M&S used to be the bellwether of the retail sector but its proposed demolition and redevelopment of its 456 – 472 Oxford Street store, in preference to refurbishment and extension, is as likely to be a bellwether of decision makers’ approach to carbon efficiency and in particular to justifying the loss of embodied carbon.
Siri, give me a definition of embodied carbon:
“Embodied carbon means all the CO2 emitted in producing materials. It’s estimated from the energy used to extract and transport raw materials as well as emissions from manufacturing processes.
The embodied carbon of a building can include all the emissions from the construction materials, the building process, all the fixtures and fittings inside as well as from deconstructing and disposing of it at the end of its lifetime.” (UCL engineering faculty).
Plainly, maximising the carbon efficiency of new development should be a significant material consideration in the determination of planning applications. But it’s not easy. How, for instance, to weigh longer term operational carbon savings against the one-off carbon costs associated with demolition and rebuild? And how much weight is to be given to carbon saving in the planning process as against other considerations?
You can look in vain for any specific guidance in the National Planning Policy Framework. The “planning for climate change” section (paragraphs 153 to 158) is of course woefully out of date, with an update promised mañana. Climate crisis what crisis?
Even so, the issue was raised by the Secretary of State when he dismissed the Tulip appeal (11th November 2021): “Although considerable efforts have been made to adopt all available sustainability techniques to make the construction and operation of the scheme as sustainable as possible” the result would still amount to “a scheme with very high embodied energy and an unsustainable whole life-cycle.” The Secretary of State also agreed with the Inspector: “that the extensive measures that would be taken to minimise carbon emissions during construction would not outweigh the highly unsustainable concept of using vast quantities of reinforced concrete for the foundations and lift shaft to transport visitors to as high a level as possible to enjoy a view.”
Notwithstanding the lack of national policy guidance, the London Plan does have a policy hook, Policy SI 2:
I want to scoot through the sequence of events so far in relation to the M&S proposal.
Its application for planning permission was submitted to Westminster City Council on 2 July 2021, proposing the demolition of the three buildings that comprise its 456 – 472 Oxford Street store, to make way for a comprehensive redevelopment to provide a building comprising two basement levels, ground and nine upper floors. The proposal would provide an office and retail led mixed use development. The oldest of the buildings, Orchard House, dates from the 1930s. Two comprise basement plus six storeys and one being basement plus seven storeys. Given the changing retail economy, the need for substantial changes to buildings such as this is of course no surprise. The scheme is by architects Philbrow & Partners.
Fred Philbrow stresses the lower lifetime carbon emissions that will arise from the new building, rather than a retrofit:
“It’s not always right to refurbish” old structures, Pilbrow told Dezeen, claiming that the contentious project is akin to trading in a gas guzzler for a Tesla.
“I would liken this to a discussion about a not-very-well-performing diesel car from the 1970s,” he said. “And what we’re trying to do is replace it with a Tesla.“
“In the short term, the diesel car has got less embodied carbon,” he added. “But very quickly, within between nine and 16 years, we will be ahead on carbon because our Tesla will perform better.” (Dezeen, 17 December 2021).
The application was resolved to be approved by Westminster City Council on 23 November 2021, despite last minute objections from Save Britain’s Heritage and others. The report says this on carbon:
“The applicant has submitted a Whole Life-Cycle Carbon Assessment (WLCA) prepared by Arup, as required by Policy SI2 of the London Plan and City Plan Policy 36.
The WLCA includes a comparative assessment of the whole life carbon emissions of a ‘light touch’ refurbishment versus new build development options. The report sets out that refurbishment option has the lowest embodied carbon impact initially because minimal works (and materials) are required. However, this increases over time due to the required maintenance and poor operational performance of the existing buildings.
The assessment concludes that the new build option is the most efficient scenario, especially through the implementation of the low-carbon opportunities recommended in the report. Whilst it has a higher initial embodied carbon than the refurbishment option as it needs to be built (with a high carbon expenditure) – over its operational lifetime it will require much less maintenance than the refurbishment option and be a more efficient building, providing a betterment from years 15/16.
The GLA in their stage 1 response requested the applicant to complete the GLA’s WLCA assessment template. This has been submitted to the GLA and an update on this position with regard to London Plan policy S12 will be reported verbally at the Committee meeting.”
The resolution was subject to referral to the Mayor of London and completion of a section 106 agreement, including an index linked carbon offset payment of £1,198,134 payable prior to the commencement of development.
On the same day as Westminster’s resolution to grant, Historic England turned down a request by objectors that the building be listed.
