Conservation in UK Law

There is no dispute that the intention of section 277(8) is that planning decisions in respect of development proposed to be carried out in a conservation area must give a high priority to the objective of preserving or enhancing the character or appearance of the area.

All building development must involve change and if the objective of section 277(8) were to inhibit any building development in a conservation area which was not either a development by way of reinstatement or restoration on the one hand ("positive preservation") or a development which positively enhanced the character or appearance of the area on the other hand, it would surely have been expressed in very different language from that which the draftsman has used.

It is well established that a reasonable relationship of proportionality under Article 1 does not import a test of strict necessity (as Mr Holgate has argued). The fact that there may be other even better methods of achieving the same ends does not necessarily mean that any particular measure is disproportionate under Article 1: see James v the UK [1986] 8 EHRR 123; Tre Traktorer Aktiebolag v Sweden [1991] 13 EHRR 309.

There is a "strong presumption" against granting planning permission for development which would harm the character or appearance of a conservation area precisely because the desirability of preserving the character or appearance of the area is a consideration of "considerable importance and weight."

In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it.

Article 6(3) provides that any plan or project not directly connected with or necessary to the management of an SPA but likely to have a significant effect on it shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives; and in the light of the conclusions of the assessment, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site and, if appropriate, after having obtained the opinion of the general public.

The impact must be certain or real, it must be negative or adverse to the bats and it will be likely to be detrimental when it negatively or adversely effects the conservation status of the species. That is why the Guidance at (39) makes the point that the disturbing activity must be such as