“Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12, 13,14 and 15 (a) and (b): (a) in the interest of protecting wild fauna and flora and conserving natural habitats; (b) to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property; (c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment; (d) for the purpose of research and education, of repopulating and re-introducing these species and for the breedings operations necessary for these purposes, including the artificial propagation of plants; (e) to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities.”
“(4) Without prejudice to the preceding provisions, every competent authority in the exercise of any of their functions, shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions.”
“39 (1) It is an offence-… (b) deliberately to disturb any [European protected species] (d) to damage or destroy a breeding site or resting place of such an animal. (1A) For the purposes of paragraph (1) (b), disturbance of animals includes in particular any disturbance which is likely- (a) to impair their ability- (i) to survive, to breed or reproduce, or to rear or nurture their young; or (ii) in the case of animals of a hibernating or migratory species, to hibernate or migrate; or (b) to affect significantly the local distribution or abundance of the species to which they belong.” (a) to impair their ability- (i) to survive, to breed or reproduce, or to rear or nurture their young; or (ii) in the case of animals of a hibernating or migratory species, to hibernate or migrate; or (b) to affect significantly the local distribution or abundance of the species to which they belong.”
“(38)…….On the other hand, while “disturbance” under Article 6 (2) [relating to the preservation of special areas of conservation, such as SPAs] must be significant, this is not the case in Article 12 (1), where the legislator did not specifically add this qualification. This does not exclude, however, some room for manoeuvre in determining what can be described as disturbance. It would also seem logical that for disturbance of a protected species to occur a certain negative impact likely to be detrimental must be involved. (39) In order to assess a disturbance, consideration must be given to its effect on the conservation status of the species at population level and biogeographic level in a Member State…..For instance, any disturbing activity that affects the survival chances, the breeding success or the reproductive ability of a protected species or leads to a reduction in the occupied area should be regarded as a “disturbance” in terms of Article 12. On the other hand, sporadic disturbances without any likely negative impact on the species, such as for example, scaring away a wolf from entering a sheep inclosure in order to prevent damage, should not be considered as disturbance under Article 12. Once again, it has to be stressed that the case-by-case approach means that the competent authorities will have to reflect carefully on the level of disturbance to be considered harmful, taking into account the specific characteristics of the species concerned and the situation, as explained above”
"27...the very clear guidance set out in paragraph 116 of ODPM Circular 06/05 which (a) refers to the giving of weight "to reflect these requirements" and (b) contemplates that as a result of taking account of the Directive the authority might refuse permission altogether. Indeed, Mr. Carter conceded, as he was bound to do in order to give any meaning to the last part of paragraph 116, that in a serious enough case, like an application to build a supermarket on a brown field site which would involve considerable disruption to a local bat population, the authority might refuse permission where there was adequate space somewhere else on the brown field site. But if that is right, it recognises that the local authority should engage with the provisions of the Directive. In my view that engagement involves a consideration by the authority of those provisions and considering whether the derogation requirements might be met. This exercise is in no way a substitute for the licence application which will follow if permission is given. But it means that if it is clear or perhaps very likely that the requirements of the Directive cannot be met because there is a satisfactory alternative or because there are no conceivable "other' imperative reasons of overriding public interest" then the authority should act upon that, and refuse permission. On the other hand if it seems that the requirements are likely to be met, then the authority will have discharged its duty to have regard to the requirements and there would be no impediment to planning permission on that ground. If it is unclear to the authority whether the requirements will be met it will just have to take a view whether in all the circumstances it should affect the grant or not. But the point is that it is only by engaging in this kind of way that the authority can be said to have any meaningful regard for the Directive. The very attenuated duty suggested by Mr. Carter for the Council is in truth, no duty at all. 28. I have considered whether the Council could discharge its duty simply by making the obtaining of a licence a condition of the grant of permission. But that is not sufficient. After all, if no licence is obtained it is a criminal offence so there is a clear incentive to obtain one anyway. And the making of a condition is not in truth engaging with the Directive."
"the majority of bats recorded on the site ... are known to be tolerant of street lighting for foraging but not for commuting ... lighting can attract insects and provide a focus of foraging activity for bats that are tolerant of light. However, this can also result in adjacent habitats containing reduced invertebrate numbers, degrading the quality of the foraging habitat for less light tolerant species, such as Myotis sp. of which low numbers have been recorded on-site."
“Copies of the agenda for a meeting of a principal council and, subject to subsection (2) below, copies of any report for the meeting shall be open to inspection by members of the public at the offices of the council in accordance with subsection (3) below.”
