Freedom of Information Request – Milton Road Wildlife

As previously reported, Cherwell District Council have confirmed that Adderbury Parish Council breached Condition 18 of the planning consent for the development on the Milton Road land.  This Condition forbade any site clearance (including vegetation removal) during the bird nesting/breeding season (1 March to 31 August).

Nevertheless, on 1 May 20 the Parish Council’s contractors started work on the Milton Road field, and heavy machinery began stripping the vegetation. 

Local residents who had seen ground-nesting birds such as pheasants, grouse and skylarks on the site, contacted Cherwell District Council (CDC) to complain.  Eventually, senior officers at CDC confirmed that the Parish Council should not have undertaken this work.  They also confirmed that CDC Officers who visited the site found no evidence of significant harm to any ground-nesting birds.  This was of course because the Enforcement and Ecology Officers did not visit until after work had commenced, long after any nests would have been destroyed.

Documents obtained as part of a recent Freedom of Information Request include internal emails between CDC officers, as well as communications between CDC and Adderbury Parish Council Chair, Diane Bratt, and Clerk, Theresa Goss.

The day before her planned site visit to the Milton Road field, the CDC Ecology Officer wrote to Jane Law, CDC Enforcement Officer, to say:

Looking at the documents properly however if the issue is about non-adherence to condition 18 by carrying out vegetation stripping now, the option to have a bird survey to check for nests and give the go ahead before clearance was not included in the condition anyway. It is a straight avoidance of bird nesting season.

If I am understanding correctly therefore they cannot do any vegetation clearance (including ground veg) under this permission until September without contravening this condition (unless it has been varied…) even if there are no nests present at all. To continue would be contrary to the condition and also prevent any birds nesting this season through disturbance. If nests have already been disturbed it will be very hard to tell (particularly with ground nests) so it is unlikely the police would have anything to go on to get involved.”

Following the Ecology Officer’s visit to the site, an email from Amy Sedman, Enfocement Team Leader at CDC, illustrates the internal debate about what to do about the Parish Council’s breach of Condition 18.  Initially, there is a suggestion that Condition 18 should not have been written as it was.  Ultimately, however, Ms Sedman says:

This is clearly a breach….and the developers should be held accountable.  However, from an enforcement point of view – the work has been done, we can’t prove there were nesting birds present and no power exists for us to do anything about this? We could serve a breach of condition notice but what would we be requiring them to do to remedy the breach of planning control?

Ms Sedman also suggests that the complainants should be advised that:

“...environmental crime such as the disturbance of nesting birds is enforced by the police … Without evidence to prove that ground nesting birds were present, it is very difficult for the Council to prove this and would make it difficult for the matter to be pursued further by the Police but advise them nonetheless that this alleged crime does need to be reported to the police and not the LPA“.

On 22 May 20, CDC Enforcement Officer Jane Law wrote to Parish Clerk Theresa Goss.  On the subject of Condition 18, she says:

I would also remind you that Condition 18 of the 2018 permission contained a requirement that no vegetation be removed from the site during the months of March to September so as to avoid harm or disturbance to birds during the nesting season. Please can you provide details of any ecological surveys undertaken prior to the works that show that ground nesting birds were not present at the time of commencement“.

The Parish Council Chair, Diane Bratt, responded to this letter from CDC on 25 May 20.  In her response Mrs Bratt makes several points, including that “the area has been extensively used by local residents for dog walking which would have disturbed any potential ground nesters”.

This is pretty much the same as saying “there can’t be any sheep in this field because people walk their dogs through it”.  Most responsible dog walkers do not let their pets run wild over farmland – they keep them on a lead.  In fact, one of the complainants to CDC who had seen pheasants and grouse on the field did so while walking their dog.

Mrs Bratt refers to “an ecological survey” which the Parish Council had completed.  This survey was carried out by Turnstone Ecology and according to Mrs Bratt it did not raise any issues with reference to the potential for ground nesting birds.  This is not altogether surprising, as the site survey by Turnstone was carried out on 1 October 2019, months after the end of the bird nesting season.

Finally, Mrs Bratt informs CDC that:

“As an experienced ornithologist, I walked the site prior to work starting and can confirm there was no evidence of ground nesting birds, but the contractors were requested to stop work should any emerge.”

So rather than paying for a professional “ecological survey undertaken prior to the works that show that ground nesting birds were not present at the time of commencement”, as suggested by CDC, the Parish Council Chair had simply walked the site herself.  Her suggestion that contractors operating a bulldozer would notice if they came across a pheasant’s egg beggars belief.

The above emails and documents once again illustrate the Parish Council’s approach to protecting the wildlife of West Adderbury, which is essentially not to bother.

Another interesting point emerges from the ecological survey by Turnstone that the Parish Council did pay for.  

Section 3.4.1 of the survey states that:

“At the time of survey this land had recently been cleared and weeds sprayed off leaving very little vegetation”.

Small wonder, then, that the survey found that “limited suitable habitat for nesting birds is present within the proposed development boundary”.  According to Turnstone Ecology,  the Parish Council had the field cleared and sprayed with weed killer before the ecology survey took place – and presumably after Condition 18 was set on 3 September 2018.

All species of bird are protected under Section 1 of the Wildlife and Countryside Act 1981. The legislation makes it an offence to intentionally:
• kill, injure or take any wild bird;
• take, damage or destroy the nest of any wild bird while that nest is in use or being built; or
• take or destroy an egg of any wild bird.

Certain species of bird are listed on Schedule 1 of the Wildlife and Countryside Act 1981. The legislation confers special penalties where the above-mentioned offences are committed for any such bird and also make it an offence to intentionally or recklessly:
• disturb any such bird, whilst building its nest or it is in or near a nest containing dependant young; or
• disturb the dependant young of such a bird.

The penalty for crimes committed under this Act include a £5000 fine and up to six months imprisonment.

We understand that, on the advice of Cherwell District Council, the RSPB and CPRE (Campaign to Protect Rural England), this matter has been reported to the Police as a potential crime under the Wildlife and Countryside Act.  We will update you on this when we can.

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