Simpson, Environmental Lawyer, at DLA Piper LLP (Issue 5, Autumn 2009)
2009 was an interesting year in the world of nature conservation and wildlife protection law!
There has been an important judgement given by the High Court in relation to a case called Woolley v Cheshire East Council. It is a case which puts the spotlight on developments which will have impacts on European Protected Species such as great crested newts, bats, dormice or otters. The case has looked carefully at the questions the Local Planning Authority must ask itself when considering applications which may have detrimental impacts on these animals or their habitats. The case has confirmed that the Local Planning Authority must address itself to three crucial questions. These questions are in fact the tests which Natural England, the licensing authority, will also have to apply after planning permission has been granted when it comes to consider whether to grant a European Protected Species licence to allow the development to proceed. These tests are to consider whether the development proposal can be said to be necessary for imperative reasons of overriding public interest; whether there are any satisfactory alternatives to the development; and whether adequate mitigation is being offered so as to ensure that the "favourable conservation status" of the species can be maintained. Prior to this case, a strict interpretation of the law indicated that a Local Planning Authority would have to consider these three tests. However, it is only this case which has clarified from the court's point of view that this is definitely the case. We are already seeing a need for developers to be far more clear on how they regard these three tests as being met in their planning applications. We are given advice to a number of our clients on the best way of drafting the arguments.The other significant development in relation to European Protected Species is that Natural England has altered its procedures and application forms which have to be completed in order to apply for a European Protected Species licence. These are now far more onerous forms to complete. There are in particular many questions which Natural England now requires answers which focus on the three licensing tests as described above. We are finding that increasing numbers of our clients are having their licence applications rejected, not because the mitigation offered is inadequate, but because Natural England is not satisfied that they are meeting the other two tests ie relating to alternatives and reasons of overriding public interest. We have been providing advice to a number of our developer clients on how to resolve these difficulties and have in all cases to date succeeded in allowing our clients to obtain such licenses.
Finally, the Environmental Damage Regulations entered into force in March this year. These implement the Environmental Liability Directive from the European Union. Under this new regime those carrying out operations on land which may need environmental consents such as for waste operations or PPC operations, could become exposed to significant costs arising from the requirement to remediate "environmental damage" (as defined) in the Regulations. The aim of this new regime is to focus in on the 300 or so pollution incidents per year which are regarded as being particularly significant and to require those who have caused the damage to not pay a fine but actually instead to carry out the work necessary to rectify the damage. "Environmental Damage" is defined in very strict ways. Contaminating land in a way so as to create harm to health is one aspect, polluting water in a significant way is another, and creating damage to biodiversity is the third and most novel aspect of the new regime. It is this latter aspect which we expect to have the greatest impact.
For any advice on these issues please contact Penny
Simpson, Environmental Lawyer, at DLA Piper LLP.
T: 0114 283 3467; E: penny.simpson@dlapiper.com
