App/R3705/W/3149827

FH/3

Appendix to Proof of Evidence of Francis Hesketh on Ecology

Daw Mill Colliery, Tamworth Road, Arley For the Appellant, Harworth Estates

PINS ref no: APP/R3705/W/16/3149827

APPENDICES TO EVIDENCE OF FRANCIS HESKETH ON ECOLOGY. DAW MILL COLLIERY, TAMWORTH ROAD, ARLEY FOR THE APPELLANT, HARWORTH ESTATES PINS REFERENCE: APP/R3705/W/3149827

TEP Harborough Innovation Centre, Airfield Business Park, Leicester Road, Market Harborough Leicestershire LE16 7WB

Tel: 01858 383120 E-mail: [email protected] www.tep.uk.com

Offices in Warrington, Market Harborough, Gateshead, London and Cornwall

PLANNING I DESIGN I ENVIRONMENT

Appendices to Evidence of Francis Hesketh on Ecology. Daw Mill Colliery, Tamworth Road, Arley For the Appellant, Harworth Estates PINS Reference: APP/R3705/W/3149827

Document Title PINS Reference: APP/R3705/W/3149827

Prepared for Harworth Estates

Prepared by TEP - Warrington

Document Ref 5781.01.006

Author Francis Hesketh

Date January 2017

Checked Andrew Nyul

Approved Francis Hesketh

Amendment History

Check / Modified Version Date Approved Reason(s) issue Status by by

1.0 25/1/17 KM FBH Evidence Final

Appendices to Evidence of Francis Hesketh on Ecology. Daw Mill Colliery, Tamworth Road, Arley For the Appellant, Harworth Estates PINS Reference: APP/R3705/W/3149827

APPENDICES APPENDIX A: Desk-based Ecology Study (August 2016) APPENDIX B: Landscape and Biodiversity Parameter plans APPENDIX C: Restoration Plan (1996) APPENDIX D: Morge v Hampshire County Council APPENDIX E: Accounting for Biodiversity in Planning (Extracts) APPENDIX F: Phase 1 Habitat Survey (2016) APPENDIX G: UK Biodiversity Action Plan. Priority Habitats Description: Rivers APPENDIX H: Warwickshire, Coventry and Solihull Local Biodiversity Habitat Action plan: Rivers and Streams APPENDIX I: Outline Habitat Management Plan APPENDIX J: Warwickshire Biodiversity Offsetting Assessment APPENDIX K: Biodiversity Offsetting Pilots: Guidance for developers

5781.01.006 Page 4 January 2017 Version 1.0

Appendices to Evidence of Francis Hesketh on Ecology. Daw Mill Colliery, Tamworth Road, Arley For the Appellant, Harworth Estates PINS Reference: APP/R3705/W/3149827

APPENDIX A: Desk-based Ecology Study (August 2016)

5781.01.006 Appendices January 2017 Version 1.0

Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Desk Based Ecology Assessment

Daw Mill Colliery, Coventry (CV7 8HS) Approximate Central Grid Reference: SP 26038 89936

Contents

 Site location plan

 Extract of local plan

 Extracts of relevant planning policies

 Local site designations

 Local species records

 National site designations

 Habitat inventory records

 Wildlife site citations

 Bat and Barn Owl Survey Appendices (AES – Ltd, 2014)

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Site Location Plan

Approximate Central Grid Reference: SP 26038 89936

Contains Ordnance Survey data © Crown copyright and database right 2016

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Extract of North Warwickshire Borough Local Plan – Policies Map and Supporting Key (Adopted 2014)

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Extracts of relevant planning policies and supplementary planning guidance – North Warwickshire Core Strategy (Adopted 2014)

NW1 Sustainable Development

Planning applications that accord with the policies in this Core Strategy (and where relevant, with other policies in Neighbourhood Plans) will be approved without delay, unless material considerations indicate otherwise. Where there are no policies relevant to the application or relevant policies are out of date at the time of making the decision then the Council, will grant permission unless material considerations indicate otherwise - taking into account whether: 1. Any adverse impacts of the proposal would significantly and demonstrably outweigh its benefits, when assessed against the policies in the National Planning Policy Framework taken as a whole; or· 2. Specific policies in the Framework or other material consideration indicate that development should be restricted.

NW3 Green Belt

1. The outer extent of the West Midlands Green Belt in North Warwickshire is shown on the Proposals Map. 2. Areas within Development Boundaries are excluded from the Green Belt. 3. Infill boundaries in the Green Belt will be brought forward to indicate where limited infill and redevelopment would be permitted. 4. Settlements surrounded or washed over by the Green Belt will be able to pursue the Community Right to Build. Housing sites would have to be locally affordable in perpetuity. A community or other use would be required to show how it would remain in community use in perpetuity.

NW10 Development Considerations

Development should meet the needs of residents and businesses without compromising the ability of future generations to enjoy the same quality of life that the present generation aspires to. Development should: 1. Be targeted at using brownfield land in appropriate locations reflecting the settlement hierarchy; and, 2. be adaptable for future uses and take into account the needs of all users; and, 3. maintain and improve the provision of accessible local and community services, unless it can be demonstrated that they are no longer needed by the community they serve; not needed for any other community use, or that the facility is being relocated and improved to meet the needs of the new, existing and future community; and,

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

4. promote healthier lifestyles for the community to be active outside their homes and places of work; and, 5. encourage sustainable forms of transport focussing on pedestrian access and provision of bike facilities; and, 6. provide for proper vehicular access, sufficient parking and manoeuvring for vehicles in accordance with adopted standards; and, 7. expand or enhance the provision of open space and recreation facilities, including contributing to the implementation of the Green Space Strategy and Playing Pitch Strategies before proposals will be supported 8 not lead to the loss unless a site of equivalent quality and accessibility can be provided, or shown that it is surplus to needs; and, 9. avoid and address unacceptable impacts upon neighbouring amenities through overlooking, overshadowing, noise, light, fumes or other pollution; and, 10. protect and enhance the historic environment; and, 11. manage the impacts of climate change through the design and location of development, including sustainable drainage, water efficiency measures , use of trees and natural vegetation and ensuring no net loss of flood storage capacity; and, 12. protect the quality and hydrology of ground or surface water sources so as to reduce the risk of pollution and flooding, on site or elsewhere; and 13. not sterilise viable known mineral reserves; degrade soil quality or pose risk to human health and ecology from contamination or mining legacy and ensure that land is appropriately remediated, and, 14. seek to maximise opportunities to encourage re-use and recycling of waste materials, both in construction and operation.

NW12 Quality of Development

All development proposals must; • demonstrate a high quality of sustainable design that positively improve the individual settlement’s character; appearance and environmental quality of an area; • deter crime; • sustain, conserve and enhance the historic environment • provide, conserve and enhance biodiversity; and, • create linkages between green spaces and wildlife corridors. Development should protect the existing rights of way network and where possible contribute to its expansion and management.

NW13 Natural Environment

The quality, character, diversity and local distinctiveness of the natural environment will be protected and enhanced. In particular within identified landscape character areas development will conserve, enhance and where appropriate, restore landscape character as well as promote a resilient, functional landscape able to adapt to climate change. Specific

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix landscape, geo-diversity, wildlife and historic features which contribute to local character will be protected and enhanced.

NW15 Nature Conservation

Sites of Special Scientific Interest (SSSI’s) will be subject to a high degree of protection, in view of their national importance. Development adversely affecting a SSSI will only be permitted where the benefits of the development at these sites clearly outweigh the likely impacts on the site and any broader impacts on the national network of SSSI’s. Development that affects Sites of Regional and Local Importance for Nature Conservation will only be permitted where the benefits of the development outweigh the nature conservation value of the site and the contribution it makes to the Borough’s ecological network.

Development that damages habitats and features of importance for nature conservation will only be permitted where there are no reasonable alternatives to the development taking place in that location. Where appropriate, developments will be required to help enhance these features and/or secure their beneficial management. Development will be resisted where it leads to the loss of irreplaceable habitats and features, such as ancient woodland or veteran trees unless it can be demonstrated there are overriding reasons and benefits that outweigh the loss.

Development should help ensure that there is a net gain of biodiversity and geological interest by avoiding adverse impacts first then providing appropriate mitigation measures and finally seeking positive enhancements wherever possible. Where this cannot be achieved, and where the development is justified in terms of the above criteria, the Local authority will seek compensation and will consider the use of biodiversity offsetting as a means to prevent biodiversity loss. In doing so, offsets will be sought towards enhancements of the wider ecological network in the Borough or sub-region in line with local, regional and national priorities for nature conservation

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Map provided by Warwickshire Biological Records Centre of site designations within 1 km

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Extract of species data provided by Warwickshire Biological Records Centre within 1 km

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Bats

W & Habitats Habitats NERC C & & UK Act Act Species Species Map Scientific Common Grid BAP Local 2006 Sch Directive Directive IUCN Red Abbreviation Name Name Location Reference Date Source 2007 BAP S.41 5 Annex 2 Annex 4 List Bb Barbastella Western Tamworth SP256901 07/08/2014 WBRC Yes Yes Yes Yes Yes Yes Near barbastellus Barbastelle Road, Threatened Coventry Msp Myotis Myotis Tamworth SP256901 16/06/2014 WBRC Yes Yes Yes Yes Least species Road, - Concern Coventry 25/09/2014 Nsp Nyctalus Nyctalus Tamworth SP256901 16/06/2014 WBRC Yes Yes Yes Yes Least species Road, - Concern Coventry 25/09/2014 Nno Nyctalus Noctule Bat Tamworth SP256901 16/06/2014 WBRC Yes Yes Yes Yes Yes Least noctula Road, - Concern Coventry 25/09/2014 Pn Pipistrellus Nathusius's Tamworth SP256901 22/09/2014 WBRC Yes Yes Yes Yes Least nathusii Pipistrelle Road, - Concern Coventry 25/09/2014 Pp Pipistrellus Common Tamworth SP256901 16/06/2014 WBRC Yes Yes Yes Yes Least pipistrellus Pipistrelle Road, - Concern sensu stricto Coventry 25/09/2014

Ppy Pipistrellus Soprano Tamworth SP256901 16/06/2014 WBRC Yes Yes Yes Yes Yes Least pygmaeus Pipistrelle Road, - Concern Coventry 25/09/2014 Pa Plecotus Brown St SP24299098 06/10/1983 WBRC Yes Yes Yes Yes Yes Least auritus Long-eared Cuthbert's Concern Bat Church, Church End, Shustoke Pa Plecotus Brown Tamworth SP256901 04/08/2014 WBRC Yes Yes Yes Yes Yes Least auritus Long-eared Road, Concern Bat Coventry

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Amphibians and Reptiles

NERC Habitats and UK Act W & C species Map Scientific Common Grid BAP 2006 Act Directive - Abbreviation Name Name Location Reference Date Abundance Source 2007 S.41 Sch 5 Annex 5 Rt Rana Common Tamworth SP2523390429 15/04/2014 WBRC Yes Yes temporaria Frog Road, - Coventry 16/04/2014 Nn Natrix natrix Grass Tamworth SP257902 Apr-14 1 Count of WBRC Yes Yes Yes Snake Road, Individual Coventry Bb Bufo bufo Common Tamworth SP2523390429 15/04/2014 WBRC Yes Yes Yes Toad Road, - Coventry 16/04/2014 Lv Lissotriton Smooth Tamworth SP2523390429 16/05/2014 10 Count of WBRC Yes vulgaris Newt Road, - Female; 7 Count Coventry 24/05/2014 of Male Lv Lissotriton Smooth Tamworth SP2529790354 15/04/2014 WBRC Yes vulgaris Newt Road, - Coventry 16/04/2014 Lv Lissotriton Smooth Tamworth SP2531490394 20/06/2014 WBRC Yes vulgaris Newt Road, - Coventry 21/06/2014

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Birds

W & C Act Schedule 1- Amber Scientific Name Common Name Location Grid Reference Date Abundance Source Part 1 Listed

2 Count of Falco subbuteo Hobby Devitts Green SP2790 31/05/2009 Individual WBRC Yes Falco subbuteo Hobby Over Whitacre SP2491 21/08/1994 WBRC Yes Alcedo atthis Kingfisher River Bourne, Furnace End SP2491 21/08/1994 WBRC Yes Yes

Insects

Taxon Taxon Scientific Common Grid Nationally Nationally Nationally RedList_GB_post2001: Group Order Name Name Location Reference Date Notable A Notable B Notable VU Insect - Longitarsus Flax Flea Arley Beetle Coleoptera parvulus Beetle Wood SP2790 24\04\2012 Yes

Insect - Helochares Helochares Arley Beetle Coleoptera obscurus obscurus Wood SP2790 05\03\2012 Yes Insect - Longitarsus Flax Flea Arley Beetle Coleoptera parvulus Beetle Wood SP2790 28\03\2012 Yes Insect - Hylesinus Arley Beetle Coleoptera Hylesinus orni orni Wood SP2790 28\03\2012 Yes Insect - Arley Beetle Coleoptera Cis festivus Cis festivus Wood SP2790 22\05\2012 Yes

Scymnus Scymnus Insect - (Scymnus) (Scymnus) Arley Beetle Coleoptera femoralis femoralis Wood SP2790 08\05\2012 Yes

Rhantus Rhantus Insect - (Rhantus) (Rhantus) Church Beetle Coleoptera suturalis suturalis End SP242914 21\10\2012 Yes

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Insect - Longitarsus Longitarsus Daw Mill Beetle Coleoptera dorsalis dorsalis Colliery SP2590 07\10\2012 Yes

Insect - Helochares Helochares Church Beetle Coleoptera obscurus obscurus End SP240912 31\03\2011 Yes Insect - Orchesia Arley Beetle Coleoptera Orchesia minor minor Wood SP2790 24\04\2012 Yes

Insect - Omalium Omalium Arley Beetle Coleoptera rugatum rugatum Wood SP2790 16\05\2012 Yes

Insect - Longitarsus Flax Flea Daw Mill Beetle Coleoptera parvulus Beetle Colliery SP2590 07\10\2012 Yes

Insect - Longitarsus Longitarsus Daw Mill Beetle Coleoptera agilis agilis Colliery SP2590 07\10\2012 Yes

Insect - Longitarsus Longitarsus Daw Mill Beetle Coleoptera rutilus rutilus Colliery SP2590 07\10\2012 Yes

Insect - Rabocerus Rabocerus Daw Mill Beetle Coleoptera gabrieli gabrieli Colliery SP2590 07\10\2012 Yes

Insect - Helochares Helochares Church Beetle Coleoptera obscurus obscurus End SP242914 31\03\2011 Yes

Black Poplar

Scientific Name Common Name Location Grid Reference Date Comment Populus nigra Furnace End, directly N of subsp. betulifolia Black poplar B4114 river bridge SP2475591255 2009 Multistemmed

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Magic Map 1 km search zone for designated wildlife sites - Map

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Magic Map 1 km search zone for designated wildlife sites - Report

There are no designated wildlife sites within 1 km of the site boundary

Magic Map search for SSSI Impact Risk Zones for site only

SSSI Impact Risk Zones – to assess planning applications for likely impacts on SSSIs/SACs/SPAs & Ramsar sites (England) 1. DOES PLANNING PROPOSAL FALL INTO ONE OR MORE OF THE CATEGORIES BELOW? 2. IF YES, CHECK THE CORRESPONDING DESCRIPTION(S) BELOW. LPA SHOULD CONSULT NATURAL ENGLAND ON LIKELY RISKS FROM THE FOLLOWING:

All Planning Applications Infrastructure Airports, helipads and other aviation proposals. Wind & Solar Energy Minerals, Oil & Gas Rural Non Residential Residential Rural Residential Air Pollution Pig & poultry units, slurry lagoons > 750m³ & manure stores > 3500t. Combustion Waste Composting Discharges Water Supply

GUIDANCE – How to use the Impact Risk Zones /Metadata_for_magic/SSSI IRZ User Guidance v2.5 MAGIC 10Mar2016.pdf Nitrate Vulnerable Zones (England) Zone ID 36 Type of NVZ Groundwater Zone ID 308 Type of NVZ Surface Water

Green Belt (England) Name of Local Plan North Warwickshire Local Plan Reference 49079400 Status Adopted Authority North Warwickshire Borough Council, Planning Administration Date Local Plan was Published 20060704 Scale of Original Plan

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

1:25,000 Square Kilometres 172.794723

Areas of Outstanding Natural Beauty (England) No Features found Limestone Pavement Orders (England) No Features found Local Nature Reserves (England) - points No Features found Local Nature Reserves (England) No Features found Moorland Line (England) No Features found National Nature Reserves (England) - points No Features found National Nature Reserves (England) No Features found National Parks (England) No Features found National Parks: Lake District and Yorkshire Dales Variation Orders 2012 - subject to confirmation (England) No Features found Ramsar Sites (England) - points No Features found Ramsar Sites (England) No Features found Sites of Special Scientific Interest (England) - points No Features found Sites of Special Scientific Interest (England) No Features found Special Areas of Conservation (England) - points No Features found Special Areas of Conservation (England) No Features found Special Protection Areas (England) - points No Features found Special Protection Areas (England) No Features found Biosphere Reserves (England) - points No Features found Biosphere Reserves (England) No Features found Community Forests (England) No Features found Heritage Coasts (England) No Features found Land Management Initiatives (England) No Features found National Forest (England) No Features found RSPB Reserves (GB) - points No Features found RSPB Reserves (GB) No Features found Upland Experiment Areas (England) No Features found Objective 1 Areas (England) No Features found Objective 2 Areas (England) No Features found

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Magic Map 1 km search zone for habitat inventory data

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Wildlife Site Citations

Daw Mill Cottage and River Bourne

Site reference: Ecosite 37/28 Designation: potential Local Wildlife Site (pLWS)

Site description:

Good linear wildlife habitat lined in places with alder Alnus glutinosa and tall herbs. Some submerged and emergent vegetation and lots of marginal vegetation is also present. Dragonflies have also been noted.

Mordic’s Wood

Site reference: Ecosite 39/28 Designation: potential Local Wildlife Site (pLWS)

Site description:

Undisturbed mixed deciduous woodland with good range of tree and shrub species. The rich ground flora includes wild garlic Allium ursinium and common valerian Valleriana officinalis.

Packsaddle Wood

Site reference: Ecosite 40/28 Designation: potential Local Wildlife Site (pLWS)

Site description:

Mixed deciduous woodland of oak Quercus sp, birch Betula sp and rowan Sorbus aucuparia, with some sycamore Acer pseudoplatanus. The ground flora includes yellow archangel Lamiastrum galeobdolon, wild garlic Allium ursinium and bluebell Hyacinthoides non-scripta.

Daw Mill Verge

Site reference: Ecosite 68/28 Designation: potential Local Wildlife Site (pLWS)

Site description:

These steep verges consist of species rich hedgerows on both sides and include elder, field maple and elm. To the south of the site in the shady areas are woodland

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix plants including yellow archangel, violet, wood sorrel and ferns. There are also wet ditches present in the site. Some of the verge is cut and the remainder is left to grow.

Withy Wood

Site reference: Ecosite 87/28 Designation: potential Local Wildlife Site (pLWS)

Site description:

Mixed plantation woodland with pedunculate oak, larch, Douglas fir and Scots pine and frequent rowan over scattered downy birch and elder. Bracken, bramble and bluebell are abundant with frequent Holcus mollis and occasional Milium effusum. Hazel is found at the edges of the wood which is lined by a bank and ditch on one side. Stinkhorn fungus present. The wood is managed for game.

Wagstaff Farm Meadow

Site reference: Ecosite 153/28 Designation: Local Wildlife Site (LWS)

Site description:

Small semi-improved meadow with hedgerow and pond. The meadow is tall and unmanaged with a range of grasses and herbs, including red fescue Festuca rubra, great burnet Sanguisorba officnalis, meadowsweet Filipendula ulmaria, common sorrel Rumex acetosa, lesser knapweed Centaurea nigra and square-stalked st john’s-wort Hypericum tetrapterum. Betony Stachys officinalis, yarrow Achillea millefolium, tufted vetch Vicia cracca and lesser stitchwort Stellaria graminea are present by the roadside. The hedgerow is species rich and supports oak Quercus sp, ash Fraxinus excelsior, birch Betula sp, blackthorn Prunus spinosa, wych elm Ulmus glabra, hazel Corylus avellana, holly Ilex aquifolium and willow Salix sp. The pond, which has recently been created, has planted apple Malus sp trees at one end.

Yew Tree plantation and nearby woodland

Site reference: Ecosite 43/29 Designation: potential Local Wildlife Site (pLWS)

Site description:

This site includes several separate areas. The following are based on 1982 survey data.

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Pool Hall Farm

A kidney shaped pool fed by a spring at the northern elongated end.

Stonepit Wood, Hall Farm

Small deciduous wood along stream valley. Sycamore coppice with willows and hawthorn. Oak standards, sycamore and hazel in main part of the wood. Shrub layer of elder and sycamore. Ground flora includes Yorkshire fog, bluebell and yellow archangel.

Yew Tree Plantation

Plantation includes ash, larch, pine, hawthorn, elm, holly. There is also a hazel coppice with oak standards. Ground flora includes dog’s mercury, yellow archangel, red campion, bluebell with more bramble at the eastern end.

Larch Wood

Planted balsam poplar over hawthorn, young oaks, and birch and willow scrub coppice. Yellow archangel in ground flora with poor drainage.

John’s Close Wood

Sycamore, beech, ash, poplar with pines and larch at the north-westen end. Hawthorn, holly and willow found along the south western edge. Bluebell and dog’s mercury in the ground flora.

Brick Kiln Plantation

Half of the wood has been cleared. Regeneration of rushes, docks, rosebay willowherb, birch and elm. The other half is ash coppice with hawthorn and bramble.

The Rookery

Sycamore coppice with birch-elm scrub. Hawthorn hedge with oak standards.

Over Whitacre Churchyard

Site reference: Ecosite 72/29 Designation: potential Local Wildlife Site (pLWS)

Site description:

Semi-improved neutral grassland. Churchyard managed by sheep grazing and hay cutting. Part recently cut at the time of survey. There is Holcus lanatus, Festuca rubra and Agrostis capillaris with abundant ribwort plantain, yarrow and cat’s-ear. Other species are frequent to occasional and include lesser knapweed, lady’s bedstraw, red and white clover,

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix bird’s-foot-trefoil, smooth hawk’s-beard, hogweed, meadow and creeping buttercup, common sorrel, oxeye daisy, burnet saxifrage, barren strawberry and germander speedwell.

Over Whitacre Wood

Site reference: Ecosite 123/29 Designation: potential Local Wildlife Site (pLWS)

Site description:

Dense crack willow on a stream course with occasional planted poplar, ash, oak and alder. Nettles dominate below.

Stream

Site reference: SP29K4 Designation: potential Local Wildlife Site (pLWS)

River Bourne Flood Meadows

Site reference: SP28U1 Designation: potential Local Wildlife Site (pLWS)

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Bat and Barn Owl Survey Appendices, Applied Ecological Services (AES) Ltd, 2014

Background

In 2014, AES-Ltd conducted a Bat and Barn Owl Survey at Daw Mill Colliery. The appendices from the Bat and Barn Owl Survey (2014) report were available on the Daw Mill planning portal, although have since been removed. For accessibility, the appendices are produced below.

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Appendix A

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Appendix B

5781.01.001 Desk Based Appendix Daw Mill Colliery, Coventry (CV7 8HS) Desk Based Ecology AssessmentDesk Based Ecology Appendix

Appendix C

5781.01.001 Desk Based Appendix Appendices to Evidence of Francis Hesketh on Ecology. Daw Mill Colliery, Tamworth Road, Arley For the Appellant, Harworth Estates PINS Reference: APP/R3705/W/3149827

APPENDIX B: Landscape and Biodiversity Parameter plans

5781.01.006 Appendices January 2017 Version 1.0

c 2015 RPS Group Notes 1. This drawing has been prepared in accordance with the scope of 536¶VDSSRLQWPHQWZLWKLWVFOLHQWDQGLVVXEMHFWWRWKHWHUPVDQG conditions of that appointment. RPS accepts no liability for any use of this document other than by its client and only for the purposes for which it was prepared and provided. 2. If received electronically it is the recipients responsibility to print to correct scale. Only written dimensions should be used.

Legend

Existing trees

Existing pond

Proposed trees

Meadow

PRoW

Possible footpath system

Rev Description Date Initial Checked Existing Rail Sidings to be modified

20 Western Avenue, Milton Park, Abingdon, Oxfordshire, OX14 4SH T: +44(0)1235 821 888 E: [email protected] F: +44(0)1235 834 698 Client .

Project Daw Mill Application

Title Landscape / Bio-Diversity Parameter Plan

Status Drawn By PM/Checked by FINAL AVG CD Job Ref Scale @ A3 Date Created OXF8325 1: 5,000 OCT 2015

Figure Number Rev LBPP1 -

rpsgroup.com 0 50 100.01 m Crown copyright, All rights reserved. 2015 License number 0100031673 N:\DawMill\Drawings\8325-0001-05.dwg N:\DawMill\Drawings\8325-0001-05.dwg c 2015 RPS Group Notes 1. This drawing has been prepared in accordance with the scope of 536¶VDSSRLQWPHQWZLWKLWVFOLHQWDQGLVVXEMHFWWRWKHWHUPVDQG conditions of that appointment. RPS accepts no liability for any use of this document other than by its client and only for the purposes for which it was prepared and provided. 2. If received electronically it is the recipients responsibility to print to correct scale. Only written dimensions should be used.

Legend

Existing trees

Existing pond

Proposed trees

Meadow

PRoW

Possible footpath system

Aggregate Storage

Rev Description Date Initial Checked Existing Rail Sidings to be modified

20 Western Avenue, Milton Park, Abingdon, Oxfordshire, OX14 4SH T: +44(0)1235 821 888 E: [email protected] F: +44(0)1235 834 698 Client .

Project Daw Mill Application

Title Landscape / Bio-Diversity Parameter Plan (with Illustrative Masterplan)

Status Drawn By PM/Checked by FINAL AVG CD Job Ref Scale @ A3 Date Created OXF8325 1: 5,000 OCT 2015

Figure Number Rev LBPP2 -

rpsgroup.com 0 50 100.01 m Crown copyright, All rights reserved. 2015 License number 0100031673 N:\DawMill\Drawings\8325-0004-02.dwg N:\DawMill\Drawings\8325-0004-02.dwg Appendices to Evidence of Francis Hesketh on Ecology. Daw Mill Colliery, Tamworth Road, Arley For the Appellant, Harworth Estates PINS Reference: APP/R3705/W/3149827

APPENDIX C: Restoration Plan (1996)

5781.01.006 Appendices January 2017 Version 1.0

Appendices to Evidence of Francis Hesketh on Ecology. Daw Mill Colliery, Tamworth Road, Arley For the Appellant, Harworth Estates PINS Reference: APP/R3705/W/3149827

APPENDIX D: Morge v Hampshire County Council

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Hilary Term [2011] UKSC 2 On appeal from: 2010 EWCA Civ 608

JUDGMENT

Morge (FC) (Appellant) v Hampshire County Council (Respondent)

before

Lord Walker Lady Hale Lord Brown Lord Mance Lord Kerr

JUDGMENT GIVEN ON

19 January 2011

Heard on 8 November 2010

Appellant Respondent Charles George QC Neil Cameron QC Gregory Jones Sasha White Sarah Sackman (Instructed by Swain & Co (Instructed by Hampshire Solicitors) County Council Legal Services)

LORD BROWN

1. This appeal concerns a planning permission granted on 29 July 2009 for a proposed three mile (4.7km) stretch of roadway to provide a rapid bus service between Fareham and Gosport in South East Hampshire. The permission was challenged on environmental grounds including not least its likely impact on several species of European protected bats inhabiting the general area around the proposed busway. The challenge having failed before Judge Bidder QC (sitting as a Deputy High Court judge) on 17 November 2009 – [2009] EWHC 2940 (Admin) – and before the Court of Appeal (Ward, Hughes and Patten LJJ) on 10 June 2010 – [2010] EWCA Civ 608, [2010] PTSR 1882 – this Court on 27 July 2010 gave the appellant limited permission to appeal so as to raise two issues of some general importance.

2. Issue one concerns the proper interpretation of article 12 (1)(b) of the Habitat’s Directive 92/43/EEC which provides that:

“Member States shall take the requisite measures to establish a system of strict protection for the animal species listed [the protected species] in their natural range, prohibiting . . . (b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration; . . .”

