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Download Sharing Good Practice: Planning and Nature Conservation
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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. • • • • 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: • • • • • 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