Overview
Legal Implications
Policy Implications
Implications for Detailed Design and Implementation if Consent is Granted
6.1 This section considers the point at which the findings of the EcIA are applied by a competent authority to the decision-making process. By this stage the significant impacts and the value of the affected ecological features and resources will have been determined. The purpose of this stage is for the competent authority to determine whether the mitigated project:
6.2 The scoping stage presents the first opportunity to make explicit the legal and policy context in which the EcIA process should take place. Everyone involved in the process should be fully aware of, and constantly referring back to, the legal and policy context that applies to the area and issues being studied. Failure to take account of the legal and policy context, and to provide sufficient information to comply with this, may result in an application being refused.
6.3 Table 2 identifies many of the sources of relevant legislation and policies, and the development control tools available.
6.4 The legal implications arising out of an EcIA should be made explicit and where an EcIA is undertaken as part of an EIA, it is also subject to the relevant EIA Regulations. (See paragraph 1.2)
6.5 The competent authority must obtain all the information needed to assess and evaluate the likely significant environmental effects of a project before it reaches its decision regarding the grant of consent. For EIA development, it has been confirmed in a recent judgement (see Box 14) that the competent authority cannot adopt a 'wait and see' approach or impose a condition requesting further work to identify the likely environmental impacts after permission has been granted. It is therefore crucial that all information relevant to describing likely significant ecological impacts is collected prior to the submission of an ES.
6.6 Where the competent authority considers that the information is insufficient it has the power to request further information, or evidence to verify the information already provided. Working closely with the decision-maker, statutory bodies and other consultees during the assessment process should help reduce the likelihood of the competent authority needing to exercise this power.
6.7 Where there are likely to be significant impacts on
an SAC, SPA, or Ramsar site, it is the responsibility of the proponent to
supply information
about the predicted ecological impacts on the integrity of the site in a
form that enables the relevant competent authority to write the 'appropriate
assessment'.
Box 14: R v Cornwall County Council ex parte Jill Hardy (2001)76
Planning permission was granted for a project for which the applicant prepared an ES under the EIA Regulations. Although it was known that the site could support bats and that the project was likely to have a negative impact on any bats that were present, the applicant did not investigate their presence. The planning authority, advised by English Nature, attached a condition to the planning permission requiring the applicant to carry out a survey to establish whether bats were present prior to commencing development. However, the Court held that the presence of bats could result in there being a significant effect and hence that information about bats should have been included in the ES, in order to comply with the EIA Regulations (Regulation 3(2)). The planning permission was quashed (the reason being the failure to investigate a likely significant effect rather than the fact that a legally protected species was present per se).
6.8 All parties involved in EcIA should be familiar with both the national and local policies that apply to a project. Key national policy documents that should be considered during EcIA can be found on the relevant UK governing body web sites; local policy documents are also often available on the web (e.g. on local authority web sites). Relevant documents might include national and local BAPs, various forms of government planning guidance and advice, relevant Local Development Frameworks and existing Development Plans (including Structure, Local, Waste, Mineral and Unitary Development Plans).
6.9 The EcIA should be prepared with this national and local policy context in mind. It should aim to provide sufficient information to enable a full and adequate determination to be made in light of these policies.
6.10 If the project being assessed has emerged from the process of preparing a development plan for which a Sustainability Appraisal (SA)/SEA has been undertaken, the results of the SA/SEA may be relevant to the EcIA, particularly in the context of any consideration of alternatives to the project.
6.11 Conditions and legal agreements are often needed to enforce the implementation of mitigation, compensation and enhancement measures (see Chapter 5). These obligations must be enforced by the competent authority. This can be particularly challenging when the obligations were developed with one organisation but a different organisation then implements the consent, such as when a 'design and build contract' is let to implement an outline permission.
6.12 It is very important for all parties involved in the impact assessment process to understand fully the actions they need to take during the implementation stages of a project that has been subject to EcIA. This will mean identifying and designing in detail the measures necessary to compensate and mitigate for negative impacts, and also any measures necessary to achieve enhancements.
