5 Permitted Development Rights in European Sites

13.172 In many cases where minor development is in prospect permitted development rights are granted under the General Development Order 2015 (‘GDO’). Where this is the case, it is unnecessary for the developer to apply to the local planning authority for a grant of planning permission.

13.173 Because no administrative consent is required for permitted development, this causes problems where it is to take place in a European site – especially as an environmental assessment must be conducted prior to the development being authorised in order to evaluate its likely impact on the site’s integrity. The Conservation Regulations 2010³⁵¹ therefore limit the exercise of permitted development rights to ensure that their exercise will not breach the site management requirements of the Habitats Directive. It is a condition of any planning permission granted by the GDO that any development that is likely to have a significant effect on a European Site, and which is not directly connected with or necessary for the management of the site, must not be begun until the developer has received prior written approval from the local planning authority.³⁵² The developer can make an application to the Conservation Body (for example Natural England) for an opinion as to whether the development will have a relevant effect on the conservation status of the site.³⁵³ The Conservation Body’s written opinion is conclusive on the significance or otherwise of the likely impacts of the development. The developer can then subsequently make an application to the local planning authority for permission to exercise the permitted rights in question, appending the Conservation Body’s opinion to the application.³⁵⁴ The planning authority must consult the Conservation Body on the application, and must take account of any representations they make.³⁵⁵ If the planning authority cannot be certain that the development will not significantly affect the integrity of the site, then they must refuse to give their written approval.

1Ie in England, Natural England; in Wales, Natural Resources Wales; in Scotland, Scottish Natural Heritage; and in Northern Ireland, the Conservation Body for Nature Conservation and the Countryside: see Natural Environment and Rural Communities Act 2006, s 32(1).

2See para 12.117 ff above.

3Regulation (EU) 1305/2013 of the European parliament and of the Council of 17 December 2013, OJ L 347/487 (20.12.2013).

4Countryside and Rights of Way Act 2000, s 73.

5Natural Heritage (Scotland) Act 1991, s 1(1).

6Environmental Protection Act 1990, s 133.

7Natural Environment and Rural Communities Act 2006, s 1.

8Natural Resources Wales assumed the functions of the (former) Countryside Council for Wales, Forestry Commission Wales and Environment Agency in Wales, plus some Welsh Assembly Government functions in April 2013: see Natural Resources Body for Wales (Establishment) Order 2012, SI 2012/1903 (W230); Natural Resources Body for Wales (Functions) Order 2013, SI 2013/755 (W90).

9See Natural Environment and Rural Communities Act 2006, s 32 ibid.

10Natural Environment and Rural Communities Act 2006, s 2(1).

11Section 2(2) ibid.

12Environmental Protection Act 1990, s 132, Sch 9. The powers of Natural England are set out in, and considerably widened by, ss 3–13, Natural Environment and Rural Communities Act 2006.

13See Environmental Protection Act 1990, Sch 9.

14See for example Natural Environment and Rural Communities Act 2006, s 7 (Natural England’s management agreement powers).

15Section 4 ibid.

16Section 4(3) ibid.

17See s 6 ibid.

18Section 3 ibid.

19Section 38, Wildlife and Countryside Act 1981.

20Environmental Protection Act 1990, s 131(2).

21Natural Environment and Rural Communities Act 2006, s 15.

22Section 16 ibid.

23Section 15(6) ibid. (Guidance); s 16(5) ibid. (Directions).

24Section 16(2) ibid.

25See s 34 ibid.

261980 Act, s 131(4).

27Natural Environment and Rural Communities Act 2006, ss 31, 34. These powers were previously defined in s 133, Environmental Protection Act 1990 (repealed by Sch 12, Natural Environment and Rural Communities Act 2006). The JNCC’s constitution and procedural rules for its meetings are set out in Sch 4 ibid.

28Natural Environment and Rural Communities Act 2006, Sch 4, para 1.

292006 Act, s 34(2) ibid.

30These powers were formerly contained in National Parks and Access to the Countryside Act 1949, s 23.

31Wildlife and Countryside Act 1981, s 28(4).

32Section 28(4) ibid inserted by Countryside and Rights of Way Act 2000, Sch 9.

33Section 28(3) ibid.

34[1989] JPL 925 (decided under the parallel designation provisions in s 29 of the 1981 Act, see below).

35[1996] Env LR 1 (May J).

36[1995] Env LR 237 (Popplewell J).

