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The Woolley case
14th October 2009
Whilst not a change in the law, the Woolley case highlights the importance to local authorities of correctly applying the law.
Local planning authorities must apply the same three tests as Natural England when deciding whether to grant planning permission where species protected by European Law may be harmed.
The three tests are;
- the activity must be for imperative reasons of overriding public interest or for public health and safety;
- there must be no satisfactory alternative;
- favourable conservation status of the species must be maintained.
This judgment clarifies a legal duty which was already in existence although many planning authorities were not applying it correctly.
His Honour Judge Waksman QC, in the High Court in June this year, handed down this ruling in the case of R (on the application of Simon Woolley) v Cheshire East Borough Council concerning a development with a bat roost.
The species protection provisions of the Habitats Directive, as implemented by the Conservation Regulations, contain three ‘derogation tests’ which must be applied by Natural England when deciding whether to grant a licence to a person carrying out an activity which would harm a European protected species for example bats, great crested newts dormice or otters. This licence is usually obtained after planning permission has been granted. This judgment makes it clear that the local planning authority must also apply these three tests. Planners failing to do so, will be in breach of Regulation 3(4) of the Conservation Regulations.
The case related to an application for a judicial review of a decision to grant planning permission for a development in Wilmslow where an Edwardian Villa was to be demolished a three luxury apartments built. A bat roost had been identified at the original property following a survey. The bats issue was raised but was not given as a reason for refusal. It was common ground that in order to demolish the building a licence from Natural England was needed. This was granted and the building demolished. The judicial review was brought by Mr. Woolley claiming that, amongst other things, the planning authority had failed in its duty by failing to give consideration to the three derogation tests. The court agreed.
When dealing with cases where a European Protected Species may be affected, a planning authority…has a statutory duty under Regulation 3(4) to have regard to the requirements of the Habitats Directive in the exercises of its functions.
This is not a change to the law and as usual discussing your development at an early stage with your ecologist will make sure that these three tests are taken into account where European Protected Species may be present.