6.13 It is important that a proponent is able to demonstrate commitment to the full implementation of the proposed mitigation, enhancement and compensation measures. Commitment can be demonstrated relatively easily through the submission of designs and supporting information. These should include a detailed explanation of what is to be done, how it will be achieved, where and when it is to be carried out, and who is responsible for ensuring that works are undertaken as proposed (e.g. in an EAP). More specifically, the information provided might include:
6.14 If such detail is not provided initially in the EcIA, then it must either be provided as a further submission prior to the decision-maker granting approval, or be made a condition of the approval (requiring submission within a specified period after approval). Within the planning process, planning conditions and obligations (for example, Section 106 Agreements in England and Wales, Section 75 Agreements77 in Scotland and Section 40 Agreements78 Northern Ireland) provide enforceable mechanisms to secure the subsequent submission of information for approval. Equally important, these mechanisms provide a means to ensure that identified measures are implemented in full.
Table 2: Examples of ecological, legal and policy implications
| Importance of resource or feature | Ecological Implications | Legal Implications | Policy Implications | Implications for Development Control (Detailed Design and Implementation) |
Negative Impacts |
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| International | E.g. Loss and fragmentation of a lowland heathland, negatively affecting the integrity of an SAC and permanent reduction in feeding and breeding habitat for a resident population of sand lizards (protected under Schedule 5 (Wildlife and Countryside Act 1981) and Annex II (EC Habitats Directive). | Under the Regulations (Regulation 48 of the Habitat
Regulations (1994) in England, Regulation 17 in Northern Ireland, Regulation
16 in Scotland); the competent authority may not be able to grant consent
for the development. Affects Schedule 5 and Annex II protected species. |
Project does not comply with development plan policies for the protection of internationally and nationally important sites, nor with polices relating to legally protected species. | Having been satisfied that, there are no alternative
solutions and if, despite mitigation, it cannot be concluded that there
will be no negative affects on the integrity of the heathland, by law
planning permission cannot be granted, unless there are over-riding
issues of public interest. Redesign of the project or relocation to
another site may be necessary. If consent is granted, compensation for damage will be required by the Secretary of State under Regulation 53, and secured via planning conditions and obligations. Also, impacts to sand lizards must be avoided and/or mitigated, requiring licences from the relevant statutory body. |
| National | E.g. Permanent loss of 3 ha of unimproved neutral grassland designated as an SSSI/ASSI. | Likely conflict with the LPA's duty under section
28G of the Wildlife and Countryside Act 1981 (as amended), Section 12
Nature Conservation (Scotland) Act 2004.
The Planning Authority will be required to consult with statutory conservation agency before authorising a damaging project. |
Conflicts with development plan policies for the protection of nationally important sites. | If, despite mitigation, negative affects cannot be
avoided, planning permission is likely to be refused; unless there
are over-riding material planning considerations. If permission is granted, detailed compensation measures (related in scale and kind) should be secured through planning conditions and/or obligations. These should be in addition to mitigation and enhancement measures, which might also need to be secured through planning conditions and/or obligations. |
| Regional/ county | E.g. Permanent clearance of 0.5 ha of mature woodland designated as a Local Site. | May conflict with conditions for timber felling, licensed
by Forest Authority or the Forest Service Northern Ireland May conflict with NERC Act 2006 where such sites host habitats/species are listed under Section 41. |
Conflicts with development plan policies protecting
Local Sites. May trigger 'no net loss' policies requiring adequate mitigation and compensation. |
If, despite mitigation, negative affects cannot be
avoided, permission is only likely to be granted if there are over-riding
material planning considerations. If permission is granted, detailed compensation measures (related in scale and kind) should be secured through planning conditions and/or obligations. These should be in addition to mitigation and enhancement measures which might also need to be secured through planning conditions and/or obligations. |
