Ecology & Development: What you need to know in 2020

January 31 2020, a.k.a. Brexit Day, has come and gone, but what does Brexit mean for wildlife legislation in 2020 and what are the other changes afoot in the realm of ecology that developers might need to think about this year?

Brexit and EU Legislation

Let's start with wildlife legislation.

Now we've left the EU there will be a transition period, which will last until 31 December 2020. During this transition period, all EU rules and regulations will continue to apply to the UK.

So, it's business as usual on the legal front, as the Conservation of Habitats and Species Regulations 2017 (a.k.a. the Habitats Regulations) will still be in force, transposing the terrestrial aspects of the EU Habitats Directive and certain elements of the EU Birds Directive—commonly referred to as the Nature Directives—into domestic law.

It's business as usual on the legal front

HOWEVER...

Due to our departure from the EU, there have been a number of amendments over the past few months to The Conservation of Habitats and Species Regulations 2017. This legislation transposes the EU Habitats Directive and Wild Bird Directive into our domestic law. In addition to this there have also been minor amendments to the Wildlife and Countryside Act 1981 to facilitate the amendments to the Conservation of Habitats and Species Regulations 2017.

The main points to note are as follows:

• Habitat and species protection and standards will be undertaken in the same way when the UK exits the EU and that there are no planned change in terms of policy. This means European Protected Species Licences (EPSL) and Habitat Regulations Assessments (HRA’s) will still be required if works are affecting the usual species or designated sites. The amendments to the legislation that have been applied are to ensure that the regulations continue to function after we have left. Essentially, existing protections for habitats and species will be continued.
• The key phrase is “exit day” upon which the new regulations become active, so as of last Friday “The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019” now take precedent.
• A new regulation has been implemented 16A to cover the management objectives of the “National Site Network” which is the new name for the UK’s collection of Special Protection Areas, Special Areas of Conservation and Ramsar sites. This is interesting as the following places an onus on local authorities to manage the designated sites: “The appropriate authority must, in co-operation with any other authority having a corresponding responsibility, manage, and where necessary adapt, the national site network, so far as it consists of European sites, with a view to contributing to the achievement of the management objectives of the national site network.” With the management objectives including “to maintain at, or where appropriate restore to, a favourable conservation status in their natural range (so far as it lies in the United Kingdom’s territory, and so far as is proportionate” As councils have limited money available, we can see a potential increase in the number of councils implementing tariffs for developments nearby designated sites (see 'The Rise of RAMS' below).

The full amendments can be found here:

https://www.legislation.gov.uk/uksi/2019/579/contents/made

The Environment Bill

In Her Majesty's own words:

"My Ministers remain committed to protecting and improving the environment for future generations. For the first time, environmental principles will be enshrined in law. Measures will be introduced to improve air and water quality, tackle plastic pollution and restore habitats so plants and wildlife can thrive. Legislation will also create new legally-binding environmental improvement targets. A new, world-leading independent regulator will be established in statute to scrutinise environmental policy and law, investigate complaints and take enforcement action."

Although it is far from clear whether or not the Environment Bill (reintroduced on 30 January 2020) is likely to be passed any time soon, the likelihood is that with the ongoing climate crisis it will passed sooner rather than later.

You can monitor the progress of the Bill here:

https://services.parliament.uk/Bills/2019-20/environment.html

Here are seven key messages for developers in relation to nature and biodiversity, put forward by the Environment Bill:

1. The bill enshrines the principle of biodiversity net gain into law, which would require developers to offset and improve the value of natural habitat that is damaged or destroyed as a result of development. 
2. Biodiversity net gain would apply to all developments in England requiring an environmental impact assessment under the Town and Country Planning Act 1990.
3. Developers will have to submit a 'biodiversity gain plan' that would be able to achieve a 10% uplift in the quality of the natural habitat damaged or destroyed as a result of development.
4. Any proposed mitigation and compensation measures a developer has proposed, on or offsite, would need to be maintained for at least 30 years. 
5. If a developer is unable to provide a 10% biodiversity gain in habitat creation it must provide details of any registered land that will be used to provide an offset, including the biodiversity value of any gains in relation to the development. 
6. If a developer is unable to provide a biodiversity net gain of 10%, it will be able to purchase credits from the secretary of state, who will publish the amount paid for those credits. 
7. Some projects will be exempt from the net gain policy e.g. National infrastructure projects, protected sites or irreplaceable habitats, some small developments not requiring an environmental impact assessment, or those on brownfield land.