"It is important that those who make determinations under the planning acts are familiar with sections 70(2) and 54A of the 1990 Act and apply the test imposed by Parliament. It follows that a planning officer reporting to and advising council members who are to make a relevant decision must keep the test in mind in the information and advice he provides and in the manner in which he provides it. Clear mindedness and clarity of expression are obviously important. However that is not to say that a report is to be construed as if it were a statute or that defects of presentation can often render a decision made following its submission to the council liable to be quashed. The overall fairness of the report, in the context of the statutory test, must be considered. It has also to be borne in mind that there is usually further opportunity for advice and debate at the relevant council meeting and that the members themselves can be expected to acquire a working knowledge of the statutory test. In my view the report itself in the present case was not only comprehensive in its treatment of the facts but sufficiently advised the Committee upon the statutory and policy framework within which the decision was to be taken. The Committee were adequately advised and their decision should stand. I would dismiss these appeals."
“In my judgment an application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken.”
“Taken in isolation the reports to members appear to be balanced and objective, but the more familiar one becomes with the papers as a whole the more is this impression dispelled. Council members are busy; meetings are held in the evening and last, so far as the evidence goes, two or three hours. There are large agenda to get through. Reports are many (20 or more in most of the meetings with which this case is concerned), often accompanied by even longer appendices. Members rely on officers to produce fair, accurate and objective summaries. It is not sufficient to leave members to ferret out some point of significance or to discover some imbalance in the report from studying an appendix. One cannot expect perfection in the field of local government administration - or in any other - but affected citizens and representative organisations are entitled to expect objectivity in those whose duty it is to convey to decision - makers what they have suggested.”
“The surveys also identified the presence of a diversity of bat species, which are protected, using the trees alongside the track for foraging. An Updated Bat Survey Method Statement and Mitigation Strategy has been submitted with measures to ensure there is no significant adverse impact to them from these proposals.”
"We are slightly dumbfounded by the unfounded suggestion in the Claimant's skeleton argument (paragraph 17) that Natural England does not understand the ramifications of the Habitats Directive or the Habitats Regulations (as amended) for EPS. Natural England is the government’s statutory advisor on such matters. Its officers work on a daily basis with both the European and UK legislation and associated guidance, many are experts in this area, all are more than familiar with the statutory duties and tests that need to be applied when it is consulted in relation to a planning application for development and we would strongly refute any suggestion to the contrary."
"Every public authority must, in exercising its functions, have regard, so far as is consistent with a proper exercise of those functions to the purpose of conserving biodiversity"
"These surveys identified the presence of additional species of bats compared to the 2008 surveys, including Nathusius’ pipistrelle and Myosotis sp. The surveys also identified greater levels of foraging and commuting activity along the disused railway. No roost sites were identified that are likely to be impacted by the scheme, although the presence of a Common pipistrelle roost was confirmed adjacent to the works. As a result of the additional surveys, a greater level of confidence can be given to the predicted impact on bats. It is probable that there will be a short term moderate adverse impact on bats which can be reduced to slight adverse through mitigation. With successful mitigation, the long-term impact on bats of the works is anticipated to be slight adverse, and no significant impacts to bats are anticipated."
“In the present case the critical issue is whether the proposed development would, directly or indirectly, affect the bats in the sense of deliberately disturbing them as set out in 12 (1) (b) or in the deterioration or destruction of their breeding sites or resting places [in 12 (1) (d)]” (the bracketed addition was at the invitation of Mr. George at the hearing). It is argued in paragraph 22 of the original Claimant’s Skeleton Argument (CSA) that “It was the shared view of the Commission, UK and ECJ that Article 12 (1) (d) protected breeding sites and resting places not only against activities having a direct effect on them but also indirect impairment”
"Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development."
“Whether a proposed development is likely to have significant effects on the environment involves an exercise of judgment or opinion. It is not a question of hard fact to which there can only be one possible correct answer in any given case. The use of the word " opinion" in reg.2(2) is, therefore, entirely apt. In my view, that is in itself a sufficient reason for concluding that the role of the court should be limited to one of review on Wednesbury grounds.”
“Again, it seems to me that it is perfectly proper for an officer to conclude that a particular development will have no significant adverse environmental effects and rely upon the fact that there will be mitigating measures. It always will depend on the circumstances. In this case, the mitigating measures were tried and tested measures commonly adopted for difficulties of this kind.”
