Bats

1. ‘Have we all gone bats?’ A Legal Examination of the Impact of the Protection of Species under the Habitats Directive on Tourism Projects in IrelandMarc Mc Donald, DIT

2. Bats Bats are a useful example to take because they ‘get in the way’ Use unoccupied, decaying, derelict buildings and forested areas, caves, tunnels Tourism interest in restoring and reusing such buildings etc

3. Bats • This creates conflict between conservation of bats and economic benefits of tourism • Planning and wildlife law provide the legal framework to decide priorities and solutions for such conflicts

4. Habitats Directive • It’s a European Community law which forces member states to ensure a healthy conservation status for flora, fauna and landform of European importance, (listed in Annexes) including all species of bats • Two principal mechanisms – designation of sites as ‘special areas of conservation’ (SAC’s) and protection of species independent of SAC’s

5. Protection of Species • Article 12 (1) requires states to create a ‘system of strict protection’ for protected species, including banning various interferences • Article 16 (1) providing for granting of derogations within narrow prescribed grounds • Two particular decisions of ECJ demonstrating application to tourism

6. First ECJ case: Commission v Greece C- 103/00 where Greece was held to have failed to operate an effective system of strict protection for sea turtles during breeding period and against disturbance of breeding sites Sea Turtles Case

7. Sea turtles breeding on sand beaches, hatching of eggs and movement of adult/baby turtles to adjoining sea area on beaches on Zakynthos Island Sea Turtles

8. Increased human access to sandy beaches and construction Use of mopeds on beach and pedalos and boats in sea Use of deck chairs and beach umbrellas Impacts of Tourism on Sea Turtles

10. ‘So, the night walks in these beaches are not allowed. Moreover, sailing and docking of any ship is not permitted in the bay. Also umbrellas, placed in the sand are not allowed in the beaches of Laganas and Kalamaki. ‘ http://www.greek-tourism.gr/zakynthos/careta-caretauk.htm

11. Waddenzee • ECJ decision in Dutch case LBVW v Secretary of State (Waddenzee) C-127/02 dealing with the granting of consent for mechanical cockle fishing affecting feeding stocks for protected birds

12. Highlights threshold for granting authorisations for activities which may affect protected areas By implication also relevant to derogations affecting protected species Wadeenzee

13. Only if there is no reasonable scientific doubt that the proposed activity will not adversely affect the conservation status of the protected species can authorisation be granted Waddenzee

14. Irish implementation of Habitats Directive • Irish implementation of system of strict protection failed to comply with Directive • In Commissions v Ireland C-183/05, 11.1.07, ECJ held Ireland failed to properly create a system of strict protection by allowing development consent to be given before an EIA concluded a development would have negative impacts on bats • Court cited Lough Rynn Estate as example

15. Empty estate house in large integrated demesne in rural NE midlands Proposal to turn into hotel, create 18 hole golf course, conference and leisure centres etc and houses and apartments Lough Rynn Estate

18. EIS did not adequately signal presence of bats among trees and buildings Planning permission granted despite this, but appealed Appeal rejected but condition attached that no work be done until full bat survey completed and adequate mitigating measures adopted Lough Rynn

19. Work started 2003, survey completed in 2004 showing works would lead to ‘total disappearance’ of bats in affected areas Hotel now open, golf course etc still under construction Current situation regarding bats not known Government has since issued Circular Letter and Draft Bat Action Plans Lough Rynn

21. Lough Key • Second Irish case involved a proposal to demolish some holiday cottages and build homes, bar/restaurant in some semi-cleared areas near lake shore 2km from existing visitor centre • Recreational forested area beside a large lake in midlands • Already some tourism development

23. Lough Key • Local planning framework appeared supportive and authority granted permission, NGO appealed to national planning appeals board • Permission refused by appeals board • Partly because development would probably affect bats and their resting/breeding places

25. Lough Key • Appeal board inspector’s report cited Waddenzee decision and claimed developer had not provided evidence to show beyond reasonable scientific doubt that development would not adversely affect bats conservation status • 2 related proposals for same area also failed for similar reasons

26. Mitigation • None of the case mentioned so far dealt with derogation and mitigation issues, but these are too important to leave out • Usually if bats are found a developer will want to move them to facilitate a development • System of strict protection means this cannot be done without an Article 16 (1) derogation licence, usually with mitigating conditions attached

27. Will mitigation work? • Waddenzee decision (plus derogation rule of construction) means if there is only a hope/wish/desire the bats will take to their new surroundings, derogation even with mitigation cannot be allowed • Bat science is still developing • Moving bats to alterative location does not always work

28. Will mitigation work? • ‘€175,000 bat house proving unpopular with bats Two years after being built at an estimated cost of €175,000 to the taxpayer, a custom-made bat house located along the route of the €205 million Ennis bypass has failed to attract a single bat.’ – Irish Times, 7.8.07

29. Conclusion • System of strict protection under Habitats Directive will have increasing implications for tourism developers • Planning permissions/derogations cannot be given by state bodies if any reasonable scientific doubt exists that bats will survive in a healthy state of conservation

30. Conclusions • All stakeholders (states, public bodies and tourism industry) are on a learning curve • Tourism developers/local authorities will need to select sites more carefully and use scientific advice more often