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Update:16/05/2018

On April 13th the Court of Justice of the European Union published its ruling in the Case C323/17 with regards to the Habitats Directive. Since the ruling, the industry has been trying to get to grips with what is one of the most unhelpful and contradictory rulings that I have had to deal with in 15 years of working on the Habitats Directive.

It has been standard working practice for plans or projects that may affect European nature conservation sites such as Thames Basin Heaths to include incorporated mitigation measures from the initial stages of the Habitat Regulations Assessment (HRA) process. In many cases this screening stage (or Likely Significant Effects) negates the need for projects to proceed onto a full appropriate assessment. Projects such as housing ensure strategic mitigation measures are incorporated into the planning proposals to prevent likely significant effects upon these high value sites. This approach is also consistent with the Environmental Impact Directive, previous HRA case law (Waddenzee) and domestic case law (Hart).

However, the People Over Wind case has ruled that mitigation cannot be taken into account when considering the screening test for Likely Significant Effects. Therefore, many developments cannot now be screened out of requiring a full appropriate assessment, which requires more time and involves more consultation than would previously be spent on a ‘screening request’. Furthermore, it throws into question the legality of many strategic mitigation systems that have been put in place to protect sites such as the Dorset Heaths and Thames Basin Heaths.

This ruling has major implications for developments where a Habitats Regulations Assessment may be required. In order to comply with this ruling and avoid legal challenge we are advising that any current applications be reviewed to ensure that the HRA process has been followed and is compliant with this judgement.

 The People Over Wind case involved mitigation measures to prevent sediment affecting freshwater pearl mussels due to installation of a wind turbine connection cable.

Case Details:

The conclusion of the ruling is: “Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that, in order to determine whether it is necessary to carry out, subsequently, an appropriate assessment of the implications, for a site concerned, of a plan or project, it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects [mitigation] of the plan or project on that site” [my emphasis].

For those involved in the HRA process this a significant shift in emphasis, which will result in many more projects failing the first of the HRA legal tests of whether the plan or project will give rise to Likely Significant Effects. Previously, domestic case law has allowed mitigation measures to be taken into account at the ‘screening test’, avoiding the need to progress onto a full appropriate assessment. However, this ruling means that this approach is now no longer valid.

This issue had been addressed in the English courts in 2008 in the Hart District Council case where it was ruled that “As a matter of common sense, anything which encourages the proponents of plans and projects to incorporate mitigation measures at the earliest possible stage in the evolution of their plan or project is surely to be encouraged.

I am satisfied that there is no legal requirement that a screening assessment under Regulation 48(1) [now Regulation 63 (1)] must be carried out in the absence of any mitigation measures that form part of a plan or project. On the contrary, the competent authority is required to consider whether the project, as a whole, including such measures, if they are part of the project, is likely to have a significant effect on the SPA If the competent authority does not agree with the proponent’s view as to the likely efficacy of the proposed mitigation measures, or is left in some doubt as to their efficacy, then it will require an appropriate assessment because it will not have been able to exclude the risk of a significant effect on the basis of objective information.”

Previously some practitioners have made the distinction between mitigation measures that are additional to the project (not taken into account at the screening stage), and mitigation measures that are ‘incorporated mitigation measures’ (integral part of the plan or project and should be taken into account). The new judgement does not address this distinction, however the proposed mitigation in the case in question (involving potential impact of sediment pollution from installation of a wind turbine connection cable on freshwater pearl mussels) was to be agreed with the planning authority post-consent and detailed in a ‘Construction Management Plan’. It is therefore questionable whether the mitigation was an integral part of the project as envisaged by the Hart judgement. The logic behind the ruling is that a more detailed examination of the effectiveness of mitigation measures is needed, and by considering mitigation at the screening stage a higher level of scrutiny may otherwise by circumvented under an appropriate assessment. However the lack of detail within the ruling means that the overall conclusion is somewhat blunt and does not take into account how well thought out the mitigation measures may be, or whether they are tried and tested techniques where the efficacy can be considered certain to prevent harm to the site.