3. Issue two concerns the proper application of regulation 3(4) of the Conservation (Natural Habitats, etc) Regulations 1994 SI 1994/2716 (as amended first by the Amendment Regulations 2007 and then the Amendment Regulations 2009), by which domestic effect is given to the Directive:

“3(4) . . . every competent authority in the exercise of any of their functions, shall have regard to the requirements of the Habitats Directive so far as they [the requirements] may be affected by the exercise of those functions.”

With that briefest of introductions let me turn to the essential factual context in which these issues now arise, noting as I do so that altogether fuller descriptions of the facts can be found in the judgments below.

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4. The proposed new rapid busway – the first and larger phase of which is already substantially under way, applications for interlocutory relief to stay its continuance having been refused by the Court of Appeal and refused by this Court on granting leave to appeal – runs along the path of an old railway line, last used in 1991. The scheme provides for buses to be able to join existing roads at various points along the route. It will create a new and efficient form of public transport to the benefit of many residents, workers and visitors to the region. Central Government has committed £20m to it.

5. Although most of the scheme lies within a built-up area, there are a number of designated nature conservation sites nearby and, unsurprisingly, once the railway line ceased to be used, the surrounding area became thickly overgrown with vegetation and an ecological corridor for various flora and fauna. Although, therefore, the scheme was widely supported, it also attracted a substantial number of objectors one of whom is Mrs Morge, the appellant, who lives close by.

6. The respondent authority is both the local planning authority for the relevant area and also the applicant for planning permission through its agent, Transport for South Hampshire, who submitted a planning application on 31 March 2009. Taking it very shortly, on 30 April 2009 Natural England (the Government’s adviser on nature conservation) objected to the planning application in part because of their concerns about the impact of the development on bats (an objection reiterated on 29 June 2009). As a result the respondent authority commissioned an Updated Bat Survey (UBS) which was submitted on 9 July 2009. On 17 July 2009, largely as a result of the UBS, Natural England withdrew their objections. There then followed a Decision Report prepared by the respondent’s planning officers, a further letter from Natural England dated 23 July 2009, an Addendum Decision Report from the officers, and on 29 July 2009 a three hour meeting of the respondent’s Regulatory Committee which concluded with the grant of planning permission for the scheme by a majority of six to five with two abstentions.

7. The UBS is a document of some 70 pages. For present purposes, however, its main findings can be summarised as follows. No roosts were found on the site. The removal of trees and vegetation, however, would result in a loss of good quality bat foraging habitats. This would have a moderate adverse impact at local level on foraging bats for some nine years, the impact thereafter reducing, because of mitigating measures, to slight adverse/neutral. In addition the busway would sever a particular flight path followed by common pipistrelle bats, increasing their risk of collision with buses (without, however, given the proposed mitigation of this risk, a significant impact on bats at a local level).

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8. The Officers’ Decision Report (again a lengthy document) included these passages with regard to the bats:

“3.7 Detailed ecological surveys have been undertaken across the site over the last eighteen months. . . . A number of bat species roost and forage along the corridor . . . Accordingly, a strategy to mitigate the impact on these species has been developed. The main principles of the strategy [include] enhancement of the habitat of the retained embankment to provide continued habitat for displaced species. Bat surveys have also been carried out to enable appropriate measures to be implemented.

. . .

5.6 Natural England initially raised objections on the grounds that the application contains insufficient survey information to demonstrate whether or not the development would have an adverse effect on bats . . . which are [a] legally protected species. Further survey work was undertaken in response to this objection and provided to Natural England. Following receipt of this information Natural England are now satisfied that the necessary information has been provided and have withdrawn their objection. They recommend that if the council is minded to grant permission for this scheme conditions be attached requiring implementation of the mitigation and compensation measures set out in the reports.

. . .

Nature Conservation Impact

8.17 . . . the requirements of the Habitats Regulations need to be considered.

. . .

8.19. . . The surveys also identified the presence of a diversity of bat species, which are protected, using the trees alongside the track for foraging. An Updated Bat Survey Method Statement and Mitigation Strategy has been submitted with measures to ensure there is no significant adverse impact to them from these proposals.

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. . .

Conclusion

8.24 . . . suitable mitigation measures are proposed for . . . protected species . . . ”

The Addendum Report dealt specifically with the Habitat Regulations and repeated that Natural England, having initially objected to the application and required further survey information regarding protected species, were now satisfied and had withdrawn their objection.

9. Against this essential factual background I turn now to the two main issues arising.

Issue 1 – the proper interpretation of article 12(1)(b) of the Habitat Directive

Article 12(1)(b) must, of course, be interpreted in the light of the Directive as a whole. Included amongst the recitals in its preamble is this:

“Whereas, in the European territory of the member states, natural habitats are continuing to deteriorate and an increasing number of wild species are seriously threatened; whereas given that the threatened habitats and species form part of the Community’s natural heritage and the threats to them are often of a trans- boundary nature, it is necessary to take measures at Community level in order to conserve them”.

10. Article 1 is the definition article and defines “species of Community interest” in four categories, respectively “endangered”, “vulnerable”, “rare”, and “endemic and requiring particular attention [for various specified reasons]”. The six species of protected bats affected by the proposed busway fall variously into the second, third and fourth of those categories. Article 1(i) defines “conservation status of a species” to mean “the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations”. It further provides:

“The conservation status will be taken as ‘favourable’ when:

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population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, and

the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and

there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis”.

Article 2(2) provides that: “Measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community Interest.”

11. There then follow articles 3 to 11 under the head “Conservation of natural habitats and habitats of species”. Within these provisions one should note article 6(2):

“Member states shall take appropriate steps to avoid, in the special areas of conversation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.”

12. Articles 12 to 16 inclusive then follow under the head “Protection of species”. I have already set out article 12(1)(b). Article 16 provides for derogation and so far as material provides:

“16(1) Provided that that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, member states may derogate from the provisions of articles 12 . . . : . . . (c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment”.

13. Besides the issues now before us the Court of Appeal had to deal in addition with challenges based upon article 12(1)(d) of the Directive and upon the respondent’s decision not to treat the proposal as an EIA development (matters

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upon which this court refused leave to appeal). Ward LJ gave the only reasoned judgment, one of infinite care and thoughtfulness and, I may add, one of enormous assistance to this Court in its consideration of this further appeal.

14. As a background to deciding the meaning of article 12(1)(b), Ward LJ necessarily had regard to the European Commission’s views upon the scope of the Directive, as set out in a Guidance document issued in February 2007 which include the following:

“(37) Disturbance (e.g. by noise, source of light) does not necessarily directly affect the physical integrity of a species but can nevertheless have an indirect negative effect on the species (eg by forcing them to use lots of energy to flee; bats, for example, when disturbed during hibernation, heat up as a consequence and take flight, so are less likely to survive the winter due to high loss of energy resources). The intensity, duration and frequency of repetition of disturbances are important parameters when assessing their impact on a species. Different species will have different sensitivities or reactions to the same type of disturbance, which has to be taken into account in any meaningful protection system. Factors causing disturbance for one species might not create disturbance for another. Also, the sensitivity of a single species might be different depending on the season or on certain periods of its life cycle e.g. (breeding period). Article 12(1)(b) takes into account this possibility by stressing that disturbances should be prohibited particularly during the sensitive periods of breeding, rearing, hibernation and migration. Again, a species-by-species approach is needed to determine in detail the meaning of ‘disturbance’.

(38) The disturbance under article 12(1)(b) must be deliberate . . . and not accidental. On the other hand, while ‘disturbance’ under article 6(2) must be significant, this is not the case in article 12(1), where the legislator did not explicitly add this qualification. This does not exclude, however, some room for manoeuvre in determining what can be described as disturbance. It would also seem logical that for disturbance of a protected species to occur a certain negative impact likely to be detrimental must be involved.

(39) In order to assess a disturbance, consideration must be given to its effect on the conservation status of the species at population level and biogeographic level in a member state . . .. For instance, any disturbing activity that affects the survival chances, the breeding success or the reproductive ability of a protected species or leads to a

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reduction in the occupied area should be regarded as a ‘disturbance’ in terms of article 12. On the other hand, sporadic disturbances without any likely negative impact on the species, such as for example scaring away a wolf from entering a sheep enclosure in order to prevent damage, should not be considered as disturbance under article 12. Once again, it has to be stressed that the case by case approach means that the competent authorities will have to reflect carefully on the level of disturbance to be considered harmful, taking into account the specific characteristics of the species concerned and the situation, as explained above.”

No problem arises as to what is meant by “deliberate” in article 12(1)(b). As stated by the Commission in paragraph 33 of their Guidance:

“‘Deliberate’ actions are to be understood as actions by a person who knows, in light of the relevant legislation that applies to the species involved, and the general information delivered to the public, that his action will most likely lead to an offence against the species, but intends this offence or, if not, consciously accepts the foreseeable results of his action.”

Put more simply, a deliberate disturbance is an intentional act knowing that it will or may have a particular consequence, namely disturbance of the relevant protected species. The critical, and altogether more difficult, question is what precisely in this context is meant by “disturbance”.

15. Having, as I too have sought to do, thus cleared the ground and recognised that the central difficulty in the case lies in determining the level of disturbance required to fall within the prohibition, Ward LJ rejected the appellant’s contention that any disturbing activity save only that properly to be characterised as de minimis – too negligible for the law to be concerned with – constitutes disturbance within the article. As Ward LJ pointed out, the example given in paragraph 38 of the Commission’s Guidance (scaring away a wolf from the sheep fold) “must be an a fortiori, rather than a typical one”. The judgment then continues (and I make no apology for quoting it at some length):

“35 . . . the disturbance does not have to be significant but, as para 38 of the guidance explains, there must be some room for manoeuvre which suggests the threshold is somewhere between de minimis and significant. It must be certain, that is to say, identifiable. It must be real, not fanciful. Something above a discernible disturbance, not necessarily a significant one, is required. Given that there is a

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spectrum of activity, the decision-maker must exercise his or her judgment consistently with the aim to be achieved. Given the broad policy objective which I explored . . . above [‘to ensure that the population of the species is maintained at a level which will ensure the species’ conservation so as to protect the distribution and abundance of the species in the long term’], disturbing one bat, or even two or three, may or may not amount to disturbance of the species in the long term. It is a matter of fact and degree in each case.

36 [Counsel for the appellant] seizes on the words in para 38 . . . of the guidance, ‘a certain negative impact likely to be detrimental must be involved and he elevates this statement into a test for establishing a disturbance. His difficulty is that that does not answer the critical question: when does the negative impact become detrimental? Para 39 seems to me to spell out the proper approach, namely to give consideration to the ‘effect on the conservation status of the species at population level and bio-geographic level’. This in my judgment is an important refinement. The impact must be certain or real, it must be negative or adverse to the bats and it will be likely to be detrimental when it negatively or adversely effects the conservation status of the species. ‘Conservation status of a species’ is a term of art which . . . means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its population. That is why the guidance at para 39 makes the point that the disturbing activity must be such as ‘affects the survival chances . . . of a protected species’. Furthermore, ‘the competent authorities will have to reflect carefully on the level of disturbance to be considered harmful, taking into account the specific characteristics of the species concerned and the situation’, to quote the concluding sentence of para 39. The summary in the guidance . . . has the same emphasis:

‘Disturbance is detrimental for a protected species eg by reducing survival chances, breeding success or reproductive ability. A species-by-species approach needs to be taken as different species will react differently to potentially disturbing activities.’

37. Having regard to the aim and purpose of the Directive and of article 16 and having due consideration of the guidance, I am driven to conclude that for there to be disturbance within the meaning of article 12(1)(b) that disturbance must have a detrimental impact so as to affect the conservation status of the species at population level. . ..

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. . .

39. In my judgment whether the disturbance will have a certain negative impact which is likely to be detrimental must be judged in the light of and having regard to the effect of the disturbance on the conservation status of the species, ie, how the disturbance affects the long-term distribution and abundance of the population of bats. I remind myself that according to the [Commission’s] guidance . . . , ‘favourable conservation status could be described as a situation where a . . . species is doing sufficiently well in terms of quality and quantity and has good prospects of continuing to do so in the future’. Whether there is a disturbance of the species must be judged in that light.”

16. Finally, in a passage in the judgment headed Overall Conclusions, Ward LJ, expressing himself satisfied that the respondent’s planning committee had due regard to the requirements of the Directive, said this:

“73. I have been troubled by the fact that the conclusion of the bat survey upon which such reliance was placed is to the effect that no significant impacts to bats are anticipated. The disturbance does not have to be significant and this is a misdirection or misunderstanding of . . . [article] 12(1)(b) . . . of the Habitats Directive. The question for me is, therefore, whether the conclusions can be upheld. I am satisfied that the decision of the planning committee should not be quashed.

74. I reach that conclusion for these reasons. I am satisfied that the loss of foraging habitat occasioned by cutting a swathe through the vegetation does not offend article 12(1)(b) which is concerned with protection of the species not with conservation of the species’ natural habitats. I am satisfied that that bald statement that the bats have to travel further and expend more energy in foraging does not justify a conclusion that the conservation status of the bats is imperilled or at risk. There is no evidence which would allow the planning committee to conclude that the long-term distribution and abundance of the bat population is at risk. There is no evidence that they will lose so much energy (as they might when disturbed during hibernation) that the habitat will not still provide enough sustenance for their survival, or their survival would be in jeopardy. There is no evidence that the population of the species will not maintain itself on a long-term basis. There is therefore no evidence of any activity

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which would as a matter of law constitute a disturbance as the word has to [be] understood.

75. As I have already concluded, the risk of collision cannot amount to a disturbance and article 12(1)(b) is not engaged in that respect.”

17. Mr George QC submits that the Court of Appeal were wrong to hold that article 12(1)(b) is breached only when the activity in question goes so far as to imperil the conservation status of the species at population level i.e. that only then does the activity amount to a “disturbance” of the species. This, he points out (and, indeed, Ward LJ himself recognised), puts the threshold for engaging the article higher than Mr Cameron QC for the respondent put it, Mr Cameron’s main concern being that such a construction would sit uneasily with article 16 (1) (a provision which itself necessarily implies that article 12(1)(b) may need to be, and be capable of being, derogated from notwithstanding that this is only permissible where it is “not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status”). The Court of Appeal’s construction is also, submits Mr George, inconsistent with an Additional Reasoned Opinion addressed to the UK by the Commission dated 18 September 2008 with regard inter alia to what was then the new Regulation 39(1), inserted by the 2007 Amendment Regulations, providing for an offence where someone “deliberately disturbs wild animals of any species in such a way as to be likely significantly to affect (i) the ability of any significant group of animals of that species to survive, breed or rear or nurture their young . . .”. The prohibition in the Directive, the Commission pointed out in their Opinion, “is not limited to significant disturbances of significant groups of animals”. Article 12(1)(b) of the Directive, the Opinion later suggested, “covers all disturbance of protected species.”

18. Whilst not actually conceding that the Court of Appeal approach is wrong, Mr Cameron contends now that the proper approach is to ask whether the activity in question produces “a certain negative impact likely to be detrimental to the species having regard to its effect on the conservation status of the species”.

19. In my judgment certain broad considerations must clearly govern the approach to article 12(1)(b). First, that it is an article affording protection specifically to species and not to habitats, although obviously, as here, disturbance of habitats can also indirectly impact on species. Secondly, and perhaps more importantly, the prohibition encompassed in article 12(1)(b), in contrast to that in article 12(1)(a), relates to the protection of “species”, not the protection of “specimens of these species”. Thirdly, whilst it is true that the word “significant” is omitted from article 12(1)(b) – in contrast to article 6(2) and, indeed, article 12(4) which envisages accidental capture and killing having “a significant negative impact on the protected species” – that cannot preclude an assessment of the nature

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and extent of the negative impact of the activity in question upon the species and, ultimately, a judgment as to whether that is sufficient to constitute a “disturbance” of the species. Fourthly, it is implicit in article 12(1)(b) that activity during the period of breeding, rearing, hibernation and migration is more likely to have a sufficient negative impact on the species to constitute prohibited “disturbance” than activity at other times.

20. Beyond noting these broad considerations it seems to me difficult to take the question of the proper interpretation and application of article 12(1)(b) much further than it is taken in the Commission’s own Guidance document. (The Commission’s suggestion in their September 2008 Additional Reasoned Opinion that article 12(1)(b) “covers all disturbance of protected species” in truth begs rather than answers the question as to what activity in fact constitutes such “disturbance” and cannot sensibly be thought to involve a departure from their 2007 Guidance.) Clearly the illustrations given in paragraph 39 of the Guidance – on the one hand “any disturbing activity that affects the survival chances, the breeding success or the reproductive ability of a protected species or leads to a reduction in the occupied area”, on the other hand “scaring away a wolf from entering a sheep enclosure” – represent no more than the ends of the spectrum within which the question arises as to whether any given activity constitutes a disturbance. Equally clearly, to my mind, the suggestion in paragraph 39 that “consideration must be given to its effect [the effect of the activity in question] on the conservation status of the species at population level and biogeographic level” does not carry with it the implication that only activity which does have an effect on the conservation status of the species (i.e. which imperils its favourable conservation status) is sufficient to constitute “disturbance”.

21. I find myself, therefore, in respectful disagreement with Ward LJ’s conclusion (at para 37) “that for there to be disturbance within the meaning of article 12(1)(b) that disturbance must have a detrimental impact so as to affect the conservation status of the species at population level”. Nor can I accept his view (at para 36) that “the guidance, at para 39, makes the point that the disturbing activity must be such as ‘affects the survival chances . . . of a protected species’”. On the contrary, as I have already indicated, para 39 of the guidance uses disturbing activity of that sort merely to illustrate one end of the spectrum. Rather the guidance explains that, within the spectrum, every case has to be judged on its own merits. A “species-by-species approach is needed” and, indeed, even with regard to a single species, the position “might be different depending on the season or on certain periods of its life cycle” (para 37 of the guidance). As para 39 of the guidance concludes: “it has to be stressed that the case-by-case approach means that the competent authorities will have to reflect carefully on the level of disturbance to be considered harmful, taking into account the specific characteristics of the species concerned and the situation, as explained above.”

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22. Two further considerations can, I think, usefully be identified to be borne in mind by the competent authorities deciding these cases (considerations which seem to me in any event implicit in the Commission’s Guidance). First (and this I take from a letter recently written to the respondent by Mr Huw Thomas, Head of the Protected and Non-Native Species Policy at DEFRA, the Department responsible for policy with regard to the Directive): “Consideration should . . . be given to the rarity and conservation status of the species in question and the impact of the disturbance on the local population of a particular protected species. Individuals of a rare species are more important to a local population than individuals of more abundant species. Similarly, disturbance to species that are declining in numbers is likely to be more harmful than disturbance to species that are increasing in numbers.”

23. Second (and this is now enshrined in Regulation 41(2) of the Conservation of Habitats and Species Regulations 2010 SI 2010/490):

“41(2) . . . disturbance of animals includes in particular any disturbance which is likely (a) to impair their ability (i) to survive, to breed or reproduce, or to rear or nurture their young, or (ii) in the case of animals of a hibernating or migratory species, to hibernate or migrate; or (b) to affect significantly the local distribution or abundance of the species to which they belong.”

Note, however, that disturbing activity likely to have these identified consequences is included “in particular” in the prohibition; it does not follow that other activity having an adverse impact on the species may not also offend the prohibition.

24. In summary, therefore, whilst I prefer Mr Cameron’s suggested approach to this article (see para 18 above) than that adopted by the Court below or that contended for by Mr George, it seems to me in the last analysis somewhat simplistic. To say that regard must be had to the effect of the activity on the conservation status of the species is not to say that it is prohibited only if it does affect that status. And the rest of the formulation is hardly illuminating.

25. Tempting although in one sense it is to refer the whole question as to the proper interpretation and application of article 12(1)(b) to the Court of Justice of the European Union pursuant to article 267 of the Lisbon Treaty, I would not for my part do so. It seems to me unrealistic to suppose that the Court of Justice would feel able to provide any greater or different assistance than we have here sought to give.

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Issue Two – The proper application of Regulation 3(4) of the 1994 Regulations (as amended)

26. I can deal with this issue altogether more briefly. Article 12(1) requires member states to “take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range”. Wisely or otherwise, the UK chose to implement the Directive by making a breach of the article 12 prohibition a criminal offence. Regulation 39 of the 1994 Regulations (as amended) provides that: “(1) a person commits an offence if he . . . (b) deliberately disturbs wild animals of any such species [i.e. a European protected species]”. It is Natural England, we are told, who bear the primary responsibility for policing this provision.

27. It used to be the position that the implementation of a planning permission was a defence to a regulation 39 offence. That, however, is no longer so and to my mind this is an important consideration when it comes to determining the nature and extent of the regulation 3(4) duty on a planning authority deliberating whether or not to grant a particular planning permission.

28. Ward LJ dealt with this question in paragraph 61 of his judgment as follows:

“61. The Planning Committee must grant or refuse planning permission in such a way that will ‘establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range . . .’ If in this case the committee is satisfied that the development will not offend article 12(1)(b) or (d) it may grant permission. If satisfied that it will breach any part of article 12(1) it must then consider whether the appropriate authority, here Natural England, will permit a derogation and grant a licence under regulation 44. Natural England can only grant that licence if it concludes that (i) despite the breach of regulation 39 (and therefore of article 12) there is no satisfactory alternative; (ii) the development will not be detrimental to the maintenance of the population of bats at favourable conservation status and (iii) the development should be permitted for imperative reasons of overriding public importance. If the planning committee conclude that Natural England will not grant a licence it must refuse planning permission. If on the other hand it is likely that it will grant the licence then the planning committee may grant conditional planning permission. If it is uncertain whether or not a licence will be granted, then it must refuse planning permission.”

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29. In my judgment this goes too far and puts too great a responsibility on the Planning Committee whose only obligation under regulation 3(4) is, I repeat, to “have regard to the requirements of the Habitats Directive so far as [those requirements] may be affected by” their decision whether or not to grant a planning permission. Obviously, in the days when the implementation of such a permission provided a defence to the regulation 39 offence of acting contrary to article 12(1), the Planning Committee, before granting a permission, would have needed to be satisfied either that the development in question would not offend article 12(1) or that a derogation from that article would be permitted and a licence granted. Now, however, I cannot see why a planning permission (and, indeed, a full planning permission save only as to conditions necessary to secure any required mitigating measures) should not ordinarily be granted save only in cases where the Planning Committee conclude that the proposed development would both (a) be likely to offend article 12(1) and (b) be unlikely to be licensed pursuant to the derogation powers. After all, even if development permission is given, the criminal sanction against any offending (and unlicensed) activity remains available and it seems to me wrong in principle, when Natural England have the primary responsibility for ensuring compliance with the Directive, also to place a substantial burden on the planning authority in effect to police the fulfilment of Natural England’s own duty.

30. Where, as here, Natural England express themselves satisfied that a proposed development will be compliant with article 12, the planning authority are to my mind entitled to presume that that is so. The Planning Committee here plainly had regard to the requirements of the Directive: they knew from the Officers’ Decision Report and Addendum Report (see para 8 above and the first paragraph of the Addendum Report as set out in para 72 of Lord Kerr’s judgment) not only that Natural England had withdrawn their objection to the scheme but also that necessary measures had been planned to compensate for the loss of foraging. For my part I am less troubled than Ward LJ appears to have been (see his para 73 set out at para 16 above) about the UBS’s conclusions that “no significant impacts to bats are anticipated” – and, indeed, about the Decision Report’s reference to “measures to ensure there is no significant adverse impact to [protected bats]”. It is certainly not to be supposed that Natural England misunderstood the proper ambit of article 12(1)(b) nor does it seem to me that the planning committee were materially misled or left insufficiently informed about this matter. Having regard to the considerations outlined in para 29 above, I cannot agree with Lord Kerr’s view, implicit in paras 75 and 76 of his judgment, that regulation 3(4) required the committee members to consider and decide for themselves whether the development would or would not occasion such disturbance to bats as in fact and in law to constitute a violation of article 12(1)(b) of the Directive.

31. Even, moreover, had the Planning Committee thought it necessary or appropriate to decide the question for themselves and applied to article 12(1)(b)

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the less exacting test described above rather than Ward LJ’s test of imperilling the bats’ conservation status, there is no good reason to suppose that they would not have reached the same overall conclusion as expressed in paras 74 and 75 of Ward LJ’s judgment (see para 16 above).

32. I would in the result dismiss this appeal.

LORD WALKER

33. For the reasons given in the judgment of Lord Brown, with which I agree, and for the further reasons given by Lady Hale and Lord Mance, I would dismiss this appeal.

LADY HALE

34. On the first issue, I have nothing to add to the judgment of Lord Brown, with which I agree. I also agree with him on the second issue, but add a few observations of my own because we are not all of the same mind.

35. The issue is whether the Regulatory Committee of Hampshire County Council (the planning authority for this purpose) complied with their duty to “have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise” of their planning functions (Conservation (Natural Habitats etc) Regulations 1994, reg 3(4); see also Conservation and Species and Habitats Regulations 2010, reg 9(5)). It is, of course, always important that the legal requirements are properly complied with, perhaps the more so in cases such as this, where the County Council is both the applicant for planning permission and the planning authority deciding whether it should be granted.

36. Some may think this an unusual and even unsatisfactory situation, but it comes about because in this country planning decisions are taken by democratically elected councillors, responsible to, and sensitive to the concerns of, their local communities. As Lord Hoffmann put it in R (Alconbury Developments Ltd and others) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 69, “In a democratic country, decisions about what the general interest requires are made by democratically elected bodies or persons accountable to them.” Democratically elected bodies go about their decision-making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be

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clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves. It is their job, and not the court’s, to weigh the competing public and private interests involved.

37. It is important to understand the chronology in this case. The planning application was dated 31 March 2009. Natural England was consulted. Their first reply is dated 30 April. In it they objected to the application on the ground that “that the application contains insufficient survey information to demonstrate whether or not the development would have an adverse effect on legally protected species”. Specifically, they were concerned about the impact upon bats and great crested newts. Reference was made to “the impacts of the development and mitigation upon European Protected Species” and the council were reminded of, among other things, their duty under regulation 3(4). This objection was maintained in a letter dated 29 June 2009.

38. Further information on Great Crested Newts and the Updated Bat Survey were submitted in early July in response to this. Based on this information, Natural England wrote on 17 July 2009 withdrawing their objection, subject to recommendations about the conditions to be imposed if planning permission were granted. This letter also contained comments about common widespread reptiles and asking that these too be addressed although Natural England was not lodging an objection in relation to them.

39. Natural England wrote again on 23 July with their “final response” to the proposal. This dealt, first, with the fact that the site was close to the Portsmouth Harbour Site of Special Scientific Interest, itself part of the Portsmouth Harbour Special Protection Area and Ramsar site and gave their advice on the requirements of regulation 48(1)(a) of the Habitats Regulations. Regulation 48(1)(a) imposes a specific obligation on planning authorities, among others, to make an “appropriate assessment” of the implications for a European protected site before granting permission for a proposal which is likely to have a significant effect upon the site. The letter advised that, provided that specified avoidance measures were fully implemented, the proposal would not be likely to have a significant effect upon the protected sites. Thus they had no objection on this score and permission could be granted. The letter went on to deal with “Protected species and biodiversity” under a separate heading, repeated that they had withdrawn their objection subject to the implementation of all the recommended mitigation, but reminded the council that “whilst we have withdrawn our objection to the scheme in relation to European protected species, we have ongoing concerns regarding other legally protected species on site . . .” A separate paragraph went on to deal with biodiversity.

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40. The Officer’s Report was prepared for the Committee meeting, which was due to take place on 29 July 2009, before receipt of the letter of 23 July. It is 31 pages long. The executive summary lists “the main issues raised”, including “concern at the procedure because this is a County Council scheme” and “nature conservation impact” (para 1.4). The account of the “Proposals” refers to the detailed ecological surveys undertaken, including the bat surveys “carried out to enable appropriate measures to be implemented”; but states that the impact on the designated sites would be negligible (para 3.7). The section on “Consultations” includes a paragraph explaining that Natural England had initially objected “on the grounds that the application contains insufficient survey information to demonstrate whether or not the development would have an adverse effect on bats and great crested newts which are legally protected species” but that they had withdrawn their objection after further survey work was undertaken (para 5.6).

41. The section on “Nature conservation impact” deals first with the proximity to the protected sites and points out that the requirements of the Habitats Regulations needed to be considered (para 8.17). This is a reference to the specific obligation in regulation 48(1)(a). It went on to explain why it was thought that an “appropriate assessment” was not needed, noting that Natural England had raised no concerns about any impact on these sites (para 8.18). The report then turns to the corridor itself, referring to the Environmental Report submitted with the application, which dealt with badgers, bats, great crested newts, and reptiles; on bats, it states that “An Updated Bat Survey Method Statement and Mitigation Strategy has been submitted with measures to ensure there is no significant adverse impact to them for these proposals” (para 8.19).

