The Biodiversity Duty
The Natural Environment and Rural Communities (NERC) Act 2006, The Environment Wales Act 2016, The Nature Conservation (Scotland) Act 2004, and the Wildlife and Natural Environment Act (Northern Ireland) 2011 each place a duty on every public authority to consider biodiversity. This duty is designed to encourage effective management of biodiversity in the wider environment and extends from internationally protected sites and species to sites and species of local importance. In essence, the duty places an obligation on public authorities, including local authorities, to help halt the loss of biodiversity within their jurisdiction, and where possible, enhance it. The duty varies slightly (and significantly) across the devolved administrations but, in all cases, includes habitats and species outside sites designated for their nature conservation importance. It is not stated explicitly in the legislation but it is reasonable to expect that, in discharging the duty, the local planning authority would have particular regard to the habitats and species of principal importance for the conservation of biodiversity (also known as priority habitats and species) as described in Chapter 6.
Priority habitats and species on development sites
As set out in Chapter 6, priority habitats and priority species lists are published by each of the devolved administrations and separately by local planning authorities (LPAs), as part of Local Biodiversity Action Plans. The purpose of the lists is to promote the conservation of these habitats and species. This includes making effective use of the planning system for this purpose. Priority habitats and priority species are not always strictly protected under UK wildlife laws. However, they can be sensitive to development and both national and local priority species and habitats are capable of being a material consideration when determining planning applications. Furthermore, local development plans may have policies that refer specifically to the national and local priority species and habitat lists. This means that planning authorities should give appropriate consideration to priority species and habitats when determining planning applications. A commitment to conserving wildlife can be shown by taking priority species and habitats into consideration when planning the layout and timing of a development. By avoiding negative impacts, at the outset, it is not only wildlife that benefits. Time and money is saved by planning for wildlife early in the development process and there is also the opportunity to create good publicity by actively demonstrating commitment to conservation and protecting priority species and habitats. There may be a role to be played in helping LPAs to achieve their biodiversity targets by incorporating habitat creation and enhancement into development proposals.
The local planning authority should take into account any priority habitats that could be potentially affected during the development process. Where a priority habitat may be present on a proposed development site, a biodiversity survey may be needed. If such habitats are present, the mitigation hierarchy should be applied. This means that significant adverse impact on these habitats should be avoided and, if this is not possible, measures which reduce any such negative impact should be explored. Failing that, losses of such habitats should be compensated for as part of the development proposals.
The National Planning Policy Framework makes clear that Local plans in England should include policies to promote the preservation, restoration and re-creation of priority habitats. The extent to which priority habitats receive protection through such policies could therefore vary from plan to plan. At the moment, specific policies dealing with priority habitats are absent from many of them, perhaps because they predate the NPPF.
Both Planning Policy Wales and TAN5 make reference to consideration of biodiversity when determining planning applications and indicate that priority habitats are of higher status than others. For example, TAN5 states that local authorities should “protect wildlife and natural features in the wider environment, with appropriate weight attached to priority habitats ……”. These documents still make reference to the now-defunct UKBAP, but it can assumed that such references are synonymous with habitats listed in Section 7 of the Environment Wales Act.
There are no specific policies in either Scottish Planning Policy or PAN60 on the consideration that should be given to priority habitats when determining planning applications.
The (Draft) Strategic Planning Policy Statement for Northern Ireland (2015) makes specific reference to priority habitats. This states that “Planning permission should only be granted for a development proposal which is not likely to result in the unacceptable adverse impact on, or damage to known priority habitats”. However, there is an exception, which is when the benefits of the development outweigh the value of the habitat. In this case, compensatory habitat creation would be required.
The general process for priority species is the much the same as it is for priority habitats. If such species are found on development sites and their habitat is to be damaged or lost, it may be necessary to provide alternative, replacement habitats elsewhere.
The National Planning Policy Framework states that local plans should include policies which promote the protection and recovery of priority species populations. As for priority habitats, many local plans do not include such policies yet.
Both Planning Policy Wales and TAN5 indicate that priority species should be considered by local authorities when producing local plans and determining planning applications.
Scottish Planning Policy and PAN60 do not include specific policy protection for priority species.
The (Draft) Strategic Planning Policy Statement for Northern Ireland (2015) provides the same policy protection for priority species as it does for priority habitats. It is the strongest policy protection for priority species found at in any of the devolved administrations. It is, however, still draft policy.
There is no equivalent of the legal biodiversity duty in the Republic of Ireland and, whilst priority species and habitats have been identified, there is little consideration of these in planning policy.