My view is that the ruling is entirely misjudged and I very much hope that Member States use this opportunity to seek clarification on this ruling. In the Hart Case it was said that “…the provisions in the Habitats Directive are intended to be an aid to effective environmental decision making, not a legal obstacle course”. This unfortunate decision has created many more hurdles within the already complex and lengthy Habitat Regulations Assessment process.

In order to protect its position on issues of air quality that may have the potential to affect the Ashdown Forest SPA/SAC, Wealden District Council has taken the extraordinary step of objecting to residential development in neighbouring authorities and beyond. The objections raised by Wealden District Council include even small residential developments of a few units some 30km away from Ashdown Forest, in authority areas that do not share a border with Wealden District. The objection letters also refer to other European sites where air quality, particularly nitrogen deposition, is unlikely to be detrimental to the interest features of the site.

Heather in bloom on lowland heathland, Rockford Common, Linwood, New Forest National Park, Hampshire, England, UK, sunrise, August 2011

Lowland Heathland, 2011.

While it is clear that air quality is a key issue for some European sites and one that needs to be addressed, it is also true that there are ways in which the effects of additional traffic generated by new residential development can be mitigated, avoiding the need to trigger an Appropriate Assessment under the Habitats Regulations.

Our advice to developers within the region is to ensure that, prior to submission, they prepare a statement to accompany their planning application which sets out: a) whether there are likely to be any effects of air quality arising from the project, and b) if there are, how these effects will be mitigated. For large development this will require a multidisciplinary approach involving ecologists, air quality expertise and traffic consultants.

In a statement, Wealden District Council has referred to their ‘precautionary approach’ which we take as a reference to the precautionary principle and a misinterpretation of that tenet.

 

 

We are very proud to be part of the team that helped secure a unanimous vote at Monday’s Suffolk Coastal’s planning committee in favour of CEG’s/Carlyle Land’s development at Adastral Park.

http://www.bbc.co.uk/news/uk-england-suffolk-42694552

Andrew Baker will be tutoring on the Wildlife Law Course 8th-10th November.

The cost of the course is £175

If you are interested in booking on the course please contact Debbie Liversidge at Browne Jacobson.

For details of the course please click on the link below

Would you like to join Baker Consultants terrestrial team? We are looking for Senior Ecologists with at least 5 years’ experience to join us and expand our in-house team.  You will need to be self-motivated, have the ability to run projects, assist in attracting new clients and help drive to continue growing our business.

If you want to work in a fast-paced, innovative and forward thinking organisation that offers a flexible and nurturing working culture we’d love to hear from you. 

Contact any member of our senior team for an informal confidential chat (see our website for contact details) .

Recruitment agencies need not apply!  

 

Andrew Baker has been invited to speak about the legal position of European Protected Species (EPS) at a Planning and Design Group (P&DG) breakfast seminar on Thursday 14th July.
Read more

As recently reported by BBC News and BBC Radio 4, Natural England’s consultation on proposed changes to how it implements protected species legislation (especially for great crested newts) ends this week. Great crested newts are a protected species under EU and domestic law due to their overall European conservation status. Under the legislation, great crested newts receive the highest level of protection.

Natural England's consultation concerns great crested newts, like this one pictured. Image by Senior Ecologist, Matt Cook

Natural England’s consultation concerns great crested newts, like this one pictured. Image by Senior Ecologist, Matt Cook

However, many in the industry (including developers, consultants, ecologists and voluntary organisations) have long expressed the view that the current administration of the legislation is not only overly strict and costly to implement, but also does little for the protection of the species. The fundamental problem was the principle of protecting each and every newt, rather than looking to maintain the species at a population level, which is what is actually required by the law.

The consultation

Our Managing Director, Andrew Baker, is an expert in nature conservation law and has been working with the Chartered Institute of Ecology and Environmental Management (CIEEM) to assist Natural England in the run up to this consultation.

The new proposals by Natural England aim to make the current licensing system more flexible and strategic while ensuring that populations of newts are protected.

