Update on key national issues related to biodiversity - planning 2014

Light at the Wrong End of the Tunnel

Mike Oxford Project Officer Association of Local Government Ecologists

Somewhere only we know From ‘the Bear & the Hare’ John Lewis Christmas 2013 TV Advert

Light at the Wrong End of the Tunnel

10 Years !

Where are we now ?

Light at the Wrong End of the Tunnel

Where Could We Shine The Light Shine In The Future?

Ecological reports – that are fit for purpose

Changes in Permitted Development for Agric. Buildings

The Implications of the Crime and Disorder Act !

Natural England – Low Impact Class Licences

Mechanisms to achieve our aims – what are the alternatives?

Ecological roles – are we covering all the bases ?

Monitoring the outcome of our work

CIEEM Publishing

ETHICS FOR THE NATURAL ENVIRONMENT CIEEM Member

Deontology

Consequentialism

Does the ‘means’ justify the ‘end’ ? or Does the ‘end’ justify the ‘means’ ?

Restoring Biodiversity in Old Buildings After Modernisation

cological Reports – Fit for Purpose

New PGS 9 Ecological Report Writing

D different types of reports for different purposes e.g. EcIA, PEA, etc

Stress need to be ‘fit for purpose’

Templates to guide content and structure

___________________________________________________________ STATUTORY INSTRUMENTS _________________________________________________________________________________________

1994 No 2716 Wildlife Countryside

The Conservation (Natural Habitats, &c.) Regulations 1994

Process

Outcomes

Permitted Development !

Agricultural Buildings to Residential

ovt. has relaxed permitted development rights so that conversion of gricultural buildings (i.e. barn conversions) are deemed as permitted

Permitted Development

aragraph MB.2 states that the change of use under Class MB(a) is permitted subject to the condition that before beginning the development, the developer shall apply to the local planning authority or a determination as to whether the prior approval of the authority will be required as to— (a) transport and highways impacts of the development, (b) noise impacts of the development, (c) ontamination risks on the site, (d) flooding risks on the site, or (e) whether the location or siting of the building makes it otherwise mpractical or undesirable for the building to change from agricultural use to a use falling within Class C3 (dwellinghouses),

Permitted Development

so paragraph N(8)(b) was amended in April 2014 by SI 2014 No. 564 o insert the following:

8) The local planning authority shall, when determining an application ...

b) have regard to the National Planning Policy Framework issued by he Department for Communities and Local Government in March 2012, so far as relevant to the subject matter of the prior approval, as f the application were a planning application ...”

Permitted Development

t has been argued that the purpose of the above amendment was:

o reinforce the idea that the Council, when deciding whether to grant or refuse prior approval, is only allowed to assess the issues that are pecifically set out by the relevant Class.

o for agricultural buildings this would be the issues set out by condition MB.2 (i.e. transport and highways impacts, noise impacts, ontamination risks, etc).

Permitted Development

An LPA therefore appears constrained in its consideration of the prior pproval application to the criteria listed in the relevant class in Part 3 in this case, paragraph MB2).

OR IS IT?

Permitted Development

Can the need to protect bats or other protected species be a material consideration in the determination of a prior approval application under Class MB? Can pre‐commencement conditions relating to ecological surveys and protection measures be attached to a notice of prior approval under Class MB?

Permitted Development

e of the limitations and conditions of any of the Classes of Part 3 s to ecological impacts.

hermore, although article 3(1) of the GPDO refers to planning mission being granted “Subject to ... Regulations to 76 of ervation of Habitats and Species Regulations 2010”, these ations only relate to a designated “European site” or a “European ore marine site”.

Permitted Development

owever DCLG state:

All changes under permitted development are required to meet necessary habitats and environmental legislation and regulations.”

ection 40 of the Natural Environment and Rural Communities Act 2006 NERC) requires all public bodies to have regard to biodiversity onservation when carrying out their functions.

n the exercise of its functions the Council is also required to have egard to the requirements of The Conservation of Habitats and Species

Permitted Development

The GPDO as amended sets out at Paragraph N of Part 3 of Schedule 2:

7) The local planning authority may require the developer to ubmit such information as the authority may reasonably require n order to determine the application, which may include—

a) assessments of impacts or risks; . b) statements setting out how impacts or risks are to be mitigated; or .

Permitted Development

e case of Class MB the criteria that the LPA must take into account more wide‐ranging than they are under certain other classes.

rticular, these criteria include consideration as to whether the ion or siting of the building makes it impractical for any other reason des the others that are listed) or undesirable for the building to ge from agricultural use to residential use.

seems potentially to introduce all sorts of other factors that might ably militate against the residential conversion of the building.

Permitted Development

he implications for protected species should be considered as impacts or risks”.

rior approval applications are required to be determined with regard o the requirements of the NPPF.

his requires decisions to be taken with regard to protected species. ouncils should therefore require a prior approval application to be ccompanied by an assessment of the potential impact upon

Wildlife Crime !

Between 2006 and 2009 Five successful prosecutions out of 288 incidents 2% conviction rate

Crime and Disorder Act 1997

me and Disorder Act 1998 ‐ Section 17

y to consider crime and disorder implications

1) Without prejudice to any other obligation imposed on it, it shall be he duty of each authority to which this section applies to exercise its various functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that it reasonably can to prevent, crime and disorder in its area.

