Nature Conservation Working Group
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UKELA
NATURE CONSERVATION WORKING GROUP
Draft minutes of meeting held on 26th March 2011
at the offices of Browne Jacobson, Nottingham
In Attendance Apologies
Penny Simpson (chair) Matthew Boyer Wyn Jones (convenor) Michael Fry Andrew Baker Paul Leonard Richard Barlow Rover McCracken Nicola French Colin Reid Tom Huggon Barry Thomas Angela Konteas Lynda Warren Paul Leonard Peter Scott
1. Introduction
Penny welcomed everyone to the meeting. Special welcome was given to Angela who has an interest in environmental law and had been invited to attend as an observer.
2. Apologies
See above.
3. Minutes of the last meeting
The minutes of the meeting held on the 15th January 2011 were approved.
4. Matters arising
4.1 Losehill Hall wildlife law course. It was emphasised that the course must continue in some form or other. A steering group is to be established comprising contributors to the course, to look at viability and options. Peter Phillipson as the course co-ordinator at Losehill, is to be contacted to ascertain status of the course with respect to the Peak Park. Wyn to contact Peter and to arrange a telephone conference meeting of the steering group.
4.2 Public Bodies Bill. Further concern was raised regarding this Bill. Wyn to ascertain UKELA’s position.
5. Appropriate assessment of plans
5.1 At the last meeting it was agreed that rather than producing guidance on the assessment of plans under the Habitats Directive a case analysis of those known situations where plans had been assessed would be undertaken. Nicola issued a proforma to members of the group which was also circulated to members of the UKELA planning working group but to date had only received one response (from Peter).
5.2 However, the proforma did stimulate very interesting and valuable information from Helen Bryon of RSPB and a member of the planning working group. She flagged up the following:
An analysis of Strategic HRAs is available at http://www.levett- therivel.co.uk/AA.htm
An international workshop on the assessment of plans was held in 2009 - see http://www.levett-therivel.co.uk/IW.htm and the
Guidelines were developed from the workshop - see http://www.levett- therivel.co.uk/AAguidelines.htm
The Europe Partners of BirdLife International have adopted a couple of position papers on Article 6(3) and 6(4) - see http://www.birdlife.org/eu/pdfs/Nature_Directives_material/BHDTF__P osition_Compensation_under_HD_6_.4_2007_07_31.pdf and
http://www.birdlife.org/eu/pdfs/2010_BHDTF_position_Alternatives_an d_IROPI_April_2010_final.pdf (These have more of a focus on project assessments.)
Broader focused positions on impact assessment http://www.birdlife.org/eu/pdfs/BHDTF%202010%20position %20Environmental%20Assessment%20in%20the%20EU.pdf,
Biodiversity offsets http://www.birdlife.org/eu/pdfs/2010_BHDTF_position_Biodiversity_off sets.pdf
Spatial planning and biodiversity http://www.birdlife.org/eu/pdfs/2010_11_BHDTF_Spatial_Planning.pdf
5.3 An EC contract has been competed on "Methods to assess the impact of plans and programmes on the Natura 2000 network function". Wyn has contacted the lead person for the contract Johan Lammerant of ARCADIS, Belgium, who informed him that the final report has been submitted to the Commission and should be published later this year. A copy will be sent to Wyn. In subsequent correspondence Johan stated that essentially Member States met their obligations through the use of caveats and conditions. However, he was not forthcoming on the issue of compensation.
5.4 In the light of the above Nicola is to review all the sources of information. It may be following analysis that little further work is necessary but to publicise the key sources of information. Nicola to review the information. 6. Progress of Bills.
6.1 Wildlife and Natural Environment (Scotland) Bill was passed on the 2nd March and is awaiting Royal Assent see http://www.scottish.parliament.uk/s3/bills/52-WildNatEnv/index.htm
6.2 Wildlife and Natural Environment (Northern Ireland) Bill. Amendments were considered on the 7th February. Note that a UKELA Northern Ireland contact for the working group has still to be identified. Action point for Wyn.
7. Wildlife link meeting
7.1 Tom attended the first meeting of the Wildlife Link legal strategy group on behalf of UKELA. It was followed by a meeting of the Environment White Paper Task force. Tom found both meetings interesting but unproductive and had recommended to the UKELA Council that UKELA should not join Link but that contact should be maintained and information exchanged. The Council agreed with this recommendation and had nominated James Taylor of Simmons and Simmons to be the UKELA contact for the strategy group. Wyn is to circulate Tom’s note of the meeting.
