planning and environmental law update - issue one


Local Planning Authorities – planning permission and protected species


The ability to side step European regulations on habitat protection at the point of granting planning permission just got harder. A court case last year finally clarified the legal duty of Local Planning Authorities (LPAs) when dealing with protected species and planning permission.

Since the implementation of the Conservation (Natural Habitats, &c.) Regulations 1994, there has been a duty on planning authorities to have regard to the requirements of the Habitats Directive, which the Regulations sought to implement. In the past, local authorities have taken the view that all they were required to do was to note the existence of any European protected species. They have sought to satisfy this duty by simply imposing conditions to obtain licences from the appropriate Nature Conservation body and stating that the local authority need not go further. Such an approach has now been firmly rejected by the Courts.

R (on the application of Woolley) v Cheshire East Borough Council considered a judicial review challenge on the basis that the Council had failed to have regard to the Habitats Directive. There was evidence that an area planned to be demolished included a small roost of Pipistrelle bats. An assessment of the bats put forward proposed mitigation and permission was granted for the development with a condition that the applicant would have to obtain a licence from the appropriate Nature Conservation body (Natural England in this case).

The Judge quashed the grant of planning permission. It was held that a local planning authority could not discharge its duty simply by including a condition to obtain a licence, because “…that did not in truth, engage with the Directive or Regulations”. The planning officer’s report made no mention of the Directive or Regulations, though it did refer to the need for a condition. However, this was not sufficient to amount to consideration by the local authority.

The duty under the Regulations is clear and further advice is provided by paragraph 116 of ODPM Circular 06/05 which states “when dealing with cases where a European protected species may be affected, a planning authority… has a duty under regulation 3(4) to have regard to the requirements of the Habitats Directive in the exercise of its functions”. The Circular also goes further and makes clear planning authorities should give weight “to reflect these requirements” and as a result a local authority might well refuse permission altogether.

Going forward, it is essential that all planning authorities take into account the Habitats Directive when considering European protected species before determining planning and other similar applications; imposing a condition requiring a licence to be obtained is simply not sufficient. Planning authorities must consider the effects up front. This is a sensible judgment which will provide better safeguards for protected species and could also help avoid planning permissions being granted that will ultimately never be realised when an applicant is unable to obtain a licence.

A failure to follow this judgment is, in our view, likely to increase the number of decisions challenged and any permission granted will be at a high risk of being quashed. It is therefore strongly recommended that the planning authority obtains and considers its own independent ecological advice upon the likely effect on any protected species concerned. This should be done at the outset of the planning process and not simply left as an issue to be dealt with at a subsequent licensing decision.

We have dedicated planning and environmental law teams able to offer advice and assistance to local authorities on general planning and environmental issues. Our lawyers have experience and specific expertise in dealing with European environmental law, both independently and directly, in relation to the planning system. We are able to provide advice at all stages of the planning process and on individual environmental issues. We also regularly provide advice and assistance regarding challenges that have been made by way of appeal or judicial review.

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picture of Jacob Rickett
Jacob Rickett
0115 976 6159
Solicitor
   

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The content of this update is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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