“This isn’t a change in the law, but rather a change in the way that the law is implemented by Natural England. For some time, I have felt that the legislation hasn’t been interpreted properly: it doesn’t make ecological sense to protect every single newt while ignoring the health of the overall population. This proposed change in how Natural England is implementing the law is very much welcomed and I feel that it much more closely reflects the letter of the law and will also have greater conservation benefit”, says Andrew.

More about great crested newts

The great crested newt (Triturus cristatus) is the largest of Britain’s three indigenous newt species. They are black in colour with an orange and black spotted belly. The main threats to the survival of the great crested newt are habitat destruction and fragmentation as a result of anthropogenic development. Emerging infectious diseases such as chytridiomycosis, caused by a pathogenic fungus, also pose a significant threat to this species.

Great crested newt by Matt Cook

Great crested newt by Matt Cook, Senior Ecologist

Great crested newts and their breeding sites are protected by the EU Conservation of Habitats and Species Regulations 2010 and the Wildlife and Countryside Act 1981 (as amended).

Great crested newts can be surveyed between March and June using standard methods and between 15th April and 30th June using eDNA sampling. Surveys include torchlight surveys, netting, terrestrial search, egg search (on suitable vegetation) and bottle trapping.

Read more about great crested newt surveys here.

Prime minister David Cameron recently announced that a referendum on the UK’s membership of the EU is to be held on 23rd June 2016. Many industries are now sharing their views on what it would mean for their industry if the UK were to leave the EU – termed ‘Brexit’.

As reported by UK Construction Week, housebuilders have warned that if the UK does leave the EU it could lead to a shortage of skilled construction labour, constrain investment in new house building and consequently further worsen the UK’s housing shortage.

Construction begins on a new residential development. The construction industry could be negatively affected by Brexit

Construction begins on a new residential development. The construction industry could be negatively affected by Brexit

This would be especially problematic as the construction industry is already suffering from a shortage of skilled workers. According to the Home Builders Federation, the industry is already reliant on overseas labour and would need additional overseas labour in order to close the current housing shortfall.

Baker Consultants’ managing director Andrew Baker points out that a skills shortage resulting from the UK leaving the EU will not be confined to the construction industry:

“I believe Brexit would have a disproportionate impact upon the ecology profession, not only because of the likely economic turmoil that would follow, but also the impact it would have on the regulatory framework. For instance, much of the law that protects UK wildlife originates in European directives. Brexit would throw our environmental legislation into disarray.

“It would also have specific consequences for us at Baker Consultants, as our in-house team is truly international and we have some of the best scientists from across Europe working for us. Exiting the EU would be a major constraint to our ability to recruit key talent and would damage our ability to compete internationally.”

Read more on why Baker Consultants believes the UK should remain in the EU in our article for Scottish Energy News.

Andrew Baker has been invited to speak about the legal position of European Protected Species (EPS) at a Planning and Design Group (P&DG) breakfast seminar on 17th March.

European Protected Species: A minefield that is being slowly cleared?

The presence of European Protected Species such as bats, great crested newts and dormice can be a considerable problem for developers seeking planning permission and may be used as a reason for planning refusal.

Great Crested Newts (like this one pictured) are European Protected Species. Image by Senior Ecologist, Matt Cook

Great Crested Newts (like this one pictured) are European Protected Species. Image by Senior Ecologist, Matt Cook

The interaction between the EPS legal process and the planning system has been the subject of extensive legal dispute. In 2009, caselaw established that local planning authorities (LPAs) should consider the legal tests associated with EPS. However, more recent caselaw suggests that a more ‘relaxed’ approach is appropriate and LPAs should not duplicate the legal processes afforded to these species. Furthermore, Natural England (which has statutory responsibility for EPS), in the face of strong criticism from industry and the ecology profession, is now starting to make significant changes to the way that they implement the EPS licensing process. This could offer welcome improvements to the process.

