Many of the signatories mentioned the loss of heritage, history, the increase of traffic, the lack of infrastructure, that the development was taking place within an Area Outstanding Natural Beauty (AONB), that Hawkinge can not support anymore housing and many more comments.
Since then the 3.49 hectare site has been bought by Pentland Homes for £2.5 million, according to land registry documents. However, it would appears the level of interest in preventing development on the former officer mess site has waned considerably.
As we reported on the 1st April 2021, the previous Geo-Environmental report made it clear there were lethal levels of arsenic across the site (110mg/kg), as well as lead (1,900mg/kg). And since then a second Site Investigation Report has shown levels of arsenic at 277mg/kg. Arsenic was found in ten of the eighteen topsoil samples. Also the second report makes clear their are elevated levels of asbestos and Polycyclic Aromatic Hydrocarbons across the site as well.
All sites can be remediated and the former officer’s mess is no exception. The Remediation Method Statement for the site states:
Due to the identified contamination present at the site relating to lead, PAHs, arsenic and asbestos, remediation is required for the protection of human health of future end users.
It also makes it clear soil will have to be removed and replaced; and in certain areas across the site, this will mean to a depth in excess of half a metre – 55cm (22 inches). This will of course eat into the developer’s profit.
But it doesn’t stop there, since we first wrote about the site, it has been brought to our attention there are badgers and bats and potentially birds on the red list, which further complicates things for the developer – Pentland Homes – owned by James Tory and his father Peter Tory, a Tory donor. Again these issues can be overcome, but one is minded to remember both bats and badgers have a considerable level of protection in law.
The last Ecological Report for the site was undertaken in 2014, it noted:
Evidence of foraging by badger was found throughout the site, and especially on the north – western edge. Badgers and their setts are protected by the provisions of the Protection of Badgers Act 1992 and by Schedule 6 of the Wildlife and Countryside Act 1981(as amended).
Seven years on Badgers have taken up residence on the site which means Folkestone & Hythe District Council Planning department are required to take account of protected species and habitat conservation when they consider planning applications.
“…if significant harm to biodiversity resulting from a development cannot be avoided (through locating on an alternative site…), mitigated or, as a last resort, compensated for, then planning permission should be refused…”
When seeking planning permission, survey reports and mitigation plans are required if:
There are signs of setts or badgers on the development site or nearby.
Historical or distribution records show that badgers are active in the area or there is suitable habitat for sett building.
As yet, no up to date survey reports or mitigation reports have been undertaken by the current developer and placed on the planning portal. With the evidence available the developer will now have to undertake them.
Regarding bats, on a walk around the outside perimeter of the site with an ecologist and an ultrasonic bat meter, it was self evident that a number of species of bat were present on the site and roosting there. In the previous Ecological-Report it was noted:
There were several trees throughout the site which had potential for use by roosting bats. In the absence of a tree survey it was not possible to identify any particular trees… All bats are protected by the provisions of the Wildlife and Countryside Act 1981, and the Conservation of Habitats and Species Regulations 2010.
To add more gravity to this, at the start of June 2009, His Honour Judge Waksman QC sitting as a judge of the High Court in the case of R (on the application of Simon Woolley) v Cheshire East Borough Council clarified for the first time the legal duty of a Local Planning Authority (“LPA”) when determining a planning application for a development which may have an impact on European Protected Species (“EPS”), such as bats, great crested newts, dormice or otters.
The species protection provisions of the Habitats Directive, as implemented by the conservation (Natural Habitats Etc.) Regulations 1994, contain three “derogation tests” which must be applied by Natural England (“NE”) when deciding whether to grant a licence to a person carrying out an activity which would harm an European Protected Species (EPS). For development activities this licence is normally obtained after planning permission has been obtained.
The three tests are that:
the activity to be licensed must be for imperative reasons of overriding public interest or for public health and safety;
there must be no satisfactory alternative; and;
favourable conservation status of the species must be maintained.
This court judgment makes it clear that, notwithstanding the licensing regime, the LPA must also address its mind to these three tests when deciding whether to grant planning permission for a development which could harm an EPS. A LPA failing to do so would be in breach of Regulation 3(4) of the 1994 Regulations which requires all public bodies to have regard to the requirements of the Habitats Directive in the exercise of their functions.
As we understand this application will come before the planning committee. As such, the developer needs to get the survey reports and mitigation reports done in a timely manner, to give the planning department, the planning committee and the public time to digest and make any relevant comments to be taken on board by those approving the application the best chance of making an appropriate decision.