37In R v Nature Conservancy Council ex part Bolton MBC. English Nature had considered the site both on its current state of conservation interest, and its possible potential for future restoration. Bolton MBC (the recipients of the notification) had only made representations on its potential for restoration when objecting to the notification of the site. This was held to be a breach of natural justice in that the Conservation Body had not made the basis of the notification (ie the site’s current conservation interest, as well as its potential) sufficiently clear to enable Bolton MBC to make a full response and objection. English Nature’s confirmation of the notification was accordingly quashed.

381981 Act, s 28(5).

39Section 28(6) ibid.

40Section 28(7) ibid.

41Section 28(4C) ibid.

42[1996] Env LR 1 (May J).

43[2003] EWHC 1599, see judgment paras 18 et seq.

44For the function and role of the JNCC see para 13.09 ff above. The publication of SI selection criteria is central to its role in ensuring that common rules are applied across the UK by the regional agencies in identifying and notifying sites for protection. The Guidelines were originally published in 1990, and have been review subsequently. The latest guidance is available on the JNCC website at – http://www.jncc.gov.uk/page-1457

45[2003] Env LR 383.

46[2003] EWHC 1599. See judgment at para 26.

47[2003] EWHC 1105.

481981 Act, s 28A.

49Section 28B(1) ibid.

50See s 28B(2)–(9) ibid.

51See s 28D(1) ibid.

52Section 28D(2) ibid.

53Natural Environment and Rural Communities Act 2006, s 56, amending s 28D(1) ibid. The amendment replaced the words ‘no longer’ of special interest with ‘not’ of special interest. It is not necessary that the land to be denotified must have previously been of special interest.

541981 Act, s 28(1).

55See s 28D(2) ibid. In this case, notice must also be given to the Environment Agency and statutory undertakers.

56Natural Environment and Rural Communities Act 2006, s 57, introducing a new Wildlife and Countryside Act 1981, s 70B.

57Wildlife and Countryside Act 1981, s 70B(4), inserted by 2006 Act s 57.

58Section 70B(6) ibid. For the criminal offences applicable to SIs see below para 13.33 ff.

591981 Act, s 28S. Inserted by Natural Environment and Rural Communities Act 2006, s 58.

60Section 28S(3) ibid.

61Wildlife and Countryside Act 1981, ss 51(1)(a). Natural Environment and Rural Communities Act 2006, s 58.

62See below paras 13.35, 13.37.

631981 Act, s 28E (1).

64See Town and Country Planning Act 1990, s 55 and above para 12.19.

65See para 13.147 ff.

66[1989] JPL 925.

67North Uist Fisheries v Secretary of State (1992) JEL 241.

681981 Act, s 28E(4).

69See Southern Water v Nature Conservancy Council [1992] 3 All ER 481, HL per Lord Mustill at 484.

70As to which see below para 13.36.

71See s 28G(3) ibid.

72Section 28G(2) ibid.

73R (Friends of the Earth England Wales and Northern Ireland) v Welsh Ministers [2015] EWHC 776 (Admin).

74See ibid judgment at para 132.

75These may be subject to Strategic Environmental Assessment as was the case in the litigation in R (Friends of the Earth England Wales and Northern Ireland) v Welsh Ministers (above).

761981 Act, s 28H(4) and (5) ibid.

77Wildlife and Countryside Act 1981, s 28(1). Natural England also have power to issue civil sanctions for breach of these provisions, in the form of fixed or variable monetary penalties: Regulatory Enforcement and Sanctions Act 2008, ss 39, 41; and Environmental Civil Sanctions (England) Order 2010, SI 2010/1157.

78As to which see R (Natural England) v Day [2014] EWCA Crim 2683. The Court of Appeal rejected the notion that, in order to establish causation in such cases, the defendant had to have done something that could properly be criticised. Obiter dicta the court considered that the wider test for causation established in Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] Env LR 396 should be applied. This establishes that an offender can ‘cause’ pollution or damage if s/he maintains premises from which it emanates, and that the chain of causation will only be broken by acts or events that are ‘abnormal and extraordinary’ (Lord Hoffmann at [1998] Env LR 396, n 408).

79See s 28P(9) ibid.

80See R (Natural England) v Day [2014] EWCA Crim 2683 (a fine of £450,000 was upheld on appeal as not disproportionate given what the court considered to be severe aggravating factors). And see R v Thames Water Utilities Ltd [2015] EWCA Crim 960.

81[1992] 3 All ER 481 above para 13.28.

82[1992] 3 All ER 481 at 4888 per Lord Mustill.

83Ie those in 1981 Act, s 28H, discussed above at para 13.22.

84See s 28H(4)(a) ibid.

85Section 28P(3) ibid.

86See Natural Environment and Rural Communities Act 2006, s 55.

