Brexit and Ecology – Update

Since the results of the referendum on Britain’s membership of the EU were announced, there has been much speculation on how this will affect our client’s projects and the ecology consultancy industry as a whole.

As I discussed at the time here I am optimistic – my personal opinion is ‘not a lot’, at least not for some time.

It would appear that this is closer to reality now, since Theresa May’s announcement at the Conservative Party conference at the beginning of the month of a proposed Repeal Bill.

The Repeal Bill would end the authority of EU law by converting all its provisions in British law on the day of exit. At the same time, the 1972 European Communities Act would be repealed. The aim of the legislation will be to end the authority of EU law by converting all its provisions in British law on the day of exit from the bloc whilst repealing 1972 European Communities Act at the same time.

We now know that as of the date that we leave the EU (by March 2019) all existing wildlife legislation will be on the UK statute book.  It is likely that there will then be a review of the legislation (as for many other laws), which may result in a change to the protection of species and sites in the UK, but this is likely to be a lengthy process.

Brexit and Ecology Consultancy

Since the results of the referendum on Britain’s membership of the EU were announced, there has been much speculation on how this will affect our client’s projects and the ecology consultancy industry as a whole.

I am optimistic – my personal opinion is ‘not a lot’, at least not for some time.

Although much of the UK’s wildlife and environmental legislation is based on EU directives, these have been transposed into UK law, such as the Habitats Regulations.  Leaving the EU will not automatically repeal these laws, but will leave them open to be unpicked, if there is a political will to do so.  However, leaving the EU will not automatically remove protection from what we refer to as ‘European protected species’ or ‘European Sites’.  Perhaps we will need a new term?

In the long-term it is likely that the wildlife legislation that protects our habitats and rarer species will be reformed and modernised, in fact there is a stalled draft Wildlife Bill in parliament which sets out to consolidate various pieces of wildlife law into one piece of legislation; this has gone through a period of consultation and so would seem to be an easy win (for Government and the environment) as it is ready to go.

We are also signatory to various international treaties on wildlife protection, such as the Ramsar Convention and Convention on Biodiversity, which we will still be obliged to follow on leaving the EU.

And so I think it is likely that we will not see significant change to wildlife legislation for at least three years. Even then, it may be that new legislation is better than the current situation.  What you call better obviously depends on your perspective:  personally I feel that protected species legislation currently focuses too strongly on protecting individual animals/plants than on populations and communities.  Conservation efforts (and mitigation / compensation from development activities) should be better focused on maintaining local populations and habitats, rather than ensuring that every individual is ‘saved’ (for some species impacts to individuals may have a population scale effect, but for animals with high fecundity, such as great crested newts, this will not usually be the case).

Government Strategy for Pollinating Insects

Environment Secretary Elizabeth Truss is launching the National Pollinator Strategy to support bees and other pollinators

The government is launching a new strategy to support bees and other pollinators that are vital for fertilising plants so they produce fruits and seeds.

Organisations such as Network Rail, Highways Agency and the National Trust which manage more than 800,000 hectares of land in England have signed up to the National Pollinator Strategy, and pledged to take actions such as planting more bee-friendly wild flowers and allowing grass to grow longer.

Environment Secretary Elizabeth Truss said:

As much as one third of the food we eat is pollinated by bees –from apples and pears to strawberries to beans. We now estimate the value of insects pollinating our crops and plants amounts to hundreds of millions of pounds.

That’s why we are doing everything we can to help them thrive. Not everyone can become a beekeeper, but everyone from major landowners to window-box gardeners can play their part in boosting pollinators.

Defra is setting up bee hives on the roof of their building in London and supermarkets including Waitrose and Coop have been distributing bee-friendly flower seeds to their customers.

Motorway verges, railway embankments and forests will be used to create bee and insect friendly paradises as part of the major new strategy to protect the 1500 species of pollinators in England.

Defra has also announced the first ever wild pollinator and farm wildlife package, which will see more funding made available to farmers and landowners that take steps to protect pollinators through the new Countryside Stewardship Scheme.

More information about how everyone can help pollinators is on the Bees’ Needs website.

Source 

Prime Environment will be reviewing our ecology enhancement strategies and mitigation schemes for developments over the next year with pollinators as the main focus.

This short video shows the importance of pollinators, some of the problems and what everyone can do to help pollinators thrive.

 

CIRIA’s BIG Challenge

The natural environment provides us with a range of crucial benefits including food, water, materials, flood defences and carbon sequestration. Biodiversity underpins most, if not all, of them. Besides the growing consensus that it is prudent to work with and make use of natural processes and systems where possible, it is wrong to let species become extinct and to exploit or dominate nature as if it were an obstacle to progress.

