Biodiversity and Geodiversity

 

 

 

Introduction

This note provides a concise guide to the requirements relating to biodiversity and geodiversity in connection with the winning and working of aggregate minerals in England. The two subjects are treated in parallel because they have much in common, in terms of legislation, policy and practice. The note briefly identifies the relevant legislative requirements, strategies, national policies and published good practice guidance which are currently applicable to these subjects in England ref-1.. It then summarises the key practical aspects of dealing with each subject during the pre-operational, operational and post-operational phases of mineral development

Information Sources

The information presented here is drawn from the following primary sources. Reference should always be made to the original sources (or to more recent equivalents where they have been superseded) for full details.

National and International Primary Legislation

In addition to legislation relating to the Planning System in England and Wales, the following National and European legislation is of particular relevance to the issue of biodiversity and geodiversity in connection with the winning and working of aggregate minerals in England.

• The National Parks and Access to the Countryside Act 1949. This made provision for National Parks, nature reserves and Sites of Special Scientific Interest (SSSIs). Subsequent legislation has provided additional protection for SSSIs (Section 28 of the Wildlife and Countryside Act (WCA) 1981 as amended by the Countryside and Rights of Way (CROW) Act 2000) (see below).


• European Directive 79/409/EEC on the conservation of wild birds (known as the 'Birds Directive'). This provided for the establishment of Special Protection Areas (SPAs) for wild birds, mainly in estuarine and coastal areas, but which are also found (sometimes covering extensive areas) in inland areas, especially in the uplands.


• The Wildlife and Countryside Act 1981 as amended by the CROW Act 2000 (see below). This provides the current basis for the notification and protection of SSSIs, covering geological and geomorphological features as well as animals, plants and habitats. Section 34 relates specifically to the protection of designated limestone pavements.


• European Directive 85/337/EEC on the 'Assessment of the Effects of Certain Public and Private Projects on the Environment' (known as the 'Environmental Impact Assessment' or 'EIA' Directive). This introduced requirements for the systematic consideration of potential impacts on the environment, for certain types of development (including most quarrying proposals) and for specific mitigation measures to be identified (as necessary) prior to the determination of planning applications.


• The Water Resources Act 1991. This covers water resource management, licensing, pollution control, drought and flood defence. It is of relevance to biodiversity insofar as it influences both the abstraction and discharge of water within rivers and underground strata, which in turn may influence the condition of wetland ecosystems and water-dependent habitats and species.


• European Directive 92/43/EEC, on the conservation of natural habitats and of wild fauna and flora (known as the 'Habitats Directive'). This initiated the setting up of Special Areas of Conservation (SACs). Together with the Special Protection Areas (SPAs) designated under the earlier Birds Directive, these make up the EU-wide 'Natura 2000' network and are commonly referred to as 'European sites'. To prevent the deterioration of such sites an 'appropriate assessment' is required to be carried out of any plan or project which is likely to have a significant adverse effect on the site. These requirements are transposed into UK law through the Conservation (Natural Habitats etc.) Regulations 1994. Internationally designated 'Ramsar' wetland sites, though not strictly covered by these Regulations, are given similar protection.


• The Convention on Biological Diversity (CBD) 1992. This convention, signed by 150 government leaders at the 1992 Rio Earth Summit, is dedicated to promoting sustainable development and has influenced subsequent legislation and policy. It also introduced the Ecosystems Approach (see below).


• The Environment Act 1995. This introduced requirements for the monitoring of areas with ecological value; for ensuring the maintenance and restoration of essential ecological processes; and for preserving and preventing any loss of biological diversity. Of particular importance to quarrying activity, it also introduced requirements for the Review of Old Mineral Permissions (ROMPs), requiring these to be brought up to date with modern planning conditions, and for subsequent periodic reviews of all mineral permissions at intervals of 15 years.


• The Countryside and Rights of Way Act 2000 (known as the 'CRoW' Act). This amended the Wildlife and Countryside Act 1981 to give improved control over potentially damaging operations and to secure the proper management of protected sites. Among other things, this encouraged mineral operators to identify and make best use of opportunities to improve the condition of existing SSSIs located within their operational and restoration areas. The CRoW Act also placed a new statutory duty on all public bodies and statutory undertakers to take reasonable steps to further the conservation and enhancement of SSSIs consistent within the proper exercise of their functions; and required public bodies to notify the appropriate statutory nature conservation agency if they propose to carry out (or consent to the carrying out of) operations likely to damage the interests of a SSSI. Section 74 of the Act contained lists of habitats and species for which conservation measures should be promoted in accordance with the Convention on Biological Diversity 1992 (see above). However, Section 74 has since been superseded by the Section 41 list in the NERC Act 2006 (see below).