42. The report concludes by recommending that no appropriate assessment is required under the Habitats Regulations (para 9.2); that planning permission be granted (para 9.3); and that the proposed development accords with the Development Plan and the relevant Policies, because, among other things “suitable mitigation measures are proposed for badgers and protected species” (para 9.4). There is a cross reference to the annexed policy C18 on Protected Species, which states that “Development which would adversely affect species, or their habitats, protected by the Habitats Regulations 1994, the Wildlife and Countryside Act 1981 or other legislation will not be permitted unless measures can be undertaken which prevent harm to the species or damage to the habitats. Where appropriate, a permission will be conditioned or a legal agreement sought to secure the protection of the species or their [habitat].”

43. After receiving the letter from Natural England dated 23 July, an addendum to the report was prepared, dealing with three issues which had arisen since the report was finalised. Under the heading “Habitats Regulations” it deals first with the objections raised by Natural England “requiring additional survey information concerning potential for the presence of great crested newts and bats, which are

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protected species”. It points out that the survey work was undertaken and Natural England had withdrawn their objection. In two separate paragraphs, it goes on to explain that Natural England had now given specific advice on the requirements of regulation 48(1)(a) (thus reinforcing the recommendation made in para 9.2 of the main report).

44. It is quite clear from all of this that separate consideration was being given both to the effect upon European protected species and to the effect upon the protected sites, that both were being considered under the Habitats Regulations, and that the applicable Policy on Protected Species, which also refers to the Habitats Regulations 1994, was being applied. It is true that the report does not expressly mention either regulation 3(4) or article 12 of the Directive. In my view, it is quite unnecessary for a report such as this to spell out in detail every single one of the legal obligations which are involved in any decision. Councillors were being advised to consider whether the proposed development would have an adverse effect on species or habitats protected by the 1994 Regulations. That in my view is enough to demonstrate that they “had regard” to the requirements of the Habitats Directive for the purpose of regulation 3(4). That is all they have to do in this context, whereas regulation 48(1)(a) imposes a more specific obligation to make an “appropriate assessment” if a proposal is likely to have a significant effect upon a European site. It is not surprising, therefore, that the report deals more specifically with that obligation than it does with the more general obligation in regulation 3(4).

45. Furthermore, the United Kingdom has chosen to implement article 12 of the Directive by creating criminal offences. It is not the function of a planning authority to police those offences. Matters would, as Lord Brown points out, have been different if the grant of planning permission were an automatic defence. But it is so no longer. And it is the function of Natural England to enforce the Directive by prosecuting for these criminal offences (or granting licences to derogate from the requirements of the Directive). The planning authority were entitled to draw the conclusion that, having been initially concerned but having withdrawn their objection, Natural England were content that the requirements of the Regulations, and thus the Directive, were being complied with. Indeed, it seems to me that, if any complaint were to be made on this score, it should have been addressed to Natural England rather than to the planning authority. They were the people with the expertise to assess the meaning of the Updated Bat Survey and whether it did indeed meet the requirements of the Directive. The planning authority could perhaps have reached a different conclusion from Natural England but they were not required to make their own independent assessment.

46. But if I am wrong about this, and the planning authority did have to make an independent assessment in terms of article 12(1)(b), there is absolutely no reason to think that they would have reached a different conclusion and refused

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planning permission on this account. They may have reached their decision by a majority of six votes to five. But the Minutes make it clear that there were a great many other problems to worry about with this scheme. While the “impact on nature” was among the many matters upon which members questioned officers, this was not one of their listed concerns. If this scheme was not going to get planning permission, it would be because of the local residents’ concerns about the impact upon them rather than because of the members’ concerns about the impact upon the bats.

47. I would therefore dismiss this appeal on both issues.

LORD MANCE

48. I agree with the reasoning and conclusions of Lord Brown and Lady Hale on each of the issues. I add only a few words because the court is divided on the second.

49. Lord Kerr’s dissent on this issue is, I understand, based on the premise that (a) Natural England had not expressed a view that the proposal would not involve any breach of the Habitats Directive, and (b) if it had, the planning committee was not informed of this: see his paras 73 and 74.

50. For the reasons given in Lord Brown’s and Lady Hale’s judgments, I cannot agree with either aspect of this premise.

51. I add the following in relation to the suggestion that Natural England was, in its letter of 17 July 2009, “preoccupied with matters that were quite separate from the question whether there would be disturbance to bats such as would be in breach of article 12 of the Directive” or that the letter was “principally taken up with the question of possible impact on common widespread reptiles” (para 69 below).

52. It is true that the longer part of the text of the letter of 17 July related to the latter topic, in relation to which Natural England at the end of the letter made clear it was not lodging an objection, but was only asking that further attention be given and comments supplied. But the first, and in the circumstances obviously more significant, aspect of the letter consisted in its first three paragraphs. These withdrew Natural England’s previous objection made on 30 April and reiterated on 29 June in relation to great crested newts and bats. The withdrawal was in the light of the information, including the Updated Bat Survey, which the Council had

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earlier in July supplied. In withdrawing their objection, Natural England emphasised the importance of the mitigation procedures outlined in section 10 of the Survey, and added the further recommendation that the Council look closely at the requirement for night working and keep any periods of such working “to an absolute minimum”. This confirms the attention it gave to the information supplied.

53. When making its objection in its letter dated 30 April, Natural England had said:

“Our concerns relate specifically to the likely impact upon bats and Great Crested Newts. The protection afforded these species is explained in Part IV and Annex A of Circular 06/2005 ‘biodiversity and Geological Conservation – Statutory Obligations and their Impact within the Planning System’”.

Part IV of Circular 06/2005 stated that the Habitats Regulations Conservation (Natural Habitats &c.) Regulations 1994 implemented the requirements of the Habitats Directive and that it was unlawful under regulation 39 deliberately to disturb a wild animal of a European protected species. Annex A identified all species of bats as wild animals of European protected species.

54. It is therefore clear that Natural England was, from the outset, focusing on the protected status of all species of bats under the Directive and domestic law; and that its withdrawal of its objection on 17 July was directly relevant to the planning committee’s performance of its role under regulation 3(4) to “have regard to the requirements of” that Directive in the exercise of its functions. The planning officer’s first report dated 29 July summarised the position for the planning committee in accurate terms. Thereafter, as Lord Brown and Lady Hale record, Natural England’s further letter dated 23 July arrived, reiterating Natural England’s as position stated in its letter dated 17 July. This too was again accurately summarised to the committee by the planning officer in his addendum dated 29 July to his previous report.

55. With regard to the Updated Bat Survey, there is no reason to believe that Natural England did not, when evaluating this, understand both the legal requirements and their general role and responsibilities at the stage at which they were approached by the Council. The Survey repays study as a whole, and I merely make clear that I do not share the scepticism which Lord Kerr feels about some of its statements or agree in all respects with his detailed account of its terms and their effect. The important point is, however, is that Natural England was well placed to evaluate this Survey, and, having done so, gave the advice they did. This

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was, in substance, accurately communicated to the planning committee, in a manner to which the committee was entitled to have, and must be assumed to have had, regard.

56. In addition to my agreement with the other parts of Lord Brown’s and Lady Hale’s judgments, I confirm my specific agreement with Lady Hale’s penultimate paragraph.

LORD KERR

57. As legislative provisions go, regulation 3 (4) of the Conservation (Natural Habitats, &c.) Regulations 1994 (the Habitats Regulations) is relatively straightforward. Its terms are uncomplicated and direct. It provides: -

“(4) … every competent authority in the exercise of any of their functions, shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions.”

58. In plain language this means that if you are an authority contemplating a decision that might have an impact on what the Directive requires, you must take its requirements into account before you reach that decision. Of course, if you know that another agency has examined the question and has concluded that none of those requirements will be affected, and if you are confident that such agency is qualified to make that judgment, this may be sufficient to meet your obligation under the regulation. What lies at the heart of this appeal is whether the regulatory committee of Hampshire County Council, when it came to make the decision whether to grant the planning permission involved in this case, either had regard itself to the requirements of the Habitats Directive or had sufficient information to allow it to conclude that some other agency, in whose judgment it could repose trust, had done so and had concluded that no violation arose.

59. An old and currently disused railway line runs between Gosport and Fareham in South Hampshire. A section of this, between Redlands Lane, Fareham and Military Road, Gosport is some 4.7 kilometres in length. On 31 March 2009 Hampshire County Council, acting on behalf of Transport for South Hampshire, applied for planning permission to develop this section in order to create what is described as a “busway”. Transport for South Hampshire is a name used to describe three local authorities, Hampshire County Council, Gosport Borough

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Council and Fareham Borough Council. Planning permission was granted on 29 July 2009

60. At present there is serious congestion on the main road between Gosport and Fareham. It is planned that the busway should operate by allowing buses to join existing roads at various points along the route and that a fast, efficient and reliable public transport service will ensue. It will also be possible to cycle on the route. Local residents will be encouraged to use buses and bicycles in preference to their private vehicles and it is hoped that the congestion will thereby be relieved. The busway is to be constructed in two phases, 1A and 1B. Clearance work for the first of these is already underway and funding is available to complete this phase. The second phase does not yet have funding. Its future development is not assured.

61. The railway line along which the busway is to be developed was closed as a result of recommendations made in the Beeching report of 1963. It appears that closure did not finally take effect until June 1991, however. In that month the last train ran along the line. Since then the area has become overgrown. It is now regarded as “an ecological corridor for various flora and fauna”. Several species of bats fly through and forage in the area but no bat roosts have been found on the planning application site itself. There are two bat roosts in proximity to the route, one in Savernake Close, near the southern section of Phase 1A, the other at Orange Grove which is close to the northern section of Phase 1B

62. All bats are European Protected Species, falling within Annex IV (a) of Council Directive 92/43/EEC (the Habitats Directive). Article 12 of this Directive requires Member States to “take the requisite measures to establish a system of strict protection for the animal species” listed in the annex. The Conservation (Natural Habitats, &c.) Regulations 1994 were made for the purpose of implementing the Habitats Directive. The regulations prescribe a number of measures (most notably in relation to this case, Regulation 39) which seek to achieve this level of protection. Derogation from these measures is permitted to those who obtain a licence from the appropriate authority. Natural England is the nature conservation body specified in the regulations as the licensing authority in relation to European protected species.

63. Although the issue of a licence is quite separate from the grant of planning permission, Natural England is regularly consulted on applications for development where the Habitats Directive and the regulations are likely to be in play and so it was that in April 2009 a letter was sent by the environment department of the Council seeking Natural England’s views about the proposal. On 30 April 2009, Natural England replied, objecting to the scheme and recommending that planning permission be refused.

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64. Bat surveys had been undertaken in 2008. These considered the suitability of the habitat for bats; they also examined how bats used the site and which species of bats were present. Clearly, however, the detail of the information yielded by these surveys was insufficient to satisfy Natural England’s requirements for it stated that the application contained “insufficient survey information to demonstrate whether or not the development would have an adverse effect on legally protected species”. The letter also recommended that the local planning authority should consider all the points made in an annex that was attached to the letter. This provided guidance on survey requirements and on how the authority should fulfil its duties on “biodiversity issues under [among others] … Regulation 3 (4) of The Conservation (Natural Habitats &c.) Regulations 1994 … to ensure that the potential impact of the development on species and habitats of principal importance is addressed.”

65. Amendments to the scheme were undertaken but these did not allay Natural England’s concerns and their objection to the planning application was repeated in a letter of 29 June 2009.

66. An updated bat survey (leading to the publication of a report entitled “Survey Method Statement and Mitigation Strategy”) was carried out on behalf of the Council. The survey identified two species of bat which had not been detected in the 2008 survey. Greater levels of foraging and commuting were also recorded along the disused railway. No roost sites were found but the presence of a common pipistrelle roost was confirmed approximately 40 metres from planned works. The report concluded that the works would result in the loss of a number of trees with low to moderate “roost potential” and approximately seven trees with moderate to high roost potential. Although no known roosts would be lost, because of the difficulty in identifying tree roosts, the Bat Conservation Trust recommends that it should be assumed that trees with high potential as roosts are in fact used as roosts. On this basis a number of roosts will be lost as a result of the works. Impact on commuting of bats between foraging habitats was also anticipated. It was felt that this could be restored in the longer term but, until restoration was complete, at least four species of bats that had been detected in the area would be affected. It was concluded that the removal of trees and vegetation would result in the loss of good quality habitats for foraging. Loss of foraging habitats would have an inevitable adverse impact on three species of local bats with one of these (Myotis sp) being more severely affected. This was characterised as a moderate impact at local level during the time that the vegetation was being re-established, a period estimated in the survey to be at least seven years. On the issue of the long term impact of the loss of foraging habitats the report was somewhat ambivalent. At one point it suggested that there would be a long term “slight adverse to neutral” impact. Later, it suggested that it was “probable” that the re-creation of good foraging habitats would result in an eventual neutral impact. The introduction of artificial lighting would affect the quality of foraging habitat by attracting insects

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from unlit areas. Although this would favour some species, it would adversely affect others. Moreover, increased lighting can delay the emergence of bats from roosts and so reduce foraging opportunities. Lighting also constitutes a barrier to bats gaining access to foraging areas. Although the report is silent on the duration of these effects, it must be presumed that they will be permanent. In a somewhat bland claim, however, the authors assert that “with mitigation to reduce light spill and the selection of lights with a low UV output, the impact of lighting on bats is not anticipated to be significant”. Increased noise levels would also have an adverse impact on some species of bats, the Brown long eared in particular. The report concludes at this point that is probable that there would be a slight adverse impact on foraging habitats from operational noise. Again, the report does not expressly state how long this would last but, since the noise source is the operation of the busway, it must be presumed to be permanent.

67. The overall conclusion of the report was that it was probable that there would be a short term moderate adverse impact on bats. (As Lord Brown has pointed out, this ‘short term’ impact is likely to continue for some nine years). If planned mitigation measures are successful, the long-term impact of the works was anticipated to be “slight adverse”. On this basis the authors of the report concluded that no “significant impacts” to bats were anticipated. This general conclusion requires to be treated with some caution, in my opinion. There can be no doubt that effects which could not be described as insignificant will occur for some seven to nine years at least. Thereafter, while the long term impact may not be quantitatively substantial, it will be permanent.

68. The bat survey, together with further information, was sent to Natural England in July 2009. In consequence, the objection to the application was withdrawn. Natural England considered that planning permission could now be granted, albeit subject to certain conditions. The letter relaying the withdrawal of the objection contained the following: -

“Natural England has reviewed the further information submitted (Great Crested Newt Survey Method Statement and Mitigation Strategy, June 2009 and Updated Bat Survey Method Statement and Mitigation Strategy, July 2009) and can now confirm that we are able to withdraw our objection of 30 April 2009, subject to the following comments: We recommend that should the Council be minded to grant permission for this scheme, conditions be attached requiring implementation of all the mitigation/compensation detailed within these reports. Particularly at Section 10 of the Bat Report and Section 6 of the Great Crested Newt Report. We would also recommend that the Council look closely at the requirement for night time working and associated flood lighting. Natural England would not advocate night time working for reasons of

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disturbance/disruption to the lifecycle of nocturnal wildlife and the Council should ensure these periods are kept to an absolute minimum.”

69. The head of planning and development made a report (referred to as “the officer’s decision report”) to the regulatory committee of the Council which was to take the planning decision on 29 July 2009. The impact on nature conservation was one of the issues of concern identified in the report. Lord Brown has quoted in para 8 of his judgment many of the material parts of the report that touch on this issue and I will not repeat all of those here. It is important, however, I believe, to understand the context of the statement in para 8.17 (quoted in part by Lord Brown) that the Habitats Regulations needed to be considered. The full para reads as follows: -

“The site is not within any designated sites of importance for nature conservation. However the site is within 30 metres, at its closest, to the Portsmouth Harbour Special Protection Area (SPA) and Portsmouth Harbour RAMSAR site. Therefore the requirements of the Habitats Regulations need to be considered.” (my emphasis)

70. As Lord Brown has pointed out, the report in para 8.19 stated that the updated bat survey report contained “measures to ensure (emphasis added) there is no significant adverse impact” to bats from the proposals. This appears to me to be a gloss on what had in fact been said in the report. The actual claim made (itself, in my opinion, not free from controversy) was that it was anticipated that there would be no significant impacts on bats if the mitigation measures succeeded.

71. Two points about the decision officer’s report should be noted, therefore. Firstly, the enjoinder to consider the Habitats Regulations was made because of the proximity of the works to sites requiring special protection rather than in relation to the need to avoid disturbance of bats in the ecological corridor itself. Secondly, it conveyed to the members of the regulatory committee the clear message that the updated bat survey report provided assurance that there would be no significant impact on bats. No reference was made to the moderate adverse impact that would occur over the seven to nine year period that regeneration of the forage areas would take nor to the permanent, albeit slight, impact that those measures could not eliminate.

72. Lord Brown has said that the addendum to the officer’s report dealt specifically with the Habitats Regulations. It did, but the context again requires to be carefully noted. In order to do this, I believe that the entire section dealing with the regulations must be set out. It is in these terms: -

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“Habitats Regulations

As stated in the report Natural England initially raised a holding objection to the application, requiring additional survey information concerning potential for the presence of great crested newts and bats, which are protected species. This survey work was undertaken and sent to Natural England, who are now satisfied and subsequently withdrew their objection.

As also stated in the report the application site lies close to habitats which form part of the Portsmouth Harbour Site of Special Scientific Interest (SSSI). This SSSI is part of the Portsmouth Harbour Special Protection Area (SPA) and Ramsar Site. Under the Conservation (Natural Habitats etc) Regulations 1994, as amended ('the Habitats Regulations') the County Council is the competent authority and has to make an assessment of the impacts of the proposal on this European site, therefore the second recommendation for the Committee is to agree that the proposal is unlikely to have a significant impact on the European site. It was implied that by withdrawing their objection Natural England did not consider there would be any significant impact, but they did not specifically give their advice.

Since the report was finalised Natural England have now given specific advice on the requirements of Regulation 48 (1) (a) of the "Habitats Regulations". They raise no objection subject to the avoidance measures included in the application being fully implemented and advise that their view is that either alone or in combination with other plans or projects, this proposal would not be likely to have a significant effect on the European site and the permission may be granted under the terms of the Habitats Regulations.”

73. Regulation 48 (1) (a) requires a competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which is likely to have a significant effect on a European site in Great Britain to make an appropriate assessment of the implications for the site in view of that site's conservation objectives. It has nothing to do with the need to ensure that there is no disturbance of species of bats. The addendum to the decision officer’s report, therefore, offered no information whatever to the regulatory committee on the vital question whether the proposal would comply with article 12 of the Habitats Directive. Indeed, it is clear from an examination of the letter from Natural England of 17 July 2009 that it was preoccupied with matters that were

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quite separate from the question whether there would be disturbance to bats such as would be in breach of article 12 of the Directive. The letter was principally taken up with the question of possible impact on common widespread reptiles. In so far as the letter dealt with the question of the impact on bats, its tone certainly did not convey a view that the planning committee need not consider that matter further. On the contrary, on a fair reading of the letter, Natural England was making it clear that this issue required to be addressed by the committee, not only in terms of the conditions to be applied but also as to whether night-time working would be unacceptable because of disturbance to wildlife.

74. The committee considered the report of the decision officer and the addendum to it and received an oral presentation from officers of the council. The minutes of their meeting record the following in relation to the oral presentation: -

“In introducing the report, Officers informed Members that the proposal formed part of the strategy to improve the reliability and quality of public transport in South Hampshire and the access to Gosport and Fareham. A Traffic Regulation Order would be imposed on the bus way to allow only cycles, buses and emergency vehicles to use it. Members were advised that an Environmental Impact Assessment (EIA) was not required as the proposal was a freestanding project that did not give rise to 'significant environmental effects'. Notwithstanding that, the County Council considered that important nature conservation, amenity and traffic issues had to be properly addressed and reports on these matters had been taken into account. The addendum to the report provided reassurance that Natural England had no objection to the proposals and confirmed their view that an appropriate assessment under the Habitat Regulations was not required and provided further clarification about the application and the Issue of 'screening' under the EIA Regulations.”

75. At best, this had the potential to mislead. A committee member might well think that Natural England had concluded that there would be no violation of article 39 (1) (b) of the 1994 Regulations (which forbids the deliberate disturbance of wild animals of a European protected species) or, more particularly, article 12 of the Habitats Directive. Of course the true position was that Natural England had expressed no explicit opinion whatever on that question. At most, it might be presumed that this was its view. Even if that presumption could be made, however, it does not affect the clear indication in the letter of 17 July 2009 that this matter was still one which required the committee’s attention. I can find nothing in the letter which suggests that Natural England regarded this matter as closed. Nor do I believe that the letter could have been properly interpreted by the committee as relieving it of the need to consider the issue.

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76. The critical issue on this appeal, therefore, is whether there is any evidence that the regulatory committee considered at all the duty that it was required to fulfil under regulation 3 (4) of the 1994 Regulations.

77. In addressing this question I should immediately say that I agree with Lord Brown on his analysis of the nature of the requirement in article 12 (1) (b) of the Habitats Directive. As he has observed, a number of broad considerations underlie the application of the article. It is designed to protect species (not specimens of species) and its focus is on the protection of species rather than habitats, although, naturally, if major intrusion on habitats is involved, that may have an impact on the protection of the species. Not every disturbance will constitute a breach of the article. The nature and extent of the disturbance must be assessed on a case by case basis.

78. The European Commission’s guidance document of February 2007 contains a number of wise observations as to how the application of the article should be approached. While the word ‘significant’ has not been employed in article 12 (1) (b), a “certain negative impact likely to be detrimental must be involved”. In making any evaluation of the level of disturbance, the impact on survival chances, breeding success or reproductive ability of the affected species are all obviously relevant factors. Like Lord Brown, I am sanguine about Mr Cameron QC’s formulation of the test as one involving the question whether there has been “a certain negative impact likely to have been detrimental to the species, having regard to its effect on the conservation status of the species”. And also like Lord Brown, I consider that the Court of Appeal pitched the test too high in saying that disturbance must have “a detrimental impact on the conservation status of the species at population level” or constitute a threat to the survival of the protected species.

79. Trying to refine the test beyond the broad considerations identified by Lord Brown and those contained in the Commission’s guidance document is not only difficult, it is, in my view, pointless. In particular, I do not believe that the necessary examination is assisted by recourse to such expressions as de minimis. A careful investigation of the factors outlined in Lord Brown’s judgment (as well as others that might bear on the question in a particular case) is required. The answer is not supplied by a pat conclusion as to whether the disturbance is more than trifling.

80. Ultimately, however, and with regret, where I must depart from Lord Brown is on his conclusion that the regulatory committee had regard to the requirements of the Habitats Directive. True it is, as Lord Brown says, that they knew that Natural England had withdrawn its objection. But that cannot substitute, in my opinion, for a consideration of the requirements of the Habitats Directive.

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Regulation 3 (4) requires every competent authority to have regard to the Habitats Directive in the exercise of its functions. The regulatory committee was unquestionably a competent authority. It need scarcely be said that, in deciding whether to grant planning permission, it was performing a function. Moreover the discharge of that function clearly carried potential implications for an animal species for which the Habitats Directive requires strict protection.

81. Neither the written material submitted to the committee nor the oral presentation made by officers of the council referred to the Habitats Directive. The reference to Natural England’s consideration of the Habitats Regulations, if it was properly understood, could only have conveyed to the committee that that consideration had been for a purpose wholly different from the need to protect bats. It could in no sense, therefore, substitute for a consideration of the Habitats Directive by the committee members whose decision might well directly contravene one of the directive’s central requirements. It is for that reason that I have concluded that those requirements had to be considered by the committee members themselves.

82. It may well be that, if Natural England had unambiguously expressed the view that the proposal would not involve any breach of the Habitats Directive and the committee had been informed of that, it would not have been necessary for the committee members to go behind that view. But that had not happened. It was simply not possible for the committee to properly conclude that Natural England had said that the proposal would not be in breach of the Habitats Directive in relation to bats. Absent such a statement, they were bound to make that judgment for themselves and to consider whether, on the available evidence the exercise of their functions would have an effect on the requirements of the directive. I am afraid that I am driven to the conclusion that they plainly did not do so.

83. As I have said, Natural England (at the time that it was considering the Habitats Regulations in July 2009) had not explicitly addressed the question whether the disturbance of bats that the proposal would unquestionably entail would give rise to a violation of the directive. The main focus of the letter of 19 July was on an entirely different question. Lord Brown may well be correct when he says that it is not to be supposed that Natural England misunderstood the proper ambit of article 12 (1) (b), but the unalterable fact is that it did not say that it had concluded that no violation would be involved, much less that the planning committee did not need to consider the question.

84. It is, of course, tempting to reach one’s own conclusion as to whether the undoubted impact on the various species of bats that will be occasioned by this development is sufficient – or not – to meet the requirement of disturbance within the meaning of article 12. But this is not the function of a reviewing court. Unless

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satisfied that, on the material evidence, the deciding authority could have reached no conclusion other than that there would not be such a disturbance, it is no part of a court’s duty to speculate on what the regulatory committee would have decided if it had received the necessary information about the requirements of the Habitats Directive, much less to reach its own view as to whether those requirements had been met. Since the planning permission was granted on a vote of six in favour and five against, with two abstentions, it is, in my view, quite impossible to say what the committee would have decided if it had been armed with the necessary knowledge to allow it to fulfil its statutory obligation. Other members of the court have expressed the view that this is what the committee would have decided. Had I felt it possible to do so, I would have been glad to be able to reach that conclusion. As it is, I simply cannot.

