Project Nutcracker: The Secret Ecologists Speak

I have previously pointed out some of the difficulties with the Habitats regime in the UK. In my most recent article [Avoiding More Kittiwake Hotels and Bat Sheds], I advocated for specific changes to law and guidance which would make the regime more proportionate, and enable developers' money to be spent on more effective measures to support nature.

But in the back of my mind was always a concern that an ecologist might find my criticisms of the status quo unfair, and my suggestions naive from a scientific and ecological perspective. I want a "win-win" for infrastructure and nature, but secretly wondered if this was possible.

The only way to find out was to have a chat with some friendly ecologists. They preferred not to be named, so I will refer to them simply as ''the Ecologists'' when articulating their views.

These Ecologists engage with Natural England, the Environment Agency, Natural Resources Wales, NatureScot and the Joint Nature Conservation Council (''SNCBs''[1]) on behalf of developers seeking planning consents, but also on behalf of Local Planning Authorities, The Wildlife Trusts and other interested parties. They therefore experience the system from both sides of the fence. They prepare habitats assessments, apply for species licences, agree the extent of surveys and appear at inquiries. One conducts research and publishes academic papers, and all spend much of their free time spotting birds, bats, bees and rare plants around the UK and across the world.  In a polarised debate, these individuals therefore seemed most likely to give me a reasonable ecological view. They love nature and have direct experience of the practical application of the legal system to its protection.

I could not have been more surprised by their thoughts. They echoed the frustration and incredulity expressed by journalists and think-tankers in articles I had, frankly, assumed sometimes over-simplified or mis-represented the position as an ecologist might see it. I report the Ecologists' thoughts in their own words as far as possible, so that readers can feel the force of their views as I have. All text in italics directly quotes the Ecologists. There was a high degree of agreement between them.

At a time when we've seen the Office for Environmental Protection criticise the Government's Planning and Infrastructure Bill for environmental ''regression'' [here], and a leaked report suggesting that the EU has similar concerns [here], my intention is to shed new light on the real problem with environmental protection in the UK, and what is needed to fix it.

I regret the need to be blunt. None of the shortcomings of the entities mentioned are the fault of the individual staff, who do their jobs with the best of intentions and in often demoralising conditions due to perennial under-funding.  However, in order to get the right cure we need the right diagnosis.

The real problem isn't the law, it's the loss of a science-led approach

In the Ecologists' view, the real problem isn't the law, but the "hollowing out" of scientific expertise from the SNCBs on whose judgements the legal regimes rest. Funding cuts over the past 15-20 years have been a false economy, and the pay-as-you go cost recovery system recently implemented is not the answer. The picture painted by the Ecologists is a system now operated, with notable heroic exceptions, by non-expert low grade civil servants with insufficient supervision or control by scientific specialists. The system is therefore operating based on ''ideologies'' and ''mythologies'' rather than scientific evidence. It is not just a case of under-resourcing but the wrong resourcing.

Their general view was that some of the high profile cases like demands for acres of land to be flooded to create saltmarshes at Hinkley Point C in lieu of an acoustic fish deterrent and the many challenges we are seeing across the offshore wind sector and other NSIPs, might not arise if the SNCBs were "science-led".  Changing the law wouldn't be necessary if the system were operated properly based in sound science.

The Ecologists feel that in Europe a greater adherence to scientific evidence within regulators has largely avoided the problems the UK is grappling with. The UK is facing an ironic situation: on paper, changes in law like those in the Bill may constitute ''regression'' from current European environmental standards, but the objective is one many ecologists broadly support - finding a workaround for the SNCBs' unhelpful practices, in order to get better outcomes for nature. And, yes, greater fairness for developers who we need to continue investing in the UK.

The extent to which the Planning and Infrastructure Bill's environmental delivery plan (''EDP'') regime might achieve this isn't something I comment on here. I have previously flagged some of its limitations - which mean that we still need the existing Habitats regime to be made more workable, even if the EDP regime is brought in.

The purpose of this article is to explain the ''compounding effect'' of the wording of the law with the lack of scientific expertise within the SNCBs (described in Part 1 below). This is leading to many perverse outcomes, examples of which I share in Part 2. The best way to avoid these problems would be for Government to fund the SNCBs to recruit the scientific talent they need. For reasons set out in Part 3, cost-recovery from developers isn't helping. Assuming this doesn’t happen, the Government should elaborate the current law to embed a more rigorous, science-led approach and clarify what compensation may comprise. I describe my proposed amendments in Part 4. The law alone is a blunt instrument to effect cultural change but I believe it could turn the tide quite effectively in this case.

PART 1: STRUCTURAL AND INSTITUTIONAL PROBLEMS

The compounding effect of four factors

The Ecologists felt that there was a ''compounding effect'' of the following factors:

1. The requirement to prove a negative, which flies in the face of scientific methodology;
2. Interpretation of the ''precautionary principle'' to mean ''if there's a hypothetical risk, don't do it'';
3. The hollowing out of scientific expertise from the SNCBs; and
4. The power of the SNCB's view in decision-making, coupled with the fact the SNCBs often refuse to appear at hearings to have their views tested.