• European Directive 2000/60/EC on establishing a framework for Community action in the field of water policy (known as the 'Water Framework Directive'). This introduced a requirement for characterising and monitoring changes within 'river basin districts', in the interests of protecting and improving water quality, with the aim of ensuring that all aquatic ecosystems achieve a 'good' ecological status by 2015. Specific aims of relevance to nature conservation include: the promotion of sustainable water use based on a long-term protection of available water resources; enhanced protection and improvement of the aquatic environment; reduction of pollution of groundwater; protecting, enhancing and preventing any deterioration of the ecological status of aquatic ecosystems and, with regard to their water needs, terrestrial ecosystems and wetlands directly dependent on the aquatic ecosystems. The Directive is implemented through the Water Environment (Water Framework Directive) (England and Wales) Regulations 2003


• European Directive 2001/42/EC on the 'Assessment of the Effects of Certain Plans and Programmes on the Environment' (known as the 'SEA Directive'). This defines the requirements for Strategic Environmental Assessment (SEA) and reinforces the need to consider 'the ecological dimensions of policy at the same time as economic and other dimensions' (Bruntland Commission, 1987).


• The Water Act 2003. This amends the Water Resources Act 1991 and, among other things, removes the exemptions from abstraction licensing that have hitherto applied to quarry dewatering (subject to the eventual publication of transitional regulations to bring the dewatering operations at existing quarries into the new licensing regime).


• The Environmental Liability Directive (2004/35/EC). This is based on the "Polluter Pays" principle and has two distinct but complementary liability regimes. The first is that operators that conduct risky activities will be liable for damage to the environment, encompassing water, land and air pollution. The second applies to operators who cause damage to species and natural habitats that are protected at EU level under the 1992 Habitat and 1979 Birds Directives.


• The Natural Environment and Rural Communities Act 2006 (known as the 'NERC' Act). Section 40 of the Act places a duty upon all local authorities in England to promote and enhance biodiversity in all of their functions. A key purpose of this duty is to embed consideration of biodiversity as an integral part of policy and decision making throughout the public sector. Section 41 lists habitats and species of principal importance to the conservation of biodiversity in England.

 

Secondary Legislation

The primary legislation outlined above is implemented in England through a much longer list of secondary legislation, mostly comprising Regulations, commencement orders etc. Details of these can be found on relevant Government Websites.

National Strategies

In England, legislation is supported by national planning policy and practice guidance on individual topics, as outlined in the following section. In some cases the policies themselves are guided by over-arching national strategies which extend beyond the planning system. Particular examples of relevance to this topic include:

• Working with the Grain of Nature: A Biodiversity Strategy for England (2002) L0520;


• The UK Biodiversity Action Plan (UK BAP) (2004) L0521;


• Natural Foundations: geodiversity for people, places and nature (2006) L0522;


• Securing a Healthy Natural Environment: An Action Plan for Embedding an Ecosystems Approach (2007) L0523;


• England Biodiversity Strategy: Climate Change Adaptation Principles: Conserving biodiversity in a changing climate (2008) L0524;


• Delivering a Healthy Natural Environment: An Update to "Securing A Healthy Natural Environment: An Action Plan For Embedding An Ecosystems Approach" (2010) L0525; and


• The UK Geodiversity Action Plan (UK GAP): A Framework for Action (2011) L0526.

The UK BAP was established as a requirement of the international Convention on Biological Diversity (CBD) (1992) L0527. It forms a national strategy for the conservation and enhancement of biological diversity and the sustainable use of biological resources. It contains a list of priority species and habitats where attention is required to be focused, and which is periodically updated to reflect the findings of new surveys (most recently in 2007). Action plans for the most threatened species and habitats have been set out to aid recovery, and reporting rounds show how the UK BAP has contributed towards a significant reduction of biodiversity loss, as called for by the CBD. The shared vision for UK Biodiversity conservation adopted by both the devolved administrations and the UK Government is set out in the framework: Conserving Biodiversity – the UK Approach L0528. This sets out the future priorities for UK conservation, including a more holistic view of ecosystem conservation, protection, and sustainable use of the UK's biological resources.

