UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION
NATURE CONSERVATION WORKING GROUP
13 December 2004
Please reply to
Sangeeta Sofat
Office of the Deputy Prime Minister
Planning Policies Division A
Zone 4/J6
Eland House
Bressenden Place
LONDON
SW1E 5DU
Andrew Baker
c/o Baker Shepherd Gillespie
Wye House
Water Street
Bakewell
Derbyshire
DE45 1EW
Telephone: 01629 815544
Fax: 01629 815577
Email: a.baker@bsg-ecology.com
Dear Sir
Re: Consultation Paper on PPS9: Biodiversity and Geological Conservation
I now attach the detailed easements of the working group in response to the
consultation paper; and would like to thank you for allowing us this short extension of
time which was needed by us so that we could gather together the views of all our
members.
In doing so I would like to add the following preliminary points:A.
CREDENTIALS
1.1
The UK Environmental Law Association is already know to Government and
has commented on a number of previous occasions on relevant topics.
1.2
The Nature Conservation Working Group is one of a number of standing
working parties which has been in existence for a number of years, meeting
from time to time to discuss the legal framework and policies for wildlife
protection.
1.3
Membership of the group is open to anyone within UKELA, and as would be
expected, is composed of those with a particular interest in wildlife
conservation, biodiversity and geological protection. It draws support from
lawyers in private practice, public and administration, academic institutions
and NGOs together with other organisations in administration of this area of
law: including several Legal Associations of the Legal Town Planning
Institute; ecologists and geologists.
1.4
It does not reflect any particular partisan viewpoint; but seeks to encompass
the most efficient working and understanding of the law and policy relating to
nature conservation and geological protection.
1.5
The group met on Saturday 13 November specifically to discuss this matter
having received a wide range of written submissions in advance from those
who were not able to be present. All these have been incorporated in the
submission now put forward.
Page 1 of 14
UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION
NATURE CONSERVATION WORKING GROUP
B.
OVERVIEW
2.1
Whilst we welcome the updated policy guidance, our general overview is that
it would have been better to have a more detailed PPS than the one proposed
spelling out the legal framework much more adequately than the present
draft, on the basis that our experience is that the implementation of policy is
usually based from the contents of the PPS documents; too often there is no
detailed understanding of Government circulars or guidance by those charged
with implementing both law and policy. The present format assumes a level
of understanding, knowledge and commitment which is sadly not either
available or, in some cases, wanted by the agencies charged with their duties
to implement them: this is particularly so at local Government level.
2.2
In this regard may we refer you to paragraph 38 of the conclusions of the
Environmental Audit Committee of the House of Commons Twelfth report of
Session 2003-04 entitled Wildlife Crime (copy attached) and also the press
release that accompanied their report (copy attached) which indicated that
65% of local authorities employ no professional ecologist, and the comments
made generally in that press release and the report.
2.3
We are also unhappy that the third part of the trio of documents re the guide
to good practice is also to be produced without prior consultation as to its
contents; as this will be relied upon by numerous developers, agencies and
local authorities; and its contents need to be dovetailed with the policy
principles and law.
2.4
We were also concerned that insufficient attention had been given to the
geological aspects of the policy draft and circular; and appears to be added in
various places as an after-thought; even though the geological features of the
nation often have special statutory protection ; and are also obviously the
essential feature of any habitat.
Yours faithfully
Andrew Baker MIEEM
Page 2 of 14
UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION
NATURE CONSERVATION WORKING GROUP
Response to
Consultation Paper on Planning Policy Statement 9:
Biodiversity and Geological Conservation
PPS9 Proposed Text
General Comments
UKELA NCWG comment
PPG9 was presented in a more logical
manner in which the preparation of plans
(and the surveys needed to populate them)
was kept distinct from consideration of
planning decisions. For the sake of clarity,
UKELA considers that a similar approach be
adopted for PPS9.
Strategic Environmental Assessment SEA
No reference is made in the Draft PPS9 to
SEA. UKELA considers this to be a major
omission, given the key role that SEA should
play in planning authorities meeting their
biodiversity conservation obligations. The
SEA Directive (1) was transposed into UK
law on 21 July 2004 by Regulations (2). SEA
will apply to a wide range of plans and
programmes, and crucially in relation to
PPS9, land use plans prepared by regional
and local planning authorities.
