Woolley ruling

The case described here confirmed that local planning authorities must apply the same three tests as Natural England when deciding whether to grant planning permission when one or more of the European protected species offences under the Habitats Regulations may be committed if a planning permission is granted.

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; and
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 2010, 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 Habitats 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 otherwise lead to an offence under provisions protecting species in the Habitats Regulations 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 when determining a planning application. Planners failing to do so will be in breach of the Habitats 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 and three luxury apartments built. A bat roost had been identified at the original property following a survey. The bat 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 whilst considering the planning application. The court agreed, confirming that, "...a planning authority…has a statutory duty under Regulation 3(4) to have regard to the requirements of the Habitats Directive in the exercise of its functions when dealing with cases where a European Protected Species may be affected."