19th IFTTA Conference

Beja/Tavira, Portugal

October 2007

‘Have we all gone bats?’ A Legal Examination of the Impact of Species

Protection under the Habitats Directive on Tourism Projects in Ireland

Marc McDonald
School of Hospitality Management and Tourism
Cathal Brugha St
Dublin 1, Ireland

00353 1 402 4462

marc.mcdonald@dit.ie

1
Introduction

Links between tourism and landscapes are generally if vaguely understood. But, with
the exception of affected landowners and conservationists, links between tourism and
individual species of wildlife, such as bats, are perhaps less well understood or
valued, although this may be changing for reasons considered in this paper. Bats serve
as a useful exemplar of the tourism/species interface. They are an endangered1
species2 s of small animals with a distinct reputation3. They avoid humans, are
disturbed by human activity, noise and by street or public lighting. They nest in
buildings and places often abandoned by humans who then seek to displace them
when some contemporary, often tourism, use is found for the building or place. This
could be as a hotel resort, visitor cave or forested or open space. They are then
competing claims over these buildings and places and naturally law is used to resolve
these claims. Law sets the priorities and procedures by which competing claims are
resolved.

In this paper it is proposed to examine the legal framework used to resolve competing
claims between bat protection and tourism use and to illustrate its operation through a
number of examples. This will be done:
• Firstly, by describing the legal framework used to create a ‘system of strict
protection’ for bats in Ireland. This involves examining a European
Community law, the Habitats Directive 19924 on which the protection of all
wildlife and landforms of European importance, including bats, rests.
Reference will also be made to the ‘sea turtles’ case to show the general
relevance of the Directive to tourism. The Directive was principally
transposed in Ireland by the EC (Natural Habitats) Regulations 19975. As will
be seen both the transposition and implementation of the Habitats Directive in
Ireland has been the subject of a recent negative ruling by the European Court
of Justice.
• Secondly, by examining two cases of tourism projects which were foreseen to
have negative impacts on bat populations and which had contrasting
outcomes. One was allowed proceed. The other was not. The latter case in

1
In Europe ‘bat populations have declined over the last century [and] remain at risk’ – Kelleher C &
Marnell F (2006), Bat Mitigation Guidelines for Ireland, Irish Wildlife Manuals, No 25, NPWS,
Department of the Environment, Heritage and Local Government, Dublin, Ireland, p 9
2
Of the estimated 1,100 types of bats worldwide, there are 10 known types in Ireland – various
pipistrelle bats, Leisler’s bat, Natterer’s bat, Whiskered bat, Brandt’s bat, brown long-eared bat, lesser
horseshow bat. – Kelleher & Marnell, p 20
3
As an accessory in horror films. Additionally from a utilitarian perspective the reaction of this writers
mother seems not untypical ‘What good are bats?’
4
92/43/EEC, OJ L 206/7, 22.7.92
5
SI 94/1997 as amended by EC (Natural Habitats) (Amendment) Regulations SI 233/1998 and SI
378/2005

2
 particular is significant because it suggests that in areas where there are
protected species development consent will be increasingly difficult to obtain.
• Thirdly, by examining the option of seeking derogations (with conditions)
from the strict protection of bats and the reasons for and limits of such
derogations. Derogations are of obvious interest to developers in areas
containing bats, as are any mitigation measures which are attached to
derogation.
• Finally, by offering a summary and some conclusions regarding the impact of
the legal protection of bats on tourism projects. The broad thrust of the
conclusion will be that all stakeholders are still on a learning curve regarding
the significance of the legal protection of bats, and indeed, all forms of fauna
protected by the Habitats Directive. This law will increasingly impact
negatively on tourism projects to the point, in some cases, where projects will
not be allowed go ahead.

Legal Framework

Bats are listed in Annex II and Annex IV (a) of the Habitats Directive which means
they are within the protection of the Directive. The aim of the Directive is to
‘contribute towards ensuring bio-diversity through the conservation of natural habitats
and of wild faun and flora …’ - Article 2. Measures taken pursuant to this aim ‘shall
take account of economic, social and cultural requirements and regional
characteristics …’ - Article 2 (3). According to case law, among these requirements is
recreation6.

Of the two principal mechanism used by the Directive to protect habitats and species
– the creation of ‘special areas of conservation’ (SAC) and the protection of species
independently of their habitats by other means – only the latter are of further concern
for present purposes. It is perhaps in areas not specifically protected as SAC’s that
threats will be greatest.

