Licenses to deal with European Protected Species in development

One of the matters on which environmental consultants and developers have long found common ground is that the site-based habitat compensation approach to the protection of European Protected Species (EPS) has helped neither delivery of development nor in most cases, the long term safeguarding of EPS. For that reason the adoption of four new policies for licencing developments that affect EPS, announced by Natural England (NE) in December 2016, has been broadly welcomed by all parties.  The policies, focussing on NE’s approach to European Protected Species in development (i.e. mitigation and compensation for development impacts on EPS), are intended to secure the safeguarding of EPS that is required in law whilst minimising costly delays to development.

These policies in no way change the need for an applicant to meet the legal tests set out in the Habitats and Species Regulations, i.e. to demonstrate that there is no satisfactory alternative to the activity proposed; that the population of the species concerned will be maintained at a Favourable Conservation Status (FCS) in its natural range; and that there are imperative reasons of overriding public interest for the licensable activity.  Overall, however, it is intended that the policies will deliver better outcomes for EPS and, at the same time, reduce uncertainty, unnecessary costs, and delays for developers.

Four months into the revised regime, we offer an overview of how the policies are working in practice, and initial thoughts on their roll out in the future.

Four New EPS Licensing Policies

The four new policies apply only to EPS, such as great crested newt, bats and dormouse, and can be used together and/or individually as needed.  The policies are listed below, followed by our brief interpretation of their purpose:

  • “Policy 1 – Greater flexibility when excluding and relocating European Protected Species (EPS) from development sites – to offer opportunities to reduce the amount of trapping and translocation required by licensing, with a shift instead towards habitat provision.
  • Policy 2 – Greater flexibility in the location of newly created habitats that compensate for habitats that will be lost to give greater flexibility in the location of compensatory habitat, including use of strategic locations that may possibly be further from the site, although still within the same ‘district’.
  • “Policy 3 – Allowing EPS to have access to temporary habitats that will be developed at a later date – to give greater flexibility in use of temporary habitat, which acknowledges the ecological merits of compensation being sited in, for example, mineral workings and short life sites.
  • “Policy 4 – Appropriate and relevant surveys where the impacts of development can be confidently predicted – to enable reduced survey effort where the effect of development can be predicted with confidence, in essence allowing field survey requirements to be informed according to risk levels.

These policies are certainly welcome, aimed as they are at supporting the conservation status of the species and reducing the frustration and costs experienced by applicants. If applied effectively, they should encourage all parties to think at a landscape scale, so investment can be focused on larger and better connected habitat that genuinely safeguards EPS at a population level. 

Effect in Practice

In practice, the effect of the four new EPS Licensing Policies is not yet clear.  Natural England has stated that it will not be providing detailed advice on how the policies will affect its determination of licence applications, so applicants, ecologists and planning authorities are still, in effect, feeling their way.

There are a number of questions about how the new policies will apply.  Before determining any planning application, local planning authorities (LPA) are required to adopt a view on the FCS tests.  They also have other obligations, however, not least national and local planning policies and the NERC Act, which might conflict with the EPS Licensing Policies. It may also, in many cases, be difficult to meet the FCS tests in the absence of robust local and regional population assessments for an EPS.   LPAs must also apply Natural England’s standing advice, which is not an obviously comfortable fit with Policy 4 in particular.  Given these uncertainties, and for safety, it is likely that developers will need to make use of Natural England’s Discretionary Advice Service (DAS) or Pre-Submission Screening Service when applying the new policies.

Against these technical uncertainties, and in a heightened political environment with continual pressure to release much needed development sites by offsetting biodiversity constraints, some sectors of the development industry might be forgiven for misjudging the level of effort needed, and/or information required to deal with the presence of EPS at a development site. Without the support of a well-informed ecologist, developers may underestimate the fine balance of risk between opting to avoid surveys and associated capture and removal of EPS altogether, with minimum ‘additional benefit’ offered, and falling foul of costly delays to consents and EPS licensing.

Synopsis

There are risks inherent in any changed system, especially where guidance on implementation of the fresh approach is not available. On the plus side, there is evidence that the new policies have already been employed to beneficial effect, informed by appropriately qualified ecological support.  Equally, the policies are not intended to, and cannot, make complex scientific questions as simple as black and white.

The four new policies are framed to allow a greater reliance on expert judgement, and the advice of an experienced ecologist will be critical to applicants making an informed judgement on when the policies apply, the scope of evidence needed and the options for satisfactory mitigation strategies.  TLPs ecology team are well versed in EPS licencing and have significant experience of steering developers through the complexities of the process.

It is early days.  The changes to the EPS licencing process are not silver bullets, but they do offer an opportunity to safeguard protected species at the same time as reducing uncertainty for developers. If they genuinely help to streamline the process of securing an EPS licence then they are certainly welcome.

If you would like more information on how to deal with ecology and protected species in the planning and development process, please contact Caroline Chipperfield or Richard Pash at the Landmark Practice on 0117 9230455

For details of the background to the new policies see: Proposed new policies for European Protected Species licensing

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