms of pollution, including the removal of salt from roads in winter months. Salt flushed into amphibian breeding ponds in winter and late winter months is lethal, so an appropriate design of interceptor possibly only known to HBC., needs wide publicity, starting with the website used here.

Before two public inquiries in early 2017, we listed some dangerous chemicals, used in and around houses, asking if all of those would be removed, with a design of interceptor known to HBC.. The chemicals listed can be purchased from high street shops. Some had warnings not to pour them into drains, because of the deadly danger to aquatic environments. HBC did not respond and because those and other issues have not been addressed in recent years, we have had to resort to Freedom of Information requests.

Regarding your last paragraph and the difference between requesting recorded information and seeking opinions:-

(a) as mentioned above and on the 23rd April, ordinary correspondence has been unsuccessful in the past, in connection with our strenuous efforts to protect what had been the habitat of the largest known population of legally protected great crested newts in the UK;

(b) we are sure councillors and staff will agree, that any details displayed on this website for anyone and any organisation to read, anywhere in the world, must be accurate and not left unclear, misleading and/or untrustworthy.

Regarding point (a), a number of technical points were not answered by HBC., before two public inquiries were held in 2017 about adjacent land. The response which came at the 11th hour avoided crucial points. The same happened again almost two years later, when last January, HBC gave planning permission to build 175 houses, not adjacent to the habitat but in its very centre.

The public inquiries had been arranged by the Planning Inspectorate, in part to address "complex" and "technical" issues, about legally protected great crested newts. For reasons which were not publicly declared, both HBC and Natural England deliberately avoided addressing those complexities and technicalities.

Regarding those and the whole truth, there was a deafening and profoundly worrying silence from HBC., Natural England and commercial ecologists, e.g. no mention of research evidence commissioned by the government (DEFRA) which revealed the failures of so-called mitigation schemes and lessons to be learnt and applied. Instead, HBC and Natural England opted to continue with ecological harm and that looks set to continue without end.

Neither HBC nor Natural England have sought to disprove the continuing relevance of this 1994 statement by English Nature:- "(Great crested newts are) widespread in Britain and may even be numerous (in some places) ... Nobody really knows quite how many there are in Britain or where they all are and new sites keep turning up. However, we do know that over the last 50 years THE NUMBERS (OF GREAT CRESTED NEWTS) HAVE PLUMMETED (AND THEY) CONTINUE TO BECOME RARER ..."

HBC has given the appearance, that it will allow developments anywhere and everywhere, to promote employment, profitable and unprofitable commerce and so on, regardless of the harmful ecological consequences. Indeed, planning rules seem to regard wildlife as calling out to be damaged, with planning permissions to impose commercial enterprises.

The dumping of plastics and other pollutants in our seas is good for employment and is profitable, as is the destruction of rainforests. If we had rainforests, it is very clear that we also would destroy them to encourage employment and profitable commerce.

That is required by planning rules which claim to be about sustainability. That means the planning policy definition of sustainability, results in planning permissions which are destructive and not sustainable.

What is happening in the Harrogate district, is being done without thorough assessments of the consequences for wildlife. Indeed, HBC is giving the appearance, that all it requires from developers, is superficial window dressing, when harmful planning applications are received.

In terms of law, it was said in a judgement issued by the highest court in the land, that an appearance can be MORE IMPORTANT THAN THE REALITY.

HBC has gone way beyond a mere appearance of harm.

Returning to point (1), HBC has stated in the 31 July 2019 response on this website, that "soakaways may not result in any amphibian deaths" and "may not be lethal" to amphibians, so are preferable to gulley pots. If nonlethal soakaways exist, they appear to be very rare, so it is important, not to give the false impression that they are "amphibian friendly".

As we stated on the 23 April 2019, "soakaways are UNDERGROUND DEAD ENDS, so are permanent death traps for amphibians. The same must be said of underground rainwater storage tanks, unless escape routes are built into those. If pumps are used, those may or may not kill amphibians but if they are permanently trapped, they will die anyway".