The UK GAP provides a framework for planning and recording the delivery of geoconservation across the UK. In contrast to the UK BAP, it has developed from an initial impetus provided by Local Geodiversity Action Plans (LGAPs – see below), rather than in response to a 'top-down' European requirement. Nevertheless, the increasingly accepted notion that geodiversity is not just about designated sites but includes the wider landscape as well as individual rock outcrops, landforms and geomorphological processes within it, now finds resonance with the Council of Europe's European Landscape Convention (ELC) L0529. This requires all types of landscape, whether they are outstanding, ordinary or degraded to be valued, and advises that the characteristics of different areas be identified and assessed and landscape quality objectives identified for them. Ideally, the landscape objectives for a particular area need to recognise the contributing importance and requirements of geodiversity and also their potential links with biodiversity, especially in terms of maintaining or restoring the connectivity of habitats ('landscape features which are of major importance for wild flora and fauna', as referred to in Article 10 of the Habitats Directive L0530.

The Ecosystems Approach is a concept for promoting and delivering sustainable development and originated following the 1992 Earth Summit in Rio de Janeiro. It is defined, under the CBD, as: "a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way." Its implementation in England is being led by Defra. A case study example of how this approach can contribute to long term minerals planning is given in the recent research report for MIRO and Defra by Thompson et al, (2010) L0151.

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National Policy

National planning policy has traditionally dealt with individual planning topics, including biodiversity, geodiversity and a range of minerals planning issues, as well as the rules which govern the operation of the planning system itself. Following the Kate Barker Review (2006) and the Killian Pretty Review (2008) the Government's intention has been to streamline National Policy, reducing this to more concise, overarching requirements, set out within a National Planning Policy Framework. At the time of preparing this document, formal consultation on suggestions and priorities for inclusion within this Framework was drawing to a close. It is therefore not known, at this stage, what will be included or which existing policies will be replaced.

Until they are replaced, the existing policies, as outlined below, should be consulted.

Existing national planning policies for England are set out in a series of Planning Policy Statements (PPS) and older Planning Policy Guidance notes (PPG), where these are still in force; in a separate series of Minerals Policy Statements (MPS) and older Minerals Planning Guidance notes (MPG); and in various Circulars and Parliamentary Statements. Some of the older PPG and MPG notes have been superseded in recent years by equivalent or overlapping PPS and MPS documents, but many others remain in force. Equally, a number of existing PPSs are in the process of further review, updating and consolidation, as explained above. The latest available information with direct relevance to biodiversity and geodiversity (as at February 2011) is summarised below.

Planning Policy Statement 9 (PPS9): Biodiversity and Geological Conservation L0531, was published in August 2005. This set out planning policies on the protection of biodiversity and geological conservation through the planning system. In addition, it required that development should have minimal impact on biodiversity, maximise opportunities for building in beneficial biodiversity or geological features as part of good design and enhance where possible UK Biodiversity Action Plan priority habitats.

In March 2010, the Government issued a consultation draft of a consolidated PPS on Planning for a Natural and Healthy Environment L0532. This was designed to replace PPS9 and to integrate it with requirements relating to open space, sport and recreation policy (currently within PPG17); the landscape, soil, agricultural land quality and forestry aspects of PPS7; and the coastal access, heritage coast and undeveloped coast aspects of PPG20. All of these might become subsumed within the proposed National Planning Policy Framework but, as things stand, this draft PPS contains policies to maintain, and enhance, restore or add to biodiversity and geodiversity through the planning system. It includes policies to promote opportunities for the incorporation of beneficial biodiversity and geological features within the design of development, and to maintain networks of natural habitats by avoiding their fragmentation and isolation. It suggests this may be done as part of a wider strategy for the protection and extension of open space and access routes such as canals and rivers. The consultation draft was issued before the abolition of the Regional tier of spatial planning in England and, to this extent at least it will need to be significantly revised before becoming policy.

The draft new PPS also introduces the concept of 'Ecosystem Services' - an essential aspect of the Ecosystems Approach, referred to above. Although specifically mentioned in the context of green infrastructure, these have a far wider relevance to both biodiversity and geodiversity and to minerals development in general. Ecosystem Services are the various aspects of an ecosystem which have value to people. They are typically grouped into four main categories:

• Supporting services: those which are necessary for the functioning of all other ecosystem services e.g. nutrient cycling, soil formation and primary production;


• Provisioning services: products that can be obtained from ecosystems e.g. food, fresh water, wood and fibre, fuel and minerals (including aggregates);


• Regulating services: benefits obtained from the regulation of natural processes e.g. climate regulation, flood regulation and water purification; and


• Cultural services: including the availability of land suitable for development but also non-material or intrinsic benefits e.g. educational and recreational opportunities, aesthetic and spiritual values.

