Pooling restriction not applicable to prior approval scheme

The conversion of two barns in Surrey to three houses under the prior approval procedure succeeded at appeal after an inspector ruled that the Section 106 pooling restriction did not apply (DCS Number 400-013-505).

The site was within 5km of the Thames Basin Heaths Special Protection Area (SPA), designated because of its importance in providing a habitat for three species of bird subject to European protection. The inspector recorded that the council had adopted an Avoidance Strategy which provided a mechanism for developers to mitigate the effect of new residential development within 5km of the SPA by providing or contributing to Suitable Alternative Natural Greenspace (SANG). As the appellant had submitted a unilateral undertaking which would make the contribution sought by the Avoidance Strategy the inspector was satisfied that adverse effects on the SPA would be adequately mitigated. He noted that Regulation 123 of the Community Infrastructure Levy (CIL) Regulations 2010 places restrictions on the use of obligations when granting planning permission. He reasoned, however, that in the case before him permission was granted under the GPDO, and since it was not an application for planning permission it was not covered by the pooling restriction contained in the CIL Regulations. He concluded that the obligation was necessary and otherwise satisfied the tests set out in the National Planning Policy Framework and the CIL Regulations.

What the DCP Blog would like to know is what difference does the nature of the legislation under which residential development is granted make to the nightjar, Dartford warbler and woodlark. Does this highlight yet another discrepancy between the planning permission and prior approval legislation or can readers make sense of this?

The following DCP section is relevant: 4.169

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