There is no recognition of the important
application of SEA in ensuring impacts of
plans and programmes on all biodiversity (not
just internationally protected sites and
species) are assessed, prevented or
mitigated and subsequently monitored, as
required by the Directive. We believe this is
also a significant omission.
Insufficient emphasis is given to the
significant role the planning system has to
play in responding to climate change impacts
on biodiversity, contradicting the
Ministerial (3) and ODPM4 statements that
state this role is crucial in achieving
government objectives.
Climate change is mentioned only once in the
1
Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the
assessment of the effects of certain plans and programmes on the environment
2 Environmental Assessment of Plans & Programmes Regulations 2004; separate
Regulations apply in England, Scotland, Wales and Northern Ireland
3 GOVERNMENT URGES PLANNERS TO TAKE ACTION ON CLIMATE CHANGE Planners
have been urged to respond immediately to the threats posed by climate change. Planning
portal, 14/10/2004
http://www.planningportal.gov.uk/news/?1097521214001
4 The Planning Response to Climate Change, Advice on Better Practice, ODPM
www.PlanningResource.co.uk
Page 3 of 14
UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION
NATURE CONSERVATION WORKING GROUP
draft PPS9 and in relation to Regional Spatial
Strategies (p.8) where it is observed that
climate change will need to be taken into
account because of the effects it may have
on biodiversity. This does not reflect the
urgency and general thrust of current
knowledge about the impacts of climate
change on biodiversity in the UK, nor does it
address the difficult competing demands that
may arise when trying to address both
biodiversity needs and other use needs e.g.
habitat conservation versus flood protection.
Reference needs to be made to current work
in these areas and sources of guidance and
support e.g. Climate Change and Nature
Conservation Implications for Policy and
Practice in Britain and Northern Ireland (5).
Reference should be made to the wide range
of sources of information and guidance on
both SEA and climate change (6) and
guidance which aims to integrate both the
latter issues e.g. SEA and Climate Change:
Guidance for Practitioners (7).
No reference is made to Water Framework
Directive in Draft PPS9 or the Circular. The
WFD and the transposing UK Regulations
are a fundamental part of achieving
biodiversity (as well as water resource
management) objectives and will require the
coordinated efforts of the planning system
together with Environment Agency and other
parties to achieve its targets. This is
particularly so in light of the Government’s
housing and development targets, as partly
expressed through the Sustainable
Communities Plan and Growth Area policies,
which have raised serious issues about their
biodiversity and water resource implications.
Page 5 Para 3
In the context of this PPS,
Biodiversity is the variety of
life in all its forms as
discussed in the UK Biodiversity
Action Plan2. Geological
conservation relates to the sites
that are designated for their
geology and/or geomorphological
importance3.
5
While biodiversity is defined in the PPS;
geodiversity is not (although the term is used
on page 8, paras 2 and 4). Instead,
geological conservation is defined as relating
to sites that are designated. This is a narrow
definition in comparison with biodiversity
conservation in that it ignores the possibility
of any conservation interest on nondesignated sites.
Hossell, J.E. Ellis, N.E. Harley, M.J. Hepburn, I.R. 2003 J. Nature Conservation, 11, 67-73
Modelling Natural Resource Responses to Climate Change (MONARCH)
7 Environment Agency, English Nature, CAG, Environmental Change Institute, Levett
Therivel, UK Climate Impacts Programme
6
Page 4 of 14
UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION
NATURE CONSERVATION WORKING GROUP
Page 5 Para 4
A Government Circular is being
published to accompany this PPS.
This sets out the wide range of
legislative provisions at the
international and national level
that can impact on planning
decisions affecting biodiversity
and geological conservation
issues. A separate guide will
also be published which sets out
good practice in relation to
planning for biodiversity and
geological conservation.
The NCWG consider it unfortunate that the
ODPM has consulted on PPS9 and the
Government Circular without including the
Good Practice Guidance within the
consultation. Without the full package, it is
difficult to assess the totality of what the
Government intends and comment
accordingly.
In order to avoid confusion and legal
challenges is will be necessary for
Government to define the status of the
Government Circular and the Best Practice
and formally state how these documents
relate to the PPS.
Whilst UKELA understands the need for
brevity, it will be important to ensure that this
three-volume approach is fully explained
within the PPS with comprehensive
referencing of the Circular and Best Practice
Guidance within the PPS9 to ensure that
planning officers and others are aware of the
substantial additional information relevant to
each of the policy statements.
