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For the Birds? The Habitats Regulations and the Licensing of Outdoor Festivals

By Josef Cannon

In a recent article in the Journal of Licensing, two experienced planning/licensing barristers published an interesting article on the potential application of the Habitats Directive (Directive 92/43/EEC) and Birds Directives (Directive 2009/147/EC) on licensing.

Those pieces of EU law – transposed into domestic law by the Habitats Regulations - are well known to planners, and are a familiar part of the process when considering planning applications that might affect European-designated sites, known as Special Protection Areas (SPAs) and Special Areas of Conservation (SACs).

Where a planning application might have an effect on that site, the applicant must carry out an 'appropriate assessment' to show that no significant adverse effect would ensue, and those doing so should read Emma Dring's excellent summary of her recent case on how to do so lawfully.

Only where such an effect can be ruled out, the proposals can proceed. This reflects the 'precautionary principle' in EU law of this nature, which seeks to ensure the ongoing survival and flourishing of protected wildlife interests across the continent.

Such requirements are less well-known to licensing, but as Gary Grant and Charles Streeten point out, that may be more by luck than for any reason connected to the requirements themselves, which seem to bite on licensing applications. In short, the article argues - correctly in my view - that:

(a) Licensing authorities are likely to be "competent authorities" (under Reg 7) and so subject to the requirements
(b) Applications for certain premises licences are likely to fall within the wide definition of "plan or project" and therefore be caught by the requirement to consider their likely effect on any nearby designated site – see R (Akester) v DEFRA [2010] EWHC 232 (Admin)
(c) Where an appropriate assessment of those effects has been done but has not ruled out a significant adverse effect, the application must be refused

Grant and Streeten say (again correctly) that the potential consequences are extremely significant, and suggest that the most likely candidate might be music festivals in remote locations – although not all SPAs and SACs are rural. However, such festivals often do not benefit from planning permission because (being a temporary use of the land on which they are held) they do not require permission. The rural music festival on land close to a designated site, with no planning process to ensure the likely effect on the site has been appropriately assessed, would appear to be a clear candidate for their thesis.

I agree. But I think the consequences are far more significant – and complex – than they describe in their entertaining article. Developing their particular example (a music festival in a rural location close to, say, a SPA designated for its particular bird population), what should a licensing authority do in the following circumstances?

1. First, when the application is made, and Natural England makes a representation within time to the effect that the proposed music festival will be likely to disturb the birdlife, is that a "relevant representation"? The Licensing Act 2003 defines one of those as one that (along with meeting the formalities) "are about the likely effect of the grant of the premises licence on the promotion of the licensing objectives", and of course the four objectives are the prevention of crime and disorder, public safety, the prevention of public nuisance, and the protection of children from harm. At first blush, it is not at all clear which of those objectives a representation about the likely effect of loud music on bird life would be about. If it is not a 'relevant representation' so defined, it cannot be taken into account in the licensing process. Might there be scope to argue that it comes within 'public nuisance'? Might there be a route via the 'crime and disorder' objective, if one could show that harming protected species or interests was a criminal offence?

2. Secondly – if that representation was ruled not to be a 'relevant representation', but there were other 'conventional' representations about the effect on the licensing objectives, what right would the sub-committee have to take into account any likely effect on the SPA? The Act seems pretty clear about that: where there are relevant representations an authority must hold a hearing to consider those representations (unless all parties agree that it is unnecessary) and having regard to them, must take such of the steps provided as it considers appropriate for the promotion of the licensing objectives. Once again, if the effect of the music festival on the birds cannot be brought within one of the licensing objectives, it is difficult to see how it could be considered, on the terms of the 2003 Act.

3. The third scenario is even more difficult to unravel. What if there are no representations at all, but on its face the application might have an effect on the SPA? If the Licensing Act 2003 is clear about anything, it is clear that an application that attracts no relevant representations must be granted – see s.18(2), subject only to any conditions which are either mandatory ones or are consistent with the operating schedule. The domestic legislation says "must grant" and the EU law says, in effect, must not grant.

4. Fourthly, what if the licensing of the festival is done using temporary event notices, or TENs, in respect of which the grounds for objecting are still more circumscribed? There is no easy answer to any of this.

It seems that the solution, if there is one, lies in the case law relating to the relationship between EU law and domestic legislation. The Marleasing principle requires that where possible, domestic legislation must be read compatibly with EU law, and it may be that such an approach would allow representations about the potential disturbance to protected birds, for example, to be read as falling within the public nuisance objective (although it is stretching the meaning of the words almost to breaking point).

Where a provision of domestic law cannot be read compatibly with its EU counterpart, however, Marleasing has no effect and it may be that Factortame (No. 2) – which established the primacy of EU law over domestic law – might have to be invoked. It is difficult to see how "must grant" could be read as meaning "must not grant unless no significant adverse effect on a protected site" and in those circumstances a direct conflict would arise.

The application of Factortame would require a licensing authority in such circumstances to ignore the domestic law – amazingly, the very Act under which the licensing authority derives its existence – and refuse to grant the licence despite the clear duty under the 2003 Act to grant it.

In short, the consequences for licensing are indeed significant, and may be substantially more difficult to unravel than is set out in Gary and Charles' excellent article.