Special Report

Legislation creates fertile ground for ecological consulting

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Special Report: ENDS Green Consultancy Review 2010


Cuts may affect the sector, but they cannot undermine the strong legislative foundations of ecological consulting, finds Simon Evans

Dartford warblers are rare heathland birds that are threatened by habitat loss (credit: Ben Hall / RSPB-Images.com)
Dartford warblers are rare heathland birds that are threatened by habitat loss (credit: Ben Hall / RSPB-Images.com)

When it comes to nature conservation, legislation bites. This reality has not arrived suddenly, nor has it happened all at once.

“Twenty years ago I was wondering if there would be a critical mass behind ecology and wildlife protection,” says Atkins’ senior ecologist, John Box. “Now I’m quite sure there is.” Today, biodiversity can make or break a development.

A recent planning dispute illustrates the point nicely. On 9 June, Poole council finally granted planning permission for 828 homes near Bournemouth University. The plans, originally submitted in 2000, have proved controversial because they involve building on farmland close to Talbot Heath, part of the Dorset heaths area.

The problem is that UK heathland is increasingly scarce, especially lowland heath. As such, the Dorset heaths have been designated as a special protected area (SPA) under the 1992 EU Habitats Directive.

A ring of development already encircles Talbot Heath and digging up the remaining farmland at its fringes would seem to add to the problem. If the plans are deemed to have the potential to harm the SPA, the Habitats Directive says it must not go ahead.

Healthy heathland

The developer says ecological surveys show the heathland has been deteriorating, so it has added proposals to enhance and protect the heath with a range of measures. The proposals include a cat-proof fence along the boundary to stop pets preying on rare birds.

The new designs incorporate more open space to relieve recreational pressure on the heath. They would return areas of grassland within the area to heath and build fire hydrants to protect against wildfire.

A local planning document agreed by the council and wildlife regulator Natural England clearly states no development should take place within 400 metres of a protected area because avoidance of adverse impacts cannot be guaranteed.

But an assessment of the planned mitigation measures, undertaken for Poole Council, agreed they could avoid adverse impacts, even though the development is less than 400 metres from the heath.

“The council’s assessment is flawed,” says Tony Whitehead for RSPB south-west. This has national ramifications because of similar buffer zone agreements relating to other heathland areas, he explains.

Mr Whitehead has the support of Dorset Wildlife Trust and Natural England. Bournemouth West MP Conor Burns has said he wants the plans called in for a public inquiry, as does the RSPB.

After ten years of effort from the developer and despite the granting of planning permission, the plans appear to hang in the balance because of biodiversity considerations.

“Housebuilders are being caught out by the strength of designation [under the Habitats Directive]. Some might have thought it could be ‘got around’ but that isn’t the case,” says Mitch Cooke, partner at consultants Environmental Perspectives.

For legislation that came into force more than 15 years ago, it seems strange that it can still hold surprises. “It’s funny how long it takes for changes to filter through to planners and developers,” says Pete Lawrence, an ecologist at Land Use Consultants. Yet the case law around the directive is still being  developed, as a recent Court of Appeal decision illustrates.

A proposal to convert a disused railway near Gosport in Hampshire that may disturb protected species can go ahead because the impact will be highly localised. The decision is likely to mean it is harder to invoke the Habitats Directive to challenge future cases, explains ENDS’ legal expert Professor Richard Macrory.

All this highlights the importance of good ecological advice. “The legislation is very complex and often conflicting,” says Nancy Thomson, managing director of specialist consultancy, Thomson Ecology. “Our business is completely legislation-driven.”

Ms Thomson’s sentiments were repeated again and again, outstripping even great crested newts for most mentions during ENDS’ interviews. “Legislation is the main driver,” agrees Atkins’ Mr Box.

The implementing regulations for the Habitats Directive in England and Wales have also been amended and strengthened several times over the years.

For instance, it is now a criminal offence to breach licence conditions. In March, updated habitats regulations consolidating these changes came into force.

And with this year’s new civil sanctions regulations, wildlife regulators have more options to tackle environmental damage, including fines of up to £250,000 (ENDS Report 421, pp 43-44).

“Ecology is very much risk-driven,” says Mr Box. “There has been a culture change among developers, regulators and financiers because of changes in the law.”

The risk of getting things wrong is increasingly serious in terms of damage to reputation, fines or prosecution. As a result, clients are now keen to exceed the bare minimum of compliance with biodiversity legislation and ensure they have covered all angles, explains John Whiteley of Telford Environmental Consultancy.

Biodiversity duty

Other key pieces of legislation that have seen the ecological consulting sector blossom in the last decade include the Natural Environment and Rural Communities (NERC) Act 2006. This placed a duty on public authorities to “have regard” to the purpose of biodiversity conservation in all their work.

The duty applies when councils consider planning applications; in fact many consider this to be their primary function in relation to biodiversity. A review of the NERC Act duty was published by the environment department (DEFRA) in June.1

The review, carried out by consultants Entec, included an online survey of councils, universities, government departments and agencies and follow-up interviews with a selection of respondents.

Most councils reported that the duty had been influential in raising the profile of biodiversity internally. Although the duty is only one of the drivers of council action, it forms part of a trend that has seen them become more active in the area.

According to Richard Gill, principal ecologist at WSP Environment and Energy, “planning authorities are now more demanding”. Thomson Ecology’s Ms Thomson agrees, “but even now they’re not all up to speed.”