85. I would therefore allow the appeal and quash the planning permission.

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Appendices to Evidence of Francis Hesketh on Ecology. Daw Mill Colliery, Tamworth Road, Arley For the Appellant, Harworth Estates PINS Reference: APP/R3705/W/3149827

APPENDIX E: Accounting for Biodiversity in Planning (Extracts)

5781.01.006 Appendices January 2017 Version 1.0

Accounting for biodiversity in planning

A toolkit for Local Planning Authorities

THIS TOOLKIT PROVIDES GUIDANCE ON…

 A quantitative assessment of impacts using the Government ‘biodiversity metric’

 Appropriate calculation of any necessary compensation

 Transparent discharge of local planning authority’s biodiversity duties

 Examples of Local Plan wording and supplementary planning guidance to deliver accountability for biodiversity

 Planning Inspectorate case law endorsing delivery of compensatory habitat

 Guidance on producing spatial strategies to target compensation via habitat creation

 Access to support, training and metric validation

 Our services and compensation delivery mechanisms

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Accounting for biodiversity in planning planning in biodiversity for Accounting

1 Contents 1 INTRODUCTION ...... 4 2 THE BIODIVERSITY METRIC ...... 4 2.1 WORKING WITHIN THE MITIGATION HIERARCHY ...... 5 2.2 PROTECTING IMPORTANT HABITATS ...... 5 2.3 LOW VALUE HABITATS ...... 6 2.4 CONTRIBUTING TO LANDSCAPE-SCALE INITIATIVES ...... 6 3 WHY USE THIS TOOL? ...... 6 3.1 SUPPORTING POLICY ...... 6 OTHER GUIDANCE AND STANDARDS ...... 7 LOCAL PLAN POLICY ...... 7 3.2 PLANNING INSPECTORATE CASE LAW ...... 7 4 INTRODUCING THE TOOL INTO YOUR PLANNING SYSTEM ...... 7 4.1 OPTIONS FOR DELIVERY ...... 8 CONSISTENT UNIVERSAL APPLICATION (WARWICKSHIRE MODEL - RECOMMENDED) ...... 8 CASE-BY-CASE APPLICATION (ESSEX MODEL) ...... 8 4.2 WHEN TO APPLY THE METRIC ...... 9 SIGNIFICANCE ...... 9 THRESHOLDS ...... 10 4.3 STEPS IN APPLYING THE METRIC AND DELIVERING ‘NO NET LOSS’ ...... 10 4.4 OUTLINE AND FULL DEVELOPMENTS ...... 13 4.5 PLANNING CONDITIONS AND S106 OBLIGATIONS – SECURING COMPENSATION ...... 13 COMMUNITY INFRASTRUCTURE LEVY (CIL)...... 13 SECTION 106 OBLIGATIONS ...... 14 PLANNING CONDITIONS ...... 14 COMPLIANCE ...... 15 4.6 EXAMPLE PLANNING RESPONSES ...... 16 5 THE GOVERNMENT BIODIVERSITY METRIC ...... 16

5.1 STRATEGIES FOR HABITAT COMPENSATION ...... 17 5.2 ONLINE CALCULATOR ...... 17

May 16 May 5.3 EXCEL-BASED CALCULATOR ...... 18

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6 COMPENSATORY HABITAT SCHEMES ...... 18 6.1 APPROVING AN SCHEME...... 18 SITE SELECTION ...... 18 DELIVERY ...... 18 DETERMINATION VS COMMENCEMENT ...... 19 7 CASE STUDIES ...... 19 8 ENVIRONMENT BANK ...... 19 8.1 UK & INTERNATIONAL STANDARDS ...... 20 8.2 OUR SERVICES ...... 20 8.3 DEMAND/SUPPLY ANALYSIS ...... 21

Accounting for biodiversity in planning planning in biodiversity for Accounting 8.4 CALCULATIONS AND REPORTS ...... 21

2 8.5 SUPPORT, TRAINING AND VALIDATION ...... 22 8.6 FINDING AND SECURING COMPENSATION ...... 22 LEGAL AGREEMENTS ...... 23 MANAGEMENT PERIOD ...... 24 DISCHARGING A CONDITION OR OBLIGATION...... 25 8.7 HABITAT BANKS ...... 25 8.8 RECORDING AND TRACKING CREDITS ...... 25 9 REFERENCES ...... 26 10 APPENDIX A - SUPPORTING POLICY...... 28 10.1 EU POLICY ...... 28 10.2 NATURAL ENVIRONMENT WHITE PAPER ...... 28 10.3 NERC ACT...... 28 10.4 NATIONAL PLANNING POLICY FRAMEWORK ...... 29 10.5 OTHER GUIDANCE AND STANDARDS ...... 30 11 APPENDIX B – LOCAL POLICY WORDING - EXAMPLE ...... 30 11.1 RIBBLE VALLEY BOROUGH COUNCIL; LANCASHIRE ...... 30 11.2 NORTH WARWICKSHIRE BOROUGH COUNCIL; WARWICKSHIRE ...... 31 11.3 CHEDDINGTON NEIGHBOURHOOD AREA; AYLESBURY VALE; BUCKINGHAMSHIRE ...... 31 12 APPENDIX C – PLANNING INSPECTORATE CASE LAW – EXAMPLES ...... 32 12.1 STRETTON CROFT, RUGBY BOROUGH COUNCIL ...... 32 12.2 LAND NORTH OF HARBURY LANE, WARWICK DISTRICT COUNCIL ...... 32 12.3 KILLINGWORTH, NORTH TYNESIDE COUNCIL ...... 32 13 APPENDIX D – OPTIONS FOR DELIVERY ...... 32 13.1 CONSISTENT UNIVERSAL APPLICATION ...... 33 EXAMPLE: WARWICKSHIRE, COVENTRY & SOLIHULL (WCS) ...... 33 13.2 CASE-BY-CASE BASIS...... 34 EXAMPLE: ESSEX ...... 34 14 APPENDIX E – SECURING COMPENSATION WITHIN A PLANNING PERMISSION - EXAMPLE PERMISSION

WORDING...... 34

15 APPENDIX F – PLANNING RESPONSES ...... 35

15.1 EXAMPLE: ECOLOGICAL RESPONSE TO AN OUTLINE APPLICATION ...... 35

May 16 May | | 16 APPENDIX G – CASE STUDY ...... 36 16.1 CASE STUDY: VALE OF WHITE HORSE, SOUTH AND VALE ...... 36

Accounting for biodiversity in planning planning in biodiversity for Accounting

3 1 Introduction

Much of the wildlife outside of our protected areas is declining and our current systems of nature conservation are widely recognised to be inadequate (State of Nature report 2013). Better accounting of our impacts on biodiversity, and better methods of mitigating and compensating those impacts, are required to reverse declines (Lawton 2010; Natural Environment White Paper 2011; Ecosystem Markets Taskforce 2013).

This toolkit is designed to help local authorities introduce a transparent and auditable framework for accounting for biodiversity and, therefore, deliver their biodiversity obligations under the NERC Act and their planning responsibilities under the National Planning Policy Framework and Government guidance. The main document provides general information, whilst appendices reference more technical information.

The toolkit and metric allow evaluation of biodiversity loss and gain through development and the assessment of avoidance, mitigation and, where necessary, compensation measures (e.g. through a biodiversity offset scheme)1. This system gives predictable, accountable and coherent outcomes for biodiversity and contributes to the three pillars of sustainable development set out within the National Planning Policy Framework. It delivers proper ecological accountability for development.

2 The biodiversity metric

The biodiversity metric was designed by Natural England and introduced by Defra in 2012 as the main component in Government pilot schemes set up to test ‘biodiversity offsetting’ delivery systems. Compensation (offsets) is the last step of the mitigation hierarchy (first avoid, then reduce, and finally, compensate), and the pilots examined whether such off-site compensation – creating or restoring new wildlife habitat in a different place to where it was lost – was an effective way of ensuring biodiversity loss was properly compensated for.

Following the pilots, local planning authorities (LPAs) across the country are introducing the piloted metric (see The metric) as a useful accounting tool for assessing the impacts of development. The

May 16 May metric is a simple, powerful and transparent step for LPAs, which has now been tested and approved by | | the planning inspectorate in a number of cases.

The metric does not assume compensatory sites will be required and can, in fact, demonstrate on-site biodiversity gain has been achieved. Applying the metric drives up the quality of on-site mitigation so that there is often no residual impact to be compensated for. If, however, compensation is required, the same metric is used to evaluate the predicted gains at such sites so that no net loss, and preferably net gain, of biodiversity is achieved.

1 For the purposes of this toolkit ‘mitigation’ refers to on-site habitat retention, enhancement and recreation

measures within the development boundary. ‘Compensation’ refers to off-site habitat restoration and creation e.g. Accounting for biodiversity in planning planning in biodiversity for Accounting as part of a biodiversity offset scheme.

4 2.1 Working within the mitigation hierarchy Projects should seek firstly to avoid impacts to biodiversity, then to minimise them and, only lastly, after avoidance and mitigation measures have been taken, should residual impacts be compensated for – which may include permitting a development with a compensation requirement.

Figure 1. mitigation hierarchy

Source: Environment Bank (2014), adapted from Business and Biodiversity Offsets Programme

Requiring the use of the metric early in project development means there is a transparent and auditable trail of evidence to demonstrate good planning and design practice and appropriate consideration of what it means to provide ecologically sustainable development – this often reduces costs in the long run when a final residual impact that would have otherwise needed to be compensated for is minimised

or avoided.

2.2 Protecting important habitats

May 16 May | | All habitats are important, but some e.g. ancient woodland, limestone pavement, are irreplaceable and their loss cannot ever by fully compensated for. The metric (see the Government biodiversity metric) evaluates impacts for a wide range of habitats, but it does not override existing law or policy that protects nationally important sites and species. In essence, the higher the biodiversity value of a habitat the higher the metric score. Therefore, compensation for impacts to unprotected, but ecologically high value habitats, will be greater and more expensive for the developer, compared to farmland, for example. This encourages development away from higher value sites and guides decisions to avoid, minimise and mitigate impacts on the higher value habitats. Thus, the metric both strengthens the mitigation hierarchy and helps minimise ecological impact and compensation related costs for

businesses. Accounting for biodiversity in planning planning in biodiversity for Accounting

5 2.3 Low value habitats The NNPF aspires to 'net gain' or expects no net loss at a minimum. Therefore, it is implied that any biodiversity loss could fail the NPPF's Sustainable Development principles and could constitute significant harm (see Determining significance).

A critical advantage of the metric is that, as well as valuing ‘important’ habitats, it also places a value on poorer habitats that are currently often ignored or forgotten, such as species-poor grassland and farmland. The inability of the current planning system to account for the loss of these poorer habitats is a critical weakness, one that is driving the widespread loss of many of our commoner habitats and species. Impacts to lower value habitats are usually easy to mitigate for on-site, but if compensation is needed for such habitats, this can be effectively done through ‘trade-ups’ to the restoration or creation of more valuable habitats. Defra guidance (2012) states:

“Where development is taking place on habitats in the low distinctiveness band, the offset actions should result in expansion or restoration of habitats in the medium or, preferably, high distinctiveness band.” (Defra, 2012, paragraph 22).

2.4 Contributing to landscape-scale initiatives Green Infrastructure programmes usually aim to deliver conservation improvements by creating a ‘coherent ecological network’ of connected core areas (existing areas of importance to biodiversity, often designated sites) to maximise the benefits to wildlife. When compensation schemes are needed, developers can help fund the creation of these networks by targeting the location of schemes within an agreed spatial strategy (for more information, see Strategies for habitat compensation).

3 Why use this tool?

3.1 Supporting policy European, National and local policies are increasingly requiring no net loss, or net gain, of biodiversity, requiring all biodiversity impacts to be accounted for, not just impacts to priority habitats. Avoiding,

mitigating and compensating for the loss of biodiversity has been an objective of planning authorities

for decades. However, in the absence of any quantitative assessment of biodiversity value, decisions

May 16 May have been made via a series of subjective judgments and negotiation between developers and planners, | | and are, with hindsight, often found to be insufficient (Tyldsley 2012). The metric is designed to provide a consistent, transparent and auditable approach to assessing the impacts to a range of habitats, treating all developers equally and consistently.

An increasing number of local authorities are now using the metric and, where compensation sites are required a model of securing and delivering them in the planning system has been tested at officer, committee and inspectorate level. Planning authorities are entitled to use the metric to aid their decision-making wherever and whenever they wish and, should they choose to do so, the metric

considers the biodiversity value of all habitats. Accounting for biodiversity in planning planning in biodiversity for Accounting

6 Details and context of policies and frameworks that support the introduction and application of a No Net Loss compensation/offsetting strategy using the government metric are provided in Appendix A. These are:

 EU Biodiversity Strategy 2020;

 Natural Environment White Paper 2011;

 NERC Act 2006;

 National Planning Policy Framework 2012;

Other guidance and standards ‘Planning Practice Guidance for the Natural Environment’ (Planning portal 2014) and the British Standard for biodiversity in planning (BS 42020:2013) both recommend this system of biodiversity accounting as an appropriate mechanism of delivering biodiversity compensation. Specific wording is provided in Appendix A.

Local Plan Policy Appropriate biodiversity accounting and compensation, required under the NPPF, can be strengthened and made more specific to local scenarios by inclusion within Local Plans or within Supplementary Planning Guidance. Any compensation that is required can also be a funding mechanism for meeting local green targets for improved habitat quality, extent and landscape connectivity. Where local plans are still being drafted there may be opportunities to improve upon previous compensation standards or to detail use of the metric specifically as a recommended accounting mechanism.

Where local policy is not in place the NPPF should be referred to and supplementary planning guidance can be implemented to outline the local approach to biodiversity assessment and compensation.

On request, Environment Bank can provide a number of examples of adopted (and drafted) Local Plan policies where the metric, no net loss to biodiversity and a model for delivery of compensation is

referenced. Similarly, assistance is also available for the development of supplementary planning

guidance. See Appendix B for examples of adopted Local Plan wording.

May 16 May | | 3.2 Planning Inspectorate case law Planning applications using the metric are increasingly being granted with requirements to secure compensation via Conservation Credits. Case law is also building as planning applications involving the metric and subsequent compensation are approved by the Planning Inspectorate. For an example of case law see Appendix C. Additional case law is available from Environment Bank, on request.

4 Introducing the tool into your planning system

To receive the most benefits from implementing the metric, a consistent approach should be used to enable transparent accounting and a level playing field for all planning applicants. Whenever an

Accounting for biodiversity in planning planning in biodiversity for Accounting ecological habitat survey is received a metric assessment should be completed to assess the

7 information provided in a standardised, comparable way to confirm levels of required mitigation and compensation. With available resources limited for many planning authorities, a number of options are available – these are described below.

4.1 Options for delivery

Consistent universal application (Warwickshire model - recommended) - The metric is applied to all planning applications.

In this model of delivery, local authorities apply the metric to all planning applications received so that ecological survey information is accompanied by impact calculations, which inform planning responses. When local authorities require consistent application of the metric, a standardised, unbiased approach to the planning decisions is promoted. Any negotiations regarding adherence to the mitigation hierarchy can also be made using the impact assessment calculations as an evidenced framework. Understandably, many authorities will be concerned about the start-up time and resources they can provide to this initial step of applying the metric but Environment Bank can provide support in a number of ways:

- advice and support regarding specific calculations using the Environment Bank calculator (see Excel-based calculator);

- discounted training for local authority ecologists;

- full biodiversity impact assessment, calculation and reports for developers at Environment Bank consultancy rates, commissioned by the developer (but potentially at the request of the local authority).

- See our service below for more information.

Authorities will also find that, with practice, biodiversity assessment calculations will be quick to do and will save time that may otherwise have been spent on lengthy negotiations with developers regarding

the significance of their impacts.

Case-by-case application (Essex model)

May 16 May | | - The metric is applied by the local authority on a case-by-case basis.

In this model of delivery, local authorities request calculations for certain, larger impact developments, either to test the mechanism in practice or because there are only a proportion of planning applications where the authority feels an impact assessment of this nature is appropriate.

Further details on the Warwickshire and Essex models for delivering biodiversity accounting and compensation are provided in Appendix D.

Accuracy and validation Where ecological consultants working for developers submit biodiversity metric calculations, there are

a number of issues around accuracy and validation of results that authorities need to be aware of. Accounting for biodiversity in planning planning in biodiversity for Accounting

8 Firstly, large variations between impact calculations may occur where there may be a misunderstanding of how the metric is applied, a lack of experience, or little guidance available. Although the metric design is relatively simple, incorrect judgments on how a habitat type is ranked, particularly in terms of the assessment of condition, can cause significant variations in the calculations received by local authorities.

Secondly, it is always best if the calculations on biodiversity impact at the development site are done using the same system (and preferably by the same organisation) as the calculations for biodiversity gain at the receptor site. In this way the LPA can be assured of consistency in biodiversity assessment and the use of a standardised approach.

It is up to a local authority as to how they implement any system, but please note that Environment Bank offer training and validation services (see Support, training and validation).

4.2 When to apply the metric As previously noted, public authorities have a specific duty under the NERC Act to consider biodiversity and are required by Government to deliver no net loss (and preferably net gain) of all biodiversity through a series of national policy instruments, making biodiversity assessments and compensation material considerations in determining all planning applications.

Thus, we recommend that local planning authorities use the metric for all non-trivial planning cases where biodiversity may be affected, as is done in Warwickshire. In any event, it is clear that Planning Authorities are entitled to use the biodiversity metric to aid their decision-making wherever and whenever they wish and, should they choose to do so, the metric considers the biodiversity value and compensation requirements of all habitats.

The issue, of course, is how to decide what is ‘non-trivial’ and whether this equates to the phrase ‘significant harm’ set out in para 118 of the NPPF, which is yet to be defined in law.

Significance

In considering ‘significance’, note that Defra guidance (2012) states:

“There is no definition of significance. However, the term relates to the magnitude of impacts,

either alone or in combination, including those which may be temporary during construction,

May 16 May | | rather than the size of the development under consideration. Small developments can have significant impacts on biodiversity.”

Certainly, we advise that ‘significant harm’ does not solely refer to impacts to priority habitats (referred to in planning policy terms in para 117 of the NPPF), nor only to designated sites. Current policy (British Standard for biodiversity and planning (BSI 2013); BS42020: 2013 paragraph 5.1) states that impacts to ‘non-priority’ habitats, which also contribute biodiversity value, may also be considered ‘significant’ enough to require compensation measures. Biodiversity accounting is designed to demonstrate and deliver No Net Loss of biodiversity for impacts to all habitats which contribute to biodiversity and this

includes low value habitats. Accounting for biodiversity in planning planning in biodiversity for Accounting

9 So defining ‘significance’ in this context does not have a simple answer. Assessing impacts relates not only to habitat type (priority or not), and extent of habitat loss, but also to other considerations, including distinctiveness, rarity, condition, supported wildlife populations, location, extent of impact on site and local green infrastructure. Larger losses to low value habitats can be just as important to compensate for as smaller losses of high value sites.

Finally, local judgments are also important for determining appropriate levels of significance and so local authorities are encouraged to develop guidance on what impacts they consider to be significant.

Thresholds A separate approach to ‘significance’ is to set a ‘threshold’ for what is, or isn’t, non-trivial. Either a threshold could be set, below which the metric is not required to be used - either by area of impact (e.g. 0.5ha+) or development type (e.g. all major developments.) – or a threshold for action could be set after the metric has been applied for applications (e.g. no compensation is required for any development where the residual impact is less than 2 biodiversity units).

Environment Bank strongly recommends the latter approach – as it is a quantitative and evidence- based justification for planning action. If the former approach is to be used, we caution against a threshold being too high. Evidence from the pilots shows that although large scale major developments do tend to have the larger biodiversity impact, minor developments actually have a larger impact per hectare due to the reduced portion of land available for on-site compensation and therefore contribute significantly to a net loss of biodiversity across a region.

By applying the metric to all applications, thresholds can then be set to determine what level of biodiversity impact is required to be compensated for, or what could be considered a negligible loss and/or potentially better compensated for on-site through species enhancement (e.g. bat boxes). Similarly, however, we caution that it is not just a matter of unit loss, but also the habitat type being lost and its value to the surrounding landscape and other wildlife. Nevertheless, use of the metric allows such judgements to be empirically based, transparent and defensible - rather than the subject of

negotiation between the differing opinions of consultants working for different clients.

4.3 Steps in applying the metric and delivering ‘no net loss’

The steps taken in a typical case are listed below:

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1. Planning application is submitted to the local authority with ecological habitat survey information. 2. Local authority review planning application and the Local Government Ecologist (or Environment Bank, on request) assesses the survey information provided, using the metric to calculate the biodiversity impacts and confirm whether there is a biodiversity loss (see the Government biodiversity metric). 3. Comments are provided to the relevant planning officer regarding the biodiversity unit loss (or gain) and any requirement to provide compensation. 4. Additional information may be requested to clarify the results of the impact assessment to

ascertain if on-site mitigation can be improved. Accounting for biodiversity in planning planning in biodiversity for Accounting

10 5. The biodiversity impact is confirmed and any requirement for a compensation scheme is secured by condition/s106 obligation on the permission granted (see Planning conditions and s106 obligations). 6. Prior to commencement of development, Environment Bank will work with the developer to secure an appropriate compensation scheme of suitable habitat type, location and Conservation Credit supply to compensate for the impact, that also meets the local biodiversity compensation strategy and approval by the local authority. NB: Any requirement for a long- term on-site ecological management plan should be expected to meet the same standards as off-site compensation (see Finding and securing compensation), and is also secured in the

planning permission.

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Accounting for biodiversity in planning planning in biodiversity for Accounting

11 Figure 2. Flow chart of the EB biodiversity accounting/compensation process

Source: Environment Bank (2016)

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Accounting for biodiversity in planning planning in biodiversity for Accounting

12 4.4 Outline and full developments If off-site compensation is required, then how it is secured within the planning system will vary depending on whether the application has full details or is outline with some matters reserved.

Full applications are straight forward as per the process above. Biodiversity impacts are assessed during the determination phase of the planning application and compensation, if required, is secured within the planning permission. Prior to commencement of development an appropriate compensation site will be identified, approved by the LPA and then implemented.

Outline applications need a 2-step assessment. To provide appropriate comments at outline the assessment and broad compensation recommendations will need to be made and potentially secured within the s106. However, recalculation of the biodiversity impact at the reserved matters application may be needed if there are changes to the layout of the development or level of on-site mitigation. It is this revised impact that should be compensated for through an appropriate scheme.

The 2 step approach of outline and reserved matters can offer some advantages, such that should insufficient information be supplied at outline regarding the level of on site compensation achievable within the scheme, a precautionary approach to the calculations can be taken, with full details (such as an ecological management plan) supplied at reserved matters to inform the reassessment.

4.5 Planning conditions and s106 obligations – securing compensation When they are required compensation sites need to be secured on planning permission, via a planning condition or section 106 obligation. Environment Bank have a database of approved wording for both conditions and s106 obligations for various scenarios, including appropriate definitions to be included within the s106. Example wording is provided in Appendix E, and additional scenarios are available upon request. We can work with local authorities to further refine this wording for either planning conditions or s106 obligations on a case-by-case basis to suit their requirements.

Community Infrastructure Levy (CIL) Due to the bespoke biodiversity assessment which is carried out on each development site and

associated compensation scheme, and the necessity for full funding from each development which may

vary for each receptor site, CIL is not viewed as a viable delivery mechanism for this system.

May 16 May | | Specifically, legal opinion concludes that compensation receptor sites selling Conservation Credits, including ‘habitat banks’ (large sites selling credits to multiple developers – see Habitat banks) do not meet the definition of ‘open spaces’i and are not ‘infrastructure’ because they do not (unlike Suitable Alternative Natural Greenspace SANGs) have a purpose for human recreation – they are for wildlife. Furthermore, the CIL regulations set out charges per unit area, whilst biodiversity impact is not determined by the area of development. CIL is therefore not an appropriate mechanism for financing compensation sites/habitat banks.

Accounting for biodiversity in planning planning in biodiversity for Accounting

13 Section 106 obligations

Although conditions are a suitable and flexible tool for securing compensation requirements, s106 obligations may be considered more robust by some local authorities, in terms of enforcement.

Each s106 obligation must meet the three Community Infrastructure Regulations tests that are repeated in the National Planning Policy Framework (NPPF):

a) necessary to make the development acceptable in planning terms; b) directly related to the development; and c) fairly and reasonably related in scale and kind to the development.

See Compliance below

Requirements relating to this system of biodiversity accounting/compensation under conditions and s106 agreement have been accepted by the planning committees and planning inspectorates. An example wording is provided in Appendix E.

Habitat banks The use of s106 obligations is restricted by the CIL regulations but, because CIL is inappropriate, regulation 123 restricting the number of obligations that can be pooled to 5 or less schemes, does not apply to habitat banks. Furthermore, legal opinion concludes that habitat banks, when properly constituted, meet all the tests of regulation 122 (necessary, directly and reasonably related). S106 obligations have previously been used to deliver several habitat compensation schemes.

Planning conditions

National guidance suggests conditions are preferable to obligations and ‘Grampian’ style negative May 16 May

| | conditions – prohibiting commencement within a permission authorising development – are a well

understood mechanism for securing the provision of off-site matters. They are less ideal than s106 obligations because of the restrictions on specifying financial undertakings and commitments, but they have been used to specifically deliver biodiversity compensation schemes, with wording agreed by the Secretary of State and through the Planning Inspector.

Conditions also have the benefit of being more flexible such that they can be imposed at reserved matters stage rather then at outline when a revised calculation will be needed (although the likely requirement for any compensation should be detailed within outline responses) (see outline and full developments).

In order to comply with the requirements of Circular 11/95, a condition must be: Accounting for biodiversity in planning planning in biodiversity for Accounting

14 1. Necessary; 2. Relevant to planning; 3. Relevant to the development to be permitted; 4. Enforceable; 5. Precise; and 6. Reasonable in all other respects.

See Compliance below.

Another advantage to conditions, particularly for smaller developments) is their reduced costs compared with that of preparing a s106 obligation.

Compliance In order to be compliant with Circular 11/95 and CIL regulations, compensation, when secured on planning permissions by condition and s106 obligations respectively, must be necessary for the development to meet national and local policy, related to the specific development and reasonable to the scale of the scheme.

Biodiversity accounting and associated compensation requirements would meet the three tests set out above if:

 The proposed development site has been, or is to be, assessed for its biodiversity value and may contain habitats, species of flora and fauna which would be harmed by the development and which, but for satisfactory compensatory measures, would be a reason to refuse planning permission for the development ie. the development needs to appropriately compensate its impacts;

 The compensatory measures that could be provided by retaining or re-creating the habitat and/or re-locating the species of flora and fauna elsewhere within the site boundary would not be sufficient to guarantee full compensation of the impacts within the scope or the development, resulting in an overall loss of biodiversity.

 The use of the metric to individually calculate specific development impacts to all habitats

ensures that any residual loss and resulting compensation is assessed fairly and is directly

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related to the development. A Conservation Credit purchase is then required to deliver the appropriate compensation necessary to make the development compliant with planning policy, as set out in the NPPF in Appendix A and local planning policy where appropriate.

 The loss of biodiversity on this site could be adequately compensated by the enhancement of biodiversity ‘receptor’ sites elsewhere, selected to meet any potential habitat requirements and assessed as likely to deliver appropriate biodiversity compensation using metrics as per the Government’s guidance on metrics and multipliers and as set out in Defra's documentation (see the Government biodiversity metric);

 Enhancement of the identified biodiversity receptor sites could be achieved via the purchase of

Accounting for biodiversity in planning planning in biodiversity for Accounting Conservation Credits.

15 Satisfaction of the remaining three tests would depend upon the wording of the planning permission and the delivery mechanism for the off-site compensation scheme. It is suggested that the wording in Appendix E would meet those tests.

Compensation sites need to be secured in a robust and enforceable way. Environment Bank delivers schemes secured through legal agreements and cover the legal ‘securing of long-term funds’ issue. If needed, the requirement for use of a conservation broker or an Environment Bank Conservation Credit Purchase Agreement (CCPA) and Conservation Bank Agreement (CBA) (see Legal agreements) can be referenced within the condition or otherwise considered as part of the ‘Compensation Scheme’ which is approved by the LPA prior to commencement.

4.6 Example planning responses Each response will have to be tailored to the development and the issues discussed above, such as whether a development is full or outline and if a recalculation will be needed at reserved matters (see outline and full developments). A template planning response, which addresses a biodiversity impact calculations, resultant loss and subsequent compensation requirement are provided in Appendix F. Environment Bank also have a range of other planning response templates that can be provided on request.

5 The Government biodiversity metric

The Government metric is a biodiversity accounting tool used to quantify losses and gains. The metric calculates the scale of a habitat impact or an enhancement by multiplying the area (hectares), distinctiveness (habitat type) and condition (quality) of each habitat parcel.

When losses are assessed – where impacts to habitats will occur - the calculation provides a negative score as habitat is being lost to development. This provides an evidence base for discussions regarding on-site mitigation and off-site compensation requirements.

When gains are assessed – where habitats are enhanced or created on-site, or off-site – a similar calculation is made but risk factors that account for difficulty and temporal delays are also applied. The

score will be positive where gains are being delivered. Habitats that are more difficult to restore or that

May 16 May | | will take a long time to reach a set target condition will score lower, these generate fewer credits and therefore a larger area is required area to deliver sufficient compensation.

When on-site gains do not outweigh on-site losses and a net biodiversity loss is calculated, this negative biodiversity loss becomes a compensation requirement. When compensation schemes are matched to impacts they are assessed using the same metric to balance predicted gains against the losses to ensure no net loss will be achieved.

The metric has the advantage of enabling an assessment of the biodiversity value and impacts to all habitats, not just priority habitats under NERC 41, enabling robust delivery of the No Net Loss principal. In addition, Defra (and Environment Bank) promote a ‘no down-trading’ policy within the metric,

whereby habitat loss must be compensated by habitat of the same value or higher - loss of high Accounting for biodiversity in planning planning in biodiversity for Accounting

16 distinctiveness habitats such as lowland meadow and broad-leaved woodland must be compensated for like-for-like.

In addition to the difficulty and temporal factors applied to the gain calculations, a spatial factor is also applied to account for the location of the compensation receptor site in the local landscape. That is, if a site is not within an area identified as strategic for biodiversity enhancement by the local authority (see Strategies for habitat compensation below), the credit value of the site is reduced and, again, a larger area will be required to deliver the appropriate compensation (in conservation credits).

5.1 Strategies for habitat compensation Habitat restoration and creation strategies, funded through compensation schemes, should support national and regional targets for biodiversity enhancement and seek opportunities to support the delivery of local biodiversity priorities. Spatial strategies should locate compensation in areas where biodiversity improvements are likely to have the most beneficial results at a strategic scale. The location of receptor sites can be based on map-based guides prioritising local landscape-scale objectives, such as restoring habitats in areas that will enhance landscape connectivity or expand existing sites of biodiversity importance. Strategies can be based on:

 Biodiversity Opportunity Areas;

 Nature Improvement Areas;

 Living Landscapes;

 Habitat and connectivity mapping.

In pilot areas map-based guides were generated using knowledge and mapping of existing habitat distribution and living landscapes maps. As mentioned above, a spatial factor is applied to calculations at compensation sites outside strategic areas.

