Out-Law News 2 min. read
14 Dec 2016, 4:58 pm
However, the government body has dropped plans to relax survey requirements 'where there is a genuine need for development to proceed to a particular timescale' following a consultation, which took place between February and April of this year.
Planning law expert Matthew Fox of Pinsent Masons, the law firm behind Out-Law.com, said that Natural England's response could "be seen as a net positive result for developers".
"These policies will ensure that Natural England, amongst other things, places a more favourable emphasis on off-site compensation rather than on-site compensation, potentially opening up more developable land; as well as a more favourable emphasis on compensation rather than exclusion or relocation, potentially saving costs," he said.
"Currently it is not uncommon for developers of brownfield and minerals developments to implement measures to prevent European protected species from accessing potential developable land or areas which may be temporarily attractive to EPS. This aims to reduce the ecological issues that need to be addressed when developers seek permission for redevelopment of such land or when land is ultimately mined or developed out," he said.
"However, the new changes see Natural England allowing temporary habitat creation followed by conservation management through an agreed management plan. This change, alongside the proposed relaxed survey requirements means that precautionary approach to species issues may become less relevant and the changes may potentially save time and costs," he said.
Although "the devil will be in the detail of securing these flexibilities", whether in the EPS licence itself or in the form of section 106 agreements or conditions, the new policies "do appear to lift some of the tight strictures that are normally associated with EPS and the planning process", Fox said.
European protected species (EPS) mitigation licences must be obtained from Natural England before development work can take place, if that work could kill or disturb certain species, damage or destroy their breeding or resting places or obstruct access to their resting or sheltering places. Licences will generally include certain conditions, and may require the licence holder to submit records and annual reports to Natural England.
According to Natural England, the current licencing approach "sometimes focuses on individual species at locations where there is a little chance of them thriving in the long term". This can mean that applicants are forced to spend considerable time and money surveying and moving small numbers of animals, with little or no benefit for that animal's conservation status. Its new approach will "encourage planners and conservationists to think on a wider, landscape scale", resulting in measures that are more effective at protecting populations, it said.
The new policies will reduce the need for developers to relocate or exclude EPS from the development site, provided that there is a plan in place to enhance or create habitat for them. They will also give developers more flexibility to create new habitat away from the development site, if this is of greater environmental benefit. A third policy will allow developers of brownfield and mineral working sites that may be attractive to wildlife to proceed, provided that there is a management plan in place; while a fourth will reduce the need for surveys in exceptional circumstances where the impacts of development can be confidently predicted.
According to Natural England, developers and energy companies said that demand for these new policies would be high if they were adopted, although only in the context of great crested newt. This is the species which has caused the most difficulties for developers in recent years. However, it intends to proceed with the new policies more broadly, as this will "allow Natural England to explore whether it can provide benefits in mitigation licensing for other EPS", according to its consultation response.