All wild birds are protected under the Wildlife and Countryside Act 1981 (W&CA), and particular species of animals and plants are protected under the W&CA and The Conservation (Natural Habitats, &c.) Regulations 1994 (Habitats Regulations). The presence of a protected species is a material consideration when considering a proposal that would be likely to harm a species or its habitat. Circular 06/2005, ‘Biodiversity and Geological conservation’, and the PPS9 ‘Planning for Biodiversity and Geological Conservation’ Guide to Good Practice, advise that in such circumstances LPAs should consult Natural England (NE) before granting planning permission. Where the presence of protected species is raised at application stage, LPAs’ usual practice is to consult Natural England (NE), along with local wildlife bodies.
However, we recently became aware that the West of England (Avon) NE Team wrote to local LPAs in October 2007 stating that they should no longer be consulted generally on cases involving protected species. They will now comment only on cases involving Special Areas of Conservation (SACs), Special Protection Areas (SPAs), Sites of Special Scientific Interest (SSSIs), and cases that would affect, for example, populations of Biodiversity Action Plan species/habitats or green infrastructure provision. Consequently, the affected LPAs must now decide on a case by case basis whether to consult NE. The Planning Inspectorate are starting to receive appeals where protected species were raised at application stage, by for instance the local wildlife trust or interested parties, but NE were not consulted. Consequently the issue was not explored and remains unresolved, but the decisions are appealed as the applications were refused on other grounds.
We have discussed the matter with NE and understand that this changed approach has been adopted generally country-wide, although it will vary according to the particular regional biodiversity issues. NE considers that LPAs need to take greater responsibility for handling protected species issues in their local areas. To assist the LPAs in doing this, NE are working closely with them, providing them with training and funding in order to enable them, where possible, to contract in their own ecological expertise and establish their own protocols for dealing with such issues. As a result, until LPAs have established such new procedures and protocols, the breadth and nature of the evidence on protected species at application stage may vary.
NE’s changed approach has implications for appeals involving the affected LPAs where protected species have been raised as an issue. The presence of, and implications of a proposal for, protected species should be established at application stage. On appeals involving the affected LPAs, there may be limited evidence on protected species from the LPA, appellant, local wildlife body and third parties, and none from NE. As in all cases where the presence of a protected species has been raised, an Inspector must consider the reasonable likelihood of the species being present, and the extent to which it may be affected, on the basis of the evidence before him/her.
In order to avoid such an assessment being made in the absence of evidence, and potential delay at a later stage, procedural checks have been put in place. Appeals will be subject to closer screenings on receipt for protected species issues, and additional checks will be made for such issues raised in subsequent appeal documents. We will seek further comments from the main parties at an early stage where it is considered that there is insufficient evidence.
Where an Inspector considers that there is credible evidence to suggest that there is a reasonable likelihood of protected species being affected, and the matter has been aired but survey information is either missing or inadequate, or suggested mitigation measures are unlikely to be effective, the appeal can generally only be dismissed. However, as always, Inspectors will have regard to the usual advice that nothing in the decision should come as a surprise to the parties. Therefore, if an Inspector considers that there has not been prior airing of the issue, we may need to seek further comments from the main parties prior to the Inspector reaching a decision.
For cases in Wales, the Countryside Council for Wales will continue to respond to LPA protected species consultations as they do at present.