I discuss each of these below.

The scientific difficulty with proving a negative (Problem 1)

One of the Ecologists I spoke to referred to a friend of his who is an expert in bat ecology. He was starting a suite of surveys on an isolated hedge in the middle of an arable field, at the behest of the local planning authority's ecologist and Natural England. They had asked him to prove that the removal of the hedge would not have an adverse effect on a Special Area of Conservation (''SAC'') designated for lesser horseshoe bats, which was located over 6km away. He said: "For those not familiar with the ecology of this species, the chances of a horseshoe bat being present in such an environment is about as close to zero as one could get. Unfortunately, such situations are not uncommon. When it comes to a Habitats Regulations Assessment, one is guilty until proven innocent."

This problem is driven by the wording of Regulation 63(5) of The Conservation of Habitats and Species Regulations 2017 (''Habitat Regulations'') which states: '‘In the light of the conclusions of the assessment, …. the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site'’ [my emphasis]. The Regulations therefore set out a requirement to prove a negative (ie no relationship between impact on the hedge and the SAC 6km away).

This is a reversal of the usual burden of proof under the law, and this legal burden of proof raises a fundamental scientific problem.

Science has developed in recognition of the fact that it is almost impossible to prove a negative definitively (i.e. that a hypothesis is not true, or that a phenomenon does not exist). Accepted scientific methodology therefore instead poses a null hypothesis (that there is no relationship between two variables, the hedge and the SAC) and through experimentation and statistical analysis the null hypothesis is rejected if data shows that a relationship does in fact exist.

"The law [Regulation 63(5)] wasn't written by people who understood scientific methodology", said one Ecologist. "You have to positively prove that there 'will not' be an effect, and you literally cannot do that in science. Not being able to reject the null hypothesis does not prove the negative."

In simple term, how can the bat ecologist prove there will be no effect on the hedge 6km away? What experiment does he undertake to positively prove this? Common sense says there won't be any such effect but there is no way to rule it out scientifically if someone postulates it.

This means that: "If [the SNCBs] want to put the kibosh on something they can. You've got to rule things out that are sometimes hundreds of miles away. It's frankly crazy." No matter how unlikely something might seem, it's always theoretically possible. "We can't prove that the Loch Ness Monster doesn't exist (unless we drain the Loch). Until then, all you have is a series of studies that fail to find the monster."

The ''precautionary principle'' gives credence to mythologies (Problem 2)

The scientific impossibility of proving a negative is compounded by the fact that case law (notably the Wadenzee case) has established that the precautionary principle must be applied to habitats assessment. The problem is that the precautionary principle doesn't have a consistent legal definition, yet is cited by both decision-makers and SNCBs as justification for giving weight to hypothetical risks for which there is no credible evidence.

Case law has established that if there is any "reasonable scientific doubt", it must be assumed that there is an effect, and either the project must be rejected or further onerous legal tests apply (i.e. the consideration of alternatives, imperative reasons of over-riding public interest, and compensation). But what constitutes reasonable scientific doubt? The Ecologists I spoke to said that the approach applied in practice is often "neither reasonable nor scientific."

They pointed out that the original and most authoritative definition of the precautionary principle, in Principle 15 of the Rio Convention, concerned itself simply with the need for mitigation where there is uncertainty: "Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." This does not embody the "if you don't know, don't do it" approach too often being applied. The precautionary principle and proving a negative are not one and the same thing, but are treated as such.

The hollowing out of scientific expertise at the SNCBs (Problem 3)

The Ecologists' view was that problem 1 and 2 above didn't give rise to difficulties in practice so long as the SNCBs were staffed with real experts in their field, who applied a sensible science based standard to the burden of proof. Their view was that, sadly, this expertise has been lost over the past 15 to 20 years. The budget at Natural England was cut from £265m in 2008/2009 to £85.6m in 2019. It increased after 2019 before being cut again. It is currently undergoing further savage cuts, which could see it lose around 10% of its workforce.

One Ecologist said: "The requirement to prove a negative needs to be very tightly regulated as without proper oversight the system is open to abuse. Unfortunately, the [SNCBs have] been the subject of significant budget cuts and simply do not have the resources to properly regulate a system where a plan or project is guilty until proven innocent. Until such time as they are given the proper resources required, I fear that abuses of the HRA process will continue, where decisions are made based on hearsay and unfalsifiable myth, rather than sound science."

Examples were provided of graduates, straight out of university having done a Planning degree quoting ecological papers from the 1980s with no relevance to the issues in hand but being immoveable even when presented with counter-evidence. "Evangelism without rigour" was how one Ecologist put it.

