image for illustration: Peter Badcock
Part of the Planning Advisory Service (PAS) protected site strategy project is aimed at local planning authorities and explores available regulatory and policy drivers for development to deliver improvements to the condition of protected sites, reports the Local Government Association (LGA).
LGA writes:
Public body duties for protected sites
Natural England has powers under the Wildlife and Countryside Act to ensure that SSSIs are managed in a way that protects their important habitats and species and to restore these where they have been damaged or are not in a favourable condition.
- All public bodies, including NE and all local planning authorities, have a legal duty to protect and enhance SSSIs under Section 28G of the Wildlife and Countryside Act: ‘The duty is to take reasonable steps, consistent with the proper exercise of the authority’s functions, to further the conservation and enhancement of the flora, fauna or geological features by reason of which the site is of special scientific interest’.
- Regulation 9 of the Habitats Regulations sets out duties for relevant public authorities to exercise their functions in compliance with, or with regard to, the requirements of the Habitats Directive and the Wild Birds Directives, including: ‘Improving the ecological coherence of the national sites network (including through land use planning)’.
- Public bodies also have duties relating to operations they carry out on or likely to affect SSSIs and operations they permit that may affect SSSIs. These duties are similar to the ‘competent authority’ role in the Habitats Regulations for European Sites.
- Guidance on public body responsibilities for SSSIs is available from government. The Guidance on Duty to protect, conserve and restore European sites provides an equivalent summary on public body duties for European Sites.
Legislation covering development and land use plans that affect protected sites: Local planning authorities (LPAs) have duties relating to operations they carry out on or likely to affect protected sites and operations they permit that may affect protected sites. ‘Operations’ local planning authorities permit include planning permission. These duties also apply to land use plans, i.e. Local Plans, for European sites.
- For SSSIs (the Wildlife and Countryside Act):
Natural England has to be consulted and the LPA has to take any advice received from Natural England into account in deciding whether or not to grant planning permission for any development proposal likely to damage the features of a SSSI, and in deciding what (if any) conditions are to be attached to the planning permission. - If the authority doesn’t follow Natural England’s advice, they have to notify NE and give them 21 days before granting permission.
For European sites (Habitats Regulations):
- The LPA may adopt a Local Plan or grant planning permission for any development proposal likely to have a significant effect on a European site only after having ascertained that it will not adversely affect the integrity of the site.
- Local Plan adoption or planning permission may be given if there are no alternative solutions and imperative reasons of overriding public interest, which is a rare occurrence. In this case, compensation must be provided for impacts.
The Wildlife and Countryside Act and Habitats Regulations ensure that Local Plan policies are written, and development is designed in a way to avoid and mitigate impacts (and for European sites, compensate for unavoidable impacts as a last resort). It is up to the person carrying out the operation to propose and implement the avoidance, mitigation and/or compensation measures, i.e. the developer in the case of planning applications and local planning authorities for Local Plans. The LPA secures the necessary measures, for example through a planning condition or S106 for planning permission or for a Local Plan, appropriate wording of a policy or implementing a strategic solution.
There is no legislative requirement for developers to provide measures that will improve or enhance a protected site, so if the site is not in a favourable condition currently, this is not a mechanism to drive recovery. Hence the nutrient neutrality approach, which is based on development leading to no change to nutrient levels (not an improvement), i.e. avoiding impacts, but not getting the site back to favourable condition.
However, LPAs do have a statutory duty to protect and enhance protected sites, which they could choose to meet via their planning decision-making. The best way to make sure that developers do this is likely to be via setting local planning policy.
Note that current Government policy is that biodiversity net gain cannot be used to enhance designated features of the protected site, except if the habitat is intertidal. So, whilst biodiversity units can be created on and used to create or enhance habitat in protected sites, they can only be used to get a site to favourable condition (i.e. improving the condition of the special features) for intertidal sites. BNG could potentially be used to enhance protected sites by funding habitat creation/enhancement beyond the site boundary.
Wider public body duties for biodiversity enhancement
In addition to specific duties relating to protected sites, local planning authorities have various other duties to conserve and enhance biodiversity.
- Natural Environment and Rural Communities Act 2006: Paragraph 40 sets out the duty to conserve and enhance biodiversity. Guidance on complying with the biodiversity duty is available from government.
- European sites: Regulation 9 of the Habitats Regulations sets out duties for relevant public authorities to exercise their functions in compliance with, or with regard to, the requirements of the Habitats Directive and the Wild Birds Directives. Guidance is available here.
- Environmental Damage (Prevention and Remediation) Regulations 2009 are focused on prevention and remediation of environmental damage more for large industrial works rather than development in general.
National planning policy and protected site enhancement
Alongside legislation, national planning policy sets the context for Local Plan policies and decision-making on planning applications by LPAs and therefore what developers will provide. The National Planning Policy Framework (NPPF) states:
- Paragraph 192: ‘plans should:
Identify, map and safeguard components of local wildlife-rich habitats and wider ecological networks, including the hierarchy of international, national and locally designated sites of importance for biodiversity; wildlife corridors and stepping stones that connect them; and areas identified by national and local partnerships for habitat management, enhancement, restoration or creation; and
promote the conservation, restoration and enhancement of priority habitats, ecological networks and the protection and recovery of priority species; and identify and pursue opportunities for securing measurable net gains for biodiversity.’
- Paragraph 193(b): ‘development on land within or outside a Site of Special Scientific Interest, and which is likely to have an adverse effect on it (either individually or in combination with other developments), should not normally be permitted. The only exception is where the benefits of the development in the location proposed clearly outweigh both its likely impact on the features of the site that make it of special scientific interest, and any broader impacts on the national network of Sites of Special Scientific Interest’
- Paragraph 193(d): ‘development whose primary objective is to conserve or enhance biodiversity should be supported; while opportunities to improve biodiversity in and around developments should be integrated as part of their design, especially where this can secure measurable net gains for biodiversity or enhance public access to nature where this is appropriate.’
So, with specific reference to protected sites, the NPPF is more about the avoidance of impacts from development rather than improving the sites, though general enhancement of biodiversity through development is encouraged.
Protected site improvement through development – a way forward?
The Wildlife and Countryside Act, Habitats Regulations and NERC Act include duties for local planning authorities to protect and enhance SSSIs and biodiversity through their functions, but there are no specific references to plan- or decision-making. General enhancement of biodiversity through development is also encouraged by the NPPF.
Local authorities can set policies in their Local Plan that promote or even require enhancement of protected sites to meet their legal duties and NPPF requirements, but it’s not explicitly set out anywhere that they should do this. Developers may also be incentivised to improve protected sites for various reasons other than Local Plan policies, such as meeting Corporate Social Responsibility targets, Nature Positive initiatives and helping to get local communities on board with development proposals.
Protected site strategies:
- May provide an additional driver for both LPAs and developers to enhance protected sites through development (but there is no legal mechanism to make developers comply with a PSS).
- Could set out how BNG might contribute too, ideally with a link to the Local Nature Recovery Strategy (LNRS).
The Nature Restoration Fund approach outlined in the Planning and Infrastructure Bill explicitly moves beyond compensating/mitigating for impacts to enable enhancement.