With this in mind, biodiversity enhancement needs to be at the heart of all design and engineering processes, but knowing where to start and how to incorporate such enhancements into developments can be daunting. This is especially true when the development is already under construction and changes are hard to make.

Do One Thing For Biodiversity

CIRIA is the Construction Industry Research and Information Association. Its Biodiversity Interest Group launched the BIG Challenge. The BIG Challenge encourages organisations to “do one thing” i.e. to implement one new biodiversity enhancement on each site or development. The enhancements can be as simple as adding hanging baskets planted with native wildflowers, creating bug hotels, creating rain gardens, planted cycle locks or skip gardens. These can be permanent features of the development or temporary installations during the construction phase which, when finished, could potentially be transferred to the next site and enhanced further. The challenge can also include initiatives such as creating biodiversity champions within organisations, or initiating biodiversity programmes that engage with the local community.

Construction companies are encouraged to sign up to the BIG Challenge so that the Biodiversity Interest Group can begin to map these enhancements across the UK. Once the enhancement is completed organisations will have an opportunity to showcase it to encourage others to sign up and demonstrate the simplicity of the achievement.

Prime Environment are very pleased to be contributing towards the BIG challenge and already always include biodiversity enhancements in Phase 1 Habitat Survey reports – in fact it is a requirement of the National Planning Policy Framework that councils seek such enhancement in all planning applications where possible. We can demonstrate how biodiversity enhancements can be simple, affordable and achievable and how organisations can get involved and help to make biodiversity mainstream.

The BIG Challenge shows that small enhancements are the crucial first step in engaging with and understanding biodiversity. Hopefully the challenge will gain enough momentum to ensure that biodiversity becomes a much greater consideration in developments during construction through to the final scheme.

 

 

Natural England’s Revised Standing Advice for European Protected Species

Natural England have revised their standing advice for European Protected Species.

European protected species include bats, great crested newts, dormice, natterjack toads, otters and two reptile species (sand lizards and smooth snakes).

Natural England say that:

“Local Planning Authorities (LPAs) and developers will no longer have to wait for 21 days for advice from Natural England on wildlife species covered by European law.

The latest improvements follow a wide-ranging review that Natural England has been carrying out to look at how standing advice can be used more widely to help reduce red-tape for LPAs, which has included carrying out pilots in the Summer with Cornwall County Council and 60 authorities in the South East.

By having access to standing advice on European Protected Species (EPS) on its website, LPAs and developers will be able to consult Natural England less often. The new approach on EPS will mirror the approach for species protected by domestic legislation, where Natural England has been referring LPAs and developers to standing advice for the past two years.

The new approach for EPS will provide greater consistency for LPAs and developers, and by helping speed up decision-making will reduce delays in the planning process.”

The Standing Advice provides a basic advice which can be applied to any planning application that could affect protected species. It provides advice to planners on deciding if there is a ‘reasonable likelihood’ of protected species being present. It also provides advice on survey and mitigation requirements. As standing advice it is a material consideration in the determination of applications in the same way as any individual response received from Natural England following consultation. Information for LPAs on the Standing Advice for protected species is available on Natural England’s standing advice internet pages.

What this means to developers is that it is now even less likely that bespoke, project specific consultation with Natural England will occur and, unless the LPA employs its own ecologists to provide advice, these sheets will be all that they can rely on when determining an application. It may lead to a more consistent approach, and it will be interesting to see how often LPAs refer to these documents in their considerations.

When giving advice on protected species issues for our clients, we will be reviewing the new standing advice and referring to the survey effort, mitigation and compensation levels in these documents to ensure that our project work is compliant.

If you have any questions about European Protected Species, get in touch.

European Protected Species Licensing

This article aims to describe what European Protected Species  (EPS) Licences are, and outlines how they are obtained.  

I often provide advice to developers on EPS issues and obtain licences on their behalf.  I thought it may be useful to set out some text here that I can direct people to for further information.  If you would like more assistance, please feel free to contact me, I’m always happy to provide free advice or second opinions.  

The animal and plant species listed on Schedule 2 and 4 of The Conservation of Habitats and Species Regulations 2010 (as amended) are referred to as…

European Protected Species (EPS).

If a project is likely to impact European protected species, such as by removing dormouse hedgerows, developing arable land around a great crested newt pond or renovating a barn with bats, and where avoidance measures can’t remove the impact, licences can be obtained to allow persons to carry out activities that would otherwise be prohibited, without committing an offence.

