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Obligations for LPAs
These are outlined in the Legal Circular.
OPDM Circular 06/2005
Biodiversity and Geological
Conservation Statutory Obligations and
Their Impact Within The Planning
System
Chapter IV page 33 onwards
Relevant Legislation
•
Wildlife & Countryside Act, 1981
•
Countryside and Rights of Way Act 2000 (the ‘CRoW’ Act)
- amends the Wildlife & Countryside Act, 1981
- introduces the element of recklessness to cause and effect –
implications!!!
•
Badgers Act 1992
•
The Habitats (Conservation &c.) Regulations, 1994
(commonly referred to as ‘The Habitats Regulations’)
- additional to W & C Act, 1981 and providing greater protection
and requiring more stringent legal tests to be applied
Legal Circular
The Circular (paragraph 98) states:
“The presence of a protected species is a
material consideration when a planning
authority is considering a development
proposal that, if carried out, would be likely to
result in harm to the species or its habitat”.
The Natural Environment & Rural
Communities Bill
Clause 40 proposes:
“Every public authority must, in exercising its
functions, have regard, so far as is consistent
with the proper exercise of those functions, to
the purpose of conserving biodiversity.
(iii) Conserving biodiversity includes, in relation
to a living organism or type of habitat, restoring
or enhancing a population or habitat”.
Site Specific Allocation for Biodiversity Identifies …
Apple
orchard
managed
New purpose built
bat roost in roof of
new building
Restored
floodplain
grazing marsh
Retention, restoration
and expansion of
unimproved neutral
grassland meadow
Badger
proof
fencing
along road
Bird boxes
under
eaves of
buildings
New barn
owl box in
sports
pavilion
Woodland
fenced and
under new
coppice
management
regime
Flood
balancing
ponds created in
field
corners
Playing field
margins
managed for long
grass and small
mammals
Creation of
Butterfly
Garden
River margins restored
and managed for
water vole
Artificial otter
holt installed
New nature trail
with wheel
access
Restored
unimproved wet
grassland
meadow
managed for
Marsh Fritillary
Butterflies
How should biodiversity be covered
on the Adopted Proposals Map?
What information will be needed?
PLAN PROPOSALS MAP
•
•
•
•
•
•
•
•
•
International
National
Regional & Local Sites
Section 74 BAP Habitats
Habitat Networks - Regulation 37 Landscape Features
Ancient Woodland
Brownfield land with biodiversity interest
Protected Species
Section 74 Species
So We Need To Rely On …
Statutory obligations for LPAs
• When dealing with cases where a European
Protected Species may be affected, the LPA
is a competent authority under the Habitats
Regulations 1994.
• Regulation 3(4) states:
“Without prejudice to the preceding
provisions, every competent authority in the
exercise of their functions, shall have regard
to the requirements of the Habitats Directive
so far as they may be affected by the
exercise of their functions”
The Habitats Regulations: The ‘Three Tests’
LPAs having “due regard”:
•
Regulation 44(2)(e) for the purpose of preserving pubic health
or public safety or other imperative reasons of overriding public
interest including those of a social or economic nature and
beneficial consequences of primary importance for the
environment.
•
there is no satisfactory alternative (Regulation 44(3)(a)); and
•
the action authorised will not be detrimental to the maintenance
of the species concerned at a favourable conservation status in
their natural range (Regulation 44(3)(b)).
Conservation status: a legal definition
Legal definition from the Habitats Regulations 1994:
The conservation status of a species will be taken as ‘favourable’
when:
•
Population dynamics on the species concerned indicate that it is
maintaining itself on a long term basis as a viable component of its
natural habitat.
•
The natural range of the species is neither being reduced nor is
likely to be reduced in the foreseeable future, and
•
There is, and will probably continue to be a sufficiently large
habitat to maintain its population on a long-term basis.
Obtaining more information
After determination ??
ODPM Circular 06/2005 (paragraph 99) states:
“It is essential that the presence or otherwise of
protected species, and the extent that they may be
affected by the proposed development, is
established before the planning permission is
granted, otherwise all relevant material
considerations may not have been addressed in
