Memorandum submitted by The Wildlife Trust (PB 17)










Memorandum of Evidence by The Wildlife Trusts to the

House of Commons Public Bill Committee






7 January 2008


















1. The Wildlife Trusts (TWTs) welcome the opportunity to submit evidence to the Planning Bill Committee on the subject of the Planning Bill. Through our professional staff and substantial membership we are heavily engaged in the planning system at national, regional and local levels. We have been instrumental in helping to shape national planning policy and its impact on wildlife, whilst at the local level we scrutinise and monitor more than 90,000 planning applications each year, improving the environmental outcome of more than 1,200.


2. There are 47 local Wildlife Trusts across the whole of the UK, the Isle of Man and Alderney. We are working for an environment rich in wildlife for everyone. With 726,000 members, we are the largest UK voluntary organisation dedicated to conserving the full range of the UK's habitats and species whether they be in the countryside, in cities or at sea. We manage 2,200 nature reserves covering more than 80,000 hectares; we stand up for wildlife; we inspire people about the natural world and we foster sustainable living.

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3. The Wildlife Trusts believe that in order to be fit for purpose the planning system should respect and recognise the role of the natural environment in providing ecosystem services, such as flood alleviation. Furthermore, the right planning framework could contribute to reducing carbon emissions and help both people and wildlife adapt to the now unavoidable consequences of climate change. This would have huge benefits to society, as natural services are essential for supporting economic activity and quality of life.


4. Today the UK's habitats and species populations are severely fragmented. Radical restoration and enhancement is needed if they are to be viable in the future. As identified in the last UK BAP Review (1) much of this loss and fragmentation has been caused by unsympathetic and inappropriate land use and development. Making well considered decisions about major infrastructure provision can make positive contributions to wildlife habitat restoration and enhancement and/or minimise the damage caused to our natural environment. This can provide a vital mechanism for adapting to climate change through landscape-scale conservation, as well as contributing to ecosystem services.


5. If the UK Government is to meet its international biodiversity targets by 2010 it is vital that the current planning reforms help to redress the historic imbalance between consideration of economic and environmental issues through the planning system. However, so far, we can see no evidence that this Planning Bill will help us achieve environmentally sustainable land use decisions in the future.


6. TWTs currently chair the land use planning group of Wildlife and Countryside Link. We are members of the Making Planning Better coalition, made up of leading environmental and social organisations that are campaigning on the Planning Bill on behalf of their 5 million members. Further information on the Coalition's work is available at:



(1) According to the results of the latest UK Biodiversity Action Plan reporting round 'The UK Biodiversity Action Plan: Highlights from the 2005 reporting round' published by Defra on behalf of the UK Biodiversity Partnership, 39% of habitats and 27% of priority species are declining across the UK. Habitat loss and degradation, particularly due to agriculture and infrastructure development were cited as current threats of significance to the highest proportion of our priority wildlife species and habitats.





7. Whilst we recognise that there have been some improvements to the reform proposals since the publication of the White Paper, The Wildlife Trusts have very serious concerns about the proposed changes to the planning system as outlined in the Planning Bill. Local Wildlife Trusts up and down the country currently engage in the planning system to ensure that development does not harm the natural environment, through scrutinising and commenting on both planning policy and planning proposals. We also work with planners and developers to ensure that the system delivers benefits and is able to promote adaptation to the impacts of climate change. This might be through, for example, the protection and enhancement of habitat networks in Local Development Frameworks. Where we consider an application might cause damage to the natural environment, we seek adjustments to the development to avoid the damage or alternative actions that might mitigate that damage. Where this has not been fully addressed, we will normally object to the proposals. In this way the current system allows us to engage effectively to protect wildlife, even where developments go ahead.


Case study


8. Kent Wildlife Trust recently engaged in a major development proposal that would be classified as a Nationally Significant Infrastructure Project (NSIP) under the Planning Bill. The proposal for the London Array wind-farm, both offshore and on the north Kent coast, could have caused significant harm to the natural environment of that area, including potential impacts on habitats of international importance. Through an iterative process of negotiation directly with the developers and the local planning authority the Trust was able to secure improvements to the proposal for the benefit of wildlife including:

Re-alignment of cable routes to avoid particularly sensitive habitats (including some recognised as being of principle importance for conservation under the Countryside and Rights of Way Act 2000);

The proposed works being timed to avoid impacts on internationally important populations of migratory birds;

Avoidance of impacts on breeding marsh harriers, one of the UK's rarest birds of prey;

A commitment to enhancement works to benefit biodiversity.