Minerals Policy Statement 1 (MPS1): Planning and Minerals L0381, published in November 2006, sets out the Government's overarching policies and principles which apply to all mineral extraction in England. One of the key aims, as stated in paragraph 1, is to "provide a framework for meeting the nation's need for minerals sustainably" and, as part of this, "securing avoidance or appropriate mitigation of environmental impacts where extraction takes place". One of the National Objectives, as stated in para.9, is "to protect internationally and nationally designated areas of landscape value and nature conservation importance from minerals development, other than in the exceptional circumstances detailed in paragraph 14 of this statement". Paragraph 14 sets out more specific policies with respect to the protection of heritage and countryside (including nature conservation), making appropriate cross references to the requirements set out in PPS9 and related legislation. Separate policy statements are given for European designations (SACs, SPAs and Ramsar sites), major national and international landscape designations, SSSIs, and to regional and local sites of biodiversity, geodiversity, landscape, historical and cultural heritage importance. Different levels of significance and approach are attached to each type of designation, according to its status.

More general reference to environmental protection, irrespective of any designation, is made in paragraph 17. As well as referring to the environment in general, this includes specific reference to "the potential for mineral developments, individually or cumulatively, to affect the flow, quality and quantity of surface and groundwater supplies and the water table". This has relevance to potential impacts on water-dependent habitats and species which may be within the zone of influence of a quarry – especially but not only where dewatering is taking place to lower the water table. Paragraph 19 makes reference to the "opportunities for enhancing the overall quality of the environment and the wider benefits that sites may offer, including nature and geological conservation and increased public accessibility, which may be achieved by sensitive design and appropriate and timely restoration".

Minerals Policy Statement 2 (MPS2): Controlling and Mitigating the Environmental Effects of Minerals Extraction in England L0533, published in March 2005, sets out the general policies and considerations in relation to the environmental effects of minerals extraction that the Government expects Mineral Planning Authorities (MPAs) in England to follow when preparing development plans and in considering applications for minerals development. As with other policies and guidance, although much of it is aimed primarily at MPAs, all of it has clear implications for mineral operators, particularly in terms of complying with development control requirements. It advises on the need for Environmental Impact Assessment in most types of proposal for mineral extraction – normally including all applications which could affect national and international designations, irrespective of their size. It also provides guidance to developers on the need for pre-application discussions with a range of statutory consultees and stakeholders as well as with the relevant MPA. It specifically advises that "When preparing the application and in proposing any necessary mitigation measures, the developer should demonstrate that any potential adverse effects have been properly and competently considered". It also notes that monitoring is an essential feature of control over the effects of mineral extraction, and advocates the use of performance requirements which leave the developer free to make their own decisions on the most cost effective way of meeting those criteria, while allowing outcomes to be monitored.

The guidance covers the general principles which apply to a range of different environmental effects, including biodiversity and landscape (though without explicit mention of geodiversity). More detailed policies and guidance are provided in separate annexes dealing with specific types of impact. To date, these include impacts relating to dust and noise. Policy recommendations for a third annex, on the water environment, were completed in 2007, for consideration by CLG alongside the much wider review of Planning Policy that has been ongoing since that time. Though not yet published as formal policy, those recommendations are available as a peer-reviewed research report 531 and are likely to be regarded as material considerations until such time as they are replaced.

Good Practice Guidance

Practice Guidance relating to the implementation of the existing PPS9 is set out in the document: Planning for Biodiversity and Geological Conservation: A Guide to Good Practice L0282, published in March 2006. Chapter 5 of this document relates to development control and thus has the most direct relevance for mineral operators in preparing planning applications for new quarrying proposals. It points out that some of the core principles embodied within PPS9, including the five point approach to decision-making (information, avoidance, mitigation, compensation and new benefits) derive from the earlier (1999) RTPI publication: Good Practice Guide: Planning for Biodiversity L0534.

Guidance to local authorities on their statutory obligations relating to biodiversity and geodiversity (including, but not limited to features within designated sites) is contained within the draft Government Circular: Biodiversity and geological conservation – statutory obligations and their impact within the planning system L0535, issued for consultation in March 2010. In its final form, the document will replace the existing joint ODPM Circular 06/2005 and Defra Circular 01/2005 on this subject. It provides guidance on the application of the law relating to planning and nature conservation as it applies in England, and complements the draft PPS on Planning for a natural and healthy environment. Although aimed at Local Planning Authorities, once again the obligations involved have clear implications for decision-making with respect to development proposals, and therefore need to be understood by developers and reflected in their planning applications. The draft circular includes detailed procedural flowcharts which help to identify what is likely to be required.

