Bats & Listed Building Consents - Public forum - Planning Advisory Service (PAS)

Will You are correct. Informative is the way forward. You cannot reasonably require, nor refuse, the application because of the lack of a bat survey.

Beg to differ If the bat is a protected species bat then European law - the habitats directive - applies. SO demolition or alteration through partial demolition could affect habitat. But only if so. If you know there are bats but dont know the species only a bat survey can prevent the LPA from breaking the law. http://www.naturalengland.org.uk/ourwork/planningtransportlocalgov/spatialplanning/standingadvice/legislation.aspx See the Wooley v Cheshire East case http://www.naturalengland.org.uk/Images/WoolleyVsCheshireEastBC_tcm6-12832.pdf Very clear, the decision makes clear a condition wont suffice See flowchart here - applies, because of European law, to all development consent decisions by the LPA, including listed building consent and CA consent. Also the Crow ACT biodiversity duty applies http://www.naturalengland.org.uk/ourwork/conservation/biodiversity/protectandmanage/duty.aspx

Sorry the flowchart is on the Natural England page.

But the Planning Permission and Listed Building Consent regimes are 2 very distrinct processes under 2 different pieces of legislation. The Wooley case only seems to refer to the planning application process in which all issues are 'up for grabs' and not the LBC process where only the heritage element can be assessed. An LBC consent doesnt proclude the need for any form of Protected species licence, which would need to be resolved before commencement of works anyway. So I would tend to agree with Martin and Will (above).

We have taken Counsels opinion on this very point and the advice was as set out by Andrew Lainton. In essence, Section 16 and 74 (3) of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides that the LPA may grant or refuse an application for LBC or CAC, or grant consent subject to conditions. S16 further provides that, in making a determination in relation to a Listed Building, the LPA shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest. There is no express requirement to have regard to protected species within those sections. However, those provisions cannot be read in isolation. It is a fundamental principle of public law that a public body is required to take into account all relevant considerations when making a decision. Further, any obligations imposed by other legislative provisions must be taken into account where applicable. Regulation 9 (5) of the Conservation of Habitats and Species Regulations 2010 (“the Regulations”) provides that, “A competent authority, in exercising any of their functions, must have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions”. By virtue of Regulation 7, a Local Plannning Authority is a “competent authority” within the meaning of the Regulations. Where the Council grants LBC or CAC, it is exercising one of its functions. It follows that it is required, when granting such consent, to “have regard” to the requirements of the Habitats Directive if those requirements may be affected by the grant of LBC or CAC. The advice we received was that this duty can not be discharged by including an informative on the consent reminding the Applicant of its duties under the relevant legislation. This is because the LPA is itself required to consider whether the requirements of the Directive and Regulations are met in determining whether consent should be granted at all. Indeed, in the Woolley case it was expressly found that even a condition that required a licence to be granted after consent had been granted would not be sufficient, because the LPA would not have engaged with its duty under Regulation 9 (5) at the stage when it was deciding whether to grant consent. In appropriate cases, it is therefore likely that relevant surveys will be required from the Applicant so that the impact on species protected by the Directive and the Regulations can properly be assessed by the LPA prior to the grant of consent. Hope ths helps. Ian Kilby

Thanks Ian thats pretty definitive. Have you sent the opinion to Natural England so they can update their standing advice?

In case it helps, my authority generally agrees with the advice in Andrew and Ian's posts. Has anyone been involved with/come across a situation where an application for Listed Building Consent has been refused on these grounds? I would be interested to read the report and notice.

Given Counsel's advice presumably the same applies to applications for Building Regulations approval which may not require planning permission. Does this open a whole new can of worms (bats)?

Our legal advice has been consistent with Andrew's and Ian's - principally that because bats are protected by European law, this is 'senior' to the LB Act and therefore we must consider it. Whilst LBC is dealt with by separate legislation, it is still a 'planning application' covered by the 'planning acts'. As a result, our bat information requirements are now largely the same as for a Natural England license - Phase 1 to verify existence of bats, and then also Phase 2 including full mitigation if bats are found - all before approval and NOT under condition. This is a constant issue for us now as a large proportion of LBs are 'favourable habitats', and regularly we have had to get applicants to withdraw their LBC apps because of not having sufficient bat info. I can't remember if we've actually refused LBC yet, but I'll check. Invariably applicants will withdraw as they seem to accept that it's not negotiable.

Please see attached appeal decision from 2010. We refused Householder and LBC on two counts - 1. LB impacts; and 2. insufficient bat information. The inspector dismissed the appeals on both counts.

Andrew, thanks for the post. Did your notice of refusal of LBC include both reasons? The Inspector's decision could be a bit clearer on which reason relates to the planning permission and which relates to the LBC!

Thanks for all your responses, in particular the legal advice from Andrew and Ian's appeal decision. We've taken the advice you gave here and have requested the bat survey, which I believe the applicant has undertaken. Taking the legal advice further Andrew, would it be fair to say that where a proposal is permitted development but requires Building Regulations Approval, colleagues in BC should be made aware?