Top tips for dealing with habitats and species

Development applications which engage the regulatory procedures for protected sites and species can cause anxiety, uncertainty and delay. This article suggests the best approach to those applications.

Get organised early

Perhaps more than anything else, the best tip for anyone who may need to deal with regulatory issues to do with protected species and habitats is to get organised early. Addressing environmental issues early, long before they become a problem, is like having a superpower because of the greater optionality this provides in terms of being able to work around those problems. Environmental regulation has a knack of acting bit like a giant spider's web. At first it is relatively easy break parts of it, but the more you press on like that the more it wraps around and envelopes you. For example, environmental issues on a proposed development site may be overlooked at first in the rush to get on site or deal with other seemingly more pressing issues. Later, however, problems occur when a protected species licence is needed or the planning authority requests an environmental statement. At the point at which those regulatory issues kick-in it may be too late to carry out ecological surveys that year, or perhaps multiple surveys are needed, pushing back deadlines by months or even years. Developers thrive on speed and certainty. Ecological issues, however, can cause delay usually due to real scientific uncertainty.

Certainty vs flexibility

There is, of course, a tension inherent in this approach. Whilst getting out ahead of the game early on ecological issues is by far the best approach, doing that is difficult in cases where at the early stages of a development there is a lack of detail over what the development will finally look like. The problem of trying to settle ecological issues when there is a lack of clarity over the specifics of a development has been an important driver in some of the most difficult cases we work on with clients. Developers will often want maximum flexibility for as long as possible, an approach implicitly recognised in our planning system which allows for decision-making at both outline permission and reserved matters stages. Nailing down the details early so that ecological issues can be dealt with can be at odds with that.

Meeting the challenge

Squaring this circle is challenging, but there are a number of ways to do this depending on the type of development in question and whether the impacts are on protected habitats or species. Key to that is the need for careful handling by experienced ecologists and lawyers as well as having a good rapport with the relevant regulators. The situation is improving, however, as a greater awareness of ecological issues means that these considerations are becoming hardwired into the early stages of decision-making.

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Freeths offers in-depth, practical training for people working on protected sites and species issues. To find out more and to sign up please follow these links:

• Future sessions on European Protected Species Law (EPS)
• Future sessions on Habitat Regulation Assessment (HRA) Legal Training Course