Case law >> An LPA's role in the Habitats Directive

Jen Hawkins and George Hobson, from LexisPSL, detail a High Court decision that clarifies the role of local planning authorities in applying the Habitats Directive

The High Court recently dismissed two claims for a judicial review of the decision to grant planning permission for an energy-from-waste (EfW) facility at Calvert. The main claim concerned compliance with the Habitats Directive (92/43/EEC), as the proposed works would affect the habitat of three European protected species (EPS) – the common pipistrelle bat, the brown long-eared bat and the great crested newt.

In Prideaux v Buckinghamshire County Council [2013] EWHC 1054, the claimant argued that the council had failed to comply with the requirements of the Directive in considering the likely effects of the development on EPS. The Directive requires member states to establish a system of strict protection for EPS.

However, they can derogate from these requirements in some circumstances. In England and Wales, the Conservation of Habitats and Species Regulations 2010 – which implement the Directive – impose different duties on Natural England and local planning authorities (LPAs).

Natural England is responsible for determining whether there is a breach of the Directive and whether a licence should be granted. The extent of the duty imposed on an LPA was clarified by the Supreme Court in Morge v Hampshire County Council [2011] All ER 744. If a proposed development is found acceptable when judged on its planning merits and is likely to be licensed, an LPA should normally grant planning permission.

In Prideaux, the High Court applied the decision in Morge. The council had discharged its duty by satisfying itself that the necessary derogations were likely to be licensed.