There was recognition that the Joint Nature Conservation Council was intended to act as a science directorate on whose expertise the other SNCBs can draw, but the Ecologists felt it isn't performing this role very effectively in practice. Even when it does, the Ecologists report that the SNCBs simply do not update their procedures in line with its recommendations. The Joint Nature Conservation Council is also subject to funding cutbacks.

The power of the SNCBs' views in decision-making (Problem 4)

If you add to all of the above factors, the weight given to the SNCBs' opinion as key consultees on planning applications (and as the decision-makers for species licenses), "you've got a serious problem, and frankly that is my daily experience."

The decision-maker on a planning application or marine license (a Planning Inspector, local authority, the Marine Management Organisation or the Secretary of State, depending on the process) can in principle disagree with the view of an SNCB as to whether there is the risk of an "adverse effect on integrity" and (if so) the scale of the compensation required.However, case law has established that the decision-maker is entitled to give the SNCBs' views 'great weight' and must give reasons if they wish to disagree with them[2]. In practice, few decision-makers have the confidence (or in many cases the motivation) to find reasons to disagree with the SNCBs over scientific matters on which the SNCBs are the official experts.

The SNCBs are therefore extremely powerful. Setting them up as non-governmental public bodies (ie quasi-independent of government) is a good idea, but only if they are funded and structured to perform the expert adviser role that is required of them. If they are not, then that power becomes adverse to the public and environmental interest: "Their independence was set up in the days when they had great scientists within their teams. That's not the case anymore. So what's actually been created is an organisation that has carte blanche to do what it wants. Inspectors are giving ‘great weight’ to evidence from SNCBs which is ecological nonsense. So we've created a real problem.”

One of the greatest frustrations to developers is that the SNCBs more often than not refuse to turn up to the hearings where their written objections to applications are to be discussed. This is the case even where the Planning Inspectorate directly requests their attendance and the hearing is online. The reason given is often lack of resourcing. However, there is a feeling that often non-attendance is driven by a reluctance to have their position questioned. 

In a recent DCO hearing for the Outer Dowsing wind farm, the reason given by Natural England for non-attendance was that they did not consider the hearing to be an appropriate forum to test scientific evidence. Legally, this cannot be procedurally fair, and the promoter of the project has made a formal representation to this effect. It leads to a position where the SNCBs can assert anything with impunity.

This problem is compounded by the fact that SNCBs tend not to withdraw objections even where the developer's ecologist has provided all evidence requested to deal with their concerns. This leaves developers (and Inspectors when examining a case) in limbo. Are some or all of the SNCBs original objections still live or not? Throughout the entire application process, right up to examination, getting this clarity is a struggle. This wastes a huge amount of resource.  

PART 2: THE ECOLOGISTS' EXAMPLES OF PERVERSE OUTCOMES

Here I describe some of the anecdotes the Ecologists shared with me about the perverse outcomes they are seeing. A number of the examples relate to the marine environment and offshore wind, because this is where many interactions between development and protected habitats occur.

The "infinitesimal" risk of a boat encountering a bird on a winter outing

The first example shared with me related tothe questionable designation of a vast 25,898 hectare area of sea (from St Austell to Gribbin Head in Cornwall) as a Special Protection Area (SPA), at  Natural England's insistence. The basis of the designation was the presence of three types of seabird – all of which are widely dispersed around the UK in low concentrations. The science behind the designation was "really bad. Natural England didn't actually survey the potential SPA for the species. The numbers were based on a small number of coastal surveys and a few aerial surveys extrapolated out over the whole area. The really good ornithologist involved was appalled." It was suggested to Natural England that the boundary of the SPA should begin at least 500m out to sea, to ensure that housing developments coming forward near the coast weren't unnecessarily required to assess risk of harm to the SPA's seabirds. This request was refused on the grounds that one of the three species was found within this inshore zone: the Slavonian Grebe. Natural England's estimate was that 15 such birds (1.4% of the total population in Great Britain) might use the 25,898 hectare SPA area. Yet as a result of this designation, whenever a new housing development is proposed along this stretch of coast, a habitats assessment must be prepared and considered by the local planning authority in order to assess the risk that people inhabiting the houses go out boating, encounter one of these protected birds and disturb them. The birds in question are only present in winter. The chances of a winter boat tripper encountering one of these 15 birds was said by the Ecologist to be "infinitesimal." In the Ecologist's view, the area should never have been designated based on the evidence, and the designation is now generating yet more needless assessment "just as we warned them it would".

Protecting phantom habitats on the seabed

Sabellaria spinulosa is a worm that builds and lives in tubes on the seabed. When thousands of these tubes are formed together, a reef is formed, which is sometimes ephemeral and sometimes more persistent. Sabellaria has been called a ''habitat engineer'' due to its ability to create a habitat for a multitude of underwater species. At the international level, Sabellaria reefs are officially recognised as requiring conservation action, and they are designated as protected features of a number of Special Areas of Conservation (SACs) in UK waters.

