Defra sets terms for review of how habitats and birds directives are applied

December 1, 2011

The Department for the Environment, Food and Rural Affairs has set the terms for its proposed “in-depth analysis” of how well the EU Habitats and Wild Bird Directives are being applied in England.

The review – which is expected to report by March 2012 – was one of the measures unveiled in the Chancellor of the Exchequer’s Autumn Statement yesterday amid concerns about blockages for developments. However, ministers have insisted that environmental protection will not be weakened.

Defra said: “The analysis will focus on the obligations in the legislation which affect the authorisation process for proposed development, with a view to reducing the burdens on businesses while maintaining and where possible enhancing environmental benefits.

“It will also look at what is working well in terms of meeting the objectives of the legislation, and what scope there is to learn from good practice by all those involved and to share it more widely.”

According to the terms of reference, the review will consider:

“Where implementation gives rise to the greatest compliance costs and potential for delays, including how judgements are reached on the following key decision points and the impact of the precautionary principle, and relevant case law: risk of a significant effect; risk of an adverse effect on integrity; mitigation solutions; alternative solutions, or (in relation to species licensing) satisfactory alternatives; IROPI (imperative reasons of overriding public interest); compensatory measures; in relation to species licensing, detrimental effect on the maintenance of the population at a favourable conservation status in its natural range; the approach taken in UK guidance and its application.
Whether the approach taken by competent authorities is appropriate, particularly in relation to risk, or whether the requirements of the legislation are applied too or insufficiently rigorously; and whether competent authorities and statutory conservation advisers could explore more creative solutions;
Whether Natural England (NE) and the Joint National Conservation Committee’s (JNCC’s) approach to the provision of advice to competent authorities is appropriate, or takes an excessively or insufficiently precautionary approach;
What is working well in terms of meeting the objectives of the legislation, and what scope there is to learn from good practice by all those involved – developers, competent authorities and statutory advisors – and to share it more widely;
The scope for further streamlining of processes, for example where a number of different consents for operations affecting protected sites are required or where more than one competent authority is involved;
The scope for NE and JNCC to build on their work to date to improve their dealings with customers, including early engagement with the competent authorities and their role in identifying constructive solutions;
Experience of implementing the Directives in other Member States, to see whether there is good practice elsewhere which could be applied in England;
The scope for further improving the guidance available to businesses.”

The terms of reference add: “While focussing mainly on the authorisation process for proposed development, the review could also examine other areas of the legislation, for example in relation to site designations, management agreements or specific issues raised by interested parties.

“Where appropriate, the review will make recommendations for further action, including identifying any areas which could be raised with the European Commission.”

Defra meanwhile said it would also:

establish a problem-solving unit to address blockages for developments “where compliance with the directives is particularly complex or has large impacts”
make it easier for businesses to understand what they must do to comply with the directives. This will be achieved by improving Natural England’s support and assistance offer to developers and consulting on updated guidance before the Budget
give industry representation on a group chaired by ministers “so it can raise concerns deriving from the Directives at the top of government”.

Environment Secretary Caroline Spelman said: “The Habitats and Birds Directives protect our rarest, most threatened habitats and species and ensure conservation interests are fully taken into account when development proposals are being considered. We strongly support the aims of these Directives. We want them to continue to be effective in protecting these very important wildlife sites and species. It’s important that we maintain the integrity of these Directives.

“The vast majority of development cases do successfully meet the Directives’ requirements but a small number raise particularly complex issues which give rise to unnecessary costs and delays. There’s also the possibility that the Directives are being used in ways for which they were not intended. These issues risk undermining the reputation of the Directives, and the valuable protection they provide. I don’t want to see that happen. That is why I am looking forward to seeing recommendations on dealing with any overly-bureaucratic or long, drawn out examples of implementation, without compromising the current levels of environmental protection.”

Philip Hoult