Does the mention of protected species immediately make you think of costly delays? What if there is an alternative approach?
Developers and consultants alike know just how long and arduous applying for European Protected Species (EPS) licenses can be. Add to that the time it takes for some mitigation measures to be carried out and the whole process can be frustrating for all concerned.
While ecological consultants have no control over Mother Nature, or the amount of staff Natural England available to process license applications. At JFA we believe that utilising our comprehensive ecological knowledge, understanding of wildlife legislation and creative thinking allows us to take a strategic approach that will enable our Clients to meet the three license tests required to facilitate their development.
In a recent article published in the September issue of CIEEM, Penny Simpson from Freeths LLP Solicitors, questions the approach which most consultancies adopt to meet the ‘Favourable Conservation Status’ (FCS) test, hereinafter referred to as FCS . Regulation 53 of the Habitat Regulations (2010) states that:
“The appropriate authority shall not grant a licence unless they are satisfied “that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.”
The normal consultancy approach ignores the flexibility in interpreting this regulation, as the terms ‘population’ and ‘species concerned’ does not clearly state that it is the on-site population that would need to be mitigated for. Could we instead propose mitigation to maintain the FCS of the population across its entire range?
Most consultants, and seemingly governments too, adopt a site-based approach where mitigation is proposed in-situ. Although in-situ mitigation can often be considered the best approach, in many cases it is arguable that a better site is available for the species in question, whilst ensuring that EPS species are not disturbed, harmed or killed by the development process, this could open up opportunities to meet the FCS of a species where in-situ conservation is costly, time-consuming or has less desirable ecological benefits than investing in mitigation elsewhere. This idea is not new and is known as ‘biodiversity offsetting’ amongst the construction industry.
The idea is interesting as for some projects there may be huge ecological benefits to this approach. Projects which require large scale habitat loss, but only small numbers of EPS are present, in-situ mitigation that is proportional to this loss could be difficult for the Client to achieve. Alternatively, financial contributions could be made to Non-Governmental Organisations (NGO’s) to enhance or convert land of ‘better quality’ that would be managed by people who have a good understanding of ecology and interest in the work. It would be better to see money spent on mitigation with long term ecological benefits that actually works and does not waste Clients’ time and money.
Although it is still unclear as to whether such a proposal would survive the current planning process, ‘thinking outside of the box’ when it comes to mitigation schemes, re-affirms the basis for ecological consulting – to remain within the law.
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