In recent advice to offshore wind developers, including Outer Dowsing offshore wind farm, Natural England has advised that compensation for impacts to Sabellaria reef is required for placing rock on seabed even in areas that Sabellaria reef isn't present (see paragraphs 11 and 12 [here]).

This affects wind farm developers wishing to lay cables as part of a proposed new project, and operational wind farms who need consent to repair existing cables.

The Joint Nature Conservation Committee and Natural England's logic is as follows:

• Sabellaria reef is a protected ''feature'' of some vast tracts of seabed designated as SACs;
• In their view, this means almost anywhere in the SAC could (hypothetically) be colonised by Sabellaria reef;
• Therefore, almost all of the SAC counts as sabellaria habitat even though sabellaria is found in just a fraction of it; and
• Therefore, any activity which requires rock placement on the seabed, almost anywhere within the SAC, risks an "adverse effect on the integrity" to the UK's whole National Site Network of protected sites!

In the view of the Ecologists the idea that a cable being protected in an area of seabed without Sabellaria reef in it might somehow have an ''adverse effect on the integrity'' of the whole UK National Site Network, based on this theoretical impact on future colonisation, is "absolutely crackers."

The upshot of Natural England's stance, however, is that wind farm developers and owners are being asked to provide compensation for this phantom habitat. This requires the wind farm developer to ask DEFRA to find a suitable area of seabed, which I assume will need evidence of real or potential Sabellaria reef.

I understand the DEFRA team is currently working to identify areas of seabed to protect. It's unclear what physical surveys will be undertaken as part of the selection and designation process: areas of sabellaria are difficult to identify because they can be ephemeral (whether protected or not, the worms often move location!).

No other ecological compensation, including creating valuable and much needed seagrass and blue mussel habitat, is acceptable to Natural England and DEFRA.

The offshore wind sector is still waiting for DEFRA’s Marine Recovery Fund to be set up to enable offshore wind operators to pay into a fund in exchange for provision of Sabellaria reef compensation by DEFRA. But one wonders: (i) will DEFRA be able to come up with a credible plan to find and protect areas of Sabellaria reef outside SACs? Worth noting the comments of the Office for Environmental Protection [here], which suggest some fundamental concerns with DEFRA's proposals for MRFs;  (ii) should operators really be required to pay into a fund for such compensation every time they want to protect or repair a cable (which seems to be the position we're moving to)? and (iii) if they are having to pay into a fund, surely better things could be done with the money.

The consequence of this is that multiple wind farms are delayed while ecological compensation for Sabellaria reef is secured, which has added significant investment risk to projects. Projects suffering from this issue include the trio of Norfolk offshore wind projects: Norfolk Vanguard East, Norfolk Vanguard West and Norfolk Boreas. These projects consented in 2021/2022 by Vattenfall and since sold to RWE have been delayed by approximately two years due to inability to satisfy seabed compensation requirements. They are now wholly reliant on DEFRA providing a solution via the Marine Recovery Fund. The risks are even more pressing in a scenario where repairs are required to an existing wind farm.

All the while, the UK Government allows much more damaging activities such as trawler fishing in these areas of seabed, and climate change also exacerbates decline. The effect of cable protection are insignificant in the overall context, and certainly not having an ''adverse effect on the integrity'' of the National Network of Sites under any reasonable scientific interpretation.

Effect on breeding Guillemot : "never in a hundred parallel universes"

I didn't speak to respected ornithologist Dr Mark Trinder for this article. But one of the Ecologists flagged to me Dr Trinder's evidence at a recent Dogger Bank South windfarm DCO hearing. The Ecologist described it as a "systematic takedown of how precaution has been added at every stage of the assessment and resulted in a compensation requirement so unrealistic that if the wind farm was to be built in a hundred parallel universes, the impacts are never likely to come close to being as severe as Natural England's modelling suggests." You can listen to Dr Trinder [here] at minutes 9 to 20; then his comments on the precautionary approach at minutes 41 to 49; and his thoughts on Natural England's questionable advice around minute 56. I summarise the upshot below.

At its closest point, the proposed wind farm is 103km from a guillemot breeding site (the Flamborough and Filey Coast Special Protection Area (FFC SPA)).

To understand the potential impact of the wind farm on guillemot during the breeding season, Natural England looked at the maximum distances that six guillemots flew from the breeding site to forage for food during the study period. The distances travelled by each bird were, respectively: 7km, 9km, 27km, 44km, 65km and 338km. The British Trust for Ornithology (BTO) who undertook the study acknowledge that it took place in a year when the prey stock collapsed, so birds were behaving unusually. The BTO study therefore held the 338km figure to be an outlier, and excluded it when calculating the maximum mean foraging distance for these birds. Their expert view was that it was not a realistic data point for the purpose of assessment.