Andrew Baker, Managing Director of Baker Consultants, is an ecologist with almost three decades of experience and is an expert in the practical application of nature conservation law. He was recently made a Fellow of the Chartered Institute of Ecology and Environmental Management (CIEEM) in recognition of his contribution to this subject and is a member of a liaison team that has been working with Natural England to try and streamline the administration of the EPS licensing process. He is a veteran of many public inquiries where EPS were an issue and has appeared as an expert witness to local plan inquiries and parliamentary select committees.

Bats (including these Whiskered Brandt's) are European Protected Species. Image by Ecologist Courtenay Holden

Bats (including these Whiskered Brandt’s) are European Protected Species. Image by Ecologist, Courtenay Holden

About the seminar

In his talk, Andrew will review the structural basis of the legal protection afforded to EPS, and how it is administered in England by the LPAs and Natural England. He will explore the relevant caselaw and current legal position and report on the latest progress in this rapidly changing area.

The seminar takes place on Thursday 17th March from 7.30am in Nottingham. Alongside Andrew, there will be advice from P&DG on ‘Maximising Development Opportunities in the current Planning Environment’ as well as a talk from another guest speaker.

For anyone interested in attending the seminar, please contact us for more details.

More about European Protected Species

For more information on protected species licensing, and the services we offer, click here.

For information on individual protected species and our surveying capabilities, follow the below links:

Gladman Developments Ltd has won a planning appeal inquiry for a residential development at Coalville, Leicestershire. The development of 180 new homes was initially refused by North West Leicestershire District Council in November 2014 and was subsequently examined at a public inquiry a year later. Baker Consultants provided Gladman with ecological advice throughout the planning process, carrying out comprehensive surveys and negotiating with the Local Planning Authority.

Prior to the inquiry, Baker Consultants gained agreement with the local authority ecologist that any ecological impacts could be fully mitigated, and wildlife issues were not, therefore, a reason for the initial planning refusal. Third parties, however, maintained ecological objections and Baker Consultants’ Managing Director, Andrew Baker, was called to give evidence to the inquiry. In addressing the ecological objections, the inspector stated in his report that “these matters were addressed comprehensively in the evidence of the Appellant [Gladman]”.

Andrew Baker said: “We are very pleased to be part of Gladman’s inquiry team and contribute to the successful outcome of this project.”

Andrew Baker, Managing Director of Baker Consultants, provided evidence at the planning appeal

Andrew Baker, Managing Director of Baker Consultants, provided evidence at the planning appeal

About Baker Consultants

For more information on Baker Consultants’ ecological services, visit our terrestrial ecology page.

To read more about Andrew’s experience of public inquiries and expert witness, click here.

Following the announcement of our latest marine contract win to provide underwater noise and marine mammal activity monitoring during construction of Wikinger offshore wind farm, our Managing Director Andrew Baker has discussed his views on the importance of the UK remaining in the EU. This has been published by Scottish Energy News and is reproduced below.

Snapshot of Scottish Energy News piece, reproduced below

Snapshot of Scottish Energy News piece, reproduced below

Scottish Energy News article

Ecological consultancy Baker Consultants recently announced the award of its latest significant European contract for Iberdrola on the Wikinger offshore wind farm. 

Here Managing Director Andrew Baker – one of the UK’s experts in nature conservation law – discusses the UK membership of the EU and the possible threat that the UK leaving the EU might bring for the renewable energy sector.

By ANDREW BAKER

I strongly believe that the UK must remain within the European Union. Not only is our membership of the EU good for business, it also benefits the environment.

As a company, we trade internationally with companies based in other EU countries. In particular, the marine side of our business is very active in German waters both in the North Sea and the Baltic.

Our latest project will see us providing an underwater noise and marine mammal activity monitoring service during the construction phase of the Wikinger offshore wind farm in the Baltic Sea. We will also monitor underwater noise emissions as well as the activity of harbour porpoises that may be present within and around the wind farm during piling operations.

As contracts such as this typically account for up to half of our group’s turnover, a figure that is expected to increase in the future, the UK’s membership of the EU is extremely important to our business.

While at present we have a very good working relationship with our EU customers, this would clearly be threatened if the UK were to leave the EU, as we would no longer have the level playing field that the EU enshrines in law.

