Supplementary memorandum from The Association
of Local Government Ecologists (ALGE)
CONFLICT BETWEEN PLANNING PERFORMANCE TARGETS
AND PAYING DUE AND APPROPRIATE REGARD TO PROTECTED SPECIES
1. ALGE believes that there is a significant
conflict between (a) performance targets set for the time that
local planning authorities have available to determine planning
applications, and (b) their ability to process planning applications
in a manner that enables them to have sufficient "regard"
for protected species that may be affected by some development
proposals (see "Supporting Notes" with this evidence).
2. As a consequence of both the tight time
scales because of the performance targets (as stated in the General
Development Planning Order 1995) and a general lack of competence
within the staff of the authority to do so, local planning authorities
are unable to adequately assess potential impacts or secure effective
mitigation measures for protected species.
3. As a result, without adequate assessment
of likely impacts prior to determination, and/or effective protection
measures secured via planning conditions and obligations, many
developers (either in ignorance or recklessly) go on to disturb,
harm or kill plant and animal species—some of which may
be protected under national or European legislation—and
detrimentally affect the populations involved as part of their
construction works. Furthermore, planning permission can give
developers a legal defence because it can be argued that they
are not committing an offence, since their actions are "incidental
to an otherwise lawful operation" ie they are implementing
their planning permission (see "Supporting Notes" with
this evidence).
4. For the majority of local planning authorities,
it appears that the performance targets take precedence over all
other statutory duties which require them to have due regard for
protected species (especially those of European importance protected
by the Habitat Regulations 1994). This in turn leaves protected
species vulnerable to harm when development takes place, and in
circumstances where enforcement action is unlikely to be possible.
5. On the other hand, where planning authorities
do (i) obtain sufficient information prior to determination and
(ii) they secure measures for protection through planning conditions,
developers cannot cause harm to protected species without a) being
in breach of their planning consent, and b) committing an offence
under wildlife legislation. In these circumstances, enforcement
action is then possible.
BACKGROUND INFORMATION
ON PERFORMANCE
TARGETS FOR
PLANNING
6. Local planning authorities have prescribed
target times for determination of planning applications; this
is eight weeks for most applications or sixteen weeks where an
application is subject to Environmental Impact Assessment.[7]
Furthermore, the Best Value Process requires them to compare themselves
against the following indicators:
— 60% of major applications to be determined
within 13 weeks.
— 65% of minor applications to be determined
within eight weeks.
— 80% of other applications to be determined
with eight weeks.
ACTING LAWFULLY
WHEN GRANTING
PLANNING PERMISSION
7. In many cases, failure to have due regard
to protected species seems linked to the imperative of meeting
target times for determination and is based on three common scenarios,
which can be summarised as follow:
(a) The application is received at a time
of year when the nature conservation interest of the site cannot
be determined (eg in mid winter), and rather than wait and compromise
performance targets, consent is granted only to find later that
there are protected species on site that have not been adequately
taken into account in the planning permission;
(b) In order not to delay determination of
an application, many local planning authorities do not obtain
information for protected species prior to the grant of planning
permission, but instead seek it through a planning condition after
consent has been granted (see paragraphs 7 and 8 below);
(c) The authority has little or no in-house
professional ecological expertise,[8]
and are therefore unaware, firstly, of their duties and responsibilities
if protected species are found to be present on the application
site and, secondly, the correct and lawful course of action to
follow to ensure that such species are not harmed if development
proceeds. To obtain the necessary expertise from elsewhere would
cause additional delay and cost, and therefore they go ahead and
determine the application in the absence of any appropriate ecological
survey information.
8. ALGE would like to draw the Sub-committees
attention to a recent High Court judgement that seems particularly
relevant to the above scenarios, especially when an application
involves species protected under the Habitat Regulations (1994)
and/or applications subject to Environmental Impact Assessment
(1999).
9. We refer to a decision by Mr Justice
Harrison in R v Cornwall County Council, ex parte Hardy
(2001). In summary this decision judged:
The application involved the extension of a landfill.
Permission was granted by the local planning authority subject
to conditions. Condition 8 prohibited development until, amongst
other things, a bat survey had been carried out and measures agreed
to mitigate disturbance. Mr Harrison held that having concluded
a further survey was required, the local planning authority acted
unlawfully in granting permission before the survey was to hand.
The authority could not rationally conclude that there would be
"no significant nature conservation effects" without
also the data from the forthcoming surveys.
10. The key issues are therefore:
(a) The lack of understanding in LAs of their
duty to make lawful decisions with regard to protected species;
(b) The greater profile in both central and
local government given to performance indicators over the need
for compliance with wildlife legislation and the consequent harm
done to protected species;
(c) The insufficient availability of timely
information to enable effective and lawful decision making;
(d) The concern to ensure the performance
target on "time" is achieved regardless of the consequences
for important wildlife and compliance with their legal protection;
and
(e) The lack of competent staff to ensure
that advice on such matters is available in a time effective manner.
ALGE would also ask for clarification over whether
the current precedence of the GDPO over the Habitat Regulations
and Wildlife and Countryside Act can be justified in legal terms.
RECOMMENDATION
Firstly, in light of the above evidence, ALGE
would ask that the Government examine and resolve what appears
to be an inherent conflict between the performance targets set
in the GDPO and the capability of any local authority to give
due regard to lawful consideration of protected species when acting
within the time constraints imposed by the GDPO and Best Value
process.
Secondly, the introduction of new planning legislation
and regulations should take account of these issues and provide
appropriate solutions that encourage and ensure overall compliance
with both statutory requirements.
SUPPORTING NOTES
Background Information on Planning Requirements
for Protected Species
For England, Planning Policy Guidance No 9 Nature
Conservation (paragraph 47) states that:
"The presence of a protected species
is a material consideration when a local planning authority is
considering a development proposal which, if carried out, would
be likely to result in harm to the species or its habitat".
"They should consider attaching planning
conditions or entering into planning obligations under which the
developer would take steps to secure the protection of the species,
particularly if a species is listed on Annex IV to the Habitats
Directive would be affected".
Regulation 3(4) of the Habitat Regulations (1994)
states:
"Without prejudice to the preceding provisions,
every competent authority in the exercise of their functions,
shall have regard to the requirements of the Habitats Directive
so far as they may be affected by the exercise of their functions".
In other words, when an application for planning
permission is submitted and the planning authority is informed
of the presence of a European protected species on a site, it
is bound to take that fact into consideration in determining such
an application.[9]
LEGAL DEFENCES
UNDER THE
HABITAT REGULATIONS
AND THE
WILDLIFE AND
COUNTRYSIDE ACT
Under both the Habitat Regulations and the Wildlife
and Countryside Act a person shall not be guilty of an offence
if:
(a) the act was the incidental act of a lawful
operation ie under as part of the implementation of a planning
permission;
(b) the act could not reasonably have been
avoided.
July 2004
7 See Article 20 of the Town and Country Planning
(General Development Procedure) Order 1995 (GDPO) and BV109 of
the ODPM's Best Value Guidance (Guidance on Best Value Performance
Indicators for 2003-04). Back
8
ALGE believes that nearly 65% of local planning authorities in
England do NOT employ an ecologist. Back
9
See paragraph 89 of High Court Judgement of The Honourable
Mr Justice Pitchford in Jeremy Henry Moore Newsum, Mark Anthony
Loveday, Robin Sheddon Broadhurst [Trustees of the 4th Duke of
Westminster's 1964 Settlement] and the Welsh Assembly Government
(February 2004). Back
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