making the decision”.
Obtaining more information
Circular 06/2005 continues:
“The need to ensure ecological surveys are carried
out should therefore only be left to coverage under
planning conditions in exceptional circumstances…
…the survey should be completed and any
necessary measures to protect the species should
be in place, through conditions and/or obligations,
before the permission is granted”.
Protected species in the planning system
Noteworthy judicial reviews involving protected species:
Regina vs. Cornwall County Council ex parte Jill Hardy; Sept 2000
– This case involved potential disturbance to bats roosting in a disused
mine. The judgement hinged on a procedural matter: the applicant’s
Environmental Statement was adjudged to have provided insufficient
information upon which to grant planning permission.
– Environmental information must be taken into account before the
decision to grant planning permission is made.
Planning Application Forms And
Registration Of Applications
Best Practice Guidance on the Validation of
Planning Applications (ODPM 2005)
•
•
•
•
Pre-application Guidance
Validation Checklists
Published as SPD
Issued as Article 4 Directions
Town &Country Planning (Applications) Regulations
1988
Planning Application Forms And
Registration Of Applications
See example of Protected Species Question
Peak District National Park Authority
http://www.peakdistrict.org/auth/services/dc/planning.htm
Biodiversity on Standard Application Forms
ALGE / DEFRA / English Nature
and
ODPM
Information for the
decision making process
• Is there adequate information?
• Can harm be avoided?
• Can unavoidable harm be reduced?
• Can residual harm be offset by compensatory
measures?
• Can the development provide new benefits for
wildlife?
Obtaining more information
After determination
• For Full Applications:
Article 4 of the Town and County (Planning
Applications) Regulations (1988).
• For Environmental Impact Assessments:
Regulation 19 of
the Town and Country Planning (Environmental Impact Assessment)
(England and Wales) Regulations (1999).
• Outline Applications: Article 3(2) of the Town and Country Planning
(General Applications: Development Procedure) Order (1995 ).
• For European Sites:
(1994)
Regulation 48 of the Habitats Regulations
Avoiding common pitfalls and assumptions
•
Leaving outstanding issues or further information to a
Planning Condition!
•
Believing that you cannot ask for more information
•
Failing to use planning powers appropriately and often
enough
•
Accepting survey information collected at the wrong time
of year
•
Assuming the information received is correct
•
Assuming the ‘person’ is an expert, experienced and is
competent
•
Assuming other consulted experts are correct and are not
biased
•
Assuming the applicant understands what needs to be
done – and will do it!
Compliance and Enforcement
•
Use conditions to ensure that the “incidental to an otherwise lawful
operation” loophole is closed (+ informatives)
•
Breaches of planning consent (i.e. breach of conditions or obligations)
•
Section 25(1) of the W&C Act:
“…bring to the attention of the public the effects of Part 1 of the Act”
•
Tackling wildlife crime !
•
LA powers of prosecution under Section 25(2) of the W&C Act
•
Police Wildlife Crime Officers and arrestable offences
How should biodiversity be covered
in an Annual Monitoring Report
What information will be needed?
Annual Monitoring Report
•
PPS 12 Pages 48 and 49 state:
“LPAs must develop monitoring systems to assess the
effectiveness of local development documents”.
This should include an assessment of:
“…what impacts the policies are having in respect of
national, regional and local policy targets and any
other targets identified in LDDs…”
Annual Monitoring Report
Annual Monitoring Reports (ODPM LDF Monitoring: Good
Practice Guide; 2005)
•
Process Targets
•
Context Indicators (Baseline)
•
Core Output Indicators (Performance of policies)
•
Significant Effects Indicators (SEA and SA objectives)
(LDS)
Annual Monitoring Report
ODPM Core Output Indicator No 8

Change in priority habitats and species

Change in designated sites (international, national,
regional and local)

Subtractions and Additions (Losses and Gains)

Site Area (ha) and Species Populations (numbers)
Annual Monitoring Report
“LPAs should seek to integrate their approach to
monitoring and survey with other local initiatives”.
i.e. BARS – Biodiversity Action Reporting System
Mike Oxford
ALGE Project Officer
[email protected]