Wildlife Legislation

Winter Ecology Surveys

New Guidance on Bird Surveys Coming in 2019

Bird Survey and Assessment Guidance in preparation

New guidance on bird survey and assessment will be released in 2019, according to an update from CIEEM.

They report that

guidance for ecological consultants and decision makers working in planning and built development is in preparation. A steering group consisting of consultants and representatives from CIEEM, Natural England, RSPB and the BTO is developing the guidance to provide consistency of approach and effort to bird survey and assessment within the industry.

The current issue with bird survey practices is that commonly used methodologies (such as the common bird census) were not designed for assessing the potential impacts of development on wildlife within a site, but for long-term monitoring.  This has created a certain amount of guesswork when designing surveys and a risk that an LPA ecologist won’t agree with the approach taken.  Having a common set of guidance will reduce this risk, whilst improving the quality of data used in assessment.  There isn’t an indication whether the survey effort requirement will be higher than that used at the moment, but I suspect that we will be moving from a minimum of three visits in the breeding season to four or five and something similar for winter bird surveys.  I hope that the guidance will also set out at what point surveys for birds are required for planning applications, so that a similar treatment can be applied across sites.

We will report back when the bird survey guidance is released and provide guidance to our clients.

What does the new National Planning Policy Framework mean for ecology and biodiversity?

NPPF Update – Ecology and Biodiversity Discussion

A revised National Planning Policy Framework has been published today. The document sets out the government’s planning policies for England and how these are expected to be applied.

The most relevant sections to our work are repeated below and I have commented on some of the more directly ecological / biodiversity points (I have paraphrased or truncated many sections, so please view the full text here).

Section 2 Achieving Sustainable Development

This section sets out the three objectives of the NPPF. These are economic, social and environmental:

environmental objective – to contribute to protecting and enhancing our natural, built and historic environment; including making effective use of land, helping to improve biodiversity, using natural resources prudently, minimising waste and pollution, and mitigating and adapting to climate change, including moving to a low carbon economy”

It is worth noting that much of the NPPF concerns the production of development plans by planning authorities, rather than being directly related to planning applications.  Although the NPPF would be used where there isn’t an up to date plan, and there are some exceptions where the NPPF refers to applications (or decisions on them) rather than plans. As sections which relate to planning applications are more immediately relevant to us and our clients, I’ve highlighted references to decisions and applications below.

Section 15 Conserving and enhancing the natural environment

  1. Planning policies and decisions should contribute to and enhance the natural and local environment by:
  2. a) protecting and enhancing valued landscapes, sites of biodiversity or geological value and soils (in a manner commensurate with their statutory status or identified quality in the development plan);

This is quite broad brush, but hierarchies of protection are discussed later.

  1. b) recognising the intrinsic character and beauty of the countryside, and the wider benefits from natural capital and ecosystem services – including the economic and other benefits of the best and most versatile agricultural land, and of trees and woodland;

This is also quite broad brush and subjective.

  1. c) maintaining the character of the undeveloped coast, while improving public access to it where appropriate;
  2. d) minimising impacts on and providing net gains for biodiversity, including by establishing coherent ecological networks that are more resilient to current and future pressures;

There are two things here – note that this states’ minimising impacts AND providing net gains for biodiversity’. This also emphasises the importance of networks for biodiversity.

  1. e) preventing new and existing development from contributing to, being put at unacceptable risk from, or being adversely affected by, unacceptable levels of soil, air, water or noise pollution or land instability. Development should, wherever possible, help to improve local environmental conditions such as air and water quality, taking into account relevant information such as river basin management plans;
  2. f) remediating and mitigating despoiled, degraded, derelict, contaminated and unstable land, where appropriate.

A further call for brownfield development, but this can obviously also conflict with biodiversity issues.

  1. Plans should: distinguish between the hierarchy of international, national and locally designated sites; allocate land with the least environmental or amenity value, where consistent with other policies in this Framework; take a strategic approach to maintaining and enhancing networks of habitats and green infrastructure; and plan for the enhancement of natural capital at a catchment or landscape scale across local authority boundaries.

