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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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.