If a strategy is not in place, this is not an issue – Environment Bank can work with authorities to

generate these strategies or work with the relevant local authority to gauge requirements (e.g. sites

must be found within the authority boundary or within a particular radius from the development) prior

to searching for sites to ensure compensation schemes meet local priorities for conservation.

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5.2 Online calculator Environment Bank has developed an indicative calculator for assessment of biodiversity impacts, this is available and free to access online at the following web address;

http://www.environmentbank.com/impact-calculator.php

This simple version of the calculator is a useful tool for getting a feel for the metric, however, please be aware that it is not suitable for site specific calculations which may need to take into account on-site mitigation, down-trading, indirect impacts and compensation measures.

Accounting for biodiversity in planning planning in biodiversity for Accounting

17 5.3 Excel-based calculator Excel-based calculators for applying the government metric - one for assessing development impacts (losses or gains) and one for assessing the gains (compensation) at the receptor site - were developed by Warwickshire County Council in partnership with Environment Bank as part of the Defra pilot. These calculators have been further developed by Environment Bank and are now available for use nationally. Our impact assessment calculator for development projects is included as part of this toolkit.

Although this calculator is designed to be intuitive with easy habitat input, a review of any calculations and associated survey information is still required to ensure that assessments are correctly implemented and appropriate to the site situation, especially for first time users. As well as ongoing support to local authorities, Environment Bank offer training for local authority ecologists and validation of calculations for specific developments (see Our services).

6 Compensatory habitat schemes

6.1 Approving an scheme A number of elements need to be taken into account by local authorities when selecting and approving schemes that deliver habitat compensation. When brokering schemes Environment Bank addresses various issues by using a set of standard procedures and taking additional measures on a case-by-case basis to ensure each scheme is likely to be appropriate and satisfactory prior to presenting it to the local planning authority for final approval. Each authority should ensure the standards they require of compensation are appropriate and applied to all schemes.

Site selection For each compensation receptor site required the local authority will need to approve the site selection. Aspects that may need to be considered and weighed-up include:

Required:  Credit gain is sufficient

 Any like-for-like requirements for high distinctiveness habitat loss have been met

Potential considerations:

May 16 May | |  Target habitats are appropriate (if a specific requirement needed)  Site is within a strategic biodiversity area  Site is within the local authority boundary  Site is within a set distance of development

Delivery In approving the site the local authority will also need to be satisfied that delivery will be assured, such that the following are appropriate:

 Management period, e.g. 25 years;  Site survey information, biodiversity gain (credit) calculations and management plan are available;  Sufficient funds have been allocated to deliver management long-term, anticipating costs such as Accounting for biodiversity in planning planning in biodiversity for Accounting legal, administration, monitoring, reporting, foreseeable risks, insurance and inflation;

18  A delivery mechanism is available – e.g. enforceable legal agreements to ensure management is undertaken;  Monitoring and reporting arrangements have been made, to ensure management is being delivered as per the legal agreements.

Determination vs commencement An important consideration for a local authority is when they require final approval of the compensation scheme. Most authorities are satisfied that compensation is secured after permission of an application but prior to commencement of development (including all ground clearance works - from an ecological perspective the compensation delivery needs to be initiated at the stage of impact, not at occupation of dwellings).

On occasion, potentially for more contentious proposals, a local authority or applicant may request that a compensation site is identified prior to determination of the planning application. This is still a viable option and does allow for final accurate costs to be known at this stage. However, in these cases, it will usually be unreasonable to ask that a compensation site provider commits to selling credits (biodiversity gain units) to a developer who may not commence development, and therefore pay for the credits, for a number of years. Therefore, receptor sites found pre-determination should either receive funding (via a credit sale) at permission, or Environment Bank option agreements are explored so that a compensation scheme can be ‘held’ until commencement. In areas where there is a high demand, Environment Bank is establishing habitat banks (see Habitat banks) where large habitat restoration projects can be costed up-front with work on some beginning immediately with credits being brought forward for sale and the credits sold over time to multiple developers requiring compensation. Habitat banks enable location pre-selection, pre-known costs and a ready land supply where smaller developers can benefit from the economies of scale – all of which may contribute to satisfying the above issue.

7 Case Studies

Hundreds of impact calculations have now been done for developments across England using the

government metric – most by Environment Bank and ecologists within Warwickshire. While a number

May 16 May | | of compensation schemes are being arranged, but not yet complete, multiple case studies demonstrating the full process in practice are not yet available but will be added to this toolkit in subsequent versions. However, one case, the first compensation site secured (where conservation credits were sold to a developer) in England, has been briefly described in Appendix G.

8 Environment Bank

This section details our process in doing biodiversity accounting calculations and securing compensation sites as well as the services we are able to offer to local authorities and developers.

Accounting for biodiversity in planning planning in biodiversity for Accounting

19 Appendices to Evidence of Francis Hesketh on Ecology. Daw Mill Colliery, Tamworth Road, Arley For the Appellant, Harworth Estates PINS Reference: APP/R3705/W/3149827

APPENDIX F: Phase 1 Habitat Survey (2016)

5781.01.006 Appendices January 2017 Version 1.0

426000 KEY Survey Boundary H% Target Notes

0 E Scattered Scrub

B Fence Wall TN26 H% Semi-natural Broad-leaved Woodland

th a ) P m Plantation Broad-leaved Woodland (u

TN24 T H% A M Dense/Continuous Scrub R W O O A R MG MG MG MG E D E T Modified Neutral Grassland E H E MG MG MG MG TN23 H% Tall Ruderal TN20 E % E TN25 Standing Water H Tr E % ack E H Tra Running Water ck H% H% TN27 H% TN22 B 4 Buildings 098 TN21 ! ! ! ! ! ! ! ! ! ! ! ! ! ! H% TN31 ! ! ! ! ! ! ! Bare Ground TN29 E ! !E ! !E ! !E ! E EE TN36 H% ! ! ! ! ! E E E E E E E EBare Ground/Ephemeral Mix E H% TN34 ! ! ! ! ! MP .5 E E E E E E E E T E E TN28 % A ! ! ! ! ! TN19 E H M E H% E E E E E E E E H% W Hardstanding E O E R E E T E E H E R E O A D

E E TN33 % Reproduced by permission of Ordnance Survey on behalf of Her Majesty's H E E H% TN18 TN30 E E Stationery Office. E E E E H% E E Contains OS data © Crown Copyright and database right 2016. All rights reserved. E TN32 H% E Reproduced from Ordnance Survey digital map data © Crown copyright 2016. E E All rights reserved. Licence number 0100031673 E Site Map

TN35 H% SL TN1 M P H% . H% 75 TN2 E B

0 TN3 0 E 0 H% 4 0

0 SL E 0 0 9 0 E 8 0 9 9

2 E 2 E E TN4 H% H% TN5 TN17 TN10 TN6 % H% H% TN8 H H% TN7 H% H% TN11 TN9 H% H% 1:30,000 TN16 H% TN14 A Habitat Survey Update MK FH 11/11/2016

Rev Description Drawn Approved Date H% Guide % TN13 Post TN15 H H% TN12

Genesis Centre, Birchwood Science Park, Warrington WA3 7BH T r a Tel 01925 844004 e-mail [email protected] www.tep.uk.com c

k Project Daw Mill Colliery Public Inquiry Environment Impact Assessment

Title Phase 1 Habitat Survey

Drawing Number G5781.01.001A Metres Drawn Checked Approved Scale Date 0 50 100 200 JS AN AN 1:4,000 @ A3 14/11/2016 426000 Target Description Note Habitat Fauna 1 Small single-story building with brick walls The walls, roof and weatherboard were in a and large windows covered with metal moderate state of repair, with no obvious bat panels. The building has a flat felt-covered access points. The building was assessed roof and wooden weather boarding around as having negligible bat roost potential. the upper walls. The building is approximately 2.5m in height. The door had been forced open and the windows smashed from the inside. The building was damp within. 2 Thin strip of modified neutral grassland A juvenile common frog was recorded within beside the access road. The sward is the grass. dominated by Yorkshire fog and red fescue, with frequent perennial rye-grass, common cat’s-ear and self-heal and occasional sweet vernal, cock’s foot, false oat-grass, common dandelion, yarrow, white clover, creeping thistle and ragwort. 3 Area of mixed plantation woodland on a The woodland provides suitable cover for steep slope around the edge of the site. badger sett excavation, although no The canopy comprises abundant Scots pine, evidence of badger activity was recorded. with occasional ash. The tallest trees were The trees were in a good state of health, approximately 12m in height. The woodland with no obvious features with the potential to has a patchy sub-canopy of hawthorn, support roosting bats. This area of pedunculate oak and apple species and a woodland was assessed as having scrub layer dominated by bramble, with negligible bat roost potential. occasional broom. 4 Area of open hard standing where buildings have been demolished. The floors and foundations of the buildings are still present. Occasional sparse tall ruderal vegetation is present. Small strips dominated by rank grasses and tall ruderal species are present where modified neutral grassland used to be present between the road and the former building, with occasional common nettle. 5 Single story building, approximately 5m in The walls and roof were in a good state of height, with brick walls and a flat felt- repair, with no obvious bat access points. covered roof. Minor area of the building The building lacks a roof void. The building have a flat cement roof. All doors and was assessed as having negligible bat roost windows were sealed with metal shutters, potential. with rubble heaped around the building to a height of 2m preventing access. 6 Brick wall/structure, approximately 5m in The structure was solid and in a good state height. The foundations of a larger building of repair, with no potential bat access points. were evident adjacent to the structure. The structure was assessed as having negligible bat roost potential. 7 Exposed sandstone outcrop along the edge of the site. Self-set willow and ash saplings were present throughout this area, with broom and bramble scrub also present. 8 Large area of open hard standing where buildings have been demolished. The floors and foundations of the buildings are still present, with large rubble piles remaining. Occasional sparse tall ruderal and scrub Target Description Note Habitat Fauna vegetation is present, with rosebay willowherb and butterfly bush present. 9 Tall brick built structure, approximately 10m The structure was solid and in a good state in height. of repair, with no potential bat access points. The structure was assessed as having negligible bat roost potential. 10 Large area of open hard standing where buildings have been demolished. The floors and foundations of the buildings are still present, with large rubble piles remaining. 11 Large warehouse building, approximately The building is in a poor state of repair, with 8m in height. The lower walls are holes in the roof and upper walls and areas constructed from brick, with the upper walls of missing masonry. No obvious bat access comprising metal sheeting, with a shallow points were observed and the building pitched roof constructed from metal largely lacks features with the potential to sheeting. The building was open at one end support roosting bats. The building is through a large door. assessed as having negligible bat roost potential. 12 Small bunded area containing standing The standing water does not represent water, with vertical walls approximately potential amphibian breeding habitat due to 0.75m in height. The structure is the vertical walls preventing access. approximately 6m in length by 4m in width, with an unknown depth. The structure is mainly filled with orange silt, with standing water of approximately 0.1m in depth. Occasional bulrush has colonized the structure. 13 Strip of dense scrub on a steep bank The scrub covered bank provides suitable covered with gravel. The scrub is cover for badger sett excavation, although dominated by hawthorn, with occasional no evidence of badger activity was recorded. rose species, bramble and self-set ash saplings. 14 Area of hard standing, with sunken areas The standing water habitats within this area containing marshy habitat and areas of represent potential amphibian breeding standing water. The marshy habitat is habitat, although the standing water is likely dominated by dense bulrush, with to be ephemeral in nature. The areas occasional common reed and great contain limited submerged aquatic willowherb present. Standing water is vegetation suitable for egg laying and open present in places, up to 0.2m in depth. A water suitable for courtship behavior. large round sunken structure contains Aquatic invertebrate prey appears to be deeper standing water, approximately 0.3m limited, although the surrounded terrestrial in depth and choked with blanket weed. habitats are suitable. Water boatmen were observed within this area, although no other aquatic species were noted. The standing water/marsh habitats in this area form part of an area of open mosaic habitat around the site perimeter, with the adjoining former railway siding area. 15 Large concrete water treatment tanks The tanks do not represent potential adjacent to the site, surrounded by a 2m amphibian breeding habitat with the high high concrete wall. The tanks have a silt concrete walls preventing access. substrate and standing water approximately 0.5m in depth. The tanks contain no aquatic Target Description Note Habitat Fauna vegetation, with no aquatic invertebrates obvious 16 Scrub on a low embankment delineating the Fox and rabbit prints were observed within southern site boundary, separating the site an area of soft mud. Bullfinch and blackbird from the railway line. The scrub is were seen, with a buzzard heard calling. dominated by hawthorn, with frequent ash saplings and occasional field maple and rose. The scrub is approximately 7m in height. Within the site boundary the habitat comprises area of bare ground, patchy tall ruderal vegetation and rubble, with wooden and cement blocks present. The habitat within this part of the site forms part of a wider area of open mosaic habitat around the periphery of the site. 17 Old water treatment/settling tanks sunk into the ground and surrounded by metal railings. The tanks are approximately 2.5m in depth, with a silt substrate. The tanks lack standing water. The tanks are vegetated with frequent bulrush, great willowherb and colt’s-foot. 18 Former railway sidings dominated by railway sleepers and tracks, areas of bare ground, ephemeral and short perennial herbs and tall ruderal species, with butterfly bush scrub and silver birch saplings starting to colonise. The habitat within this part of the site forms part of a wider area of open mosaic habitat around the periphery of the site. Adjacent to the railway sidings is an area of concrete hard standing and a walled area. The short perennials include Crepis capillaris, Hypericum perforatum, Potentilla sterilis, Conyza Canadensis, Lotus corniculatus, Prunella vulgaris, Geranium molle, Plantage major, Agrostis capillaris, Agrostis stolonifera, Tripleurospermum inodurum, Oenothera biennis, Centaurium erythraea, Centaurea nigra. 19 Long fenced-off sunken lagoon. The lagoon Brown hare recorded on the railway sidings. is heavily vegetated with common reed and it is unclear whether standing water remains. Bramble scrub and silver birch saplings grow on the lagoons banks. The habitat within this part of the site forms part of a wider area of open mosaic habitat around the periphery of the site. 20 Disused railway sidings join the live railway line in this location. Dense scrub is present on either side of the disused tracks. 21 Dense scrub on an embankment leading down to the River Bourne. The scrub was dominated by hawthorn and bramble, with occasional semi-mature ash and oak trees. Target Description Note Habitat Fauna 22 The River Bourne emerges from a culvert in Although no fish were observed within the this location. The river is approximately 4m river, the aquatic and riparian habitats wide by 0.2m in depth, with a gravel and silt represent potential habitat for otter. The substrate and slow flowing water. The rivers banks also appear to be suitable for burrow soil banks are set at around 45° and excavation and provide potential habitat for vegetated by a strip of riparian woodland water vole. dominated by small but mature alder, with occasional oak and ash. Himalayan balsam was present along the banks. 23 Three long sunken lagoons, approximately The lagoons provide potential habitat for 60m in length by 15m in width, of unknown water vole and grass snake. depth. The banks surrounding the lagoons were set at 45° and sloped approximately 1.5m down to water level. Bulrush dominates the lagoon margins, with frequent common rush. Occasional broad-leaved pondweed and rare water plantain are present within the shallow margins. Scattered silver birch, willow species and alder saplings were present on the sloping banks surrounding the lagoons, with bare ground and tall ruderal species on the level banks between the lagoons. Open water was present in the center of the lagoons. 24 Large area of bare ground sparsely Wood pigeon and magpie recorded within vegetated by tall ruderal species. The this area. substrate appears to be coal dust. The habitat within this part of the site forms part of a wider area of open mosaic habitat around the periphery of the site. 25 Large area of open cement hard standing. No vegetation is present within this area. 26 Slope/embankment delineating the northern site boundary. The bank is vegetated with close-grazed grass and introduced scrub, dominated by hawthorn and silver birch, with occasional willow species and guilder rose and self-set white poplar saplings. The habitat within this part of the site forms part of a wider area of open mosaic habitat around the periphery of the site. 27 Large warehouse building, approximately The building lacks features with the potential 15m in height. The building is open at either to support roosting bats and was assessed end and around much of the base of the as having negligible bat roost potential. building. The upper walls are covered with metal sheeting, with a pitched metal sheet roof, supported by a large iron structure. 28 Two story building, approximately 7m in The walls, roof and fascia boards are in a height. The walls are constructed from moderate state of repair, with no obvious bat brick, with a tile-covered pitched and hipped access points. The inside of the building roof, with wooden fascia boards around the was in a poor state of repair, with evidence base of the roof. The windows and doors of fire damage and the second-floor ceiling had been sealed with metal panels, although having collapsed. The building was assessed as having low bat roost potential. Target Description Note Habitat Fauna these had been damaged and removed in places. 29 Large open area of bare ground, mainly covered with coal dust. A large shallow area of standing water is present which has attracted a flock of common gulls. 30 Large area of hard standing with two The concrete structures contain concrete structures around the edge. underground area and could potentially be used by hibernating bats, although stand within a very exposed area of habitat. 31 Area of semi-mature broadleaved plantation The trees are generally in a good state of woodland along the northern site boundary. health, with no obvious features with the Sycamore was dominant within the canopy, potential to support roosting bats, although with occasional Scots pine, oak, ash, field not all trees were inspected at close maple, alder, cherry and silver birch. The distance. The woodland was assessed as tallest trees are approximately 10m in having low bat roost potential, although height, but most semi-mature trees were represents potential foraging habitat and a smaller than this. flight line. 32 Large metal warehouse building, The building is in a poor state of repair, with approximately 7m in height. The walls were holes in the walls and roof, although lacks constructed from metal sheet, with a pitched features with the potential to support metal sheet roof, supported by an iron roosting bats. The building is assessed as frame. The building was open at one end. having negligible bat roost potential. 33 Area of hard standing, previously used as a car park. The tarmac is broken up in places allowing for colonization by tall ruderal species, butterfly bush and silver birch saplings. 34 Derelict two-story house within a strip of The walls and roof are in a poor state of mature mixed plantation woodland outside repair, with masonry and tiles missing. of the sites northern boundary. The building Parts of the roof and walls are covered with has brick walls and a pitched tile covered dense ivy. The building is assessed as roof, with gable ends. The former garden having high bat roost potential. area to the west of the house is now dominated by bramble scrub. 35 Area of open hard standing where buildings have been demolished. The floors and foundations of the buildings are still present. Occasional sparse tall ruderal vegetation is present. 36 Narrow dry ditchline with stand of Phalaris arundinacea marking out the line of occasional flooding – the ditchline captures surface water from the surrounding hardstanding, but appears to follow the line of the culvert of the Bourne which is presumed to be at greater depth.

Appendices to Evidence of Francis Hesketh on Ecology. Daw Mill Colliery, Tamworth Road, Arley For the Appellant, Harworth Estates PINS Reference: APP/R3705/W/3149827

APPENDIX G: UK Biodiversity Action Plan. Priority Habitats Description: Rivers

5781.01.006 Appendices January 2017 Version 1.0

UK Biodiversity Action Plan Priority Habitat Descriptions

Rivers (Updated December 2011)

From: UK Biodiversity Action Plan; Priority Habitat Descriptions. BRIG (ed. Ant Maddock) 2008.

This document is available from: http://jncc.defra.gov.uk/page-5706

For more information about the UK Biodiversity Action Plan (UK BAP) visit http://www.jncc.gov.uk/page-5155

Please note: this document was uploaded in November 2016, and replaces an earlier version, in order to correct a broken web-link. No other changes have been made. The earlier version can be viewed and downloaded from The National Archives: http://webarchive.nationalarchives.gov.uk/20150302161254/http://jncc.defra.gov.uk/page-5706

Rivers

Contents Correspondence with existing habitats Description Criteria for identification of BAP priority rivers Units of assessment Features qualifying BAP priority river habitat Background Information Headwaters Rivers with Ranunculion fluitantis and Callitricho-Batrachion vegetation Chalk Rivers Active Shingle Rivers References Annex I: list of qualifying species

Correspondence with existing habitats . UK BAP broad habitat: Rivers and streams . Phase 1: G2 Running water . NVC: Various, including A2, A8–9, A11–20, S4–9, S11–14, S16–19, S22 and others . Annex I: H3260 Water courses of plain to montane levels with the Ranunculion fluitantis and Callitricho-Batrachion vegetation . JNCC river types: I-X

Description This habitat type includes a very wide range of types, encompassing all natural and near-natural running waters in the UK (i.e. with features and processes that resemble those in ‘natural’ systems). These range from torrential mountain streams to meandering lowland rivers.

Numerous factors influence the ecological characteristics of a watercourse, for example geology, topography, substrate, gradient, flow rate, altitude, channel profile, climate, catchment features (soil, land use, vegetation, etc.). Human activities add to this complexity. In addition most river systems change greatly in character as they flow from source to sea or lake. Although various classifications and typologies for rivers exist, none is considered adequate for identifying a discrete but comprehensive series of specific priority types against the criteria. Consequently a broad ‘rivers’ priority habitat has been adopted by the UK BAP, which includes the existing priority habitat, chalk rivers. Work to refine the criteria to identify the priority habitat was carried out by a partnership group, including representatives from the conservation and environment agencies, and Buglife, which proposed the following criteria. These were agreed by the UK BAP Biodiversity Reporting and Information Group (BRIG) on 19 July 2010.

Criteria for identification of BAP priority rivers

Units of assessment The nature of rivers is typically one of continuous downstream change, with no clear boundaries and with localised physical and biological variability. Because of the physical, chemical and biological changes that occur from source to mouth, a single assessment of river ‘quality’ cannot be made for the entire watercourse (unless it is very short and uniform), but rather in shorter assessment sections. In SERCON (System for Evaluating Rivers for Conservation), rivers are divided into ECSs (Evaluated Corridor Sections) which are considered to constitute ecologically relevant units for evaluation (http://jncc.defra.gov.uk/pdf/CSM_archived_200503_rivers.pdf Appendix 1). An ECS is usually 10–30 km and comprises part of a single river (i.e. the main stem or a

tributary) which shows predominantly uniform characteristics such as underlying geology, slope or size.

Although a national dataset of river ECS divisions has been developed, this covers only about 30% of the UK river network and is still subject to validation and amendment. In time it is desirable that BAP priority habitat should be defined with reference to ECSs as these have greater ecological relevance than divisions based on administrative or other boundaries drawn for practical rather than scientific reasons. However, until a comprehensive set of ECSs is available for the UK, the unit for assessment of BAP priority river habitat will be the individual river ‘water bodies’ defined for use in the EC Water Framework Directive (WFD). The environment agencies in the UK identified WFD water bodies soon after the directive came into force. Boundaries between water bodies often lie at the confluence of two watercourses; they do not necessarily comprise single rivers but may also include several streams within the catchment or sub-catchment. For BAP purposes, lower parts of the river within the freshwater tidal zone can also be included. Headwaters, because of the small size of their catchments, are often not classified as water bodies under the WFD; these should be included separately when identifying BAP priority habitat.

Features qualifying BAP priority river habitat River water bodies will qualify as BAP priority habitat either because they are considered to be near-natural, or because they fulfil one or more specific criteria relating to BAP priority species or to particular habitat types. BAP actions and targets will be part of local biodiversity strategies. Where a stretch of river is near-natural, the aim will be to maintain this quality and, where possible, to increase the naturalness of other parts of the river system. There are various ways of defining what is meant by ‘near-natural’ but, to increase consistency, only the relatively few river water bodies defined as being at ‘high status’ under the WFD are included in this category. Where a river qualifies on grounds other than naturalness, improvements in habitat quality may also form part of the objectives for maintaining the interest of its BAP features. As a significant proportion of the running water resource in the UK is likely to qualify, achievable priorities will need to be set for action, to improve the extent, habitat connectivity or quality of BAP priority rivers.

The list of qualifying criteria is as follows. There is more detail in the background section.

1. Riverine water bodies of high hydromorphological/ecological status. The Environment Agency, the Northern Ireland Environment Agency and the Scottish Environmental Protection Agency have developed criteria and rules to identify such water bodies (http://www.wfduk.org/resources%20/river-morphology-high-status-features-and-criteria). 2. Headwaters. To qualify as a priority habitat for ‘Rivers’ under the criterion of ‘headwaters’ a stream must be: a watercourse within 2.5km of its furthest source as marked with a blue line on Ordnance Survey (OS) maps at a scale of 1:50,000. Note that each tributary of a river will have its own headwater, so there will be more than one (sometimes many more) per catchment. Headwaters which have been significantly altered from their natural state are however not included. 3. Occurrence of the EC Habitat Directive Annex I habitat (H3260 Water courses of plain to montane levels with the Ranunculion fluitantis and Callitricho-Batrachion vegetation). The definition will include (but not be confined to) all river SACs designated for the feature. 4. Chalk Rivers as given in the existing BAP definition. 5. Active shingle rivers. Data for this can come from River Habitat Surveys (Environment Agency 2003) or indicator species of invertebrate (see criterion 7). 6. A/SSSIs (Areas/Sites of Special Scientific Interest) designated for river species, riverine features or fluvial geomorphology. 7. Species including: i. Annex II Habitats Directive species

ii. BAP priority species iii. Invertebrate species which are strongly indicative of river shingle See the list of qualifying species, Annex 1. To qualify, an ECS or WFD water body needs to have either:  records of any one species from criterion levels A (BAP priority species strongly dependent on river habitat quality) or C (non-BAP priority species, indicative of shingle rivers), or  from criterion level B (widespread BAP priority species which are less dependent on river habitat quality alone), records of six or more species. This threshold has been selected by looking at available records for all criteria and identifying a level which returns a manageable proportion of the rivers network.

Where the English, Northern Irish, Scottish or Welsh country biodiversity groups have signed off their own lists of BAP priority species, including species which are not in the UK list, then rivers can qualify for these species using criteria agreed at country level.

A UK working group has collated data available at UK level about criteria 1 to 7 and used it to make an initial list of proposed BAP rivers, to support local BAP decisions. Local BAP practitioners may have access to better local data which can be used to refine the proposed list. The list will be posted on the UK BAP website (http://jncc.defra.gov.uk/page-5155), along with background papers explaining the data and methods used.

The following are excluded from this priority habitat: . Canals; . Ditches;

As a minimum the rivers priority habitat would be defined as extending to the top of the adjacent banks, recognising that (a) it may be desirable to restore a river to a previous course, and (b) a river’s floodplain (present or historical) may be essential to its ecological functioning. Significant areas of adjoining priority habitats (such as fen, woodland, grassland and heathland types) may form an integral component of river systems for the purposes of conservation and management, but would be excluded from the formal definition of the Rivers priority habitat. This would also apply to areas of metalliferous river shingle supporting Calaminarian grassland (part of a separate proposed priority habitat). Adjacent ponds would be included within the River habitat if they have been formed as a result of river dynamics (e.g. oxbows), but not if they are artificial or formed by an unrelated process (e.g. pingos).

The plant and animal assemblages of rivers and streams vary according to their geographical area, underlying geology and water quality. Swiftly-flowing upland, nutrient-poor rivers support a wide range of mosses and liverworts and relatively few species of higher plants. The invertebrate fauna of upland rivers is dominated by stoneflies, mayflies and caddisflies, while fish such as salmon Salmo salar and brown trout Salmo trutta will almost certainly be present. In contrast, lowland nutrient-rich systems are dominated by higher plants, and coarse fish such as chub Leuciscus cephalus, dace Leuciscus leuciscus and roach Rutilus rutilus. Exposed sediments such as shingle beds and sand bars are important for a range of invertebrates, notably ground beetles, spiders and craneflies. Marginal and bankside vegetation is an integral part of a river, supporting a range of river processes, as well as acting as habitat in its own right for a diverse flora and fauna, and as a migration corridor.

Background Information The information in this section comes from the submission to the BAP species and Habitats review in 2006–07 (http://jncc.defra.gov.uk/pdf/UKBAP_Species-HabitatsReview-2007.pdf), unless stated otherwise.

Headwaters Based on submission to priority habitats review dated 2/11/05.

The definition of ‘headwater’ as given by Furse (1995) is ‘a watercourse within 2.5km of its furthest source as marked with a blue line on Ordnance Survey (OS) Landranger maps with a scale of 1:50,000.’ In Britain, headwaters probably represent >70% of the total length of flowing waters. This implies a total length >146,000km.

Physical and chemical characteristics of headwaters vary greatly according to their location, altitude, geology, and surrounding land-use. By definition, headwaters form the uppermost segments of rivers, and as such play an important role in the overall functioning of river ecosystems downstream. Although some headwaters, either deliberately or incidentally, are included within protected areas such as SACs and SSSIs/ASSIs most are not, and the total length of headwaters receiving some form of special protection is a very small percentage of all headwaters in the UK.

