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These are outlined in the Legal Circular.
OPDM Circular 06/2005 Biodiversity and Geological
Conservation Statutory Obligations and Their Impact Within The Planning
System
Chapter IV page 33 onwards
Obligations for LPAs
Relevant Legislation• Wildlife & Countryside Act, 1981
• Countryside and Rights of Way Act 2000 (the ‘CRoW’ Act)
- amends the Wildlife & Countryside Act, 1981- introduces the element of recklessness to cause and effect –
implications!!!
• Badgers Act 1992
• The Habitats (Conservation &c.) Regulations, 1994(commonly referred to as ‘The Habitats Regulations’)
- additional to W & C Act, 1981 and providing greater protection and requiring more stringent legal tests to be applied
Legal Circular
The Circular (paragraph 98) states:
“The presence of a protected species is a material consideration when a planning authority is considering a development proposal that, if carried out, would be likely to result in harm to the species or its habitat”.
The Natural Environment & Rural Communities Bill
Clause 40 proposes:
“Every public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity.
(iii) Conserving biodiversity includes, in relation to a living organism or type of habitat, restoring or enhancing a population or habitat”.
Badger proof fencing along road
New purpose built bat roost in roof of new building
Restored floodplain grazing marsh
-
New barn owl box in sports pavilion
Flood balancing ponds created in field corners
Playing field margins managed for long grass and small mammals
River margins restored and managed for water vole
Retention, restoration and expansion of unimproved neutral grassland meadow
Woodland fenced and under new coppice management regime
Restored unimproved wet grassland meadow managed for Marsh Fritillary Butterflies
New nature trail with wheel access
Artificial otter holt installed
Site Specific Allocation for Biodiversity Identifies …
Apple orchard managed
Creation of Butterfly Garden
Bird boxes under eaves of buildings
How should biodiversity be covered on the Adopted Proposals Map?
What information will be needed?
PLAN PROPOSALS MAP• International• National• Regional & Local Sites • Section 74 BAP Habitats• Habitat Networks - Regulation 37 Landscape Features• Ancient Woodland• Brownfield land with biodiversity interest • Protected Species• Section 74 Species
So We Need To Rely On …
Statutory obligations for LPAs
• When dealing with cases where a European Protected Species may be affected, the LPA is a competent authority under the Habitats Regulations 1994.
• Regulation 3(4) states:“Without prejudice to the preceding provisions, every competent authority in the exercise of their functions, shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of their functions”
The Habitats Regulations: The ‘Three Tests’
LPAs having “due regard”:
• Regulation 44(2)(e) for the purpose of preserving pubic health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment.
• there is no satisfactory alternative (Regulation 44(3)(a)); and
• the action authorised will not be detrimental to the maintenance of the species concerned at a favourable conservation status in their natural range (Regulation 44(3)(b)).
Conservation status: a legal definition
• Population dynamics on the species concerned indicate that it is maintaining itself on a long term basis as a viable component of its natural habitat.
• The natural range of the species is neither being reduced nor is likely to be reduced in the foreseeable future, and
• There is, and will probably continue to be a sufficiently large habitat to maintain its population on a long-term basis.
Legal definition from the Habitats Regulations 1994: The conservation status of a species will be taken as ‘favourable’ when:
Obtaining more informationAfter determination ??
ODPM Circular 06/2005 (paragraph 99) states:
“It is essential that the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before the planning permission is granted, otherwise all relevant material considerations may not have been addressed in making the decision”.
Obtaining more information
Circular 06/2005 continues:
“The need to ensure ecological surveys are carried out should therefore only be left to coverage under planning conditions in exceptional circumstances…
…the survey should be completed and any necessary measures to protect the species should be in place, through conditions and/or obligations, before the permission is granted”.
Protected species in the planning system
Noteworthy judicial reviews involving protected species:
Regina vs. Cornwall County Council ex parte Jill Hardy; Sept 2000
– This case involved potential disturbance to bats roosting in a disused mine. The judgement hinged on a procedural matter: the applicant’s Environmental Statement was adjudged to have provided insufficient information upon which to grant planning permission.
– Environmental information must be taken into account before the decision to grant planning permission is made.
Planning Application Forms And Registration Of Applications
Best Practice Guidance on the Validation of Planning Applications (ODPM 2005)
• Pre-application Guidance• Validation Checklists• Published as SPD • Issued as Article 4 Directions
Town &Country Planning (Applications) Regulations 1988
Planning Application Forms And Registration Of Applications
See example of Protected Species Question
Peak District National Park Authority
http://www.peakdistrict.org/auth/services/dc/planning.htm
Biodiversity on Standard Application Forms
ALGE / DEFRA / English Nature
and
ODPM
Information for the decision making process
• Is there adequate information?
• Can harm be avoided?
• Can unavoidable harm be reduced?
• Can residual harm be offset by compensatory measures?
• Can the development provide new benefits for wildlife?
Obtaining more informationAfter determination
• For Full Applications: Article 4 of the Town and County (Planning
Applications) Regulations (1988). • For Environmental Impact Assessments: Regulation 19 of
the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations (1999).
• Outline Applications: Article 3(2) of the Town and Country Planning (General Applications: Development Procedure) Order (1995 ).
• For European Sites: Regulation 48 of the Habitats Regulations (1994)
Avoiding common pitfalls and assumptions
• Leaving outstanding issues or further information to a Planning Condition!
• Believing that you cannot ask for more information
• Failing to use planning powers appropriately and often enough
• Accepting survey information collected at the wrong time of year
• Assuming the information received is correct
• Assuming the ‘person’ is an expert, experienced and is competent
• Assuming other consulted experts are correct and are not biased
• Assuming the applicant understands what needs to be done – and will do it!
Compliance and Enforcement
• Use conditions to ensure that the “incidental to an otherwise lawful operation” loophole is closed (+ informatives)
• Breaches of planning consent (i.e. breach of conditions or obligations)
• Section 25(1) of the W&C Act: “…bring to the attention of the public the effects of Part 1 of the Act”
• Tackling wildlife crime !
• LA powers of prosecution under Section 25(2) of the W&C Act
• Police Wildlife Crime Officers and arrestable offences
How should biodiversity be covered in an Annual Monitoring Report
What information will be needed?
Annual Monitoring Report
• PPS 12 Pages 48 and 49 state:
“LPAs must develop monitoring systems to assess the effectiveness of local development documents”. This should include an assessment of:
“…what impacts the policies are having in respect of national, regional and local policy targets and any other targets identified in LDDs…”
Annual Monitoring Report
Annual Monitoring Reports (ODPM LDF Monitoring: Good Practice Guide; 2005)
• Process Targets (LDS)
• Context Indicators (Baseline)
• Core Output Indicators (Performance of policies)
• Significant Effects Indicators (SEA and SA objectives)
Annual Monitoring Report
ODPM Core Output Indicator No 8
Change in priority habitats and species
Change in designated sites (international, national, regional and local)
Subtractions and Additions (Losses and Gains)
Site Area (ha) and Species Populations (numbers)
Annual Monitoring Report
“LPAs should seek to integrate their approach to monitoring and survey with other local
initiatives”.
i.e. BARS – Biodiversity Action Reporting System
