A recent case in the London Court of Appeal in which CBEB were involved on behalf of clients indicates that some applications for European Protected Species (EPS) “development” licences may have to revert to the statutory nature conservation authorities (i.e. Countryside Council for Wales (CCW) and English Nature (and possibly Scottish National Heritage, but they already have a slightly different approach) when a EPS has to be relocated or other licensable work conducted where planning consent has already been given. The case was complex and had many lines of argument, but essentially centred on the Welsh Assembly Government (WAG)’s refusal to grant a licence to move great crested newts from an existing quarry which had planning consent for stone extraction where the newts had colonised.

The initial High Court hearing indicated that WAG were the competent licensing body and should reconsider their refusal to grant. The Appeal Court, however, took the view that the application could be considered under the “conservation” (rather than “development”) rules within the Habitats Regulations and should therefore be submitted to CCW. Presumably the various authorities will now debate the construction of the Judgments and determine whether new guidance is needed for EPS licence applications. It would not appear to affect new development projects before planning permission is granted, only those with existing planning consent – but that raises the question of development sites that are colonised by, say, bats or great crested newts before work starts but after consent has been granted – not an uncommon situation.

Since the changes announced by DETR (now DEFRA) in 2000, “development” licences have had to satisfy different criteria such as “overriding public interest” in order to be granted, whereas “conservation” licences are concerned with such matters as demonstrating “no satisfactory alternative” and “maintenance of a favourable population in the species’ range”.

We stress that this is our interpretation: we have tried to simplify the case to make it intelligible and hope not too much has been lost in the translation - it is another pile of pages for the already voluminous regulatory paper mountain that, many would say sadly, epitomises so much of nature conservation today.