How to Deliver Measurable Biodiversity Net Gain

Calculating measurable net gain can be a bit of a minefield, because different local authorities favour the use of different calculators. This applies mainly where they have developed their own biodiversity net gain calculator.

However, there are two mechanisms for demonstrating net gain that are perhaps more widely applicable:

• BREEAM 2018
• Biodiversity Metric 2.0

So, for those projects registered for BREEAM 2018 assessment, the good news is that the calculator used to calculate post-development change in biodiversity is based on the Defra biodiveristy net gain calculator and as such outputs a figure which can be used to demonstrate net gain.

For non-BREEAM pojects, the Biodiversity Metric 2.0 is currently available for use (albeit in beta form) and provides another mainstream option for calculating biodiversity net gain.

For the most part one of the above two options will be a good starting point, but I can't emphasise enough the importance of asking the local authority what their preference is in terms of calculating biodiversity net gain to avoid duplication of effort (and gnashing of teeth!) on behalf of your ecologist when the case officers turns round and asks for a different calculator to be completed.

The Rise of RAMS 

Recreational Avoidance Mitigation Strategies (RAMS) are here to stay...

Over the past few years recreational impacts from residential developments have historically been mitigated through the creation of onsite greenspace or the identification of greenspace capacity within the local area. This approach has often failed to address the fact that, due to their unique character and accessibility, our coastal SPAs, SACs and Ramsar sites will always draw visitors, even if there are closer recreation sites available.

Furthermore, given the lack of ready access to information about the measures put in place at developments local to these sites to remove or reduce recreational effects, it has always been difficult to assess the potential for significant cumulative recreational impacts. This has led to piecemeal mitigation on a site by site basis, when an holistic approach might have delivered a better result. Due to this, councils have been looking at what measures can be implemented to provide a structured approach at reducing recreational impacts to their designated sites. 

Recently the East Suffolk Council, Ipswich Borough Council and Babergh Mid Suffolk Councils have produced and implemented a RAMS. The RAMS provides a strategic approach to recreational mitigation, using funding obtained through tariffs on residential developments to provide staffing, education, management, and research at the designated sites. The RAMS identifies a zone of influence (ZOI) from each of the counties' coastal designated sites, which have been determined by visitor surveys monitoring the distance people will travel to a site. Suffolk employs a 13km ZOI from all its coastal designated sites, further splitting these into two zones: development within zone A is considered less sensitive and therefore carries a tariff of ï¿¡121.89 per unit, whilst development within the more sensitive zone B carries a per-unit tariff of ï¿¡321.22.

You can click here to check if your site is in the ZOI.

This strategic approach using tariffs to fund mitigation and research at the designated sites is likely to be copied by other councils and in the future may be applied to impacts outside of recreation. Schemes are already in place in Chichester, the Solent, The New Forest and Epping Forest with others soon to be implemented.

Essex’s supplementary planning document for their own RAMS is, at the time of writing, under consultation until 21 February 2020.

People Over Wind

Have you played the 'mitigation hokey-cokey' recently?

The April 2018 ruling by the CJEU (C-323/17) determined that mitigation measures could not, as had been common practice in the UK, be taken into consideration when assessing the Likely Significant Effects (LSE) of development on designated European Sites during the screening stage of Habitats Regulations Assessment (HRA). Such measures could only be factored in on completion of a more detailed Appropriate Assessment of the development’s effects on the integrity of such sites.

For much of 2019 ecological consultants and planners have been scratching their heads as to how best deal with this, as carrying out Appropriate Assessment can lead to significant additional cost and delay.

One approach has been to work closely with ecologists, landscape architects and masterplanners early on in the design process to design schemes that manage recreational impacts (the primary source of significant effects in most cases) on-site and thus reduce the likelihood that the HRA screening would conclude that there are likely significant effects. Obviously there are other factors that generate significant effects, such as air pollution and water abstraction, and these ideally need to be considered alongside recreational impacts at the design stage for this approach to work effectively.

