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Protected Species and Planning Conditions.

Protected Species and Planning Conditions

Bat Surveys, Emergence Bat Survey

Protected species and planning conditions

So you have been asked to provide an ecology survey by your planner, architect or local planning authority (LPA). The stage 1 survey has highlighted an ecological issue.

Your immediate reaction is that it should be conditioned but it isn’t that simple! Although you see this as a pragmatic means of overcoming the issue, there are several reasons that your LPA shouldn’t be doing this.

Background

Protected species are those that are protected via domestic law (Wildlife and Countryside Act 1981 as amended) or the EU habitats and birds directives (as amended 2010). The LPA has a legal duty to consider protected species in the planning process and this has been enshrined in UK law by means of several court cases, with the best known of these being the ‘Woolley and Morge’ cases.

The outcomes of these cases made it clear that the LPA must engage with the law in their duties of granting planning permission. The Judge stated in the ‘Woolley’ case the following –

‘In order for a LPA to comply with regulation 9(5) it must “engage” with the provisions of the Habitats Directive. In that case the LPA had not done so and so the planning decision was defective.’ (Simpson, 2010).

Issues with Applying Planning Conditions

Due to these cases it has become clear that the LPA cannot condition further protected species surveys or licences (issued by Natural England (NE)). Put simply by conditioning the further surveys or licence the LPA is not engaging with the law.

Granted consents with conditions for further survey may not allow for the correct mitigation solution to be built in or adapted to the planned works.

For instance, bat droppings may have been found on the stage 1 survey. However until the further surveys are undertaken, there are several unknowns. Which species are present and is there more than one species? How many? How do they enter or exit the building? And so on (NE, 2016).

If this information is unknown and the suspected species is not present but another species is, their needs and the mitigation will be different. This could lead to the granted consent having to be changed, thus causing a re-submission of the planning in order to accommodate the protected species. This all takes time, money and creates headaches for the developer/owner.

Therefore conditioning any further surveys or licences can be more of a hindrance than a time-saver and in the long run may cause more problems than it solves.

The Solution

Put simply the solution to ensuing the planning application runs smoothly is to get ecology and any other surveys done early. This will allow you to identify any issues and impacts that you may have on site, implement mitigation e.g. avoid the issue or time works to avoid the issue and ensure that no criminal offences can occur.

Need a bat or ecology survey? Been asked to provide mitigation or need a licence to allow your development to continue.

Contact us today for a free quote here.

References

Natural England, (2016) Standing Advice, bats, online at https://www.gov.uk/guidance/bats-surveys-and-mitigation-for-development-projects#mitigation-and-compensation-methods, accessed 14/11/2016

Simpson, P, (2010), Dealing with protected species, online at http://www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=4995%3Adealing-with-protected-species&catid=63%3Aplanning-articles&Itemid=31, accessed on 14/11/2016