The Mayor confirmed on 7 March 2022 that he was not going to intervene. However, Save Britain’s Heritage complained that he had not taken into account representations that they had made, including a report they had commissioned from Simon Sturgis Why a Comprehensive Retrofit Is more Carbon Efficient than the Proposed New Build. Simon had previously advised the Mayor on his emerging carbon policies. [NB see Simon Sturgis’ subsequent comments on this blog post at the foot of the page]
Unusually, the Mayor then decided he was going to reconsider the issue:
“A spokesperson for the Mayor of London, said: ‘In line with London Plan policy on Whole Life Carbon, the question of retention and refurbishment or demolition and new build was considered in the GLA’s assessment of this application, and based on officer advice that there was no sound planning reason to intervene, on 7 March the Mayor made the decision to allow Westminster to determine the application.
‘However, City of Westminster is yet to issue its planning decision, and the GLA has now published its planning guidance on Whole Life Carbon and Circular Economy. In light of this situation GLA officers consider it would be prudent to consider a further Stage 2 report, which would also allow consideration of the detailed report by Simon Sturgis examining the carbon emissions impacts of the proposed demolition. An updated Stage 2 report will be presented for consideration at the Mayor’s meeting on Monday 4 April.’” (Architects Journal, 1 April 2022).
However, his decision on 4 April 2022 was the same – no intervention. The stage 2 report and addendum report are available here.
Given the assessment that the Mayor will have made as against his own policies, more up to date and stringent than those of the Government, it is perhaps disappointing for those who believe in devolved decision making then to read that Michael Gove has, presumably in response to further representations (see eg Save Britain’s Heritage’s letter dated 20 April 2022) issued a holding direction preventing Westminster City Council from issuing planning permission until he has decided whether to call it in. The holding direction, under Article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2015, is only a precautionary procedural step to buy time and doesn’t at all mean that the Secretary of State is definitely going to call the application in, just that he is considering whether to do that. Indeed holding directions are not particularly unusual in relation to controversial proposals where the Secretary of State has received requests from objectors for him to use his call in powers. seeking call in. But frankly it’s anybody’s guess what will now happen.
The planning system is certainly curious in its inconsistencies. What about the “demolish and rebuild” permitted development rights for some categories of building, introduced in August 2020? Or that demolition of itself does not usually require formal planning permission?
⁃ climate change considerations should increasingly be central to planning decision making
⁃ but it’s no use the Government reacting in an ad hoc way to specific proposals – up to date, practical, guidance is needed to manage everyone’s expectations – a lengthy call in inquiry is in no-one’s interests
⁃ it shouldn’t be about the easy headlines and twitter pile-ons, but about robust detailed calculations.
⁃ watch how heritage campaign groups continue to accentuate the embodied carbon issue: embodied carbon vs operational savings via more efficient buildings is going to be a constant battleground.
Current events underline why we must never forget the Holocaust. When it comes to what is now happening in Ukraine at least there is more that we could be doing NOW both for the victims and to seek to bring this dreadful intentional slaughter of innocents to an end.
It is utterly frustrating that the planning permission granted for the construction of the United Kingdom Holocaust Memorial and Learning Centre in Victoria Tower Gardens, next to the Houses of Parliament, has been now quashed due to the failure of the decision maker, and indeed every major participant in the application process, to consider the implications of a local Act of Parliament affecting the gardens, the London County Council (Improvements) Act 1900. For this is the outcome of London Historic Gardens Trust v Minister of State for Housing (Thornton J, 8 April 2022). The court has also published this summary.
The judgment repays reading not just on this point but on the issue which often arises in cases involving heritage aspects – what is the threshold for “substantial harm” as defined in the NPPF?
First, the background…
The Government set up the Holocaust Commission in January 2014 “to examine what more should be done in Britain to ensure that the memory of the Holocaust is preserved and that the lessons it teaches are never forgotten.”
The Commission carried out a consultation process and recommended in January 2015 that a monument be established, vitally with an accompanying learning centre:
“there should be a striking new memorial to serve as the focal point for national commemoration of the Holocaust. It should be prominently located in Central London to attract the largest possible number of visitors and to make a bold statement about the importance Britain places on preserving the memory of the Holocaust.”
The UK Holocaust Memorial Foundation was created and the then prime minster announced on 27 January 2016 that Victoria Tower Gardens would be the location.
As summarised by the judge:
“Victoria Tower Gardens has considerable cultural, historical and heritage significance. It is located on the north bank of the River Thames immediately south of and adjacent to the Palace of Westminster and Black Rod Garden. It is a Grade II Registered Park and Garden. It contains within it three listed structures; the statue of Emmeline Pankhurst (Grade II listed), the statue of the Burghers of Calais (Grade I listed) and the Buxton Memorial Fountain (Grade II* listed). The site has contained a garden for public recreation since approximately 1880.”
Unusually, Secretary of State made the application for planning permission, in January 2019 (this would have been the late James Brokenshire).