| Local | E.g. Temporary reduction in breeding bird numbers in neighbourhood due to clearance of scrub, which will be allowed to then regenerate. | May conflict with Wildlife & Countryside Act 1981, Section 1, Nature Conservation (Scotland) Act 2004 Schedule 6, The Wildlife (Northern Ireland) Order 1985 Part II Sec.4; if implemented during the breeding season. | May trigger 'no net loss' policies in development plan requiring adequate mitigation and compensation. | Measures to provide compensation of an equal or greater area of scrub should be secured through planning conditions or obligations. Long-term management may be part of these measures. Clearance should be conditioned to avoid the bird nesting season. |
Positive Impacts |
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| International | E.g: Creation of an extensive reedbed providing increased feeding and shelter in an area likely to attract and increase population of bittern. (Berne Convention (2), Bonn Convention (2), Birds Directive, Wildlife & Countryside Act 1981) Nature Conservation (Scotland) Act 2004). | May comply with planning policies responding to the statutory duty on LPA imposed by Planning and Compensation Act (1990) 77 Schedule 12. | Makes significant contribution to national and local BAP targets to increase the extent of UK Priority Habitat. | The detailed design, physical installation and aftercare
of the proposed reedbed should be secured through planning conditions
and obligations. Provision for long-term management and monitoring
should also be secured through (possibly) conditions and/or (more likely)
by planning obligations.
Where appropriate, transfer of the land to an appropriate body may also be necessary and secured through a planning obligation. |
| National | E.g. Provision of expanded feeding and shelter resources for Dormice by planting native woodland adjacent to a large area of ancient woodland already containing dormice. (Berne Convention (3), EC Habitats Directive (4), Wildlife & Countryside Act 1981, Wildlife (Northern Ireland) Order 1985 (5, 6), Nature Conservation (Scotland) Act 2004 Schedule 6). | Contributes to the implementation of Habitat Regulations (37) (1994). | Complies with development plan policies seeking the management of landscape features of major importance for wild flora and fauna. | Detailed measures and adequate resources for habitat
restoration and for long-term management should be secured through
planning conditions and/or obligations (monitoring should ideally be
an integral part of long-term management practices).
Where appropriate, transfer of the land to an appropriate body may also be necessary and secured through a planning obligation. |
| Regional | E.g. Restoration and management of neglected wet grassland to provide improved opportunities for feeding and shelter for a small colony of marsh fritillary butterflies (Wildlife & Countryside Act 1981, Wildlife (Northern Ireland) Order 1985 (5), Nature Conservation (Scotland) Act 2004 Schedule 6). | May comply with planning policies responding to the statutory duty on LPAs imposed by Planning and Compensation Act (1990) Schedule 12 | Makes a modest contribution to national and/or local BAP targets to increase the extent of a semi-natural habitat and in the long-term to provide possible additional habitat for marsh fritillaries. | Detailed measures and adequate resources for habitat
restoration and for long-term management should be secured through
planning conditions and/or obligations (monitoring should ideally be
an integral part of long-term management practices).
Where appropriate, transfer of the land to an appropriate body may also be necessary and secured through a planning obligation. |
| Local | E.g. Planting of new hedgerow to increase movement opportunities for mobile species. | May comply with planning policies responding to the statutory duty on LPAs imposed by Planning and Compensation Act (1990) Schedule 12. | Complies with a development plan policy designed to achieve landscaping and nature conservation benefits. | Planting design, installation and aftercare should be secured in detail through the use of a planning condition. |
1 Schedule 12 of the Planning and Compensation Act (1990) requires local
planning authorities to include in their development plans, policies for ‘the
conservation of the natural beauty and amenity of the land’ and ‘the
improvement of the physical environment’. Development Plans may therefore
include policies to secure net gains for biodiversity (especially where it
is possible to make a contribution to national and/or local BAP targets).
Copyright © IEEM 2006 | Last updated 26-06-06