This was an interesting announcement in the Autumn Statement last Tuesday 29th November. These directives, implemented through the Habitats Regulations, have caused a lot of difficulty over the years, most markedly perhaps in the Thames Basin Heaths area, home to the woodlark, nightjar and Dartford warbler, and a Special Protection Area for Birds which stretches across Surrey, Hampshire and Berkshire, some of the most densely populated areas of England, where the demand for housing is high. One result of the designation is that some new developments have a ban on dog and cat ownership, enforced by a s.106 agreement (which led MP and cat-owner Anne Widdecombe to say “The dictatorial nature of this decree is unbelievable. The developer has exceeded its powers by telling people what pets they can and can’t own”).
The problem is that the Directives prescribe the outcome if certain circumstances exist. They are not like the environmental assessment Directive which prescribes a procedure, but leaves the decision making in the hands of the planning authority.
So under the Habitats and Bird Directives, the planning authority must not grant permission if there is an adverse effect on “the integrity” of the site, unless there are imperative reasons of overriding public importance (IROPI). And the problems multiply – there is no definition of “integrity”; instead, it is necessary to dredge through European Commission papers. Passing the IROPI test is extremely difficult. There is even confusion about who is the “competent authority” which has to do the assessment.
I have suggested for a while that it is time to amend the Directives; the UK is not the only Government finding them difficult. In 2003 I published “Is Nature Taking Over?” a paper delivered to the Oxford Planning Law Conference, about the way in which sites are designated. There is not much room for the involvement of the landowner, nor for testing of the evidence and opinions of those designating the sites (you can read the paper at [2003] J.P.L. (Occasional Papers), pp 50-76). I suggested there should at least be a proper opportunity to challenge the proposal to designate, with a proper examination of the evidence, given that designation it is more or less determinative of whether or not development can take place and the Human Rights Act is also engaged (see Aggregate Industries v. English Nature, [2003] Env LR 3).
It must be a good idea to look at the actual operation of the Directives. There is a sense that we have a gold plated the implementation. But ultimately the decision makers and Natural England must operate within their requirements, so this is a challenging task. This is a link to the terms of reference, on the DEFRA website. The review is to be completed before the 2012 Budget, so it would be worth getting representations in quickly.
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