The proposals have always been surprisingly controversial. When Westminster City Council delayed in determining the application, rather than being appealed on the basis of non-determination, the Application was procured to be called in but due to the Secretary of State clearly being “off side”, handling arrangements were arrived at (after previous litigation by the London Historic Parks and Gardens Trust) that resulted in the minister of state for housing being the decision maker.
The proposals were approved on 29 July 2021 after a long inquiry.
The decision was challenged by the Trust on what became three grounds when the case came to a full hearing before Thornton J. The grounds before her were as follows:
“Ground 1: Harm to heritage assets
The Planning Inspector and Minister applied the wrong legal test to the issue of whether there will be ‘substantial harm’ to the heritage assets within the Gardens. The correct application of the test would have led inevitably to the conclusion that the harm to the significance of the Buxton Memorial was substantial and which would have led in turn to a very different test for the acceptability of the proposal.”
“Ground 3: The London County Council (Improvements) Act, 1900”
“Ground 4: error of law in relation to alternative sites
The Inspector erred in law in considering that in order to attract significant weight, the merits of any alternatives must be underpinned by a good measure of evidence demonstrating their viability and credibility as such an alternative.”
The issues arising were as follows:
“1) Did the inspector err in his assessment of harm to the historic environment of the Gardens; in particular the setting of the Buxton Memorial?
2) Does the London County Council (Improvements) Act 1900 impose a statutory prohibition on locating the Memorial in the Gardens?
3) Did the inspector err in his treatment of alternative sites for the Memorial?”
That 1900 Act ground had been considered unarguable at permission stage in the proceedings but the renewed application for permission on that ground had been allowed by Thornton J to be dealt with on a rolled-up basis as part of the main hearing. The twists and turns of litigation never fail to amaze. This proved to be the decisive issue in the whole case. As indicated by the judge:
“In his application to renew, Mr Drabble focussed on section 8(1) of the 1900 Act rather than section 8(8) which had been the focus of submissions before the Permission Judge. As refined by Mr Drabble, the ground is arguable, and I grant permission. Given the refinements to the Trust’s case as developed during oral submissions at the hearing, including the production of the Local Law (Greater London Council and Inner London Borough) Order 1965, I considered it appropriate (and of assistance to the Court) to allow the parties the opportunity to make short written submissions after the hearing.”
So what was this killer point?
By way of brief interjection, the outcome hasn’t gone down well with one previous Secretary of State at least:
Section 8(1) reads as follows:
“(1) “The lands lying to the eastward of the new street described in this Act as consisting in part of widenings of Abingdon Street and Millbank Street which is in this section called “the new street” and between the said street and the new embankment wall shall be laid out and maintained in manner herein-after provided for use as a garden open to the public and as an integral part of the existing Victoria Tower Garden subject to such byelaws and regulations as the Commissioners of Works may determine”
The judge’s interpretation:
“On its ordinary and natural meaning, Section 8(1) of the 1900 Act imposes an enduring obligation to lay out and retain the new garden land for use as a public garden and integral part of the existing Victoria Tower Gardens. It is not an obligation which was spent once the Gardens had been laid out so that the land could be turned over to some other use or be developed or built upon at some point after it had been laid out whenever it suited those subject to the obligation”
Her conclusion was reinforced by detailed consideration of pre-legislative material leading up to the 1900 Act.
Did this restriction on use of the gardens matter, being separate from planning legislation? In her view, yes:
“the 1900 Act is a material consideration because of the impediment it presents to delivery of the Memorial in Victoria Tower Gardens and the importance attached by the Inspector to the delivery of the Memorial in the lifetime of Holocaust survivors.”
So the case succeeded on ground 3, and also partly therefore on ground 4:
“I have concluded in relation to Ground 3 that, section 8 of the 1900 Act imposes an enduring statutory obligation to maintain Victoria Tower Gardens as a public garden, This is a material consideration in the context of the Inspector’s emphasis on the importance of the need to deliver the scheme within the lifetime of the Holocaust survivors. The Inspector considered the question of alternative sites and the implications of their deliverability without assessment of the deliverability of the location in Victoria Tower Gardens in the context of the issues now presented by the Court’s construction of the 1900 Act. In the circumstances, as a consequence, to this extent, Ground 4 succeeds.”
What of ground 1, whether the correct test of “substantial harm” was used? I’m going to pass the keyboard to my Town Legal colleague Tom Brooks to explain:
“Ground One sought to challenge the primacy of that long favoured quote of heritage consultants seeking to duck the NPPF test of substantial harm, from Bedford BC v Secretary of State for Communities and Local Government (High Court, 2012), paras 24-25:
“for harm to be substantial, the impact on significance was required to be serious such that very much, if not all, of the significance was drained away […] an impact which would have such a serious impact on the significance of the asset that its significance was either vitiated altogether or very much reduced.”