On the other hand, for smaller developments, Appropriate Assessment may not be overly arduous and as such the additional cost and delay may be less of an issue.

Ultimately, the decision whether a feature is mitigation or simply part of the scheme design can be very subjective, so it's important to working with the design team to ensure that appropriate justification can be provided where the consensus is that likely significant effects will be avoided.

District Level Licensing (DLL) for Great Crested Newts (GCN)

To quote from Cheshire and Kent's rather useful FAQs document on the topic of DLL and GCN:

GCN have seen dramatic declines in their populations over the last 60 years, and are protected under UK and EU law. Despite these protections, the populations of GCN have continued to decrease. District licensing is a new approach to authorising developments affecting GCN, by focusing conservation effort where it will create maximum benefit whilst reducing delays, costs, risks and uncertainty for developers. It shifts investment from site based assessment and mitigation into strategic habitat improvements which can be integrated with Local Plans and biodiversity strategies.

Essentially, DLL allows developers to pay a fee to either reduce (for some schemes only) or remove their requirement for undertaking on site mitigation. The money is then used for habitat creation, enhancement and management elsewhere in areas which have been specifically set aside for this purpose.

The scheme is being rolled out countrywide but is currently live in the following locations:

• Woking
• Kent
• Cheshire
• Oxfordshire
• Bedfordshire
• Gloucestershire
• Parts of Northamptonshire

The scheme is run by different organisations in different areas and so the details and requirements vary depending on the location of the site but all follow similar principles. The main advantages and disadvantages are:

Advantages:

• No great crested newt survey required – although it may still be beneficial for some schemes
•  You can apply prior to the submission of a planning application – this removes any uncertainty regarding great crested newts earlier on in the process
• Less on site mitigation – for some areas and schemes no mitigation is required, for where it is required the level of mitigation is lower than required by a traditional mitigation licence
• No post-development mitigation or management commitment 

Disadvantages:

• Without survey data you won't know if you don't have any newts (ie where you have many ponds on site, paying for survey could save you money)
• The scheme cannot be used for all developments – developments in certain high risk areas will not be eligible
• Very large schemes may not be accommodated – some schemes do not currently have enough compensation land to cope with very large sites
• Larger schemes could work out more expensive – there could however be savings in terms of time

The scheme is currently voluntary and the previous routes of using the low impact class licence or applying for a traditional licence are still available. Please contact Gemma Linacre, our great crested newt specialist, to discuss whether your project is eligible for the scheme and your options. 

T: 02037 808332 | M: 7557 286978 | E: gemma.linacre@mlmgroup.com

Urban Greening Factor

For those of you involved in developing in London, it's worth bearing in mind that Policy G5 of the draft London Plan introduces the Urban Greening Factor:

"A. Major development proposals should contribute to the greening of London by including urban greening as a fundamental element of site and building design, and by incorporating measures such as high-quality landscaping (including trees), green roofs, green walls and nature-based sustainable drainage.

B. Boroughs should develop an Urban Greening Factor (UGF) to identify the appropriate amount of urban greening required in new developments. The UGF should be based on the factors [presented in a table in the document], but tailored to local circumstances. In the interim, the Mayor recommends a target score of 0.4 for developments that are predominately residential, and a target score of 0.3 for predominately commercial development."

It is worth noting that, as existing green cover retained on site should count towards developments meeting their interim target scores, retention of existing habitats as part of development will play an increasingly important role in the design process.

The UGF only applies to major applications currently, however it is intended that it will be rolled out to applications below this threshold eventually.

Further details available on the draft Local Plan website:

https://www.london.gov.uk/what-we-do/planning/london-plan/new-london-plan/draft-new-london-plan/chapter-8-green-infrastructure-and-natural-environment/policy-g5

How Can We Help?

Do you want a more detailed introduction to any of the above topics? We are currently offering free tailored lunchtime CPD seminars to help existing and prospective clients get to grips with the new ecological landscape.

Contact me (Martin Brammah) to arrange your seminar:

T: 01223 632800 | M: 07917 559977 | E: martin.brammah@mlmgroup.com