Biodiversity and Geodiversity

 

 

 

Pre-Operational Requirements

The following text provides a brief summary of the key requirements relating to biodiversity and geodiversity which need to be taken into account by mineral operators at the pre-operational stage (that is, prior to submitting applications for planning permission or other development consents for a new quarry or an extension to an existing site).

In detail, the requirements relating to a particular site will be dictated (either directly or by implication) by individual policies within Development Plan Documents (DPDs) in Local Development Frameworks, including Minerals and Waste Development Frameworks. Existing DPDs have been prepared (to various stages in different local authority areas), in line with existing national policy which, as noted above, is currently being revised, and in general conformity with Regional Strategies, which have since been abolished. It is therefore both difficult and inappropriate to summarise these detailed requirements here.

Instead, the following more generic (and thus more widely applicable) observations on current and future requirements have been gleaned from existing legislation, and from existing and emerging national policy, and good practice guidance, as outlined in the preceding sections. These are divided into general requirements and those relating specifically to statutory obligations.

General Requirements

As an ongoing background activity – not a formal requirement and not necessarily linked to individual applications, but often of considerable benefit to them – mineral operators may find it useful to consider developing, or progressing further with, company Biodiversity Action Plans (cBAPs) and/or company Geodiversity Action Plans (cGAPs), in line with the guidance referred to above. These may (but need not) include site-specific action plans for the location of intended future applications, though such plans will generally be easier to produce for existing sites that are being extended or deepened, than for new greenfield applications. cBAPs can usefully include links with the relevant Local and National Biodiversity Action Plans and can give detailed advice to site personnel on managing species that are using active parts of the site, as well as those in adjoining areas and on restored land.

At the outset of the application process, operators should carry out a thorough review of the legislation, policies and guidance which are applicable to the site in question, ranging from those in the Local Development Framework (or Minerals and Waste Development Framework) to higher level, national requirements. This will allow detail to be added to the information presented earlier in this review and to the outline requirements set out below.

Operators will almost always find it useful to hold pre-application discussions with the local Mineral Planning Authority (MPA) and with other relevant regulators – e.g. Natural England, English Heritage and the Environment Agency, as far in advance of the application as possible. This will help to ensure that they understand all of the relevant regulatory requirements. As well as discussing the normal sequence of procedures involved in the preparation of a planning application (such as EIA screening, scoping and submission), pre-application discussions enable the operator and regulators to discuss the options available for such things as:

• location,


• baseline surveys and monitoring,


• information requirements,


• excavation design,


• impact mitigation,


• compensation,


• operational monitoring,


• restoration design and


• post-closure monitoring.

All of these may have a bearing on the scale and detailed design of the proposal and may also affect the economic viability of the project. In some cases, early consultation and reference to relevant background material may influence the precise location of the proposed excavation, depending on the extent of available resources and the operator's access to them. Ideally this should form part of the Site Allocations process when the Minerals Development Framework is being prepared or revised, but fine tuning of locational details may still be required as an individual application begins to emerge. From a biodiversity and geodiversity perspective this may be to ensure that the scheme avoids certain impacts (such as the destruction of important landforms or habitats) and/or that it is better able to contribute to the creation of wildlife corridors by linking new and existing habitats together.

Baseline surveys and consultation, to understand the existing biodiversity and geodiversity within the area likely to be affected by the proposal, are fundamental requirements, and will help to inform both the need for avoidance, mitigation or compensation of potential impacts and also the scope for the optimal creation of new benefits. In the case of ecology, the baseline surveys will often be time-dependent, with different seasons being appropriate for different species. In the case of the water environment, baseline monitoring will often be needed over a prolonged period of time (typically at least 1 year) in order to gain a good understanding of the processes involved, including the interactions between groundwater, surface water and dependent ecosystems and seasonal variations. This is a vital pre-requisite to the assessment of potential effects. Moreover, there will often be a need to integrate the water environment monitoring requirements for biodiversity, archaeology and water resource purposes. There will often be benefits to be gained from investigating existing sources of monitoring data and linking the new monitoring schemes into a wider network. This not only contributes to wider knowledge but it can help to differentiate the subsequent effects of quarrying from the general background trends associated with climatic and environmental change. This concept of 'dynamic baseline monitoring was introduced in the policy recommendations for the 'water' annex 531 to MPS2, but is equally applicable to biodiversity in general.

Though not yet a mandatory requirement, there are advantages to be gained (in terms of both impact reduction and optimising potential benefits) by adopting an holistic 'Ecosystems Approach' to quarry and restoration design, and by ensuring that this considers the full 'lifetime' of the development from initial planning and excavation to final restoration, aftercare and proposed after-use. The Ecosystems Approach allows biodiversity and geodiversity issues to be considered in parallel with all other ecosystem services (including mineral extraction), so that an acceptable overall balance is achieved, by comparison with alternatives that may be included in the analysis (see Thompson et al, 2010 L0151 for a detailed methodology for comparative analysis and hypothetical worked examples for major hard rock quarries in the Mendips). The process can also be integrated with the MPA's requirements for consultation with both local communities and other stakeholders, so that the final proposal is likely to have a much greater chance of being approved.