In addition, the benefits of EU membership for the environment must not be underestimated. The environmental profession is now starting to contemplate the implications of a potential UK exit from the EU.

A British ‘yes’ to quit the EU is likely to have a disproportionate impact upon the ecology profession, not only because of the likely economic turmoil that would ensue, but also the considerable impact that it would have on the regulatory framework.

Much of the law that protects wildlife in the UK has its origin in European directives, such as the Habitats and Birds Directives (collectively known as the ‘Nature Directives’), Environmental Impact Assessment Directive and the Marine Strategy Framework Directive.

If the UK were to leave the EU, this would throw our environmental legislation into disarray, potentially leading to years of legal wrangling while the UK decides what legislation should be reinvented and what should be dropped.

The Nature Directives have recently been the subject of an EU Regulatory Fitness and Performance (REFIT) process, a rolling programme to keep the entire stock of EU legislation under review. They were given an overwhelming clean bill of health. The public consultation received over half a million responses, more than any other consultation, of which the vast majority were supportive.

Rory Stewart (DEFRA Parliamentary Under-Secretary) was very supportive of the Directives, stating, “The UK, like other Member States, does not want to renegotiate the Nature Directives”.

However, as someone who is familiar with the practical side of implementing EU Directives, I have often been critical of the UK’s approach. The law is never perfect, but I am of the opinion that the majority of the problems we have with the Nature Directives are as a result of domestic implementation, rather than a fault of the Directives per se.

I am active in the campaign to stay in the EU. As a member of the UK Environmental Law Association’s nature conservation working group, I have been involved in assessing the potential impact on nature conservation of the UK leaving the EU. I represented the ecology profession at a recent All Party Parliamentary Group on Biodiversity meeting to discuss the review of the Habitat and Birds Directives.

During this meeting, I stressed my views of the importance of retaining both these directives as well as continuing the UK’s membership of the EU.

We are very proud that Baker Consultants is an exporter to our EU partners, however I am very concerned that if the UK were to leave the EU this would be a serious threat to this aspect of our business.

If this does happen, we would have no choice but to move our business to a country that remains in the EU, whether it be on the continent or another country within a devolved United Kingdom.

We are already looking into contingency plans.

About Andrew

Andrew Baker was recently awarded a fellowship by his professional body – the Chartered Institute of Ecology and Environmental Management. He is also an active member of the UK Environmental Law Association.

Andrew Baker, Managing Director and founder of Baker Consultants, has been made a Fellow of the Chartered Institute of Ecology and Environmental Management (CIEEM).

In elevating Andrew to being a Fellow, CIEEM cited his outstanding contribution in the development and interpretation of nature conservation law, and his contribution to advancing the use of bioacoustics as an ecological surveying and monitoring tool.

Andrew Baker receiving his Fellowship award from John Box, then-President of CIEEM. Photo by CIEEM

Andrew Baker receiving his Fellowship award from John Box, then-President of CIEEM. Photo by CIEEM

With almost three decades of professional experience, Andrew has a particular interest in the law, and he has been very active in this area through his work with the UK Environmental Law Association (UKELA), teaching and frequent publications. This expertise is valued highly by our clients and he is a veteran of many public inquiries where his knowledge of the subject is critical.

Contact us today to discuss your project.

The environmental profession is starting to contemplate the implications of the UK’s potential exit from the European Union. ‘Brexit’, as it is termed, is likely to have a disproportionate impact upon the ecology profession, not only because of the likely economic turmoil that would ensue, but also the considerable impact that the UK’s exit from the EU would have on the regulatory framework.

Much of the law that protects wildlife in the UK has its origin in European directives, such as the Habitats and Birds Directives, Environmental Impact Assessment Directive and the Marine Strategy Framework Directive. Baker Consultants’ Managing Director, Andrew Baker, is one of the UK’s experts in nature conservation law and an active member of the UK Environmental Law Association’s nature conservation working group. The working group has been assessing the potential impact of Brexit on nature conservation, and the group’s convenor Wyn Jones has assessed the implications in a recent paper, which is included in full below.

