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Articles Environmental Law 13th Jan 2017

NE’s adoption of 4 new EPS Licensing Policies

Natural England has now provided its response to the consultation it ran from 25 February to 7 April 2016 on four new EPS licensing policies:

  • Policy 1: Greater flexibility to dispense with exclusion and relocation activities where there is investment in habitat provision.
  • Policy 2: Greater flexibility in the location of compensatory habitat (ie to provide it further away).
  • Policy 3: Greater flexibility on exclusion measures where this will allow EPS to use temporary habitat (for minerals projects mainly).
  • Policy 4: Reduced survey data requirements where the impacts of the development can be confidently predicted.

These policies are to be welcomed. They have the potential both to benefit EPS and reduce costs, delays and uncertainties for developers.

Key points:

  • Only apply to EPS (not other protected species).
  • These policies will tend to be most useful for GCN, though may have some relevance for bats and dormouse.
  • The 4 policies can be used together as well as individually (NE says “they are not mutually exclusive and are available in combination where they are compatible”) – for example in our view Policy 2 would have very little benefit for GCN without also applying Policy 1 (see further below).
  • The conventional GCN licensing approach (trapping and fencing) still remains an option – these 4 policies do nothing to alter this.
  • In practice, you will almost certainly need to use NE’s Discretionary Advice Service or Pre Submission Service to get NE’s comments on your approach – an application based on one of these Policies made without first using DAS / PSS will almost certainly be rejected by NE based on the first problem they identify and you will not then receive comments on the remainder of the application. NE states “we will not be providing any detailed advice on application of the PLPs in our determination of licence applications”.
  • Cannot be used with low impact class licenses.
  • The Policies do not remove the need to satisfy the 3 licensing legal tests.

Policy 1

Final Policy wording:

Defra considers that compensation for EPS impacts can be delivered without the need to relocate or exclude populations, where: exclusion or relocation measures are not necessary to maintain the conservation status of the local population; the avoid-mitigate-compensate hierarchy is followed; and compensation provides greater benefits to the local population than would exclusion and/or relocation.

Further NE comments:

  • Policy needs to be supported by good quality and up to date surveys
  • Compensation under this Policy is to be secured through s106 or a NERC Agreement “where necessary to meet the FCS test”
  • Monitoring will be prescribed under this Policy
  • What does “local population” mean? “A group of individuals of the same species that live in a geographic area at the same time and are (potentially) interbreeding (i.e. sharing a common gene pool). This is an ecological definition, which includes the potential to interbreed, rather than simply meaning the collection of individuals of a species in a given area. In line with European Commission guidance, we consider the definition of ‘population’ to include ‘metapopulations’. A metapopulation is a group of spatially separated populations of the same species which interact at some level. Metapopulations can be thought of as a network of populations of the same species (i.e. they are linked and interact)”.
  • The Policy is likely to be used mainly by developers to avoid GCN trapping / fencing (ie “hard exclusion measures”) but could also potentially apply to “softer” exclusion measures such as hand searches, destructive searches, rescue of GCN whilst works are underway etc however NE anticipates that some developers will continue to use the soft measures as a cost effective way of contributing to the FCS test
  • The Policy could be met “through creating larger, better quality or better connected compensatory habitats or there could be better longer term security, or locating habitats in areas subject to less disturbance. NE is not intending to place standardised quantitative measures on these factors”. It is not clear however quite what NE means – better than what?

Our experience of this Policy:

  • This Policy was used for a development more than 250m from GCN pond with a small population but where NE was still concerned that GCN could be present / that there were likely to be offences.
  • In that instance a destructive search only was required; no trapping or exclusion fencing was required.
  • Only deterrent (not exclusion) GCN fencing was erected.
  • Approximately one third of the site was given over to POS / habitat.

Our comments:

  • The FCS must be met. Therefore clearly the greater the population to be affected by the development, the more generous the compensatory habitat will have to be so as to overcome the concerns about impact on the population without first trapping / relocation.
  • So this Policy is likely to be easiest to meet with small populations / at some distance from a GCN pond.
  • Developments on sites with greater populations would have to be supported by generous compensation.
  • There could theoretically be a sliding scale between “compensatory habitat provision” vs “trapping / relocation” (ie more compensatory habitat to reduce the trapping period). However in practice the benefit of the Policy 1 (no fencing / trapping costs) would be seriously dented if any trapping at all is needed.

Our concerns:

  • NE is clearly wanting a comparison between “exclusion and / or relocation” and “compensation”. It is requiring that “compensation” provides greater benefits to the local population than “exclusion and/or relocation”. This is odd, as it has always been standard for NE to expected compensatory habitat to accompany “exclusion and / or relocation” and yet NE has not asked for a comparison between “exclusion and / or relocation plus associated compensatory habitat” and “compensatory habitat alone” which would be the more natural comparison.
  • This confusion is also present in the guidance that the Policy could be met “through creating larger, better quality or better connected compensatory habitats or there could be better longer term security, or locating habitats in areas subject to less disturbance”. “Larger”, “better” than what?
  • We are concerned about the need for “…compensation to provide greater benefits to the local population than would exclusion and/or relocation”: In our view if the compensation provided no worse impacts on the local population than would exclusion and/or relocation (Policy 1) it should be acceptable. We do not see why compensation has to provide greater benefits to the local population than exclusion or relocation. This is because (i) the FCS test simply requires the population to be maintained – it requires no comparison between options; and (ii) the No Satisfactory Alternative (NSA) test simply directs the developer away from options that are worse for the species than another feasible alternative – it does not have any effect between two feasible mitigation strategies that have the same overall effect on the species. If two such strategies exist then either strategy is acceptable and the NSA test is passed.

