Baker Consultants Ltd

In June last year the Woolley case (Woolley,R vs Cheshire East Borough Council) clarified the role that Local Planning Authorities must take when considering planning applications that may affect European Protected Species (EPS).

In summary, the High Court found that LPA’s need to have full regard to the Habitats Regulations in their decision making process. Anything less than that would constitute a breach of Regulation 3 (4) of the Habitats Regulations 1994. The implications are complex but in essence when dealing with EPS the LPA will have to consider whether the project meets the tests of ‘imperative reasons of overriding public interest’ and whether there is ‘no satisfactory alternative’. The precise meaning of those two phrases is still under debate.

Also of relevance is Mr Justice Jackson's Report, published January 2010 into litigation costs. (to read it click here). The 700 page report introduces the notion of “qualified one-way costs shifting” which means that Judicial Review litigants should not normally be faced with paying the costs of the defendant even when they loose, raising the potential that many more Mr Woolleys might be tempted to instigate the judicial review process.

Anton writes:

At the end of November 2009 I was thrilled to see an article in the Daily Telegraph about the success of a cycle path in Tewkesbury, a scheme that I worked on between 2001-2003. The scheme began over 15 years ago as a proposed relief road for Tewkesbury, but came up against public opposition and to date has not been built.

Locals (and Friends of the Earth) objected to the road, which would impact an old railway line that is a local wildlife site and home to a large glow worm colony. Gloucester County Council subsequently decided to provide a cycle path along the old railway line. The first phase of the cycle path scheme commenced in 2002, along a section of the route known as Northway Lane to Gannaway Lane. I was lead ecologist for this phase of the work and implemented mitigation for glow worms, which included turf translocations from core areas of the colony and design of glow worm 'friendly' lighting. This includes switching off the path lighting at 11pm each night. The cylcing press seem to have picked up on this story too! Read the Bike Radar article here. Wouldn't our night skies be amazing, if all street lighting operated in this way.

The mitigation strategy was the result of a 10 year study led by Dr. Paul Smith, who originally prepared a glow worm translocation proposal for the proposed relief road. Dr Paul Smith's web site can be found here: www.botanicalinvestigations.co.uk

Watch this space for more on glow worms

Read the Daily Telegraph article here: http://www.telegraph.co.uk/earth/wildlife/6692922/Glow-worm-friendly-cycle-path.html

Updated guidance on bird surveys for proposed wind farm sites in England has been long awaited, currently ecologists are using methods set out by Scottish Natural Heritage which often do not suit English conditions. This new guidance however presents us with a new set of problems without providing much in the way of a route map for ecologists, developers or planners. At the highest level I do not believe that it is unfair to say that the document is not so much guidance but more a “wish list” for research into the ecological impacts of wind turbines. Natural England quite rightly points out that there is a lack of published data and a need for more research but this should not have been presented in a Technical Information Note (TIN 069)

At the detailed level the guidance that is given is ambiguous using imprecise language and terms that are open to interpretation. For example the document talks of “very small” developments, “significant numbers” of birds,” several kilometres” from the site, “relatively high” concentrations but does not define any of these terms. The guidance calls for an extra year of data to be collected ‘for species of high conservation priority’ but does not define what those species are. A list of key species is present in an appendix but it is not clear if this is intended to be an exclusive list, nor does it take into account the status of a species on a site, whether it is a core area for that species or simply an occasional bird passing through but broadly ‘off course’.

The guidance also calls for a greater levels if survey information than previously required including surveying 500m – 2km outside the development site, survey at night using radar or other technologies and finding control areas close to the development site against which data can be compared. Not only are these proposals likely to be highly impractical but also they are not proportionate to the extent that they could incur such a significant cost that would challenge the viability of most wind farm developments.

The greatest danger with this guidance note is that guidance is more often than not interpreted as rules when it comes to dealing with planners, advocates at a public inquiry or even Natural England officers. It is our experience that there is wide variability in interpretation between Natural England offices with an inconsistent application of guidance. There is an urgent need for clarification of these guidelines and a need for the industry to set up a dialogue with Natural England at the earliest opportunity to try and provide the certainty that is required in order to prevent long delays to wind energy developments.

British ponds in a “terrible state”

The BBC reported today following report from the charity Pond Conservation on the poor state of British ponds http://news.bbc.co.uk/1/hi/uk/8497217.stm .

The report highlights the importance of ponds for biodiversity and how agricultural pollution, in particular, is resulting in a decline in quality.

Many development projects provide the opportunity to incorporate new ponds into the landscaping whether as part of the Sustainable Urban Drainage System, public open space or within gardens. New ponds can be a highly cost effective way ecological mitigation, however it isn’t simply a case of digging a hole and hoping it fills with water. Wildlife ponds need to be carefully designed to allow maximum opportunities for biodiversity and although management is infrequent some rejuvenation will be required ever 10 years or so.

More details on pond design can be found at http://www.pondconservation.org.uk.