Golden Plovers in flight by J R Pender. Golden Plovers are one of the species that sites can be designated for under the Birds Directive

Golden Plovers in flight by J R Pender. Golden Plovers are one of the species that sites can be designated for under the Birds Directive

Andrew has been invited to speak at a meeting of the All Party Parliamentary Group on Biodiversity (APPGB) on 17th November to discuss the ongoing review of the Habitat and Birds Directives. Read more about the meeting here.

Implications of the UK leaving the European Union – nature conservation

Introduction

Members of the UKELA nature conservation working party have considered this issue for some time. However, we still do not have a clear picture of how, should the UK leave the European Union, the process would be undertaken and the time frame for such a process. The potential impacts on legislation for and affecting wildlife are considerable. Given the uncertainties all that are possible is to list the potential issues. The following is far from complete but provides an indication of the range of issues and complexities to be addressed.

Context

The process to withdraw from the European Union is set out in Article 50 of the Lisbon Treaty. (This amends the Treaty on European Union (Maastricht) and the Treaty establishing the European Community (Rome).) Article 50 provides for a 2 year period to negotiate the withdrawal which includes addressing fiscal issues, termination of contracts etc.. The period may be extended with the agreement of all remaining Member States. No country has previously withdrawn from the European Union and therefore the process is untested.

The situation is further complicated by devolution with the respective governments likely to adopt different approaches to the legal framework within their competency, post UK exit from the EU.

In addition the Crown Dependency of Gibraltar is a part of the UK’s territory within the EU and the Sovereign base areas of Akrotiri and Dhekalia on Cyprus under the terms of Treaty of Independence in 1960 the base areas must mirror Cypriot legislation. Cyprus joined the European Union in 2004.

In terms of national legislation most EU legislation is transposed in the main by means of secondary legislation derived from the European Communities Act 1972, but not all. The repeal of the Act could be undertaken quickly. However, given the considerable amount of secondary legislation it is likely to take some time to consider the full consequences of repeal. It is essential that all such secondary measures remain in force unless and until specifically repealed. Many reflect protective measures which either originated, or would have been undertaken, in the UK even if it had not been a member of the EU. In the period leading up to the referendum and post ‘No vote’, EU derived legislation will be difficult to implement and enforce. Without a clear and detailed exit strategy there is likely to be confusion if not chaos.

It is ironic that the UK holds the presidency of the EU in the second half of 2017.

Legislation for and affecting wildlife

The key wildlife Directives are the EC Birds Directive (79/409/EEC) (codified 2009/147/ EC) and the Habitats Directive (92/43/EEC). The former is transposed by means of the Habitats Regulations and Part I Wildlife Countryside Act 1981 as amended, the Nature Conservation (Scotland) Act 2004 and the Wildlife (Northern Ireland) Order 1985 as amended. The latter is transposed by means of Habitats Regulations.

Other critical directives are the Environmental Impacts Directive (2011/92/EU as amended by 2014/52/EU)) and the Strategic Environmental Directive (2001/42/EC) and Environmental Information Directive (2003/4/EC) which are transposed into national legislation by means of Regulations.

Overlapping complementary directives are the Water Framework Directive (92/43/EEC), the Marine Strategy Framework Directive (2008/56/EC) and the Environmental Liability Directive (2004/35/EC).

Some issues and / or questions

European sites

Most terrestrial sites have been notified as Sites of Special Scientific Interest (SSSI) (Areas of Special Scientific Interest in Northern Ireland (ASSI)) and will be afforded a measure of protection but not as robust as that provided by the Habitats Directive. The description of such sites as ‘European’ may need to be changed to a term such as ‘International’ but the level of protection should continue. The implications for land transfer and registration of any substantive changes need to be addressed.

Management agreements

The implications for management agreements will need to be considered. The European interest features will be of national importance and therefore the agreement could be re-assigned to Section 15 Countryside Act 1968 to protect and manage SSSIs. Such an arrangement would need to be formalised through appropriate legislation.

