A local planning authority has a statutory duty under Regulation 9(3) of the Conservation of Habitat and Species Regulations 2010 (“the 2010 Regulations”) to have regard to the requirements of the Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive”).
Paragraph 99 of the Biodiversity and Geological Conservation: Circular 06/205 (“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…”
It is for the local planning authority to establish whether the proposed development is likely to offend against Article 12(1) of the Habitats Directive. If so the planning authority should consider whether the proposal would be likely to be granted a licence.
In Bagshaw & Anor v Wyre Borough Council  the site was land at Hall Lane, Great Eccleston, Preston. The claimants were village residents.
Planning permission was granted for the “the erection of 18 dwellings together with associated infrastructure…”
The ground for seeking judicial review concerned protected bats.
The claimants said the council’s reasonings were inadequate in their treatment of the protected species issue and consultation responses.
The Lancashire County Council ecologist produced a report whose recommendations included a requirement that it be shown that the development could deliver adequate mitigation and compensation for the loss of Habitat of Principal Importance (hedgerow), ideally including “the retention of a significant length of the existing roadside hedge in addition to the creation of a new hedgerow elsewhere in the development.”
The claimants’ main contention was that the ecologist had requested further information on bats before the planning committee could reach a judgment in accordance with the relevant legal tests.
As no further information had been provided, and the ecologist had not changed her opinion on bats, the claimants said the planning officer’s report to the planning committee misled the planning committee in respect of the actual stance of the ecologist.
She had required that further information on the impact on bats to be submitted prior to determination.
Furthermore the council’s Head of Planning had failed to explain to the committee why the ecologist was incorrect and how it was that adequate information had in fact been submitted as to the amount of hedgerow required to be removed and the impact of such a removal on bats.
The planning officer’s report highlighted confusion as to the amount of hedgerow to be removed. What went before the planning committee could hardly be described as “the retention of a significant length of the existing roadside hedge”.
The combination of the reduction in height and length meant the committee and the court simply could not assess the ecological impact of the reduction in hedgerow.
So the Decision Notice was directed to be quashed as:
(a) The planning officer’s report significantly misled the planning committee on the position of the county ecologist.
(b) The council had not engaged with the requirements of the Regulations, the Habitats Directive and the Circular.
This blog is posted as a matter of general interest. It does not remove the need for bespoke legal advice in individual cases.