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An all too common issue for utilities and developers is the presence of European Protected Species on a potential development site. Bats, great crested newts, otters, smooth snakes, sand lizards and hazel dormice all receive extensive legal protection which not only protects them individually, but also the habitat in which they live. The presence of any one of these species can add considerable time and cost to a project involving either extension to an existing works or a new treatment asset.

A recent judicial review could significantly change the way that European Protected Species (EPS) will be dealt with through the planning process for AMP5 projects. Up to now, planning authorities had limited responsibilities when it came to EPS. Being a material consideration in the determination of the application, information on the presence or likely presence of EPS that could be affected by development has had to be presented to the planning authority before an application could be determined.

However, until now it was unclear what specific responsibilities the planning authority had in their consideration of EPS information when deciding planning permission. As a result of the recent judgement, it has been made clear that information on the presence or likely presence on EPS should be available at the time the application is determined. In addition, the planning authority must now also have due regard to the requirements of the EC habitats Directive, as prescribed by Regulation 3(4) of the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended).

This means that the planning authority must now satisfy itself, before planning permission is granted, that the three tests set out in the Directive for EPS are likely to be met. In particular, the planning authority must consider whether there are any satisfactory alternatives and be satisfied that the development has imperative reasons of over-riding public interest. In addition, the planning authority must have due regard to the conservation status of the species. Should the planning authority take a view during the plann...