“Objectors consider that the loss of green space and habitat is detrimental to the community. It is noted, however, that the gardens and landscaped areas are privately owned and would be replaced by, albeit in some instances smaller, similar provision. Objectors have stated that the central garden area has been used by the public throughout the time the development has existed as has the footpath through the development. Given that the current legal status of the land is as privately owned and that the footpath is a permissive route, this is an adverse impact that can be afforded only limited weight in the balance.”
“‘conservation status of a species’ means the sum of influences acting on the species that may affect the long-term distribution and abundance of its populations within [the European territory of the Member State to which the Treaty applies] The conservation status will be taken as ‘favourable’ when: – population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats; and – the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future; and – there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis.” – population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats; and – the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future; and – there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis.” iii) In England, the Habitats Directive is given effect by theConservation of Habitats and Species Regulations 2010 (SI 2010 No 490) (“the Habitats Regulations”). To ensure compliance with the Directive, the Habitats Regulations, (a) make it a criminal offence deliberately to disturb or to damage or destroy the breeding site or resting place of an EPS (regulations 40 and 41); (b) impose a primary duty on “the appropriate authority” and “the nature conservation bodies” to exercise its functions relevant to nature conservation “so as to secure compliance with the requirements of the [Directive]” (regulation 9(1)); and (c) impose a duty on any “competent authority” to have regard to the requirements of the Directive so far as they may be affected by the exercise of their functions (regulation 9(3)). In respect of the planning application with which this claim is concerned, the Council, as the relevant planning authority, was a “competent authority”
“Derogation provisions need to be interpreted narrowly; they must deal with precise requirements and specific situations. It is up to the competent authority with the territorial overview to ensure that the totality of derogations in a Member State does not lead to effects that go against the objectives of the Directive.”
“20. The third reason for granting a derogation covers ‘imperative reasons of overriding public interest’. This concept is not defined in the Directive but the paragraph mentions public interest reasons such as public health, public safety, reasons of social or economic nature, reasons with beneficial consequences of primary importance for the environment, and also covers other reasons not mentioned, as the list is not exhaustive. 21. In other fields of Community law where similar concepts appear, for instance the free movement of goods, the European Court of Justice has held overriding requirements or public interest reasons can justify national measures restricting the principle of freedom of movement: it has been recognised public health, environmental protection, and the pursuit of legitimate goals of economic and social policy as such imperative requirements. 22. The same concept also appears in article 6(4) of the Directive [which concerns special areas of conservation, including the interference with such sites and derogation from a Member State’s obligations in similar terms to article 16]. So far, the Court has not given clear indications for the interpretation of this specific concept…. 23. First, it is clear from the wording that only public interests, promoted either by public or private bodies, can be balanced against the conservation aims of the Directive. Thus, projects that are entirely in the interests of companies or individuals would generally not be considered as covered. 24. Secondly, the ‘overriding’ character of this public interest must be underlined. This qualification implies that not every kind of public interest of a social or economic nature is sufficient, in particular when seen against the particular weight of the interests protected by the Directive. Careful balancing of interests is needed here. In this context, it also seems reasonable to assume that a public interest is in most cases likely to be overriding only if it is a long-term interest: short term interests that would only yield short-term benefits would not be sufficient to outweigh the long-term interest of species conservation.”
“75. An interest of justifying, within the meaning of article 6(4) of the Habitats Directive, the implementation of a plan or project must be both ‘public’ and ‘overriding’, which means that it must be of such importance that it can be weighed up against that directive’s objective of the conservation of natural habitats and wild fauna and flora. 76. Works intended for the location or expansion of an undertaking satisfy those conditions only in exceptional circumstances. 77. It cannot be ruled out that that is the case where a project, although of a private character, in fact by its very nature and by its economic and social context presents an overriding public interest and it has been shown that there are no alternative solutions. 78. In the light of those criteria, the mere construction of infrastructure designed to accommodate a management centre cannot constitute an imperative reason of overriding public interest within the meaning of article 6(4).”
“55. … What the Secretary of State had to consider was whether there were imperative reasons of overriding public interest for permitting the development despite the adverse impact which they would have on the foraging and roosting of the bats. That involved a balancing exercise in which the relatively modest impact which he thought the [developer’s] proposals would have on the bats’ habitats when steps to mitigate that impact had been implemented had to be weighed up against the overall benefits to the local community and to our national heritage, as well as to foraging bats in the long term, which the implementation of the proposals would provide. [The judge then quoted from Solvay at [74], quoted in paragraph 32 above]. 56. The court went on to say at [76] and [77] [again quoted above] that ‘[w]orks intended for the location or expansion of an undertaking [will] only in exceptional circumstances’ satisfy the condition that the development ‘must be of such importance that it can be weighed up against [the] directive’s objective of the conservation of natural habitats…’. But you cannot get from that that if a particular feature of a set of proposals was included only because it would provide some of the funding for the development as a whole, and if it happened to be that aspect of the development which would have an impact on the conservation of natural habitats, there cannot have been imperative reasons for overriding public interest for permitting development.”
“... Now, however, I cannot see why a planning permission (and, indeed, a full planning permission save only as to conditions necessary to secure any required mitigating measures) should not ordinarily be granted save only in cases where the planning committee conclude that the proposed development would both (a) be likely to offend article 12(1) and (b) be unlikely to be licensed pursuant to the derogation powers. After all, even if development permission is given, the criminal sanction against any offending (and unlicensed) activity remains available and it seems to me wrong in principle, when Natural England have the primary responsibility for ensuring compliance with the Directive, also to place a substantial burden on the planning authority in effect to police the fulfilment of Natural England's own duty.”
“If a proposed development is found acceptable when judged on its planning merits, planning permission for it should normally be given unless in the planning authority’s view the proposed development would be likely to offend article 12(1) and unlikely to be licensed under the derogation powers.”
“The Ecological Survey acknowledges that the removal of some semi-natural woodland will require a European Protected Species Licence for dormice. Accordingly, the LPA has considered the proposal against the ‘3 derogation tests’ (with respect to requirements under the Habitats Regulations). As has been detailed earlier within this report, it is considered that there is an Imperative Reason of Overriding Public Interest (namely the replacement of existing bungalows that do not meet the Decent Homes Standard with new affordable and supported housing units), there is No Satisfactory Alternative (improving existing unit would be uneconomical), and the ecologist has indicated that taking into account mitigation and compensation, that the Favourable Conservation Status of the dormice can be maintained. Accordingly, the 3 derogation tests are considered met, and it is reasonable to consider that the proposal will be successful in obtaining a EPS Licence.”
“Finally the community had discussed an alternative application and the Case Officer advised that their application was likely to received support, however, a full application had not yet been received and there was a duty to determine the application that had been submitted on its merits.”