11/00713/F - Borough Council of King's Lynn & West Norfolk

A refuge management scheme survey shall be undertaken on an annual basis and a copy
provided to the Council, RSPB, NE, NWT and monitoring group.
If the developer seeks amendments to the refuge management scheme a report shall be
submitted the Council has a six week period to respond.
Since the April DCB report was prepared, NE have confirmed the removal of their earlier
objection, is subject to some amendments to the unilateral undertaking and the possibility of
the shutdown of one or more of the turbines should post-construction monitoring identify the
location of a turbine/s as particularly problematic for pink-footed geese. Whilst NE
understand the implications of this may have for funding of the proposal, given these
concerns NE recommend that such a condition is attached.
The RSPB also request a condition of this nature should the application be approved. In an
e-mail from RES dated 20th March 2011, in response to comments from the RSPB and in
relation to amendments to the unilateral undertaking it is stated by RES ‘your suggested
amendments to the S106 UU summarised below, are not accepted by us as they are neither
practicable nor necessary.’ It is considered by officers that if RES are unwilling to
accept/comply with such a condition, it is questioned if this should indeed be attached to any
approval.
However the Norfolk Wildlife Trust (NWT) and the RSPB share a similar stance in relation to
the proposed mitigation package for impact on Pink Footed Geese and raise an objection to
the proposal (as detailed earlier in the report).
A legal view was sought on the unilateral undertaking to inform the LPA of whether or not the
undertaking would comply with the Habitat Regulations. Doubt is raised in terms of the
certainty of providing the refuge area; the undertaking is the provision of the refuge area to
mitigate the impact of the development, yet the undertaking only requires that the land for
the refuge should be secured prior to the commencement of development. It is put forward
that it would be more certain if the undertaking provided that the refuge area had to be
secured and ready for use prior to commencement of development. The land comprising the
refuge is not clearly identified (which makes it difficult to monitor and enforce) within the
undertaking, and greater comfort would be given if this had already been secured and
identified in the undertaking. This would enable the Council to require all those with an
interest in that land to enter into the undertaking to ensure that they are bound by it
provisions. It is also noted that the undertaking makes some requirements on the Council;
the undertaking should provide only the obligations to be carried out by the developer and
not obligate the Council. Such an approval would require the agreement of the Council. It is
concluded that this raises significant doubt as to the mitigation required to make the scheme
acceptable is certain or achievable.
Regulation 61 of the Habitats Regulations requires that before deciding to give any consent
to a project which is:
a) Likely to have a significant effect on a European Site (either alone or in
combination with other plans or projects); and
b) Not directly connected with or necessary to the management of the site, to
make an appropriate assessment of the implications for the site in view of its
conservation objectives.
The procedure for doing an appropriate assessment is set out in Circular 06/2005
‘Biodiversity and Geological Conservation- Statutory Obligations and their Impact within the
Planning System’.
10/01419/FM Development Control Board
25 July 2011
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