Natural England ignored this recommendation and (including this outlier) calculated the maximum foraging distance to be 153km (putting the wind farm within range in terms of its impact on foraging birds). This is calculated using the (excessively precautionary) mean maximum +1 standard deviation method: the average of the furthest distance that guillemots were recorded travelling, with a standard deviation added on top. This is not a reasonable estimate of foraging range, and does not represent the core areas that birds are using, which is much better represented by the mean distance of travel.

If individual birds were flying this far regularly, they would not be able to provide adequate food to their chicks. The proposed wind farm is far too far away for the birds to be foraging there anything more than very occasionally. It doesn't stand up to common sense scrutiny.

The Ecologists I spoke to said that this approach to assessment is typical of the unrealistic position taken by Natural England which leads to demands for highly complex and costly compensation measures, when impacts (if any) are de minimis. The Dogger Bank South project will likely be required to provide compensation for 719 breeding pairs of Guillemot to replace those the SNCBs believe will die as a result of the construction and operation of the project. This will likely be delivered in the form of a combination of predator eradication programmes, artificial nesting structures (bird hotels) and bycatch reduction measures. The estimated total cost of compensation quoted by Dogger Bank South is £173m, although to this includes compensation for other features of the habitat too.

40% reduction in the size of a wind farm to avoid one bird death a year

The proposed scale of the East Anglia One North (EA1N) offshore wind farm was slashed by 40%, in order to minimise its impacts on Red Throated Diver (RTD) in the Outer Thames Special Protected Area (SPA). This was despite the fact that the developer’s ecological modelling suggested that there would be little or no impact on adult survival (at worst an undetectable 0.1% of the population) due to bird displacement (birds scared by construction).

Natural England’s modelling conversely suggested adult mortality of 10% for birds displaced. The developer's ecologists, upon review of all evidence, considered that even a mortality rate of 1% would be precautionary. The weight of scientific evidence simply did not credibly support the 10% figure.

Over the period that other offshore wind farms (Kentish Flats, Gunfleet Sands and London Array) were constructed in the Outer Thames SPA, the RTD population increased significantly. If displacement had occurred in the manner suggested by Natural England, 2.4% of the total SPA population would die annually due to displacement, meaning that the SPA population of 6,000 birds prior to these offshore wind farms' construction would have declined to 4,800 over a decade. Instead, the population had increased to 18,000 by 2018. Therefore, Natural England's predicted displacement effect was simply not compatible with the real life population trend.

In addition, records showed low densities of RTDs in the SPA adjacent to the proposed wind farm, due to water depth being unfavourable. The area therefore appeared to be of low value for foraging. There was also evidence that during the non-breeding period, RTDs were highly mobile, with home ranges extending out to Scandinavia. This suggested that any displaced RTDs wouldn't be crowded and competing for food as a result of wind farm development. Research showed that RTDs spent only 3-5 hours a day foraging, indicating that they had plenty of time available to increase their foraging efforts to compensate for the impact of displacement.

On a precautionary basis, the developer's ecologists predicted that 34 RTDs would be displaced by the windfarm, of which a precautionary maximum adult mortality of 1% a year was reasonable (ie less than one bird dying per year due to the windfarm). Natural England believed 127 would be displaced with up to 10% of these birds dying each year due to the wind farm (ie up to 13 birds a year). Although even 13 annual bird deaths sounds relatively little, with a number of wind farms in (and close to) the SPA, unrealistic predictions like this artificially inflate the overall numbers assumed to be affected by wind farms collectively, causing a problem for all. Such disagreements in relation to species impact lead to material consequences for the renewables sector.

This highly precautionary predicted impact on RTDs in the Outer Thames SPA was a contributing factor preventing the development of the London Array Phase 2 wind farm from going ahead entirely, as well as significantly cutting the size (by 40%) and generation potential of East Anglia One North. This should worry the Government given its reliance on offshore wind to deliver its Cleanpower 2030 ambitions.

And what about HS2's bats?

The two Ecologists I spoke to about the £100m HS2 bat tunnel had no involvement in the project. From my reading of what's publicly available, it seems that this population of rare Bechstein bats was at the edge of the species' ''natural range'' in the UK (relevant to the legal test for impacts on protected species).  The concern appears to have been that the whole of this isolated population might be extinguished over time by being hit by passing trains. If this happened it would shrink the natural range of the whole species, because the wood would no longer form part of the range.  I wondered whether as bat lovers they felt £100m was a reasonable cost to put on protecting the 300 or so bats in this ancient woodland? You cannot put a price on some things after all. I fully expected them to back the bat tunnel, but they were both sceptical. While accepting that there might have been unique circumstances due to the location of this species, they questioned whether extinguishment was a real prospect and suggested that for much less than £100m habitat enhancement measures (woodland and hedgerow planting) across the Chilterns might have been more effective. One explained that within ten to fifteen years new woodland would be suitable for the bats. Presumably planting could have started early – pre or during rail construction, long before trains started running. The question is whether the rate at which the bats might be killed by trains in the meantime would lead to extinguishment (before the new habitat benefited them).

