Environment Bulletin: Legal duty of Local Planning Authorities and Planning Inspectors to European Protected Species in planning decisions

There has been a flurry of caselaw since 2009 on interpreting the legal duty of Local Planning Authorities (LPAs) (and indeed of Planning Inspectors) to European Protected Species (EPS) when determining planning permissions.

EPS are the species with the highest level of legal protection (under the Habitats Directive) such as bats, great crested newts, dormice and otters.

The legal duty states that a "competent authority" (which includes LPAs and Inspectors) must have regard to the Habitats Directive in the exercise of its functions.

Until the first case, R (Woolley) v Cheshire East Borough Council and Millennium Estates Limited [2009] EWHC 1227 (Admin), LPAs paid fairly scant attention to EPS when determining planning applications. This changed significantly under Woolley, which imposed onerous requirements on LPAs. It ruled that LPAs, as competent authorities, had to consider, when granting planning permission, whether developments would be likely to lead to criminal offences against EPS and, if this were so, whether a licence from Natural England (NE) would be likely to be granted (following planning permission) to allow delivery of the development.

This second question depended on three "derogation tests" being met which the LPA should consider. Woolley said that planning permission should only be granted where EPS would not be affected or alternatively where the LPA had satisfied itself that a NE licence would be granted. If there was a risk that a NE licence would not be granted then the LPA should refuse the permission.

Since the Woolley case there have been a series of court judgments which have pulled back from this onerous and "hands on" approach.In 2011, the Supreme Court ruled in R (Morge (FC)) v Hampshire County Council [2011] UKSC 2 that the position under Woolley went too far and that the LPA was in fact not expected to duplicate the licensing role of NE. Morge said that a LPA should only refuse planning permission where a criminal offence relating to EPS is likely to result from the development and where a licence from NE is unlikely to be granted. In all other cases (eg where the LPA was in doubt as to whether NE would grant a licence) EPS should not present a bar to planning permission.A further case of R (Prideaux) v Buckinghamshire County Council and FCC Environment UK Ltd [2013] EWHC 1054 (Admin) summarised the Supreme Court's position in Morge

"As the final decision in Morge makes clear, regulation 9 (5) does not require a planning authority to carry out the assessment that Natural England has to make when deciding whether there would be a breach of article 12 of the Habitats Directive or whether a derogation from that provision should be permitted and a licence granted. If a proposed development is found acceptable when judged on its planning merits, planning permission for it should normally be given unless in the planning authority's view the proposed development would be likely to offend article 12(1) and unlikely to be licensed under the derogation powers (see paragraph 29 of Lord Brown's judgment in Morge)."

It is clear from the run of caselaw since 2009, including this one, that a LPA is not required to consider the three derogation tests in any detail when deciding if a NE licence is or is not likely to be forthcoming; and Cheshire East (2014) is consistent with this. Like previous cases, there has been a presumption from the judge that if NE had had a concern then NE would have made its position clear. The problem with this approach is that NE's policy is not to engage with EPS issues in planning applications. This raises again the legitimacy of NE's approach.

This case however makes a further point. Even where (as here) there was no proper EPS survey information, the judge still felt that it was acceptable for the inspector to proceed on the basis that (i) there may be EPS on the site; (ii) the proposed development might lead to criminal offences against EPS; and (iii) there was likely to be room within the development site for compensatory habitat ie but without any detailed assessment of whether the "maintenance of favourable conservation status" derogation test, or the other two derogation tests, would in fact be met. This would suggest that EPS survey data is not required. This case could therefore be relied on by developers to argue that full EPS survey data is not needed before determination of a planning application, particularly where there is scope for compensatory habitat within the development site;

Such a position would nevertheless be at odds with NE's standing advice and Circular 06/2005 which requires surveys in advance of planning permission.

The position would also be at odds with Morge (where full bat survey data was provided) and the other recent case of Bagshaw v Wyre Borough Council [2014] EWHC 508. In Bagshaw it was stated: "The Defendant has a statutory duty under regulation 9(3) of the 2010 Regulations to have regard to the requirements of the Habitats Directive. Paragraph 99 of the Circular states:- "It is essential that the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before planning permission is granted…" I accept that the Defendant established the presence or otherwise of protected species, namely the bats.

However I do not accept that they established "the extent that they may be affected by the proposed development." As Lord Brown said in R (Morge) v Hampshire County Council at paragraph 19 "whilst it is true that the word "significant" is omitted from article 12(1)(b)….that cannot preclude an assessment of the nature and extent of the negative impact of the activity in question upon the species and, ultimately, a judgment as to whether that is sufficient to constitute a "disturbance" of the species." I bear in mind fully what Baroness Hale said at paragraph 36, namely that the court should not impose too demanding a standard upon officers' reports, but she also said that the reports "obviously have to be clear and full enough to enable them (i.e. the planning authority) to understand the issues and make up their minds within the limits that the law allows them." The Defendant, in my judgment, did not do that here". These points do not appear to have been made to the judge in the Cheshire East 2014 case. If they had been, perhaps the judge would have decided the case differently.

Our view is that, despite this recent 2014 Cheshire East case, the Morge case is likely to be the preferable authority on the need for survey data, although this 2014 case will no doubt be relied upon by developers going forward.