Page 6
Working with the grain of nature:
a biodiversity strategy for
England4 sets out the
Government's
vision for conserving and
enhancing biological diversity in
England, together with a
programme of work to achieve it.
It includes the broad aim that
planning, construction,
development and regeneration
should have minimal impacts on
biodiversity and enhance it
wherever possible.
Footnote 4 has the wrong web address. It
should refer to defra.gov.uk not defraweb.
The same applies to footnotes 5 and 7.
PPG9 para. 2 states Government’s
objectives for nature conservation as being
‘to ensure that its policies contribute to the
conservation … of … wildlife and its habitats,
or minimise the adverse effects on wildlife
where conflict of interest is unavoidable …’.
The Government’s objectives as stated in
PPS9 include ‘the broad aim that planning,
construction, development and regeneration
should have minimal impacts on biodiversity
and enhance it wherever possible’. In other
words, the minimising impact comes first.
This broad aim is taken almost verbatim from
para 7.1 of Working with the grain of nature:
a biodiversity strategy for England but appear
to be taken out of context. The spirit of the
strategy is much more pro conservation.
Para. 1a of the strategy states that:
‘the aim of the strategy is to ensure
~ a halting, and if possible a reversal, of
declines in priority habitats and species, with
wild species and habitats as part of healthy,
functioning ecosystems;
~ the general acceptance of biodiversity’s
essential role in enhancing the quality of life,
with its conservation becoming a natural
consideration in all relevant public, private
and non-Government decisions and policies.
Page 5 of 14
UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION
NATURE CONSERVATION WORKING GROUP
The aim stated in PPS9 is just one of 5 listed
in para. 7.1. Fuller reference is required in
order to more accurately reflect referenced
document.
Page 6 Paras 5 and 6
In moving towards this vision,
the Government's objectives are:
To contribute to an urban
renaissance - by enhancing
biodiversity in green spaces and
among developments in urban areas
so that they are used by wildlife
and valued by people, recognising
that healthy functional
ecosystems can contribute to a
better quality of life and a
sense of wellbeing
for those who live and work in
urban areas.
To contribute to rural renewal by ensuring that developments in
rural areas take account of the
role and value of biodiversity in
supporting economic
diversification and contributing
to a high quality environment.
Page 6
Page 7
Page 7
1 (ii) Plan policies and planning
decisions should seek to
maintain, or enhance, or add to
biodiversity and geological
conservation interests. In taking
decisions, local planning
authorities should ensure that
appropriate weight is attached to
designated sites of
international, national and local
Page 6 of 14
These objectives appear to make a
distinction between rural and urban
biodiversity. There is the objective to
enhance urban green space while
development in rural areas has the objective
to ‘take account’ of biodiversity. UKELA
considered that this distinction is misleading
and is not reflected in the current wildlife
legislation.
The protection of biodiversity and geological
diversity in England is supported by a various
Acts and Regulations covering both domestic
and international obligations. UKELA
believes that this should be reflected in the
stated objectives with an additional
paragraph stating that any planning decisions
should be compliant with the law.
The Key Principles only relate to potential
impacts of planning decisions rather than
planning in general. In order to ensure that
the entire planning process complies with
current legislation, reference should be made
to applying these key principles to the
development of planning documents and
strategic local and unitary plans.
This sub paragraph makes 2 distinct,
unrelated points, and they should be split out
to ensure their emphasis is not lost. The first
point seeks to maintain or enhance
conservation interests, whilst the other point
refers to international, national and local
sites, and requires that LPAs attach
appropriate weight to them when determining
applications.
The first point should be clear in that where
UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION
NATURE CONSERVATION WORKING GROUP
importance and the wider
environment.
net positive biodiversity benefits can be
demonstrated, they should be treated as a
material consideration in the planning
process.
In order to stress the legislative framework
which supports wildlife conservation we
propose that the second sentence should be
modified as follows.
In taking decisions, local
planning authorities should
ensure that appropriate weight is
attached and relevant legal
obligations are observed
concerning to designated sites of
international, national and local
importance and the wider
environment.
Page 7
1(iv) Subject to other planning
considerations, developments
seeking to conserve or enhance
the biodiversity and geological
conservation interests of the
area and/or the immediate
locality should be permitted.