The latter protection is set out in Article 12 (1) which obliges EU member states:
• to establish ‘a system of strict protection’ for listed species
• to prohibit deliberate capture or killing
• to prohibit ‘deliberate disturbance … particularly during the period of
breeding, rearing, hibernation and migration’7
• to prohibit ‘deliberate destruction or taking of eggs from the wild’
• to prohibit the deliberate or non-deliberate ‘deterioration or destruction of
breeding sites or resting places’.

Pragmatically the Habitats Directive also recognises that for good reasons derogations
from this strict protection can be allowed, but creates in Article 16 a formal procedure
with precisely defined grounds for granting derogations8.

6
Commission v Belgium C-247/85, [1987] ECR 3029, Para 8
7
‘[B]ats, for example, when disturbed during hibernation, heat up as a consequence and take flight, so
are less likely to survive the winter due to high loss of energy resources’ - Commission, Guidance
document on the strict protection of animal species of Community interest under the Habitats Directive
92/43/EEC, February 2007, Para 37

3
The more significant obligation on member states arising from Article 12 (1) is not
the creation of criminal prohibitions, while of course necessary, but the
implementation of the system of strict protection. This requires states to take a wide
range of meaningful preventative measures. These can include drawing up and
implementing ‘species action plans’. ‘Preventative measures anticipate the threats and
risks a species may face …’9

Sea Turtle Case

The general relevance of Article 12 (1) to tourism can be seen from a case involving
not bats, but sea turtles, another protected species. In Commission v Greece 10 the
Court of Justice found Greece to be in breach of Article 12 (1) for failing to
implement a system of strict protection of sea turtles at various beaches and sea areas
on the island of Zakinthos. According to the Court sand beaches and adjacent sea
areas are important for sea turtles for the following reasons:

‘the sea turtle Caretta carettta only lays egos every two years. In Greece the laying
season starts at the end of May and finishes at the end of August. The turtle leaves the
sea at night and moves towards the driest area of the beach, where it digs a hole of 40
to 60 centimetres in which it lays an average of 120 eggs. The Commission explains
that two months later the eggs hatch and the baby turtles then crawl onto the sand and
head towards the sea. The baby turtles are very vulnerable and a large number of them
die.’ 11

However at various beaches in Zakinthos used by breeding sea turtles access routes
for tourists were increased. This resulted in illegal building on some beaches,
significant use of beach umbrellas and deck chairs, greater noise levels, particularly
from the use of mopeds on some beaches and the use of pedalos and boats in
adjoining sea areas. Because of this the Court declared12:

‘[Greece] did not take ... all the requisite specific measures to prevent the deliberate
disturbance of the sea turtle … during its breeding period and the deterioration or
destruction of its breeding sites.’

Control Systems
Member states must establish control systems over human activities which can harm
protected species like bats. This results from the combined effect of the ‘system of
strict protection’ required by Article 12 (1) and the possibility of obtaining a
derogation under Article 16 (1). Ireland implemented the control system in two ways.
If an activity which threatens bats amounts to ‘development’ (alterations to land or
material changes in land-use) under planning law13 then planning permission must be
sought from the planning (local) authority and any decision must take account of the
requirements of the Directive. If it is something short of development, like capturing
8
See generally, Commission, Guidance document on the strict protection of animal species of
Community interest under the Habitats Directive 92/43/EEC, final version, February 2007. text
available at: http://circa.europa.eu/Public/irc/env/species_protection/library?
l=/commission_guidance/final-completepdf/_EN_1.0_&a=d Accessed 27.9.07
9
Ibid, Para 23
10
C-103/00, [2002] ECR I-1147
11
Ibid, Para 16
12
Ibid, Para 39
13
Planning and Development Act 2000 as amended

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or disturbing bats, then under wildlife law14 it is called an ‘operation or activity’ and a
derogation licence must be obtained from the Minister for the Environment etc.
Incidentally, both systems operate independently of each other and permission under
both may have to be obtained. Planning permission on its own is usually not enough.

Ireland adopted a somewhat convoluted approach to transposing the Habitats

Directive and ‘marrying it’ with existing national wildlife law. This resulted in two
parallel sets of rules, one more generous to human interferences with protected
species15. The precise way this was done is not germane to this paper. Suffice to say
the method used by Ireland eventually lead to Ireland being found to be in breach of
its tranposition obligations by the Court of Justice.16

Compliance with the Habitats Directive, as with all Community laws, requires not just
proper transposition, but also proper implementation. Here too in the same
proceedings Ireland was held17 to be in breach of its obligation to comply with Article
12 (1) in a number of ways as regards different bat species. These included lack of
species action plans, lack of information about breeding sites and resting places and
threats to them, and lack of administrative resources to carry out its obligation In the
words of the Commission Ireland’s efforts were ‘disparate and patchy’. The lack of
information about bats in turn meant that a public body operating a control system
over projects likely to affect bats would be likely to make decisions damaging to bats.
That indeed is what happened in a number of examples cited in the same litigation,
one of which, Lough Rynn Estate18 in the north Irish midlands, concerned the impact
of a diverse tourism project on bats and is examined in the next section of this paper.

