Three Rivers District Council AGENTS FORUM 12 June 2012 BIODIVERSITY AND PLANNING APPLICATIONS - AN UPDATE Martin Hicks, Herts Biological Records Centre

What is planning? Is it to save the countryside? No Is it to build on the countryide? No Are most applications refused? No -80 – 90% approved Planning is for the greater public good. This has to involve all aspects of concern to society. Development is one – so is the environment. The desire is to achieve good planning, as far as possible – now guided by the NPPF.

What was the draft NPPF? Reform of planning guidance. Previous plethora of documents – 30 PPGs and PPSs, 2 circulars and 12 guidance letters pages. Draft heavily criticised by most environmental groups – Wildlife Trusts, Woodland Trust, RSPB, National Trust, CPRE, Open Spaces Society Wildlife Sites under threat Insufficient protection for Ancient Woodlands No suitable definition of Sustainable Development ‘Yes’ to development Final document was awaited with trepidation.

What is the NPPF now? Simplified planning for everybody’s benefit – perhaps oversimplified? C60 pages, in many areas, detail little altered from draft. Also reflects many elements of previous PPSs – including PPS9 Generally welcomed by Env organisations What are its environmental credentials? Biodiversity is mentioned in: Ministerial Foreword, Achieving Sustainable Development, Plan Making and Decision–taking sections Conserving and enhancing the natural environment – 17 (13%) the highest number of paragraphs of all. A significant emphasis and contribution to the document as a whole. Of course, the devil is in the detail…

Rt Hon Greg Clark MP Minister for Planning…and hellsfire Inspectorate

MINISTERIAL FOREWORD The purpose of planning is to help achieve sustainable development. Sustainable development is about change for the better, and not only in our built environment. Our natural environment is essential to our wellbeing, and it can be better looked after than it has been. Habitats that have been degraded can be restored. Species that have been isolated can be reconnected. Green Belt land that has been depleted of diversity can be refilled by nature – and opened to people to experience it, to the benefit of body and soul.

ACHIEVING SUSTAINABLE DEVELOPMENT The UK Sustainable Development Strategy set out five ‘guiding principles’ of sustainable development, one of which is: living within the planet’s environmental limits; 7. There are three dimensions to sustainable development: ● an economic role ● a social role ● an environmental role – contributing to protecting and enhancing our natural…environment; and, as part of this, helping to improve biodiversity… 8.These roles should not be undertaken in isolation, because they are mutually dependent. Therefore, to achieve sustainable development, economic, social and environmental gains should be sought jointly and simultaneously through the planning system. 9. Pursuing sustainable development involves seeking positive improvements in the quality of the built, natural and historic environment

The presumption in favour of sustainable development 14. The heart of the NPPF is a presumption in favour of sustainable development, a golden thread through both plan-making and decision- taking - unless: any adverse impacts of doing so would significantly and demonstrably outweigh the benefits assessed against the NPPF or if specific policies in the NPPF indicate development should be restricted* *For example, those policies relating to sites protected under the Birds and Habitats Directives (see paragraph 119) and/or designated as Sites of Special Scientific Interest…; an Area of Outstanding Natural Beauty

Core planning principles 17. These [include] …that planning should: - contribute to conserving and enhancing the natural environment… Allocations of development land should be of lesser environmental value… - promote mixed use developments, recognising that some open land can perform many functions (such as for wildlife or food production)

Will it deliver?

Delivering Sustainable Development 3. Supporting a prosperous rural economy 28. …promote the development and diversification of agricultural and other land-based rural businesses 7. Requiring good design 61. …policies and decisions should connect people and places and integrate development into the natural, built and historic environment.

8. Promoting healthy communities 76. Local communities through local and neighbourhood plans should be able to identify for special protection green areas of particular importance to them... for example because of its richness of its wildlife Designation of Local Green Spaces will rule out new development other than in very special circumstances.

