The Agency has finished consulting on their new approach towards licensing, which we have now analysed and have provided a summary relevant to our clients to read. There are four policy changes, three of which are relevant to planning applications. The net effect should be greater flexibility, more creativity, and less delay.
We have been tracking the European Protected Species Policy Review for some months, ever since it was first put out for consultation. See our December and October newsletters here. Last month The Agency published the formal adoption of these policies:
Policy 1: greater flexibility to dispense with exclusion and relocation activities where there is an investment in habitat provision
Policy 2: greater flexibility in the location of compensatory habitat
Policy 3: greater flexibility on exclusion measures where this will allow EPS to use temporary habitat (for minerals projects mainly)
Policy 4: reduced survey data requirements where the impact of the development can be confidently predicted.
The adoption of these policies will be welcome indeed to the development world and should assist in bringing down costs and delays to development arising from disproportionate effort in managing the presence of EPS on or near development sites. It will still be necessary to survey and identify the presence of EPS on or near a development site, but there will be greater flexibility in managing their presence and ensuring the species long-term survival.
The Agency has a Discretionary Advice Service which can be used if a developer wants to take an alternative approach.
The license, fence, trap and exclude process which is the current practice will still exist, but the new policies will allow greater flexibility and mean that some of the extensive fencing and trapping efforts will not be necessary, particularly if the proposals include substantial habitat enhancement. Ecologists will rejoice, as it will allow for creativity and flexibility in designing mitigation, a welcome move away from the rigid approach required before the policy change.
If an applicant wishes to apply Policy 1, using a more flexible approach, then the application needs to be supported by good quality and up to date surveys. Any compensation needs to be legally secured, e.g. under a Sec 106 agreement, for example. Monitoring of the population post-development will be required.
Policy 2 has similar data and monitoring requirements to Policy 1. It will have limited applications to most developments, but there are occasions when the best solution is a complete population translocation out of the local species range. When this has been needed in the past on substantial projects (usually infrastructure) the Agency has reluctantly allowed it, but has been criticised by
NGOs by allowing it. Establishing this as Policy will help deflect Agency criticism and will provide a greater range of acceptable mitigation solutions.
Policy 3 is thought to mainly apply to the minerals sector, and addresses the scenario when minerals workings temporarily give rise to habitat that is suitable for colonisation by GCN. To comply with the Regulations the minerals operators in the past may have had to exclude GCN (under the license criteria) before continuing work. This will now no longer be necessary, although as part of final site remediation permanent habitat for GCN would be expected.
Policy 4 This is to be welcomed as it will provide greater flexibility in the quantum of data required to support remedial work, and will ensure that proportionality will prevail. We have argued in certain cases, for example with bats or dormice, that the presence of the species is known, the population impact is marginal, and therefore, full seasonal surveys, which can delay a project by twelve months should not be necessary. This Policy gives greater force to such arguments, and it is hoped that we can see an improvement in the rate of site access that is commensurate with the population and the predicted impacts.
In conclusion, while these new policies do not reflect a sea change in the licensing process, they do represent an incremental response to a rather rigid and “law driven” approach to implementing the Habitats Regulations. My only comment would be that this review should have been undertaken much, much sooner.
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