This tightens up that loose statement in section 170 which suggests protection of all environmental sites; plans at least should acknowledge that not all sites are equally important.

Again we have an emphasis on networks and introduce the term ‘green infrastructure’, which we have seen as a rising topic in planning and biodiversity in recent years (and interesting that this is at a landscape scale).

  1. Great weight should be given to conserving and enhancing landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to these issues. The conservation and enhancement of wildlife and cultural heritage are also important considerations in these areas, and should be given great weight in National Parks and the Broads.

We already expect scrutiny of wildlife issues for our projects in National Parks to be higher than that in other spaces.  We haven’t noticed a difference in scrutiny of wildlife issues in AONB sites and equivalent non-AONB habitats (i.e development on a wildflower rich pasture would be subject to scrutiny whether or not it was in an AONB). Perhaps this will raise biodiversity further up the agenda in these areas.

The scale and extent of development within these designated areas should be limited. Planning permission should be refused for major development other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest. Consideration of such applications should include an assessment of:

  1. a) the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;
  2. b) the cost of, and scope for, developing outside the designated area, or meeting the need for it in some other way; and
  3. c) any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.
  4. Within areas defined as Heritage Coast (and that do not already fall within one of the designated areas mentioned in paragraph 172), planning policies and decisions should be consistent with the special character of the area and the importance of its conservation. Major development within a Heritage Coast is unlikely to be appropriate, unless it is compatible with its special character.

Habitats and biodiversity

  1. To protect and enhance biodiversity and geodiversity, plans should:
  2. a) Identify, map and safeguard components of local wildlife-rich habitats and wider ecological networks, including the hierarchy of international, national and locally designated sites of importance for biodiversity; wildlife corridors and stepping stones that connect them; and areas identified by national and local partnerships for habitat management, enhancement, restoration or creation; and

Here again we have an emphasis on networks and corridors, also note that plans should protect areas identified by local partnerships for habitat management; the NPPF doesn’t define what it means by local partnerships, but I take this to include local action groups and conservation groups.

  1. b) promote the conservation, restoration and enhancement of priority habitats, ecological networks and the protection and recovery of priority species; and identify and pursue opportunities for securing measurable net gains for biodiversity.

Noteworthy here are the terms enhancement, networks (again) and recovery of priority species.  The big impact for planning applications here are ‘measurable net gains for biodiversity’.  More on that after 175a below …

  1. When determining planning applications, local planning authorities should apply the following principles:
  2. a) if significant harm to biodiversity resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated, or, as a last resort, compensated for, then planning permission should be refused;

This is a reinforcement of the mitigation hierarchy – this should already be the standard approach taken in Ecological Impact Assessments (EcIA), although the process isn’t always explicitly set out in Preliminary Ecological Assessment reports.

  1. b) development on land within or outside a Site of Special Scientific Interest, and which is likely to have an adverse effect on it (either individually or in combination with other developments), should not normally be permitted. The only exception is where the benefits of the development in the location proposed clearly outweigh both its likely impact on the features of the site that make it of special scientific interest, and any broader impacts on the national network of Sites of Special Scientific Interest;

This essentially means that development on or near SSSI is ok if you can justify it – hopefully this will not be taken, for example, as an excuse to develop golf courses on SSSI sand dunes. [https://scottishwildlifetrust.org.uk/our-work/our-advocacy/current-campaigns/coul-links/]

  1. c) development resulting in the loss or deterioration of irreplaceable habitats (such as ancient woodland and ancient or veteran trees) should be refused, unless there are wholly exceptional reasons and a suitable compensation strategy exists; and

This is a really important point.  These habitats are irreplaceable (i.e. genuinely impossible to artificially re-create) and it is difficult to see what could be ‘suitable’ compensation for their loss.  I would expect that this means that ancient woodland and veteran trees are effectively wholly protected in planning, the wording doesn’t even state ‘should normally be refused’, nor does it state that the development should be refused ‘unless the benefit outweighs the impact’ (as it does for SSSI in 175 c) – so perhaps even national infrastructure projects would be held to this?

