The evolving interpretation of derogation under the EU Habitats Directive is reshaping Ireland’s approach to species protection, requiring earlier ecological assessment, clearer justification, and more front loaded engagement in the planning process. Ireland supports a wide range of legally protected plant and animal species, including those covered by the EU Habitats Directive (92/43/EEC). Under this Directive, Member States must provide Strict Protection for species listed in Annex IV, ensuring their conservation and safeguarding their habitats. The EU Habitats Directive is transposed in Ireland by the European Communities Birds and Natural Habitats Regulations 2011, as amended. A list of species protected under Annex IV is provided in the table below.
| Animal | Plant |
|---|---|
| Otter | Slender Naiad |
| All bat species | Killarney Fern |
| Kerry Slug | |
| Natterjack Toad | |
| Marine Animals |
The Regulations prohibit any actions that may capture, kill, or disturb these species, or damage or destroy their breeding sites or resting places. Where such impacts cannot be fully avoided during proposed works, a derogation may be required. A derogation provides a legal mechanism to permit these otherwise prohibited activities, but only in narrowly defined circumstances and under strict conditions. An application for a derogation must be submitted to the National Parks and Wildlife Service (NPWS) and supported by a robust justification, including detailed survey information.
Historically, obtaining a derogation was often deferred until after the planning consent stage of projects but case law including the Hellfire Massey judgment and the CJEU ruling in Case C 166/22 highlight that continuing with that approach exposes projects to substantial compliance risk, planning vulnerability, and potential delays.
The Hellfire Massey case concerned the proposed Hellfire Club visitor centre, where potential impacts on bat species were a key issue. Pre construction surveys identified nine trees with suitable roosting features, although no actual roosts were confirmed at the time the planning application was submitted. An Bord Pleanála granted consent without requiring a derogation, and the High Court later upheld this decision on the basis that no derogation was needed at that stage. However, the judgment reaffirmed an important principle: where a derogation is required, it must be obtained before planning consent is issued, reflecting the position set out by the CJEU in Case C 166/22. The case highlights that reliance on the pre construction approach is not sufficient; potential derogation needs must be identified early, and the derogation process should be front loaded into project planning.
Before a derogation can be granted, the NPWS applies three cumulative tests in sequence. First, the applicant must demonstrate that the derogation is required for one or more of the specific reasons set out in Regulation 54(2)(a)–(e):
- a) In the interests of protecting wild flora and fauna and conserving natural habitats
- b) To prevent serious damage, in particular to crops, livestock, forests, fisheries and water, and other types of property
- c) 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
- d)For the purpose of research and education, of re-populating and re-introducing these species and for the breeding operations necessary for these purposes, including artificial propagation of plants, or
- e) To allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species to the extent specified therein, which are referred to in the First Schedule
If this threshold is met, the second test considers whether there is no satisfactory alternative to the proposed activity. Finally, the third test assesses whether the derogation would not be detrimental to the maintenance of the species’ populations at a favourable conservation status within their natural range. If an application fails any one of these tests, it is refused without progressing to the next stage. A derogation may only be issued where all three tests are satisfied.
A number of practical challenges now arise for developers under the clarified derogation requirements. Projects must front load ecological surveys and secure any necessary derogations before planning consent is granted, which can significantly extend pre-planning timelines. Seasonal constraints add further complexity, particularly for bat surveys, which can only be carried out during specific activity periods and often create programme bottlenecks.
To address these challenges, it is essential that appropriate survey planning and potential derogation needs are identified at the earliest stages of a project. The NPWS has issued guidance on strict protection and the derogation process, and early engagement with the NPWS is increasingly important, helping to clarify requirements and reduce uncertainty. Fostering open collaboration and ensuring developers are aware of survey timelines and derogation tests are all key to maintaining an effective system of strict protection while supporting well planned development.
If you have any queries regarding derogations, or if you require assistance with planning your project programme to avoid seasonal delays and constraints, please contact our Ecology and Bat Surveys teams.