Habitats review scope queried

Planning lawyers have voiced doubts about the scope for reining in European wildlife regulations viewed by chancellor George Osborne as a burden on business.

Falmouth Bay: many planning lawyers doubt the coalition can significantly alter EU rules governing protected sites such as this. Tim Green photo
Falmouth Bay: many planning lawyers doubt the coalition can significantly alter EU rules governing protected sites such as this. Tim Green photo

In last month's Autumn Statement, Osborne said the government will review the implementation of the European Union's 1994 habitats and birds directives in England. "We will make sure that gold-plating of EU rules on things like habitats isn't placing ridiculous costs on British businesses," he said.

The statement said the government would ensure that compliance with the directives "does not lead to unnecessary costs and delays to development, while continuing to support the directives' objectives". It said the government is committed to tackling blockages for developments "where compliance is particularly complex or has large impacts".

The Department for Environment, Food and Rural Affairs' terms of reference for the review, which is due to be completed by next spring's Budget, say it will look at whether the requirements "are applied too or insufficiently rigorously" via the Conservation of Habitats and Species Regulations 2010, which consolidated the 1994 regulations.

This seemingly even-handed approach has not eased the concerns of conservationists that the review will lead to damaging developments on or near EU protected sites in England. These include 251 special areas of conservation (SACs) designated under the habitats directive and 84 special protection areas (SPAs) designated under the birds directive.

RSPB conservation director Martin Harper said: "These regulations have been in place for 17 years and have not been a brake on development. This legislation has ensured that large-scale projects have not trashed some important wildlife sites."

But planning lawyers doubted that the review will lead to a wholesale downgrading of protection for European sites. "I don't think the government has that much flexibility to amend the regulations and still remain compliant with the directive," said Brian Greenwood, head of planning at law firm Osborne Clarke.

David Cox, partner at law firm SNR Denton, agreed that Osborne's room for manoeuvre in amending the regulations may be constrained. "It's an ambitious statement but I don't expect anything significant to happen as a result," he said.

Sarah Bischoff, associate at law firm SJ Berwin, said: "It is difficult to see where the government believes that the regulations go further than the EU requirements." She pointed out that altering the regulations might lead to the European Commission bringing proceedings against the UK.

David Brock, a consultant lawyer at Keystone Law, said one problem with the regulations is that they leave decision-making authorities with no option but to refuse an application if it would significantly harm the integrity of an SAC or SPA and no alternatives are available. "We should be asking Brussels to amend the directives so they don't predetermine outcomes in this way," he said.

Habitats and Wild Birds Directives: -Review of Implementation can be viewed via PlanningResource.co.uk/go/referencesection

One Current Conflict - Falmouth Harbour

The government's Marine Management Organisation (MMO) and the Port of Falmouth have agreed to run tests to try to overcome habitat constraints holding up regeneration plans.

Dredging a channel to allow access by larger ships would affect a protected algae known as maerl. The MMO announced in January that it could not be certain the scheme would not damage the Fal and Helford SAC.

Last month's national infrastructure plan says that if the test results are favourable the development could then go ahead in early 2013.


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