Is the sun setting on Habitat Regulations?
At this year’s COP15, governments from across the globe are working together to agree on targets to tackle the biodiversity crisis. With the need for urgent action to ensure the protection of species and ecosystems across the world, the pressure is on, and the stakes are high.
15 December 2022 | 5 min read
Mike E Barker
The UK is one of the most nature-depleted countries in the world. But innovative solutions to nature’s recovery are making their way up the priority list, and the UK Government has committed to international nature recovery targets across 30% of land and sea by 2030.
The property development industry has a significant impact on biodiversity loss and, as a result, has an important role to play in protecting and restoring our natural world as we move forward. Through the Habitat Regulations, nature positive development has been a priority in the planning process for years, but as we look to untangle ourselves from EU law through the Brexit Freedom Bill, the regulations are subject to change ahead of the December 2023 deadline.
Now, at a time when nature needs them more than ever, there is a threat that the Habitats Regulations will be weakened or taken away altogether.
Mike Barker, Director of Ecology looks at what could be next for the Habitat Regulations.
What are the Habitat Regulations?
HRs assess the potential effects of a plan or project on the conservation objectives of European designated sites, known as the Natura 2000 Network.
Designated sites include:
- Special Areas of Conservation (SAC)
- Special Protection Areas (SPA)
- European Protected Species (EPS)
Any development affecting protected areas, or ‘features of interest’ requires a Habitat Regulations Assessment (HRA).
HRAs currently protect 18.8 million hectares of ecological important land across the UK, which equates to 900 sites, including 658 Special Areas of Conservation (SAC) and 284 Special Protection Areas (SPA).
Why are they changing?
HRs are under review as part of the Retained Law (Revocation and Reform) Bill (REUL), also known as the Brexit Freedoms Bill.
The REUL Bill doesn’t just revoke EU law ‘that is not right for the UK’, it automatically revokes all EU-derived laws at the end of 2023 unless they’re specifically extended, reinstated, or replaced.
What are the frustrations around Habitat Regulations?
- Air Quality and SAC Habitats
- A major threat to SAC/SPA is a development’s impact on air quality through increased traffic movement and pollution deposition. Air pollution is assessed as part of the HRA and proposals must show how they can mitigate any negative impacts.
- Nutrient neutrality
- Natural England has listed a total of 32 local planning authorities as nutrient neutral where protected sites are in unfavourable condition due to excess nutrients.
- Projects and plans should only go ahead if they will not cause additional nutrient pollution to sites. Following further work to understand the sources of site deterioration, Natural England has identified a further 20 protected areas.
- Development plans can be considered ‘nutrient neutral’ where they demonstrate they will cause no overall increase in nutrient pollution affecting specified ‘Habitat Sites’.
- Water neutrality
- Water neutrality looks at a development’s water footprint.
- It is achieved when a development does not increase the rate of water abstraction for drinking water supplies above existing levels by using methods such as water reuse and offset.
- It currently impacts a very limited geographical spread but this could follow the path of nutrient neutrality and expand across the UK.
- Risk sites are any SACs or SPAs where a lack of freshwater could affect their integrity.
- Investment Zones V SAC/SPAs
- Ministers have proposed 38 ‘investment zones’ across the UK that could be key to driving growth and unlocking housing development. The scrapping of the Habitat Regulations and EU laws means that any development could take place unhindered.
- This is however expected to be ‘paused’ due to their impacts on the environment, according to reports.
Are there ‘flexible’ Habitat Regulations solutions?
We use the term ‘flexible’ loosely, but there are mechanisms for compensation that can help you clear some of the hurdles around HRAs – although these are not easily done. These include:
- Low impact licensing for Bats
- If the risk is small and impacts common species, you can move forward without an HRA.
- District licensing for Great Crested Newts (GCN)
- Aims to conserve the populations of GCNs, rather than the individual animals. This approach is very positive for habitat creation and enhancement.
- Suitable Alternative Natural Greenspace (SANGs)
- A recreational site, created to attract residents of new developments away from designated sites such as SACs and SPAS.
- Success here is dependent upon location and design of SANG
- This is evolving into a financial contribution instead of SANG delivery
What changes might we see to Habitat Regulations?
The British Energy Security Strategy (BESS) has proposed changes to different parts of the Habitats Regulations to help speed up the approval process for offshore wind farms. What this means going forward is still uncertain but if these changes were rolled out to other sectors, the implications could be huge.
Spotlight on the British Energy Security Strategy (BESS)
Round4, ScotWind and future offshore wind leasing rounds are not compatible with the Habitat Regs due to the layers of precaution required. This over precautionary approach is causing huge delays and leaving progress at a standstill. As a result, through BESS, the Government have committed to reduce the offshore wind consent time to one year – a big change from the current process which can take up to four years.
With the UK holding internationally important populations of breeding seabirds, many breeding colonies and important foraging areas around the coast receive protection as SPAs under the Habitat Regulations.
But without this protection, seabird populations, especially along the UK’s east coast, face significant threats from the potential impacts of future offshore wind development. Marine habitats that provide essential food sources will also be under threat due to the huge amounts of cables needed to bring electricity to land.
Current issues with BESS:
- HRA documents can be thousands of pages, which means that assessing the evidence requires significant time and resource during the examination stage.
- HRAs often rely on modelled scenario data which can lead to uncertainties
- Mitigation measures cannot be considered until the appropriate assessment stage
- Compensatory measures are still relatively novel in the marine environment and viable project-level compensatory measures are difficult to identify
- Whilst HRA experts recognise the importance of the precautionary principle in protecting our special sites, evidence was also presented relating to the problems it can cause for decision makers.
- Whilst it is a straightforward process in some respects, the amount and type of specialist evidence required coupled with the perceived risk of legal action, creates an elevated level of caution around decision making.
Proposed changes to BESS (yet to be finalised):
- Non legislative changes for Round 4 projects already underway
- Enable environmental assessments to be undertaken earlier to support the resolution of issues earlier in the consenting process.
- Enable additional environmental assessments to be undertaken by, or on behalf of, Government to set environmental impact baselines for vulnerable receptors in collaboration with SNCBs, academics, industry and stakeholders.
- Reinterpret the ‘People over Wind’ judgement to allow the assessment of mitigation measure effectiveness at the screening stage of HRA.
- Consolidating existing site designations into a much simpler set of designations with clarity over the importance of these sites, nationally and internationally.
- A clearer framework for the precautionary principle.
- Provide Natural England with greater discretion to provide advice on ‘de minimis’ thresholds.
Habitat regulations and its deadline day
There is a need to review and strengthen environmental law due to the severe climate and nature emergencies we currently face. And, although proven to be frustrating, rigid and precautionary, Habitat Regulations Assessments do protect and restore biodiversity.
What amendments are made is yet to be decided. But it’s vital any changes are thoroughly planned out and rationalised, for the greater good of the environment and the restoration it needs. Solutions may be harder to find and harder to agree but they are vital if we are to meet the targets being set.
Delivering nature positive solutions
Following on from COP27, COP15 has brought governments from around the world together to agree a new set of goals to tackle biodiversity loss.
The driving force behind COP15 is the fact that, despite ongoing efforts, biodiversity is still in decline across the globe and the trajectory is set to continue if we continue as we are now.
At RPS, we support clients to deliver Net Positive biodiversity outcomes that not only maintain biodiversity but enhance it.
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