….. and how to overcome the legal hurdles
When developers find that they have “European protected species” (“EPS”, such as bats, great crested newts or otters) on or near to their development sites they know they are facing the prospect of expense and delay and potentially even refusal to proceed due to the strict legal protection of these species.
So how can a developer best ease the regulatory processes they face and work within the law nevertheless to realise their development objectives?
The following are some key pointers which will assist:
1. Undertake pre-purchase ecological surveys: It is good practice for a developer to undertake ecological surveys of land before the land is acquired – that way the developer will know in advance whether there are likely to be protected species regulatory hurdles to overcome before development can begin.
2. Retain a “commercial” ecological consultant: Developers should retain an ecological consultant with commercial understanding and who is up to date with the regulatory / legal framework which applies to EPS – some consultants are not and are therefore likely to give their clients inaccurate (often over-conservative) advice.
3. Ensure clarity as to whether a proposed development is likely to lead to any criminal offence against an EPS: An ecological consultant may identify the presence of EPS at the site and also conclude that “harm” of one kind or another will come to them as a result of the project. Developers need to be aware, however, that the consequent regulatory hurdles they could face in terms of (i) obtaining planning permission; and (ii) then obtaining an EPS licence from Natural England (“NE”) / Scottish Government to allow the development to proceed will only arise if a criminal offence against the species is likely to result from the development. Note that not all “harm” to an animal will necessarily amount to a criminal offence being committed. So developers need their consultants to be clear on which criminal offences, if any, are likely to be triggered by a proposed development. If no criminal offence will arise then the developer can avoid the regulatory hurdles which would otherwise cause him significant delay and expense. Legal advice will be worth taking in borderline or difficult cases or where delay / expenditure are particularly important to avoid.
4. Where possible (following legal / ecological advice) submit a letter to the Local Planning Authority (“LPA”) explaining that a proposed development can be carried out without triggering a criminal offence against the EPS: Developers should consider alteration of a development proposal to avoid criminal offences being committed against EPS. If, for example, a bat roost is present in the roof of the barn to be converted, is there a way of carrying out that conversion so as to leave the roost relatively untouched? If any criminal offence to an EPS can be avoided by modifying the proposal then EPS will not present a hurdle to the grant of planning permission and the developer can also avoid the need for an EPS licence. Significant time and money can therefore be saved. Where this is so, a letter should be submitted to the LPA presenting the legal and ecological reasons for how the project can be undertaken without committing a criminal offence against the EPS. The LPA may seek the advice of the relevant nature conservation body (NE / Scottish Natural Heritage) in respect of the letter but, assuming the letter is well reasoned, that body can be expected to agree. This way the EPS should not present any further hurdle to the development.
5. Where the ecological / legal advice is that a criminal offence against an EPS will result from a proposed development, provide a letter to the LPA setting out why the licensing authority is nevertheless likely to grant an EPS licence: If a criminal offence against an EPS will result from a proposed development then recent case law has shown that planning permission should only be refused on EPS grounds where an EPS licence is not likely to be granted. Therefore it is in the developer’s interest to submit to the LPA its legal / ecological arguments as to why the project satisfies the 3 licensing tests such that a EPS licence is likely to be granted: ie why (i) the project is needed for “imperative reasons of overriding public interest” or for “public health / safety”, (ii) there is “no satisfactory alternative”; and (iii) the “favourable conservation status of the species will be maintained” by provision of compensatory habitat for the species. The first two tests are legal, not ecological, in nature and so it is unlikely that a consultant ecologist will be in a position to provide the relevant arguments. Take legal advice where possible.
6. Take advice as to the acceptability of proposed protected species planning conditions: LPAs may seek to impose planning conditions which can make the subsequent EPS licence application process problematic. Take legal advice as to their acceptability.
7. When making an EPS licence application prepare carefully the arguments to be made to satisfy the licensing tests in particular (i) and (ii) (see under 5. above): Under European law and guidance the three licensing tests in 5. above must be met before an EPS licence can be granted. However this does not preclude the possibility of developments being licensed where they lead to financial and commercial gain. Many such developments will give rise to other benefits which do allow the project to meet the licensing requirements. EPS licence applications need to be drafted carefully in particular to deal with tests (i) and (ii) of 5. above, taking into account the relevant European Court caselaw and guidance. Where the licensing body unreasonably refuses to grant the licence then that decision ought to be challenged.
Associate, DLA Piper UK LLP (English and Welsh qualified solicitor)
tel 0114 283 3353
mob 07968 559059
Penny Simpson is an environmental lawyer at DLA Piper UK LLP based in Sheffield and specialises in advising her clients on legal issues relating to the natural environment. She advises many developers on protected species issues, in particular in relation to EPS strategy and EPS licence applications; and others on protected site and “appropriate assessment” issues. She also advises some environmental NGOs and public bodies on conservation law and policy issues and is increasingly assisting Local Planning Authorities to understand how they should discharge their legal duties as regards EPS and protected sites and species. She provides many training courses on these issues for consultants and LPAs. In Scotland DLA Piper Scotland LLP has offices in both Edinburgh and Glasgow who can provide legal advice on these issues.