Unlike the other examples in this article, the Ecologists didn't feel able to give a definitive view. However, their scepticism feels worth mentioning as it illustrates a big theme that came up in my conversations: the fact that the SNCBs have a "general reluctance to think outside the box." The SNCBs' view is that an adverse effect on a local population requires a hyper-local solution. Solving a "narrow problem in a narrow space" is often "difficult and expensive" said the Ecologists. Not the "best bang for your buck."

In the Ecologists' view, we need law or directions given to the SNCBs making clear that hyper-localised mitigation or compensation is not always required and can often be inappropriate. SNCBs should be encouraged to think about what can be developed across wider areas for the benefit of the species or habitats affected as a whole. This would, however, "be a huge culture shift for a group of individuals used to a very different approach".

The failures work both ways

The Ecologists' experience is that "over-protection" without scientific justification is the main problem. However, the lack of robust science within the SNCBs can work in the other direction too I was told.  One Ecologist told me of the well-publicised case on the Wirral when Natural England sanctioned the destruction of saltmarsh habitat that was protected within an SAC in order for the local council to create a sandy beach as a local amenity. The case was the subject of a complaint to the Office for Environmental Protection. Despite stating that ‘'we believe Natural England may have failed to comply with environmental law'’, no further investigation was completed. My Ecologists pointed to a more recent case where Natural England has again sanctioned destruction of SAC habitat on a moorland site. The Ecological said “These failures work in both directions they [the SNCBs] are protecting features that should not be protected and also failing to protect habitat that should be”. I wonder if these sorts of cases exacerbate nervousness within the SNCBs, which drives the over-protection we are seeing in so many other cases? Anecdotally, I've heard this has had an effect. On a human level I can understand this, but it's a hopeless position for the UK to find itself in.

PART 3: DO WE REALLY NEED TO CHANGE THE LAW?

Does it need fixing if there is little evidence it is stopping development?

This is the argument some environmental NGOs make. Some take the view that our laws are stringent, they are the same as Europe's, and that the best way to protect nature is to keep applying them as strictly as possible. I might have believed this myself until I spoke to the Ecologists. My own experience of the workings of the system on a couple of my major infrastructure projects has left me puzzled and concerned, but I could have been persuaded that in general the regime is achieving its objectives. However, that is not the view of the Ecologists it seems. The examples in Part 2 back up the point the Government has made, that presently the system is not working for nature or for developers.

While there may be few examples of the Habitat Regulations blocking development outright, there are countless cases where development has been greatly delayed and made much more costly, with little or no benefit to the environment (particularly for the offshore wind industry, who have given evidence to the Bill committee to this effect). This should be more than enough justification to do something.

The hidden cases – why don't more people speak up?

There is also something of a conspiracy of silence going on. Developers know how powerful the SNCBs are in the consenting process and don't want to complain about them publicly for fear of damaging their relationships. They don't want to reduce the chance of persuading the SNCBs to adopt a reasonable position by having upset them. In desperation, developers occasionally raise their concerns with senior executives within the SNCBs, but this achieves nothing. Even if the executives are sympathetic, they are not ecologists, so they are not equipped to challenge the scientific approach adopted by a case officer. Culturally, I also suspect this would be seen internally as undue interference.

Once the main consent has been granted, the developer still needs to maintain a relationship with the organisations and individuals involved - in order discharge conditions and get further consents and licences. So they still don't want to call out these systematic problems.

Developers also don't want to draw attention to the huge amounts of money they are paying for little or no real benefit. Even if it's not their fault, it doesn't make them look good. You only have to look at the criticism HS2 got for the bat shed. So while examples occasionally come to the media's attention, the true scale of the issue remains hidden.

If Labour doesn't fix it, will Reform do something more drastic?

Those minded to live with the status quo should also consider what might happen if Reform were to win the next election. This is something that worries many ecologists. With so many examples of perverse decisions, there must be a risk that Reform would simply scrap some of the UK's environmental regulators altogether, or scrap the Habitat Regulations. This would be a catastrophe. We need an effective system to protect and enhance the UK's most precious natural habitats and species. Moving the SNCBs to a more sensible, science-led approach is the best way to guard against a drastic political backlash in the future.

Will cost recovery help the SNCBs fund better science?

In recent years, most developers have voluntarily paid SNCBs where advice of any significance on habitat issues was required. The Government has formalised this by bringing in a mandatory cost-recovery regime for nationally significant infrastructure projects. Applicants must now pay the full costs of the time spent by SNCBs advising on their planning proposals. The Ecologists, however, say they have not seen this have any effect, because the SNCBs simply don't have enough staff (or the right staff) to carry out the necessary work. In some cases SNCBs and decision-makers are outsourcing work to private sector consultancies and recharging this to applicants. This type of arrangement risks inefficiency, however, as consultancies have a financial incentive to elongate rather than close down issues. It can never be a substitute for having organisations with the necessary in-house expertise. The evidence to date from my clients is that they are paying more but seeing no change in quality or efficiency. It isn't that developers are unwilling to pay what it takes for good science to be carried out. The system just isn't effective at harnessing the large sums being expended to drive a better system.