The obvious consequence of Court’s decision is that Ireland will have to devote more
resources to surveying bats and preparing and implementing bat species action plans.
The implications of this for tourism and other projects are obvious. As more
resources are put into surveying and planning more will become known about the
presence and activities of bats and more tourism projects are likely to be negatively
affected as a result. Whether this will mean a project will not go ahead or may have to
be modified depends on a variety of matters, including the possibility of obtaining a
derogation licence and implementing any mitigation measures.

A final point before examining the Lough Rynn Estate case concerns a member
state’s duty to anticipate threats to protected species as part of its ‘system of strict
protection’. There is the surprising possibility that a developer might use this duty to
its own advantage. If a developer identifies a decayed building or place containing
bats as possessing tourism development potential, might it be possible to claim that
the national competent authority must remove the bats to reduce the threat the
development would pose? A developer might in effect seek to force the state to do the
bat clearance work for it.

14
EC (Natural Habitats) Regulations 1997 as amended
15
Some provisions of Irish law did not prohibit the non-deliberate deterioration or destruction of
breeding sites and resting places as required by Article 12 (10 (d) – Commission v Ireland C-183/05,
11.1.07, Para 47
16
Ibid, Para 44-49
17
Ibid, Para 13-33
18
PL 12. 127172, ABP decision 20.9.02

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II Planning Cases and Bats

The principal control system used by Ireland to protect bats and other protected
species is, as regards ‘development’, the need to obtain planning permission under
planning law. There are two ways planning law does this. Firstly, the planning
authority must take account of designation as a site of European importance (proposed
SAC) when dealing with a planning application.19 Secondly, and more pertinent to
this paper, the planning authority must also take account of the presence on or near
the site of the proposed development of protected species under the Habitats
Directive. This latter obligation, while not explicit in the Planning and Development
Act 2000 as perhaps it should be, applies because, as an organ of the state a planning
authority is within the obligation on member states under Article 10 of the Treaty
establishing the European Community (Rome Treaty) to ensure the application of all
Community laws within its sphere of competence.20

Two particular planning cases highlight contrasting ways in which bats were affected
by tourism projects – Lough Rynn Estate which was cited in the recent Court of
Justice case, Commission v Ireland21, and Lough Key22 which went only as far as the
national planning appeals board (ABP).

Lough Rynn Estate

Lough Rynn Estate consisted of an old country estate comprising an empty but not
derelict country house, some lakes and tracts of woodland, parkland, pastureland and
gardens. The project proposed the renovation and conversion of the house and
adjacent buildings into a hotel complex, the creation of an 18 hole golf course,
business, equitation and leisure centres, some housing, holiday apartments and car
parks. Planning permission with conditions was granted in December 2000 by the
local planning authority. An appeal against this was then made to ABP.23 The
planning application raised a host of complex planning issues relating to landscape,
architectural and other matters, but for present purposes only bat impacts will be
considered.

The planning application included an environmental impact study which as regards

bats noted their presence on the project site but did not contain enough information to
enable bat impacts to be properly assessed. The report of the ABP inspector stated as
follows:

‘There are also the points made by An Taisce [environmental NGO] in their appeal
that the EIS is inadequate in other respects, that the European EIA Directives are
contravened and that the full information should be available on the presence or
otherwise on the site of bats, before any decision is made. I do agree that the
19
Section 34 (2), 2000 Act
20
Germany v Commission C- 8/88, [1990] ECR I-2321
21
Supra
22
PL 20.215543, ABP decision 25.5.06
23
The ABP inspector’s report for the ABP board functions somewhat like an Advocate General’s
Opinion for the Court of Justice, but is perhaps of greater value in that the Board decision is not as
information (when it disagrees with the inspectors recommendation) as a Court decision is

6
production of the original and the revised EISs over at least a six month period should
have allowed sufficient time for appropriate survey work to have been done. Indeed
further time has elapsed with the lodging of the appeal. In any event however the bat
question will need to be resolved properly before the development can go ahead, and
the pragmatic approach would now be to deal with this by way of condition.’