The Entec review found that a key aspect of promoting biodiversity within councils is the availability of internal staff members with responsibility for the area. While most county councils and London boroughs have at least one biodiversity officer or ecologist, the situation at district level is “more patchy”.

Another problem is that staff with responsibility for biodiversity can be relatively junior. That tends to mean implementation of the duty is weaker, the review says. “It does come down to individuals and how strong their voice is,” says Environmental Perspectives’ Mr Cooke.

According to the review, other drivers on biodiversity cited by councils were the habitats regulations and the 2005 Planning Policy Statement 9 (PPS9) which sets out central government policy on biodiversity within the planning system.

PPS9 puts the onus on developers to provide enough information to planners on ecology. That might include ecological surveys, and development proposals should show these have been taken into account during the design process.

“Councils are no longer allowed to ask for surveys as a condition of planning permission. Now, developers have to provide ecological surveys up front, whereas things used to sometimes fall through the net,” says Alan Beaumont at AA Environmental (AAE).

“Often we have to give developers the bad news – if they don’t provide information on protected species and ecology, their planning application will be declined,” adds Land Use Consultants’ Mr Lawrence.

PPS9 encourages planning authorities to actively seek opportunities to enhance biodiversity. It says they should impose biodiversity mitigation and enhancement if this is not already part of an application, and require monitoring of implementation.

This is already happening in practice, says Mr Cooke. “We’re seeing an increase in planning conditions requiring full ecological mitigation strategies and long-term ecological management plans.”

Although it is not statutory, PPS9 has encouraged planners and developers to take a broader view.

“Traditionally, ecology has been about specific protected species and habitats. In recent years there has been greater recognition of the potential for wider benefits through the green infrastructure approach,” says Mr Lawrence.

This multifunctional approach to planning, designing and managing green space might include access to the environment, health, flood protection or climate mitigation. “You can tick so many different boxes [at once],” he explains. “The fact this has been taken up to a certain extent is very exciting.”

Another positive development in recent years has been BREEAM, the green building standard from the Building Research Establishment (BRE).

“BREEAM has allowed ecology to be brought forward. If you integrate biodiversity into plans there are quick wins to be had in terms of meeting the standard,” says Mr Cooke. Even where there is limited green space on-site there is still potential to achieve gains, he explains. By using native species with a range of flowering times, you can benefit insects. Use of ponds and sustainable urban drainage rather than concrete culverts can help too.

“Often, clients have one eye on planning obligations and the other on cost implications,” says Mr Cooke. But if plants are chosen for ease of maintenance, the costs can be relatively limited.

“Historically, ecologists could have been seen as anti-development. Now there is  
a recognition that you can integrate ecology into planning, being mindful of what is on-site.”

Bonfire of the quangos

BREEAM has been growing exponentially and seems to have avoided much of the pain of the recession (ENDS Report 417, p 13). Meeting the standard usually translates into higher rental or sale value, BRE says.

The government’s Homes and Communities Agency (HCA) only funds housing developments meeting green building standards.

According to Mr Cooke: “The easiest way to comply is through ecological enhancement and management on-site.”

Although the new government will not scrap HCA as part of its bonfire of the quangos, it has said £610m of funding promised by the previous administration will be slashed to just £140m. “If conditional HCA funding falls away, my concern is that housebuilders will look to get units built as cheaply as possible,” says Mr Cooke. On-site ecology could fall by the wayside.

WSP’s Mr Gill worries that “ecology is often seen as a ‘nice to have’ that perhaps is not economically viable. On less high-­profile sites it could be trimmed away.”

And with cuts at regulators and councils, there is a risk the level of regulation might slip too. “Natural England now only tends to get directly involved in the more controversial schemes, with more reliance on the use of  generic advice on planning and protected species,” says Mr Lawrence.

AAe’s Mr Beaumont says he expects to see Natural England putting more emphasis on council planners to act as the competent authorities on ecology.

The coalition government’s localism agenda is also a source of concern for consultants. It has the potential to lead to planning delays and could be seen as a mandate for ‘nimbyism’.

Mr Cooke gave the example of a site where the developer has positive plans to enhance biodiversity through allotments, bat corridors and green roofs. “But locals are opposing the scheme as it will build on a dog-walking area,” he said.

It need not all be bad news though. Land Use Consultants’ Mr Lawrence thinks “we could see some quite interesting develop­ments bringing in volunteers, local communities and charities” that could build momentum and local involvement into planning.

Despite the grey clouds, consultants
are remarkably cheerful about prospects in the ecological sector. Ecological and landscape management was cited as one of the disciplines with the strongest growth prospects in the coming year by 28% of respondents to ENDS’ annual survey (see pp 5-8).

That puts it near the top of the chart, a turnaround on last year when it did not feature in the top ten. Part of this is down to the dwindling effects of the recession. John Box from Atkins says he has detected a “re-awakening of interest” among clients.

Others are even more optimistic. Matthew Lawman of AAE says “housebuilders are beginning to look at land acquisition again. We’re 20% up on new jobs compared to where we’ve ever been.”

Strong foundations

But more than anything else, the positive outlook reflects the strong foundations on which ecological consulting has been built. Although it has taken a long time, a culture that takes nature conservation into account during planning and development has become thoroughly institutionalised, says Mr Box.

“Everyone is more switched on now and it’s no longer just a case of ecologists saying lets protect the bats,” says WSP’s Mr Gill.

“The ecology market has seen steady growth since it started. The sector is quite robust because of the legislative underpinning,” says Thomson Ecology’s technical director Richard Arnold. “That isn’t going to go away and you can’t sidestep it.”

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