Download Sharing Good Practice: Planning and Nature Conservation

Sharing Good Practice:
Planning and Nature Conservation
Contents
• Introduction to planning and nature conservation
• Legislation and drivers
• Planning policy
• Ecology in local plans
• National policy and practice guidance
• Implementation
• Pre-planning requirements
• Timescale considerations
• Planning conditions
Introduction
• Public authorities in England and Wales have a duty to have regard to conserving
biodiversity.
• Biodiversity should be considered as an integral part of policy and decision making
throughout the public sector, which should be seeking to make a significant
contribution to the achievement of the commitments made by Government in its
Biodiversity 2020 strategy.
• There are also statutory obligations concerning designated sites and protected
species. Local planning authorities should fulfil statutory obligations in a way that
minimises delays and burdens.
• The National Planning Policy Framework is clear that pursuing sustainable
development includes moving from no net loss of biodiversity to achieving net
gains for nature, and that a core principle for planning is that it should contribute
to conserving and enhancing the natural environment and reducing pollution.
LPA Considerations
In considering how development can affect biodiversity,
and how biodiversity benefits could be delivered through
the planning system, Local Authorities are advised to
consider the following:
• The statutory obligations in regard to international and
national designated sites of importance for biodiversity
• Policies and commitments in Biodiversity 2020;
• Existing biodiversity strategies covering the relevant
local or neighbourhood plan area and any local
biodiversity action plans;
• Effects on the habitats or species on the Natural
Environment and Rural Communities Act 2006 section
41 list (in Biodiversity 2020)
• Whether an ecological survey is appropriate;
• The factors listed in guidance on local ecological
networks that supports National Planning Policy
Framework
Legislation
European Directives
• Habitats Directive
• The EIA Directive
National legislation
• The Conservation of Habitats and Species Regulations 2010
• Section 40 of the Natural Environment and Rural Communities Act 2006
• Wildlife and Countryside Act,1981, as amended
• Protection of Badgers Act. 1990
• EIA Regulations 2011 as amended
Circular 06/05
Provides guidance on the statutory obligations in relation
to biodiversity and geological conservation and their
impact within the planning system.
• Internationally designated sites
• Nationally designated sites
• Conservation of species and habitats outside
designated sites
• Conservation of species protected by law
• Other duties and use of statutory powers by planning
authorities
Case Law - EPS
There has been a flurry of case law in recent years, and
the picture is constantly changing
• Wooley v Cheshire East [2009]: - imposed onerous
duty
• Morge v Hampshire [2011]: - less onerous, only if
offence likely
• Cheshire East v SSCLG [2014]: - no need to undertake a
detailed assessment of each derogation test to
determine whether there was a likelihood that the
relevant licensing body would grant a licence
Case Law – European Sites
• NANT Ltd v Suffolk Coastal District Council [2015]
• No legal obligation to carry out a “likely significant
effect test” screening assessment
• An AA of a Core Strategy can leave mitigation
measures to be decided at the planning stage
• Smyth v DCLG[ 2015] and R (Forest of Dean Friends of
the Earth v Forest of Dean DC, [2015]
• Mitigation measures can be taken in to account at
the “likely significant effect” stage
• Where a proposed project may have “in
combination effects” arising from its interaction
with a future development then the mitigation to
address those future impacts can be dealt with at
the later stage when that future development
comes forward
Planning Policy and
Guidance
Planning policy has developed to reflect changes in government and international
policy from PPG9, to PPS9 to NPPF.
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•
•
•
Relevant Local Plan
National Planning Policy Framework
Planning Practice Guidance for Biodiversity, Ecosystems and Green Infrastructure
Planning Circular 06/05
Planning Policy - NPPF
• Key paragraphs in relation to biodiversity
• Paragraph 9: Sustainable development means moving
from no net loss of bio-diversity to achieving net gains
• Paragraph 17: Core planning principle to conserve and
enhance the natural environment and reduce pollution.
Land allocations should prefer land of lesser
environmental value
Planning Policy - NPPF
Paragraph 118: Sets principles that LPAs should consider
when determining applications.
• Permission should be refused if significant harm
resulting from a development cannot be avoided
• Development likely to have an adverse effect on a SSSI
should not normally be permitted.
• Proposals where the primary objective is to conserve or
enhance biodiversity should be permitted
• opportunities to incorporate biodiversity in and around
developments should be encouraged;
• permission should be refused for development
resulting in the loss or deterioration of irreplaceable
habitats, unless the need for, and benefits of, the
development in that location clearly outweigh the loss;
Planning Policy Practice
Guidance on the implementation of the NPFF available on
the Gov website.
Natural Environment section has information on
Biodiversity, ecosystems and green infrastructure. Provides
information on:
• The statutory basis for minimising impacts on
biodiversity
• Planning for biodiversity
• Local ecological networks
• Gathering ecological evidence
• Obligations in relation to designated sites
• Local sites
• Ecosystem services
• Nature improvement areas
• Green infrastructure
• How to consider biodiversity in planning
• Securing mitigation through conditions
Pre-planning
General Requirements
The LPA require sufficient environmental information to
determine the impacts of the development on nature
conservation.
Planning may not be determined without sufficient
environmental information. The level of information depends
on the development but may include:
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•
•
•
•
Ecological appraisal report
Ecological Impact Assessment if an EIA is required
Extended Phase I habitat survey
Protected species surveys (EPS)
Assessment of impacts upon designated sites
If EIA is required (determined through EIA Screening) then
scope of ecology assessment determined through Scoping
Request with LPA and Stakeholders (NE etc).
• New EcIA guidelines and key changes
Survey Considerations
Potential constraints
A number of species surveys can only be undertaken at certain
times of year or require consideration of land outside the
development boundary.
Great crested newt
• Survey April – June
• Ponds up to 500 m
Bats
• Activity surveys March – Sept
Birds
• Wintering and breeding birds
• May need to consider effects on adjacent sites
Each species may have its own requirements
Ecology Timetable
Planning Conditions
A number of biodiversity issues can be dealt with through planning conditions
• Updates to ecological surveys
• Ecological management plans
• Mitigation plans
The wording of planning conditions is particularly important and consideration
should be given to:
• Timing conflicts
• Pre-commencement conditions (phased developments)
• If an EPS licence is required prior to development then all wildlife-related planning
conditions must be discharged prior to licence application