  1. d) development whose primary objective is to conserve or enhance biodiversity should be supported; while opportunities to incorporate biodiversity improvements in and around developments should be encouraged, especially where this can secure measurable net gains for biodiversity.

Here are those ‘measurable net gains’ again – I think that this will bring forward a stated requirement within development plans that new applications should use quantitative impact calculations, such as the Biodiversity Impact Assessment Matrix, where a numerical value of a site’s biodiversity can be predicted before and after development. Note that this doesn’t go as far as to say that projects should be refused if they do not deliver gains, only that they should be encouraged (although future plans may include specific requirements).

  1. The following should be given the same protection as habitats sites:

The NPPF defines habitats sites as Special Areas of Conservation, Sites of Community Importance, Special Areas of Conservation and Special Protection Areas and any relevant Marine Sites; these are internationally protected sites notified through the Habitat Regulations.

  1. a) potential Special Protection Areas and possible Special Areas of Conservation;
  2. b) listed or proposed Ramsar sites; and
  3. c) sites identified, or required, as compensatory measures for adverse effects on habitats sites, potential Special Protection Areas, possible Special Areas of Conservation, and listed or proposed Ramsar sites.

It will be interesting to see how such compensation sites will be recorded and protected.

  1. The presumption in favour of sustainable development does not apply where development requiring appropriate assessment because of its potential impact on a habitats site is being planned or determined.

So no presumption in favour of development that may affect those ‘habitats sites’ listed above.

Natural England Consultation on Licence Charges

Natural England are currently consulting on a proposal to introduce charges for wildlife licences.

Natural England states that it “want[s] to ensure this service offers value for money for licence applicants and the taxpayer and achieves good outcomes for wildlife.”

We work with our clients when they need a wildlife licence from Natural England, for example when planning to disturb or remove protected wildlife or damage protected habitats.

This will primarily affect licences we apply for under The Conservation of Habitats and Species Regulations 2017, Wildlife and Countryside Act 1981 (as amended) and the Protection of Badgers Act 1992.

Natural England state that the proposal aims to:

  • Improve the licensing service for customers by enabling investment in line with changes in customer demand
  • Change the licensing service from wholly taxpayer-funded to a mixture of taxpayer-funded and service user-funded, in line with Treasury and Cabinet Office principles for the funding of regulatory activity.
  • Charges will also include cost recovery for compliance monitoring. This will enable a consistent level of compliance checks to be sustained, which will improve conservation outcomes for wildlife.

Natural England are consulting on exemptions from charging where the application is in relation to health and safety, the prevention of serious damage to property or the spread of disease, householder development projects, conservation delivery projects and conservation research.

Natural England has powers to charge for licences under the Natural Environment and Rural Communities Act 2006.
Charging would begin in the second half of 2018 if approved.

I have responded to the consultation on behalf of our clients. I have long held the view that licences should be paid for, where the funds are ring fenced to ensure that they fund a better services (at times we have to wait for two months or more to receive a licence), fund production of literature and training for consultants to standardise the quality of applications across the industry and to fund compliance monitoring where appropriate.

In general, I support the introduction of charging. However, I strongly object to the exclusion of householder applications from the charges and the size of the charge (roughly £130 per survey licence and £700 per development related application).

I consider that a fairer approach would be to levy a smaller charge (£75 – £100) per application across all applicants, rather than hit developers with £700 per application. We work with many clients who are small builders and are managing single house renovation projects with small budgets, and this seems to unfairly hit them.

The consultation is now open and will close on Monday 5 February 2018.

https://consult.defra.gov.uk/natural-england/wildlife-licence-charges

If you have views on this subject, you may want to have your voice heard.