Richard Wilson is a professional ecologist with 20 years’ experience undertaking surveys for a range of clients, His specialist knowledge is in invertebrate and avian ecology, and his technical knowledge informs Environmental Impact Assessments, including when relevant, Appropriate Assessment.
His professional background has led to a keen interest in EU and UK law in the context of nature conservation. He is a full member of the Chartered Institute of Ecology and Environmental Management, a Chartered Environmentalist through the Society for the Environment and a Member of the Royal Entomological Society. He can be followed on Twitter (@ecology_digest).
He has written two previous Guest Blogs on Mark’s website: In Favour of the EU (in March 2015); and the Walshaw Moor blogs (1-68) (in May 2018). Both involved commentary on EU law in relation to nature conservation.
Mark’s two blogs of the 5th November 2020 (https://markavery.info/2020/11/05/gamebirds-victory-15-the-500m-buffer-zone/; and https://markavery.info/2020/11/05/gamebirds-victory-16-the-500m-myth/) are of particular interest to me because I have had a long-standing interest in how nature conservation interacts with law and policy. Working within the planning sector, I, along with many other ecologists, engage with the Habitat Regulation Assessment process, which I will refer to hereon as as Appropriate Assessment.
A quick overview: An Appropriate Assessment is required when, “…a plan or project which are not directly connected with, or necessary for, the conservation management of a habitat site [European Protected Site], require consideration of whether the plan or project is likely to have significant effects on that site. (Article 6(3) of the Conservation of Natural Habitats and of Wild Fauna and FloraDirective 1992 (consolidated version: May 2013); ‘the Habitats Directive’.
Appropriate Assessments are therefore not new; having been a legal requirement for Member States since the mid-1990s and are currently transposed into domestic law by Regulation 63 of the Conservation of Habitats and Species Regulations 2017. The case-law and guidance has evolved substantially since then, there have been books written on it, and Courts have issued judgements such as ‘the Wealden Case’ (in 2017), which dealt with in-combination effects in relation to nitrogen emissions on the Ashdown Forest Special Protected Area (SPA). This Case, I believe, may have relevance to the current action by Wild Justice and are discussed further below.
Ecologists, including myself, who undertake such assessments on behalf of those who build houses, construct roads, erect powerstations or windfarms will be familiar with the approaches required to enable the competent authority to make lawful decisions.
So Wild Justice’s action over the release of gamebirds, and in particular pheasant and red-legged partridge is of professional interest, sufficient to warrant reaching the end of Mark’s second Blog of the 5th November (No. 16 in his series relating to gamebird releases). Mark quipped that if the reader got to end, they’d be interested (I am) and heroic (not so sure!).
My original intention was to add to the narrative on the 500 metre buffer with the additional point of in-combination effect(s) by way of a comment to Mark’s 16th post on this subject. However, the comment began to expand, and Mark has kindly agreed to let me submit a guest blog which is presented and offered as an additional voice and view of where the outcome of Defra’s gamebird review is currently at.
Mark’s various points are, in my opinion, broadly valid but whilst reading his last two blogs, it occurred to me that there was an additional consideration which has seemingly not been commented on elsewhere (or it has escaped my attention (at least)). This is, I think, an important point for Defra to consider if they intend to retain no more than a 500 m buffer and resolve, even in an interim manner, with a General Licence. This is a legal obligation and not one of policy or politics, and an obligation that has been in existence for many years: in-combination effects.
The requirement to consider in-combination effects is a consequence of the Conservation of Habitats and Species Regulations 2017:
63.—(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which—
(a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of that site,
must make an appropriate assessment of the implications of the plan or project for that site in view of that site’s conservation objectives.
…and I think that considering in-combination effects is very relevant to the debate on gamebird releases. Why?
In the Wealden Case referred to above, the competent authority (Lewes District Council and the South Downs National Park Authority) was found to have not accurately assessed the predicted impacts of vehicle traffic emissions on the Ashdown Forest SPA as they only looked at their planning document; and not the neighbouring (Wealden District Council) planning document. Each document individually concluded that the emissions fell below the relevant threshold, whereas in-combination, they exceeded the threshold.
And whilst I understand there are nuances, such as at what point does the magnitude of a predicted impact become so tiny as to, even in-combination, negate the need to consider in-combination effects, the wider point that in-combination effects require consideration remains valid.
It is therefore not as straightforward as simply assessing the potential effects of an impact (or impacts) from a shoot in isolation of other shoots. Indeed, other projects/ plans, even if in terms of their operation, they are quite different to gamebird management require inclusion if the magnitude is sufficient to be measured and there is a realistic risk of significant adverse effect.
Thus, in the context of gamebird management, how could this play out?