Condition or EPS Licence ?

ould and, if so, how can LPAs use conditions to prevent wildlife crime?

More of that later when we look at the Dorset Protocol

Natural England Low Impact Class (EPS) Licences

plies to: seven common(ish) species of bats; Low risk proposals;

Enables ‘registered’ consultants to ‘slip stream’ the process; Reduced paper work and delay (e.g.10 days instead of 30 days)

What Other Mechanisms ?

Approved Documents

Approved Documents A B C F H E N P L

Structural safety Fire safety Resistance to contaminants and moisture Ventilation Drainage and waste disposal Resistance to sound Glazing Electrical safety Conservation of fuel and power

Part 6 of the Building Regulations Covers Energy Efficiency

building is extended or renovated, the energy efficiency of e existing building or part of it may need to be upgraded.

r example: Loft insulation Double glazing Cavity wall insulation

Approved Documents

Approved Documents

Regulation 7 of the Building Act

ulation 7 stipulates that building work shall be carried out with quate and proper materials which: are appropriate for the circumstances in which they are used; are adequately mixed or prepared; are applied, used or fixed so as to adequately perform the function for which they are designed, and;

How do we translate ‘Approved Documents’ into to detailed specifications and method statements on site ?

British Standards for Construction

tish Standards for Biodiversity in Construction

sing British Standards for Wildlife in Buildings Bird and Bat Boxes Green Walls Green Roofs

uld we use British Standards to streamline the EPS licensing process ?

Benefits

Government approved approach (that doesn’t hold up the planning ystem!)

Detailed robust peer reviewed specifications and method statements

Documents that will be familiar to and readily used by: - architects - building control officers - building contractors

Building control officers will (should) be able to inspect quality against clear standards and take enforcement action where necessary

Reality Check !!

More Building Control Officers ? with Greater Ecological Expertise ?

So what’s still missing ?

Specialist expertise on site !

Traditional Clerk of Works

nstructed by the architect and acts as his/her representative on site

Formal role and recognised and authorised through the JCT standard building contract

s able to inspect quality of works and can

Ecological Clerk of Works

CoW contractor/operator

CoW Advisor/ Supervisor (CDM Regulations ?)

CoW Inspector (no contractual authority)

Ecological Surveyor

Ecological Clerk of Works

M.Sc or Phd Thesis ? hat proportion of time and effort goes into: Ecological surveys Impact assessment Design of truly effective mitigation Report writing Decision‐making and scrutiny of applications Appropriate planning conditions Comprehensive delivery of ecological works on site

y guess …!

Ecological surveys Impact assessment Design of truly effective mitigation

Report writing Decision‐making and scrutiny of applications (e.g LPAs and SNCOs) Appropriate planning conditions Comprehensive delivery of ecological works on site Enforcement action

t what should be the consequence of all of this ?

Ecological surveys Impact assessment Design of truly effective mitigation Report writing Decision‐making and scrutiny of applications Appropriate planning conditions Comprehensive delivery of ecological works on site Enforcement action

The Role of Decision‐makers ucial role: Ecological surveys Impact assessment Design of truly effective mitigation Report writing

Decision‐making and scrutiny of applications Appropriate planning conditions Comprehensive delivery of ecological works on site

Compliance & Enforcement action Collate monitoring results – report for yr 2020

Somewhere only we know From ‘the Bear & the Hare’ John Lewis Christmas 2013 TV Advert

The advertising campaign cost £7 million

400 local planning authorities in England

35% have an ecologist

260 (65%) authorities don’t have an ecologist

£27,000 is average salary in UK

260 x £27K = £7,020,000

Based on adequate scrutiny

Based on an outcome focus

The Profession’s Skill Set

hift towards new skills required:

Ecological Clerk of Works – inspecting quality of estoration works ft in how we apply current skill sets:

Less emphasis on ecological surveys Much more emphasis on ecological monitoring

idence base before impacts

Evidence base to show our success

nding Light at the Right End of the Tunnel

e need to:

avoid tunnel vision !

ind new innovative ways of achieving the same ends

explore other mechanisms that can be used to achieve the same purpose

Conclusions

unding within the public sector for biodiversity conservation is decreasing even though ery modest expenditure would arguably create huge benefits.

We can therefore assume that the quality and quantity of scrutiny will diminish within the lanning system i.e. the planning system cannot be relied upon to deliver desired utcomes.

We need to explore what other mechanisms and what other partnerships might achieve he same or better outcomes.

Deontology – process - This government is clearly not happy with the way the nvironmental sector use the current system/process – perhaps it is time to reconsider ur options.

Put aside tunnel vision (e.g. our current focus on surveys, reports etcrprepared before lanning consent) and consider whether the light at the other end of the tunnel (e.g. mplementation and effectiveness monitoring) may be brighter.

Aware of Inadvertent Consequences !

hat’s at the wrong end of the tunnel ?

Thanks for your ear ..... michaeloxford@btinternet.com

Planning for Protected Species