Managing Risk in Habitats Regulations Assessment
A workshop for Local Planning Authorities
5 July 2013, 3-8 Whitehall Place, London SW1A 2HH
Background and Introduction
Defra’s review of Habitats and Wild Birds Directive (the Directives) implementation found evidence of a
lack of capacity in competent authorities for dealing with habitats and species issues. Measure 28 from
the review was to explore new ways of supporting, developing and managing ecological expertise
especially as tough decision making in the light of economic constraints may reduce further the in house
availability of local authority ecologist. Further consideration by The Chartered Institute of Ecology and
Environmental Management (CIEEM) and the Association of Local Government Ecologists (ALGE)
identified a shortfall in the capacity and confidence of LPAs in managing risks in relation to European sites
and species. A partnership was developed between Defra, CIEEM, ALGE and The Planning Officers
Society to take forward this exploration in the form of a workshop.
The workshop set out to capture the experience of those who manage the risks associated with planning
on a daily basis; to share with local authorities the range of different solutions which can be used to
manage risks and identify whether there are areas of support which are common and may be delivered by
the industry.
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It was held on July 5 and was attended by 35 local authorities from around the country, central
government, consultants and legal experts. Simon Marsh, Head of Planning Policy at the RSPB, chaired
the day and provided his knowledge and insight throughout.
A range of presentations set the scene in the morning. Andrew Holden of Defra brought everyone up
to speed on progress of the Habitats and Wild Birds Directives Implementation Review and explained
the work of the Major Infrastructure and Environment Unit (MIEU). David Tyldesley, David Tyldesley
and Associates, explained the risks of not making sound decisions and how to best manage risk. Mike
Oxford, ALGE, provided a view from Local Planning Authorities and this was followed 5 case studies
looking at the pros, cons and costs of a range of different models.
PowerPoint presentations:
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Setting the scene: Progress of the Habitats and Wild Birds Directives Implementation Review
& MIEU – Andrew Holden, Defra
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Habitats Regulations Assessment, Sound Decisions and Managing Risks - David Tyldesley,
David Tyldesley and Associates
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Ecological Competence and Capacity, What is Needed to Deliver Statutory Obligations? - Mike
Oxford, ALGE
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Head of Environment & Sustainability - John Harrison
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Managing Risk in Habitats Regulations Assessment - Matt Searle, Essex County Counci
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Local Planning Authorities & European Protected Species - The Dorset Biodiversity Protocol Dr Phil Sterling
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Ecological Planning Advisory Service - Ken Anckorn, Surrey Wildlife Trust
Further information
Questions and discussion at the workshop identified that further information could be valuably shared.
1. NSIP and housing
A question was raised in relation to the threshold for housing becoming a Nationally Significant
Infrastructure Project?
Housing developments are not classed as Nationally Significant Infrastructure Projects.
2. Update on Simplifying Government guidance
The Government launched a review of the implementation of Directives in England in November
2011. The aim was to take a fresh look at whether implementation could be made simpler and
more efficient without compromising the founding objectives of the Directives.
The Review committed the Government to 28 measures to improve implementation, including
various measures to improve and simplify government guidance on the Directives. In December
2012 a consultation was held on two of the measures:
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Defra’s plan and guiding principles for undertaking a “stocktake” of the very large
volume of current guidance on habitats requirements, and make proposals by
March 2013 for simplifying Government/agency guidance
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Draft new “overarching guidance” to give an overview of habitats requirements
as they apply in England and relevant UK waters. This new guidance will play an
important role in the proposed new guidance structure.
This work has now been expanded into a pilot for the Smarter Environmental Regulation Review
(SERR), which is using the opportunity of the transfer of government web content onto a single
government website (GOV.UK) to simplify all environmental guidance. The pilot is looking at all
guidance on Wildlife Protection in England and the deadline has therefore been extended to
summer 2013 in order take account of the additional work. It is intended that the overarching
guidance document will be placed on the crowd sourcing site for comment in the near future .
3. Other useful information
Essex Biodiversity Validation Checklist as referenced in Matthew Searle’s presentation and
accompanying Frequently Asked Questions document.
Outputs from workshop discussion groups
The afternoon session saw attendees split in groups to tackle four questions prompting valuable and
engaging debate. The key findings are set out below.
Question 1
Do you recognise the risks outlined this morning? Are there any others you have identified?
Which are a priority for you?