As far as I understand, gamebirds defecate and in doing so, release nitrogen into the soil. In areas within 500 m, it is common ground that there are likely to be localised effects which may, or may not, be significant. Beyond 500 m, it is contended (by Defra and the shooting industry) that these effects are minimal and of no consequence; but this is disputed as conveyed by Mark in his 16th Blog. So, whilst it may be the case in a few, some, or more circumstances that effects don’t extend beyond 500 m, this isn’t a settled consensus. Hence, I suppose, why Natural England is going out to consultation.
But I would also argue that in the real world, land management (of whatever objective) tends not to operate in serene isolation. Down the road (in common parlance) or within the sphere of influence (in EIA parlance), it is not unreasonable to believe there could be a recently consented development which causes, for example, nitrogen emissions such as a new factory, processing plant or other infrastructure that emits airborne nitrogen. The development’s EIA has assessed that it emits 0.5 cubic units of nitrogen and the critical threshold for the nearby European Protected Site is 0.7 cubic units. These emissions will disperse downwind (mostly), and towards the sensitive habitats within the European Protected Site.
Mark used a heathland example (good choice!!) so I will unashamedly use this good choice (there are others) and give it the name Hypothetical Heathland Special Area of Conservation (SAC). The SAC’s sensitive habitats include an area of mire and bog with an important population of sundews and butterworts (which contribute to the designated feature), plus a vegetation community, that is highly sensitive to nitrogen inputs.
The new development is emitting nitrogen but the assessment, through modelling, concluded that the emissions (0.5 cubic units) falls below the recognised threshold of 0.7 cubic units because of dispersal.
In our scenario, there is a shoot located 500 m (nearest boundary, straight-line distance) from the SAC; and a second a few kilometres east of that one, and 600 m from the SAC. Each individual shoot adds 0.15 cubic units of nitrogen (so individually, well below the threshold of 0.7). But, the in-combination effects, with the consented development and each other result in total emissions of 0.8 cubic units of nitrogen, exceeding the threshold by around 12 %. It can be predicted with a high degree of certainty that the favourable conservation status of the SAC (its integrity) will be compromised (based on no mitigation).
Ah, I hear you cry, but both shoots are more than 500 m away from the SAC. Correct! And the pheasants themselves may mostly remain within 500 m (disputed!). But even so, and this may all be true (or mostly true, sufficient for the purpose of this illustrated example), this is not the end of the assessment.
The shoots are incontrovertibly at least 500 m away from the SAC, but that doesn’t mean the effects are constrained to within 500 m as Appropriate Assessment doesn’t just consider direct effects such as habitat loss directly caused by pheasants gobbling other vegetation, invertebrates or reptiles; but also the indirect effects. Indirect effects are secondary effects such as nitrogen emissions causing vegetation changes within the SAC; or may not be immediately obvious such as the inevitable pets arriving as a consequences of house building and thus, on sensitive adjacent habitats and ground nesting birds such as the Thames Basin Heath SPA.
So, to illustrate how, even if a shoot and most pheasant, remain within 500 m from a European Protected Site, let us return to the Hypothetical Heathland SAC.
There are two watercourses that feed the mire and bog and they flow from the shoots into it. The watercourses carry with it elevated levels of nitrates from the pheasants’ ablutions and enter the mire system. It is realistic to predict this could result in adverse effects on the SAC, by increasingly making it more difficult for those specialist plants that cannot tolerate nitrogen in the soil from surviving. Further, the increased nitrogen may allow other plants to arrive; e.g. grasses and taller herbaceous species which outcompete the more sensitive flora and gradually changes the habitat, affecting the fauna. The Hypothetical Heathland is also a SPA for its breeding nightjar population. The changes in habitat reduce the area suitable for breeding nightjar and so the SPA’s integrity is compromised too.
The integrity of the SAC and SPA is compromised, and it can be said that it is no longer in favourable conservation status. There is a legal obligation to maintain (or enhance) a European Protected Site’s favourable conservation status.
It can be demonstrated that even if gamebird management largely remains at a distance of 500 m (which may not be the case, but it is what Defra currently think is the worse case), this doesn’t equate to no significant effect.
Defra has also communicated that they intend to nullify the issue and meet its legal obligations by issuing an interim General Licence (GL) to accommodate all the necessary ramifications, subject to the results of a consultation. I have read this to mean a single over-arching, national (England) document covering all shoots, all in-combination effects arising from all plans and projects, everywhere, from Northumberland and Cumbria, south to Kent and Cornwall.
