The three derogation tests for a protected species licence

The European protected species licence tests are three, they are cumulative, and failing any one of them ends the application. Natural England must be satisfied that the licence is for a qualifying purpose, that there is no satisfactory alternative, and that the action will not be detrimental to maintaining the population of the species at favourable conservation status in its natural range.

Reviewers see the same weakness repeatedly. The reasoned statement argues the first test at length, asserts the second in a paragraph, and treats the third as a description of the mitigation.

Where the tests come from

They sit in regulation 55 of the Conservation of Habitats and Species Regulations 2017, carried over from Article 16 of the Habitats Directive, and they apply to the species listed as European protected species: all bat species, great crested newt, dormouse, otter, sand lizard, smooth snake, natterjack toad and a small number of others.

Different regimes apply to other protected species. Badgers are licensed under the Protection of Badgers Act 1992 against a different statutory test, and breeding birds are protected under the Wildlife and Countryside Act 1981 with no licensing route for development convenience at all. Applying the derogation tests to a badger sett licence is a common error in draft documents.

The offences the licence disapplies are set out separately, and one of them is strict liability: damaging or destroying a breeding site or resting place is an offence regardless of intent, which is why the licence matters even where nobody intends harm.

Imperative reasons of overriding public interest

Most development licences rely on the purpose covering imperative reasons of overriding public interest, including reasons of a social or economic nature, alongside preserving public health or public safety.

Each word does work. Imperative, meaning the interest has to be pressing rather than convenient. Overriding, meaning it has to outweigh the conservation interest at stake, so the weight of the public interest is judged against the importance of the population affected. And public, meaning the benefit accrues beyond the applicant.

Build the case from evidence rather than adjectives. Housing delivered against an identified need with the numbers stated. Employment floorspace with the jobs quantified. Infrastructure with the users served. The grant of planning permission itself is evidence that the authority considered the public benefit sufficient, and the officer's report is the document to quote.

What does not work is a general assertion that development is beneficial. Nor does an argument built entirely on the applicant's commercial position, since that is a private interest however genuine.

No satisfactory alternative

This is the test most often under-evidenced, and the one a reviewer should press hardest.

The question is not whether the proposed scheme is the best option for the applicant. It is whether there is any satisfactory alternative that would achieve the purpose with less harm to the species. The alternatives to consider are the ones a regulator will ask about:

• Doing nothing, and why that fails to meet the purpose.
• An alternative site, where one is genuinely available.
• An alternative layout or design that avoids the roost, the pond or the resting place.
• An alternative construction method, such as retaining a building rather than demolishing it, or working around a feature.
• Alternative timing, such as carrying out the work outside the sensitive season.

Each needs a reasoned rejection, not a one-line dismissal. A statement that no alternative exists, with no alternatives listed, tells the licensing officer that the exercise was not carried out.

Design alternatives are where the strongest cases are made and lost. Where the ecologist joined the team after the drawings were fixed, the honest answer is often that a satisfactory alternative did exist and was never considered, and that is a licensing problem rather than a drafting one.

Favourable conservation status

The third test asks whether the licensed action will be detrimental to maintaining the population of the species at favourable conservation status in its natural range. It is a population test, not a site test.

Answer it at the right scale. The relevant population for a small pipistrelle roost in a suburban loft is not the national pipistrelle population, and it is not the individual bats in that loft either. It is the local population the roost forms part of, and the assessment should describe that population, its status, and the effect of losing and replacing the feature.

Mitigation and compensation are the mechanism by which the answer becomes no detriment. Set out what is provided, at what ratio to what is lost, where it is, when it is available relative to the loss, and how it is secured in the long term. Replacement roost provision installed after demolition, in a building with different thermal characteristics, is not equivalent to what was lost and should not be presented as though it were.

Monitoring belongs here too, with the duration and the success criteria stated, and with a remedial mechanism if the criteria are not met.

What the local planning authority must do

A planning authority is a competent authority, and it must have regard to the requirements of the Habitats Directive in exercising its functions. The courts have held that where an authority is minded to grant permission for a scheme that will need a licence, it must consider whether the derogation tests are likely to be met, because permitting a development that could never be licensed is not a rational use of the power.

The Supreme Court has since clarified the limits of that duty. Where Natural England, as the licensing body, has expressed itself content, the planning authority can generally proceed on that basis rather than conducting its own parallel licensing assessment.

For a reviewer, the practical consequence is that the protected species survey and the mitigation strategy submitted with the application should be written so that an officer can reach a view on likelihood. That work requires a suitably licensed ecologist, and an AI-assisted draft is a starting point for that professional rather than a substitute for them.

Permission is not a licence

Planning permission does not authorise an offence. A developer holding a valid permission who destroys a bat roost without a licence has committed an offence, and the permission is no defence.

The sequencing runs the other way round. Natural England expects planning permission and other necessary consents to be in place before it grants a mitigation licence, because it needs to know the scheme it is licensing is the scheme that will be built. So the order is survey, then application with a mitigation strategy, then permission, then licence, then work.

Programme accordingly. Licence determination takes time, the ecological work has to be current, and the survey seasons set out in the preliminary ecological appraisal constrain when any of it can happen. Where a bat survey has already established a roost, the licensing timetable should be built into the programme from that point rather than at the end.

Class licences and the exceptions

Not every case goes through a full individual licence. Registered consultants can use a class licence for low impact bat work where the site meets the eligibility criteria, which is faster and lighter on paperwork, though the underlying tests are still satisfied at class level rather than individually.

District level licensing for great crested newts works differently again, replacing site-by-site mitigation with a strategic contribution to habitat creation across an area. Where it is available, it usually shortens the programme considerably.

Check eligibility early. A scheme that could have used a class licence but was taken down the individual route has usually lost months for nothing.

This is general guidance, not legal advice. Licensing decisions rest with Natural England on the facts of each case, so take advice from a licensed ecologist before relying on any of it.

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