87See s 28I ibid.

88Section 28I(6) ibid.

89Section 28P(5B) ibid.

901981 Act, s 28P(6).

91Natural Environment and Rural Communities Act 2006, s 55 inserting a new s 28P(6A) to Wildlife and Countryside Act 1981.

92Inserted by the Countryside and Rights of Way Act 2000, Sch 9.

931981 Act, s 28Q(1).

94Section 28Q(4) ibid.

95Section 28Q(5) ibid.

96See 1981 Act, s 28P(4).

97These powers are set out in ss 28J, 28K of the 1981 Act (as amended).

98See 1981 Act, s 28J(3) ibid.

99See s 28J(10) ibid.

100See 1981 Act, s 28P(8).

101See 1981 Act, s 28E(6) ibid.

102Ie under s 28J ibid.

103Guidelines on Management Agreement Payments and Other Related Matters (February 2001) (DETR).

104Wildlife and Countryside Act 1981, s 51, as amended by Countryside and Rights of Way Act 2000, s 80.

105The power to make payments is contained in s 28M ibid. The power of entry supplements this by conferring the necessary powers to enter and carry out an assessment of whether the landowner has/will suffer financial loss as a consequence of the exercise of the UK Conservation Bodies’ powers.

106Section 51(1)(ka), inserted by the Natural Environment and Rural Communities Act 2006, s 58.

107Ie under s 34 of the 1981 Act.

108As to which see s 42 ibid.

109See 1981 Act, s 51(5). As amended

110Section 51(5)(b) ibid. The duty (and the duty to compensate) is limited to making the premises as secure as they were prior to entry – a factor that could prove problematic in cases of dispute. A counsel of caution would dictate that a note of the condition of gates, locks etc be taken on entry to avoid dispute in the event of later unauthorised entry giving rise to damage.

1111981 Act, s 28N(3).

112[2003] Env LR 383.

113[2003] EWHC 1105.

114[2002] Env LR 4 QBD.

115See [2003] Env LR 83 at 119. The appearance of impartiality was stressed as of particular importance the context of Art 6: see also LB of Tower Hamlets v Runa Begum (2002) EWCA Civ 239.

116Cf. Art 1 of the Protocol to the Convention, which protects the citizens right to property, which expressly requires and permits a balance to be struck between the interests of the individual and those of society as a whole.

117See generally M. Demerieux (2001) 21 OJLS 521, esp. at 551ff.

118(1995) 21 EHR 342. See also LM&R v Switzerland (1996) 22 EHR CD 130.

119Allegedly with the benefit of agricultural permitted development rights for the erection of a livestock building under Part 6 of the 1995 GDO.

120They could be withdrawn from the Inspector at any time by he secretary of state, thus depriving them of the necessary appearance of impartiality.

121Requiring, for instance, that the inspector act in a quasi-judicial manner, exercise independent judgement and uphold the principles of openness fairness and impartiality.

122R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2003] AC 295.

123See the comments of Lord Hoffmann at [2003] 2 AC 295 at para 72.

124The safeguards include the right to make representations, the right of appeal to the secretary of state against the confirmation for the SI and the right of judicial review in the courts on matters of law: the full list of safeguards pointed to by the court in forming this view is given in the first instance judgement at [2003] Env LR 126–127.

125See Boyd v English Nature [2003] EWHC 1105 at paras 26–30.

126See Jacobsson v Sweden [1989] 12 EHR 56.

127[2004] EWCA Civ 663.

128On this point see Fredin v Sweden [1991] 13 EHR 784.

129The claimants in Fisher v English Nature argued (unsuccessfully) that the site would be better protected by the conclusion of a management agreement without its formal notification as an SI.

130The general point thus applied in Fisher v English Nature was established, albeit in a different statutory context, in James v UK [1986] 8 EHR 123.

131[2004] EWCA Civ 663 at para 147.

132Fisher v English Nature [2004] EWCA Civ 663 at paras 142/143.

133[2004] EWHC 153 (Admin), [2004] EWCA Civ 1580.

134In addition to Jacobsson v Sweden (above note 31) and Fredin v Sweden (above note 32) see Tre Traktorer Aktiebolag v Sweden [1989] 13 EHR 309, Baner v Sweden (1989) 60 DR 125 and Chassagnou v France [1999] 29 EHR 615.

135[2004 EWHC 153 at para 81, Ouseley J.

136Fisher v English Nature [2004] EWCA CIV 663 AT PARA 141 (Wall LJ.).