Oil and gas sector environmental regulator pays top ups

The pay scale at Natural England is public: [here], ranging between £24,400 (Level 1) to a maximum salary of £67,055 for the highest grade (Level 6). Worth noting that the Government's offshore petroleum environmental regulator (DESNZ's OPRED) recently advertised a role which included a specialist environmental allowance of £35,815 per annum on top of the base salary of £46,850 (leading to a total salary of £82,665 for a mid-level officer). I am told that the skillset required would be almost identical to that required for an offshore wind environmental specialist. However, no such allowance is offered by Natural England or the Joint Nature Conservation Council. As part of the solution to the current problems, could DEFRA encourage and fund equivalent top ups within the SNCBs for strong candidates?

PART 4: changes in law to improve things

Changing the law is easier than changing organisational cultures, especially when the organisations in question are non-departmental public bodies (quangos) required to operate independent of Government. Ultimately, every development proposal is different and you cannot escape the need for judgement to be exercised by individuals: over the surveys required; when risks of impact are real or can be ruled out; and what scale of mitigation or compensations measures are appropriate. You will always need reasonable, science-led individuals to operate the system. But the right legal drafting can give less room for people and decisions to be unreasonable.

The Ecologists broadly welcomed the types of revisions to the Habitat Regulations I put forward in my article [Avoiding More Kittiwake Hotels and Bat Sheds]. One has worked with me to evolve that drafting to be even more effective. In particular, my updated version does the following (the text in the boxes below shows some of the proposed amendments against the existing Conservation of Habitats and Species Regulations 2017):

1. Spells out the matters on which government may issue guidance and directions to the SNCBs and decision-makers. Such guidance should be 'live' and regularly updated. It could, for example, set out the approach to specific vexed scientific issues (such as the correct bird strike rate to apply to assessment of turbine collision risk impacts). It could also oblige SNCBs in all cases to either withdraw their objections to an application or attend hearings to have them tested;
2. Removes the need to prove a negative when drawing a conclusion on impacts, so that the wording of the regulation aligns with conventional scientific methodology (Regulation 63(5);

63 (5) In the light of the conclusions of the assessment, and subject to regulation 64, the competent authority may not agree to the plan or project only after having ascertained that it will not  where there is scientific evidence that it may give rise to an adversely eaffect on the integrity of the European site or the European offshore marine site (as the case may be).

3. Defines and requires the application of "scientific evidence", which must go beyond than "mere speculation or hypothesis" (via a definition in Regulation 3, and application in Regulations 63(5) above and (6) below);

"scientific evidence" means evidence which adheres to an appropriate scientific methodology and draws a reasonable conclusion which is scientifically justified, and goes beyond mere speculation or hypothesis;

63 (6) In considering whether a plan or project is likely to have a significant effect on or will adversely affect the integrity of the site, the competent authority must base its conclusion on have regard  scientific evidence, having regard to the manner in which the plan or project it is proposed to be carried out or to any conditions or restrictions subject to which it proposes that the consent, permission or other authorisation should be given.

4. Clarifies that de minimis effects do not constitute an adverse effects on integrity, including where they have a de minimis contribution to in-combination effects with other projects (addressing Sweetman No 1, as discussed in my previous article);
5. Addresses the difficulties caused by the other cases discussed in my previous article: People Over Wind (now addressed by my regulation 63(6) above) and CG Fry. These changes would:  (i) allow mitigation measures to be factored into the screening stage when deciding whether a project is likely to have a significant effect and therefore needs full assessment; and (ii) avoid the need to carry out a new habitats assessment when discharging conditions (eg for cable repairs); and
6. Spells out the types of measures that may constitute "compensatory measures" (Regulation 68(2), (3) and linked definitions to be added to Regulation 3). This is intended to encourage a wider approach to securing the "overall coherence of the Natura 2000 network" (the National Network of Sites) than is currently being applied by the SNCBs. We want decision-makers to accept compensation which offers Nature a better bang for the developer's buck while meeting the existing "coherence" test. In particular, my drafting makes clear that like-for-like compensation is not required (the existing law does not require this in fact, but SNCBs generally do). The drafting also states that compensation need not be in place before the impact occurs. This may sound controversial, but in fact simply reflects the existing legal position (as confirmed in an opinion I have seen from Stephen Tromans KC). Compensation is not mitigation. We are talking about a relatively small number of cases, where impacts cannot be mitigated (prevented). In such cases it will sometimes be impractical to stop development pending the installation and function of compensation, and this has always been recognised by the Habitats regime.