ABP accepted the recommendation and the project was approved with the following
condition attached24:

‘Prior to commencement of development, the developer shall carry out a

comprehensive survey of bat populations at the site. Appropriate mitigation measures
to minimise disturbance shall be agreed with the planning authority.’

However, it does not appear that this is what happened. According to the Opinion of
the Advocate in the subsequent proceedings before the Court of Justice:

‘The documents in the case file show that the development was approved by the
Board in 2002, whereas the survey demonstrating negative impacts on bats was
completed only in 2004 and works commenced in 2003.’

In fact the survey showed major negative impacts for bats habitats.

‘That survey, which was completed after planning permission was granted,
demonstrated that the renovation of certain buildings and the removal of certain trees
would lead to the total disappearance of those habitats as breeding sites and resting
places. It also noted that noise and lighting as a result of human occupation would
have a significant impact on bat species.’25

Not surprisingly this was cited by the Commission as an example of a failure by

Ireland to properly implement Article 12 (1) of the Habitats Directive.

‘the Commission … submits that a proposed hotel development on the Lough Rynn
Estate was the subject of an EIA which showed negative impacts on bat populations.
In spite of this, the Irish authorities did not request any further information before
granting consent and failed to make any reference to the need for the conditions set
out in Article 16 of the Habitats Directive [the formal derogation procedure] to be
observed.’

The Irish defence was essentially that all legal requirements had been observed and
that if work had been carried out prior to the survey being completed and assessed,
that was an issue of non-compliance with planning conditions rather than a failure by
Ireland to properly implement the Directive.

The Court of Justice disagreed and held that Ireland had not properly implemented the
Habitats Directive. Ireland had given development consent before an assessment
showed negative effects on bats. According to the Court26:

24
Supra, Condition 14 of Order of ABP, 20.9.02
25
Opinion of AG Leger, C-183/05, 21.9.06, Para 59
26
C-183/05, 11.1.07, Para 36 et seq

7
‘the authorisation of a project prior to the environmental impact assessment
concluding that the project would have negative impacts on the environment … shows
that the species listed in Annex IV (a) to [the Habitats] Directive … and their
breeding sites and resting places are subject to disturbances and to threats which the
Irish rules do not make it possible to prevent … Consequently it cannot be concluded
that all measures have been taken to implement effectively the system of strict
protection.’

The Courts reasoning (which dealt with other failings by Ireland as well) is a
significant criticism of how the Irish planning authorities understood and applied
Article 12 (1). There was an insufficient appreciation of the legal implications of bat
protection eight years after the Directive should have been implemented. But perhaps
the larger failing was that the planning authorities, initial and appellate, did not have
the necessary bat information in advance of the initial application. If that had been
available by means of a proper bat species action plan, the planning outcomes would
surely have been different and any shortcomings in the EIS would have been of lesser
significance. Thus, aside from the point that permission should not be granted without
an adequate EIS to assess the likely impact of the project on bats, the clear lessons
from Lough Rynn Estate are:
• planning authorities must possess adequate information on the presence of bats
in their areas in advance of dealing with a planning application, and
• the competent state authority for wildlife protection must acquire and
disseminate bat information to planning authorities to enable them make
decisions in full compliance with the law.

Ireland responded to the decision of the Court of Justice by issuing a Circular Letter27
in which the relevant government minister reminded planning authorities of the nature
and importance of the legal protection of species independent of planning law. The
Letter did not, as perhaps it might have, instruct planning authorities not to use
consent conditions like the one used by ABP in Lough Rynn. Ireland had also recently
published a draft action plan for nine species of bats 28. One of the targets is ‘Maintain
database of records of all known bat roosts and available to local authorities and
developers as appropriate.’29

Lough Key
Even before the Circular Letter was issued ABP appears to have learned the lesson of
its mistaken approach in Lough Rynn Estate. In a subsequent planning decision it
showed a much greater awareness of the importance of bat protection.