The use of the word “appropriate” may lead
to confusion and more guidance should be
given on how to judge what is considered
appropriate.
As worded, this statement would seem to be
encouraging local authorities to grant
planning permission for developments
seeking to conserve biodiversity without any
reference to the need to ascertain whether or
not the objective sought is likely to be
achieved.
We would suggest that the word “seeking” be
replace with the word “designed”.
We believe that further guidance should be
given on the interpretation of the phrase
‘Subject to other planning
consideration’.
(v) Local planning authorities
should consider whether proposed
developments can be accommodated
without causing harm to
biodiversity and geological
conservation interests. Where
there may be significant harmful
effects, local planning
authorities will need to be
satisfied that any reasonable
alternative sites that would
result in less or no harm have
been fully considered.
For the sake of clarity we feel the first
sentence should read:
(vi) Where development will
result in unavoidable and
significant adverse impacts on
biodiversity and geological
conservation, planning permission
While UKELA supports this principle, this
statement puts too much emphasis on
granting planning permission rather than
considering refusal. The wording is not
consistent with the wording in para 8 on page
Page 7 of 14
(v) Local planning authorities
should consider whether proposed
developments can be accommodated
without causing harm to
biodiversity and/or geological
conservation interests.
UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION
NATURE CONSERVATION WORKING GROUP
for it should only be granted
where adequate mitigation
measures are put in place. Local
planning authorities should
normally seek appropriate
measures to compensate for any
harm which cannot be prevented or
mitigated.
9 and nor does this statement reflect the
Habitat Regulations 1994 as regards the
protection of SPAs and SACs. We therefore
suggest the following wording:
2. Regional planning bodies
should liaise closely with
regional biodiversity fora or
equivalent bodies, English Nature
and the Environment Agency to
identify the current regional and
sub-regional distribution of
priority habitats and species and
internationally and nationally
designated areas. Regional
planning bodies should also
liaise with the British
Geological Survey on geodiversity
issues. Over time the
distribution of habitats and
species, and geomorphological
processes and features, may be
affected by climate change and
such change will need to be taken
into account.
In order to meet international conservation
obligations UKELA considered that this
statement should be modified as follows.
(vi) Subject to the existence of
more stringent legal obligations,
where refusal of planning
permission is not possible and
development will result in
unavoidable and significant
adverse impacts on biodiversity
and/or geological conservation,
planning permission should
normally seek appropriate
measures to compensate for any
harm which cannot be prevented or
mitigated.
2. Regional planning bodies
should liaise closely with
regional biodiversity fora or
equivalent bodies, English Nature
and the Environment Agency to
identify the current regional and
sub-regional distribution
conservation status and potential
for status enhancement of
priority habitats and species and
internationally and nationally
designated areas. Regional
planning bodies should also
liaise with the British
Geological Survey on geodiversity
issues. Over time the
distribution of habitats and
species, and geomorphological
processes and features, may be
affected by, for example, climate
change and such change will need
to be taken into account.
Climate change is only an example of many
pressures which may act upon a population
or habitat.
3. Regional spatial strategies
should:
(i) incorporate biodiversity
objectives;
This should include reference to geodiversity.
4. When identifying designated
sites of importance for
biodiversity and geodiversity on
the proposals map, clear
distinctions should be made
UKELA regards it as essential that local
planning authorities should be required to
show designated sites on proposal plans and
that this should not be confined to
international sites (see para 6). In addition,
Page 8 of 14
UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION
NATURE CONSERVATION WORKING GROUP
between the hierarchy of
international, national,
regional, and locally designated
sites.
while there is an implied hierarchy of
designation, legal protected is not
hierarchical. We therefore suggest the
following changes be made.
4. Local planning authorities
should identify designated sites
of importance for biodiversity
and geodiversity on the proposals
map, clear distinctions should be
made between the hierarchy of
international, national,
regional, and locally designated
sites.
7. Many, but not all, SSSIs are
also designated as sites of
international importance. The
rest, including both biodiversity
and geodiversity sites, should be
given a high degree of protection
under the planning system.
UKELA believes that it is important that
international designation and SSSI are
treated separately to reflect the different
legislation under which they are notified. This
paragraph suggests that not all SSSI are of
equal importance – where in fact the SSSI
legislation applies to all sites equality whether
or not they are also designated as
international sites. This is also important
because SSSI designation often covers a
broader range of features (including
geodiversity) than the international
designation.