137Not to be confused with loss of profits foregone by being unable to carry out proscribed operations once the SI is in place – this is not allowed for in the Guidelines on Management Agreement Payments and other related matters (DETR, 2001). These were considered and upheld in the Trailer and Marina litigation, discussed further below.

138For a discussion of the wider implications of the emergence of proportionality as a ground of judicial review in planning cases see Purdue M., ‘The Human Rights Act, planning and proportionality’ [2004] 6 Env L Rev 161.

139See Fisher v English Nature [2003] EWHC 1599 at para 46 (Lightman J.). The claimants dropped the argument based on the operational consent procedure on appeal – see [2004] EWCA 663 at paras’ 142ff. for Wall LJs comments (albeit obiter dicta) on this aspect of the case.

140Wildlife and Countryside Act 1981, s 28P, inserted by Sch 9 of the 2000 Act.

141Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds [2010] OJ L 20/7, 26.1.2010 (hereafter referred to as ‘The Birds Directive’). The 2009 Directive consolidates amendments made to the original 1979 Wild Birds Directive since its inception in 1979 (as to which see Council Directive 1979/409/EC, OJ L 103, 25.4.1979 p 1).

142Council Directive 92/43/EC on the Conservation of Natural Habitats and of Wild Flora and Fauna, [1992] OJ L 206/7 (hereafter referred to as ‘The Habitats Directive’). For the background to, and aims of, the European legislation see above Chapter 2.

143Conservation of Habitats and Species Regulations 2010, SI 2010/490, reg 8(1).

144Candidate SACs were given formal protection as European Sites by SI 2000/192.

145Council Directive 92/43/EC Art 3.1.

146See para 13.11 ff above.

147Conservation of Habitats and Species Regulations 2010, SI 2010/490, reg 11(1).

148See Arts 6.3 and 6.4 of the Habitats Directive op.cit.

149SI 2010/490.

150Joint ODPM Circular 06/2005 and DEFRA Circular 01/2005 Government Circular: Biodiversity and Geological Conservation – Statutory Obligations and their impact within the Planning System (16 August 2005).

151Commission v United Kingdom (2005) Case C 06/04. For earlier criticism of the implementing provisions see S.Ball, Reforming the Law of Habitat Protection, Ch 4 in (Rodgers Ed) Nature Conservation and Countryside Law (University of Wales Press, 1996).

152Prior to the introduction of the 2010 Regulations, the implementing regulations were the Conservation (Natural Habitat & c) Regulations 1994, SI 1994/2716. These were successively amended by SI 2007/1843, SI 2008/2172 and SI 2009/6.

153SI 2010/490.

154Reg 9(1) ibid.

155SI 2010/490, reg 19.

156Note the interpretation of the identical wording in s 28, Wildlife and Countryside Act 1981 by the House of Lords in Southern Water v Nature Conservancy Council [1992] 2 All ER 461 HL.

157Note that written notice of intent to carry out the operation is required where the operation is to be carried out on land in an SI (which is not also a European Site) the notification to the Conservation Body need not be written (see s 28E of the Wildlife and Countryside Act 1981).

158Conservation of Habitats and Species Regulations 2010, reg 20(2).

159See para 13.24 ff above.

160Reg 22 ibid.

161Reg 21(1), (2) and reg 61(5) ibid.

162Reg 62(1) ibid.

163Reg 62(2) ibid.

164See 2010 Regs, reg 25 et seq ibid.

165Reg 26(1), (2) ibid.

166Reg 26(5) ibid.

167Reg 26 (9) ibid. Ie it is carried out with ‘reasonable excuse’. For discussion of the identical provisions in the 1981 Act see above para 13.40 ff.

1682010 Regs, reg 28.

1692010 Regs, reg 26(8).

1702010, Regs, reg 30.

171Reg 30(5) ibid.

172Ie DEFRA or (in Wales) the Secretary of State for Wales.

173Agriculture Act 1986, s 18(2).

174See para 13.101 ff below.

175See paras 13.24 and 13.70 ff above.

176As amended by Natural Environment and Rural Communities Act 2006, s 59. The designating power is now exercisable by Natural England and, in Wales, by Natural Resources Wales.

177National Parks and Access to the Countryside Act 1949, s 5(2A) (inserted by s 59 of the 2006 Act). On the extent to which it is necessary to show that the public will have legal rights of access in order to facilitate the promotion of their enjoyment of the area see Meyrick Estate Management Ltd v Secretary of State for the Environment Food and Rural Affairs [2007] EWCA Civ 53.

178See especially, s 6(4) of the National Parks and Access to the Countryside Act 1949.

179Section 7(1) and (7) ibid as amended by s 60 of the 2006 Act.