Rivers with Ranunculion fluitantis and Callitricho-Batrachion vegetation Extracted from McLeod and others (2005) Selection of SACs in the UK: habitat accounts; see: http://www.jncc.gov.uk/ProtectedSites/SACselection/habitat.asp?FeatureIntCode=H3260. A fuller description and classification of this habitat type in the UK, together with details of threats and impacts, are given in Life in UK Rivers (2003).

This habitat type is characterised by the abundance of water-crowfoots Ranunculus spp., subgenus Batrachium (Ranunculus fluitans, R. penicillatus sap. penicillatus, R. penicillatus sap. pseudofluitans, and R. peltatus and its hybrids). Floating mats of these white-flowered species are characteristic of river channels in early to mid-summer. They may modify water flow, promote fine sediment deposition, and provide shelter and food for fish and invertebrate animals.

There are several variants of this habitat in the UK, depending on geology and river type. In each, Ranunculus species are associated with a different assemblage of other aquatic plants [but see sub-type 3], such as water-cress Rorippa nasturtium-aquaticum, water-starworts Callitriche spp., water-parsnips Sium latifolium and Berula erecta, water-milfoils Myriophyllum spp. and water forget- me-not Myosotis scorpioides. In some rivers, the cover of these species may exceed that of Ranunculus species. Three main sub-types are defined by substrate and the dominant species within the Ranunculus community.

Sub-type 1: This variant is found on rivers on chalk substrates. The community is characterised by pond water-crowfoot Ranunculus peltatus in spring-fed headwater streams (winterbournes), stream water-crowfoot R. penicillatus sap. pseudofluitans in the middle reaches, and river water-crowfoot R. fluitans in the downstream sections. Ranunculus is typically associated in the upper and middle reaches with Callitriche obtusangula and C. platycarpa.

Sub-type 2: This variant is found on other substrates, ranging from lime-rich substrates such as oolite, through soft sandstone and clay to more mesotrophic and oligotrophic rocks. There is considerable geographic and ecological variation in this sub-type. Faster-flowing western rivers on harder rocks, for example in Wales and south-west England, support stream water-crowfoot Ranunculus penicillatus sap. penicillatus, while western and northern rivers on sandstone or alluvial substrates often support both R. penicillatus sap. penicillatus and river water-crowfoot R. fluitans. Sub-type 2 rivers elsewhere in the UK contain a mixture of species, and often hybrids, but rarely support R. penicillatus sap. penicillatus or R. fluitans. Associated species which may be present include lesser water-parsnip Berula erecta, blunt-fruited water-starwort Callitriche obtusangula, and, in more polluted rivers, curled pondweed Potamogeton crispus, fennel pondweed P. pectinatus and horned pondweed Zannichellia palustris. Flowering-rush Butomus umbellatus is an occasional bank-side associate.

Sub-type 3: This variant is a mesotrophic to oligotrophic community found on hard rocks in the north and west. Rivers in Wales, Northern Ireland and south-west England are significant for the occurrence of stream water-crowfoot Ranunculus penicillatus sap. penicillatus. Other typical species include the aquatic moss Fontinalis squamosa, alternate water-milfoil Myriophyllum alterniflorum and intermediate water-starwort Callitriche hamulata. More oligotrophic examples of this community lack Ranunculus spp. and are dominated by M. alterniflorum, C. hamulata and bog pondweed Potamogeton polygonifolius.

Chalk Rivers Extracted from the UK HAP for chalk rivers (http://tna.europarchive.org/20110303145238/http://www.ukbap.org.uk/UKPlans.aspx?ID=25). Further, updated information is given in The state of England’s chalk rivers (2004).

There are approximately 35 chalk rivers and major tributaries ranging from 20km to 90km in length. They are located in south and east England – from the Frome in Dorset to the Hull in Humberside.

Chalk rivers have a characteristic plant community, often dominated in mid-channel by river water crowfoot Ranunculus penicillatus var. pseudofluitans and starworts Callitriche obtusangula and C. platycarpa, and along the edges by watercress Rorippa nasturtium-aquaticum and lesser water- parsnip Berula erecta. They have low banks which support a range of water-loving plants. This plan considers action required for the river channel and banks but not for the whole catchment or floodplain.

All chalk rivers are fed from groundwater aquifers, producing clear waters and a generally stable flow and temperature regime . These are conditions which support a rich diversity of invertebrate life and important game fisheries, notably for brown trout Salmo trutta, brook lamprey Lampetra planeri, salmon Salmo salar, crayfish Austropotamobius pallipes and otter Lutra lutra are among the species listed on Annex II of the EC Habitats Directive which chalk rivers support.

Most chalk rivers have ‘winterbourne’ stretches in their headwaters. These often run dry, or partially dry, in late summer because of lack of rainfall recharging the aquifer. A characteristic range of invertebrates has adapted to these conditions, as is the brook water crowfoot Ranunculus peltatus.

Where the river corridor (approximately 50m either side of the river) is not affected by intensive agriculture, fisheries or urban development, rich fen vegetation has developed. This is maintained by extensive cattle grazing or naturally progresses to carr woodland. These areas are particularly rich in insect life and breeding birds.

Active Shingle Rivers Based on submission to priority habitats review dated 2/11/05.

This habitat comprises those rivers which have significant reaches composed of a gravel or pebble bed material (with grain sizes in the range 2–256mm), sometimes with discrete sandy reaches or deposits (0.064–2mm diameter) in areas of lower slope, and having characteristic suites of features generated by the processes of erosion, sediment transport, deposition, and storage. Their headwaters are usually in upland areas which generate high-energy discharges, resulting in intermittent sediment movement. Average bed sediment size usually declines downstream (with the downstream reduction in underlying gradient and stream power) generating a commensurate change in habitat.

Typically, these rivers have extensive reaches of gravel, pebble and sand bed material in their middle reaches and in the piedmont zone, these shingle deposits being associated with a wandering, dynamic, meandering or divided channel and active erosion and sediment deposition features. The gravel-bed reaches exhibit characteristic macro-scale bed form morphology with

features including point bars and eroding cliffs, side- and mid-channel bars, and pool–riffle sequences. These features are typically unvegetated, reflecting their dynamic nature. Sediment transport and the formation of the characteristic habitat features typically occur only at high flows, when bedload may comprise up to 50% of the total sediment load in transit. Many of the macro- scale features are exposed in the channel as shingle during low-flow conditions. Sand bed reaches or deposits typically exhibit micro-scale bed form morphology with features such as ripples, dunes and plane beds. The transport and deposition of sand-sized material occurs across a wide range of discharges.

References Environment Agency (2003) River Habitat Survey in Britain and Ireland: Field Survey Guidance Manual. River Habitat Survey Manual: 2003 version, Environment Agency, 136 pp.

Furse, M.T. (1995) The faunal richness of headwater streams: Stage 4 – development of a conservation strategy. R and D Note 455, National Rivers Authority, Bristol.

Life in UK Rivers (2003) Monitoring Watercourses Characterised by Ranunculion fluitantis and Callitricho-Batrachion Vegetation Communitites. Conserving Natura 2000 Rivers Monitoring Series No. 11, English Nature, Peterborough.

McLeod, C.R., Yeo, M., Brown, A.E., Burn, A.J., Hopkins, J.J., and Way, S.F. (eds.) (2005) The Habitats Directive: selection of Special Areas of Conservation in the UK. (2nd edn). Joint Nature Conservation Committee, Peterborough. Available from: www.jncc.gov.uk/page-1457 [Accessed 20 July 2010]

UK BAP Steering Group for Chalk Rivers (2004) The state of England’s chalk rivers. Environment Agency, Bristol. Available from: http://adlib.everysite.co.uk/adlib/defra/content.aspx? doc=57246&id=57247 [Accessed 20 July 2010].

Updated December 2011.

Annex 1: qualifying species Criterion NBN current scientific Common name Classification Annex BAP Active limits to criterion/notes level name level 2 II priority river species shingle species A Acipenser sturio common sturgeon bony fish √ There are few sites A Alosa alosa allis shad bony fish Ann II √ There are few sites A Alosa fallax twaite shad bony fish Ann II √ There are few sites A Cobitis taenia spined loach bony fish Ann II √ There are few sites A Osmerus eperlanus smelt (sparling) bony fish √ Only 6, ephemeral populations left A Salvelinus alpinus Arctic charr bony fish √ Only records where breeding in rivers A Collema dichotomum river jelly lichen lichen √ There are few sites A Endocarpon adscendens a lichen lichen √ There are few sites A Peltigera lepidophora ear-lobed dog-lichen lichen √ There are few sites A Phaeophyscia a lichen lichen √ There are few sites endococcina A Andreaea nivalis snow rock-moss bryophyte √ There are few sites A Bryum gemmiparum Welsh thread-moss bryophyte √ There are few sites A Bryum schleicheri Schleicher’s thread- bryophyte √ There are few sites moss A Bryum uliginosum cernuous bryum bryophyte √ There are few sites A Cryphaea lamyana multi-fruited river bryophyte √ There are few sites moss A Dumortiera hirsuta Dumortier’s liverwort bryophyte √ There are few sites A Fissidens serrulatus large Atlantic pocket- bryophyte √ There are few sites moss A Pohlia scotica Scottish pohlia bryophyte √ There are few sites

Criterion NBN current scientific Common name Classification Annex BAP Active limits to criterion/notes level name level 2 II priority river species shingle species A Rhytidiadelphus scarce turf-moss bryophyte √ River-bank records only subpinnatus A Seligeria carniolica water rock-bristle bryophyte √ There are few sites A Thamnobryum Derbyshire feather- bryophyte √ There are few sites angustifolium moss A Thamnobryum Yorkshire feather- bryophyte √ There are few sites cataractarum moss A Agabus brunneus Sharp’s diving beetle beetle √ There are few sites A Bembidion testaceum pale pin-palp beetle √ √ A Bidessus minutissimus minutest diving beetle √ √ beetle A Donacia bicolora two-tone reed beetle beetle √ There are few sites A Hydrochus nitidicollis brass necked beetle beetle √ √ A Meotica anglica shingle rove beetle beetle √ √ A Thinobius newberyi Newbery’s rove beetle √ √ beetle A Lophopus crystallinus a bryozoan bryozoan √ There are few sites A Glossosoma intermedium small grey sedge caddisfly √ There are few sites A Hydropsyche scarce grey flag caddisfly √ There are few sites bulgaromanorum A Ironoquia dubia scarce brown sedge caddisfly √ There are few sites A Austropotamobius white-clawed crayfish crustacean Ann II √ recent records only pallipes A Coenagrion mercuriale southern damselfly damselfly Ann II √ Restricted & threatened

Criterion NBN current scientific Common name Classification Annex BAP Active limits to criterion/notes level name level 2 II priority river species shingle species A Cliorismia rustica southern silver fly √ stiletto-fly A Empis limata the borders dance-fly fly √ There are few sites A Lipsothrix ecucullata Scottish yellow fly √ There are few sites splinter A Lipsothrix nigristigma scarce yellow splinter fly √ There are few sites (L. nobilis) A Rhabdomastix japonica river-shore cranefly fly √ √ A Nigrobaetis niger southern iron blue mayfly √ mayfly A Potamanthus luteus yellow mayfly mayfly √ There are few sites A Gyraulus acronicus Thames ram’s-horn mollusc √ There are few sites snail A Margaritifera margaritifera freshwater pearl mollusc Ann II √ √ mussel A Myxas glutinosa glutinous snail mollusc √ There are few sites A Pisidium tenuilineatum fine-lined pea mussel mollusc √ Intermediate between 'few sites' and widespread A Sphaerium solidum Witham orb mussel mollusc √ There are few sites A Brachyptera putata northern february red stonefly √ √ A Isogenus nubecula scarce yellow sally stonefly √ There are few sites A Illecebrum verticillatum coral-necklace vascular plant √ River records only (ie probably only Cornish records)

Criterion NBN current scientific Common name Classification Annex BAP Active limits to criterion/notes level name level 2 II priority river species shingle species A Luronium natans floating water vascular plant Ann II √ River records only plantain (probably only two rivers, in Gwynedd and Ceredigion) A Potamogeton compressus grass-wrack vascular plant √ River records only pondweed A Schoenoplectus triqueter triangular club-rush vascular plant √ There are few sites B Anguilla anguilla European eel bony fish √ B Cottus gobio bullhead bony fish Ann II √ English or Welsh records only B Salmo salar Atlantic salmon bony fish Ann II √ B Salmo trutta brown/sea trout bony fish √ B Lampetra fluviatilis river lamprey jawless fish Ann II √ widespread B Lampetra planeri brook lamprey jawless fish Ann II √ widespread B Petromyzon marinus sea lamprey jawless fish Ann II √ B Lipsothrix errans northern yellow fly √ splinter B Pseudanodonta depressed (or mollusc √ Fairly widespread, may be complanata compressed) river under-recorded mussel B Arvicola terrestris water vole terrestrial √ mammal B Lutra lutra otter terrestrial Ann II √ mammal

Criterion NBN current scientific Common name Classification Annex BAP Active limits to criterion/notes level name level 2 II priority river species shingle species B Pipistrellus pygmaeus soprano pipistrelle terrestrial √ River records only mammal B Oenanthe fistulosa tubular water- vascular plant √ River records only dropwort B Sium latifolium Greater Water vascular plant √ River records only Parsnip B Stellaria palustris marsh stitchwort vascular plant √ River-bank records only B Emberiza schoeniclus* reed bunting bird √ only records of breeding near rivers C Dyschirius angustatus beetle √ C Lionychus quadrillum beetle √ C Perileptus areolatus beetle √ * Note that when the revised definition was first agreed and published (July 2010), reed bunting (Emberiza schoeniclus) was classified as a category ‘A’ species (a BAP priority species strongly dependent on river habitat quality). A review of evidence was subsequently commissioned from the British Trust for Ornithology, and can be found here (http://jncc.defra.gov.uk/pdf/UKBAP_ReedBunting-2010.pdf). The review supports the inclusion of records of breeding reed bunting as a category B species, and therefore the table above has been amended accordingly.

The previous rivers’ definition, published in July 2010, can be found at: http://jncc.defra.gov.uk/Docs/UKBAP_BAPHabitats-45-Rivers2010.doc

Appendices to Evidence of Francis Hesketh on Ecology. Daw Mill Colliery, Tamworth Road, Arley For the Appellant, Harworth Estates PINS Reference: APP/R3705/W/3149827

APPENDIX H: Warwickshire, Coventry and Solihull Local Biodiversity Habitat Action plan: Rivers and Streams

5781.01.006 Appendices January 2017 Version 1.0

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DRAFT REVISED PLAN 2014

RIVERS & STREAMS

1. INTRODUCTION

The sub-region straddles two major water catchments of middle England. These are the Avon Catchment which takes water from the south and east of the sub-region into the River Severn and Bristol Channel via the Avon and its tributaries including the Sowe, Leam, Dene, Stour, Alne and Arrow), and the Tame Catchment which takes water from the north west of the county (as well as River Leam © Steven Falk much of the West Midlands) into the Trent, Humber and North Sea via the Tame and its tributaries (including the Blythe, Bourne, Cole and Anker). A tiny part of the Thames Catchment also lies within the extreme southern tip of Warwickshire. There are over 2000 km of rivers and streams in this sub-region of varying ecological character and quality. That diversity relates both to the watercourses themselves and to their immediate surroundings, referred to as riparian corridors.

Watercourses are among the most important wildlife corridors within the intensively farmed local landscapes and within urban areas. They also contribute much to local landscape character, both through place-names like ‘Stratford-upon-Avon’ and their physical presence in many local villages, towns and beauty spots.

Where the river corridor (approximately 50m either side of a river) is not affected by intensive agriculture, fisheries or urban development, rich fen vegetation can develop, either maintained by extensive cattle grazing or naturally progressing to carr woodland. Both alder and willow carr exist on several sites across the county and such areas are particularly rich in breeding birds. Dead wood within the sites can be frequent, its association with water providing specialised habitats not found in dry woodland types; e.g. the fly, Lipsothrix nigristigma, is associated with log jams in streams. (JNCC, 2008). There is one good example of in-stream large-scale dead wood on the R. Dene, in the parish of Combrook.

Ecologically, the best watercourses are those that exhibit the natural channel features typical of lowland watercourses. These include a variety of flow patterns (riffles, runs, glides, pools and marginal dead water), a variety of channel features (side bars, point bars, silt deposits and islands) and meanders and associated erosion/deposition features. These and the natural variation of bankside habitats create a large range of niches upon which a huge range of species depends.

Few truly natural watercourses now exist in the sub-region as nearly all rivers and most streams have been severely modified for land drainage, abstraction of water, flood alleviation and navigation purposes by re-sectioning, straightening or deepening of the watercourse. Many have been culverted or had weir structures installed to control / impound water and thus have been completely disconnected from their natural flood plain. This

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modification has been compounded by an increase in riverside and floodplain development. In many cases in-stream habitat diversity has been severely degraded affecting our freshwater invertebrate species, and weir obstructions have disconnected migration routes for fish.

As well as modifications to channels, rivers are severely impacted by diffuse and point source pollution. Causes of diffuse pollution can vary greatly between agricultural and urban landscapes. Although some riparian wildlife is relatively pollution tolerant, fennel pondweed (Potamogeton pectinatus), blanket-weed (Spirogyra adnate), invertebrates such as snails, leeches, freshwater hog louse (Asellus aquaticus), stoneflies (Plecoptera) and certain caddis species (Trichoptera), other species such as trout and plants such as river water crowfoot (Ranunculus fluitans) cannot survive where pollution levels are high.

Over the last ten years there have been some improvements in water quality, one indication of which is that otters have expanded their range since the 2002 survey. They are active on all watercourses in Warwickshire (2013), following the banning of harmful pesticides that once contaminated their food, and helped by a reduction in persecution.

2. OBJECTIVES TARGETS Associated Action Plans are: ‘Fen & Swamp’, ‘Reed beds’, ‘Lakes & Reservoirs’, ‘Field Margins’, ‘Bats’, ‘Otter’, ‘Water Vole’, ‘Barn Owl’, ‘White-clawed Crayfish’ and ‘Black Poplar’ PLEASE CONSULT THE ‘GENERIC HABITATS’ ACTION PLAN IN CONJUNCTION WITH THIS DOCUMENT FOR OBJECTIVES COMMON TO ALL HABITAT PLANS A. Prevent any deterioration of status in any water body. 2015, 2021, 2027 B. Improve all WFD failing water bodies to Good Ecological 2027 Status (GES) or to Good Ecological Potential (GEP) if heavily modified. C. Comply with objectives and standards for protected ongoing areas including water bodies holding Annex II Habitats Directive species, UK Biodiversity Action Plan Priority Species & Red Data Book species. See Generic Habitats Plan for rationale for derivation of targets and definitions of favourable and unfavourable condition (‘Habitats overview’ in ‘State of the Natural Environment’ (NE,2008, p49).

3. NATIONAL BAP OBJECTIVES AND TARGETS

Rivers are on the current UK Biodiversity Action Plan (BAP) list of Priority Habitats published in 2007 (Joint Nature Conservation Committee). The targets and objectives for the Broad Habitat Rivers and Streams BAP, updated in 2010-11, may be seen online.

Nationally, the Environment Agency (EA) aims to create 10000 hectares of BAP habitat while working in collaboration with partners and to ensure at least 50% of SSSIs are in favourable condition, whilst maintaining at least 95% in favourable or recovering condition. In 2014, Natural England (NE) will be producing a list of ‘Priority Rivers’.

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4. CURRENT STATUS

The EA carries out monitoring of watercourses throughout Warwickshire. In the past this was carried out using General Quality Assessment scheme (GQA). The majority of rivers in Warwickshire, Coventry and Solihull, were classed as B (good); these included most of the Avon, the Itchen, the Leam, the Sowe and most of the Blythe. Several rivers were classed as A (very good) including the Stour, Hatchford Brook and parts of the Dene. In general, chemical and biological quality of rivers in the county is improving, partly due to improving sewage treatment works and better pollution control. However, monitoring of watercourses has changed to reflect the need to assess a wider range of ecological indicators in order to meet the European Water Framework Directive (WFD) legislation. Under WFD, if a watercourse fails to meet appropriate standards for any one measure, the watercourse is classified as failing. Crucially this now includes ecological measures such as fish and macrophytes and this changed the status of some watercourses from being good GQA to a failing WFD status. The latest status can be found in the relevant and current RBMP.

Many rivers in the county have been heavily modified by re-sectioning, and straightening to facilitate the drainage of farmland. This has led to rivers being much more deeply incised than would be naturally. This has severely limited the range of in-stream habitats present and almost completely eliminated floodplain wetlands by disconnecting the river from a functioning floodplain.

Removing most of the in-stream habitat and largely preventing regular flooding of farmland has destroyed the physical, biological and chemical mechanisms which enable natural rivers to reduce the impact of organic pollution resulting in serious impacts upon water quality. This is in addition to the obvious severe impact on wildlife.

Given that all rivers in the UK are required to reach good ecological status/potential by 2027 under WFD, it will be necessary to restore the natural hydromorphological functioning of the river network, where appropriate.

4.1 Legal and Policy Status

The most important piece of environmental legislation relating to rivers and streams is the EU WFD which became law in 2003. It revised water legislation into a new overarching programme to deliver protection of the water environment and improve the water quality and ecology of all water bodies including groundwaters, surface waters and associated wetlands. It aims to deliver substantial benefits for wildlife and the environment. This framework is fundamentally different to the previous classification system, looking at both water quality and the ecological elements of a river water body. The status of each river water body can be found in its relevant River Basin Management Plan (RBMP). The ambition of the WFD is to ensure that all rivers in Europe meet Good Ecological Status (GES) by 2027, under a consistent set of parameters, or Good Ecological Potential (GEP) if a heavily modified water body, and aims to ensure that no element of its WFD status should deteriorate. Under the WFD each country is required to:

• prevent deterioration in the status of aquatic ecosystems, protect them and improve the ecological condition of waters

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• aim to achieve at least good status for all water bodies by 2015. Where this is not possible and subject to the criteria set out in the Directive, aim to achieve good status by 2021 or 2027 • meet the requirements of WFD Protected Area • promote sustainable use of water as a natural resource • conserve habitats and species that depend directly on water • progressively reduce or phase out the release of individual pollutants or groups of pollutants that present a significant threat to the aquatic environment • progressively reduce the pollution of groundwater and prevent or limit the entry of pollutants • contribute to mitigating the effects of floods and droughts

The WFD encourages new opportunities and ways of working with partnerships via DEFRA’s Catchment Based Approach (CaBa) to input and influence the next River Basin Management Plan (RBMP). This is delivered through a Catchment Host, which can be a company or NGO or even a partnership of both. The current host can be found on www.gov.uk website. This promises to deliver positive contributions to improve the health and therefore the biodiversity value of our rivers and streams.

The WFD creates the opportunity to provide multiple benefits through delivery of flood schemes via the EA or Lead Local Flood Authority (LLFA) Flood Risk Management Plan. Watercourses can benefit by provision of beneficial mitigation measures carried out via development and the planning process.

The EA, NE, all Local Authorities and water companies have a statutory duty to further conservation through their work. EA Permits and Consents (e.g. for flood defence, abstraction, discharge, waste spreading, etc.) are assessed for their impact on the aquatic environment. Any issuing authority listed above should ensure that appropriate mitigation measures are included within the applications to prevent any adverse impacts on the environment.

The EA is the lead authority for implementing the WFD which will offer major benefits for biodiversity improvements on Warwickshire’s rivers and streams. In order to ensure that the necessary measures are taken to fulfil WFD requirements, the EA has produced RBMPs covering every catchment in the country; Warwickshire falls within two RBMPs – the Severn and the Humber.

There are a number of Sites of Special Scientific Interest (SSSIs) in Warwickshire that are associated with rivers and streams. A 39km stretch of the Blythe from Spring Brook to its confluence with the River Cole is designated as a SSSI, its clear succession of plant communities, rich flora (both emergent and floating), diverse invertebrates and physical character being a good example of a lowland river on clay. However, it has deteriorated and is also failing WFD for phosphate levels. NE have responded by producing a diffuse water pollution plan (2014) to address the issues, and to improve the status of the River Blythe a river restoration plan will be commissioned.

A section of the Itchen, south of Bishop’s Itchington, has been selected as a geological SSSI for its fluvial processes. The River Anker flows through Alvecote Pools SSSI which straddles the Warwickshire / Staffordshire border in a series of shallow pools caused by colliery subsidence; it is locally important for bird communities. Similarly, the Smite Brook

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flows through Coombe Pool SSSI and Country Park which holds the largest heronry in Warwickshire.

Local Nature Reserves (LNRs) with rivers or streams include the Arrow at Alcester, Stonebridge Meadows, Leam Valley Nature Reserve, Kingsbury Meadow at Kingsbury and Whitnash Brook, Leamington. In addition to the above, the EA, Water Companies and Local Authorities have a statutory duty to further conservation where consistent with purposes of enactments relating to their functions (as set out in the Water Resources Act 1991, the Land Drainage Act 1991 and the Environment Act 1995). The EA has a statutory duty for pollution control, control of water abstractions and flood defence consenting on main rivers. The Lead Local Flood Authority (LLFA) controls flood defence consenting for ordinary watercourses.

Three rivers have been designated as Local Wildlife Sites (LWS) – the Avon, Arrow and Alne. All other rivers are mapped as potential LWS in line with the previous aims of the River and Stream LBAP. These sites represent important sites for nature conservation and provide part of the important corridor features needed for a resilient ecological network (Lawton, 2010).

4.2. Current Factors Affecting the Habitat

 Pollution – comprising diffuse and point sources, including eutrophication, agricultural and road run-off, sewage effluent discharges, misconnections and industrial effluents.  Loss of areas of carr woodland due to lack of awareness of its importance for birds and the specialist insects of wet dead wood.  Excessive water abstraction causing low flows – both ground water and surface water abstraction. Particularly evident near certain boreholes and where Severn Trent Water (STW) Asset Management Programme (AMP) investigations are being undertaken. For more details see Catchment Abstraction Management Strategies (CAMS).  Land drainage and flood defence works – where carried out insensitively, can result in loss of habitat diversity and disconnect watercourses from their floodplains. It can also prevent the rivers’ natural methods of removing nutrients and suspended solids and improving water quality. For more details see Flood Risk Plans.  Modification for boat traffic, extension of navigation and private moorings and marina construction – decreases in-stream habitat, which reduces ecological value and the carrying capacity for fish.  Inappropriate bank management – including excessive grazing, removal of trees, mowing or inappropriate planting, hard engineering techniques, such as sheet piling, gabion baskets, concrete channels, and livestock poaching.  Introduction of invasive plant and animal species – including fish (such as zander (Stizostedion lucioperca) and carp (Cyprinus carpio), North American mink (Neovison vison), non-native crayfish, demon shrimp (Dikerogammarus haemobaphes) and killer shrimp (D. villosus) and plants such as Himalayan

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balsam (Impatiens glandulifera), floating pennywort (Hydrocotyle ranunculoides) and Japanese knotweed (Fallopia japonica).  Development within the floodplain – such as housing, industry, roads and amenity features.  Changes in agricultural land use – changes in agricultural land management have contributed to the reduction in the wildlife value of riparian habitats. Issues include chemical runoff, soil erosion, farming practices, stock grazing and watering, bank side land management, and loss of functional floodplain grazing meadow.  Inappropriate recreation – rivers and streams form the focus of many recreational activities including angling and walking. These activities can, if unregulated, result in a degradation of the habitat and disturbance to wildlife.  Lack of understanding – there is a general lack of understanding relating to the mosaic of habitats within river systems which promotes a healthy river system. Research is being carried out regarding the importance and location of features such as exposed riverine sediments and large woody debris, which have in the past, been routinely removed.  Climate change – a changing climate bringing hotter, dryer summers and milder wetter winters can impact a river system. Lack of shade and cool rivers in summer can affect fish populations. Modified channels generally lack a low flow channel that is essentially for dry periods for both aquatic species and riparian wildlife such as water voles whose burrows become exposed by the low water, making them easy prey targets. Wetter winters will bring more frequent flooding and pressures on the adjacent land use.

