A recent high court judgment (Prideaux v. Buckinghamshire County Council and FCC Environmental UK Limited EWHC 1054, April 2013) provides useful clarification on a number of issues relating to wildlife law and policy, and in particular the interpretation of the law concerning European Protected Species and the consideration of satisfactory alternatives as one of the three derogation tests set out in Regulation 53(9) of the Conservation of Habitats and Species Regulations 2010.
As in another two recent cases, R. (Woolley) v Cheshire East Borough Council  Env. L.R. 5 and R. (Morge) v Hampshire County Council  WLR 268, the Prideaux case was partly concerned with the duty of Local Planning Authorities (LPA) to have regard to the EC Habitats Directive in making planning decisions. The case also clarifies this function of the LPA in relation to the LPA considering Natural England’s role in decision-making when granting derogation licences, and, particularly, in relation to the three derogation tests included in Article 16(1) of the Habitats Directive. One focus of the judgement is the second test of “satisfactory alternatives”, and deciding whether the developer, Natural England and the LPA (in approving the application) had properly considered all the options available and discharged their respective duties in so doing.
Considering “satisfactory alternatives” is often not straightforward for those making decisions when working on development projects, given the range of issues that may be of importance, such as transport, hydrology and noise. Alternative options are something that can be easily overlooked or be assumed to be the sole responsibility of the developer. The Prideaux case is a useful reminder that satisfactory alternatives need to be considered in an appropriate level of detail in relation to European Protected Species, the objectives of the development proposal and other matters that properly influence planning decision making. The judgement gives some clear guidance as to what the consideration of alternatives should involve, following current legislation and published guidance.
Matt Hobbs has reviewed the judgment, and in this broad summary of the case he discusses some of its key points and considers the potential implications of the case.
If you would like to discuss this case, then please contact James Gillespie at our Newport office or Dr. Peter Shepherd at our Oxford office. Please note that this article is a broad summary, for information only, and does not constitute legal interpretation or advice, and should not be relied upon without seeking the advice of an appropriately legally qualified professional.