180Schedule 7 to the Environment Act 1995, as amended by s 61 of the 2006 Act.

181See Art 2(3) and Sch 1 of the Town and Country Planning (General Permitted Development) (England) Order 2015, SI 2015/596.

182See above Chapter 12.

183Wildlife and Countryside Act 1981, s 44.

184Wildlife and Countryside Act 1981, s 42(2).

185See Wildlife and Countryside Act 1981, s 52(1).

186See s 42(3) and (4) ibid.

187Under provisions in s 86 of the 2000 Act conservation boards can be established by the Secretary of State (in England) and the National Assembly for Wales (in Wales). Conservation Boards can be established in relation to existing AONBs, or in relation to new AONBs upon designation.

1882000 Act, s 87(2).

189See s 87(4) ibid

1902000 Act, s 86(3).

1912000 Act, s 91.

192See Town and Country Planning (General Permitted Development) (England) Order 2015, SI 2015/596, Art 2(3), Sch 1; and above Chapter 12 para 12.55 ff.

193See National Parks and Access to the Countryside Act 1949, s 20(2).

194Wildlife and Countryside Act 1981, s 35(3), (4).

195See the definition in Wildlife and Countryside Act 1981, s 34(6).

196Section 34(1) ibid.

197Section 34(5).

198Section 34(4).

199For the statutory consultation provisions for OLDSIs see above para 13.24 ff.

200Countryside Act 1968, s 15(2), amended by Countryside and Rights of Way Act 2000, s 75(3). This power was previously limited to land adjacent to the SI in question.

201Natural Environment and Rural Communities Act 2006, s 7. See para 13.122 ff below.

202Wildlife and Countryside Act 1981, s 32(2).

203Ibid. s 32(1).

204See ibid ss 39(5) and 41.

205Ibid ss 32(2) and 41(4).

206Conservation of Habitats and Species Regulations 2010, SI 2010/490, reg 16(1).

207Reg 16(2), (3) ibid.

208[1992] 2 All ER 461 (HL).

209See for example reg 16(3)(c) ibid. which provides that an agreement can provide for the carrying out of such work as may be expedient for the purposes of the agreement by any person(s).

210The rule in Tulk v Moxhay (1848) 2 Ph 774.

211See reg 16(4) ibid.

212Ie under Countryside Act 1968, s 15, National Parks and Access to the Countryside Act 1949 s 16, or Natural Environment and Rural Communities Act 2006, s 7.

213See reg 16(2) ibid.

214Ie Guidelines on Management Agreement Payments and other related matters (DETR 2001, National Assembly for Wales October 2001.

215Above para 13.76 ff.

216See Agriculture Act 1986, s 18(3).

217See para 13.43 above.

218Some of which were geographically very large, such as the Cambrian Mountains ESA in Wales: see the Environmentally Sensitive Areas (Cambrian Mountains – extension) Designation Order 1987, SI 1987/2026.

219See Whitby M (ed.), Incentives for Countryside Management: the Case of Environmentally Sensitive Areas (CABI, Oxford, 1994), esp. Chapters 10 (Colman) and 11 (Whitby).

220Environmentally Sensitive Areas (Stage I) Designation Order 2000, SI 2000/3049.

221Environmentally Sensitive Areas (Stage I) Designation Order 2000, SI 2000/3050.

222Environmentally Sensitive Areas (Stage I) Designation Order 2000, SI 2000/3051.

223Environmentally Sensitive Areas (Stage IV) Designation Order 2000, SI 2000/3052.

224Agriculture Act 1986, s 18(3).

225See England Rural Development Programme (Enforcement) Regulations 2000 SI 2000/3044, reg 6, made under s 2(2), European Communities Act 1972. The Secretary of State can withhold future payments under a management agreement where a farmer is in breach of its terms, and can also demand repayment of all monies paid under it and levy an additional penalty of up to 10% of the payments made. Powers of entry to property are conferred on the secretary of state and her officials to check and monitor performance of agreements, and to require the production of relevant documentation.

226Environmental Stewardship (England) Regulations 2005, SI 2005/621, made under European Communities Act 1972, s 2(2) and Environment Act 1995, s 98.

227SI 2005/621, reg 3.

228Reg 3(3) ibid.

2292005 Regs, reg 4.

230Schedule 1 ibid.

2312005, Regs, reg 5 ibid.

232See reg 5(2) (ELS), 5(3) (OELS), and also reg 5(4) in relation to HLS obligations to be included in the agreement.

233Schedule 3, para 1 ibid. For the definition of ‘conventional land’ see ibid reg 2 (‘agreement land which is not organic land’).