The most common soakaways near houses, are simple holes in the ground filled with rubble and covered over with soil. Relatively rarely, they are permeable underground storage tanks of varying sizes.

As we also mentioned on the 23 April 2019, we are responsible for an underground tank, which takes rainwater from very common paving drains, at the edges of a cottage wall. Those were sealed off, when we discovered they were killing great crested newts. They had been unable to escape along the underground pipes, which range from 22 to 33 metres in length. Three decades ago, we installed a large ramp in that tank, for amphibians to enter and leave.

What ecologists studiously avoid mentioning, is that amphibians cannot escape from those types of drains. They are trapped in those in exactly the same way as they are trapped in roadside gully pots. More important, is that there are far more domestic rainwater paving drains in a housing area than roadside gulley pots.

Photographs of our drains were given to an ecologist, who in their report to HBC., did not mention the danger of adding more such drains in the area.

Such points would not help developers secure harmful planning permissions. The priority for commercial ecologists must be to earn a living by allowing the pipers to call the tunes. As one ecologist assured us off-the-record, the priority of commercial ecologists is of necessity, having to work in ways which, "help developers develop". What one ecologist might decline to do for ethical reasons, another will gladly do for the income. That becomes a justification, rationalisation or excuse, for all to do the same.

Facts which would militate against that way of working are screened out. That means ecology reports are good news for developers and bad news for wildlife.

Planning permission for the above 175 houses, may result in the same types of drains from 350 to 700 and relatively few if any roadside gulley pots. If there will be none of the latter, pollutants will be discharged straight into the habitat. Alternatively, the approved pumping system may mangle amphibians to death, as was happening before 1996, when we had the then quarrying company successfully prosecuted, over the same site.

Domestic paving drains create many hundreds of permanent death traps.

Ecologists and developers are continuously silent on that issue. As one of our trustees said in a local newspaper report, they avoid saying, "how many new drains will be created and how many legally protected newts will be killed in those each and every year”:-
https://www.harrogateadvertiser.co.uk/ne...

When HBC states that soakaways are "preferable to gulley pots", (31 July 2019), we cannot see if that means roads in some situations, can be drained without gulley pots of any size or shape. However, it is also stated that when used, they "trap heavy pollutants". So if not used, the heavy pollutants would be discharged straight into the habitats of amphibians.

We must agree that those pollutants, "if not captured have the potential to pollute the natural environment and ultimately the wildlife in the area".

In view of what HBC has said, development with and without so-called "mitigation", will very often mean endless killing or toxic pollution or both.

We agree that, "the limitations of size and condition of the available breeding ponds and terrestrial habitat ... [drives] the population dynamics of [amphibian] populations".

We also very much agree, that proposed changes must spell out in detail, "widely accepted QUANTITATIVE and fully attributed evidence".

IT IS EXACTLY THAT WHICH IS NOT BEING DEMANDED - WORSE IT IS BEING DELIBERATELY AVOIDED BY DEVELOPERS AND THEIR COMMERCIAL ECOLOGISTS.

"QUANTITATIVE" must start with population size, (a) as it is, (b) as it was and (c) as intended.

Some parts of the National Planning Policy Frame work are treated as though they are inescapable duties imposed by immutable law.

By contrast, crucial ecological points are consistently avoided and treated as nonexistent, e.g. "should" restore what were large populations of legally protected species. We have said this many many times and it is continually ignored and never addressed.

"QUANTITATIVE" must also specify the quantity (size) of each and every habitat feature which is necessary.

Quantity will also be determined by quality, e.g. a pond of a given quantity (size) infested with Australian swamp stonecrop, (Crassula helmsii), will not have anything remotely like the same ecological quality and value as another of the same size, with none of that infestation.

When infestation of new ponds is highly probably, then the needed quantity (size) of those ponds will be exponentially greater.

That is not being required.

Instead, planning permissions keep removing endless chunks of habitats without providing the same types of habitat and same sizes elsewhere and without addressing the long term threats from that wildlife killing weed.

It is not "compensation" to remove vast swathes of habitats and window dress what proportionately little remains.

What already exists is not "compensation". Thus many if not most planning permissions are commonly tacit encouragements to keep pushing populations into decline.