More general advice, not limited to statutory obligations, is contained within two earlier Defra publications: Guidance for Local Authorities on Implementing the Biodiversity Duty (2007) L0536, and Local Sites. Guidance on their Identification, Selection and Management (2006) L0537. The latter provides specific information on the conservation of both biodiversity and geodiversity through non-statutory designated sites, including Local Nature Reserves, Local Geological Sites (including Regionally Important Geological and geomorphological Sites (RIGS)) and other Sites of Importance for Nature Conservation. Further general guidance on geodiversity is provided within the former English Nature's 2006 publication: Geological conservation: a Guide to Good Practice L0283. In addition to the foregoing sources of guidance relating specifically to biodiversity and geodiversity, reference should also be made to the Practice Guide: Planning and Minerals L0538, which accompanies MPS1.

A further source of practical guidance can be found in a wide range of research reports commissioned either directly by central Government in support of policy development or (more commonly in recent years), through the Aggregates Levy Sustainability Fund (ALSF). Of particular relevance here are the ALSF 'benchmark' reviews carried out in 2008 on various topics including:

• Creating Environmental Improvements through Biodiversity L0093


• Creating Environmental Improvements through Geodiversity L0099


• Creating Environmental Improvements through Restoration L0115 and


• Reducing the Environmental Effect of Aggregate Quarrying on the Water Environment L0084

Each of these reviews highlights important aspects of good practice and provides cross references to a much larger range of relevant research publications on the topic concerned.

Local and Company-wide Biodiversity and Geodiversity Action Plans

In addition to the national (UK-wide) action plans referred to above, local and company-wide biodiversity and geodiversity action plans are also being developed in many areas. In all cases, the 'Action Plan' process defines both long-term objectives and short-term targets and seeks to identify the human and financial resources necessary to achieve these. For both biodiversity and geodiversity, these plans provide a basis for developing and implementing actions which encourage interest and involvement by local people in the natural environment resources within their local area.

Local Biodiversity Action Plans (LBAPs) L0539 in England work on the basis of partnership to identify local priorities for biodiversity conservation, and seek to deliver agreed programmes for continuing action which contribute to the delivery of the national Species and Habitat Action Plan targets set out in the UK BAP. They provide a focus for local initiatives and are important elements of the Community Strategies prepared by Local Strategic Partnerships to further the wellbeing of their local areas. LBAPs are delivered through wide local partnerships that involve wildlife organisations, local authorities, businesses and other interested parties. Often, but not always, LBAPs conform to county boundaries.

Local Geodiversity Action Plans (LGAPs) L0540 in England have been developed as a geological equivalent of LBAPs and, in part, are based on a similar model. The main difference is that, in most cases, they have preceded the development of a national strategy or action plan, and are therefore largely based on local geodiversity 'audits' (assessments of locally available and accessible geodiversity resources). LGAPs set out actions to conserve and enhance the geodiversity of a particular area. They set out clear aims and objectives with measurable targets for local conservation. Currently there are more than 40 LGAPs in progress, focusing on county or other administrative areas. Further information can be found in Local Geodiversity Action Plans – Setting the context for geological conservation (English Nature, 2006) L0271.

Company Biodiversity Action Plans (cBAPs) and company Geodiversity Action Plans (cGAPs) have begun to emerge in recent years, demonstrating corporate commitment to the protection, enhancement and beneficial use of biodiversity and geodiversity resources. Quarry operators have been closely involved with these developments, highlighting the important contributions that quarrying can make in creating new (or replacement) habitats and landforms, and in providing access to geological exposures and discoveries for the purposes of amenity, education and research. Detailed guidance for aggregate companies (equally applicable to other mineral operators) on the preparation of cGAPS is provided in Geodiversity Action Plans for Aggregates Companies: A Guide to Good Practice L0541 (Thompson et al, 2006), whilst further information on cBAPs can be found at the Business and Biodiversity Research Centre L0542. The latter is not specific to the minerals sector, but a useful overview of the UK mineral industry's achievements and opportunities with respect to biodiversity is provided in the Mineral Product Association's publication: Building on our legacy … realising our potential: the MPA Biodiversity Strategy L0543, launched in January 2011.

 

ref 1. These various requirements and expectations will inevitably change over time. This note deals only with requirements (including draft national policy) that were in place in February 2011. In detail, some of the requirements will also vary from one area to another, reflecting the detailed policies within individual Local Development Frameworks. This note deals only with national requirements and generic guidance.

 

Continued with Pre-operation

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