Protections with legs

This article focuses on the implications for property development should any animal falling within the definition of European protected species (“EPS”) be found on a potential development site. This demonstrates an increasing convergence of planning and environmental law.

Whilst the protections given to EPS have been in force for some time, the Scottish Government, planning authorities and indeed those objecting to development are now paying much closer attention to compliance. The implications may be that planning permission is refused, or that a permission issued may not, through the presence of EPS, be lawfully implemented.

The relevant law is the Habitats Directive (Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora), transposed into Scots law through the Conservation (Natural Habitats, &c) Regulations 1994. The Regulations establish a protective regime for EPS listed in scheds 2 and 4.

Good examples of EPS which may be relevant to urban and rural development are all species of bats, otters and great crested newts.

Do not disturb

Regulation 39 gives effect to article 12 of the directive by making it an offence to (a) deliberately capture or kill an EPS; (b) deliberately disturb any such animal; (c) deliberately take or destroy the eggs of an EPS; or (d) damage or destroy a breeding site or resting place of an EPS. Equivalent provisions apply in respect of protected plants.

Damage to or destruction of a breeding site or resting place of such animals is an offence of strict liability. The presence of EPS will normally be investigated under the system of environmental impact assessment (“EIA”), although it is not in every case that a search for EPS will have been scoped into the EIA, nor will EIA apply to all developments. Planning authorities may request a specific survey and mitigation report to accompany a planning application irrespective of whether EIA applies.  A planning authority will normally consult Scottish Natural Heritage for advice on the matter.

The failure of a planning application properly to examine the impact on EPS does not absolve the developer or the planning authority from its responsibilities under the directive and regulations.

High test

In the event that the presence of EPS is detected, a planning authority must have regard to the impact (temporary and permanent) of the development. The regulations through a licence regime envisage circumstances where it may be appropriate to authorise works of an imperative nature to proceed. The way the regime works is that the protective measures for EPS can be derogated from provided such action is carried out under and in accordance with the terms of a licence.

Applications for licences under reg 44 are made to the Scottish Ministers. The details of each licence require to be reported to the European Commission. In circumstances where development works are likely to result in an infringement of the protections under reg 39, a three-component test for a licence must be met as required by reg 44.

All three tests must be met. The first is that the purpose of the licence is for “Preserving public health or public safety or other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment”.

An applicant will require supporting evidence to demonstrate that one or more of these criteria are met. It is considered that “imperative reasons of overriding public interest” may be a very hard test to meet, and will turn on the significance of the development being considered.

The second test is that the Scottish Ministers must not grant the licence unless satisfied that there are no satisfactory alternatives. This test requires the applicant to demonstrate that a full range of alternatives have been examined and evaluated. There seems to be a degree of uncertainty whether this requires the applicant to show that the development could not happen elsewhere. If it does, it will be a difficult matter to demonstrate, as developments (particularly housing) can often be located elsewhere.

The last and third test is that the action authorised will not be detrimental to the maintenance of the population of EPS concerned at a favourable conservation status in their natural range.

Planning authorities must ensure they satisfy themselves that the proposal either will not impact adversely on EPS, or that in their opinion all three tests necessary for the eventual grant of a licence are likely to be satisfied. This is set out in interim guidance to all planning authorities. The reason is that a prospective developer would otherwise be unable to make practical use of a planning permission because no licence would be issued.

Alastair McKie, Partner and Head of Planning & Environment, Anderson Strathern LLP