The Habitats Directive in BANES A brief guide

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