The little owl is once again the cause of new case law. The Administrative Jurisdiction Division tests a zoning plan marginally for feasibility in view of the prohibitions in the Flora and Fauna Act/Bird Directive. The substantive Ff discussion is conducted in the Ff procedure. In a general sense, the current ruling of a 10 September 2014, case number 201401344/1/R6, gives a-big-steps-fast-home impression. This is explained by the approach as being a marginal review. As far as I know, this ruling now makes it clear for the first time that an appeal against the feasibility test pursuant to the Ff Act only succeeds if, when adopting a zoning plan, the council could reasonably have realised that it was impossible to grant an Ff exemption, because with the implementation of the plan it is certain that a reproduction site will be lost. The loss of a breeding site for a little owl has a substantial influence on the favourable state of conservation of a local population of little owls.
Therefore, if it is not clear to - say - a "layman" that the implementation will have a substantial impact, for example due to the fact that ecologists discuss the actual remaining size of the foraging area or its remaining quality around the reproduction site concerned, the Division will soon find that the substantial negative impact is insufficiently established and that a check against the Birds Directive is no longer relevant in the zoning plan procedure.
The lesson here is that there will only be a "substantial influence" if the protected breeding site is (almost) certainly likely to be destroyed because of the planned implementation of the development plan. I deliberately write "may be" because the interpretation of the term "substantial influence" has, as far as I know, not yet been clearly formulated in the case law of the Division. According to ecologists, there is a "substantial effect" if the locally present number of existing breeding sites for barn owls is reduced by the intervention.
The next step is the question of whether an Ff exemption is necessary for the plan area. The Division is clear on this, also with reference to our infamous judgment in this case of 3 October 2012, case number 201107056/1/T1/A3. There is an intervention in an existing functioning foraging area, so the Ff exemption is necessary.
The Administrative Jurisdiction Division has correctly determined that the discussion between the parties is focused on the question of whether sufficient foraging area remains to be able to conclude that the functioning of the existing breeding locations is not at risk. This ecological discussion will have to be continued in the ongoing Ff exemption procedure. Even then, the legal question of whether there is a "substantial negative effect" on the favourable state of conservation of the local population of tawny owls and which measures should be taken to prevent damage to the existing breeding sites will arise again. Part of this is whether by setting conditions to the Ff-exemption and measures such as optimising the northern part of the area concerned with the implementation of a landscape plan, any substantial negative impact can be avoided.
Our ecologists have made it clear in the Ff objection procedure that a substantial negative impact is to be feared, because the size and quality of the remaining foraging area has been miscalculated by the municipality.