How often do objectors to unpopular development proposals hope for signs of natterjack toads or great crested newts on the application site? The presence of any protected species has to be taken very seriously in this context.
In R (on the application of Woolley) v Cheshire East Borough Council [2009] EWHC 1227 (Admin); [2009] PLSCS 250, the developer had applied to the council for planning permission to replace a residential property with a larger property consisting of three apartments. A bat roost was found at the original property, which meant that a licence from Natural England would be required before the property could be demolished. Planning permission was granted and, after obtaining the required licence, the developer demolished the property. (This requirement had also been imposed as a condition on the planning permission.)
The claimant, an adjoining owner who had consistently objected to the development proposals, sought judicial review of the council’s decision to grant planning permission. His challenge was based on seven grounds, but it is the first ground with which we are concerned. This related to the EC Habitats Directive 92/43/EEC, which was introduced into domestic law by the Conservation (Natural Habitats, etc) Regulations 1994.
Article 12(1) of the directive requires member states to take requisite measures to establish a system of strict protection of certain animal species, prohibiting the deterioration or destruction of breeding sites or resting places. (It was common ground, in this case, that the pipistrelle bats that were roosting were so protected.)
Article 16 further provides that if a satisfactory alternative is not available and the derogation is not detrimental to the maintenance of the population of the species at a favourable conservation status in their natural range, member states may derogate in the interest of public health or public safety or for various stated reasons.
Regulation 3(4) provides that a local planning authority must have regard to the requirements of the directive.
The claimant argued that the council had not adequately considered the directive, even though the development would affect the bat roost and the bat population in the immediate area. The council contended that the only duty that regulation 3(4) imposed on a local planning authority at the planning stage is to note the existence of the directive and of the relevant bats, save perhaps also to state the need for a licence from Natural England.
The court held that regulation 3(4) obliged the council to consider the directive and to decide whether the derogation requirements could be met. If they could not, the council should have refused to grant planning permission. In the instant case, the officer’s report did not mention the directive and the regulations, as it should have done. It should also have drawn specific attention to the duty imposed on the council. That duty was not discharged simply by making the obtaining of a licence a condition of the grant of permission. The decision to grant planning permission had to be quashed.
In many ways, it is surprising that the officer’s report was silent in this way since clear guidance is to be found in this respect in para 116 of ODPM Circular 01/2005, which accompanies PPS 9: Biodiversity and Geological Conservation.
John Martin is a freelance writer
