Ten years ago it was not uncommon for planning proposals affecting structures (such as mature trees, bridges or buildings) to be approved with conditions relating to either undertaking bat surveys or preparing for detailed mitigation strategies in advance of works proceeding. However, recent case law (Woolley 2009 and Morge 2011) has made it clear that Local Planning Authorities must be satisfied that favourable conservation status of European Protected Species (including bats) can be maintained before granting planning permission. Demonstrating the maintenance of favourable conservation status is one of three Habitats Directive[i]"derogation tests" relating to European protected species that the Local Planning Authority must be satisfied are met[ii]to be able to grant planning permission.
Ecosulis has noted a significant increase in the number of Local Planning Authorities now asking for detailed bat surveys in support of planning applications if any structures are to be directly or indirectly affected. In addition, the level of detail being requested by Local Planning Authorities regarding mitigation strategies prior to planning being determined has also increased.
To avoid costly delays at the planning stage, it has become increasingly important for developers to demonstrate that they have considered the following questions pre-application:
- Are bats likely to be present?
- If presence is likely, what is the likelihood of bats being affected?
- What detailed, site specific mitigation is required to maintain favourable conservation status of bats?
For further information on how to consider these questions, please click on the links above or contact us.
[i]The “Habitats Directive” means Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora. Regulation 9 (exercise of functions in accordance with Habitats Directive) of the Conservation of the Conservation of Natural Habitats and Species 2010 (which transposes the Habitats Directive into UK law) extends to England, Wales and Scotland.
[ii]The three “derogation tests” are:
a) the development must be for one of the reasons listed in regulation 53(2) of the 2010 Regulations. This includes imperative reasons of overriding public interest of a social or economic nature or of a public health and safety nature
b) there must be no satisfactory alternative, and
c) favourable conservation status of the European Protected Species in their natural range must be maintained