68 (2) For the purpose of paragraph (1), the appropriate authority may secure measures which benefit Natura 2000 by: (a) directly or indirectly benefitting ecosystems affected by the plan or project; (b) contributing to the improvement of the conservation status of environmental features affected by the plan or project anywhere within the Natura 2000 network; (c) assisting the appropriate authority in meeting its management objectives under regulation 16A in respect of the affected environmental feature; or (d) contributing to meeting the objectives of a current environmental improvement plan or Environment Act strategy in the vicinity of the plan or programme. and such measures need not be of the same type or scale as the environmental features negatively affected by the plan or project or in place prior to the onset of its impact.

I believe these drafting amendments would encouraging better practice, and better value outcomes.

Equivalent drafting changes would be required for The Conservation (Natural Habitats, &c.) Regulations 1994, Conservation of Offshore Marine Habitats and Species Regulations 2017 and Conservation (Natural Habitats, etc.) Regulations 1995 (Northern Ireland). The relevant devolved administrations would need to buy into these changes to allow Westminster to bring them in via the Bill.

The benefits and limitations of guidance  

It is worth saying that several of the Ecologists had limited faith in guidance or directions being effective. They would rather see as much as possible spelt out in the relevant regulations, and I agree. It's easy to see the DEFRA (who is responsible for the SNCBs) being slow to issue guidance, consulting at length on it, being bamboozled by conflicting comments from developers and the various SNCBs, and sticking with guidance that is woolly enough to allow current practices to continue. DEFRA may also consider that the Joint Nature Conservation Council is the right body to issue guidance to the SNCBs, rather than central government. This is true in principle, but as we have seen, this isn't working.

This is why my latest drafting tries to codify more in the Regulations, and leave less to guidance. But it is clearly impossible for legal drafting to spell out the appropriate scientific assumptions to apply when making a myriad of different types of assessments. Guidance or directions that are 'live' and frequently updated by central government based on the best science (and developer/private sector ecologist input as well as from the SNCBs) will still always be beneficial in my view.

What about the European protected species licensing regime?

In my own experience, the assessment regime for protected habitats (including protected seabird sites, and habitats protected due to special species ''features'') is generally a greater challenge for developers than the European protected species licensing regime. The bat shed is a notable exception. My drafting deals only with the former. The Ecologists had plenty to say on species licensing too. I may set that out in a future Nutcracker. However, given the timetable of the Bill, my view is that we should defer tackling species licensing for future legislation. Dan Corry's review of DEFRA made clear that there must be a rolling review of environmental regulation and I trust there will be a further opportunity to pick this up if we need to. My initial discussions with the Ecologists suggest that for species licensing the problem isn't one that can be addressed as readily through legislative change as habitats assessment.

CONCLUSION

From a legal perspective, my proposed changes to the drafting of the Habitats Regulations would make a real difference. They are needed regardless of whether the EDP regime is brought in, because there will be many proposed developments to which no EDP applies. In particular, for reasons I have explained in previous articles, the EDP regime is unlikely to be useful for one-off major infrastructure projects.

To a large extent my drafting simply codifies the existing law and scientific common sense. It would go some way to correcting the power imbalance between developers' ecologists and SNCBs when debating evidence on risks of impact. It would also encourage an approach to mitigation and compensation which is better value for nature and more reasonable for developers.

In the absence of Government deciding to significantly enhance the funding of the SNCBs, increase their pay scales and reinstate science directorates, this seems like the most effective solution.

Regardless of whether this change in law is made, I hope this article will encourage decision-makers to interrogate, even-handedly, the evidence put forward by both sides where there is disagreement about impacts.

Most such disagreements never come to light, because developers generally make a reluctant  tactical decision to agree with the SNCBs (see earlier section: "The hidden cases – why don't more people speak up?"). So where a disagreement does surface through the planning process, the decision-maker should pay attention. It will generally be because the developer has a particularly strong ecological case and the implications of going along with the SNCBs' approach are particularly egregious.

Ecologists presenting evidence on behalf of developers, particularly in these sorts of contentious cases, will be experts in their field. While the views of the SNCBs must be given "great weight", a planning decision will be robust to legal challenge as long as the decision-maker provides "rational" reasons to disagree with them. The legal bar for "irrationality" is high: "so unreasonable that no reasonable person acting reasonably could have made it" (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948). The evidence provided by a developer's ecologist (if a suitably qualified expert) will almost invariably meet that bar of legal rationality. Decision-makers should therefore feel confident to prefer their view to that of the SNCBs where common sense suggests this is appropriate. The precautionary principle and duty to prove a negative do not require many of the perverse outcomes we are currently seeing. Furthermore, a hyper-localised like-for-like approach to compensation is not legally required, and will often not give the greatest ecological benefit to the UK's network of protected sites.