Can ecological surveys and assessments be carried out after planning permission has been granted?

This is a very common question.

The short answer is no.

The long answer is…. longer. When a planning application might conceivably have an impact upon protected species, particularly European Protected Species (EPS), the Local Planning Authority (LPA) must consider the requirements of the appropriate legislation. Relevant case law on European Protected Species (EPS) provides some clarity on planning processes and EPS: R (Simon Woolley) v Cheshire East Borough Council and Millennium Estates Limited (the Woolley case) and the Supreme Court decision in R (Vivienne Morge) v Hampshire County Council (the Morge case).

The Woolley case clarified the legal duty of a Local Planning Authority (“LPA”) when determining a planning application for a development which might conceivably have an impact on an EPS. This was further clarified in Supreme Court in the case of R (Vivienne Morge) v Hampshire County Council in 2011.

The legal duty had been in existence since the publication of the Conservation (Natural Habitats Etc.) Regulations (NI) in 1995. However the duty was only partially understood and patchily applied by Local Authorities until the Woolley judgement in 2009. The outcomes of the Woolley and Morge cases have resulted in firm internal guidance to LPAs on the application of the duty.

Nonetheless, there is still a considerable amount of misunderstanding of the LPA’s duty by developers (and their agents, such as architects). There is still a persistent misconception by some architects, planners and developers, that the surveys of these species can be the subject of a planning condition.

The LPAs duty was clarified as follows:

  1. The Woolley case established that it was not sufficient for the LPA simply to make reference to the existence of the Regulations as an informant on the planning consent. It also established that your LPA could not discharge its duty by simply forming a planning condition that calls for the applicant to obtain an appropriate licence from the Statutory Nature Conservation Organisation [SNCO] (Natural England in England; Natural Resources for Wales in Wales; Scottish Natural Heritage in Scotland and Northern Ireland Environment Agency in Northern Ireland). Such an approach would not constitute “engaging” with the Directive, which is the obligation of the LPA.
  2. For the same reasons as 1; the LPA would not be engaging with the Directive were it to make the survey that determines the status of an EPS on a site the subject of a Planning Condition.

LPAs therefore, are not in a position where they can condition EPS surveys with legal defensibility.

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