9. Protecting Green Belt land 81. Once defined, Green Belts should plan positively to enhance their beneficial use, such as ….to retain and enhance landscapes, visual amenity and biodiversity; 92. Community Forests offer valuable opportunities for improving the environment around towns…providing for recreation and wildlife….

11. Conserving and enhancing the natural environment 109. The planning system should contribute to and enhance the natural and local environment by: ● protecting and enhancing valued landscapes, geological conservation interests and soils; ● recognising the wider benefits of ecosystem services; ● minimising impacts on biodiversity and providing net gains where possible, contributing to the Government’s commitment to halt the overall decline in biodiversity, including establishing coherent and resilient ecological networks preventing soil, air, water or noise pollution

110. Development plans should minimise …adverse effects on the local and natural environment and allocate land of least environmental or amenity value 111. Policies and decisions should encourage effective re-use of previously developed (brownfield) land provided it is not of high environmental value.

113. LPAs should set criteria based policies against which development proposals affecting protected wildlife or geodiversity sites or landscape areas will be judged. Distinctions should be made between the hierarchy of international, national and locally designated sites,** so that protection is commensurate with their status and gives appropriate weight to their importance and the contribution that they make to wider ecological networks. **[Circular 06/2005 provides further guidance in respect of statutory obligations for biodiversity and geological conservation and their impact within the planning system] [and remains valid – where appropriate – until re-written].

114. Local planning authorities should: ●set out a strategic approach in their Local Plans, planning positively for the creation, protection, enhancement and management of networks of biodiversity and green infrastructure; and

115. Great weight should be given to conserving ….Areas of Outstanding Natural Beauty…the conservation of wildlife and cultural heritage are important considerations in all these areas Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and in the public interest.

117. To minimise impacts on biodiversity and geodiversity, planning policies should: ●plan for biodiversity at a landscape-scale across LPAs ●identify and map components of the local ecological networks, including the hierarchy of international, national and locally designated sites of importance for biodiversity, wildlife corridors and stepping stones that connect them and areas identified by local partnerships for habitat restoration or creation;

●promote the preservation, restoration and re- creation of priority habitats, ecological networks and the protection and recovery of priority species populations, linked to national and local targets, and identify suitable indicators for monitoring biodiversity in the plan; ●aim to prevent harm to geological conservation interests; and ●where Nature Improvement Areas are identified in Local Plans, consider specifying the types of development that may be appropriate

118. When determining planning applications, LPAs should conserve and enhance biodiversity by applying the following principles: ●if significant harm resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated, or, as a last resort, compensated for [biodiversity offsetting]), then planning permission should be refused;

●proposed development adversely affecting a Site of Special Scientific Interest (either individually or in combination) should not normally be permitted. An exception should only be made where the benefits clearly outweigh both the impacts on the site and any broader impacts on the national network of SSSIs ●development 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, including ancient woodland and the loss of aged or veteran trees beyond, unless the need and benefits of the development clearly outweigh the loss; and the following should be given the same protection as European sites: –potential Special Protection Areas and possible Special Areas of Conservation; –listed or proposed Ramsar sites; –sites identified, or required, as compensatory measures for adverse effects on European and the above sites.

119. The presumption in favour of sustainable development does not apply where development requires appropriate assessment under the Birds or Habitats Directives 120. To prevent unacceptable risks from pollution …policies and decisions should ensure development is appropriate for its location. The effects of pollution …on the natural environment should be taken into account Planning policies and decisions should limit the impact of light pollution on local amenity, dark landscapes and nature conservation.

13. Facilitating the sustainable use of minerals 143. In preparing Local Plans, local planning authorities should: set out environmental criteria…against which planning applications will be assessed to ensure operations do not have unacceptable adverse impacts on the natural and historic environment… put in place policies to ensure worked land is reclaimed at the earliest opportunity… including for …geodiversity, biodiversity, native woodland…

PLAN MAKING Local Plans 156. LPAs should set out the strategic priorities for the area in the Local Plan and include policies to deliver: climate change mitigation and adaptation, conservation and enhancement of the natural and historic environment, including landscape Crucially, Local Plans should: identify land where development would be inappropriate, for instance because of its environmental or historic significance; and contain a clear strategy for enhancing the natural, built and historic environment, and supporting Nature Improvement Areas where they have been identified.

