Baker Consultants Ltd

Susan writes: The Matlock Moor wind farm site is interesting to us not only because the site is only a few miles from our office but also because renewable energy is a key business area for Baker Consultants. 

What the inspectors report reveals serves as a warning to developers who might not see the value of often time-consuming and detailed survey.

There were several reasons for the refusal, some of which include ecology (pages 11 to 14 of the report attached below).

The site is 3km from the boundary of South Pennine Moors SPA (Special Protection Area). Birds listed in the citation are also believed to use the Matlock Moor site for foraging or breeding.

The inspector felt that insufficient survey for birds was undertaken, in terms of the amount of effort (i.e. too few hours on site for some species) and the area covered, for example the survey area should have extended up to 2km radius around the site.

The inspector listed five key species (from 80 recorded) as representative for the site, three of which are listed in Annex 1 of the Birds Directive, one on Schedule 1 of the Wildlife and Countryside Act and a further species, lapwing, which is not listed in the legislation, but is red listed on the Birds of Conservation Concern list. It is not clear from the report if any of the other 75 bird species recorded, are listed in legislation, the SPA citation or the BoCC list and if so, why these were not included in the key species selected.

The inspector felt that the collision risk model had been insufficiently applied for five key species. My guess is that because these species were infrequently recorded on site and possibly they were not seen to fly in the rotor sweep area, that under the strict application of collision risk modelling they would not necessarily be included.- The inspector implied that just because these species were infrequently recorded during survey it could not be said that they were infrequently using the site, she accepted evidence from local birders that they were more common than the evidence presented (using the standard guidance) suggested.

The inspector believed that the consultation was insufficient and should have included data retrieval and advice from the local Wildlife Trust, ornithological societies and raptor groups.

Implications for our clients and all developers that should be noted are: Pay special attention to protected sites in the area of the proposed wind farm, don't scrimp on the hours, include survey way beyond the boundary of the site, put a lot more effort in to consultations and start the whole process early. Just following the guidelines is not necessarily enough.

Add your comments to the blog below, or contact one of the team to undertake a windfarm ecology site assessment.

The Baker Consultants team is currently reviewing the Department for Communities and Local Government consultation paper on a new Planning Policy Statement ‘Planning for a Natural and Healthy Environment'

It is proposed that this new PPS will replace PPS9 on Biodiversity and Geological Conservation.

The scope of the new PPS has been extended to include open spaces, sport and recreation, sustainable development in rural areas, landscape protection and coastal access.

The biodiversity aspects of the new PPS are greatly reduced when compared with PPS9 however the consultation includes a revised version of ODPM Circular 06/2005 and Defra Circular 01/2005 Circular: Biodiversity and Geological Conservation - Statutory obligations and their impact within the planning system.

Consultation closes on 1st June 2010 so make sure you have your say. To join in the discussion comment on this blog below or contact anyone at the Baker Consultants team here.

Nature conservation law is under continuous review and further changes have been announced that are proposed to come into force on April 1st 2010.

The proposed changes include consolidation and amendment to the Habitat Regulations 1994, the Offshore Marine Conservation Regulations and the Environmental Damage Regulations 2009.

The full documents can be viewed at the OPSI web site by clicking on the links above.

If you require any advice on these documents or would like to receive them as a pdf please contact andrew on a.baker@bakerconsultants.co.uk or 07950 122969.

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.