27
Guidance on Compliance with Regulation 23 of the Habitats Regulations 1997 – strict protection of
certain species/applications for derogation licences, NPWS 2/07, 16.5.07
28
See All Ireland Species Action Plan – Bats, Draft for Public Consultation, March 2007.
Text available at http://www.npws.ie/en/media/Media,4990,en.pdf Accessed 12.9.07
29
Ibid, Para 5.2.4

8
In Lough Key30 the site, which was not far from Lough Rynn, was largely ‘shrub land
overgrown with semi-natural woodland’ with some grassland, but was bordered by
agricultural land, woodlands and a lake. The proposed project involved the demolition
of some buildings, as well the construction of 72 clustered holiday houses, small
leisure and conference centres, lounge/bar, restaurant, shop and car parking. The EIS
noted bat roost on buildings on the site, but no bats were found, although the survey
had not been carried out at the best time to gauge bat activity. The ABP inspector’s
report noted, however, that the site fitted into a larger area likely to contain bat and
other protected species and their habitats. He concluded that in the absence of precise
information showing the absence of adverse impacts of the project on the bat habitat,
permission should be refused. The board of ABP agreed and consent was refused

What caused this different outcome is difficult to say, except that the APB inspector’s
report was well argued, reflected a greater awareness of the threats to bats and
probably most importantly reflected an awareness of the legal standard applicable to
judging projects likely to affect protected species. In reaching his conclusion the
inspector referred to the Court of Justice decision in LVBW v Secretary of State31
(Waddenzee) where the basic approach to be taken in dealing with an application for
official authorisation in cases of doubt or uncertainty about adverse impacts was
outlined. Although Waddenzee concerned permission affecting a protected area, the
approach to be taken is the same when dealing with an application for a derogation
(under Article 16) from Article 12 (1). In Waddenzee the Court of Justice stated32:

‘It is therefore apparent that the plan or project in question may be granted
authorisation only on the condition that the competent national authorities are
convinced that it will not adversely affect the integrity of the site concerned … So,
where a doubt remains as to the absence of adverse effects on the integrity of the site
linked to the plan or project being considered, the competent authority will have to
refuse authorisation.’

The inspector’s reference to this case is set in a longer passage in his report which
well shows how he reached his overall conclusion and although lengthy, it is worth
quoting33:

‘The site forms part of the wider Lough Key area which accommodates high quality
habitats including habitats for protected species, bats, pine martin and red squirrel.
The EIS notes that no protected species were recorded within the site during the flora
and fauna survey carried out as part of the EIA. It is acknowledged in the EIS that the
survey which is carried out in August would have seasonality limitations. The
document states that ‘the ecological survey in August will reveal evidence of mammal
activity, and some breeding birds can be observed, however winter is the optimal time
for the mammal survey and spring is the optimal time for surveying breeding birds’.
The EIA recorded a pine martin to the immediate north of the site and bat roosts were
30
PL 20.215543. Inspectors Report, April 06. ABP decision 25.5.06. This was one of three related
developments proposed for the same area, all of which raised issues of possible impacts on bats and all
of which were refused, partly or mainly, for those reasons - PL 20.213841, ABP decision 20.1.06 – 78
holiday homes; PL 215423, ABP decision 23.5.06 – 199 holiday cottages, 18 hole golf course,
clubhouse, tennis courts, car parking
31
C-127/02, [2004] ECR I- 7405
32
Ibid, Para 56
33
Supra, pp 23-25

9
recorded on the existing buildings within the site. An Otter spraint was recorded at the
north eastern boundary of the site. I do not consider that the proposed development
will result in a significant level of habitat loss by way of the physical removal of
woodland. I reiterate that I consider that the applicants contention that approximately
6% of woodland would be removed as a result of the proposed development would
not seem unreasonable. It is clear however that the site forms part of a largescale
woodland surrounding a lake and there is a significant and diverse ecology including
the protected species in the general area. Just because the EIS did not record any
protected species on site does not imply that no such species frequent or rely on the
woodland as part of their natural habitat. The seasonal limitations of the survey may
not have revealed the importance of this habitat for protected species. The proposed
development will be restricted in the main to the western and northern areas of the
site. The substantial area of woodland adjoining the existing NHA will remain for the
most part undisturbed. Notwithstanding this the proposal will result in a very
significant intensification of human activity in an area which heretofore has seen little
activity other than that associated with the lake shore. I would have particular
concerns in relation to the lesser horseshoe bat which is an internationally important
species and one of the most sensitive to disturbance. According to the Red Data
Book, the loss of suitable summer sites and disturbance during hibernation are the
major threats facing this species. The EIS identified several summer roosts probably
associated with Pipistrelle, Brown Longeared, Daubentons and Leislers, these are
likewise protected species and are listed in the Habitats Directive. It is stated that
other bat species are potentially using the woodlands but the nature of the bat roosts
and the bat activity makes a complete survey of the woods extremely difficult and
time consuming. The EIS is not determined therefore whether there were other roosts
of bats in the area and whether the woodlands were being availed for breeding
purposes. The Board therefore cannot be sure that the proposed development would
not impact on the fragile horseshoe bat which is very sensitive to changes in the
environment. The proposed development will result in some removal of habitats,
particularly woodland, but perhaps more importantly is the increased disturbance of
habitats by people, vehicles and machinery. Habitat fragmentation may also occur
with the removal of and perhaps more importantly interference with, vital wildlife
corridors and the increased disturbance resulting from man made corridors. Habitats
may also be altered through the introduction of artificial lighting and areas of
hardstanding.