We are seriously concerned that the Planning Bill would remove the opportunity for negotiation of this type, with a potential for huge biodiversity losses and hope that the parliamentary scrutiny will identify some improvements.


9. Although we accept that there needs to be clear statements of national policy for major infrastructure development, we are deeply concerned about the status of National Policy Statements (NPSs) compared to other legislation and policy guidance, including Planning Policy Statements. According to Clause 94 of the Planning Bill, NPSs will be regarded as the primary consideration in decision-making for major infrastructure. We are concerned that a National Policy Statement could override the legal protection afforded to wildlife sites under the EU Habitats Directive, as their status may be regarded as constituting 'overriding reasons of public interest', a matter which can be derogated under the Directive.


10. TWTs evidence to the Bill Committee will focus on the following areas, which are discussed in more detail in subsequent paragraphs:


Our 10 key tests for assessing the performance of the new system for determining NSIPs.

The absence of a National Policy Statement on the natural environment which TWTs consider should underpin the Government's planned statements on transport, waste, energy and water (briefing attached);

The absence of a statutory sustainable development duty on the Infrastructure Planning Commission;

The absence of a carbon assessment of NSIPs;

The absence of rigorous environmental assessment of major infrastructure policy and proposals in the form of Strategic Environmental Assessment;

Composition and make-up of the Infrastructure Planning Commission;

Restrictions on the right to be heard at planning inquiries into major development.


11. As previously mentioned in paragraph 7 the current planning system includes provisions that allow local Wildlife Trusts and others to influence planning decisions in order to secure benefits for the natural environment. The new system, as set out in the Planning Bill, will take away from elected local authorities planning decision-making on strategic waste, energy, transport and water infrastructure, and place it into the hands of a new, independent Infrastructure Planning Commission (IPC).


12. Together with other national policy changes, including those on housing and the sub-national review of economic development, these changes could have significant implications for the future protection and enhancement of the natural environment. We therefore require firm assurances from Government that our members and local Trusts will be able to engage meaningfully in major development proposals if the new Bill is enacted, and we have set out the following key tests that we believe are required for an effective and accountable planning system.


Key planning tests


13. To enable Wildlife Trusts to engage with the planning system at different levels and secure significant gains for the natural environment, we believe that the planning system for NSIPs must be able to pass the following 10 key tests:


i) The IPC should be taking decisions according to national legislation, policy and guidance on the natural environment, including EU Directives on Habitats and Birds, as well as planning guidance and Local Development Frameworks. It should also sit within a context of furthering environmentally sustainable development. Our proposal for a National Policy Statement on the natural environment would underpin this. It would ensure that decisions are taken to allow adaptation to climate change by protecting important areas for the natural environment and facilitating their connectivity.


ii) The IPC, including all staff with an input to the decision-making process should possess ecological and environmental knowledge to help inform its determinations.


iii) NPSs should be subject to proper environmental assessment in the form of Strategic Environmental Assessment (SEA).


iv) The process must ensure that relevant stakeholders, including Wildlife Trusts are properly consulted and engaged in decisions on major infrastructure development. It is important that all documents relating to an application are included on the register and available for public scrutiny. This includes documents submitted during the pre-application and determination stages.


v) There should be a particular requirement to consult appropriate statutory agencies including Natural England, CCW in Wales and the Environment Agency.


vi) Decision-making process for NSIPs should be iterative. This would allow the IPC to consider all relevant information, such as up to date ecological data about the impact of the proposal on the nature conservation value of the site and its surroundings. It should allow the scheme to be amended to take account of particular environmental concerns.


vii) The IPC should not be able to attach certain conditions to permissions. For example ecological survey work to determine the impact of the proposal on European Protected Species should not be conditioned, as this information is required by the IPC in order to reach its decision. Well designed schemes where all relevant data is gathered and submitted at the application stage will not lead to increases in the length of time taken to determine a proposal overall.


viii) The IPC should have the power to require the promoter to provide long-term mitigation and/or compensation in order to secure high-quality benefits for biodiversity via legally binding agreements, such as Section 106 legal agreements. It should also monitor the performance of local planning authorities in enforcing the delivery of planning obligations and conditions attached to permissions.


ix) Any new development considered by the IPC should be assessed on its total life time carbon budget in order to further climate change adaptation.


x) Third party right to challenge decisions of the IPC. This right should not only apply to the legality of the decision but to the consideration of evidence; appropriateness of alternatives, or that benefits of the proposal are outweighed by its negative environmental impact or conflict with other policies.