When amphibian populations are stable, adding dozens or even hundreds of permanent deaths traps, cannot possibly maintain that stability. That makes as much sense as turning parts of recreation areas into a minefields.

Logic demands, that planning applications must give estimates of the likely number (quantity) of deaths each year in specified numbers of permanent death traps. Logic also demands, that credible estimates be given for any expected increase in amphibian numbers each year.

The figures would have to state, how numbers would decline, without pond management. By contrast, permanent death traps in drainage systems, (e.g. drains and soakaways), would relentlessly kill on the same scale each and every year. Deaths in death traps would only decline as the population size is forced into decline.

We requested that Natural England revise the advice given to ecologists, which would harm our own population of great crested newts. On the 06 August 2019, that advice was effectively withdrawn, because it was a theoretical desktop response and not based on an assessment of the quantity (size), quality and orientation of the features known to us, e.g. we object to following advice to plant trees on the south side of our pond.

We agree with Natural England's revision of its advice.

That states that, "IT IS NOT POSSIBLE to set the size of the compensation area solely on the basis of the theoretical minimum area calculated to support a viable great crested newt population – calculations based on the number of newts an area could support are often QUESTIONABLE DUE TO DIFFICULTIES in accurately assessing population size and carrying capacity of a given habitat".

That makes very clear what is "not possible" and that it is a deception to keep adding planning permission after planning permission, when no-one can state with any degree of certainty, what is happening to the "carrying capacity of a given habitat".

That is another reason for deafening silence from developers and their commercial ecologists.

As with HBC's response to planning applications and reports by commercial ecologists, no mention is made of the Kent University study into mitigations schemes, which cost the government (DEFRA) £260,000. That makes clear that the trend with mitigation schemes is all downwards and in one case, a population became extinct in what appeared to be a high quality habitat.

Because of the conclusions in that study, we find no mention of it by commercial ecologists or in HBC's responses to planning applications.

There is a reasonable suspicion, that HBC's ecologist is tacitly required to fall into line with HBC's drive to allow houses to be built anywhere and everywhere, as reported in the Yorkshire Post.

So, planning permission could be given for a high quality mitigation scheme, which could result in extinction. That is a clear indication of the gamble which HBC has been taking, with legally protected wildlife, each time it gives consents to make significant changes to habitats and reductions in their sizes.

Why does HBC consistently remain silent on the evidence from the £260,000 study, if the above "reasonable suspicion" is wrong?

Unless there is a radical rethink and change of direction, HBC will continue to perpetuate the illusion and delusion, that the effectiveness of so-called "mitigation" and "enhancement" schemes, can be more or less guaranteed. Natural England also needs the same radical rethink and change of direction, not least in view of what it stated on the 06 August 2019, which is cited above and below.

Relentless planning permissions are being given, with little or no understanding of their consequences for wildlife. That is being encouraged by superficial and slanted assessment reports by ecologists, which deliberately avoid revealing the true extent of known dangers and uncertainties.

Natural England also stated on the 06 August 2019, that a planning application may be acceptable, when it is possible to be sure that, "THE CARRYING CAPACITY OF THE REMAINING HABITATS IS INCREASED".

To be sure about that, it must be demanded, that ecologists stop deliberately avoiding the dangers and uncertainties we have referred to, especially from dozens, hundreds and even thousands of permanent death traps in drainage systems, depending on the scale of harmful developments which are being encouraged.

Natural England had not been informed of our 25 or more year battle against Australian swamp stonecrop (Crassula helmsii) and how that threat would become unstoppable, with the proposal in the planning application.

We object to a new pond, which would be seasonally charged with salt and other pollutants. That seems the most obvious explanation, for there being no infestation by that devastating water weed, in the existing water area close to the B road.

This issue was put to the planning applicant three months ago and there has been a deafening silence since then. There is no mention of it on HBC's website, by the planning applicant or their ecologist.