We therefore suggest the following
amendment:
7. Many, but not all, SSSIs are
also designated as sites of
international importance . The
rest, including for both
biodiversity and geodiversity and
must be protected under the
planning system. hese sites,
should be given a high degree of
protection under the planning
system.
8. Where a proposed development
on land within or outside a SSSI
is likely to have an adverse
effect on an SSSI, planning
permission should not normally be
granted. An exception should only
be made where the benefits of the
development, at this site,
clearly outweigh both the impacts
that it is likely to have on the
features of the site that make it
of special scientific interest
and any broader impacts on the
national network of SSSIs. In
such cases, local planning
authorities should use conditions
and/or planning obligations to
Page 9 of 14
UKELA supports this statement and
considers it proportional to the national level
of importance which SSSI represent,
however, we believe that more guidance is
required on how LPAs should weigh up the
benefits against the impact on the SSSI.
UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION
NATURE CONSERVATION WORKING GROUP
mitigate the harmful aspects of
the development and where
possible, to ensure the
protection or enhancement of the
site's biodiversity or geological
interest.
Regional and Local Sites
9. Regional and local sites of
biodiversity and geological
interest (such as Regionally
Important Geological Sites and
Local Nature Reserves) have a
fundamental role to play in
meeting overall national
biodiversity targets,
contributing to the quality of
life and the well being of the
community and in supporting
research and education. Criteriabased policies should be
established in local development
documents against which proposals
for any development on or
affecting such sites will be
judged. These policies should be
distinguished from those applied
to nationally important sites.
We can understand the selection of RIGS
and LNRs as examples of regional and local
designations but think that some mention
should be made of the difference between
LNRs, which are statutory, and less formal
designations such as RIGS and local
authority SINCs and similar. These
designations should be covered in a separate
paragraph.
Ancient Woodland
10. Ancient woodland is a
valuable biodiversity resource
both for the diversity of species
and for its longevity as
woodland. Once lost it cannot be
recreated. Local planning
authorities should identify any
areas of ancient woodland in
their areas that do not have
statutory protection (e.g. as an
SSSI). They should not grant
planning permission for any
developments that would result in
its loss or deterioration unless
the need for, and benefits of,
the development in that location
outweigh the loss of the woodland
habitat. Aged or 'veteran' trees
found outside ancient woodland
are also particularly valuable
for biodiversity. Planning
authorities should encourage the
conservation of such trees as
part of development proposals.
While it is laudable to offer specific protection
to Ancient Woodland it is hard to understand
why it is only Ancient Woodlands that have
been singled out for this special treatment.
The fact that many habitats are irreplaceable
is encompassed in the concept of ‘Critical
Natural Capital’ and is recognised in the UK
Biodiversity Action Plan (para 3.96). Ancient
Woodland is just one example of Critical
Natural Capital and we believe that reference
should be made to this concept here.
Page 10 of 14
Ancient Woodland
10. Ancient Woodland is an
example of Critical Natural
Capital, once lost they cannot be
recreated. which is a valuable
biodiversity resource both for
the diversity of species and for
its longevity as woodland. Local
planning authorities should
identify any areas of Ancient
Woodland and other Critical
Natural Capital in their areas
that do not have statutory
protection (e.g. as an SSSI).
They should not grant planning
permission for any developments
that would result in its loss or
deterioration unless the need
for, and benefits of, the
UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION
NATURE CONSERVATION WORKING GROUP
development in that location
outweigh the loss of the woodland
habitat. Aged or 'veteran' trees
found outside Ancient Woodland
are also particularly valuable
for biodiversity. Planning
authorities should encourage the
conservation of such trees as
part of development proposals.
Para 11. and Para 14 second
sentence
Previously Developed Sites
12. The re-use of previously
developed sites for new
development makes a major
contribution to sustainable
development by reducing the
amount of countryside and
undeveloped land that needs to be
used. However, where such sites
have substantial biodiversity or
geological interest of recognised
local importance, local planning
authorities should take this into
account and look for ways to
retain this interest or
incorporate it into any
development of the site.
14. Many individual wildlife
species receive statutory
protection under a range of
legislative provisions.
