One Year on – The Application of New Policies in EPS Licensing

We are all aware of the key policy changes codified by Natural England in April 2017, and JFA dedicated two newsletters to the subject during the consultation and adoption period. See our February 2017 article for a discussion of this.

JFA recently attended a seminar that set out how the policy changes are now being applied. In addition, certain Court cases have now clarified the position in relation to what information is necessary at the planning application stage, and these are also summarised below:  

• Key Trend – The national government wants to see District Licensing adopted more widely.  District licensing has been adopted in a few areas.  The pilot with the most publicity is Woking District.  Without going into the minutiae of District Licensing, in areas where this is adopted, a developer does not need to apply for a license.  He looks at a map which shows in which impact zone his proposals lie and pays a fee for development.  His fee pays towards an already defined scheme for providing strategic habitat at the District level for great crested newts.  There are other additional planning requirements for mitigation, but the crucial difference is that no EPS license is required.  This scheme is led by the LPA.  
  
  There are other schemes, notably in the Midlands where a social enterprise, which has arisen from the Environment Bank, acts as the organiser of District level mitigation.  The levy paid in funds land purchase/lease, habitat creation and on-going management costs.  
  
  ​Schemes are going forward at a County level throughout the country, some led by Agencies, others led by social enterprises. It is doubtful that this process will go forward quickly, but it definitely the way of the future. Whether these progress significantly may be highly dependent upon the willingness of central government to provide funding. 
  
  
• Key Trend – Survey Effort.  This also falls out of the Policy 4 of the review above.  The policy, put in place in April last year, allows greater flexibility in terms of survey effort where the impacts can be predicted confidently.  It directly applies to the EPS process.  Greater flexibility is now allowed in terms of the survey effort needed to support an EPS license.  This follows a government trend for the Agency to act to smooth the way for development rather than throw up obstacles.  The strict requirement to follow Natural England’s standing advice is relaxed, and proportionality is to be applied.  Thus, when there is some survey data, and little likelihood of further data showing greater impact or fresh information, a license can be issued.  
  
  This is importantly being applied more generally.  Standing advice is not being withdrawn, but a greater emphasis is placed on proportionality.  This is also true in terms of impacts/distance from source populations.  There is now less adherence to strict distance measures; proportionality of effects is based on population size as well. 
  
  
• Key Court Cases:

1. Morge – Court of Appeal 2010 – this re-affirmed that it is Natural England’s duty, not the LPA, to consider the need for licensing at the planning stage.  The LPA only needs to have regard to species presence. 
   
   Prideaux vs Bucks April 2013 – confirmed the above position, as did Barr vs North Somerset Council (2015) 
   
   If European Protected Species are present, It can be helpful to cite at the submission stage NE’s four Policies, especially as a reasoned statement is not needed for a small project 
   
   
2. Eaton – High Court 2010
   Key Issue – EPS focus on population effects, particularly local populations, not effects on individuals.  The Wildlife and Countryside Act protects individuals of protected species.  Also, the need to maintain populations in situ has been changed, when it can be demonstrated that good off-site mitigation protects or enhances the local population.  

Key issue – use preliminary consultation with the Agency as a way to reduce complexity of approach particularly in light of Policies 1 – 4. 

WCA versus EPS license.  Notwithstanding the presence of an EPSML, it is still possible to commit an offense under the Act.  Having a license does not confer immunity from other offenses in relation to wildlife.
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For small projects and non-EIA development:  1) do Phase 1 surveys and further surveys where possible; 2) do extra surveys even if conditions are sub-optimal; 3) can mitigation be accommodated? If so, it is acceptable for LPA to assume presence of EPS without full survey data.