The RSPB has stated that, (a) infestation with that deadly weed is "extremely difficult to eradicate", (b) it survives brackish water and (c) the RSPB may have the only site in the UK where it has been eradicated on a large scale. That was achieved by flooding with seawater for 12 months. That is only an option in some coastal habitats and important animal and plant life could be killed. They would be killed anyway, by the Australian weed.

That suggests, that the planning application site adjacent to our pond, may have a high concentration of salt in winter months. Blocking off that pollution, would allow the deadly weed to smother a new and larger pond, creating a perennial threat to our existing pond.

The solution for amphibians is to do away with the existing water areas within the planning application site.

Half truths and distortions in planning applications are not being challenged by HBC.. We assume that is because staff are so overwhelmed with pressures of work, that they must of necessity deal with planning applications as swiftly as possible.

Workloads could be reduced, if consultants and other specialists had to summarise the main points in their submissions, within a maximum number of words.

They inject their reports with romanticised images, such as developments which would "respect the rural setting and local wildlife", to cite Jack Lunn Properties in a letter to us.

Since when has development enhanced that which is wild and rural? It is as reassuring as having a new airport, which would respect the peace and tranquillity of an area.

Endless padding of reports with superfluous details, make for difficulty in detecting whether or not very significant issues have been avoided, intentionally or otherwise.

Their reports can be as obscure as old legal documents, from the time when solicitors could charge by the number of words they wrote, making them needlessly long and convoluted.

In our email to HBC on the 07 January 2019, we set out the issue in detail, stating that it is within the power of HBC., to demand that ecologists reveal the whole truth.

On that point, we have lodged a separate FoI request entitled, 'Preventing wildlife destruction by raising standards in ecology reports'. That seeks evidence as to what has been discussed and decided, in response to our very serious concern, as set out in that email of the 07 January 2019.

HBC has effectively been acting as though legally protected species could and should be driven into continuing decline.

Planning applicants simply need to be advised to find alternative sites, especially now that a Planning Inspector has struck down sites for 1,000 houses, to avoid harm to the character of areas within the district and HBC has a "considerable oversupply" of housing sites. HBC has been allowing houses to be built, where previously it was adamant that the character of an area would be harmed. Hopefully, it now has the confidence to get back onto the straight and narrow, with the recent reassurance given by the Planning Inspector.

As opinions about the character of an area are still important enough to prevent development, why not legally protected wildlife, which does not depend on opinions, which can change like shifting sands?

As mentioned on the 07 July 2019, civil servants would be in breach of the law, if they remained silent on the very fundamental ecological issues raised here and to which, we are constantly being obliged to draw attention.

Yours sincerely,

John Barker.
Hon. Secretary.
Harrogate Trust for Wildlife Protection.

Foi, Harrogate Borough Council

Dear Mr Barker,

Thank you for your request for information which we received on 22nd August 2019. We are dealing with your request under the Environmental Information Regulations 2004 as we consider the subject matter to relate to information that has an effect on the elements of the environment. This means that –

• if we need more information about what you want, we will contact you again as soon as we can; the twenty working days in which to give you the information will start once we know exactly what you want
• if we do not hold the information, we will, if we can, transfer your request to an authority who does hold it, and tell you what we have done (please contact us immediately if you do not want us to do this); otherwise, we will let you know that we do not hold the information
• if we hold the information and there is no reason to withhold it, we will send it to you as soon as we can. If there is likely to be a delay for any reason, we will let you know
• if we believe that there is a good reason why the information should not be disclosed, we will let you know as much as we can about how we reached our decision
As required by the legislation, we aim to respond in full within 20 working days from the date we received it. If for any reason we are unable to meet this deadline, we will keep you fully informed of the reasons for this.

Yours sincerely

Sara Haeger
Legal Assistant
Legal & Governance
Harrogate Borough Council
P.O. Box 787
Harrogate
HG1 9RW

Tel: 01423 500600 Ext 58393
Email: [email address]
Web: www.harrogate.gov.uk

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Elizabeth Sandell, Harrogate Borough Council

Dear Mr Barker,

 

FREEDOM OF INFORMATION REQUEST

 

In your email which we received on 22^nd August 2019, you asked for the
following information:

 

(1)  evidence of designs of soakaways which are "amphibian friendly" and
if there are no such designs, to have an assurance that HBC will also put
a stop statements about soakaways being "amphibian friendly";

 

(2)  evidence for a design of drainage interceptor which removes all known
pollutants.

