Hi,
A question to planning officers from an LPA ecologist if I may…?
As I am sure you are all aware, planning authorities are required to assess development proposals against the three derogation tests set out in Reg 53 of the Conservation of Habitats and Species Regulations 2010 (as amended) (the Habitats Regulations) when they are considering granting permission for a development that affects a European protected species (EPS) and which therefore needs a EPS licence from Natural England (NE). Your friendly LPA ecology consultee will normally (hopefully) be able to advise on the third of these (the favourable conservation status test – basically asking if the ecological mitigation is all OK), but I would be interested to get a feel for how different planning authorities go about considering the first two?
As a reminder, these two (often referred to as the ‘planning tests’) are:
- the consented operation must be 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’; and
- there must be ‘no satisfactory alternative’
Since 2011, and as guided by caselaw (Morge vs. Hampshire County Council), planning authorities have generally taken a fairly ‘light touch’ on these partly as NE would examine these in more detail when the applicants sought a formal EPS licence (although that is a bit of a generalisation, for the sake of brevity). LPAs only needed to have regard for these and could grant permission if they considered that NE would be not unlikely to grant the necessary licence.
However, NE no longer applies these planning tests for a lot of applications. The justification for this is that if the proposal has planning permission, the LPA will already have applied these tests.
So, I wonder:
a) were you aware of this?
b) are you assessing developments that affect EPS against these tests? and
c) how are you doing that?
Thanks in advance…
Adam Egglesfield
(Ecologist for Hampshire County Council)