The extent of the potential adverse implications is not apparent as results of a less
than comprehensive survey. The proposal could likewise have an adverse impact on
populations of pine martin and red squirrel for the same reasons. Locating holiday
homes outside the forest park and within existing settlements would be more
advantageous from a nature point of view.

Finally in relation to the ecological impact the Board should have regard to the
Waddenzee Judgement (Case C-127/02) where it was ruled that where development
is proposed in or which may effect a nature conservation site, authorisation can be
granted only when the consent authority is convinced beyond reasonable scientific
doubt that the proposal will not adversely affect the integrity of the site unless there
are imperative reasons of overriding public interest. I would consider the above
Judgement to be relevant in this instance, having regard to the close proximity of an
pNHA and the wider area including the site area forms part of a continuity of

10
woodland habitats which contain a mosaic of important habitat types along the lake
shore. I do not consider that the case put forward on behalf of the applicant can
convince beyond reasonable doubt that the proposal will not have an negative impact
on protected species.’

Two important points stand out from this passage:

• impacts other than destruction/disturbance of species or sites, such as lighting
and human noise and activity (which are always associated with tourism
developments) can be significant adverse impacts and can justify a refusal of
consent
• the need for scientific certainty, or the absence of reasonable scientific doubt,
that impacts will not be adverse before permission can be granted. This puts it
up to a developer to produce robust credible scientific evidence as part of the
initial planning application.

Together, both points set a high threshold for tourism developers to cross before
permission can be granted. If all planning authorities apply the law as now understood
tourism developers will encounter significant problems in future in making a tourism
use of old buildings with bats or building in areas which are rich in protected species.

Derogations
The destruction of bats and their roosts or their capture and removal to other places in
order to facilitate a tourism project are, as we have seen, prohibited by Article 12 (1)
of the Habitats Directive and its Irish transposition, Regulation 23 (1) and (2) of the
EC (Natural Habitats) Regulations 1997 as amended. However, as previously
indicated, Article 16 (1) of the Directive allows member states to grant derogations
from the prohibitions contained in Article 12 (1).

There are just two reasons listed in Article 16 (1) for granting derogations of potential
relevance to tourism projects. But before looking at these some preliminary comments
are necessary. These comments deal with:
• planning permission and derogations
• Ireland’s lack of experience in granting derogations
• the starting point or basic premise from which to view applications for
derogations.

Planning permission and derogations

The need to seek derogation is independent of a grant of planning permission or of a
condition attached to planning permission which requires mitigation measures to be
taken to safeguard bats. This is because both permissions are granted under separate
legislative codes. Two applications will be necessary, one for planning permission
from the local authority and one for what is called a ‘derogation licence’ to the
relevant government minister, the Minister for the Environment etc. Even if planning
permission has already been secured the derogation licence can still be refused.

Ireland’s lack of experience

Ireland does not have much experience of operating the derogation system because it
only started operating it in 2005, not 1994 when it should have.34 Nor are there any
34
And was criticised by the Court of Justice in Commission v Ireland C-183/05, 11.1.07, Para 36 for
granting project authorisations without a derogation with the result that Ireland was not adopting a

11
decisions to date from the Court of Justice on Article 16 (1), although the
Commission has issued guidance on the matter.35 There is therefore little direct
experience to draw on to illustrate how derogation operates. Yet, derogation will be
central to any tourism project in an area containing bats or other protected species and
project developers and their advisors can be expected to routinely seek derogations to
remove bats from buildings or areas and relocate them, if necessary, to bat boxes or a
purpose built bat houses.

The starting point

The starting point in any consideration of a derogation application must be the overall
aim of the Habitats Directive, viz., to ‘contribute toward ensuring bio-diversity
through the conservation of natural habitats and wild fauna and flora’ in the European
part of the Community – Article 2. Two particular principles of interpretation of
Community environmental law then guide how derogations can interact with this aim.

Firstly, there is the precautionary principle, mentioned in Article 174 (2) of the Rome
Treaty which in the present context means that a derogation cannot be granted unless
there is no reasonable scientific doubt that the protected species will not be adversely
affected by the project. This principle was referred in the Waddenzee and Lough Key
cases mentioned above.

