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Habitats Directive - Advice for Developers

Development likely to affect European protected species advice for developers.

On 16th October 2002, the Secretary of State for Environment, Food & Rural Affairs issued a Circular, which provides new guidance on licensing procedures under the Habitats Directive. The advice in the Circular has implications for developers and for the Local Planning Authority when processing applications for sites that may contain protected species.

The Habitats Directive requires several tests to be satisfied before a licence can be granted for new development works which, if implemented, would contravene the protection afforded to European protected species. The tests are that:

  • There is "no satisfactory alternative"
  • The proposal would "not be detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range
  • The proposal is "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".

Local Planning Authorities are required to have regard to the provisions of the Habitats Directive when considering proposals for development. In that respect, where the Secretary of State receives a licence application for a development, following the grant of planning permission, that will affect a member of a European protected species, the Local Planning Authority will be asked for the following information:

  • Information relevant to whether the tests specified in article 16(1) of the Habitats Directive and regulation 44 of the 1994 Regulations are met in the case in question. This should include an assessment of the importance attached to the development against the background of national planning policy guidance and regional and local development plans, including material considerations.
  • A copy of the report to the Planning Committee on the planning application.
  • A copy of the minutes of the Planning Committee meeting at which the application was decided, or the equivalent papers if the application was decided by an officer.
  • A copy of any condition attached to the planning permission to take account of the presence of a member of a European Protected Species.
  • Any other information relevant to the application of the tests specified in article 16(1) of the Habitats Directive and regulation 44 of the 1994 Regulations.
  • In processing a planning application that has implications for a protected species, the Local Planning Authority will always consult English Nature in order to be satisfied that the proposed development will not be "detrimental to the maintenance of the populations of the species concerned". In considering the response from English Nature and statements and information provided by the developer, the Local Planning Authority will aim to ensure that the proposed development if approved, does not undermine the key tests applied under the Habitats Directive.

If you have any comments or questions about the Habitats Directive and its implications for you, please email us using this form