17th June 2009

Judicial Review leads to increased protection of bats

BCT is constantly responding to consultations and lobbying on issues that have implications for bat conservation. One such area is on the strengthening of the Conservation (Natural Habitats c.) Regulations 1994 in England and Wales, Scotland and Northern Ireland.

A High Court ruling last week has validated this work and added strength to the Habitat Regulations within domestic law, which is a great move towards the comprehensive protection of bats within the planning system.

Cheshire East Borough Council granted permission to Millennium Estates Limited to demolish a house that contained a small pipistrelle roost. The planner's report mentioned the need to apply for a Natural England licence and granted planning permission with a condition that a licence and appropriate mitigation be satisfied at a later date.

A bat licence was acquired by Millennium in July 2008 and the building was demolished in August 2008. But in January 2009 Millennium went into administration and the site was left as an open development plot.

The planning permission was challenged by a local resident and in court it was argued that the local authority had failed to make sure that bats were not being negatively impacted by the development, which is not in line with the Conservation (Natural Habitats, c.) Regulations 1994 (as amended).

The local authority defended its actions saying that the only duty imposed on an authority at the planning stage was to note the existence of the relevant legislation and the bats impacted and that the applicant requesting permission needed a licence. Beyond these points the local authority did not feel it was it was required to act.

This was not accepted in court as a reasonable argument because a local authority should not be able to release its duty by making the obtaining of a licence a condition of the grant of permission. The planning officer's report had made no mention of the Directive or the Regulations. It referred to the need to have a condition for the mitigation of disturbance to the bats, but that did not amount to consideration by the local authority. This resulted in the planning permission being revoked.

This case will have a knock on effect to planning departments across the Country serving to strengthen the protection that bats receive, and the consideration that they are given within the planning system.

Full report (pdf version)