Secondly, there is a principle of interpretation of Community law which requires that

derogation from a principle or policy in a Directive must be construed strictly or
narrowly and not be allowed go further than is warranted by the wording of the
derogation.36 Together both principles suggest derogations should not be easily
granted.

The words of the proviso at the start of Article 16 (1) also set the basic premise from
which an application for a derogation can be judged and can also be seen as reflecting
the concern that derogations should not be easy to obtain. It states:

‘Provided that there is no satisfactory alternative and the derogation is not detrimental
to the maintenance of the populations concerned at a favourable conservation status in
their natural range ….’

The proviso further indicates the following guidance on how to deal with derogation
applications (which it is convenient to deal with now, although the Commission
suggests37 the proviso should be looked at after the listed grounds for granting
derogations are considered):
• in context the reference to the absence of a satisfactory alternative means the
absence of an alternative to the risk the bats will face from the proposed
development and not the absence of an alternative location to which the bats
could be moved. Thus, there must first be a risk faced by the bats for which a
derogation licence is sought. However, the nature and type of that risk is not
indicated by Article 16. In the tourism context this gives rise to the following
question – if planning permission is granted for a tourism project which is

system for strict protection of protected species.

35
Commission Guidance Document, supra, Chapter III, pp 51-66
36
easyCar v OFT C-336/03, 2005 [ECR] I - 1947
37
Supra, p 54

12
 likely to have adverse consequences for bats, does the likelihood of the
developer acting on that permission constitute the type of risk envisaged by
the proviso and would a derogation licence have to be granted? To answer this
one notes there is always the risk, if a project goes ahead without a derogation
licence, that criminal acts will be committed. The risk is that a developer will
break the criminal law. But this type of risk is not an inevitable one and it may
be that it is not the type of risk which can be taken into account in assessing
the risk facing the bats. Were the position otherwise it would be easy for a
developer to essentially force the granting of a derogation licence.
• If a derogation licence does allow bats to be moved, there are two possible
interpretations as to how far they can be moved and this could significantly
affect any development project. One view is that they can only be moved
within the natural range of the bats as they are at present. The other is that it is
not so limited and only requires that wherever they are moved to must contain
all the conditions necessary for a healthy conservation status within their
natural range of movement. A strict interpretation may mean that the former
view is the more correct one.

Grounds for granting derogations

The two grounds for granting derogations listed in Article 16 (1) which seem relevant
to tourism projects are:
• Where it is in the interest of protecting wild fauna and flora and conserving
natural habitats – Article 16 (1) (a)
• Where it is in the interests of public health and public safety, or for other
imperative reasons of overriding public interest, including those of a social or
economic nature and beneficial consequences of primary importance for the
environment - Article 16 (1) (c).

At first glance, it must be admitted, neither of these grounds applicable to tourism

projects. In the latter case if a project is private and commercial, as most tourism
projects are likely to be, it will not normally satisfy the requirement of ‘public
interest’. According to the Commission38 ‘projects that are entirely in the interest of
companies or individuals would generally not be considered as covered.’ The long or
short term objectives of a project would also be relevant.

The former reason, however, might have some surprising relevance to tourism
projects and anecdotally may have been applied in the limited Irish application of
Article 16 (1). The reasoning is as follows.

If bats are found in a derelict building (which a developer wants to knock down or
convert) it is unlikely over the passage of time, if left undisturbed and as a matter of
scientific probability, that the derelict building will remain a satisfactory habitat for
them. Therefore, if a developer offers to build bat boxes or a bat house for the bats in
a different location as part of a tourism project, that might offer a better longer term
habitat for them.

The legal basis for this reasoning involves focusing more on the words in Article 16
(1) (a) ‘in the interest of protecting wild fauna’ rather than on the words ‘conserving

38
Supra, p 55

13
natural habitats’ since replacing an existing natural habitat with one that does not yet
exist (and is untried and unused) might not amount to conserving a natural habitat.

The reasoning also involves assuming that even if bats are living satisfactorily now in
the derelict building the unknown possibility of the bats not living satisfactorily in
that building at some uncertain point in the future, perhaps 5 or 10 years hence,
supports a legal conclusion that their removal is ‘in the interests of protecting wild
fauna’. Whether such reasoning will survive judicial scrutiny remains to be seen. If
accepted it could mean in fact that few projects would be stopped because of the
presence of bats on site. Developers could simply offer to relocate them.