 

In response:

 

Your request has been considered under the Environmental Information
Regulations 2004 as we consider the subject matter to relate to
information that has an effect on the elements of the environment. 

 

We do not hold any information on the above request.

 

If you are not satisfied with the way your request has been handled,
please contact - 

 

Freedom of Information Officer, PO Box 787, Harrogate, HG1 9RW

 

or email [Harrogate Borough Council request email]

 

The Council has an internal review procedure.  If your complaint is about
the decision which has been made you will usually be entitled to have your
case reviewed by a senior officer from a department which has not been
involved in the decision previously. Your request for internal review must
be received by the Council within 40 working days from the date that the
response to your initial request is issued.

If, after their decision, you are still not happy, you may appeal to- 

 

The Information Commissioner

Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF

Tel: 0303 123 1113

website: https://ico.org.uk/

 

For the avoidance of doubt the provision of council (and other) officer
names and contact details under FOI or EIR does not give consent to
receive direct marketing via any media and expressly does not constitute a
‘soft opt-in’ under PECR.

 

Yours faithfully,

 

Liz Sandell

Systems, Information & Support Manager

Place-shaping & Economic Growth

Harrogate Borough Council

PO Box 787

Harrogate

HG1 9RW

 

email:  [1][email address]

Tel: 01423 500 600 (Ext 58282)

[2]www.harrogate.gov.uk

 

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Dear Elizabeth Sandell,

Thank you for the clear answers to our questions.

Do we now have assurances, that unless Harrogate Borough Council staff have substantive evidence, they will not in future, mention in any advice, in any recommendations, in any public reports and in any public inquires:-

(1) "amphibian friendly" drainage,

(2) "amphibian friendly" soakaways;

(3) drainage interceptors which will remove all pollutants?

Also:-
(4) will a formal apology now be given to the Planning Inspectorate, for knowingly allowing Planning Inspectors to be misled at public inquiries in 2017, in connection with two planning applications for houses, between Bar Lane and Hazleheads Lane in Knaresborough? ;

(5) will an assurance be given, that in future Harrogate Borough Council will assume and comply with a duty of candour at all public inquiries, whether or not that is already imposed by law?

We have long raised the above issues but Harrogate Borough Council was effectively working in opposition to the provision of sound information. It must, therefore, accept that it has played a significant role in driving down, what had in 1989 been the largest known population of legally protected great crested newts in the UK.. Additionally, Natural England has recently given, in connection with a planning application in the village of Scotton, clearer guidance for assessing such planning applications. We had put such points to Harrogate Borough Council prior to the two public inquiries but all to no avail.

Yours sincerely,

John Barker.
Hon. Secretary,
Harrogate Trust for Wildlife Protection.

Elizabeth Sandell, Harrogate Borough Council

Dear Mr Barker,

Your request below will not be dealt with as a Freedom Of Information Act request, as you are requesting assurances/opinion rather than requesting information the authority holds, so this is not the appropriate route. I have passed the below on to the appropriate managers within Development Management and Consultancy teams who will respond to the points raised in due course.

Kind regards,

Liz

Liz Sandell
Systems, Information & Support Manager
Place-shaping & Economic Growth
Harrogate Borough Council
PO Box 787
Harrogate
HG1 9RW

email:  [email address]
Tel: 01423 500 600 (Ext 58282)
www.harrogate.gov.uk

show quoted sections

HARROGATE TRUST FOR WILDLIFE PROTECTION

Dear Elizabeth Sandell,

Thank you for your message.

Regarding our suggestion that HBC apologise to the Planning Inspectorate about the public inquiries in 2017 and our request to HBC's Planning Committee on the 08 January 2019, that it defer a decision in order to consult with Sarah Richards, Chief Executive of the Planning Inspectorate, we have now written to her. A copy is pasted below and please draw that to the attention of HBC's Chief Executive, Wallace Sampson. We would have written to Sarah Richards before the 08 January 2019, had HBC not left it until the 11th hour, to respond to a few of our detailed questions, which we submitted about 3 months earlier.

