It is critical that local planning authorities understand recent caselaw in relation to protected species. Penny Simpson explains why.
There has been a quiet shock-wave moving through local planning authorities across the country this year as a result of a court judgment from the High Court on European Protected Species (bats, great crested newts, dormice, otters etc). This case has now been confirmed by the Court of Appeal.
The cases have focussed on the legal duty of LPAs towards European Protected Species. Only now are LPAs really beginning to understand the implications of the judgement and how to deal with it. This article explores those issues and provides advice to LPAs and developers on how to deal with the implications of the caselaw.
The Woolley and Morge cases
The Woolley case was determined in the summer of 2009 and has this year been confirmed by the Court of Appeal in the case of Morge. These cases have clarified the legal duty of a LPA when determining a planning application for a development which may impact on a European Protected Species.
The Woolley case was a judicial review of a decision by Cheshire East Borough Council to grant planning permission for a development in Wilmslow involving the demolition of an existing Edwardian Villa and its replacement with a larger property consisting of three apartments. A small bat roost had been identified at the existing property following a survey undertaken in 2006. It was common ground that in order to demolish the building containing the bat roost a criminal offence would be committed and a licence from Natural England would need to be obtained.
The claimant, Mr Woolley, won the case on the basis that in granting planning permission the LPA had failed in its duty under Regulation 9(5) of the Conservation of Habitats and Species Regulations 2010 ("2010 Regulations"). This duty is for all "competent authorities" (public bodies) to "have regard to the Habitats Directive in the exercise of its functions."
The Court said that in order for a LPA to comply with regulation 9(5) it must "engage" with the provisions of the Habitats Directive. In that case the LPA had not done so and so the planning decision was defective. The Morge case confirmed that this approach is correct.
The Woolley and Morge cases demonstrate that in order to discharge its regulation 9(5) duty a LPA must consider in relation to a planning application:
(i) whether any criminal offence under the 2010 Regulations against any European Protected Species is likely to be committed; and
(ii) if one or more such offences is likely to be committed, whether the LPA can be satisfied that the three Habitats Directive "derogation tests" are met. Only if the LPA is satisfied that all three tests are met may planning permission be granted. These three tests are:
a. the development must be for one of the reasons listed in regulation 53(2) of the 2010 Regulations. This includes imperative reasons of overriding public interest of a social or economic nature or of a public health and safety nature
b. there must be no satisfactory alternative, and
c. favourable conservation status of the European Protected Species in their natural range must be maintained – this is the test that drives the need for the developer to provide replacement habitat.
These tests are in fact the three tests that Natural England has to apply when it is considering whether to grant a developer a European Protected Species licence to allow it to proceed with a project, normally following grant of planning permission. Even though Natural England, as the licensing authority, has to apply these tests in relation to a licence application, the caselaw clarifies that these tests must also be considered by the LPA when granting planning permission. This is due to the LPA's regulation 9(5) duty.
LPAs need to understand this caselaw and put it into practice to avoid future legal challenges of their planning decisions. They need a system in place under which:
- officers are aware of the legal requirements on them and understand that a LPA cannot discharge its duty simply by adding a condition to the grant of planning permission which requires a licence from Natural England to be obtained (such a condition would not be sufficient to "engage" with the Habitats Directive)
- consideration is given by the LPA to whether criminal offences against a European Protected Species are likely to arise from a development proposal – this in turn means that LPAs need to screen planning applications for their likelihood of impacting on EPS. Furthermore careful attention needs to be given to any "mitigation" (ie offence avoidance measures) which the developer may propose
- the three derogation tests are (where necessary) applied and relevant information is obtained from the applicant
- these issues are documented clearly through the determination process, and
- these issues are applied not just in relation to planning applications for full planning permission but also for outline permission, for listed buildings consent and for building regulations consent.
The Woolley and Morge judgments are increasingly having an impact on the way in which LPAs are operating. In order to make the path to planning permission as smooth as possible developers need to:
- undertake ecological surveying at an early stage
- identify all possible mitigation options so as to minimise impacts on European Protected Species – these may allow the developer to avoid criminal offences so that the LPA need not consider the three derogation tests; and also to avoid the need to apply for a Natural England licence
- be proactive in their analysis of their position. It is often tactically advisable for a developer to provide the LPA with the developer's analysis of the likelihood of criminal offences being committed and, if so, how the three derogation tests will be met by the development proposal. This is, after all, not extra work as this information will in any event need to be provided later to Natural England when applying for a European Protected Species licence
- where necessary prepare carefully their arguments as to how their development is "in the overriding public interest" and "that there is no satisfactory alternative" – these are legal tests where European caselaw is relevant, and
- be very aware of the way in which planning conditions relating to protected species can create difficulties for the developer in obtaining a subsequent European Protected Species licence from Natural England, and so to seek planning conditions which are phrased in the least problematic way.