Page 11 of 14
These paragraphs refer to habitat and
species listed under Section 74 of the CROW
Act 2000. This Act makes no distinction
between habitats and species and UKELA
considers that the differing level of protection
outlined in these two paragraphs is therefore
inappropriate. For the sake of legal
consistency, we would recommend that
Section 74 habitats and species be combined
into a single paragraph.
Reference should made here to Strategic
Environmental Assessment which is
designed to address the impact of
development on wider habitat networks.
‘Brownfield sites’ often support significant
nature conservation interest, including
protected species. Such sites may not be
‘recognised’ as being of local importance.
UKELA considers that LPAs should be made
aware that the legal protection enjoyed by
such species should be applied wherever
they are found.
Previously Developed Sites
12. The re-use of previously
developed sites for new
development makes a major
contribution to sustainable
development by reducing the
amount of countryside and
undeveloped land that needs to be
used. However, where such sites
have substantial biodiversity or
geological interest of recognised
local importance, local planning
authorities should take this into
account and look for ways to
retain this interest or
incorporate it into any
development of the site. Legal
protection of species should be
applied on all sites.
As there has been considerable
misunderstanding about the effect of
protection of European plant and animal
species under the Conservation (Natural
Habitats) Regulations 1994 we feel that these
specific requirements should be spelt out
UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION
NATURE CONSERVATION WORKING GROUP
very clearly and, so that the sentence
“Planning authorities should ensure that
these species are protected from the adverse
effects of development, where appropriate by
using planning conditions or obligations”
should be replaced by “Planning authorities
should ensure before granting permission for
development affecting European species
that:(i) there has been an appropriate
assessment of the effect of the
development on the species
(ii) there is no alternative site
(iii) there are no factors of overriding public
importance.
Only after all three tests have been satisfied
should planning permission be granted”.
Then the guidance can continue “Planning
permission should refuse etc …..”
Consultation
Development which affect internationally
designated sites, European protected
species, SSSIs, etc require consultation with
English Nature. UKELA considers that
guidance is required within the PPS to
ensure that this legal requirement is
observed by LPAs and developers alike.
Draft Government Circular
Biodiveristy and Geological Conservation
Statutory obligations and their impact within the planning system
General Comments
The circular contains a lot of information, much of it supported by
footnotes to case law and references to legislation. We feel that as
this is aimed at planners that it may be more productive to give brief
synopses rather than simply referring the reader to them. The circular
is currently quite academic in tone and could benefit from being more
practical in its style.
The Good Practice Guidance should provide practical guidance on
the interpretation of the Habitats Regulations on the ground. We now
have over 10 years experience of implementing these Regulations,
and whilst questions remain unanswered, our understanding of the
Regulations has advanced significantly. In particular, Good Practice
Guidance should provide detailed advice and worked examples on:
·
how to define a ‘project’
·
how to determine what is a ‘likely significant effect’ such that
appropriate assessment is required
·
how to address in combination issues, particularly in relation to
fragmented sites – both marine and terrestrial
·
how to determine ‘adverse effects on integrity’
·
how to interpret ‘alternatives’ – are they alternatives available to
the decision taker or to the promoter of the project?
·
how to determine situations of IROPI
·
how to identify an adequate compensation package (scale,
quality etc)
·
provision of practical advice as to the timescales that are
relevant in delivering compensation (in relation to impacts on
European site occurring)
Page 12 of 14
UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION
NATURE CONSERVATION WORKING GROUP
Paragraph 3
Paragraph 4
Paragraph 5
Paragraph 6
The circular makes no mention of the protection afforded to pSPAs
under Article 4.4 of the Birds Directive (assuming that it is correct to
identify a pSPA as a ‘should be’ SPA). Although paragraph 5 extends
the protection afforded to European sites to pSPAs (and Ramsar
sites) as a matter of policy, this is distinct to recognising the protection
afforded by Article 4.4.
This implies that it is the SSSI notification that will trigger an LPA’s
interest and that it will be up to EN to advise on international aspects
of the site. This contradicts PPS9 page 8, paragraph 6 which refers
to LPAs including international sites on maps.
Following the above comment on paragraph 3, treating pSPAs as
though classified in terms of the protection afforded to them by the
Habitats Regulations does not identify the difference in the derogatory
regimes between the Habitats Regulations and the Wild Birds
Directive (where there isn’t one) for those schemes standing to affect
such sites.
We suggest, for the sake clarity, that the word ‘can’ in the final
sentence to change to ‘should be’.
