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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.

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

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.

In response to the upcoming referendum on the UK’s membership of the EU, the Chartered Institute of Ecology and Environmental Management (CIEEM) surveyed its members on their views on what Brexit would mean for the UK’s natural environment.

Baker Consultants has made clear why we are concerned about Brexit, publishing several pieces on our views on why the EU is important for nature legislation and the negative implications of Brexit for the ecology and construction sectors and the environment. (See our pieces titled: ‘Brexit could worsen the construction sector’s skills shortage‘; ‘UK’s potential exit from the EU threatens economic and regulatory uncertainty‘; British exit from EU would be bad for UK renewable energy business‘; and ‘The EU is good for business and the environment‘).

Snapshot of our Scottish Energy News piece

Snapshot of our Scottish Energy News piece

CIEEM’s survey

Given this, we welcomed CIEEM’s survey and our Managing Director, Andrew Baker, and other colleagues made up several of the 841 respondents.

Today, CIEEM has publicised the results of the survey, showing that an overwhelming majority of ecology professionals (nearly 87% of respondents) are concerned about Brexit having a detrimental impact on the ecology and environmental management sector as a profession. Only 1% said Brexit would be beneficial.

CIEEM members are concerned about Brexit and its potentially negative impact on our efforts to safeguard our environmental quality and its effects on our health, well-being and prosperity.  Other concerns include less effective and integrated action on climate change, invasive species and plant and animal diseases, as well as negative impacts on protected areas and environmental schemes on farmland.

Cover image from CIEEM's EU referendum survey

Cover image from CIEEM’s EU referendum survey

Here we pull out some of the key statistics from CIEEM’s survey:

  • 67% indicated that Brexit would have a negative impact on their company or organisation
  • Over 93% believed that EU environmental legislation has been beneficial to the UK’s natural environment
  • If the UK were to leave the EU, respondents felt that there would be significant negative impacts on:
    • Protection of certain wildlife species (90%)
    • Protection of the natural environment for its environmental benefits (89%)
    • Benefits to migratory species (e.g. birds and cetaceans) (87%)
    • Improved water quality and the recovery of freshwater fish populations (77%)
    • Reduction of nitrates in the environment (74%)
    • Recovery of marine fisheries (74%)
    • Improvements in air quality (70%)
  • 85% do not believe current UK environmental policies would have been delivered to the standard that they are now if we had remained outside the EU
  • 93% say EU environmental directives have had positive additional benefits on UK habitats and species
  • 73% believed that UK nature conservation policy and legislation delivery is dependent, at least to some degree, on EU funding mechanisms
  • Nearly 84% of respondents thought that the UK had achieved more for nature conservation as an EU member than it would have done if it had relied only on international nature conservation agreements.

Furthermore, the timing of the UK’s proposed exit from the EU could have implications for large infrastructure projects such as HS2.

As CIEEM President, Dr Stephanie Wray, says: A change in regulatory regime, or worse, a policy vacuum, would be disastrous at a time of high construction output, both for the environment, and for the contractors attempting to deliver major projects without a clear legislative framework.”

In summary, CIEEM CEO, Sally Hayns said:

It is clear that leaving the EU would have far-reaching effects for those employed in ecology and management of the natural environment. Not only would there be an impact on jobs and livelihoods, with over 50% of our members expressing concern about their own job security, but the industry would be severely damaged. The skills that are playing such a significant role in delivering improvements in environmental quality could be lost, and there would be significant repercussions for the UK’s natural environment.”

Read the full results 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:

Today is World Wetlands Day, celebrated on 2nd Feb each year to mark the adoption of the Ramsar Convention on Wetlands in 1971.

The Convention on Wetlands of International Importance (aka the Ramsar Convention) is an intergovernmental treaty providing a framework for the conservation and wise use of wetlands and their resources.

The Convention was adopted in the city of Ramsar in 1971 and came into force in 1975. Since then, almost 90% of UN member states, from all the world’s geographic regions, have become ‘Contracting Parties’.