"It is to be borne in mind that the test for the judicial review court is the irrationality test. Provided the local planning authority asked themselves the right question and arrived at an answer within the bounds of reason and the four corners of the evidence before them, then it seems to me their decision cannot be categorised as unlawful. Mr Clayton has been at pains to emphasise that the context of the issue here is one that engages the law of the European Union; that is of course right. But there are boundaries to the requirement for an EIA, set as surely by the Directive as by the Regulations. Much has been made of the suggested impact of EU law, but in my opinion I think there is a real risk of over-complicating what in essence is a relatively straightforward matter. If on the question whether the proposed development is likely to have significant environmental effects there is anything of substance to argue, then the process of the Directive and the Regulations requires democratic public participation in that argument. This is, of course, a very important legal requirement as Lord Hoffman's opinion in Berkeley demonstrates. But if in truth there is nothing of substance to dispute, having regard, it may be, to plainly effective remedial measures, whether or not part and parcel of the development itself, then as I see it there is no requirement for an EIA. This case, as the LPA were entitled to find, is in the latter category. In short, they were entitled to conclude that there were no issues that required determination through the EIA process."
“ As it seems to me, it is clear that each case is fact-sensitive: Thus, in Lebus and in Gillespie , the particular facts of those cases justified the quashing of the planning permission in each case. They also concern, in contrast with the present case, prospective measures, rather than controls that had been tried and tested in relation to the very development under consideration. That distinction is an important one, because the development that was the subject of the screening opinion in this case was a continuation of an existing use, with no significant or other additional features making the environmental considerations more serious than those that were the subject-matter of the 2005 permission.”
“..."likely" was considered in a different European environmental context (namely EC Directive No 79/407, the "Birds Directive") by Sullivan J in R (Hart District Council) v The Secretary of State for Communities and Local Government[2008] EWHC 1204 . There he said (at [78]):"To an English lawyer, a need to establish a likelihood imposes a more onerous burden than a need to establish risk. The concept of a 'standard of proof is of little if any assistance in environmental cases, but the nearest analogy would be the difference between the balance of probability (more likely than not) and the real risk standards of proof...." Although concerned with a different directive, that at least confirms and explains that, in a European environmental context, "likely" does not necessarily mean "more probable than not". In the context of the ElA Directive and Regulations, "likely to have significant effects on the environment" is a phrase that has to be construed as a whole: and I respectfully agree with Dyson LJ in ]ones that, rather than a hard-edged question of fact, it involves a question of planning judgment and opinion such that, in any set of circumstances, there is a range of valid answers. For a development to be likely to have significant environmental effects, it is certainly not necessary for it to be more likely than not that the development will have particular environmental consequences. For example, if a development has the potential for an environmental catastrophe, before the relevant provisions are brought into play it does not have to be more probable than not that such an event will occur in the future. As well as any inevitable environmental consequences that will flow from a development, the phrase requires consideration of future environmental hazards or risks. That in turn requires consideration of both the chance of an effect occurring, and also the consequences if it were to occur.”
“If the argument of the Spanish Government were upheld, the effectiveness of Directive 85/337 could be seriously compromised, since the national authorities concerned would need only to split up a long-distance project into successive shorter sections in order to exclude from the requirements of the Directive both the project as a whole and the sections resulting from that division.”
“Lastly, the objective of the EIA Directive cannot be circumvented by the splitting of projects. Where several projects, taken together, may have significant effects on the environment within the meaning of Article 2(1), their environmental impact should be assessed as a whole. It is necessary to consider projects jointly in particular where they are connected, follow on from one another, or their environmental effects overlap (seeCase C-392/96 Commission v Ireland, paragraph 76 andCase C-2/07 Abraham and Others, paragraph 27).”
“For the purposes of determining whether EIA is required, a particular planning application should not be considered in isolation if, in reality, it is properly to be regarded as an integral part of an inevitably more substantial development. In such cases, the need for EIA … must be considered in respect of the total development.”
“The applicant comments that the proposal has been screened under the Environmental Impact Assessment Regulations and it was concluded the proposal is not an EIA development as it is not likely to cause significant effects on the environment. The screening opinion was requested before the application was submitted and was accompanied by a comprehensive Screening Report which concluded that there would not be significant environmental effects, but also identified the specific area where detailed environmental information was required to accompany the planning application. These specific areas were nature conservation and biodiversity, landscape and visual impact, contaminated land, noise and air quality. The proposals subject to this planning application are not significantly different to the proposals put forward in the Screening Report and the application is accompanied by an environmental report covering the areas identified.”