A National Policy Statement on the natural environment


14. The Wildlife Trusts believe that the natural environment is one of our most valuable and irreplaceable assets providing support for our economic, social and individual well being. When functioning and healthy, it provides us with clean air, soil and water and helps manage flood risk. The land use planning system is a mechanism that reconciles its value alongside other interests.


15. We are proposing that Clause 5 of the Planning Bill be amended to make reference to the production of a National Policy Statement (NPS) setting out the 'needs' of the natural environment. It would underpin and have the same status as other NPS on energy, waste, transport etc. It would also inform the Infrastructure Planning Commission's decisions on the location and design of major projects and ensure that the environmental strand of sustainable development is properly considered in the planning of future infrastructure.


16. At present the planning system does not tackle such major issues as the impact of development on ecosystem services, or the environmental capacity of an area to accommodate new infrastructure. An NPS on the natural environment would plug these gaps by:


Setting out a much needed policy and legislative framework to guide decisions on future infrastructure provision;

Demonstrate how planning for major infrastructure could contribute to sustainable development;

Provide a spatial expression for land use planning which takes account of climate change adaptation through mapping zones of high biodiversity value and areas of environmental opportunity. In this way we would be able to ensure that our greatest natural assets are protected for future generations to enjoy whilst highlighting other areas where wildlife-friendly greenspace provision could provide space for both people and wildlife to move in response to changing climatic conditions.


17. It would also make a valuable contribution to the Government's emerging Adaptation Programme as set out in Clause 49 of the Climate Change Bill, as well as Defra's ecosystem approach work.


18. In summary, a National Policy Statement on the natural environment would provide much needed policy and guidance to the Infrastructure Planning Commission in the following areas which are not covered in the Bill:

i) Protected areas. National and international wildlife sites are vital components in an adaptation network, but continue to remain under threat from insensitive infrastructure development.

ii) Ecological connectivity. Decisions should have regard to the value of connecting important wildlife sites which is not covered under the current Habitat Regulations.

iii) Climate change adaptation for biodiversity and society through the planning system building on the Stern Review and Climate Change Bill.

iv) Ecosystem services - planning for major infrastructure should have regard to the vital role of the natural environment in managing floods, water and air quality etc.

v) Environmental capacity and limits - in each area being considered for new infrastructure, the environmental capacity must be assessed to ensure that natural limits to growth are respected. A functioning environment is more resilient to climate change and can support sustainable growth.

vi) Quality of life issues which support the need for natural greenspace. New development succeeds best in an attractive and healthy natural environment.


Sustainable development duty


19. TWTs welcome the provision in the Bill at Clause 9 stating that Ministers will be duty-bound to pursue sustainable development when preparing National Policy Statements. However, we consider that the Infrastructure Planning Commission should also possess a statutory Sustainable Development (SD) duty when determining applications for Nationally Significant Infrastructure Projects. This is a key environmental safeguard currently missing from the Planning Bill. It aims to integrate rather than balance sectoral interests and would ensure that major infrastructure development is delivered in the most environmentally sustainable way for the benefit of communities and the UK's biodiversity which is still experiencing significant decline as a result of development pressures.


20. A strong SD duty would give legislative bite to both policy making and individual determinations on major infrastructure development. It would improve the legitimacy of planning in that it gives the environmental sector and local communities a degree of confidence that outcomes represent truly sustainable solutions. It should amend Section 39 of the Planning and Compulsory Purchase Act 2004 in order to provide consistency. It should be based on the definition of sustainable development given in the 2005 UK Sustainable Development Strategy, in order to put less emphasis on sustainable economic growth which could skew planning decisions in favour of short term business interests.


21. To be most effective a SD duty must be accompanied by statutory guidance on how to interpret the duty, as has happened in Scotland where ministers must have regard to SD in the exercise of their functions when preparing and revising the National Planning Framework.


22. Assessment tools are a key means to implementing sustainable development. We would therefore recommend that SEA is required for all National Policy Statements and individual applications to ensure that sustainability criteria are embedded into the decision-making process from the start. Strategic assessment under the EU Habitats Directive where necessary, will also help to deliver environmentally sustainable development.


23. The duty must apply to any person or body who exercises specific functions in relation to Nationally Significant Infrastructure Projects. It should be monitored, and scrutiny provided by both the Sustainable Development Commission and Parliament.


