Environmental Planning: Issues that Lead to Court

What are common environmental issues that people run into when development planning?

These are usually available in the local planning authorities checklist.  These vary from district to district, but there are common themes: 1) an initial ecological site appraisal; 2) a landscape appraisal; 3) protected species potential, which is usually addressed in point 1, as following the initial ecological appraisal, further work may be required and; 4) a tree survey – which may be required to assess tree quality and to advise on root protection areas.

What are time-consuming ecological impacts that can cause issues in the long run, if not addressed early on?

Probably the most difficult, expensive and time-consuming is the presence of Habitats Regulations’ protected species, whose key habitat is located onsite in such a way that a mitigation licence from Natural England is required.  This can be very lengthy to resolve and can result in delays and extra work during the build phase. The key way to avoid this is to survey early in the development process and identify workarounds.

How can these issues lead to court cases?

Mitigation under a licence can be complex.  The build-out chain can involve many individuals/companies that may not be well briefed on the licence requirements.  Violations may occur that involve either local residents or regulatory bodies (such as the Environment Agency) that can and will prosecute significant violations.

What are common cases you see and how can these be avoided?

In many instances, they mostly occur due to failing to take protected species into account from the beginning.  There can be a certain “head in the sand” attitude from developers: for example, if we pretend it isn’t there we can avoid having to do anything about it.  I advise against treating regulatory authorities of the local planning authority as though they are stupid. They are not.

How much influence does the EU have with environmental planning regulations and do you expect these to change over the next few years?

Obviously, we are notionally out of the EU, but depending on the final settlement we may have to comply with most EU regulations to trade with them.  A lot of the species protection measures the EU implemented were driven by the UK, so whilst the name of certain legislation may change, the intent will remain.  I think it will be window-dressing to show independence from the EU, but the reality is that species will continue to be afforded a high degree of protection.  And don’t forget, the complex nature of mitigation licensing is largely a result of our own bureaucracy.

Have there been any updates in the European Protected Species Licensing?

Yes, but at the moment it has not been significant (as aforementioned).  There has been a lot of play made about the changes to great crested newt mitigation strategy using the District Licensing methodology, but most of my clients have avoided this as to huge uncertainty as to cost.  They would rather use the current site-based licensing regime as the costs are better defined: a classic case of bureaucrats and NGOs not understanding how business views regulation and cost risks.

When we last spoke you had mentioned how the Habitats Directive was a very awkward and legalistic “fix”, which cries out for improvement. Have there been any improvements?

What’s left to change? See above.  There is a pretence that district licensing is an amazing fix.  It is not, and it only applies to great crested newts. How about bats?  Dormice? Water voles? (And so on).

Jaquelin Clay

Director

Tel: 0845 2263618  Direct Line: 07947 596 341

Email: jackie@jfa.co.uk  Web: www.jfa.co.uk

About the Firm

At JFA our mission is to guide our clients through all aspects of UK, European and international

environmental legislation through effective collaboration. Through our unified ecological and landscape approach we aim to be the leaders in the creation of environments that are rich in biodiversity. Our staff have expertise in policy framework and stakeholder requirements that drive present concerns in providing environmentally and ecologically sound design, supporting planning applications on large and small sites.

We offer services in Landscape, Arboriculture and Ecology which are tailored to suit the changing needs of the environment and construction professions. From inception through to completion, these are designed to suit organisations, contractors and consultants alike.