If you are a large company seeking to spend lots of money on a large development which will earn you millions of pounds then here is some advice – treat European wildlife designations seriously.
That’s all there is to it really, but history shows that companies tend not to behave as though ‘a few birds’, ‘a few fish’ or ‘a few plants’ could possibly be strongly protected enough to scupper their plans. They can – and they have in the past.
Sites designated under the EU Birds Directive (SPAs) or EU Habitats Directive (SACs) cannot be ‘developed’ unless their wildlife interest is unaffected or, if affected, there is overriding public interest for going ahead and the damage can be compensated in some way. If you want to build a port on a mudflat you would be best advised not to claim that this will cause no damage, so instead you should be thinking of how you will convince the world that your project is not just going to make you money but is of high public importance and you’d better start looking for ways to replenish wildlife that has will be damaged by your development elsewhere.
That’s a simple guide to how the system works – but it’s good enough to save you millions of pounds if you take notice of it.
In which case, you might ask, why have developers proposed to build wind farms ion protected peatlands, ports on protected mudflats and saltmarshes and barrages in protected estuaries? I don’t really know the answer but each of these things has happened in the past and none has gone ahead – costing the developers large sums of money.
It’s not as though the locations of these sites are kept secret – you can simply look them up easily enough – so that can’t be the reason!
Industry seems to rate wildlife designations alongside issues such as local opposition in terms of its ability to affect their plans. That’s a mistake. EU wildlife designations are pretty tough things – they are designed to protect the very best wildlife sites in Europe from being destroyed for short term interests.
I think there is another reason why industry can tend to act ignorantly as though wildlife designations are unimportant, and that is that industry listens too much to uninformed politicians and civil servants in government departments such as The Treasury and Business, Innovation and Skills. There are few people in these departments who understand or care about environmental designations – in the silo-based world of Westminster it isn’t their job to do so. sitting in The treasury you may well be told that your project is completely in line with government policy and what the Treasury would like to see but that doesn’t mean that The Treasury can give you a get-out-of-gaol free card from EU designations.
I am fairly sure that misinformation or, at the very least, inaccurate signals, from some government departments have cost developers millions over the years. Instead of relying on government information alone I would advise industry to liaise with the larger and most informed NGOs on their plans for development – and over the years this has happened increasingly often (to everybody’s benefit).
Well, that’s my advice – for what it’s worth! And I would claim that it’s worth millions of pounds if heeded by the right people.
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http://www.rspb.org.uk/Images/opencast-coal-mining_tcm9-353523.pdf
But do not believe that it is impossible, Mark lists the conditions that make it so – “overriding public interest for going ahead and the damage can be compensated in some way”.
The dualling of the A11 from the fiveways roundabout to Thetford was consented without the RSPB taking it to the ultimate arbiter – the European Court – and that consent and its subsequent implementation has led to the greatest amount of protected European site destruction and damage so far recorded in the UK (to the best of my knowledge, noting that the Abel site on the Humber Estuary has been consented in principle but not all legal steps have yet been completed).
The developer in the A11 dualling case was the Highways Agency. Natural England and the RSPB signed up to an agreement which meant that the SPA and SAC destruction was not tested at a Public Inquiry let alone through a UK court by judicial review or through the European Court. In particular there was no open and public scrutiny of “overriding public interest” and “the damage can be compensated in some way”. That was in my opinion a backward step in public accountability and may yet give rise to precedents for ‘closed shop’ decision making in future cases.
Dr Roger Buisson CEnv MCIWEM
Declaration of interests – I have worked for the RSPB, private developers and Government and its agencies on the scrutiny of developments likely to have a significant effect on European wildlife sites.
Natural England will assist developers through their Discretionary Advice Service (a nice new revenue stream for the erstwhile guardians of our natural environment).
They’ve also developed Nature Conservation Assessments as an ‘alternative’ softer option to Appropriate Assessments as required by European legislation in terms of LSE on Natura 2000 sites.
All part of the ConDEms drive to reduce red tape?