Plans to build houses on a wildlife-rich riverbank in a West Lothian village have been put on hold because it’s already occupied.
The discovery of water-vole’s burrow made for an unhappy tale for Robertson Homes which had wanted to press ahead building 101 more conventional houses on the bank of the River Almond in Mid Calder.
Councillors were warned they would break the law if they gave green light to developers before carrying out new wildlife studies.
Lawyer Nicola Wilkins told a meeting of the Development Management Committee: “A burrow has been identified on site and if you recklessly damage that, that is a wildlife crime under the Wildlife and countryside Act.”
“A wildlife crime is committed not because of the presence of the animal but because of the presence of a burrow. It’s the burrow that is protected.”
She told the DMC that any work which might impact the burrow of a water vole will require a licence.
Ms Wilkins, an immigration lawyer, warned councillors: “Under national planning policy if the protected species is likely to be impacted by the proposals, then that particular development will only be supported if the statutory tests for licensing are actually met – there must be no alternative location or alternative design for the work to go ahead.”
She added that an ecological survey should be conducted by the end of September. The lawyer described making a decision before a second survey has been carried out as “disgraceful”, adding “you are obligated to consider those statutory tests are met, and those tests are not met in this case.”
The land lies on the south bank of the Almond to the east of the Lizzie Brice Roundabout. It is open country, with a line of mature trees and the land slopes gently down to a stretch of the Almond.
In 2022 West Lothian’s Planning Committee heard the proposals faced more than 50 objections including from Mid Calder Community Council as well as neighbouring Howden Community Council in Livingston.
There were concerns that the housing would not only destroy wildlife but would crowd already busy roads and put increased pressure on local infrastructure services such as the local doctors’ surgery.
Robertson Homes won an appeal to the Scottish Government in January of last year.
An architect for the firm insisted at this week’s meeting of the DMC that ecology could be enhanced by the housebuilding.
When questioned by Councillor Damian Doran-Timson, a local councillor, how building on what was greenfield could improve it the architect suggested that animal pathways would be protected, along with other additions such as bird boxes.
He argued that at present the open field had little ecological value.
Councillors raised questions about taking a decision without the extra information Ms Wilkins said was needed.
Councillor Tony Boyle asked: “If we approved this and waited for the audit of wildlife would we be on the wrong side of the Scottish Government legislation?”
A lawyer for DMC said: “It really comes down to whether you have enough information. It is down to you as a committee whether you have the information.”
Chair of the meeting Councillor Harry Cartmill asked “What did the Reporter say about diversity, about what Ms Wilkins has said so passionately about the water voles and other wildlife. I have further concerns about this date Ms Wilkins alluded to and spoke so passionately on?”
Planning officer Mahlon Fautua explained that conditions attached to the recommendation to grant detailed plans included recommendations for further surveys of ecology and biodiversity.
Ms Wilkins told the meeting that the Scottish Government Reporter, while she had backed the development, had added the caveat which “explicitly” required updated reports not more than eight months old on water voles and also great, crested newts.
She added: “ You have to revisit the situation about water voles. The Reporter also said that you need to have a species protection plan which is required for water voles.
“A burrow has been identified on site and if you recklessly damage that, that is a wildlife crime under you the Wildlife and Countryside Act 1981.”
Becky Plunkett, a council ecology and biodiversity officer, said advice from NatureScot suggested a 10m buffer be applied if a water vole burrow was uncovered in a new ground survey.
She added: “It might be prudent to wait until the survey is done.”
Labour councillor Tony Boyle supported a call from Councillor Pauline Clark for the decision to be delayed until further reports were made. He said: “Without the survey I don’t think we have enough information before us.”
Councillor Willie Boyle for the SNP said: “I thank Nicola for her contribution. The whole river Almond course is a wildlife preserve to be defended. We need to be seen to do the right thing for this.”
Councillor Cartmill said Ms Wilkins’ evidence had “very much changed my mind.”
He added: “I’m of a mind to continue this so we can get some definitive answers.”
Councillors agreed to postpone a decision for one to three months.
By Stuart Sommerville, Local Democracy Reporter