In arguing that there was no substantial harm to the Grade II* listed Buxton Memorial at the inquiry, the Secretary of State (as applicant) had relied on this definition from Bedford. In making the same argument, Westminster City Council had preferred the Planning Practice Guidance definition that substantial harm “seriously affects a key element of special architectural or historic interest”.
The ground of challenge put to Thornton J, that the inspector had erred by adopting the Bedford test, failed.
Thornton J found that the references to Bedford in the inspector’s heritage analysis “are no more than the Inspector confirming, or cross checking his analysis, conducted by reference to his view of the test as the ‘serious degree of harm to the asset’s significance’, by reference to the case advanced before him […] This is unimpeachable” (para 46)
The inspector’s approach was thus “entirely consistent” with the approach to the NPPF test that had been stipulated in City & County Bramshill Limited v Secretary of State (Court of Appeal, 2021), summarised by Thornton J as follows:
“The question whether there will be substantial harm to a heritage asset is a matter of fact and planning judgment and will depend on the circumstances. The NPPF does not direct the decision maker to adopt any specific approach to identifying harm or gauging its extent beyond a finding of substantial or less than substantial harm.” (para 47)
The judgment helpfully and eloquently goes on to put to bed the use of Bedford as a test of substantial harm.
The references to the draining away and vitiating of significance are simply Jay J’s “encapsulation of the Inspector’s application of the test of substantial harm” (para 51) in that specific case, and nothing more.
“[The Bedford] judgment does not import a test of ‘draining away’ to the test of substantial harm […] a word like ‘substantial’ in the NPPF means what it says and any attempt to impose a gloss on the meaning of the term has no justification in the context of the NPPF. […] It is not appropriate to treat comments made by a Judge assessing the reasoning of an individual decision maker, when applying the test of ‘substantial harm’ to the circumstances before him/her, as creating a gloss or additional meaning to the test.” (para 53)
Cue hasty edits to heritage impact assessment methodologies across the land.”
Thanks Tom. Now it’s back with me, just to say that this week’s clubhouse session will be at 5pm on Wednesday 13 April 2022 and we will be examining the government’s Energy Security Strategy, with Ben Lewis (Barton Willmore), Rachel Ness (Clearstone Energy), David Hardy (Squire Patton Boggs) and my Town Legal colleagues Duncan Field and Nikita Sellers. Join us here.
Undoubtedly, the environmental protection and assessment system that has developed pursuant to European Union Directives and caselaw of the European Court of Justice is ripe for review now that we are no longer in the EU. It is complicated, uncertain and its tests can lead to wide repercussions, as we have seen with the “neutralities” issues the subject of Natural England’s advice. It was no surprise that the Government has been trumpeting for years (literally years) the opportunity to review the system post Brexit.
This was Environment minister George Eustice in his 20 July 2020 speech on environmental recovery:
“Later this autumn we will be launching a new consultation on changing our approach to environmental assessment and mitigation in the planning system. If we can front-load ecological considerations in the planning development process, we can protect more of what is precious.
We can set out which habitats and species will always be off-limit, so everyone knows where they stand. And we can add to that list where we want better protection for species that are characteristic of our country and critical to our ecosystems that the EU has sometimes overlooked– things like water voles, red squirrels, adders and pine martens. We want everyone to be able to access an accurate, centralised body of data on species populations so that taking nature into account is the first, speedy step to an application.”
“Later this Autumn”, my foot!! Only last month was the Nature Recovery Green Paper finally published, for consultation from 16 March to 11 May 2022. This was finally the opportunity to grasp the nettle.
I have read the paper several times now, together with the summary of findings of the HRA review working group comprising DEFRA ministers Lord Benyon and Rebecca Pow, Tony Juniper (Natural England chair) and Christopher Katkowski QC that was published alongside the green paper. I’m afraid I do not see any nettles grasped but rather far too much about how to assimilate the nomenclature and classification of EU designations (special areas of conservation and special protection areas) into our domestic regime and general aspirations for a system that is simpler and clearer without any ideas as to how to make it, in practice, simpler or more clear. How do we actually address these nutrient neutrality issues for instance and avoid any more applications via Natural England advice of an emergency hand-brake on the operation of the planning system?
I make the point forcefully because there is a risk that we all see this as complicated, long-term, expert-driven and ultimately one for the academics and planoraks, whereas it is vital stuff if we are to achieve a functioning planning system alongside a system of environmental protection and recovery that is fit for purpose (or at least as good as the EU system of which we are no longer part).
My Town Legal colleague Stephanie Bruce-Smith has summarised chapter 3 of the green paper in a piece which I set out at the foot of this post without amendment – and for which I take the responsibility (but not the credit). Chapter 3 is the meat of the proposals and Stephanie’s piece, which I think is great and I hope you do too, will give you a good sense of the Government’s thinking.
