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.
This is a ruling that was noted on the Bat Conservation Trust's website a little while ago. The ruling is of interest since it applies to all European Protected Species (EPS), not just bats. And yes, that includes great crested newts.
In order to ensure that the possible presence of great crested newt is adequately considered, it is essential that appropriate survey work is undertaken. Such survey work should be undertaken as early as possible (certainly before the final design has been agreed upon). If great crested newts (or any other EPS) are confirmed present either on or close to the proposed development site, the likely impacts of the scheme will need to be fully considered. It may be necessary to consider whether there are favourable alternatives to the proposed development that avoid harm - this could mean abandoning the current site and building elsewhere. Developers who fail to engage the services of a professional ecological consultant early in the planning process are significantly increasing the chances that their project will be refused planning permission.
What is clear from the judicial review is that it will no longer be possible for local planning authorities to simply condition that an EPS licence be obtained. Such an action would leave developers at risk from subsequent legal challenges that may result in planning decisions being overturned.