Baker Consultants

The ‘Greenest Government Ever’ sets light to a bonfire of the directives?

In his Autumn Statement last week, the Chancellor George Osborne set out his views on how to improve the economy and tackle the debt crisis.

Amongst other matters, he included a few comments in relation to UK environmental legislation that have not gone down well with conservation bodies such as the RSPB and Wildlife Trusts.

In particular, the following parts of his speech have hit the headlines:

“If we burden [British businesses] with endless social and environmental goals – however worthy in their own right – then not only will we not achieve those goals, but the businesses will fail, jobs will be lost, and our country will be poorer.”, and

“We will make sure that gold-plating of EU rules on things like habitats aren’t placing ridiculous costs on British businesses.”

Now, some of this rhetoric (and its tone) is likely to have been included to satisfy sections of the Conservative party, but there are some actions coming out of the Autumn Statement that could make real changes to the protection currently afforded to the UK’s most important nature conservation sites. As one of those measures, Defra has been asked to conduct an in-depth review of how the EU Habitats and Birds Directives are being applied in Britain. Caroline Spelman, the Environment Secretary, has commented that:

“The Habitats and Birds Directives protect our rarest, most threatened habitats and species and ensure conservation interests are fully taken into account when development proposals are being considered….

The vast majority of development cases do successfully meet the Directives’ requirements but a small number raise particularly complex issues which give rise to unnecessary costs and delays. There’s also the possibility that the Directives are being used in ways for which they were not intended….

That is why I am looking forward to seeing recommendations on dealing with any overly-bureaucratic or long, drawn out examples of implementation, without compromising the current levels of environmental protection.”

The aim of this review is to reduce the burdens on business. As well as the review of the legislation itself, Defra will also establish a troubleshooting unit to address complex projects, Natural England will be expected to provide more support for developers and industry representatives will have representation on a group chaired by Ministers so that they can raise concerns directly with Government.

This review appears to have at least some support from business, National Farmers Union and Country Landowners Association, but unsurprisingly, conservation bodies have raised immediate objections to the Government’s intention to amend, and perhaps water down, the legislation protecting designated sites.

Two letters have been published in the Observer from NGOs and well-known environmentalists such as Jonathan Porritt and Caroline Lucas, which include comments such as:

“Following the chancellor’s autumn statement, we can say that the coalition is on a path to becoming the most environmentally destructive government to hold power in this country since the modern environmental movement was born,” and,

“The stunning disregard shown for the value of the natural environment not only flies in the face of popular opinion but goes against everything the government said in June, when it launched two major pieces of environmental policy – the natural environment white paper and the England biodiversity strategy.”

So, it’s probably fair to say the Autumn Statement proposals have received a mixed review.

But what might this mean for us as consultants and for the clients we work for?

On the one hand, developers may benefit from fewer constraints in relation to designated sites and protected species – as intended by the Government.

However, if domestic regulation was weakened to an extent where it no longer fulfilled the requirements of the ‘parent’ EU Directive, then development proposals could potentially be more easily challenged by judicial review or through recourse to the European Courts. This would increase the level of risk to developers, perhaps resulting in planning decisions being overturned or prosecutions being taken. In effect, adding complication and uncertainty to the process. A careful approach will therefore be needed to avoid any unintended consequences from changes to the law.

And do we really need to slacken the legislative burden on business from environmental regulation? As an ecologist I would argue that the burden is not a result of the legislation per se but how the legislation is interpreted by the various Country Agencies. In so many cases we have seen demands for unnecessary survey work and claims about potential impacts that have no basis in science. These problems will persist no matter what the legislation.

Reference sources:

Guardian letters