We are going to be discussing the green paper in a clubhouse session this week – at a changed time and date so please mark it in your calendars – 5.30 to 6.45 pm on Monday 4 April. Our main speakers will be Victoria Hutton (39 Essex chambers) (who has published this great summary on LinkedIn), Andrew Baker (Baker Consultants) and Stephanie Bruce-Smith (Town Legal). Event details here.
Simon Ricketts, 2 April 2022
Personal views, et cetera
Nature recovery green paper: protected sites and species
On 16 March 2022 DEFRA published its Nature Recovery green paper. The green paper opens by identifying two main problems. The first is the degradation and/or loss in habitats and species over the last 50 years. This problem is cited as a key reason for a renewed emphasis on nature’s recovery, rather than conservation, which has hitherto been the focus of nature protection regimes. The second problem identified is the complexity of the existing environmental regulatory landscape for protected sites and species. It references the overlapping site designations as a significant issue, noting how over 80% of Sites of Special Scientific Interest (SSSIs) by area are also designated as Special Areas of Conservation (SACs) and Special Protection Areas (SPAs). This overlap is said to be problematic in two main ways:
(i) It distracts from the ability to focus resources strategically or holistically on actions on-site and pressures off site in a way that best delivers for nature, and
(ii) Very few members of the public are likely to know what these terms mean, or why these sites are worth protecting, which is crucial to public engagement with and support for this work.
There is therefore a wish to “simplify and streamline environmental regulation, with a focus on delivering legally binding targets now enshrined in the Environment Act”. The paper also includes two further aims: moving towards a system where scientific judgment has a greater role (“rather than action being led solely by legal process”); and greater flexibility and accountability given to those delivering policy on the ground, to enable a more joined up response to the specific circumstances of particular sites and areas. In summary, the five main aims of the reform are:
1. Renewed emphasis on, and designation for, nature’s recovery;
2. Simplification and streamlining of environmental regulations;
3. Delivery of environmental targets or outcomes;
4. A greater role for scientific judgement; and
5. Increased flexibility and site-specific policy delivery.
The green paper builds on the findings of the Habitats Regulations Assessment Review Working Group and focuses on several “remaining” areas where DEFRA believes change is required to meet the UK’s nature recovery ambition, i.e. areas not covered by the Environment Act 2021, the Fisheries Act 2020, the Agriculture Act 2020, the Sustainable Farming Incentive and the Local Nature Recovery and Landscape Recovery schemes. By far the most detailed chapter is Chapter 3, the proposals for protecting wildlife sites on land and at sea, which is the focus of this note. Chapters 4-6 will be dealt with in a separate note.
Protected sites: a primer
To understand why there is a significant overlap between protected sites, as correctly identified in the Green Paper, and why this might be problematic, it is useful to consider the various nature conservation regimes in place in the UK, their scope and their purpose. This section will therefore provide a brief overview of the patchwork of regimes that govern this area.
Sites of Special Scientific Interest (“SSSIs”) as their name suggests, have roots in the post-war idea that nature had a “scientific” value. Under section 28 of the Wildlife and Conservation Act 1981, Natural England may designate (notify) a site as being of special interest by reason of any of its flora, fauna, geological or physiographical features. A notification by Natural England specifies the features by reason of which the land is of special interest and any operations Natural England believe are likely to damage those features.
The practical implications of a SSSI notification are that if an owner or occupier wishes to carry out an operation considered likely to damage the features, prior consent is required from Natural England, unless the operation is carried out in accordance with a management agreement or management scheme.
Special Areas of Conservation (“SACs”) and Special Protection Areas (“SPAs”) are designations deriving from two EU Directives: the Habitats Directive and the Birds Directive. The designation of sites under the two directives differs. The basis of designation of a SPA is scientific: it must be ornithological criteria alone set out in the Birds Directive (e.g. 1% of the population of listed vulnerable species). By contrast, for SACs, Member States must make a selection of proposed areas according to scientific criteria listed in Annex III of the Habitats Directive, to ensure that specific habitat types and habitats of certain protected species are maintained. Based on these proposals, scientific seminars are convened for each biogeographical region and a list of Sites of Community Importance (SCIs) are ultimately adopted. Member States must designate those areas of Special Areas of Conservation (SACs) within six years.
The main implication of such a designation it requires an assessment (known in the UK as a Habitats Regulations Assessment or “HRA”) to take place before any potentially damaging activity can take place. If the HRA concludes that the impact is likely to adversely affect the integrity of the site, the only way in which development may occur on such a site is where there are imperative reasons of overriding public interest (IROPI). Where these are present, the competent authority will also decide what potential compensatory measures are needed to maintain the overall coherence of the site.
