The Habitats Directive in BANES A (brief) guide to the most commonly encountered legal issues

Habitats Directive EU Directive - adopted in 1992 Aim is to: “contribute towards ensuring biodiversity through the conservation of natural habitats and of wild faunal and fauna in the European territory of member states to which the Treaty applies”. Implemented into UK law by the Conservation of Habitats and Species Regulations 2010

2 pillars of protection Protection of designated sites (“European Sites”) i.e. bats Special Area of Conservation (“SAC”) Protection of designated species – ‘European Protected Species’ (“EPS”) i.e. bats, otters, great crested newt Applies to plan making as well as planning applications

Protection of species Presence of and effect upon EPS – material consideration Developer to conduct a survey if there “is a reasonable likelihood of the species being present and affected by the development.” EPS licence required from Natural England if EPS disturbed or damage/destruction of breeding site/resting place

Protection of Species (2) Habitats Regulations 9(3) “…a competent authority, in exercising any of their functions, must have regard to the requirements of the Directives so far as they may be affected by the exercise of those functions.” [my emphasis] Very wide ranging duty

Protection of Species (3) Supreme Court – Morge - LPA can grant planning permission unless: – EPS licence required; and – is unlikely to be granted by Natural England likelihood = consideration of ‘three tests’ – imperative reasons of overriding public interest – no satisfactory alternative – maintenance of favourable conservation status

Protection of European Sites Habitats Regulations - regulation 61 Where proposal likely to have significant effect on European Site: – Appropriate assessment – Grant permission only after having ascertained not adversely affect the integrity of the European site – Derogation only in very exceptional circumstances (Secretary of State veto) – Applicant has a duty to supply information

Protection of European Sites (2) Key points: Level of protection very high – best scientific knowledge Overriding aim – to maintain the integrity of the site