A meeting in Westminster of the All Party Parliamentary Group on Biodiversity (APPG) in September 2014 concluded that the lack of ecological capacity in our local authorities as not only a major threat to biodiversity loss, it also opens our Local Planning Authorities (LPAs) to significant reputational risk and the likelihood of criminal prosecution.
Ecological expertise is required in many areas of local government activity, not the least for the assessment of planning and development applications. However many authorities have cut back on their environmental teams while trying to protect more visible ‘front-line services’ such as education, child protection and waste management. However this is not only has serious consequences for the natural environment it is also leading to confusion and delay in the planning system. This means unnecessary expenses and risks for developers and increased suspicion and mistrust in parts of the community. All of this also places both the LPAs and Developers at risk of breaching their statutory obligations and opening them up for criminal prosecution under both UK and European environmental laws.
Mike Oxford for the Association of Local Government Ecologists reported that… ‘It is quite clear that many (most) LPAs do not scrutinize applications in the way that they should if they are to comply with statutory duties and planning policies for biodiversity’. He highlighted a recent survey of LPA planners and ecologists that confirmed that more than 70% of Planning Officers were unable to adequately understand research methodologies for assessing biodiversity. Neither did they have a significant understanding of the legal duties and policies around biodiversity protection. They were not able to understand whether actions set out in environmental assessments would deliver stated outcomes through the proposed measures for management, avoidance, mitigation or offsetting were capable of being secured through appropriate planning conditions, statutory obligations or licenses. They could not assess whether any material considerations that might require changes to applications had been properly identified.
However, because of the dearth of Ecologists within the planning system, many LPA planners only have access to ecological advice through contracted services which were often questionable both in terms of the standard of expertise and in regard to their objectivity as these contractors are often also providing services to developers or alternatively from within environmental NGOs. As a result of these circumstances the likelihood of damage to biodiversity is high as is the likelihood of failing to deliver UK biodiversity policy. There are also significant reputational risks because of the increased likelihood of referrals to the Local Government Ombudsman, of expensive legal challenges of the Local Authorities through the Courts, of potential criminal prosecution and of EU Infraction proceedings. Moreover the lack of appropriate ecological expertise often leads to time-consuming and nonconstructive effort for already hard-pressed staff in planning offices and increased likelihood that passed, but inadequate, planning applications will result in developers also being prosecuted by the police.
While the risks to biodiversity through failure to assess the impact of development plans and to adequately monitor them is relatively obvious, Penny Simpson of Freeths LLP also highlighted how many other Local Authority activities impact on biodiversity across areas of their work such as their management of local parks, buildings and facilities. In these areas they have limited support from the Environment Agency and Natural England but are still liable if they failed to comply with their disparate legal obligations including those of the NERC Act 2006 which states that… Every public authority must in exercising its functions having regard …to the purpose of conserving [includes restoring / enhancing] biodiversity. In this respect John Harrison, former Head of Environment of Shropshire Council highlighted the false economy of ‘outsourcing ecological capacity so that it was effectively unavailable to all council services or to help maintain the links between the authorities and the relevant agencies and communities.
The APPG concluded that Government needed to urgently address these issues to ensure confidence in the context of its National Planning Policy Framework and ensure that LPAs could fulfill their statutory and policy obligations for biodiversity protection. The APPG has prepared for the Department of Communities and Local Government and for Defra a series of recommendations which would help ensure the right quantity and quality of ecological expertise to LPAs. Higher quality ecological advice to the LPAs would help protect biodiversity and, equally significantly, ensure wider benefits including economic ones by speeding up the planning process and by better joining up environmental planning contributions across the activities of Local authorities. This would help authorities meet their wider objectives and obligations while creating more certainty and confidence in the planning process for all parties including developers.
[If you are interested in the work of the All Party Parliamentary Group on Biodiversity and would like to know more about its activities you can contact its secretary Andrew Callender at email@example.com.]