Policy 2

Final Policy Wording:

If the licensing tests are met and the avoid-mitigate-compensate hierarchy is followed, off-site compensation measures may be preferred to on-site compensation measures, where there are good reasons for maximising development on the site of EPS impacts, and where an off-site solution provides greater benefit to the local population than an on-site solution.

Further NE comments:

  • The Policy needs to be supported by good quality and up to date surveys.
  • Compensation under this Policy is to be secured through s106 or a NERC Agreement “where necessary to meet the FCS test”.
  • There will need to be monitoring prescribed under this Policy.
  • “Local population” means: see above.
  • “Good reasons for maximising development on a site” means: NE gives a list of the scenarios at the back of its response document (not repeated here).
  • It will be necessary to understand the relationship between the population on the development site and the wider population especially if compensation is to be located beyond the dispersal limit of the population to be lost. Survey data should demonstrate why an off-site solution is better than an on-site solution.
  • NE will consider licensing more distant habitat compensation solutions when greater benefit can be achieved at distance than would be possible through habitat compensation on site. This could be achieved through creating larger, better quality or better connected compensatory habitats or providing better longer term security or locating habitats in areas subject to less disturbance. NE is not intending to place standardised quantitative measures on these factors.
  • The compensation provided must not be outside the area used by the local population as defined above.
  • One compensation site could potentially be used for more than one development.

Our experience:

  • We do not yet have any experience of the application of this Policy.

Our comments:

  • We have been involved in many past GCN projects where the proposed compensatory habitat is off site, albeit within the home range of the GCN population (and often closer ie within 500m) ie so that the FCS of the development site GCN population / the metapopulation is maintained. This is a common approach and is, in our view, not the focus of this Policy.
  • As we understand it, the key point behind this Policy is that it is allows an approach where the GCN site population / metapopulation affected by the development may not be maintained, but the local population overall will be.
  • Policy 2, when applied to GCN beyond their dispersal range, will need much more extensive data than normal in support of it – presumably breeding pond data within 500m of the development site as usual, plus (i) eDNA testing / habitat suitability assessment for any distant compensatory habitat and (ii) potentially habitat suitability surveys between the development site and the proposed compensatory site.
  • It would be sensible to get DAS input into the survey requirements up front ie to get the survey requirements agreed.
  • Such an approach may well of course need to be purchased by the developer.
  • Unless the developer also applies Policy 1 (no fencing / trapping), disease screening will seriously limit the use of Policy 2 for GCN when wanting to move GCN to a location beyond their natural range. The NE position on disease screening for Chytridiomycosis is that if the proposal is to move a GCN a distance greater than its natural range then disease screening must be undertaken within the two relevant GCN populations (donor and donee) and the results found must be consistent with moving the animals. The disease screening requirement is onerous, expensive, and (if the results are unhelpful) will scupper any licensed translocation. Discussion with NE during the consultation showed that they were envisaging Policy 1 and 2 being used together to avoid this problem.

Our concerns:

  • We are concerned about the need for the off-site solution to provide “greater benefits to the local population than an on-site solution”. In our view if the off-site compensation provides no worse impacts to the local population than would an on-site solution, it should be acceptable. It is in our view not the case that the off-site compensation has to provide greater benefits to the local population than exclusion or relocation. This is because (i) the FCS test simply requires the population to be maintained – it requires no comparison between options; and (ii) the No Satisfactory Alternative (NSA) test (if it is correct to apply it to an offsite mitigation strategy at all) simply directs the developer away from options that are worse for the species than another feasible alternative – it does not have any effect between two feasible mitigation strategies that have the same overall effect on the species. If two such strategies exist then either strategy is acceptable and the NSA test is passed.

Policy 3

Final wording:

Where development (such as mineral extraction) will temporarily create habitat which is likely to attract EPS, Defra favours proposals which enable works to proceed without the exclusion of EPS, where the conservation status of the local population would not be detrimentally affected. On completion of development such sites must contribute to the conservation status of the local population as much as or more than the land use which preceded development. The measures to achieve this should be set out in a management plan and secured by a legal agreement.

Further NE comments:

  • The Policy is likely to apply exclusively to the minerals sector.
  • The Policy needs further work through case studies with the minerals sector.

Our experience:

  • We have no direct experience of the application of this Policy to date.

Our comments / concerns:

  • The main concern for mineral operators is whether the management plan required under Policy 3 will be cheaper to set up and operate than the fencing and trapping that would otherwise be required.
  • Mineral operators may be likely to benefit more from Policies 1 and 2.

Policy 4

Final wording:

Natural England will be expected to ensure that licensing decisions are properly supported by survey information, taking into account industry standards and guidelines. It may, however, accept a lower than standard survey effort where: the costs or delays associated with carrying out standard survey requirements would be disproportionate to the additional certainty that it would bring; the ecological impacts of development can be predicted with sufficient certainty; and mitigation or compensation will ensure that the licensed activity does not detrimentally affect the conservation status of the local population of any EPS.

Further NE comments:

  • Non standard survey info that may be relied on:
    1. Bats: information held by bat groups / local record centres / DNA dropping analysis / inspection of building.
    2. GCN: eDNA plus habitat survey to enable a judgment about the extent of occupied habitat and its likely importance.
  • The mitigation and compensation offered must be designed to mitigate and compensate for the “worst case scenario”.

Our experience:

  • We have just made an application under this Policy for a house builder client, based on out of date GCN data from 2012 and 2013

Our comments / concerns:

  • None

The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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