Clouds gathering over ‘'biodiversity offsetting”
The planting of a million young trees to replace the 10,000 mature trees lost as a result of the construction of the M6 toll road is the example of biodiversity offsetting used by the Environment Secretary, Owen Paterson. Yet, despite the Secretary of State’s enthusiasm for biodiversity offsetting a number of concerns are being expressed by MPs and environmentalists.
Just a day before Defra’s consultation on biodiversity offsetting closed (7th November 2013), the Environmental Audit Committee (EAC) published its report on biodiversity offsetting. The Committee, which heard evidence from the Secretary of State and various stakeholder organisations, including the National Farmers Union, the Wildlife Trusts, developer representatives and the Environment Bank, expressed a number of concerns over the Government’s proposals and emphasised that considerable time will be required before a robust biodiversity offsetting scheme is introduced in England.
The Committee’s report will be of particular interest to developers, landowners and anyone with an interest in the offsetting market. As previously reported, it has been the Government’s intention to introduce specific measures on biodiversity offsetting by the end of 2013 but this has now been stalled.
The EAC has drawn attention on the following concerns:
- Inadequacy of the evidence base: the Committee does not consider that there is currently adequate evidence on the effectiveness of the proposed biodiversity mechanism.
- Replaceability: The Committee’s report advises that “for developments not of national significance, offsetting would not be appropriate where environmental loss is irreplaceable within a reasonable timeframe, such as with ancient woodlands”. A theme of the Wildlife Trust representations to the Committee was the inadequacy of the metrics for adequately recognising the damage to biodiversity caused by the delay between the removal of ecology for development and the provision of equivalent ecology on another site.
- Habitat Complexity: The Committee is concerned that the proposed metric is overly simplistic and considers that it needs to be improved to take full account of the complexity of habitats, species requirements (including the less mobile and vulnerable species) and indirect impacts to nearby sensitive areas (for instance: pollution, disposal of invasive species).
- Location: The locality of the offsets is important. In principle, offsets should be provided close to the area where the development and the loss of habitat takes place. However, the report highlights that “Distant offsets might be contemplated, especially if they benefit ecosystem networks and if the public has little or no access to the development site”.
- Expertise of Stakeholders: The Committee heard evidence about the level of expertise at local decision-making level. It considered that prior to any offsetting scheme taking effect the Government should ensure that the necessary expertise is in place. The report highlights that Government cuts, which affect a number of local planning authorities as well as the ability to access expertise in the field of ecology, will play an important role in the success of any biodiversity scheme. In light of this, local authorities should be allowed to recover the full costs of their offsetting work from developers or have the required funds made available from the Treasury.
The Government faces considerable opposition from environmental groups, which are concerned that the measures would put nature “up for sale”. The Woodland Trust has been campaigning against the inclusion of ancient woodland in any offsetting scheme and has emphasised that the future of these habitats should not be dependent on the trade-off between financial benefits and the protection of nature. In an effort to appease these concerns Defra has emphasised that “any proposals to build on land covered by such ancient woodland would still have to go through a vigorous planning process”. It remains to be seen whether these statements will enable the Government to gain the necessary support for its proposals.
Marine Conservation Zones
Out of the proposed 31 Marine Conservation Zones (MCZs), 27 were designated under the Marine and Coastal Access Act 2009.
Each MCZ has a specific conservation objective that is set out in the relevant Designation Order and requires the implementation of specific management measures for its attainment. Responsibility for the effective management of MCZs rests with a range of public authorities, including the Marine Management Organisation, the Environment Agency as well as the Department of Energy and Climate Change (DECC). Under the 2009 Act, these authorities have the power to impose specific conditions on licensable activities that have the potential to impact on an MCZ. In addition, where a licensed activity that is damaging to the conservation objectives of a MCZ is considered essential (for instance due to reasons of overriding public interest), then these public authorities are under a duty to request the provision of compensatory environmental measures.
Due to the versatility of MCZs, as well as the specific characteristics of the activities that may impact on them, the cost implications of the MCZ designations for proposed developments that may have an impact upon them cannot be quantified other than on a site by site and project by project basis.
Law Commission proposes Wildlife Law Reform
Should the Law Commission’s proposals materialise in a draft Parliamentary Bill they will result in more robust protection for the wildlife in England and Wales and rather mixed sentiments from developers and landowners. Developers would have to be more diligent in exercising their supervisory roles on their contractors and sub – contractors, whereas landowners would be expected to take more robust measures to address invasive non-native species on their land, such as Japanese knotweed.
As part of its 11th programme of law reform and following Defra’s proposal, the Law Commission commissioned the ‘wildlife law project’ in July 2011.After an interim review earlier this year, the Commission published a statement in October 2013. Even though the statement does not constitute the Commission’s formal proposal it does nevertheless provide an indication of the Commission’s direction of travel.
In order to simplify and clarify the existing wildlife legal framework the Law Commission is seeking to introduce a number of changes, including:
- the introduction of a single statute for the conservation, protection and exploitation of wildlife in England and Wales. This would replace all currently existing wildlife legislation with the exception of the Animal Welfare Act 2006 and the Wild Mammals (Protection) Act 1996.
- An obligation to review all species lists every five years. Such an obligation is currently imposed under the Wildlife and Countryside Act 1981 in relation to certain Schedules of the Act.
- A stricter enforcement regime. Under the proposed regime:
- an employer or principal who knowingly permits an act to be done which, when done by their employee or agent, amounts to a wildlife crime, would be guilty of an offence. For instance, a developer who knew that the action of a sub-contractor was going to destroy a structure that the developer knew contained bat roosts yet did nothing to prevent it would commit an offence.
- Species control orders, similar to the ones in existence in Scotland, would allow specified authorities in England and Wales to enter premises where invasive non-native species exist and take any measures necessary to address them. In order to ensure that the legal rights of owners and occupiers are safeguarded these powers would only be used when an authority has failed to reach an agreement with the owner or occupier about the appropriate course of action.
- An obligation would be imposed on specific categories of people (for instance farmers) to report any incidents of invasive non–native species to the enforcing authorities.
- The current civil sanction regime would be extended to all offences committed under wildlife legislation. It is expected that this measure would provide enforcing authorities with a number of flexible options in addressing wildlife offences. Currently, civil sanctions that include fixed monetary penalties, stop notices and enforcement undertakings, are only available for certain wildlife offences, for instance specific offences under the Wildlife and Countryside Act 1981 and the Protection of Badgers Act 1992.
The Commission intends to introduce draft legislation at the end of 2014.