What are the “three tests”
As derogations from statutory legislation, European protected species licence need to meet strict tests before they can be issued.
In determining whether or not to grant a licence, Natural England is legally bound to use the so-called “three tests”. These three tests are :
- Test #1: show that the purpose of the licence has a valid basis;
- Test #2: show that there are no reasonable options with lower impacts; and that
- Test #3: show that granting the licence won’t cause long-term impacts on the species concerned.
Licences for European protected species are granted under Regulation 55 of The Conservation of Habitats and Species Regulations 2017. The exact wording for the “three tests” to be addressed are set out in sub-paragraphs (2)(e-g), and (9)(a-b) of the Regulations. https://www.legislation.gov.uk/uksi/2017/1012/contents/made
What is a reasoned statement?
Reasoned statements set out the reasons by which the three tests are met in a technical document supported by relevant evidence.
The level of evidence required to meet the tests is proportional to the impact upon the protected species. So a reasoned statement for a small development will be simpler than that for a major new road.
Most applications will need a statement, but there are some exceptions. Reasoned statements are not generally required by Natural England for:
- Applications for home improvements and small scale housing developments:
- Applications to conserve and protect listed buildings, scheduled monuments or places of worship
- Applications to maintain, repair, improve public buildings or develop public land ( including state funded and academy schools, hospitals, prisons and council buildings)
Meeting Test #1 on the purpose of the licence
The most frequent valid basis for meeting Test #1 is for “imperative reasons of overriding public interest, including those of a social or economic nature”. This includes developments such as housing, transport projects and community facilities, and is most often demonstrated via planning permission having been granted.
Granting a licence for “preserving public health or public safety” also meets Test #1. This includes where there is a danger to the public, such as a dangerous buildings, or urgent works to the public water supply. It could equally include extensions to hospitals or care homes, where the primary reason is public health.
There are other basis, such as preventing spread of disease and protecting fisheries, but these are less likely for European protected species.
Meeting Test #2: Reasonable alternatives
This is a complicated area. In general, it is important to demonstrate during any planning process that the mitigation hierachy has been applied ( Avoid, Mitigate and finally Compensate ). This approach is embedded in Para 175 of the NPPF.
“175. When determining planning applications, local planning authorities should apply the following principles:
(a) if significant harm to biodiversity resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated, or, as a last resort, compensated for, then planning permission should be refused;”
Alternatives might be unreasonable on the basis of economic costs (e.g. large areas cannot be left undisturbed), not achieving the objectives of the project (e.g. other layouts are not suitable ), or that the long-term outcome for the protected species might be the same ( e.g. an old building simply collapses from disrepair ).
Considering alternative site locations ( e.g. via a sequential test ) is not generally required for small-scale European protected species licencing. The level of evidence will be dependent on the level of impacts on protected species. Local planning policy and allocations will carry considerable weight for protected species.
Meeting Test #3 : long-term impacts on Favourable Conservation Status
This is the most technical area of the reasoned statement and dependent on input from an experienced ecologist.
How this is determined is dependent on the species group.
Test #1 : Exact wordings of Regulation 55(2)
The exact wording of Regulation 55(2) from “The Conservation of Habitats and Species Regulations 2017” states that the purposes for which a mitigation licence can be granted are :
“(e) preserving public health or public safety or other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment;
(f) preventing the spread of disease; or
(g) preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber or any other form of property or to fisheries.”
Tests #2 &3 : Exact wordings of Regulation 55(9) for alternatives and Favourable Conservation Status
Regulation 55(9) sets out the working for the two other tests to be fulfilled: “The relevant licensing body must not grant a licence under this regulation unless it is satisfied
(a) that there is no satisfactory alternative; and
(b) that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.”