Species in UK Law

Mr Jarman accepts that an application for this licence could have been appropriately addressed to the Countryside Council for Wales under regulation 44(2)(c). What then would have been material considerations for the Council? The claimants would be seeking a licence to conserve a protected species because, in light of the planning permission, it is likely the species would otherwise be harmed.

The phrase "no satisfactory alternative solution" must not be construed so as to make the derogation nugatory in operation. Third, the derogation should be interpreted with the other objectives of the Directive in mind. Its application should be proportionate to the needs which justified it. The Directive balances the protection of species and certain leisure pursuits.

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

I am satisfied that the loss of foraging habitat occasioned by cutting a swathe through the vegetation does not offend Article 12(1)(b) which is concerned with protection of the species not with conservation of the species' natural habitats. There is therefore no evidence of any activity which would as a matter of law constitute a disturbance as the word has to understood.

The River Ribble rises in Yorkshire and flows into the Irish Sea between Lytham St Annes and Southport. The River Alt rises in Huyton and flows into the Irish Sea at the edge of the Mersey Estuary. Part of the Ribble Estuary was identified as a National Nature Reserve in 1979 and notified as a Site of Special Scientific Interest under Section 28 of the Wildlife and Countryside Act 1981 in 1984. It was classified as special protection area under Council Directive 79/409/EEC in 1982.

If a proposed development is found acceptable when judged on its planning merits, planning permission for it should normally be given unless in the planning authority's view the proposed development would be likely to offend article 12(1) and unlikely to be licensed under the derogation powers (see paragraph 29 of Lord Brown's judgment in Morge).