The question of whether such an impact requires a HRA and whether it meets the test, is a question for the decision-maker. As set out in the green paper, the HRA process “aims to inform decision-making regarding the protection of conservation areas of international importance from any harm that may arise from activities or development” – it is not intended to be prescriptive about what can or cannot be built, or deliver any set conservation outcomes.
Pausing there, it is possible to see why there is frequently (if not nearly always) an overlap between SSSIs, SACs and SPAs. It is likely that a site of special interest for reason of its fauna (and thus designated a SSSI), would also be a European protected site for the habitat it provides for such fauna (requiring a SAC designation) – and potentially even fall under a migration path for certain birds and protected for that reason too (SPA). However, not only do these regimes protect different things (site of special interest, habitats, birds) but also SSSIs and the EU regimes offer different forms of protection. For SSSIs, Natural England must grant prior consent for any specified operation whereas for SACs, and SPAs, any “plan or project” may trigger the need to carry out a HRA.
Marine Conservation Zones (“MCZs”) and a network of marine conservation sites were created under the Marine and Coastal Access Act 2009. Ramsar sites are wetlands of international importance, designated under the Convention on Wetlands of International Importance (Ramsar convention), of which the UK is a signatory.
Given its breadth, SACs, SPAs and Ramsar sites can easily be designated SSSIs and indeed almost all (if not all) land-based SACs and SPAs are also SSSIs. In contrast to National Nature Reserves (NNRs), SSSIs are often on private land.
Protecting wildlife sites – on land and at sea
There are two main limbs to the Government’s proposals for reform in this area: (a) consolidation and (b) promotion of scientific judgment.
The section opens with the statement that “the Government is interested in consolidating the protected sites we have into a simpler legal structure to deliver better environmental outcomes which are based on the best available science and evidence”. It highlights in particular the “disconnect between the historical purposes for which different types of sites were designated and our ambition to halt biodiversity loss by 2030 and protect 30% of our land and seas”. Accordingly, “a more ecologically coherent but less complex network of sites with a clear purpose could offer multiple benefits and ensure the network better addresses both nature recovery and climate change”.
These statements raise a number of questions which remain unanswered throughout the paper. Is case that the existing network of sites are not “ecologically coherent” or fail to be based on science? And whilst it may be the case that the historical purpose of SSSIs is not solely concerned with biodiversity or habitats (as we see above, it is much wider), it is difficult to see how designations such as SACs, MCZs and Ramsar sites are concerned with anything other than biodiversity loss. And as for the goal of protecting 30% of land and seas, one might legitimately ask why the goal of increasing the amount of land protected in the UK requires overhauling and redefining protected sites – unless, of course, this might make the goal easier to achieve by making it easier to categorise sites as “protected”.
Turning to the proposals, these fall under three main types (although the green paper splits them into five headings): (1) protected sites reform/consolidation (2) reform/consolidation of the designation procedure for such sites and (3) introduction of new nature recovery sites.
(1) Protected sites reform
The paper identifies three options for reform of terrestrial sites, all with the aim of better enabling “nature’s recovery through a less prescriptive system which allows the right actions to be taken in the right places” (unfortunately, the paper does not elaborate on the precise ways in which it believes the current system to be over-prescriptive, or what the “right actions” are that need to be taken are but cannot currently be taken in the existing system).
Option 1 is a tiered approach, which proposes to replace the existing regimes with ‘highly protected’ sites (applying only to a limited number of sites of the highest international importance) and ‘protected’ sites (managed for national or international biodiversity or geodiversity importance as SSSIs, SACs and SPAs are currently). ‘Highly protected’ sites would provide stronger protection than currently applied to existing SACs and SPAs and would largely focus on protection and recovery of terrestrial ecosystems (e.g. nature reserves). The paper notes that for ‘protected’ sites, as at present, economic and other activities would need to be sustainable in relation to the conservation objectives of those sites.
Option 2 would focus on “streamlining and merging existing site designations that operate similarly (SACs, SPAs, and SSSIs)”. An example provided is to “rename” the site designations as ‘highly protected’ and ‘protected’. It suggests that the areas of existing sites network which are of international biodiversity and geodiversity importance could be designated ‘highly protected’; and that ‘protected’ could apply to the remaining areas of the sites network, which could be managed and protected in a similar way to SSSIs.
The distinction between this proposal and option 1 appears to be that option 1 would strengthen the protection for a limited number of sites, whereas option 2 appears to be just a renaming exercise. However, for option 2, it is unclear where the distinction between ‘highly protected’ and ‘protected’ will apply, since it appears to suggest that the ‘highly protected’ designation will be give to areas of the existing site network which are of ‘international and biodiversity and geodiversity importance’. Logically, this would mean all Natura 2000 sites, i.e. all SACs and SPAs – and therefore nearly all SSSIs too.
