Lawyer Monthly Magazine - December 2018 Edition

DEC 2018 104 Expert Witness www. lawyer-monthly .com Having been involved with environmental impact assessment, land use planning and inquiry representation since 1988, Jaquelin Clay BSc MSc CMLI FAE is a leader in advising both public sector and private sector developer clients in facilitating planningpermission. She revealsmoreon legislation developers should be aware about, growing environmental concerns which affect planning and regulations which need to be updated. indeed do not carry the weight that planning obligations do. If they are not well versed on such legislation or regulations, what legal sanctions can they potentially face? The main risk is not prosecution, but the slowing down or failure to progress a planning application. Applications for development move through the system very slowly. If the requirements of the Habitats regulations are not met, then a planning application may not even be registered, never mind approved. What clients often do not realise is that the competent authority has a duty to consider the effect of development on species afforded special protection. If the information on species, usually presence and population size, is not provided with the application, it will be refused due to the risk to the local planning authority. The LPA will not stick its neck out; it wants the data and all of the legislative boxes ticked. It is unlikely that a client would get to the point to where they could be fined or sanctioned. It is far more likely that they fail to get planning permission. Maximum environmental fines are not large, especially in relation to the lost opportunity cost of development not getting approved. The costly What are important parts of EU legislation that property developers/developers should be well versed on? From my perspective there are three areas of legislation: The National Planning Policy Framework as revised in 2018; UK legislation implementing the Habitats Directive; and, legislation related to Environmental Impact Assessment (EIA). While the UK will soon leave the EU, the EU driven legislation is unlikely to change, especially as we are signatories to the Bern Convention, which pre-dates but is similar to the Habitats Regulations in its intent. The requirement for EIA is well- established in UK law and is unlikely to change. There is a lot of confusion regarding EIA: only a small number of projects require it. I have quite a few clients who think it is useful to voluntarily submit an EIA, but my advice is to always avoid this, if possible, using the process whereby a project can be formally screened out of the requirement. Except for its use as a process (evaluating fully the environmental ramifications before freezing the design), EIAs are costly, time-consuming and slow down planning approval. They do not substitute for planning obligations, and environmental fines are in breeches to various Environment Act Regulations, but these usually apply to industries, not to developers. Prospective purchasers should check ecological constraints prior to purchasing; can you share what they should be looking out for? A seller’s pack should include up to date survey information that must be produced to best practice standards and to have been undertaken by competent ecologists. The purchaser should read these carefully, particularly in relation to findings, recommendations for further survey, and any reference to licensing. If ecological constraints are present, these do not preclude Jaquelin Clay Director, JFA Environmental Planning JAQUELIN CLAY Jaquelin Clay is the Principal of JFA Environmental Planning and has been a consultee to the government through many professional committees in implementing mainly EU driven environmental legislation and in producing best practice guidelines. She directs a team of technical professionals in ecology, landscape architecture and arboriculture in supporting client aspirations. She has given evidence at many public inquiries and has been recognised as a Fellow by the Academy of Experts for my competence in this field. ENVIRONMENTAL PLANNING

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