Yours sincerely,

John Barker.
Hon. Secretary.
_________________________________________________________________________

HARROGATE TRUST FOR WILDLIFE PROTECTION

Sarah Richards,
Chief Executive,
Planning Inspectorate.

30 September 2019

Dear Sarah,

LAW & CREDIBILITY OF THE PLANNING INSPECTORATE

We write to seek a firm assurance.

For the avoidance of doubt, this is not a complaint, because we know from painful experience with regard to other matters, that complaints simply waste the time of all concerned and achieve absolutely nothing.

We have been so appalled by decisions of Natural England, (formerly English Nature), and the Planning Inspectorate, that there is a strong possibility that we will end our conservation work, even if signs begin to emerge, of improvements in public service standards.

We are so worn down, by struggling with organisations which should be trusted to act honourably in the defence of wildlife, that we have a strong aversion to corresponding with them and constantly having to remind ourselves, of everything previously committed to print. Consequently, this request for an assurance, is written without having refreshed our minds on the fine details of all relevant written material, which proves what has gone wrong in the past. There may be minor factual errors in what follows but the thrust of our case is shockingly correct.

The assurance which we now seek, is for Planning Inspectors to comply with the letter and spirit of the Civil Service Code and associated Statutory Guidance. A brief summary of that is attached and a key legal duty which was not complied with in the reports following the 2017 public inquiries, was to ensure "objectivity" which legally requires "rigorous analysis of the evidence".

The reasons for our crucially important request, are sketched out below.

Yours sincerely,

John Barker
Honorary Secretary
_____________________________________________________________________

BACKGROUND REPORT

1.00 Birkham Wood SSSI

1.01 We discovered to our horror, that English Nature was so incompetent in the late 1980s, that it could not see, that Birkham Wood in Knaresborough is obviously ancient and very important, because of its archaeology and complex ecology, in part because of its varied geology. We were accused of arrogance, for daring to challenge English Nature's hopeless assessment. To prove our case, we researched the woodland's history and had our findings and conclusions endorsed by, (a) Professor Oliver Rackham of Cambridge University, possibly the UK's top expert prior to his death in February 2015 and (b) Dr. Richard Gulliver, who had conducted his own unique research into woodlands in the Yorkshire area. The overwhelming weight of evidence compelled English Nature to formally designate the woodland as a Site of Special Scientific Interest.

1.02 We became involved, having heard that North Yorkshire County Council (NYCC) had plans to construct a bypass through the very centre of the woodland. Consequently, we precipitated public inquiries through the Planning Inspectorate. On the first day, the Planning Inspector thanked the most significant landowner, for a meal and congenial hospitality. For that reason, another inspector was appointed, who agreed that the road should be built as planned, despite the following:-
(1) NYCC had said,
(a) it would be less expensive to build the road outside the woodland and
(b) it had only aligned the bypass through the woodland to use it as a screen;
(2) the Countryside Commission had said the road would be less intrusive in the landscape, if constructed outside the woodland in a lower and concealed area;
(3) a road through the SSSI would be contrary to government policies.

1.03 We felt the first Planning Inspector had unwittingly revealed a hidden agenda within the Planning Inspectorate, which appeared to be endorsed by the second Planning Inspector. We felt we might not be able to trust the Planning Inspectorate in future, to demonstrate a neutral and critically analytical approach to its work, i.e. what would now be required by the Civil Service Code and associated Statutory Guidance.

1.04 I personally faced the prospect of homelessness over the scandal. As an Environmental Impact Assessment had not been conducted, a solicitor agreed to pursue the issue through the courts, because I had put my home forward as collateral. In the event, the solicitor missed the cut-off date.