There are currently:

  • 169 Contracting Parties
  • 2,227 Ramsar Sites
  • 214,875,598 ha of designated Ramsar sites.
Wetland by Carlos Abrahams, Technical Director

Wetland by Carlos Abrahams, Technical Director

The Ramsar Convention: mission

The Convention’s mission is “the conservation and wise use of all wetlands through local and national actions and international co-operation, as a contribution towards achieving sustainable development throughout the world”.

The Convention uses a broad definition of wetlands. It includes all lakes and rivers, underground aquifers, swamps and marshes, wet grasslands, peatlands, oases, estuaries, deltas and tidal flats, mangroves and other coastal areas, coral reefs, and all human-made sites such as fish ponds, rice paddies, reservoirs and salt pans.

Wetlands are among the most diverse and productive ecosystems, providing essential services and supplying all our fresh water. However, the degradation and conversion of wetlands to other uses is common.

Under the three pillars of the Convention, all Contracting Parties commit to:

  • work towards the wise use of all their wetlands;
  • designate suitable wetlands for the list of Wetlands of International Importance (the ‘Ramsar List’) and ensure their effective management;
  • co-operate internationally on transboundary wetlands, shared wetland systems and shared species.

Learn more

Download the ‘Introducing the Convention on Wetlands’ PDF leaflet here or visit the Ramsar website to read more about the convention.

British reptiles are protected by law and their presence on a development site can have implications for construction projects in a range of sectors, including house-building, infrastructure and renewable energy. Our experienced ecology consultants have the knowledge, expertise and licenses to identify whether reptiles are present and, if necessary, arrange mitigation procedures to allow the development to proceed and meet all legal requirements.

Ecologists Steve Docker and Courtenay Holden were lucky to photograph the moment a juvenile grass snake (one of the UK's six reptile species) was uncovered during a reptile survey

Ecologists Steve Docker and Courtenay Holden were lucky to photograph the moment a juvenile grass snake (one of the UK’s six reptile species) was uncovered during a reptile survey

All British reptiles are protected under the Wildlife and Countryside Act 1981 (as amended by the CRoW Act 2000) and listed as Species of Principal Importance under the provisions of the NERC Act 2006. Grass snake, slow worm, common lizard and adder are protected against intentional killing, injury and against sale; whilst the rarer smooth snake and sand lizard are also protected against disturbance whilst occupying a ‘place used for shelter or protection’ and the destruction of such places. In addition, smooth snake and sand lizard are protected under the Habitats Regulations 2010, making them European Protected Species. Mitigating the impact of developments on reptiles is, therefore, crucial.

For more information on how we carry out reptile surveys and mitigate the impact of developments on reptiles for our clients, visit our reptile survey page.

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.

A judge has ruled that ministers had failed to follow the EU Birds Directive (2009) and planning permission should not have been granted on the Viking Wind farm in Shetland.

The whimbrel, an endangered wader that nests almost exclusively on the island, breeds only in north Scotland when in the UK. The EU birds directive is the EU’s oldest piece of nature legislation creating a comprehensive scheme of protection for all wild bird species naturally occurring in the EU. The directive recognises that habitat loss and degradation are the most serious threats to the conservation of wild birds. The way that this is implemented is often the subject of detailed public inquiry and developers need to be fully aware of their obligations under this legislation. Lady Clark of Carlton said she didn’t feel that the ministers had dealt explicitly with the legal issues arising from the directive.

The case continues.

To contact Carlos Abrahams about adhering to wildlife legislation or to conduct an ecological site assessment please email info@bakerconsultants.co.uk

In his Autumn Statement last week, the Chancellor George Osborne set out his views on how to improve the economy and tackle the debt crisis.
Amongst other matters, he included a few comments in relation to UK environmental legislation that have not gone down well with conservation bodies such as the RSPB and Wildlife Trusts.

 

 

The ‘Greenest Government Ever’ sets light to a Bonfire of the Directives?

In his Autumn Statement last week, the Chancellor George Osborne set out his views on how to improve the economy and tackle the debt crisis. Amongst other matters, he included a few comments in relation to UK environmental legislation that have not gone down well with conservation bodies such as the RSPB and Wildlife Trusts. In particular, the following parts of his speech have hit the headlines:

“If we burden [British businesses] with endless social and environmental goals – however worthy in their own right – then not only will we not achieve those goals, but the businesses will fail, jobs will be lost, and our country will be poorer.”, and

“We will make sure that gold-plating of EU rules on things like habitats aren’t placing ridiculous costs on British businesses.”