Carbon assessment of NSIPs


24. TWTs are concerned that the majority of proposals being considered under the new system each year will be for carbon-intensive forms of development. The Planning White Paper suggested that there would be between 10-25 applications determined by the planning commission annually. The Government now predicts that there will be, on average, 46 major infrastructure proposals coming before the IPC each year. The potential cumulative carbon footprint of such development is huge.


25. We would therefore suggest that the IPC should be subject to a statutory carbon duty requiring it to have full and proper regard to the impacts of the proposed development on climate change when making its determinations. This should include conducting an appropriate assessment of the total carbon budget of the proposal calculated over the lifetime of the development (including any associated development).


26. A carbon duty on the IPC should supplement rather than replace a sustainable development duty, which would provide a broad measure of protection for all environmental resources and would apply to all types of infrastructure projects.

Environmental assessment


27. The Planning Bill contains a number of proposals that have implications for environmental assessment and the availability of environmental information in planning decision-making. TWTs believe that SEA and Environmental Impact Assessment (EIA) are essential and established tools that help protect our best environmental assets and get communities involved in decisions that affect them.


28. Although the Planning Bill states in Clauses 5 (3) and 6(3) that NPSs will be subject to Sustainability Appraisal (SA) TWTs believe that an SEA approach in accordance with the EC Directive (2001/42/EC) is preferable, as this considers alternatives and properly considers relevant environmental issues. In our experience extending the range of issues to cover all sustainability criteria is often difficult in practice resulting in unacceptable trade-offs that can damage environmental assets.


29. TWTs believe that it is vital for all National Policy Statements (NPS), which set the framework for Nationally Significant Infrastructure Projects (NSIPs), to be subject to SEA. This will minimise conflicts with the government's stated environmental objectives; ensure proper consideration of biodiversity and promote joined-up working across government departments.

30. Clause 5 (5) (d) of the Bill allows individual National Policy Statements to designate specific sites for infrastructure development. In our opinion such statements should be subject to EIA.

31. In addition, all applications dealt with by the IPC should represent only those types of development that require EIA. In the interests of best practice, the IPC should not consider any application until it has undergone full EIA, including ecological and landscape assessment where appropriate. It must reject applications that are not submitted alongside an Environmental Statement that meets all the requirements of the EIA Regulations (2)

32. Furthermore, any policy statements that contain locational elements that are likely to have a significant effect on Natura 2000 sites will require Appropriate Assessment (AA) under the EU Habitats Directive. Due to the scale and nature of NSIPs it would seem likely that many will indeed have such an impact, thereby requiring AA.


33. TWTs consider that whether or not EIA is required for a particular proposal, adequate environmental information must be made available early in the determination process in order to support sound and just decision-making by the IPC.


Membership of IPC


34. In order that the purpose and process of EIA and SEA as referred to in paragraphs 27 to 34 above are properly understood and the results taken into account in decision-making, the IPC must include expertise in environmental assessment. We would recommend recruiting individuals who are registered with the Institute of Environmental Management and Assessment (IEMA).


35. Members of the Commission should also be properly representative of sustainable development interests. It should include ecological (terrestrial and marine) expertise, as well as environmental.

Right to be heard at inquiry

36. TWTs are concerned that the Planning Bill does not contain an automatic right to be heard at planning inquiry into NSIPs. We do not support the proposal in the Bill to give total discretion to commissioners in the way that the inquiry should be run, including whether to allow cross-examination of evidence (Clause 85).

37. Furthermore, we believe that there should exist a fundamental right to challenge the need for a particular development at application stage, as the NPS may be deficient in this regard.

38. Clauses 79 (3) (b) and 85 (8) (b) should be deleted from the Bill as they allow the IPC to disregard any evidence that relates to the merits of policy contained within a NPS. This is potentially problematic, particularly in cases of site specific policy statements, as it will be difficult to separate questions of national need from the various criteria given in Clause 94 of the Bill that allow the IPC to depart from policies in the relevant NPS when determining an application.

39. In addition, the Planning Bill should, in our opinion, facilitate a fairer and more accessible opportunity for legal challenge to a decision of the IPC than via judicial review. We would also suggest that a timescale of six weeks does not provide sufficient opportunity for members of the public, or other stakeholders, including local Wildlife Trusts, to instigate a challenge. We would propose that the Bill extends this period to 12 weeks.


January 2008