5. LOCAL ACTION

 EA takes the lead for monitoring: the assessment and drawing up a programme of measures which feed into the RBMPs are delivered in partnership with business, water industry, NGO’s and others including Catchment Partnerships.  Failing WFD elements have been identified and are being tackled in various ways across the County. They have included: o The EA has conducted Catchment Walkovers to identify pressures which adversely affect water quality and ecology. This information is described in the RBMP as Reasons For Failure (RFF). o The Flood Risk Management plan creates an opportunity for habitat creation and river restoration creating multiple benefits from a capital scheme carried out by the Environment Agency or the Lead Local Flood Authority. o Midland Urban Communities Initiative (MURCI) project, including the Yellow Fish Project, Love Your River Coventry project which spawned the production of the ‘Coventry Brooks Plan’ by Warwickshire Wildlife Trust (WWT), in March 2013, identifying opportunities and issues within the water bodies within the city to improve the water environment.

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o Solihull Metropolitan Borough Council in partnership with the EA has produced the ‘Solihull River Corridor Improvement Plan (ShRImP)’ outlining aspirations for the Boroughs Rivers including the Cole, Hatchford Brook and the Blythe. o Weir removals and fish pass installations on EA gauging stations to improve fish migration. o Production of the Tame/Anker/Mease Catchment Plan through Defra’s Catchment Based Approach pilot project. o The Leam Pilot Catchment Project, funded by Defra and Catchment Sensitive Farming (CSF) partnership. This successful partnership encourages farmers to reduce pesticide losses from fields to watercourses and is delivered by Severn Rivers Trust. o Various river restoration and habitat improvements funded through the WFD Catchment Restoration Fund e.g. WWT River Restoration and habitat creation project on the River Tame at Whitacre Heath SSSI. o Landscape scale projects including Nature Improvement Area (NIA) for Warwickshire managed by WWT. o EA Capital programme - Lower Tame Flood defence schemes carried out during 2012-14 incorporated river improvements and associated wetland habitat creation.  Agri-environment schemes administered by NE are providing funding to protect and enhance river and stream corridors. (Riparian corridors can be defined as the continuous area of river, river banks, associated wetlands and linked habitats alongside a river and its tributaries. The corridor may be of varying widths to incorporate related habitats). There are examples of land under agri-environment schemes along the main rivers throughout Warwickshire, Coventry and Solihull. Details of the New Land Management Scheme (NLMS) which will supercede the agri-environment schemes are not yet available.  Cross Compliance is a series of standards that farmers need to meet in order to receive their subsidy payment under the Common Agricultural Policy. There are two main elements, Statutory Management Requirements and Good Agricultural and Environmental Condition. As part of the latter farmers are required to establish a protection zone along water courses. This must not be cultivated nor have fertilisers, herbicides or pesticides applied. It must measure 2m from centre of a ditch, with a minimum of 1m from the top of the river bank.  Heritage Lottery Funded Projects - The Tame Valley Wetland Landscape Partnership HLF scheme (2014-2018) being led by WWT and working with a strong partnership of Local and County Authorities, the EA, STW, NE and Canal and River Trust to name a few of the many partners. One of the four main themes of the project is to target improvements to the Natural environment to include river restoration and habitat creation projects, adding vital green and blue habitat connectivity and corridor features to provide resilient ecological networks. Possible HLF schemes to be developed include schemes on the Arrow, Anker and Sherbourne.

______Rivers & Streams (Steven Falk & Emma Broad, 2005) Revised by Tracey Doherty & Gina Rowe 2014 7/14 www.warwickshirewildlifetrust.org.uk ACTION for WILDLIFE Warwickshire, Coventry and Solihull Local Biodiversity Action Plan

 Examples of river restoration work completed – weir removal on the Arrow at Alcester (2012), and at Oversley, removal of hard engineering on the Tame at Eon Meadows (2012), removal of weirs or fish pass installation on the Sowe at Baginton (2012) and Stoneleigh (2013), deculverting of the St John’s Brook in Warwick, establishment of fish fry refuge and deculverting of stream as part of the Broom flood alleviation scheme (2013), fish passes on weirs on the Alne in Henley (2010). Other examples of schemes designed to allow rivers to create self-maintaining in-stream features include Middleton Hall quarry, where Hanson Smiths Concrete created 1200m of braided channel along the Tame in the 1990s and early 2000s, Coleshill Quarry where Cemex moved over 1.8 km of the Cole in three sections including remeandering 700 m, and bank modification work at Kingsbury Water Park. Other schemes include improvements on the Sowe through Longford Park and the river enhancements which formed part of the Hams Hall Power Station redevelopment, river restoration and scrape creation by WWT at Whitacre Heath SSSI (2013) and the Swift Restoration Project in 2009. Severn Rivers Trust has implemented several projects to prevent cattle poaching and to establish tree planting along the Leam (2013).  Several key wetlands have been formally designated as LNRs or Country Parks (see 4.1).  ‘Water for Wildlife’ superceded the Otters and Rivers Project with broader aims and included water voles and crayfish.  Coventry River Study – the monitoring/recording of various invertebrate groups and birds has been taking place at certain key stretches of watercourse, based at Coombe Country Park.  The periodic review of water company prices and investments (the AMP process) will lead to improvements at several sewage works in this sub-region. Improvements include nitrate removal, phosphorus stripping, and the installation of secondary or tertiary treatment. The process will also investigate water company abstraction licences which could be impacting on the water environment. It will certainly lead to significant reductions in pollution to rivers in many parts of the area.  The EA monitors the flow on main rivers in Warwickshire. Flows are occasionally supplemented when necessary. CAMS provide a consistent and structured approach to local water resource management, covering all catchments in England. In Warwickshire there are CAMS for the Avon and for the Tame, Anker, and Mease Catchment.  The EA carries out monitoring of watercourses throughout Warwickshire to fulfil WFD requirements; this includes water and invertebrate sampling, fish and macrophyte surveys.  Waterways Birds Survey (WBS) – from 1974-2007 mapped 100 sites a year for grey wagtail (Motacilla cinerea), dipper (Cinclus cinclus),kingfisher (Alcedo atthis), goosander (Mergus merganser), little grebe (Tachybaptus ruficollis), sand martin (Riparia riparia), mute swan (Cygnus olor), reed warbler (Acrocephalus scirpaceus) and common sandpiper (Actitis hypoleucos); coordinated by the British Trust for Ornithology (BTO).  Waterways Breeding Bird Survey (1998 as pilot – present) matches the survey method used by EA River Habitat Survey; coordinated by the BTO.

______Rivers & Streams (Steven Falk & Emma Broad, 2005) Revised by Tracey Doherty & Gina Rowe 2014 8/14 www.warwickshirewildlifetrust.org.uk ACTION for WILDLIFE Warwickshire, Coventry and Solihull Local Biodiversity Action Plan

 An accurate digitised database of the county’s key water courses/corridors has been established by the Habitat Biodiversity Audit team (HBA).  Several organisations oversee and comment on planning applications that may affect water bodies, using National Policy Planning Framework (NPPF) and local plan and strategies to enhance natural environment by reducing negative impact from development.  Severn Rivers Trust – in 2014 it carried out riparian tree planting (3515 trees) and had the following projects running: . New metaldehyde guidelines - working with farmers who have fields considered to be “high risk” and are undertaking voluntary measures not to apply any metaldehyde slug pellets to these fields throughout 2014. . In-ditch wetland - a partnership project with CSF (Severn Rivers Trust, Natural England & Severn Trent Water) and Warwick University, looking at the retention time of wetlands and the degradation of pesticides. These in- ditch features do not take up valuable space in the farmers field and could help to reduce pesticide peaks. . Piloting the use of bioreactors (large fermentation chambers growing organisms such as bacteria or yeast) to remove nitrate from field drains – installed at a farm near Southam to monitor effectiveness. If successful, they could substantially reduce the volume of nitrate and phosphate lost from farmland, reducing the cost of water treatment and helping to limit further restrictions on fertiliser use.

6. PROPOSED LOCAL ACTIONS ACTION Lead Partners By PLEASE CONSULT THE ‘GENERIC HABITATS’ ACTION PLAN IN CONJUNCTION WITH THIS DOCUMENT FOR ACTIONS COMMON TO ALL HABITAT PLANS

Policy, Legislation & Protection

PL1. Ensure that any site meeting the relevant NE EA WWT LAs ongoing criteria is considered for designation as an SSSI.

PL2. Assess and notify all qualifying water LWSP NE EA WWT 2015 - courses as LWSs and enter onto database: HBA LAs 2017 including the Tame by spring 2015, Leam by Dec 2015, Anker by Dec 2015, Itchen, Cole, Dene and Stour by Dec 2016, Sowe and Sherbourne by Dec 2017.

PL3. Promote the use of Sustainable Urban WCC NE EA WWT ongoing Drainage Systems (SUDs) in all new LAs development.

______Rivers & Streams (Steven Falk & Emma Broad, 2005) Revised by Tracey Doherty & Gina Rowe 2014 9/14 www.warwickshirewildlifetrust.org.uk ACTION for WILDLIFE Warwickshire, Coventry and Solihull Local Biodiversity Action Plan

ACTION Lead Partners By PLEASE CONSULT THE ‘GENERIC HABITATS’ ACTION PLAN IN CONJUNCTION WITH THIS DOCUMENT FOR ACTIONS COMMON TO ALL HABITAT PLANS ongoing PL4. Actively work with partners and agencies EA NE WCC WWT to ensure that all flood defence works result in LLFAs IDB an overall environmental gain to aquatic and riparian habitats. ongoing PL5. Ensure that all statutory Permissions and EA WCC NE LAs Consents, including new developments and abstractions, wherever possible enhance the environment and as a minimum avoid an adverse impact on the aquatic environment.

PL6. Ensure that water bodies are recognised WCC NE EA WWT ongoing as important biodiversity assets in Local LAs Development Plans and Neighbourhood Plans.

PL7. Actively review and comment on planning WCC NE EA WWT ongoing applications to fulfil biodiversity net gain on all LAs developments.

PL8. Use the Catchment Based Approach TAMP EA NE WCC 2015, (through the Tame Anker Mease and (N) WWT STW LAs 2021, Warwickshire Avon Catchment Host 2027 Partnerships) to identify and deliver mitigation WAP measures required to improve condition of water (S) bodies.

PL9. Deliver Restoration Projects to improve EA NE WWT WCC 2015, water quality and ecology. TAMP WAP STW 2021, LAs 2027

PL10. Ensure that any weir repair work EA NE WCC WWT ongoing incorporates fish pass and eel pass solutions LLFAs SRT that are in line with Salmon & Freshwater TRT LAs Fisheries Act 1975 (SAFFA) and eel regulation.

Site / Species Safeguard & Management

SM1. Actively work with partners and agencies EA NE WCC WWT ongoing to ensure that development proposals do not LLFAs LAs affect the integrity of watercourses, ensuring WFD Assessments are carried out where necessary.

______Rivers & Streams (Steven Falk & Emma Broad, 2005) Revised by Tracey Doherty & Gina Rowe 2014 10/14 www.warwickshirewildlifetrust.org.uk ACTION for WILDLIFE Warwickshire, Coventry and Solihull Local Biodiversity Action Plan

ACTION Lead Partners By PLEASE CONSULT THE ‘GENERIC HABITATS’ ACTION PLAN IN CONJUNCTION WITH THIS DOCUMENT FOR ACTIONS COMMON TO ALL HABITAT PLANS

SM2. Maintain the age structure of carr LOs WCC WWT EA ongoing woodland by coppicing and water management. FC SRT

SM3. Implement schemes to tackle identified EA WCC WWT LAs 2015 issues on priority sites (see RM1) for water STW LLFAs course/corridor improvement to ensure that no LOs water bodies in Warwickshire deteriorate, and continue to aim for Good Ecological Status. 2014, SM4. Actively work to ensure that flow levels EA NE STW WWT 2019, are sufficient to sustain characteristic habitats 2024 and species ensuring they are investigated through the AMP process. 2027 SM5. Prioritise the removal of physical barriers EA WWT LAs STW TAMP WAP to fish movement e.g. weirs and culverts from water bodies wherever possible, re-naturalise LLFAs TRT SRT rivers and encourage and enable fish migration LOs using any means and opportunities e.g. planning, capital schemes, flood defence consents, landowner negotiation. 2027 SM6. Actively implement invasive non-native EA NE WWT LAs STW WAP TAMP species eradication plans to include Himalayan Balsam (Impatiens glandulifera), Japanese SRT TRT ACs Knotweed (Fallopia japonica), and North CGs LOs American mink (Neovison vison). Prevent the spread of non-native crayfish and killer and demon shrimps through effective biosecurity measures (see CP4). 2015, SM7. Address sedimentation and rural diffuse EA NE WWT NFU 2021, pollution runoff by implementing a range of TAMP WAP LAs 2027 solutions including: (SUDs), fencing and buffer LOs margins, and run-off attenuation features. 2015, SM8. Tackle urban diffuse pollution through EA NE WWT STW 2021, community engagement e.g. projects such as TAMP WAP LAs 2027 Yellow Fish , Love Your River , and using the LOs Catchment based Approach, applying the 10 point Plan to correct both residential and industrial misconnections, and other sources e.g. urban and road run off.

______Rivers & Streams (Steven Falk & Emma Broad, 2005) Revised by Tracey Doherty & Gina Rowe 2014 11/14 www.warwickshirewildlifetrust.org.uk ACTION for WILDLIFE Warwickshire, Coventry and Solihull Local Biodiversity Action Plan

2027 SM9. Tackle point source pollution issues EA NE STW WWT through sewage treatment discharges and LLFAs LOs combined sewage overflows (CSOs). SM10. Protect rivers from a changing climate, EA NE WWT FC ongoing utilising initiatives such as Woodland for Water, WT SRT TRT CSF and agri-environment schemes administered WCC TAMP by NE: WAP LAs LOs  by adapting them through strategic tree planting to keep sheltered areas of rivers cool for fish and invertebrates  by providing low flow channels necessary in extreme dry periods that will additionally benefit water voles  by reconnecting rivers with their flood plains

Advisory

A1. Inform landowners of any special interest NE EA WWT LWSP ongoing attached to streams and rivers they control. RSPB TRT SRT LAs A2. Make landowners aware of sources of NE EA WWT RSPB ongoing information, advice and grants in relation to best SRT TRT practice for water course/corridor management. Encourage landowners to enter into Environmental Stewardship agreements.

Research & Monitoring

HBA WWT WBRC ongoing RM1. Record further areas of biodiverse carr woodland (see SM2). LOs

RM2. Conduct catchment walkover surveys to EA WWT SRT TRT 2015, identify reasons for failure to inform River Basin LOs 2021, 2027 Management Plan Actions. RM3. Report on the progress of restoration EA NE WWT TAMP 2015, WAP SRT TRT 2021, schemes and WFD status at each RBMP review and through partnerships. LAs 2027

RM4. Analysis and use of angler catch data to ACs EA ongoing identify and use as indicators of issues in the water body.

Communication, Education & Publicity

CP1. Organise and deliver information events NE EA WWT STW ongoing and management training days to relevant SRT TRT LAs landowners in order to illustrate best LLFAs LOs management techniques and to tackle diffuse

______Rivers & Streams (Steven Falk & Emma Broad, 2005) Revised by Tracey Doherty & Gina Rowe 2014 12/14 www.warwickshirewildlifetrust.org.uk ACTION for WILDLIFE Warwickshire, Coventry and Solihull Local Biodiversity Action Plan

pollution of nutrients and sedimentation in water bodies.

CP2. Develop innovative invertebrate monitoring EA WWT WBRC LAs 2015 schemes engaging communities in learning about and monitoring their local rivers and streams. WWT WCC STW 2015, CP3. Ensure that any interested parties EA TAMP WAP 2021, associated with the water environment engage SRT TRT LAs 2027 and contribute to the consultations associated with the RBMP process.

CP4. Actively promote Check Clean Dry EA WCC WWT NE ongoing Campaign to protect native species from non- SRT TRT ACs native species threats and diseases. LAs

CP5. Create an action plan for fish to inform EA WWT SRT TRT 2014 and focus on actions required to tackle fish population failures and migration issues Abbreviations: ACs - Angling Clubs, CGs - Community Groups, EA - Environment Agency, FC – Forestry Commission, HBA – Habitat Biodiversity Audit partnership, IDB - Internal Drainage Board, LAs – Local Authorities, LLFAs – Lead Local Flood Authorities, LOs – Land owners, LWSP – Local Wildlife Sites Project, NE – Natural England, NFU – National Farmers Union, RSPB – Royal Society for the Protection of Birds, SRT – Severn Rivers Trust, STW - Severn Trent Water, TAMP – Tame Anker Mease Catchment Partnership, TRT – Trent Rivers Trust, WAP – Warwickshire Avon Catchment Partnership, WBRC – Warwickshire Biological Record Centre, WCC – Warwickshire County Council, WT – Woodland Trust, WWT – Warwickshire Wildlife Trust. 7. PROGRESS WITH ACTIONS

From 2015–2020 there will be a rolling programme of reporting on progress, of 10 action plans per year with an annual summary of results. Results will be entered onto the national Biodiversity Action Reporting System BARS. Progress with this plan up to 2008 can be seen at www.warwickshirewildlifetrust.org.uk/LBAP2014.

8. BIBLIOGRAPHY Kirby, P. (1992). Habitat management for Invertebrates: a Practical Handbook. RSPB. Godfrey, A. & Middlebrook, I. (2007) Invertebrates associated with coarse woody debris in streams and rivers in Britain. British Wildlife, vol.18, no.3:178-183. Joint Nature Conservation Committee (2008) UK Biodiversity Action Plan; Priority Habitat Descriptions. Falk, S.J. (2009) Warwickshire’s Wildflowers - provides habitat-specific species lists, and explanations of habitats from a botanical viewpoint. Environment Agency. (2009) River Basin Management Plan Humber River Basin District. Environment Agency. (2009) River Basin Management Plan Severn River Basin District.

______Rivers & Streams (Steven Falk & Emma Broad, 2005) Revised by Tracey Doherty & Gina Rowe 2014 13/14 www.warwickshirewildlifetrust.org.uk ACTION for WILDLIFE Warwickshire, Coventry and Solihull Local Biodiversity Action Plan

Lawton,J.H. (2010) Making Space for Nature: a review of England’s wildlife sites and ecological network. Report to Defra. DEFRA (2011) Biodiversity 2020: A strategy for England’s wildlife and ecosystem services. Staffordshire WildlifeTrust (2012) Fish Live in Trees Too! - highlights the vital role that Large Woody Debris plays in the natural rehabilitation of our degraded watercourses. Available online or tel. 01889 880100. Dobson, M. et al. (2012) Guide to Freshwater Invertebrates. Freshwater Biological Association. ISBN-13: 9780900386800 Environment Agency. (2013) Managing and improving the water environment. Environment Agency. (2013) Introduction to the Water Framework Directive. RSPB (2013) The State of Nature – a stocktake of of all our native wildlife by 25 wildlife organisations. HBA (2013) The State of the Habitats of Warwickshire, Coventry and Solihull. The Environment, Food & Rural Affairs (EFRA) Committee report (2014) Winter Floods 2013-14. Holmes, N. & Raven, P. (2014) The British Wildlife Collection, vol.3: Rivers. DEFRA (2014) River basin planning guidance - produced to assist the EA to carry out its river-basin planning functions from 2015 – 2021.

9. FURTHER INFORMATION Habitat Biodiversity Audit (HBA) for Warwickshire, Coventry & Solihull – mapping data set and associated information. Phase 1 (JNCC ) 1996-2002 and Phase 2 (Local Wildlife Sites) ongoing. Biodiversity Planning Toolkit - a new online resource to help incorporate biodiversity and geodiversity into the planning system and new development. Forestry Commission (2003) Forests & Water Guidelines Flora Locale (2005) Planting near Watercourses and Buying Native Flora (advisory notes). Send large A4 SAE to: Flora Locale, Denford Manor, Hungerford, Berkshire, RG17 0UN. Plantlife - a charity which carries out plant species and habitat conservation, owns and manages nature reserves, campaigns, and raises awareness through education. Staffordshire Wildlife Trust (2006) Managing woody debris in rivers, streams & floodplains – pdf booklet. Tel. 01889 880100. RESTORE (2014) - a report for the layman published by the UK-led LIFE project promoting river restoration: ‘River Restoration in Europe: The art of the possible’.

10. CONTACTS Contact your local biodiversity officer via the Midlands Customer Service team, email: [email protected] or telephone 03708 506 506.

______Rivers & Streams (Steven Falk & Emma Broad, 2005) Revised by Tracey Doherty & Gina Rowe 2014 14/14 Appendices to Evidence of Francis Hesketh on Ecology. Daw Mill Colliery, Tamworth Road, Arley For the Appellant, Harworth Estates PINS Reference: APP/R3705/W/3149827

APPENDIX I: Outline Habitat Management Plan

5781.01.006 Appendices January 2017 Version 1.0

FORMER DAW MILL COLLIERY ARLEY, NORTH WARWICKSHIRE HABITAT MANAGEMENT PLAN

Former Daw Mill Colliery Arley, North Warwickshire Habitat Management Plan

Document Title Habitat Management Plan

Prepared for Harworth Estates Ltd

Prepared by TEP - Warrington

Document Ref 5781.01.004

Author Alice Babb

Date January 2017

Checked Andy Nyul

Approved Francis Hesketh

Amendment History

Check / Modified Version Date Approved Reason(s) issue Status by by

1.0 09/01/17 AB AN/FH Original issue Issued

2.0 24/01/17 AB FH Amendment to appendices Issued

Former Daw Mill Colliery Arley, North Warwickshire Habitat Management Plan

CONTENTS PAGE 1.0 Introduction ...... 1 2.0 Management Intentions ...... 2

DRAWINGS Drawing 1- Habitat and Creation and Enhancement Proposals (TEP Ref: G5781.01.003) Drawing 2- Habitat Management Plan (TEP Ref: G5781.01.004)

5781.01.004 January 2017 Version 2.0

Former Daw Mill Colliery Arley, North Warwickshire Habitat Management Plan

1.0 Introduction Purpose of the Habitat Management Plan 1.1 This Habitat Management Plan has been prepared on behalf of Harworth Estates ('the Appellant') in connection with their appeal against North Warwickshire Borough Council's decision to refuse outline planning permission (PAP/2014/0339) for the redevelopment of the former Daw Mill Colliery site, Tamworth Road, North Warwickshire, for rail serviced employment use. A public inquiry into this appeal will be held in February 2017.

1.2 This report provides high level management intentions regarding the retained habitats should the development proceed. This includes habitats within the appeal site boundary, and other habitats owned by the appellant on land directly adjoining the appeal site. 1.3 The purpose of this report is to inform the public inquiry of the appellant's commitment to habitat creation and long-term management, since this is a matter relevant to the appellant's case that there is no grounds for refusal in respect of biodiversity. Structure of the Habitat Management Plan 1.4 Chapter 2 states the management intentions for the site and should be read in conjunction with Drawings 1 and 2 which are annotated plans of the retained, enhanced and proposed habitats on the Site. Implementation of the Habitat Management Plan 1.5 Should the appeal be allowed, and the development proceed, the appellant would provide the details of habitat creation and management within the red-line boundary under a planning condition to be agreed with North Warwickshire Borough Council (the Council). The works would be implemented in accordance with agreed details and programme. 1.6 The appellant would provide the details of habitat creation and management for habitats outside the red-line boundary in accordance with a s106 agreement relating to the proposed development.

1.7 The s106 agreement would also include arrangements for monitoring, reviewing and funding the implementation of the management plan.

1.8 The management plan would be related to the development, to ensure an ongoing obligation to maintain the habitats from the landowner and developer/operator for the period of development. 1.9 This s106 agreement would be made between the landowner and the Council.

5781.01.004 Page 1 January 2017 Version 2.0

Former Daw Mill Colliery Arley, North Warwickshire Habitat Management Plan

2.0 Management Intentions 2.1 The habitats to be retained and managed are:

 Semi-natural broad-leaved woodland;  Plantation broad-leaved woodland;  Mixed woodland;  Hedgerows;  Dense/ continuous scrub;  Tall ruderal;  Standing water; and  Running water. 2.2 Areas of amenity grass and tall ruderal vegetation will be replaced/enhanced and managed as unimproved neutral grassland.

2.3 Whilst some areas of scrub will be retained, other areas will be replaced with woodland or grassland.

2.4 TEP Drawing G5781.01.003 shows the habitat creation and enhancement proposals superimposed on the existing phase 1 habitat survey.

2.5 TEP Drawing G5781.01.004 shows the long-term habitat management plans for the retained habitats, both within the appeal site (development) boundary and the wider area owned by the appellant. 2.6 The following sections outline the management intentions for each habitat on Site. Woodland 2.7 The areas of woodland will be retained to provide wildlife corridors across the Site and to encourage connectivity with habitats in the wider landscape. Woodland will be managed for the benefit of birds, small mammals, amphibians and invertebrates.

2.8 Woodland will be planted within areas currently dominated by scrub in the north western section of the Site. Following the establishment period the woodland will be managed with existing woodland as described below. 2.9 The management of the woodlands will be targeted towards enhancing ecological diversity as well as creating a varied age structure and providing dead wood habitat. To create an age structure a cyclical programme (5-10 yr cycle) of thinning, felling and coppicing introduced with the aim of increasing species as well as structural diversity of the canopy layer and woodland edges will be implemented. Trees 2.10 Trees are proposed within grasslands and throughout the development to provide connectivity to the wider habitats on Site. Following the establishment period the trees will be managed by cyclical pruning and thinning works. Hedgerows 2.11 Hedgerows will be enhanced by filling in gaps with appropriate native species of trees and shrub. 5781.01.004 Page 2 January 2017 Version 2.0

Former Daw Mill Colliery Arley, North Warwickshire Habitat Management Plan

2.12 Hedgerows will be cut in an ‘A’ shape to maintain a wide base for bird nesting and roosting. The 'A' shape profile of the hedge should be maintained annually by cutting the current season's growth.

2.13 One side will be left uncut annually. Cuts will be timed after October to provide berries and fruits for foraging wildlife. Scrub 2.14 Scrub will be actively managed through cyclical thinning and coppicing to create greater structural diversity. 5% of the scrub will be cut back annually. 2.15 Scrub cutting will be scheduled at a time when there is no risk of disturbing breeding or nesting birds or mammals and to enable berry-bearing scrub species to fruit for the benefit of foraging wildlife (e.g. between December and early February). Grassland 2.16 Areas of unimproved neutral grassland will be managed to improve structural and botanical diversity and to prevent the grasslands from scrubbing over. The grassland will be managed for the benefit of amphibians, small mammals, invertebrates, dragonflies and butterflies. 2.17 Grass will be cut once a year in late summer and if necessary an additional cut will be carried out in February to ensure grass is approximately 50mm. Arisings will be removed. Tall ruderal 2.18 The areas of tall ruderal vegetation will be managed to prevent the encroachment of scrub. The vegetation will be cut once every two years in late summer. Arisings will be removed to prevent a build-up of nutrients in the soil. Standing water 2.19 Throughout the waterbodies the maintenance of open water and provision of dense stands of emergents, tall herbs and wet grasslands are important to support a diverse and healthy population of small mammals, amphibians, insects and waterfowl. Management should focus primarily on maximising the nature conservation potential of component features. 2.20 Ponds should be managed to retain at least 35-60% of the surface area as open water through the cutting back of marginal and emergent vegetation. Running water 2.21 The running will be managed as a habitat for aquatic and terrestrial species. The running water will be inspected regularly to ensure removal of any blockages/ built- up debris and to check the water quality. Any remedial measure will be actioned promptly.

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Former Daw Mill Colliery Arley, North Warwickshire Habitat Management Plan

DRAWINGS Drawing 1 – Habitat and Creation and Enhancement Proposals (TEP Ref: G5781.01.003) Drawing 2 – Habitat Management Plan (TEP Ref: G5781.01.004)

5781.01.004 Drawings January 2017 Version 2.0

425000 426000 KEY

Existing tall ruderal to be replaced Planning Application Boundary with native plantation woodland. Land within Client Ownership

Proposed Building (Indicative) Existing Phase 1 Habitat Survey

Semi-natural Broad-leaved Woodland

$ Plantation Broad-leaved Woodland

Dense/Continuous Scrub

Unimproved Neutral Grassland Existing lagoons to be retained but MG MG MG M MG MG MG MModified Neutral Grassland reprofiled and/or enlarged to provide MG MG MG M surface water attenuation. MG MG MG M Tall Ruderal

Standing Water $ Running Water A A A A A A A A A AArable A A A A A AA AA AAAAA A A A A A A Amenity Grassland A A A A A A A A A A Unimproved neutral grassland Buildings to be enhanced with appropriate

$ ! ! ! ! ! ! management. ! ! ! ! ! ! Unimproved neutral grassland ! ! ! ! ! !Bare Ground E E E E to be retained and enhanced !! !!! !! ! !! $ E E E E with appropriate management. ! ! ! ! Bare Ground/Ephemeral Mix E E E E ! ! ! ! E E E EHardstanding

Reproduced by permission of Ordnance Survey on behalf of Her Majesty's Stationery Office.