8. Annual conference
8.1 A paper prepared by Wyn was tabled setting out options for the conference workshop on the theme of risks and opportunities to nature conservation during the period of austerity. Following discussion it was agreed that a more focused deliberation of an issue or initiative would be more productive. The theme identified was biodiversity offsetting because it is a new concept that is being promoted by Government and commercially which has risks and opportunities as set out in the working group’s recent response to the Defra consultation. The question of potential speakers was discussed and it was agreed that Dr Tom Tew ex-chief scientist at Natural England, would be approached in the first instance. Note that Tom was subsequently contacted and has agreed to speak. Richard Barlow offered to chair the workshop if Penny cannot attend. Penny may be able to attend if the meeting is to be held on the Saturday. It was also agreed that the issues set out in the working group’s response to Defra would be briefly introduced. This will be copied and made available to those attending the workshop. Note that since the meeting the annual conference organisers have provided the option of a mid day Saturday time for the workshop. Following consultation with Penny and Tom this has been accepted. A conference call meeting will be arranged for the 4th May at 2.00pm to finalise arrangements. Action for Wyn and Richard.
8.2 It would be useful to know how many members of the working group intend to attend the conference. Please can members contact Wyn .
9. Caselaw updates
9.1 Gort to Cusheen road scheme, County Galway. The planned improvement of the N18 National Primary Route between Gort and Cusheen is adjacent to or directly affecting 5 habitat types listed in Annex 1 of the Habitats Directive, 3 of which are priority habitats. This includes loss of limestone pavement habitat. There are also a number of bat species affected and a site hosting Marsh Fritillary (all Annex II species). The County Council concluded that there was no adverse effect on the integrity of the sites affected. An environmental objector working with the Attorney General challenged the decision. Subsequently the Supreme Court has referred the case to the European Court of Justice. At a meeting with the Commission regarding the case, the authorities were informed that should the decision be upheld then infraction proceedings would commence. The European Court will be focussing in the correct interpretation of the screening and adverse effect tests.
9.2 Commission v France C-383/09. This is a case with regards to the deterioration of habitat for the Greater Hamster in the Strasbourg area. The Advocate General’s opinion 20th January is available in French. Peter has translated elements of the opinion which provides a radical interpretation of Article 12 of the Habitats Directive. This would require all necessary measures to be taken to maintain or enhance all of the relevant habitats (wider interpretation of breeding and resting sites) to secure the favourable conservation status of the species. If the decision of the Court agrees with the opinion it will have far reaching effects on the implementation of the provisions and possibly stimulate a review of the adequacy of the SAC network for species.
9.3 Farndale SSSI prosecution. Following the guilty pleas accepted by Natural England a nuisance hearing was held in early March at York Crown Court to determine the extent of the damage caused by pheasants or sheep.
9.4 Clwydian range AONB. CCW has recommended to the Wales Assembly Government that the AONB be extended.
9.5 Badger cull. The proposed cull in Dyfed authorised by the Welsh Assembly Government has been challenged by the Badger Conservation Trust.
9.6 Donna Nook, Lincolnshire. The Environment Agency is appealing the local authority’s decision to refuse permission to create compensatory habitat for flood defence works at Donna Nook. The application was refused because the proposal is contrary to existing policy that land of high agricultural value should be protected. RSPB is supporting EA in the appeal.
9.7 Atlantic Salmon. A complaint has been received by the Commission regarding the sufficiency of the UK network of SACs for the species with particular reference to North West Scotland. The complaint also raises concerns regarding the appropriate assessments undertaken for proposals to establish salmon fish farms adjacent to existing SACs in North West Scotland.
9.8 Dorset heaths. An appropriate assessment has been undertaken by Fred (Andrew) which in the light of mitigation measures, concludes no adverse effects on the site which is principally of importance for Nightjar and Dartford Warbler. The mitigation measures include restoration of the heath which has been the subject of arson and the fencing off of the development from the site thereby restricting access. The development falls foul of the policy that plans and projects should not permitted within 400 metres of the site. However, there is no scientific basis for this restriction. The restriction of access is also perceived to be contrary to CROW Act provisions.
10. Date of next meeting
10.1 The autumn meeting is normally held in London but due to the poor turn out last year it was agreed that the next meeting be held at Nottingham on the 24th September.