Mitigation
If a derogation licence is granted it is likely that conditions will be attached to it in
order to mitigate the effects of the disruption to the bats and their habitats and to
safeguard their conservation status.39 Attaching conditions is thus an attempt to marry
the principle of bat protection with approval for a project. At present the Irish
legislation does not explicitly authorise the attaching of conditions to derogation
licences or stipulate the consequences of non-compliance with them. This is a
significant omission which should be remedied, although given that a derogation
licence can be seen, really, as something favourable to a developer, it would be
surprising if anyone sought to gain advantage from the present situation.

Despite the absence of power to attach conditions to derogation licences the Irish
authorities still attach them. Typical conditions currently used for projects affecting
bats can, for example, require a new hotel to operate various mitigation measures such
as constructing a bat house or bat boxes at a defined locations, incorporating bat
access points into a new/refurbished building, limiting the times when
construction/use of wood treatment chemicals/bat removal can take place, screening
of lighting to minimise disturbance to bats and on-going monitoring of bats to
determine their conservation status.

All these measures pre-suppose an initial judgement that the bats will take to their
new location and survive in a healthy state of conservation. Whether this will happen
will vary with each case. The assessment of whether to grant a derogation with
conditions attached will have to rely, not only on current scientific knowledge and
data on how well the type of mitigation measure works, but also on a significant
element of prognosis, that is estimating the impact of foreseeable future influences on
the bats, whether specific or general threats, positive or negative, medium-to long-
term. Current scientific knowledge on the effectiveness of mitigation measures is not
as strong as developers might wish.

‘At present there are few data about the conservation value of large crevice-type bat-
boxes intended for use as maternity roosts, such as the ‘bat-houses’ developed in the
USA … so that these cannot be considered adequate replacements for significant
maternity roosts of any species’40
39
This legal conclusion follows from the general obligation on member states under Article 10 of the
Rome Treaty to secure the aim of Community legislation, in this case, Article 2 of the Habitats
Directive to contribute to bio-diversity through conservation. See also Kelleher & Marnell, supra,
Chapter 8, Mitigation and compensation methods, pp 53 - 66
40
Kelleher & Marnell, supra, p 59. The ‘first purpose-built bat house in Ireland and the most modern
in Europe’ with ‘state-of-the-art design and monitoring equipment’ (built as part of a new road

14
The assessment is therefore a high stakes process. If the bats do not take to the new
location there is no going back and telling the developer to return them to their
original location. It will be too late. They may be dead.

Indeed, this reality and two further considerations - the words of Article 12 (1)
requiring a ‘system of strict protection’ and the ruling by the Court of Justice in
Waddenzee that there must be scientific certainty that there will be no adverse effects
on protected species before an authorisation is granted - tell us a lot about how
derogation and mitigation should be operated. Mitigation conditions cannot be used to
minimise uncertainty or doubt about the effects of moving bats or, put differently, in
the hope that the move will work. If there is a reasonable scientific doubt whether
mitigation will work, the derogation licence should not be granted.

Summary and Conclusion

The legal protection of bats under the Habitats Directive and its national
transpositions have serious implications for tourism projects in areas where bats are
present. States must create and operate control systems which are predicated on the
need to ensure the strict protection of bats. Traditional antipathy towards bats can play
no role in this. The fact that derogations can be granted does not authorise operating
anything other than a system of strict protection. Tourism developers are ill-advised if
they regard derogations as just another hurdle to be overcome in a pragmatic fashion.
Even with the possibility of derogations, the system of strict protection requires that
bat protection is prioritised over tourism development.

Ireland has been slow to accord to bats the level of strict protection required by the
Habitats Directive. It has not put the resources into monitoring bats and gathering the
necessary bat information and it has not devised and implemented bat species action
plans. For this it was duly condemned recently by the Court of Justice. While they
lasted Ireland’s failings probably benefited tourism projects in the sense that bat
impacts were either ignored or downplayed. Even the national planning appeals board
did not seem as aware as it should have been of the priorities required by the system
of strict protection, as in the Lough Rynn Estate case, although this has changed, as in
the Lough Key case. All stakeholders, it would seem, are on an unduly long learning
curve whose apex may still not have been reached.

Nonetheless, it seems clear as decision-makers and developers gain more experience

of the requirements of a system of strict protection of wildlife protected by the
Habitats Directive the negative implications for tourism projects will become more
apparent. Developers will find their projects increasingly affected and sometimes
prohibited by the need to protect bats. Obtaining specialist wildlife advice and
selecting sites more carefully will become increasingly necessary for developers.

END

scheme near Ennis in southwest Ireland) was reported after two years to have not attracted a single bat
- Irish Times, 7.8.07

15