Paragraph 9
We think there is an omission in Figure 1. If there is a priority
habitat/species and there are no imperative reasons of overriding
public interests relating to human health, public safety or benefits of
primary importance to the environment, there should be a further
question asking whether there are imperative reasons of overriding
public interests of a social or economic nature. If “yes”, then go to the
box in the bottom right hand corner of the figure; if “no”, then
permission must not be granted.
Figure 1 refers to ‘the proposal’ rather than ‘the project’ (elsewhere it
is referred to as ‘the development’) and consistency with the Habitats
Regulations is required. It would be useful if Figure 1 or associated
text refers to what can be considered ‘the project’ i.e. whether or not it
should include mitigation measures for instance. If this does not fall
within the scope of the circular, it should be included within the Good
Practice Guidance (see comment below).
Paragraph 12
It should be stressed that the information on which the competent
authority makes their decision must contain objective information on
the basis of which the risk of significant damage can be excluded.
Although paragraph 13 states that the “in combination assessment
must include all plans and projects”, all examples given appear to be
projects, rather than plans. Would help to include examples of
relevant plans.
Paragraph 13
All necessary information to enable decision makers to comply with
their duties where “in combination” applies needs to be obtained,
“loyal co-operation” is the operative principle.
Paragraph 16
Paragraph 17
Paragraph 17
Paragraph 24
Page 13 of 14
The circular has lost the PPG9 definition of integrity, which has won a
lot of recognition and is useful in practice. If it is not to be included
within the circular, it should be included within the Good Practice
Guidance.
“will not” should read “cannot”
This paragraph needs to reflect the recent A-G Waddensee case
(111). In considering the judgement on integrity, LPA should be sure
that there is “no reasonable doubt as to the absence of such an
effect”.
Doubtful whether a proposal to designate equivalent habitat would be
UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION
NATURE CONSERVATION WORKING GROUP
Paragraph 51
lawful. It may be dangerous to assume that, just because a site has
been identified as a possible replacement site, it will actually be
confirmed as a cSAC. Site selection is a long process and involves an
opportunity for public consultation. Clarification is required as to
whether it is intended that developments should be held up until it can
be certain that a replacement site will be designated.
We think it is erroneous to conclude that a specific plan proposal to
which SEA applies cannot also be a plan or project to which Article
6(3) applies. The assertion that development plans are not plans and
projects within the meaning of Regulation 48(1) has no legal authority.
What is more, it undermines the whole of the planning process that
assumes that allocations in development plans should be developed.
Where relevant, it is imperative that RSSs are subject to appropriate
assessment, and also LDFs and other development plans that draw
from them. This will ensure that development coming forward as a
consequence of a development plan has a reasonable chance of
meeting the tests of Regulation 48(1). At the moment, allocations can
at best, prove difficult to move through Regulation 48, and at worst,
can be undeliverable – which places the whole premise of plan-led
development at risk. The issue then becomes one of LPAs ignoring
the provisions of the Habitats Regulations and failing to consult
English Nature because the English Nature because the Regulations
are perceived to be unworkable.'
English Nature is currently trying to resolve some of the conflicts
between development aspirations of the Government in the southeast
and the protection afforded by Regulation 48. English Nature is
looking to achieve this through promoting appropriate assessment at
the strategic level (appropriate assessment of the RSS). The first
sentence of paragraph 51 would appear to undermine this effort.
Paragraph 52
Paragraphs 81-89
Paragraph 97
Paragraph 100
Paragraph 112
Page 14 of 14
Here it is stated that LPAs should carry out sufficient assessment of
any proposed development in a development plan to determine
whether or not it would adversely affect the integrity of the European
site. This therefore appears to be recognising the need for
appropriate assessment (correctly), without actually calling it such. It
is inconsistent with the first sentence of paragraph 51 as currently
written.
These paragraphs should be placed in context of duties under Article
12/13 of Habitats Directive and Article 3.3. Conservation is necessary
where a species of European interest is not at favourable
conservation status throughout its natural range.
This paragraph should emphasise the importance of land use
planning to provide for positive habitat provision in a way that other
controls are not capable.
Further clarification is required to explain what is considered
“disturbance” e.g. lighting in relation to bat corridors.
If planning authorities are to have the function of applying the 3 tests,
the tests should not merely be considered: they must be specifically
addressed and be satisfied.