2.00 Largest population of Great Crested Newts in the UK

2.01 In 1989, two of our volunteers, Herlinde and Sidney Elias, discovered in the lagoons of a working quarry in Knaresborough, what turned out to be the then largest known population of legally protected great crested newts in the UK.. English Nature issued us with a licence, to rescue what was initially thought to be a small number of newts. However, we soon questioned whether we should continue removing many hundreds, when the numbers seen kept increasing and not decreasing. Regional staff with English Nature would not act to defend that exceptionally large population. They even advised the quarrying company to landscape the area in such a way, that we constantly warned that the population would inevitably crash.

2.02 We were again challenging English Nature, (see 1.01), but this time because of credible information helpfully provided by the Chief Scientist's Directorate within the HQ of English Nature. We could not persuade regional staff to come into line with their own experts.

2.03 The quarrying company was quite open about the fact, that its water pumping operations frequently broke down, because of the mangled bodies of legally protected great crested newts. We could not persuade the regional staff of English Nature, to advise the company to fit an underwater screen and press for national planning policy to require that screens be fitted in all such circumstances. Thirty years later that failure is still a threat to amphibians, when it is probably cheaper to fit screens than endlessly having to deal with equipment breakdowns. Because the company continued killing newts and damaging their habitat, we forced in 1996 through the police and Crown Prosecution Service., the first and successful prosecution over great crested newts in the UK..

3.00 Planning Inspectorate in 2017

3.01 Regarding 2.00 above, the Planning Inspectorate agreed to hold two public inquiries in 2017, in connection with adjacent land. It had been persuaded to do so by local people and our charity, because of "complex" and "technical" issues regarding (a) air pollution and (b) great crested newts.

3.02 During one of those public inquires, the planning inspector gave a very firm assurance, that their decision report would state, whether it is possible to give planning permissions, if they would breach European law on air pollution, which the government was referring to as a national health emergency. A statement had been read out, which gave rise to the assurance given by the Planning Inspector. However, the decision report made no mention of the assurance which had been given.

3.03 Natural England made no objections to the two planning applications and did not question the credibility of the ecology reports. Harrogate Borough Council (HBC) simply accepted that position uncritically but see 6.06 and 6.07 below.

3.04 We challenged severely those ecology reports, e.g. there was no mention of the research commissioned by the DEFRA at a cost of £260,000 and conducted by the Durrell Institute of Conservation & Ecology in the University Kent. That research points to the overall failures of so-called "mitigation" schemes. By contrast, developers pay ecologists to give the impression that so-called "mitigation" schemes come with guarantees of success. As one consultant ecologist told us off the record, in order to earn a living, their task must of necessity be to "help developers develop". Thus their role is to window dress harm to wildlife and avoid revealing the true extent of predictable risks, if indeed they dare to mention any risks.

3.05 The decision reports of the two Planning Inspectors did not address the "complex" and "technical" issues, which were the very reasons for the two public inquiries. If we remember correctly, our concerns were not dealt with, simply because Natural England, HBC., commercial ecologists and possibly Yorkshire Water had no objections.

3.06 This report followed in a local newspaper:-
https://www.harrogateadvertiser.co.uk/ne...

4.00 Planning Inspectorate precedent threatens protected wildlife

4.01 During the two public inquiries in 2017, we warned that if the Planning Inspectors did not address the "complex" and "technical" ecological issues with precision, one or more precedents would be created which would threaten the centre of the habitat of the population of great crested newts in 2.00 above and indeed, large populations of other legally protected wildlife in all parts of the country.

4.02 On the 07 January 2019, we submitted to the Planning Committee of HBC., a recommendation that it defer a decision, on whether to grant planning permission, to build 175 houses, within the very centre of the site referred to above in section 2.00.

4.03 We called for councillors to seek clarification from you as CEO of the Planning Inspectorate, as to whether the outcomes of the two public inquiries in 2017, do or do not support exactly what we predicted would happen, if the Planning Inspectors did not spell out a clear picture, on the "complex" and "technical" ecological issues.

4.04 Councillors resisted the application in January but not because of the law on legally protected wildlife. They were persuaded by their legal adviser that they had to grant planning permission. That they then did, subject to a Section 106 agreement. About two weeks ago, we heard that the applicant had lodged an appeal, because of non-determination of the application. Consequently, the Local Planning Authority decided to reject the application, because of changed policies. The LPA has confirmed to us that that is what has happened, i.e. approval followed by rejection which seems very strange to us.