234Schedule 3, para 2 ibid.

235Schedule 3, para 4 ibid.

236Reg 5(9) ibid.

2372005 Regs, reg 6 and Sch 3.

238Schedule 3, Part 3 ibid.

239Schedule 3, Part 3 ibid.

240See Parts 2, 3, 4 and 5 of Sch 2 ibid. for the maximum rates of payment.

241Reg 5(10) ibid.

242See Sch 4 ibid.

243See generally the Countryside Stewardship Manual, available at: https://www.gov.uk/guidance/countryside-stewardship-manual.

244See: https://www.gov.uk/government/collections/countryside-stewardship-statements-of-priorities (there are for example 25 sets of local priorities for different districts within the North East of England, and 158 for different districts within England in total).

245See the Countryside Stewardship Grants tool at: https://www.gov.uk/countryside-stewardship-grants.

246As to which see the criteria established by the Joint Nature Conservation Committee: http://jncc.defra.gov.uk/page-5718.

247Ie under Wildlife and Countryside Act 1981, s 28, as amended, or under the Conservation of Habitats and Species Regulations 2010 (in the case of an SAC): for the requirements see above para 13.24 (SIs) and para 13.71 (European Sites).

248As to which see Chapter 12 para 12.164 ff.

249As to which see Chapter 14 para 14.09 ff below.

250See http://wales.gov.uk/topics/environmentcountryside/farmingandcountryside/farming/glastirhome/?lang=en.

251Natural Environment and Rural Communities Act 2006, s 7.

252As set out in s 1 of the 2006 Act.

253Wildlife and Countryside Act 1981, s 39.

254Countryside Act 1968, s 11.

255See Wildlife and Countryside Act 1981, s 39(2).

256See Agriculture Act 1986, s 18(3) (Environmentally Sensitive Areas), Countryside Act 1968, s 15 (Sites of Special Scientific Interest), Wildlife and Countryside Act 1981, s 39 (general powers), Natural Environment and Rural Communities Act 2006, s 7 (Natural England – Management Agreement powers)

257As to which see Ch 5 para 5.27 ff above.

258In most cases a share farmer will not have exclusive possession and will, therefore, have no leasehold interest. See Ch 5 para 5.77 ff above.

259See Guidelines on Management Agreement Payments and other related matters (DETR 2001, National Assembly for Wales October 2001) at para 3.11.

260See Guidelines on Management Agreement Payments, para 3.11.

261See Wildlife and Countryside Act 1981, s 28Q.

262See para 13.19 ff above.

263See para 13.99 above.

264Wildlife and Countryside Act 1981, s 39(3).

265Agriculture Act 1986, s 18(7).

266See above Ch 5 para 5.02 ff.

267See the Common land and shared grazing: supplement to the Countryside Stewardship Manual (July 2015), available at:he https://www.gov.uk/government/publications/countryside-stewardship-common-land-and-shared-grazing-supplement/common-land-and-shared-grazing-supplement-to-the-countryside-stewardship-manual (accessed 27 July 2015).

268Ie under case C in Sch 3 to the 1986 Act. See Chapter 7, para 7.68 ff above.

269See Ch 7 para 7.87 ff above

270See Agriculture Act 1947, s 11, discussed further Ch 6 para 6.20 ff above.

271Ie the Agriculture (Maintenance, Repair and Insurance of Fixed Equipment) Regulations 1973, SI 1973/1473; Agriculture (Model Clauses for Fixed Equipment) (England) Regulations 2015, SI 2015/950; eg a tenant may not be able to replace fixed equipment (such as fences) as required by the model clauses, if a management agreement prevents this.

272Agricultural Holdings Act 1986, Sch 3, paras 9(2), 10(1)(d) and 11(2).

273Sch 3, paras 10(1)(d) (Case D – remediable breach of tenancy), 11(2) (Case E – irremediable breach of tenancy).

274(1994) 4 All ER 853.

275[2004] EWHC 153 Admin, [2004] EWCA Civ 1580.

276[2004] EWCA Civ 1580 at para 26 (emphasis added).

277Above Chapter 12 para 12.19 ff.

278SI 2015/596, above Chapter 12 para 12.49 ff.

279SI 2010/490, above para 13.24 ff.

280See above para 13.40 ff and Wildlife and Countryside Act 1981, s 28(8).

281See above Ch 12 paras 12.06 ff.

282National Planning Policy Framework (Department for Communities and Local Government, 2012) esp. paras 109-125. This replaced Planning Policy Guidance Note 9 Biological and Geological Conservation (2005).