Option 3 consists of consolidating existing sites into one single type of protected site designation, which could “reflect the existing sorts of protections whilst offering an opportunity to convey the value and benefits of these sites more easily to people”. The paper notes that existing rules already identify and offer additional protection to certain priority habitats and species, where a significant portion of their natural range falls in the UK – giving blanket bogs as one such example. It also suggests exploring scalable levels of protection within one type of designation, which it suggests could (i) help support recovery through higher protection levels where needed (ii) offer scope to adapt sites more easily to climate change or (iii) enhance protections to areas of particularly significant nature value.
By contrast, for marine sites, the paper notes that despite the multiple designation types, the MPA network is “ecologically coherent”. But, given that the range of marine designation types can cause confusion, there may be benefits to consolidating designations, which could mean a single designation type (such as Option 3) or formalising the current policy approach of MPAs and HPMAs into two designation types (i.e. an approach similar to Option 1).
(2) Reform/consolidation of the designation procedure
As set out above, notification (designation) of SSSIs is the responsibility of Natural England. By contrast, final decisions for other statutory designations (such as SACs and SPAs) rests with the Secretary of State.
The paper references the risks and opportunities from climate change impacting protected sites, noting that it is likely to become increasingly difficult to accommodate this impact unless designation and management processes are adapted. To solve this issue, it proposes to have “one consistent decision-making process as part of a rationalised site protection system” with one option being for it to rest with the Secretary of State, informed by the scientific advice of its statutory advisors “in a similar way to how SACs and SPAs are currently designated”.
In short, it proposes removing Natural England’s power to designate sites, and giving this to the Secretary of State, on the basis that having two designation processes means that the risks from climate change cannot be adequately addressed. It is not entirely clear how this follows, nor is it made clear, if there has to be one designation procedure, why the Secretary of State would be better placed to do this than Natural England. For those fearing that the Secretary of State, as opposed to Natural England, might be swayed by other concerns that nature protection, the paper seems to seek to allay such fear by emphasising that at any new decision-making process will “be consistent with our existing international commitments and be fully transparent with regard to the decisions taken”.
(3) Introduction of new nature recovery sites
The final area of ‘consolidation’ relates to nature recovery sites. The paper notes that designation of protected sites has not been successful in helping sites recover to a more favourable condition and avoiding further decline. To that end, it notes the new initiatives being brought forward (Nature Recovery Network, Biodiversity Net Gain, the Nature for Climate Fund and new contracts under Conservation Covenants) but also notes how it is considering whether a new sort of designation for nature’s recovery should be explored. To that end, it seeks views on several areas including:
– Identification (strategies to identify potential ‘Nature Recovery’ sites for formal consideration, such as those set out in the government’s vision for Local Nature Recovery Strategies)
– Safeguards (how the planning system can play a role in promoting environmental recovery and long-term sustainability)
– Management (suggesting less prescriptive management measures and a holistic approach)
– 30 by 30 (whether such sites should ‘count’ towards the 30 by 30 goal)
– At sea (creative thinking about opportunities for co-location and space sharing to maximise benefits for sea users while also protecting the marine environment).
The paper also references the recent ‘rewilding’ approaches that have been developed on land, noting how, due to failing to meet established selection criteria for designation (despite their benefits for biodiversity), they are frequently not recognised for the value they can bring in making space for nature. On the other hand, it notes the concern that designation of such sites could lead to management in ways that limit or inhibit the opportunity for other species and habitats to flourish. It therefore suggests providing flexibility as to what areas could be designated and also in the requirements following such a designation.
B. Scientific Judgment in site management and protection
This second part of Chapter 3 paints a pretty dismal picture of the Habitats Directive in operation – its “interpretation has often led to high levels of legal uncertainty which can be corrosive to good governance”; “process has become king and crowded out scientific judgment on individual cases”, and whether or not a certain activity should be altered or restricted is “guided as much by concerns about possible future legal challenge over decision making, as it is by the actual impact of the activity”. Another problem identified is that “the current process lacks the tools necessary to incentivise change on the main pressures and threats affecting a site, some of which are not subject to [Habitats Regulations Assessment]”
Strong criticism indeed, and it is worth noting that the HRA Review Working Group summary of findings (found here) presents a slightly less pessimistic picture. The experts highlighted the need for greater certainty and clarity throughout the HRA process, with key points being:
– Clarification of legal terminology and processes
– A need to make existing data readily available and user friendly
– Specific site advice accessible in one place
– Basing scientific judgements on a clearer framework of evidence (screening and assessment)
– Earlier consideration of avoidance or mitigation measures
– Earlier expert engagement to increase Local Planning Authority confidence in scientific evidence
They also suggested further exploration into:
– Use of strategic mitigation solutions to secure better outcomes from the assessment process
– A more strategic approach to “environmental compensation” to support nature recovery.