5.00 Changed positions of Natural England & HBC

5.01 A few weeks ago, we protested about advice given by Natural England to commercial ecologists, in connection with land bordering our own great crested newt pond, (see 6.05). That advice was then revised and HBC refined and strengthened its advice. That effectively brought both organisations into line, with what we had been saying at the two public inquiries in 2017. That would have become clear at those public inquiries, if the Planning Inspectors had compared what each party was asserting and tested each claim for credibility, i.e. based on scientific research.

5.02 One of our concerns about pollution impacts on amphibians was road salt in winter months. This year we delved deeper into that specific issue and will put the evidence to the appeal regarding the 175 houses, (see 4.00).

6.00 Future role of the Planning Inspectorate

6.01 Although we played a central role in precipitating the two public inquiries in 2017, what we submitted to those was not addressed in the way legally required by the Civil Service Code and associated Statutory Guidance. Our summary of that is attached here. As mentioned in our covering letter, reports of Planning Inspectors must demonstrate "objectivity", which legally requires "rigorous analysis of the evidence".

6.02 It looked as though we had struggled with the same administrative issues, as experienced in the two public inquiries over Birkham Wood SSSI., (1.00 above). It should not be necessary to resort to the courts to have submissions properly examined, especially when those defending the public interest do not have deep pockets to buy justice, (cf. 1.04).

6.03 Because our very detailed concerns were not heeded, the Planning Inspectorate created the very dangerous precedent which we had predicted. That has resulted in our charity declining to have further involvement with ecologists and I have given up my great crested newt licence after 30 years.

6.04 Your Inspectorate will as a direct consequence, now have to preside over the issue as to whether 175 houses can be constructed in the very centre of the habitat, which once supported the largest known population of great crested newts in the country.

6.05 Having lost all faith in the planning mechanisms, we began to lodge a number of Freedom of Information requests. One of those was to the Planning Inspectorate, in case a planning appeal is eventually lodged in connection with our own population of great crested newts, established from those rescued in the early 1990s, (2.01 above). However, the subject of that FoI request is about the legal duty of local authorities to protect health and wellbeing and the role which Planning Inspectors play in upholding that duty. Our own population of great crested newts is associated with protecting mental health. That is because we have pioneered an empowering project, where those newly bereaved can take full control over the creation of graves within one of our nature reserves. Some of those, have chambers in which great crested newts now hide.

6.06 During the two public inquiries in 2017, we also warned that ecologists had not mentioned that domestic rainwater drains create many hundreds of permanent death traps for great crested newts. We also drew attention to the necessity for magical technology, if as the Local Planning Authority claimed, an interceptor on a drainage system would remove all pollutants. Freedom of Information requests have resulted in the Local Planning Authority having recently stated, that despite what the two public inquiries were told in 2017, it has no evidence of any technology which can provide "amphibian friendly drainage", "amphibian friendly soakaways" and drainage interceptors which can remove all pollutants. Those facts would have become clear during the 2017 public inquiries, if the Planning Inspectors had tested what each and every party was asserting.

6.07 We have formally asked if the Local Planning Authority will apologise to the Planning Inspectorate, for allowing the Planning Inspectors to be mislead during the 2017 public inquiries.

6.08 We had stressed, at the public inquiries, that first English Nature and then Natural England had acted to push what had been the largest known population of legally protected great crested newts into radical decline. That would have been confirmed, if the Planning Inspectors had tested the evidence before them. Instead, they gave the very strong impression, that they were determined not to tread in such tricky territory.

9.09 Our requested assurance in effect seeks a guarantee, that in future, Planning Inspectors will not avoid that which is "complex" and "technical", by taking the easy way out and siding with sweeping and unsubstantiated assertions by large public and commercial organisations, on the assumption that they must know what they are talking about.

6.10 There needs to be a duty of candour on the part of all public services at public inquiries, assuming such a duty does not already exist.

ENDS