Natural England has powers to grant such licences in England if it meets three ‘derogation tests’. For development activities this licence is normally obtained after planning permission has been approved.

The three derogation tests are that:

1)      The activity to be licensed must be for imperative reasons of overriding public interest[1] or for public health and safety;

2)      There must be no satisfactory alternative; and

3)      Favourable conservation status of the species must be maintained.

The licence application consists of three documents, Section one – Application details (a basic application form), Section two – Method Statement (MS) (specifying the proposals, mitigation, compensation and schedule and demonstrating how the project meets Test 3) and Section three – Reasoned Statement (RS) (demonstrating how the project meets Tests 1 and 2). The Application form and Method Statement are usually completed by your ecologist (who is included in the application as a Named Ecologist) and the Reasoned Statement by the client or their planning consultant or environmental lawyer.

The developer is usually the applicant and licensee and is legally responsible for carrying out the method statement. In order to protect other people working on the project (and also to legally tie them to the MS) contractors and consultants that may affect the EPS, such as demolition or construction contractors and the ecologist should be appointed as ‘accredited agents’ to the licence by the licensee.

Natural England aim to determine an application within 30 working days, at which point they make a Further Information Request (FIR) if there are uncertainties or they do not agree with the MS or RS. At the end of the licensable activities the named ecologist is required to submit a licence return, where they declare the success (or failure) of the mitigation and are obliged to report on breaches to the MS.

Although Natural England ‘aim’ to determine within 30 working days, in reality this can take much longer, so if possible please allow 90 working days from sending the application before you intend to start on site.

 


[1] This is usually arguable where the project meets an identified planning need, i.e. social housing.

Smoother route to ecology licence and planning applications?

New Consultation Services from Natural England for Planning and Licence Applications

Natural England is rolling out two chargeable advisory services for planning and licensing from the beginning of April 2013.

      • The Pre-submission Screening Service (PSS) for European Protected Species mitigation licence applications
      • The Discretionary Advice Service (DAS) to provide discretionary pre-application and post-consent advice

 

These two new services came into effect from the beginning of April 2013.

The aim of the services is to help applicants take appropriate account of environmental considerations at an early stage of plan development. For applicants, this can reduce uncertainty and the risk of delay and added cost at a later stage, whilst securing good results for the natural environment.

 

Pre-submission Screening Service (licence applications)

The new Pre-Submission Screening Service enables potential applicants for a European Protected Species licence – such as a bat licence to find out whether their plans are likely to meet licensing requirements prior to the submission of a formal application, for example whether your bat surveys meet their expectations.

The full roll-out will involve the implementation of the Discretionary Advice Service as their standard offer for all new pre-application cases, including Nationally Significant Infrastructure Projects (NSIPs) and offshore work.

 

Discretionary Advice Service (planning applications)

The Discretionary Advice Service is geared towards cases with the potential for significant impact on protected sites, landscapes/seascapes and species, or those which could deliver significant environmental gain. The service would be useful for large scale housing applications, where we could consult and agree an ecology survey schedule with Natural England, and later agree appropriate outline ecology mitigation ahead of submitting a planning application. Being able to demonstrate fuller engagement with Natural England will help contentious projects through planning and appeal; recently this level of engagement has been difficult as Natural England have pared back their consultation due to budget cuts, and often only provided standing advice for many projects.

Natural England will offer a level of initial advice, free of charge, to help identify key issues and opportunities on a development proposal. The developer/consultant would then have the option of paying for further access to Natural England’s advice to help in the further development of their proposals. The Discretionary Advice Service also covers the post consent stages of marine development proposals.

 

How Prime Environment can Help

If you would like to engage with Natural England with these new services, please contact us to discuss your project. There are protocol to follow when requesting advice, such as filing a request form, which can be completed by the developer, or we can manage on your behalf. We can also represent your interests at site meetings with a Natural England officer. There are certain levels of series which Natural England will provide for free, and a tariff for detailed input and report review.

For further information on the Discretionary Advice Service visit: http://www.naturalengland.org.uk/ourwork/planningdevelopment/das/default.aspx.

For further information on the Pre-submission Screening Service visit: http://www.naturalengland.org.uk/ourwork/regulation/wildlife/species/epsscreening.aspx

Prime Environment is an ecology consultancy which provides advice, surveys and reports for planning and licence applications in the Midlands, Chilterns, South East and M1 corridor (Hertfordshire, Bedfordshire, Cambridgeshire, Berkshire, Buckinghamshire, East Sussex, Hampshire, Kent, Surrey, West Sussex, Peterborough, Oxfordshire, Gloucestershire and Northamptonshire).