Now, some of this rhetoric (and its tone) is likely to have been included to satisfy sections of the Conservative party, but there are some actions coming out of the Autumn Statement that could make real changes to the protection currently afforded to the UK’s most important nature conservation sites. As one of those measures, Defra has been asked to conduct an in-depth review of how the EU Habitats and Birds Directives are being applied in Britain.  Caroline Spelman, the Environment Secretary, has commented that:

“The Habitats and Birds Directives protect our rarest, most threatened habitats and species and ensure conservation interests are fully taken into account when development proposals are being considered….

The vast majority of development cases do successfully meet the Directives’ requirements but a small number raise particularly complex issues which give rise to unnecessary costs and delays. There’s also the possibility that the Directives are being used in ways for which they were not intended….

That is why I am looking forward to seeing recommendations on dealing with any overly-bureaucratic or long, drawn out examples of implementation, without compromising the current levels of environmental protection.”

The aim of this review is to reduce the burdens on business.  As well as the review of the legislation itself, Defra will also establish a troubleshooting unit to address complex projects, Natural England will be expected to provide more support for developers and industry representatives will have representation on a group chaired by Ministers so that they can raise concerns directly with Government.

This review appears to have at least some support from business, National Farmers Union and Country Landowners Association, but unsurprisingly, conservation bodies have raised immediate objections to the Government’s intention to amend, and perhaps water down, the legislation protecting designated sites.

Two letters have been published in the Observer from NGOs and well-known environmentalists such as Jonathan Porritt and Caroline Lucas, which include comments such as:

“Following the chancellor’s autumn statement, we can say that the coalition is on a path to becoming the most environmentally destructive government to hold power in this country since the modern environmental movement was born,”
and,

“The stunning disregard shown for the value of the natural environment not only flies in the face of popular opinion but goes against everything the government said in June, when it launched two major pieces of environmental policy – the natural environment white paper and the England biodiversity strategy.”

So, it’s probably fair to say the Autumn Statement proposals have received a mixed review.

But what might this mean for us as consultants and for the clients we work for?

On the one hand, developers may benefit from fewer constraints in relation to designated sites and protected species – as intended by the Government.

However, if domestic regulation was weakened to an extent where it no longer fulfilled the requirements of the ‘parent’ EU Directive, then development proposals could potentially be more easily challenged by judicial review or through recourse to the European Courts. This would increase the level of risk to developers, perhaps resulting in planning decisions being overturned or prosecutions being taken. In effect, adding complication and uncertainty to the process. A careful approach will therefore be needed to avoid any unintended consequences from changes to the law.

And do we really need to slacken the legislative burden on business from environmental regulation?  As an ecologist I would argue that the burden is not a result of the legislation per se but how the legislation is interpreted by the various Country Agencies. In so many cases we have seen demands for unnecessary survey work and claims about potential impacts that have no basis in science.  These problems will persist no matter what the legislation.

Reference sources:

DEFRA
Guardian letters

Baker Consultants is hosting a seminar at DLA Piper Manchester on Wednesday 28th September.

The seminar addresses ecological constraints to development and how to
overcome the legal hurdles. If you are a planner, planning consultant,
developer or ecologist, whether for a commercial organisation or local
authority, you are welcome to attend.

Ecological issues often cost developers time and money. Whether due to great crested newts, bats, water voles or SSSIs/European designated sites, developers find themselves dealing with legal hurdles which are often difficult to overcome. Recent case law has highlighted the pitfalls and the need to get your strategy right.

Date:            WEDNESDAY 28th September
Time:            4-5.30pm
Venue:         101 Barbiroli Square, Manchester
Booking:       amy.mallett@dlapiper.com

The seminar will be led by Penny Simpson, Associate at DLA Piper UK LLP whose specialist area is in providing legal advice on “natural environment” issues to a wide range of clients including developers, industrial operators, local authorities and public interest groups and Andrew Baker, director of Baker Consultants, ecologist and expert witness.

The seminar is free and can contribute to CPD hours.