283Joint ODPM Circular 06/2005 and DEFRA Circular 01/2005 Government Circular: Biodiversity and Geological Conservation – Statutory Obligations and their impact within the Planning System (16 August 2005) contains detailed guidance to local planning authorities on statutory obligations. In Wales the relevant planning guidance is to be found in Technical Advice Note 5 Nature Conservation and Planning (2009); and in Scotland Scottish Planning Policy (2010) paras 125ff. and Planning Advice Note 60 Planning for natural heritage (2000, updated 2008).

284Council Directive 92/43/EC.

285Conservation of Habitats and Species Regulations 2010, SI 2010/490, reg 39.

286This is a requirement of Art 10 of the Habitats Directive.

287SI 2010/490, reg 39(3).

288National Planning Policy Framework (DCLG 2012) para 114.

289National Planning Policy Framework ibid. para 117.

290National Planning Policy Framework ibid. para 113. Further guidance is set out in Joint ODPM Circular 06/2005 and DEFRA Circular 01/2005 Government Circular: Biodiversity and Geological Conservation – Statutory Obligations and their impact within the Planning System (16 August 2005).

291Wildlife and Countryside Act 1981, s 28G(2), amended by Countryside and Rights of Way Act 2000, Sch 9.

292See ODPM Circular 06/2005, DEFRA Circular 01/2005 at Para 60.

293Wildlife and Countryside Act 1981, s 28I, amended by Countryside and Rights of Way Act 2000, Sch 9. This would be the case, for example, where it intends to grant planning permission on application, or where it intends to authorise the exercise of permitted development rights without a full application.

294Section 28I(4) ibid.

295Section 28I(6) ibid.

296For further explanation of the relevant procedures under the 1981 Act see ODPM Circular 06/2005, DEFRA Circular 01/2005 ibid. paras 62–66. And TAN 5 paras 5.4.1 ff. (Wales).

297ODPM Circular 06/2005-DEFRA Circular 01/2005, para 71. This requirement applies both to consultations required by the GDPO 2015, Wildlife and Countryside Act 1981, s 281.

298Wildlife and Countryside Act 1981, s 28I, as amended (see above). For guidance see ODPM Circular 06/2005 DEFRA Circular 01/2005 at para 72.

299For the ability of Natural England to deliver standing advice see ODPM Circular 06/2005-DEFRA Circular 01/2005 at paras 78 et seq.

300See Wildlife and Countryside Act 1981, s 28I, as amended.

301See Town and Country Planning Act 1990, s 70(2).

302For which see Chapter 13 para 13.24 ff.

303Section 28P(4), Wildlife and Countryside Act 1981 as amended. For an example see R v Poole BC ex parte BeeBee (1991) JEL 293.

304Wildlife and Countryside Act 1981, s 28P(5).

305National Planning Policy Framework (DCLG 2012) at para 118.

306‘Where an adverse effect on the site’s notified special interest features is likely, an exception should only be made where the benefits of the development at this site, clearly outweigh both the impacts that it is likely to have on the features that make the site of special scientific interest and any other broader impacts on the national networks of SIs’: ibid para 118.

307Ie under the Town and Country Planning (General Permitted Development) (England) Order 2015, SI 2015/596, above Chapter 12 para 12.49 ff.

308See Chapter 13 para 13.24 ff above.

309See Wildlife and Countryside Act 1981) s 28E, amended by Countryside and Rights of Way Act 2000, Sch 9.

310Section 28P(4) ibid.

311See ODPM Circular 06/2005-DEFRA Circular 01/2005, Para 75; TAN 5 para 5.4.8 (Wales).

312Town and Country Planning Act 1990, ss 191–194.

313Above para 13.24.

314The ‘reasonable excuse’ exception to liability in s 28P(4), Wildlife and Countryside Act 1981 is expressly limited to ‘planning permission granted on an application under Part I Town and Country Planning Act 1990’ or permitted by a public authority under s 28I (above para 13.40).

315See Town and Country Planning Act 1990, ss 55(2)(e) and (f). And Chapter 12 para 12.19 ff.

316SI 2010/490, and above paras 13.70 and 13.71.

317For example the erection of a building that does not benefit from permitted development rights under the Town and Country Permitted Development Order 2015 (as to which see paras 12.49 ff and 13.172 ff below).

318In para 119 of the National Planning Policy Framework (DCLG 2012) as amplified in Joint ODPM Circular 06/2005 and DEFRA Circular 01/2005 Government Circular: Biodiversity and Geological Conservation – Statutory Obligations and their impact within the Planning System (16 August 2005).