On the litigation risk, again the conclusion of the working group was more muted: “whilst it is a straightforward process in some respects, the amount and type of specialist evidence required coupled with the perceived risk of legal action, creates an elevated level of caution around decision-making.”
The Green Paper notes that the UK government wants to “fundamentally change” the way assessments under the Habitats Regulations work to create clearer expectations of the required evidence base at an early stage and with a focus on addressing the threats and pressures on and off site that will make the greatest difference to the site. In addition, there is a desire to “make sure there is space of individual evidence-based judgement by an individual case officer on an individual case”.
The paper identifies seven main areas for reform.
(1) Assessment and consent
In this section, the work of the HRA working group is referenced, namely their proposal for a single reformed assessment process which complements proposals for simplified site designations, and their suggestions for clarity, certainty and a strategic approach to mitigation.
It is suggested that the single assessment would remove some of the complexities from having a number of assessment regimes on SSSIs and provide greater certainty and consistency for users. The paper goes on to say that this single assessment would be supported by “a clearer decision-making framework aimed at addressing process and data issues, including the earlier consideration of alternative ways to implement a plan or project and mitigation measures and creating more reasonable and clearer expectations of the required evidence base.” However, there is no further detail at this stage as to what this framework would look like and how it would achieve those aims.
(2) Addressing the legacy impact of dormant SSSI consents
This second heading notes the problem that many SSSIs issued in the past which permit certain activities, might, if exercised, cause damage or deterioration to protected sites. It notes that currently Natural England has only limited powers to change such consents and that these can only be modified or revoked on a case-by-case basis and that such revocation may require compensation. However, no solution is proposed to address this issue – just that it needs to be addressed. It is interesting to note, however, that in previous sections the concern has been on the need for ‘site-specific’ and ‘case-by-case’ decision-making, whereas in the case of revocation, this is seen as part of the problem.
(3) Management of protected sites
Instead of the current focus on stopping the deterioration of protected sites, the Green paper underlines the need for a “future protection process which can also support the management of the site and nature recovery”. This again represents the shift identified at the start of the paper – away from conservation or maintaining the status quo, to focusing on improvement or recovery.
The paper suggests a greater role for Site Improvement Plans (‘SIPs’) as one option which would allow problems to be approached more strategically and in a more tailored way. SIPs currently exist as a tool for identifying actions that need to be taken by public, private and voluntary bodies on protected sites to address existing pressures and threats impacting their conservation status. The green paper suggests “making the concept [of SIPs] statutory”, as a means to increase their uptake as a basis for action.
(4) The Habitats Regulations: Power to amend the general duties
A further issue identified by the paper is that the requirements of the Habits Directive and the Wild Birds Directives (with regard to which public authorities are required to exercise their nature conservation functions) are not explicitly set out. The paper identifies this issue as providing scope for differing interpretations and disagreement, and emphasises the “new” power within the Environment Act to amend the ‘general duty’ under Regulation 9 to delivery domestic and international biodiversity duty.
(5) Management at sea
As for management at sea, the key area for exploration is whether existing processes in other legislation applying to the UK can delivery improved outcomes for MPAs and better support the objective or protecting important marine habits and species, as opposed to the current requirement for a HRA under Part 6 of the Habitats Regulations (which applies out to 12 nm).
(6) Environmental Impact Assessment
Tucked away on page 19 of the green paper, this section is of particular interest as it notes that the Government is “committed” to reform of both the SEA and EIA process “to better support nature recovery”. One reason why this is particularly noteworthy is that both regimes are currently very broad, looking and impacts on “the environment” rather than just nature or habitats – so it will be interesting to see whether the reform proposes to narrow it or merely refined it in certain respects in the area of nature recovery.
It notes that the reforms “will ensure environmental protections are more relevant; and more closely monitored and enforceable with a stronger focus on delivering the outcomes we need” – in short, the revised EIA seems like it will no longer be about assessment for the purposes of informed decision-making but may set down targets or rules to deliver outcomes. An interesting approach in a paper determined to be less “prescriptive”. The paper does not state when the proposals will be brought forward.
(7) Establishing priority areas for woodland creation
The final subheading looks at afforestation projects, noting that the existing requirement for a determination under the forestry EIA regulations can be resource and time intensive. The paper proposes that the Forestry Commission undertake an Afforestation Strategic Assessment, described as a “landscape scale scoping project” assessing the relevant features likely to be affected by afforestation, with the aim of establishing preferred low risk areas for afforestation. Afforestation projects within those areas would then not require an individual EIA or equivalent impact assessment (except in “exceptional circumstances”). The aim is to “kick-start” afforestation projects and encourage locating new woodland in areas of the least risk to surrounding habitats