Planning and the Law
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Why consider protected species during land use planning processes?
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Clarification of the legal duty of Local Planning Authorities’ to European Protected Species
Why consider protected species during land use planning processes?
Land use planning has to take account of legislation, not only the relevant planning legislation, but also the wildlife legislation where protected species are affected by land use development and planning matters. Wildlife legislation has helped formulate planning policy in the UK.
There are two types of legislation relating to species that planning officers should be aware of:
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Welfare legislation, such as the Badgers Act, Wild Mammals (Protection) Act 1996
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Species conservation legislation, such as the Wildlife & Countryside Act 1981 (as amended), Habitats Regulations 1994 (as amended).
The Habitats Regulations derive from the EU Habitats Directive (1992). The Habitats Regulations say that competent authorities must have regard to the requirements of the Habitats Directive.
Other legislation that is relevant is the Natural Environment and Rural Communities Act 2006 S40 which states that 'every public authority must in exercising its functions have regard . . . to the purpose of conserving biodiversity.'
Guidance on carrying out this function for local authorities
Some species of fauna and flora are protected by law because of conservation concerns, eg bats/newts, or welfare concerns, eg badgers. Some other species need conservation action through policies in local development documents, and the NERC Act requirements are especially relevant for them.
What are the policy implications?
The legislation gives backing to planning policies for nature conservation, and in the UK we have the following guidance from government on how planning officers should take nature conservation matters into account:
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In England - PPS9 Biodiversity and Geological conservation, together with its ODPM Circular 06/2005 and its Guide to Good Practice
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In Wales - TAN5 Nature Conservation and Planning
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In Scotland - NPPG14 Natural Heritage and PAN60 Planning for Natural Heritage
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In Northern Ireland - PPS2 Planning and Nature Conservation
The planning legislation and terminology differs slightly in each country, but the principles are similar.
In England local development documents are replacing local plans, unitary development plans and structure plans. Every local authority must prepare and maintain a local development scheme, stating the documents that form it. Government planning policy guidance (ie PPS, PPG etc) informs planners at planning policy level (eg local development documents) and also at development control level (eg determination of planning applications).
How does this relate to day to day planning?
In England, PPS9 states that 'Many individual wildlife species receive statutory protection under a range of legislative provisions, and specific policies in respect of these species should not be included in local development documents.'
The accompanying ODPM Circular 06/2005, therefore, is quite prescriptive in how planning officers should deal with protected species, see paragraphs 98 and 99:
- The presence of a protected species is a material consideration when considering a proposal that, if carried out, would be likely to result in harm to the species or its habitat (see ODPM/Defra Circular, para 98)
- LPAs should consider attaching planning conditions/entering into planning obligations to enable protection of species. They should also advise developers that they must comply with any statutory species protection issues affecting the site (ODPM/Defra Circular, para 98)
- The presence and extent to which protected species will be affected must be established before planning permission is granted. If not, a decision will have been made without all the facts (ODPM/Defra Circular, para 99)
- Any measures necessary to protect the species should be conditioned/planning obligations used, before the permission is granted. Conditions can also be placed on a permission in order to prevent development proceeding without a Habitats Regulations Licence (ODPM/Defra Circular, para 99).
Thus, where there is a reasonable likelihood of bats being present and affected by development, a bat survey should be carried out and its findings be considered in the determination of the application. The R v Cornwall County Council Judicial Review decision in September 2000 was helpful in establishing this fact. Mr Justice Harrison concluded that planning conditions should not be the mechanism for ascertaining the protected species status of a site.
The British Standards Institution has published a Publicly Available Specification 2010 - Planning to halt the loss of biodiversity: biodiversity conservation standards for planning in the UK - Code of Practice (BSI 2006). This is a code of practice for planning authorities on how they should address biodiversity in planning.
Some applications have been refused on nature conservation grounds, and appeal decisions have been subsequently dismissed. Click here for an appeal decision concerning newts in 2005, dismissed because insufficient information was supplied for the site. A survey was needed (but not supplied by the applicant) in order to assess the proposal's impact on newts. Click here for an appeal decision from 2007 concerning bats. This appeal was dismissed and the Inspector acknowledged that a bat survey should have been undertaken for consideration prior to granting planning permission because the presence of bats was a real possibility; because this information was absent the development would be contrary to policy aims.
Clarification of the legal duty of Local Planning Authorities’ to European Protected Species
An important judgment was handed down by His Honour Judge Waksman QC sitting as a judge of the High Court at the start of June 2009 in the case of R (on the application of Simon Woolley) v Cheshire East Borough Council. The judgment clarifies for the first time the legal duty of a Local Planning Authority ("LPA") when determining a planning application for a development which may have an impact on European Protected Species ("EPS"), such as bats, great crested newts, dormice or otters.
The court considered that in granting planning permission the LPA had failed in its duty under Reg 3(4) of the 1994 Regulations by failing to give consideration to the three derogation tests contained in the species protection provisions of the 1994 Regulations. Furthermore the Court held that a LPA cannot discharge its duty simply by adding a condition to the grant of planning permission which requires a licence from NE to be obtained. The effects of this are yet to be seen, but it may mean that more licence applications will be rejected at least on first submission.
This judgment will help avoid the situation where a developer obtains planning permission but then ultimately is unable to obtain the EPS licence required, so making the planning permission effectively redundant and leading to wasted costs. The message for developers and LPAs alike is to consider the derogation tests upfront in order to avoid unnecessary costs and delays in the planning process. Otherwise, the judgment will pave the way for increased third party challenge of planning decisions involving EPS. Of course, all of this in good news for the bats!
Woolley v Cheshire East Borough Council - Approved Judgment full text
A useful reference for all involved with land use planning where bats are concerned is the BCT's Bat Surveys - good practice guidelines which is available to download free of charge.
Updated July 2009