Biodiversity offsetting

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.

Wildlife Law  

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.