319PPS 9 op cit at para 6.

320The phrase is to be interpreted purposively and given a broad meaning to accord with the objectives of the Directive: R (Friends of the Earth) v Environment Agency [2004] Env LR 31 at [60].

321But the notification by English Nature of an area as an SI is not itself a ‘plan or project’: Boggis v English Nature [2009] EWCA Civ 1061 esp. at [29] (Sullivan LJ) (reversing the decision of Blair J at first instance on this point [2008] EWHC 2954 (Admin)).

322Conservation of Habitat and Species Regulations 2010, reg 61.

323SI 2011/1824 as amended.

324See reg 2 and Schedules 1 and 2 of SI 2011/1824 for development requiring a full environmental impact assessment.

325See para 10 of Joint ODPM Circular 06/2005 and DEFRA Circular 01/2005 Government Circular: Biodiversity and Geological Conservation – Statutory Obligations and their impact within the Planning System (16 August 2005).

326See 2010 Regs, reg 69.

327See reg 70(1) ibid.

328Under Town and Country Planning Act 1990, s 107. See reg 72 ibid for special provision as to calculation of the compensation payable in such cases.

329Or Secretary of State if the application has been called in.

330See para 13, Joint ODPM Circular 06/2005 and DEFRA Circular 01/2005 Government Circular: Biodiversity and Geological Conservation – Statutory Obligations and their impact within the Planning System (16 August 2005).

331See Landelijke Vereneging tot Behoud van der Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij [2004] ECR 1-7405, Case C 127-02 (the Waddenzee case).

332Paragraph 20, Joint ODPM Circular 06/2005 and DEFRA Circular 01/2005 Government Circular: Biodiversity and Geological Conservation – Statutory Obligations and their impact within the Planning System (16 August 2005).

333See the Waddenzee case (above note 316) and ODPM Circular 06/2005 paras 17 and 18.

334Conservation Regulations 2010, SI 2010/490, reg 61(5).

335See the Waddenzee case (above para 13.167) and ODPM Circular 06/2005 para 21 for explanatory guidance.

336The Waddenzee test (above note 316). See Skye Wind Farm Action Group Ltd v Highland Council [2008] CSOH 19 at [135].

337See R (Lewis) v Redcar and Cleveland District Council [2008] EWCA Civ 746; R (Hart District Council) v Secretary of State for Communities and Local Government [2008] 2 P&CR 16.

3382010 Regs, reg 68(2).

339See para 22 of Joint ODPM Circular 06/2005 and DEFRA Circular 01/2005 Government Circular: Biodiversity and Geological Conservation – Statutory Obligations and their impact within the Planning System (16 August 2005).

340See 2010 Regs, reg 62.

341Ibid reg 62(4). And see generally Joint ODPM Circular 06/2005 and DEFRA Circular 01/2005 Government Circular: Biodiversity and Geological Conservation – Statutory Obligations and their impact within the Planning System (16 August 2005) at paras 25 et seq.

342Ibid, reg 55.

343See 2010 Regs, reg 62(2).

344Ibid, reg 62(2)(b). For a review of the cases in which the European Commission has given guidance see L.Kramer, ‘A Review of the European Commission’s Opinions under Article 6(4) of the Habitats Directive’ (2009) 21 JEL 59.

345[2004] EWCA Civ 1565.

346The decision turned on the interpretation of the phrase in reg 44(2) of the Conservation (Natural Habitats &c) Regulations 1994, which provided for the grant of licences for the disturbance of a protected species (in this case great crested newts) in cases of overriding public interest.

347The reasoning in this case is somewhat Byzantine and unsatisfactory, if the result otherwise eminently sensible and sound. See further the commentary by J Holder at [2004] 16 JEL 377.

348Conservation of Habitats and Species Regulations 2010, reg 66. See further Joint ODPM Circular 06/2005 and DEFRA Circular 01/2005 Government Circular: Biodiversity and Geological Conservation – Statutory Obligations and their impact within the Planning System (16 August 2005) at paras 29-32.

349See Joint Nature Conservation Committee, 2007; Second Report by the United Kingdom under Article 17 on the Implementation of the Habitats Directive from January 2001 to December 2006, Peterborough JNCC, Annex A Para 6.1 and Appendix 4 (available at www.jncc.gov.uk/article17).

350See Chapter 12 para 12.49 ff.

351Conservation of Habitats and Species Regulations 2010, SI 2010/490, regs 73–76.

352Ibid reg 73.

353See reg 74 ibid.

354See reg 75 ibid.

355Reg 75(3) ibid.