Notice and consents

Consents given by the statutory nature conservation bodies under the Regulations could be revoked or re-assigned to the underpinning SSSI / ASSI legislation where possible?

Special nature conservation orders

Orders made by the Secretary of State would ultimately need to be renamed as would any measures made in association with individual orders. All relevant owners and occupiers would need to be given notice of the changes.

Byelaws

I am not aware of byelaws being made by means of the Regulations but if any are in force they would need to be renamed and appropriate notices etc. made to publicise changes.

European marine sites

European marine sites (SPAs and SACs) are not necessarily underpinned by national legislation provided by the declaration as Marine Nature Reserves at Lundy, Skomer and Strangford Lough and / or designation as Marine Conservation Zones (MCZs) under the Marine and Coastal Access Act 2009. However, those European sites not already MCZs could be so designated with minimum administrative burden?

Protection of European species

European protected species listed in the Schedules to the Regulations are also listed in the relevant Schedules of the Wildlife and Countryside Act 1981 as amended. In Northern Ireland and Scotland European protected species are only listed in the Regulations. This anomaly would need to be addressed.

The protection afforded by the Wildlife and Countryside Act (Part 1) in the main mirrors the directives (intentional / reckless v deliberate). The one major difference is the strict liability offence under Article 12.1(d) Habitats Directive which could be incorporated into domestic law.

Protection would be substantially weakened if there were a loss of the tests of no alternatives and action not detrimental to the maintenance of the population(s) of species at favourable conservation status (Article 16).

The power under the Regulations to issue licences for preserving public health and safety or other imperative reasons of overriding public interest including those of a social or economic nature is not available under national legislation.

Assessment of plans and projects

It would be important to ensure that where plans and projects have been carried out the compensation secured and the relevant agreements underpinning the measures are retained.

It is important to ensure that where plans and projects have been reviewed under Regulations and amended or revoked, the reviews and consequent changes are not nullified. A large exercise was carried out by the nature conservation bodies and the then Environment Agency / SEPA to review consents.

Conclusions

We have to accept that BREXIT may occur and not refrain from suggesting measures that might minimize harm so as to maximise the perceived harm of BREXIT as an argument against it.

All domestic secondary transposing measures should remain in force unless and until specifically repealed.

The need for owners and occupiers consent for reclassification of conditions and agreements under domestic legislation should be avoided.

All the above are likely to place considerable administrative burden on governments and their agencies and will have practical implications as to the management and protection of natural habitats and wild fauna and flora.

and finally …

to quote Donald Rumsfeld

‘There are known knows. These are things we know that we know. There are known unknowns. That is to say that there are things we know we don’t know. But there are also unknowns unknowns. These are things we don’t know we don’t know.’

We are at the known unknowns’ stage, gathering information and listing issues to be addressed. We have no idea of the consequences and of the unknown unknowns. It will be a perilous and uncertain time for nature conservation in the UK.

 

Wyn Jones

Convenor, nature conservation working party

26th October 2015.

 

Andrew Baker, our Managing Director, has been invited to speak at a meeting of the All Party Parliamentary Group on Biodiversity (APPGB); a forum for informed discussion between cross-party parliamentarians, senior policy makers, industry leaders and environmental organisations on biodiversity issues. He will share the stage with Stanley Johnson, formerly of the European Commission and European Parliament, and the RSPB’s Kate Jennings.

Andrew Baker, Managing Director

Andrew Baker, Managing Director

The meeting will discuss the ongoing review of the European Commission’s Habitat and Birds Directives, which form the cornerstone of Europe’s nature conservation policy. The Habitats Directive protects over 1,000 animal and plant species and over 200 habitat types of European importance. The Habitats Directive has been in place since 1992 and the Birds Directive since 2009, when it replaced the 1979 directive on the conservation of wild birds.

This takes place in the context of the ongoing ‘fitness check’ of the Habitats Directive and also under the shadow of the UK’s referendum on UK membership of the European Community. Andrew has been asked to speak to represent the views of ecology professionals operating in the commercial sector.