My immediate thinking is that the quickest way to achieve this would be to issue a GL that requires a substantially reduced number of gamebirds that are released below a threshold that is clearly going to shift the ‘emissions’ to a level that are tiny. But this number may be so small to accommodate all scenarios, that it becomes unworkable from the gamebird managers’ perspective. And if they are less cautious, will some protected sites remain vulnerable? In other words, what may be reasonable for a Yorkshire European Protected Site, may be wholly unreasonable for one in Northamptonshire, and in Hampshire but for entirely different reasons.
If this is the way Defra intend to deliver the GL, it will be very interesting to see how they derive the threshold; or if it is not, it will be equally interesting to see how they approach this conundrum.
And, as the example of a German woodshed described in Case-Study 2, and a larger project in Case-Study 3 (see here) attests to, it is also worth noting that Appropriate Assessment involve projects on entirely different scales and the consideration of a range of receptors. Thus, for a shoot with 10,000 to 20,000 birds, is the same approach applicable for 100,000 or 200,000 birds?
Thus, a catch-all approach may not be the sunny uplands that Defra aspires to; or the shooting industry wants. And this assumes that a singular threshold that is acceptable to the shooting industry can be achieved in a timeframe that enables the 2021 gamebird season to operate. Is it plausible that too high a threshold (regardless of buffer distance, and this has not been resolved yet either!) is reached, to the satisfaction of the shooting industry but which falls short of the legal threshold for at least one or a handful of protected sites?
In researching this blog, I happened across an example of a real-life application of the Appropriate Assessment and decision-making process on a not wholly dissimilar project. I think it is worth presenting it as a conversational point.
A proposed free-range poultry shed housing 16,000 birds in Shropshire, England was submitted for planning permission. This poultry shed is located approximately 700 m east of the nearest protected site, in this instance, the Midland Meres & Mosses Phase 2 *Ramsar Site in Staffordshire (see Figure 2).
[*Astute readers will note that a Ramsar site is not a European Protected Site. However, for the purposes of Appropriate Assessment, Ramsar sites are included as part of Natural England’s legal requirement to secure compliance under Regulation 9 of the Conservation of Habitats and Species Regulations 2017]
As part of the planning application process, Natural England was consulted and responded stating that insufficient information had been submitted owing to a lack of assessment (i.e. an Appropriate Assessment) relating to the Ramsar site. The applicant undertook further baseline work, referencing Natural Resource Wales’ Guidance Note (GN 20): Assessing the impact of ammonia and nitrogen on designated sites from new and expanding intensive livestock units (which includes poultry). It also included modelling dispersal of ammonia (which contains nitrogen) and submitted this to inform the subsequent Appropriate Assessment. The Appropriate Assessment was completed, concluding that there WERE, in the absence of mitigation, likely significant effects on the Ramsar site’s integrity (Section 2.6 of the Appropriate Assessment, following their Table 2) as the ammonia deposition within the Ramsar site exceeded the threshold, albeit slightly (see Section 6 of the Ammonia deposition modelling report). With mitigation, it was considered possible to reduce the nitrogen emissions to below the threshold.
This real-world example illustrates the following points:
- Land management involving lots of chickens can be more than 500 m from a European Protected Site and require (in the statutory authority’s opinion, to ensure legal compliance with Regulation 9) an Appropriate Assessment.
- The exceedance of a threshold can be slight, and it remains the case that an Appropriate Assessment is necessary.
- Published guidance, by a statutory authority, specifically related to free range poultry (how dissimilar are chickens to pheasant and red-legged partridge?) requires a mandatory detailed assessment if the land parcel is located within 250 m of a protected site; or if between 250 m and 5 km, potentially a detailed assessment if, in the instance of ammonia deposition, a threshold of 1 % is exceeded (based on an initial assessment). See Section 3 of the GN 20 Guidance document for details.
In my opinion, reliance on a GL and for it to be applicable solely within a buffer of 500 m could prove problematic when statutory guidance advises a requirement to screen sites within up to 5 km. Further, there is a wider debate on the regulation of agricultural ammonia emissions (see Anker et al., 2019), which I believe gamebird management may be included.
Writing this blog has been a useful reminder to me that Appropriate Assessment is not straightforward and requires considered thought and an eye for detail. I am not saying that releasing many thousands (or tens of thousands) of birds in a discrete location will always definitely have an adverse significant effect on all European Protected Sites. But equally, I don’t think it is reasonable to conclude that they always don’t, or that any effects are absolutely restricted to within a 500 m buffer. The Appropriate Assessment process is not an arcane piece of legislation; nor is it there to frustrate plans or projects, providing an obstacle course for practitioners to navigate for the sake of it. In my opinion, it is there to ensure that the detail is looked at, a closer scrutiny is undertaken when our most important greenspaces’ integrity are potentially threatened so as to ensure that when the competent authority grants permission for an activity, it does so with reasoned certainty and a high level of confidence.
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