An overview of latest changes to planning legislation in 2010
Legal status
IUCN status was revised in 2009: M. avellanarius is now ‘of least concern’, whereas previously it was ‘low risk (near threatened)’
Dormouse is a Species of Principal Importance listed under section 41 of the NERC Act 2006
Planning system documents
The key planning document is PPS 9: Biodiversity and Geological Conservation Planning Brief. Presence of a European Protected Species (EPS) such as dormice is a material consideration in planning applications. Where there is a ‘reasonable likelihood’ of an EPS being present and ‘affected by the development’, surveys must be carried out and any required mitigation plans submitted before the application is determined. A new version of PPS9 was drafted in 2010 and has been consulted upon (the provisions for EPS are unchanged in the draft). What constitutes ‘reasonable likelihood’ and ‘affected by the development’ is open to some interpretation; Natural England standing advice is due to be issued shortly.
Some aspects covered in the old PPS9 (green infrastructure etc) are to come under a new PPS: Planning for a Natural and Healthy Environment. Consultation for both PPS’s closed on 1 June 2010
A new version of the Habitat Regulations was published in 2010. This incorporates changes bought about through the passing into law of the new Marine Act, NERC Act Species of Principal Importance list etc. For EPS the Regulations applying to licences for EPS now have different numbers: Regulation 39 is now Regln 41; Regln 44 is now 53; Regln 48 (SACs) is now 61.
Disturbance
In 2008 threshold for ‘disturbance’ under European legislation was raised, and some Natural England guidance has been published to help define ‘disturbance’ i.e. when a Euro licence (under Regln 41, formerly 39) is needed. The NE guidance advises that, as a standard nestbox check usually does not lead to abandonment of a litter, actions would have to exceed this to be considered ‘disturbance’. Also actions affecting a group of 2-3 non-breeding adults would likely not be considered ‘disturbance’ to a ‘significant group’
Presumably disturbance is to be assessed on a case by case basis, though some planning applications have taken this to mean that more than 3 dormice must be affected before a licence is needed. As the revised disturbance threshold is now different than for the Wildlife and Countryside Act (WACA) “some survey work which does not require a licence under the Habitats Regulations, because of the raised threshold for the ‘disturbance’ offence, may still require a licence under WACA;. Lower levels of disturbance, which are not an offence under the Habitats Regulations, may be an offence under WACA.
Responses from Natural England seem to suggest that works affecting 0.1+ha area of habitat may be taken as a threshold for ‘disturbance’, which equates to 100m+ of hedge. Following verbal queries to NE, further guidance on ‘disturbance’ and licensing is apparently to be issued in 2011
NERC Act 2006
The Biodiversity Duty, under the NERC Act 2006 has been tested in a case involving a population of toads, a Species of Principal Importance under the NERC Act, in East Anglia. The Local Authority ignored County Wildlife Site status and reports of protected species. The LA was criticised by the Local Government Ombudsman and was asked to grant the complainants £100. Dormice are also Species of Principal Importance, though receive higher levels of national and European protection
Case law
Two recent Appeal cases, both involving bats, have a bearing on developments affecting EPS. From the Woolley vs East Cheshire Borough Council case June 2009, Local Planning Authorities have a duty to consider the ‘3 tests’ when making planning decisions, and cannot discharge this by including a planning condition that a NE licence has to be obtained. One implication is that consultants’ ecological reports may be required to cover this in future
From the Morge vs Hampshire County Council Court of Appeal ruling June2010, planning authorities must consider ‘indirect’ impacts of development to breeding and resting places; however vegetation clearance was not ‘deliberate disturbance’, and impacts on EPS must affect populations, not individuals. The implication is that breeding and resting places, i.e. nests, are protected under the Habitat Regulations, but removal of intervening or potential habitat is not considered to have a detrimental impact on breeding or maintenance of natural range. Leave to appeal to the Supreme Court has been granted – decision is due on 10 December 2010
Natural England standing advice:
Natural England withdrew from routinely commenting on applications involving EPS in 2009. NE standing advice is to be issued. This has been trialled in the south east region, and is to be applied nationally, following consultation on draft standing advice (which ended on 29 Sept 2010). The draft standing advice gives indication of when EPS surveys are needed (i.e. guidance on ‘reasonable likelihood’ and if ‘affected by development’), acceptable survey effort, and generic mitigation guidance. This appears to be verbatim the south east standing advice, the conclusions of the SW nesting tubes study report, and the NE Dormouse Conservation handbook 2nd edition
Survey and mitigation guidance is very general and does not give a view on non-optimal habitat, or on particular mitigation measures such as fencing or bridges, nor does it take account of regional differences
The standing advice consultation states that “where local protocols are in place they will run alongside the standing advice”. Devon County Council, in partnership with a number of Devon planning authorities, local consultants and NE, has been developing some Devon-specific planning application validation criteria, which would fulfil this role. NE have expressed a view that developments over 0.1ha would trigger the need for a phase 1 survey. Wider consultation and official endorsement by local NE is anticipated.
Mitigation techniques
Indications from NE and new government were that a ‘bio-banking’ approach (s106 or other offsite mitigation money to form a fund, from which targeted conservation schemes could be funded) was gaining favour.
Biodiversity Action Plans
Biodiversity Action Plans are being revised and repackaged as Biodiversity Integration Groups (BIGs), which combine species and habitat action plans under wider habitat types. Dormice are listed under the woodlands BIG, as well as others (e.g. farmland BIG, because of hedges). The BIGs would be used to target agri-environment grants etc. A number of large landscape scale project areas, Integrated Biodiversity Delivery Areas (IBDAs), have been nominated for priority funding. Landscape scale approaches are expected to be one of the main recommendations of the Lawton Report on biodiversity conservation, published in September 2010, which will inform the forthcoming government white paper in spring 2011.
Schedule 5 licence references
For those working towards a Schedule 5 handling licence, and for trainers/referees, NE has published a reference template
Links
NE draft national standing advice on EPS including dormice
Guidance on references for licences
(From 2010 Devon Dormouse BAP notes)
Greenboot 