The meeting is scheduled for 5pm November 17th at Westminster. If you wish to attend, please contact Andrew Callender, Secretariat APPG Biodiversity.

About the speakers

Andrew Baker is an ecologist and Managing Director of Baker Consultants and Baker Consultants Marine. He has a particular interest in nature conservation law and has been an active member of the UK Environmental Law Association for over 10 years. He is a veteran of many public inquiries and has given evidence on biodiversity issues to parliamentary select committees. He is familiar with the sharp end of the Directives and, while he is a staunch supporter of Europe, has often been critical of how the Directives are implemented in the UK.

Stanley Johnson is a well-known environmental professional, having held senior positions at the European Parliament and European Commission. He is a successful environmental writer, having published ten environmental books, and has won high profile environmental awards from the charities Greenpeace, RSPCA and, most recently, the RSPB. He has also been a trustee of several environmental organisations, such as Plantlife and the Earthwatch Institute. He is also the father of Boris Johnson!

Kate Jennings is Head of Site Conservation Policy at the RSPB, a position she has held since 2012. She previously worked as a Site Policy Officer, also for the RSPB, and as Senior Officer and Site Designation Officer for Natural England. She is also Chair of the Joint Links’ Habitats and Birds group, which represents 100 voluntary organisations across the UK.

Finalist Wales Green Energy Awards 2015

The 2015 Wales Green Energy Award finalists have been announced and Baker Consultants has been nominated alongside Newcastle University for a Contribution to Skills & Training award!

Our nomination relates to the research and development of bioacoustics survey skills for the monitoring of European nightjar, a species of bird often perceived as being in conflict with wind farm developments and operations. Nightjars are widespread in Wales and can be a considerable constraint to development as they receive special legal protection.

Bioacoustics and the nightjar

Traditional survey methods used to establish the presence of nightjars, a bird both elusive and cryptic in behaviour, are expensive and can necessitate walked transect surveys, tape luring surveys and radio tracking to map their distribution and nest sites.

During 2013 and 2014, we carried out research into the use of bioacoustics survey methods as an alternative to conventional methods.

Nightjar spectrogram (frequency plotted against time) showing a series of major (high frequency) phrases and minor (low frequency) phrases

Nightjar spectrogram (frequency plotted against time) showing a series of major (high frequency) phrases and minor (low frequency) phrases

Andrew Baker, Managing Director of Baker Consultants, says: “At their basic level, bioacoustics surveys involve placing recording devices out in the field, often for extended periods, and recording animal sounds. This has many advantages over conventional surveys techniques, as a large amount of data can be gathered over an extended period of time as recording devices are left unattended for up to three months. Such data is critical, making it possible to establish whether records of nightjar are simply those passing through or those with established territories on the site.This can provide crucial information regarding whether a development gains approval. Furthermore, the costs of bioacoustics surveys are much lower than conventional methods”.

Baker Consultants also funded research by Dr Mieke Zwart as part of a joint project led by Dr Mark Whittingham of Newcastle University. The research proved that the use of bioacoustics was much more effective than established methods and was published as a peer-reviewed paper. This established the value of bioacoustics in nightjar surveying and paved the way for wider use of this cost-effective survey technique. There is also considerable potential for further development of this technique to allow a more detailed understanding of the use of a site by nightjar and other important species.

The Awards

The Wales Green Energy Awards are in their third year, and organised by RenewableUK Cymru to celebrate the success and achievements of the green energy industry in Wales. The award winners will be announced on Friday 6 November in Cardiff.

David Clubb, Director of RenewableUK Cymru, said: “We are always delighted by the quality of submissions for the Wales Green Energy Awards, and this year is no exception. Each of the shortlisted individuals or organisations should feel extremely proud of what they have achieved over the last 12 months, often in the face of challenging political and policy decisions.”

Baker Consultants and Wales

Baker Consultants has been providing ecological services to projects throughout Wales for a number of years and this year we consolidated our presence with an office in Swansea, following increased demand in the region and growth in the renewables sector. Read more in our article here.

Contact a member of our Welsh team today to discuss your project