Existing scrub to be replaced Contains OS data © Crown Copyright and database right 2017. All rights reserved. Reproduced from Ordnance Survey digital map data © Crown copyright 2017. with meadow and to be All rights reserved. Licence number 0100031673 managed as unimproved Site Map neutral grassland. 0 0 0 0 0 0 $ 0 0 9 9 2 2

1:70,000

B Amendment to arable land label AB FH 24/01/2017

A Habitat Survey Update MK FH 11/11/2016 $ Rev Description Drawn Approved Date

$ $ Genesis Centre, Birchwood Science Park, Warrington WA3 7BH Structures and tanks to be Tel 01925 844004 e-mail [email protected] www.tep.uk.com

$ removed and area seeded with neutral grassland mix. Project Proposed tree planting. Daw Mill Colliery Proposed Re-development

Title Habitat Creation and Enhancement Proposals

Existing amenity grassland land and tall ruderal Drawing Number G5781.01.003B to be replaced with meadow and to be Metres managed as unimproved neutral grassland. Drawn Checked Approved Scale Date 0 50 100 200 MK AB AN 1:5,000 @ A3 24/01/2017 425000 426000 425000 426000 KEY

Planning Application

Land with Client Ownership New area of plantation woodland Proposed Development to be introduced and protected from grazing/browsing damage. Existing Trees

Existing woodland to be Proposed Trees retained and enhanced by understorey planting Existing Water Body and management. Meadow/Grassland $ $ Hardstanding

Building (Indicative)

To be managed as unimproved neutral grassland. $ $

Unimproved neutral

grassland to be retained $ and enhanced. Using annual hay meadow Tall ruderal herbs to be cut with some areas cut retained and enhanced on a three year rotation to as a woodland glade. maintain invertebrate quality. $ $

Reproduced by permission of Ordnance Survey on behalf of Her Majesty's Area of scrub to be Stationery Office.

retained and managed Contains OS data © Crown Copyright and database right 2017. All rights reserved. to form diverse edge Reproduced from Ordnance Survey digital map data © Crown copyright 2017. All rights reserved. Licence number 0100031673 structure to adjoining $ woodland. Site Map

Lagoon system to be retained with desilting on a ten year approximate cycle. 0 0 0 0 0 0 0 0 9 9 2 2 1:40,000

$ B Amendment to arable land AB FH 24/01/2017 A Habitat Survey Update MK FH 11/11/2016

Rev Description Drawn Approved Date

Genesis Centre, Birchwood Science Park, Warrington WA3 7BH Unimproved neutral Tel 01925 844004 e-mail [email protected] www.tep.uk.com

grassland to be retained Project and enhanced on an annual Daw Mill Colliery Proposed Re-development hay meadow cut.

Title Habitat Management Plan

Drawing Number G5781.01.004B Metres Drawn Checked Approved Scale Date 0 50 100 200 MK AB AN 1:5,100 @ A3 24/01/2017 425000 426000

HEAD OFFICE MARKET GATESHEAD LONDON CORNWALL HARBOROUGH

Genesis Centre, Harborough Innovation Office 26, Gateshead 8 Trinity Street, 4 Park Noweth, Birchwood Science Park, Centre, International Business London, Churchtown, Warrington Airfield Business Park, Centre, SE1 1DB Cury, WA3 7BH Leicester Road, Mulgrave Terrace, Helston Market Harborough Gateshead Cornwall Leicestershire NE8 1AN TR12 7BW LE16 7WB

Tel: 01925 844004 Tel: 01858 383120 Tel: 0191 605 3340 Tel: 020 3096 6050 Tel: 01326 240081 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected] E-mail: [email protected] E-mail: [email protected]

Appendices to Evidence of Francis Hesketh on Ecology. Daw Mill Colliery, Tamworth Road, Arley For the Appellant, Harworth Estates PINS Reference: APP/R3705/W/3149827

APPENDIX J: Warwickshire Biodiversity Offsetting Assessment

5781.01.006 Appendices January 2017 Version 1.0

Biodiversity Impact Assessment Summary

Site name: Daw Mill Colliery Planning reference number: PAP/2014/0339

Habitat Habitats Area (ha) Biodiversity Value Total existing area onsite 44.29 165.69 Habitats negatively impacted by development Habitat Impact Score 22.64 50.18 On site habitat mitigation Habitat Mitigation Score 29.10 64.15 Habitat Biodiversity Impact Score If -ve further compensation required 13.97 Percentage of biodiversity impact Linear Linear features Length (km) Biodiversity Value Total existing length onsite 0.00 0.00 Linear features negatively impacted by development Linear Impact Score 0.00 0.00 On site linear mitigation Linear Mitigation Score 0.00 0.00 Linear Biodiversity Impact Score If -ve further compensation required 0.00 Percentage of linear biodiversity impact

CAUTION - Destruction of habitats of high distinctiveness, e.g. lowland meadow, ancient woodland or species-rich hedgerows, may be against local policy. Has the mitigation hierarchy been followed, can impact to these habitats be avoided? Any unavoidable loss of habitats of high distinctiveness must be replaced like-for-

For any questions with regard to biodiversity impact and this development please contact Warwickshire County Council Ecological Services: email: [email protected] tel: 01926 418060

If there is an anticipated loss to biodiversity and no further ecological enhancements can be incorporated within the development it may be possible to compensate for this loss through a biodiversity offsetting scheme.

Please contact The Environment Bank for discussions on potential receptor sites in your area: email: [email protected] tel: 01926 412772 v. 18.3 08/08/2014 Warwickshire Coventry and Solihull - Biodiversity Impact Assessment Calculator Amendment from v18.2 only affects green roofs, for o Please fill in both tables KEY Please do not edit the formulae or structure No action required Local Planning Authority: North Warwickshire Borough Council To condense the form for display hide vacant Enter value Site name: Daw Mill Colliery rows, do not delete them Drop-down menu Planning application reference number: PAP/2014/0339 If additional rows are required, Calculation Assessor: Francis Hesketh or to provide feedback on the calculator Automatic lookup Date: 04/01/2017 please contact WCC Ecological Services Result Habitat Biodiversity Value Habitats to be retained with Habitats to be retained and Existing habitats on site Habitats to be lost within Habitat distinctiveness Habitat condition no change within enhanced within Please enter all habitats within the site boundary development development development Habitat area T. Note code Phase 1 habitat description (ha) Distinctiveness Score Condition Score Area (ha) Existing value Area (ha) Existing value Area (ha) Existing value Direct Impacts and retained habitats A BCA x B x C = D E A x B x E = F G A x B x G = H J12 Grassland: Amenity grassland 0.11 Low 2 Poor 1 0.11 0.22 J11 Other: Arable 0.96 Low 2 Poor 1 0.96 1.92 J4 Other: Bare ground 11.16 Low 2 Poor 1 11.16 22.32 J13 Other: Ephemeral/short perennial 1.45 Low 2 Moderate 2 1.45 5.80 n/a Built Environment: Buildings/hardstanding 0.34 none 0 Poor 1 0.05 0.00 0.29 0.00 A21 Woodland: Dense continuous scrub 2.67 Medium-Low 3 Moderate 2 0.03 0.18 1.54 9.24 1.10 6.60 n/a Built Environment: Buildings/hardstanding 16.14 none 0 Poor 1 10.92 0.00 5.22 0.00 B21 Grassland: Unimproved neutral grassland 0.06 High 6 Poor 1 0.06 0.36 A112 Woodland: Broad-leaved plantation 0.96 Medium 4 Good 3 0.51 6.12 0.45 5.40 G2 Wetland: Running water 0.10 High 6 Good 3 0.10 1.80 A111 Woodland: Broad-leaved semi-natural woodland 4.65 High 6 Good 3 2.17 39.06 2.49 44.82 G1 Wetland: Standing water 0.82 High 6 Poor 1 0.46 2.76 0.36 2.16 C31 Other: Tall ruderal 2.55 Medium-Low 3 Poor 1 0.11 0.33 2.44 7.32

B21 Grassland: Unimproved neutral grassland 2.32 Medium 4 Poor 1 2.32 9.28 Total 44.29 Total 15.20 51.84 6.46 63.67 22.64 50.18 ∑D + ∑F + ∑H Site habitat biodiversity value 165.69 Indirect Negative Impacts Value of loss from indirect impacts Before/after Including off site habitats K x A x B impact K = Li, Lii Li - Lii Before After Before After Before After Before After Before After Total 0.00 M 0.00 HIS = J + M Habitat Impact Score (HIS) 50.18 CAUTION - Destruction of habitats of high distinctiveness, e.g. lowland meadow or ancient woodland, may be against local policy. Has the mitigation hierarchy been followed, can impact to these habitats be avoided? Any unavoidable loss of habitats of high distinctiveness must be replaced like-for-like. Proposed habitats on site Difficulty of creation / Target habitats distinctiveness Target habitat condition Time till target condition (Onsite mitigation) restoration Habitat T. Note code Phase 1 habitat description Area (ha) Distinctiveness Score Condition Score Time (years) Score Difficulty Score biodiversity value Habitat Creation (N x O x P) NO P QR/ Q / R n/a Built Environment: Buildings/hardstanding 2.87 none 0 Poor 1 5 years 1.2 Low 1 0.00 n/a Built Environment: Buildings/hardstanding 10.22 none 0 Poor 1 5 years 1.2 Low 1 0.00 A112 Woodland: Broad-leaved plantation 6.63 Medium 4 Good 3 10 years 1.4 Medium 1.5 37.89 B21 Grassland: Unimproved neutral grassland 2.92 Medium 4 Moderate 2 10 years 1.4 Medium 1.5 11.12

Total 22.64 Habitat Enhancement Existing value (( N x O x P) - S) / S ( = F ) Q / R A21 Woodland: Dense continuous scrub 1.54 Medium-Low 3 Good 3 9.24 5 years 1.2 Low 1 3.85 A111 Woodland: Broad-leaved semi-natural woodland 2.49 High 6 Good 3 44.82 5 years 1.2 Low 1 0.00 C31 Other: Tall ruderal 0.11 Medium-Low 3 Good 3 0.33 5 years 1.2 Low 1 0.55 B21 Grassland: Unimproved neutral grassland 2.32 Medium 4 Good 3 9.28 10 years 1.4 Low 1 13.26

Total 6.46 Trading down correction value -2.52 Habitat Mitigation Score (HMS) 64.15 HBIS = HMS - HIS Habitat Biodiversity Impact Score 13.97 Percentage of biodiversity impact loss

KEY No action required Action required Drop-down menu Calculation Automatic lookup Loss to biodiversity Overall Result Gain to biodiversity ther habitats v18.2 still usable.

Comment

Distinctiven ess Medium, as this is modified neutral grassland derived from former amenity grass and natural regen Condition assessed as Poor as most criteria in FEP G06 are failed or are irrelevant to this habitat J Comment

Reduced to Medium as this will not become BAP lowland meadow

Gain Appendices to Evidence of Francis Hesketh on Ecology. Daw Mill Colliery, Tamworth Road, Arley For the Appellant, Harworth Estates PINS Reference: APP/R3705/W/3149827

APPENDIX K: Biodiversity Offsetting Pilots: Guidance for developers

5781.01.006 Appendices January 2017 Version 1.0

www.defra.gov.uk

Biodiversity Offsetting Pilots Guidance for developers

March 2012

© Crown copyright 2012 You may re-use this information (not including logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit www.nationalarchives.gov.uk/doc/open-government-licence/ or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or e-mail: [email protected]

This document/publication is also available on our website at: http://www.defra.gov.uk/publications/

Any enquiries regarding this document/publication should be sent to us at:

[email protected]

PB 13743

Contents

Introduction: ...... 1

Further information ...... 2

What does this guidance cover? ...... 2

The basics about offsetting ...... 2

What is it? ...... 2

Offsetting and planning policy ...... 3

What are the benefits of being involved with the pilots? ...... 4

A step by step guide to calculating how many biodiversity units you need to provide compensation for ...... 4

Finding an offset provider ...... 10

Introduction: 1. Biodiversity offsets are conservation activities designed to deliver biodiversity benefits in compensation for losses, in a measurable way. Biodiversity offsets are distinguished from other forms of ecological compensation by the requirement for measurable outcomes: the losses resulting from the impact of the development and the gains achieved through an offset are measured in the same way.

2. As announced in the Natural Environment White Paper1, biodiversity offsetting is being piloted in England for 2 years, from April 2012. Developers in pilot areas required to provide compensation for biodiversity loss under planning policy can choose to do so through offsetting.

3. This guidance is for developers in one of the six biodiversity offsetting pilot areas who would like to deliver compensation required for biodiversity loss by using the offsetting approach. It explains the benefits of participating in the pilot, how to calculate the amount of offsetting needed, and different ways to source the offset.

4. If you are in one of the six biodiversity offsetting pilot areas (Doncaster, Devon, Essex, Greater Norwich, Nottinghamshire or Warwickshire with Coventry and Solihull), you should also contact your local authority to see if they have produced any further information to supplement this national guidance note. They will also want to know that you are interested in potentially using the biodiversity offsetting approach.

5. Please note that biodiversity offsetting will generally not be used in relation to areas that have been given special protection under the European Union’s Habitats and Species Directive. Developments that impact on Sites of Special Scientific Interest (SSSIs) will also need to follow existing processes, as set out on Natural England’s website2. Biodiversity offsetting is a mechanism that can be used to implement planning policy: it doesn’t change planning policy. Biodiversity offsetting will only be considered when the potential to avoid any damage, and mitigate any damage, has been fully considered.

6. Even if your local planning authority is not participating in the pilot, you may be able to use the offsetting mechanism. If you are interested, you will need to discuss this option with the local planning authority at the pre-application stage. If they agree that you can use offsetting, please contact us at [email protected], as we would be interested to hear about your experience.

1 http://www.defra.gov.uk/environment/natural/whitepaper/

2 http://www.naturalengland.org.uk/ourwork/conservation/designatedareas/sssi/default.aspx

Further information 7. This document is a step by step guide to what developers need to do if they want to use the biodiversity offsetting approach. Further information and background about biodiversity offsetting is available on Defra’s website3, including:

• guidance for offset providers

• more about the participating local authorities and their approaches

• general information about what biodiversity offsetting is and why it is being piloted. A range of documents explain the thinking on various issues, and the approach we have taken to designing the pilot, including:

o the rationale and explanations behind the approach described in this document

o why offsetting as proposed focuses on habitat

o the principles we have used to design the approach to the offsetting pilot

What does this guidance cover? • The basics about offsetting – what is it?

• Offsetting and planning policy

• What are the benefits of being involved with the pilots?

• A step by step guide to calculating how many ‘units’ of biodiversity you need to provide in compensation for your development’s residual impacts

• Finding an offset provider

The basics about offsetting

What is it? 10. Using the biodiversity offsetting approach means that an offset provider delivers a quantifiable amount of biodiversity benefit to offset the loss of biodiversity resulting from a development. The losses and gains are measured in the same way, even if the habitats concerned are different. In the biodiversity offsetting pilot, the measurement is done in ‘biodiversity units’, which are the product of the size of an area, and the distinctiveness and condition of the habitat it comprises. The assessment of biodiversity units lost and

3 http://www.defra.gov.uk/environment/natural/biodiversity/uk/offsetting/

2 gained can be calculated using the approach set out in this guidance. (Offset providers will use the separate Guidance note for offset providers, available on Defra’s website).

11. Developers can provide an offset themselves if they are able to do so, or they can commission someone else to do it for them.

12. Note that if a developer chooses to pay someone else to deliver the offset for them, it is the units of biodiversity benefit that are sold. The developer is not buying the biodiversity itself, or the land that it stands on. The units are units of biodiversity: they are not an attempt to put a price on biodiversity. The cost of providing an offset will be calculated by the offset provider, on a case-by-case basis, depending on the conservation action they are taking.

13. In the pilot areas, developers that are required to provide compensation for biodiversity loss under planning policy will be given the option of delivering that compensation by using the offsetting mechanism. If they choose not to use offsetting, they will still be required to deliver compensation that satisfies the local planning authority.

Offsetting and planning policy 14. Good developments incorporate biodiversity considerations early in their design, but can still result in some biodiversity loss when there are impacts that cannot be avoided through design and location, or mitigated by other measures.

15. Current planning policy for biodiversity and geological conservation interests is set out in the National Planning Policy Framework (NPPF) which was published and came into force on 27 March 2012. For biodiversity offsetting, the most relevant principles and policies in the NPPF are:

“The planning system should contribute to and enhance the natural and local environment by .... minimising impacts on biodiversity and providing net gains in biodiversity where possible, contributing to Government’s commitment to halt the overall decline in biodiversity, including by establishing coherent ecological networks that are more resilient to current and future pressures”. (Para 109)

“When determining planning applications, .. if significant harm resulting from a development cannot be avoided (through locating on an alternate site with less harmful impacts), adequately mitigated or, as a last resort, compensated for, then planning permission should be refused.” (para 118)

16. This policy reflects the ‘mitigation hierarchy’, whereby compensation for residual harm is a last step and comes after consideration of how harm can be avoided in the first place and then, if that is not possible, how harm can be minimised through mitigation.

17. If you are in an offsetting pilot area, the local planning authority will let you know that they are participating in the pilot in the course of the usual pre-application discussions for a proposed development. They will ask you to decide whether you would like to deliver

3 any compensation required under planning policy for biodiversity loss through the offsetting mechanism, or by using other existing processes.

What are the benefits of being involved with the pilots? 18. We think there are advantages to developers to using biodiversity offsetting:

• it simplifies the discussion about how much compensation is needed: the impact of the development can be measured in units, and the equivalent amount of compensation sourced.

• it is transparent: the information about how the amount of loss involved, and the amount of compensation that will be required, is open and available to all from the start of the process.

• the developer can choose to use an offset provider to provide compensation on their behalf, and to take on the responsibility for managing that compensation: in this case, the developer has no responsibility for the ongoing management of the offset.

19. Participating in the pilots provides an opportunity to test a new and innovative approach. Developers’ feedback will be collected and used to inform a future decision on whether, and if so, how we might make greater use of biodiversity offsetting in England.

A step by step guide to calculating how many biodiversity units you need to provide compensation for

Step 1 – Apply the ‘avoid, mitigate, compensate’ hierarchy to understand the residual biodiversity loss. 20. Biodiversity offsets come at the end of the ‘mitigation hierarchy’. The NPPF does not define these key terms, but generally accepted definitions are:

Harm – Any impact, direct or indirect, that may have an adverse effect on a biodiversity interest.

Avoid – Ensuring that negative impacts do not occur as a result of planning decisions by, for example, locating development away from areas of ecological interest.

Mitigate – Measures to mitigate are ones taken which reduce negative impacts. Examples of mitigation measures include changes to project design, construction methods or the timing of work, or enhancing or restoring other interests or areas on a site so its overall ecological value is retained.

Compensate – Measures which are taken to make up for the loss of, or permanent damage to, biodiversity. Where some harm to biodiversity is reduced through mitigation, compensation will represent the residual harm which cannot or may not be entirely mitigated. Compensation measures may be on or outside the development site.

21. Apply this hierarchy to the action you will be taking on your development site. If you avoid biodiversity loss, or are able to take sufficient mitigation action on site, you will not need to provide any compensation for residual biodiversity loss. If you do need to provide compensation, you can decide to use the biodiversity offsetting mechanism to do this.

22. The decision about whether a development needs to provide compensation for biodiversity loss is for the planning authority to take, in line with planning policy.

23. Some very valuable habitats are either very rare, difficult/impossible to recreate, or both. Whilst development on these habitats would be unlikely, if a local planning authority did decide that a development should go ahead on this type of habitat, any compensation would have to be bespoke, and managed on a case by case basis. It would be for the local planning authority to decide if the offsetting mechanism could be used.

Step 2 – Map the habitat type(s) impacted by your development 24. In the biodiversity offsetting pilot, habitats are pre-assigned to one of three habitat type bands, on the basis of their distinctiveness. Distinctiveness is a collective measure of biodiversity and includes parameters such as species richness, diversity, rarity and the degree to which a habitat supports species rarely found in other habitats. The list of habitats and the corresponding distinctiveness bands can be found in Appendix 1 – Distinctiveness Bands for the Biodiversity Offsetting Pilot, which is available on Defra’s website4. Each band of habitat distinctiveness has a number associated with it as shown in Table 1 below.

25. Map the area impacted by the development (i.e. the residual biodiversity loss) by habitat type.

26. This is the starting point for calculating the number of “units” of biodiversity per hectare you will need to compensate for.

4 http://www.defra.gov.uk/environment/natural/biodiversity/uk/offsetting/

Table 1: Habitat distinctiveness5

Habitat distinctiveness

High 6

Medium 4

Low 2

Step 3 – Assess the baseline condition of each habitat 27. For the biodiversity offsetting pilot, we are using the methodology contained in the Farm Environment Plan handbook for the Higher Level Scheme, an agri-environment scheme run by Defra/Natural England, to assess habitat condition. The methodology can be found in the PDF document “Higher Level Stewardship: Farm Environment Plan (FEP) Manual”6

28. If you are assessing the condition at a sub-optimal time of the year (e.g. grassland in autumn or winter) you may need to take a precautionary approach or wait until a more suitable time of year to carry out the ecological assessment.

29. An assessment of the condition of the habitat will give a weighting as shown in Table 2.

Table 2: Condition weighting7

Habitat Condition

Good 3

Moderate 2

Poor 1

5 Based on the paper “Biodiversity Offsets”, Treweek et al.

6 http://naturalengland.etraderstores.com/NaturalEnglandShop/NE264. Please note that – you may need to scroll to the bottom of the internet page for the link to the manual.

7 Based on the paper “Biodiversity Offsets”, Treweek et al.

Step 4 – Combine the habitat type and condition weighting to calculate an overall number of biodiversity units. 30. The condition weighting can be combined with the distinctiveness band to give an overall score expressed in biodiversity units per hectare, as set out in Table 3 below.

Table 3: Matrix showing how condition and distinctiveness are combined to give the number of biodiversity units per hectare8

Habitat distinctiveness

Low (2) Medium (4) High (6)

Good (3) 6 12 18

Moderate (2) 4 8 12

Poor (1) 2 4 6 Condition

31. This calculation will need to be done for each of the habitats impacted by a development. In many cases there will only be one habitat type, but in the case of some big developments a number of different habitats may be involved.

32. You now have one or more figures that represent the number of biodiversity units per hectare you need to provide as compensation.

Example A development will result in the loss of 6 hectares of lowland meadow, currently in moderate condition.

Habitat Distinctiveness Condition Hectares Number of Units

Lowland 6 2 6 (6x2x6) meadow 72 biodiversity units lost

8 Based on the paper “Biodiversity Offsets”, Treweek et al.

Step 5 – Work out if you have particular requirements for the type of offset you will need to provide 33. If the habitat impacted is in the high distinctiveness band, the offset will usually need to be ‘like for like’ i.e. it will need to create or restore the same type of habitat. In other cases, the offset does not need to be like for like. For habitat of medium distinctiveness, the offset should be largely made up of habitat from the same distinctiveness band or higher (i.e. habitat from the medium or high distinctiveness band). Where the habitat lost was low distinctiveness, the offset project should involve a ‘trade up’ in distinctiveness (i.e. be largely made up of habitat from the medium or high distinctiveness band). This is summarised in Table 4. This approach reflects the guiding principle that offsetting should result in an improvement in the extent or condition of the ecological network.

34. If you are commissioning someone to provide your offset for you, you will need to make sure that they are aware of these requirements. It will also be useful to speak to your local authority, to see if there are any further points about how offsetting is being used in the pilot area that you should be aware of.

Table 4: Matching the habitat impacted with the offset project

Distinctiveness of habitat lost Distinctiveness of habitat provided by an offset

High High – and usually the same habitat type

Medium Medium or high

Low Medium or high

Step 6 – Managing hedgerows 35. Hedgerows are a very important feature within the English countryside. Their contribution, by area, to biodiversity in the landscape is far greater than even the most biodiversity rich habitats. For this reason they cannot simply be treated as another habitat.

36. If a development results in the loss of hedgerows, that loss will need to be offset with like for like habitat – i.e. an offset that involves hedgerows. Requirements relating to hedgerows will be measured in metres, rather than biodiversity units. For an offset project, it is proposed that only recreation (in effect planting new hedges) is appropriate. This is because of the complexity of defining restoration and assigning metres of offset requirement to hedge restoration work.

HEAD OFFICE MARKET GATESHEAD LONDON CORNWALL HARBOROUGH

37. As with other habitats, use the “Higher Level Stewardship: Farm Environment Plan (FEP) Manual”9, to assess the quality of hedgerows lost. The condition of the hedgerow lost will affect the offset requirement, which is calculated by using a simple multiplier, as shown in Table 5 below.

Table 5: Multiplier required for different conditions of offset provision

Condition of hedgerow lost Multiplier applied

Good 3

Moderate 2

Poor 1

Examples

A development results in the loss of 100 metres of hedgerow in poor condition. As it is in poor condition, the multiplier is one. An offset will need to be found which includes 100 metres of newly planted hedgerow.

A different development results in the loss of 100 metres of hedgerow in good condition. As it is in good condition, the multiplier applied is 3. An offset will need to be found which includes 300 metres of newly planted hedgerow.

38. Although this describes how hedgerows should be dealt with when using the biodiversity offsetting mechanism, the approach could apply to other linear features such as hedge banks, ditches and rows of trees.

Step 7: Decide how you want to provide compensation 39. You may want to provide the compensation yourself. If this is the case, please refer to the guidance for offset providers, available on Defra’s website10. This further guidance explains how to calculate how many biodiversity units an offset project can provide, and includes information on other issues offset providers need to consider, for example, how to manage delivery risks using multipliers.

9 http://naturalengland.etraderstores.com/NaturalEnglandShop/NE264. Please note that – you may need to scroll to the bottom of the internet page for the link to the manual.

10 http://www.defra.gov.uk/environment/natural/biodiversity/uk/offsetting/

40. Note that in some cases, conservation activity carried out on the development site itself may reduce the amount of compensation that needs to be provided off-site through offsetting. Such on-site offsetting will need to be consistent with the local offsetting strategy, and deliver something additional, beyond what might otherwise have happened. In these cases, as the developer will be providing an offset, they will therefore need to calculate the number of biodiversity units that the on-site works deliver, using the Guidance for offset providers. If their proposal is acceptable to the local authority, the number of biodiversity units will be subtracted from the overall number of biodiversity units that would need to be delivered, in the absence of this activity.

41. Alternatively, you may wish to ask somebody else to provide the compensation for you.

Finding an offset provider 42. If you would like somebody else to provide the offset for you, you could:

• Speak to your local planning authority. The local authority may know of people who are interested in providing offsets. In addition, they will also have a strategy for offsetting, which will set out what habitat types they would like to see created through offsetting, and where they would like to see them. This should be helpful for finding offset providers.

• Speak to the Natural England offset pilot adviser in the pilot area. Natural England will be quality assuring offset providers and their projects and advising Local Authorities

• Speak to any existing contacts you may have, with for example, local wildlife organisations or landowners, about the potential for them to provide an offset for you

43. Standards are important to ensure that the biodiversity benefits of offsetting are delivered. Standards are also important for giving developers, local authorities and the public confidence in the approach. If offsetting were used nationally in the future, there would probably need to be an independent body setting standards, and potentially certifying offset providers. This would not be a proportionate approach for the relatively small scale biodiversity offsetting pilot, but ensuring a certain level of quality is important, to ensure that biodiversity benefits are delivered, and to ensure that confidence in the approach is not undermined by poor quality projects.

44. In the pilots, Natural England will be assessing the capability of offset providers to deliver offsetting projects, and quality-assuring their Biodiversity Offset Management Plans, in order to advise local authorities. Plans will be assessed to determine whether they are sufficiently robust and likely to deliver and maintain the proposed number of biodiversity units (some further information on what will be assessed is given in the guidance for offset providers). Your offset provider should usually have some kind of

10 management plan or agreement for the proposed offset project, which has been assessed by Natural England.

45. The cost of providing an offset, and therefore the price an offset provider will ask for, will depend on a range of factors, for example, what habitats they can create or enhance, what type of conservation action is involved, the costs of managing the site at the required condition in the long term, and how any risks to delivery of the biodiversity outcomes are managed. Offset providers will decide what price they will offer their offset projects for.

46. Whether an offset proposal is acceptable or not as a means of delivering required compensation is ultimately for the local planning authority to determine.