Using a proportionate evidence base 158. Each LPA should ensure that the Local Plan is based on adequate, up-to-date and relevant evidence about the economic, social and environmental characteristics and prospects of the area.

Environment 165. Planning policies and decisions should be based on up-to ‑ date information about the natural environment … Working with Local Nature Partnerships where appropriate, this should include an assessment of existing and potential components of ecological networks …strategic environmental assessment should be an integral part of the plan preparation process, and should consider all the likely significant effects on the environment, economic and social factors.

166. Local Plans may require a variety of other environmental assessments, including under the Habitats Regulations where there is a likely significant effect on a European wildlife site (not necessarily within the local authority area)…Wherever possible, assessments should share the same evidence base and be conducted over similar timescales, ensuring the purposes and requirements of different assessments are respected.

DECISION-TAKING 186. LPAs should approach decision-taking positively to enable delivery of sustainable development LPAs should secure developments that improve the economic, social and environmental conditions of the area.

Pre-application engagement and front-loading 192. The right information is crucial to good decision- taking, particularly where formal assessments are required (such as Environmental Impact Assessment, Habitats Regulations Assessment and Flood Risk Assessment). To avoid delay, applicants should discuss what information is needed with the LPA and expert bodies as early as possible LPAs should publish a list of their information requirements for applications, which should be proportionate to the nature and scale of development proposals and reviewed on a frequent basis. LPAs should only request supporting information that is relevant, necessary and material to the application in question.

“Habitat Regulations” species

Wildlife and Countryside Act

Protection of Badgers Act 1992

Legislation The NPPF does not over-ride the legal obligations or status afforded to all protected species, although this will vary in respect of the legislation concerned. The most strict provisions apply to European protected species (i.e. those species protected under the Habitats Regulations). Further guidance is found within Circular 06/2005. ‘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 (98).’ ‘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….developers should not be required to undertake surveys for protected species unless there is a reasonable likelihood of the species being present and affected by the development (99).’

European Protected Species The species protection provisions of the Habitats Regulations contain 3 tests which must be applied by NE in order to determine whether to grant a license. Local planning authorities must apply the same three tests when deciding whether or not to grant planning permission, where a EPS may be harmed. 1.the activity must be for imperative reasons of overriding public interest or for public health and safety 2.there must be no satisfactory alternative 3.favourable conservation status of the species must be maintained

Information HBRC (LRC) holds: Species data Including protected species

Information HBRC holds: Nationally designated sites (e.g. SSSIs)

Information HBRC holds: Locally important sites (‘Wildlife Sites’ ratified by the Wildlife Sites Partnership)

Habitats – such as orchards, grasslands and hedgerows

Information HBRC holds: Phase 1 habitat survey (1996)

Information HBRC holds: Landscape scale areas (e.g. Key Biodiversity Areas in LBAP)

Natural England’s standing advice flowchart

Determining applications 197. In assessing and determining development proposals, LPAs should apply the presumption in favour of sustainable development.

Planning conditions and obligations 203. LPAs should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations Planning obligations should meet all of the following tests: necessary to make the development acceptable in planning terms; directly related to the development; and fairly and reasonably related in scale and kind to the development.

Summary: So…. 1.Has biodiversity been sufficiently considered within the NPPF? Yes 2. Is the framework adequate to deliver biodiversity conservation? Yes – although details need to be worked through and tested - standards and thresholds open to interpretation. 3. Should biodiversity be considered as an integral part of the planning process, where appropriate? Yes So is Greg Clark really the Devil?

…or the Government’s Green Man? Rt Hon Greg Clark MP Minister for Planning …and Morris dancing? Only time will tell……..