14 July 2009

Planning Authorities must uphold their legal duty for European Protected Species when considering planning Applications

Judge Waksman QC in the High Court has ruled on an important case (Regina versus Cheshire East Borough Council) with major implications for planning applications affecting European Protected Species (EPS).

Regulation 3(4) of the 1994 Habitats Regulations requires all public bodies to have regard to the requirements of the European Habitats Directive when carrying out their functions. The ruling means that Local Planning Authorities (LPAs) are in breach of the Regulations if they do not address the three derogation tests when considering a planning application that that could impact upon any EPS (all bats, great crested newt, otter, dormouse, etc. - more than 80 species, excluding birds which also have their own European protective legislation). To date, most LPAs have left consideration of these tests to the statutory wildlife bodies (e.g. Natural England) as part of those bodies’ deliberations on whether to grant a licence for the development activity after a planning consent has been issued. But that will no longer do.

The three tests which LPAs must apply are:

1. that the activity involving the EPS impact must be for imperative reasons of overriding public interest or for public health and safety, and
2. that there must be no satisfactory alternative, and
3. that the favourable conservation status of the species must be maintained.

It is emphasised that these tests apply collectively.

The judgment upholds the published guidance in paragraph 116 of Circular 06/05 accompanying PPS9 that LPAs have a statutory duty to have regard to the Habitats Directive, and that the provisions of that Directive must be taken fully into account when making planning decisions.

Judge Waksman ruled that both the LPA and the statutory licensing authority must apply the three derogation tests and that the LPA cannot just add a Condition requiring a licence to be obtained. This is helpful because it should avoid the situation of a licensing authority refusing a licence for a project that has already received planning consent.

All this will certainly place more responsibility on Planning Officers, County Ecologists and others in the planning system, because the licensing authorities commonly have insufficient resources to respond to every planning application. To date, there has been a tendency to postpone EPS matters until the licensing stage in the absence of a response from, for example, Natural England, but the Court made it clear that is not acceptable. Overall, we are pleased with this decision because it helps to remove some of the contradiction and confusion that bedevil wildlife law. Yes, it means more care is needed in observing rules that some find irksome, and it can also be argued that resources will be used disproportionately for relatively common species like several of the bats and great crested newts. However, it also more generally supports the global realisation that what we now all call “biodiversity” is the most important natural asset we have and which we must protect for our own species' continued wellbeing.

NB. Please be aware that wildlife law is very complicated. The information above is given in good faith but Betts Ecology do not offer legal advice: please always consult a specialist law firm.