Risks
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Not taking into account other LPA activity, for example managing open spaces when
assessing plans and projects
The application of non-planning legislation, for example listing buildings based purely on
historic value and not biodiversity.
Damage to local authority reputation and the financial consequences of being classed as
a poorly performing authority having failed to meet delivery targets
The application of Habitat Regs at Alternative and IROPI stages
Assessing cumulative impacts from ‘in combination’ effects of multiple small developments
Lack of understanding by legal advisors on issues surrounding the application of Habitat Regs
Habitat Regs issues in marine and coastal environments, partly due to multiple competent
authorities and potentially different evidence needs
Reduced support, and the need to rely on standing advice, for assessing medium risk cases
as advisors are forced to concentrate increasingly on high risk cases
Pressure to meet targets for determining permissions when time is required to assess impacts
adequately
The likelihood of a sustained objection.
Not enough training for validation teams. Better information and GIS required.
An out-of-date local list – increasing the tension between proportionally and precautionary.
Stifling development through over-complication of the process.
Priorities
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Lack of in-house specialists
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Ensuring that ‘in combination’ effects of smaller applications are factored into decisions
Question 2
Which models, or elements of the models, seem to be most effective and efficient in the light of
constraints and why?
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The Dorset model was seen as attractive on the whole
Models using developer funds were seen as good
Models that encourage front-end loading/early engagement are helpful to all parties
Putting the onus on the developer is good but presents risks if not all areas adopt this
approach
Models used need to be applicable to all 3 tests - LSE, AA and Alternatives/IROPI
The value of local specialists and the local knowledge they bring.
The use of County Council ecologists through service level agreements works well providing
in-house expertise but at less cost.
It can be difficult to get developers to carry out surveys at the plan making stage. Surveys can
potentially become out of date between the plan stage and the application itself.
There is a risk if the organisations involved opt out e.g. the District Council not being involved.
Small District Councils potentially unable to provide adequate staff resources for an effective
service. Therefore cooperation with others is vital.
Services that rely on self funding are at risk if the finances don’t add up, potentially leading to
loss of knowledge.
To be aware of possible conflicts of interest (for example using Wildlife Trusts)
Question 3
What is needed to support the solutions and what priority do you give them?
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It would be useful to have a “model approach”.
Good practice examples are helpful but it is vital to avoid “copy and paste” applications.
Proactively advocate the key advantages of providing increasing certainty at early
engagement.
An understanding at a local authority member level of the risks involved with Habitats Regs
and the need to make pro-active decisions to manage risks.
Guidance, training and support for consultants, environmental planners and ecologists see
www.cieem.net/training-events and www.dtapublications.co.uk
Greater understanding of the threshold for ‘likely significant effect’.
To build up robust evidence bases with the aid of developers for the benefit of all
Well thought through and clear guidance.
At the other end of the spectrum, greater understanding of the alternatives, IROPI and
compensation stage. This is an area in which many local planning authorities have not had
experience.
Local validation checklists should include biodiversity.
Sharing experiences and lessons learnt.
Consistent and definitive advice from Natural England who must always be willing to engage.
Checklists for the different stages of the process.
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Local plans to be realistic and clearly indicate where projects that are unlikely to meet the
Habitats Regs tests would be excluded and those projects which will require testing.
Local authorities to advocate the use of the evidence plan process outside of Nationally
significant infrastructure projects (NSIP) if they feel this would be beneficial.
Clarity about roles and responsibilities and confirming this through a memorandum of
understanding underpinning our duty to cooperate.
Sometimes you need a legal challenge in order to focus attention on an issue.
Question 4
With whom do solutions lie?
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All parties involved throughout the process.
LPAs must be clear as where responsibilities lie and at what stage.
Defra must promote understanding and awareness.
The regulations must be robust and credible.
Investment via Local Nature Partnerships / City Deals and Enterprise zones which may have
impacts on N2k sites to include resources for bringing evidence and constraints together to
help inform all developers, advisors and competent authorities.
Developers to engage openly and early.
Costs for planning applications should reflect the true costs of assessment.
Costs for infraction proceedings to be passed onto developers.
Defra and DCLG to ensure messages are complementary.
Professional bodies to support training for staff through continuing professional development
(CPD) opportunities and for this to be supported by managers.
A collaborative, fit for purpose approach for sharing and accessing data and evidence.
European funding for European protected sites.
Summing up (Simon Marsh, Head of Planning, RSPB)
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There are a wide variety of models.
Models should meet local needs.
Models should be framed on being able to deliver solutions for development and wildlife
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