Whether or not an ecosystems approach is used, the avoidance of impacts, the need for mitigation and/or compensation, and the opportunities for creating environmental benefits should be fully integrated into the design concepts for both the excavation itself and for its restoration and after-use. An important aspect of this will be to link biodiversity aspects in with company, local and/or national Biodiversity Action Plans, so that optimal benefits can be achieved in terms of creating the most appropriate, and most sustainable, priority habitats for the site in question. Cripps et al, 2004 L0126 have noted that natural recolonisation of abandoned quarries often results in some of the best local biodiversity, though this may not necessarily be the best contribution to BAP priority targets. The benchmark review on biodiversity and minerals L0093 advocates that, where habitat creation is the main focus of mineral reclamation schemes, the creation of large areas of the most suitable habitat is generally preferable to creating an intricate mosaic of different ones designed by landscape architects. It also advises that specific consideration should be given to the less obvious species, particularly invertebrates. Even where habitat creation is not the principal goal of a reclamation scheme, there will usually be scope for enhancing biodiversity on a smaller scale within other types of after-use, including agriculture, forestry and commercial or residential development. Reference, in all cases, should be made to the detailed information and guidance available in publications such as the RSPB good practice guide on habitat creation 532, the Nature after Minerals Website L0128 created by RSPB and Natural England, including the publication on how mineral site restoration can benefit people and wildlife, and to the advice available from organisations such as Buglife – for example its online information on managing priority habitats L0544.

In developing the proposals, consideration should also be given to the design of effective operational monitoring schemes. In the case of biodiversity and the water environment (in particular), these should preferably linked to trigger levels or values and to the implementation of appropriate mitigation measures which help to achieve the performance requirements likely to be stipulated in planning conditions.

As explained earlier, Environmental Impact Assessment will almost always be required for mineral extraction proposals. This may apply not only to planning applications but also to other forms of development consent, such as environmental permits and water abstraction licences. Here again there may be scope for incorporating the Ecosystems Approach – particularly in the consideration of alternatives. More generally, the EIA will need to rely on the prediction of potential adverse effects and on demonstrating the likely efficacy of proposed mitigation and/or compensatory measures. Both of these rely fundamentally on a sound understanding of the environment within the area affected, emphasising the importance of collecting adequate baseline information at the outset. Assessments which rely on inadequate data or unconvincing predictions are likely to give rise to requests for additional information before an application can be determined. Further information on statutory EIA requirements is given within the following section.

The various sources of Good Practice Guidance referred to earlier contain detailed advice on all of the issues outlined above and should be consulted for further information.

Statutory Requirements

Statutory requirements relating to biodiversity and geodiversity are those which relate to the statutory obligations on local authorities in respect of:

• Internationally Designated Sites;


• Nationally Designated Sites;


• Habitats and Species outside Designated Sites;


• Conservation of Species Protected by Law;


• Statutory Powers relating to Environmental Impact Assessment, Strategic Environmental Assessment and the Water Framework Directive

Details of these five sets of obligations are set out in parts I to V, respectively, of the draft Government Circular: Biodiversity and geological conservation – statutory obligations and their impact within the planning system L0281. Some of the key implications for mineral developers are outlined below, but reference should in all cases be made to the Circular for full details.

Internationally Designated Sites

The provisions of the Habitats Directive, together with those of the earlier Birds Directive, place major constraints on any form of ongoing or proposed development which is likely to have a significant effect on the integrity of a designated European Site. Before a planning authority can decide whether to grant permission for a project which may be likely to have such an effect, it must ensure that an 'appropriate assessment' is carried out of the implications for the site, taking account of the site's conservation objectives. The planning authority can then only grant permission if it is satisfied that the integrity of the site will not be adversely affected by the proposed development. If that cannot be demonstrated, a project may only be permitted if there are no other alternatives and if there are 'imperative reasons of overriding public interest' why the proposed (or ongoing) development should go ahead (or continue). In such circumstances, Article 6 also states that "the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected". In practice, this means that, where these conditions are satisfied, a new area of habitat, comparable to the one which would be affected, needs to be created elsewhere to prevent any net loss of that habitat within the Natura 2000 network. A step-by-step guide to these requirements is given in the draft statutory obligations document referred to above.

All of these requirements need to be understood by the developer before submitting any application that might adversely affect an internationally designated site, preferably through discussions with the local authority's ecologists. The onus in all cases is on the developer to demonstrate (by supplying the detailed information needed by the local authority for the appropriate assessment) either that there will not be any adverse effect or (where the developer can demonstrate an overriding public interest and no alternatives) that acceptable compensatory arrangements can be put in place.

In many cases, there will also be a need to consider areas beyond the designation boundaries if these are important for the welfare of particular protected species within the designation. In Somerset, for example, the County Ecologist has identified 'Ecological Zones of Influence' (EZIs) surrounding SACs which relate to foraging areas for protected bat species. Any disturbance of a EZI which would adversely affect the protected species associated with a particular designation would be regarded as an infringement of the Habitats Directive.

Nationally Designated Sites

The Wildlife and Countryside Act 1981 imposes an important general duty on local authorities when exercising functions which are likely to affect Sites of Special Scientific Interest (SSSIs). This general and overarching duty requires an authority to take reasonable steps, consistent with the proper exercise of its functions, to further the conservation and enhancement of the features for which sites are designated. It applies at every stage from the formulation of plans, to the making of decisions. As well as this general duty, additional provisions of the Act ensure that Natural England is able to provide full advice and information about the likely effects on a particular SSSI and any steps that might be required to mitigate them. They also ensure that, where Natural England's advice is not complied with, the decision taker must inform Natural England so that it has sufficient time to consider any further steps it may wish to take.

All of this supports the policy within MPS1 that MPAs should not normally grant planning permission for a proposed mineral development on land within or outside a Site of Special Scientific Interest (SSSI), if it is likely to have an adverse effect on a SSSI (either individually or in combination with other developments).

In preparing their development proposals, and in preparing associated Environmental Statements, mineral operators need to take account of this policy and of the level of scrutiny that will be imposed in accordance with the Wildlife and Countryside Act.

Habitats and Species outside Designated Sites

To comply with the requirements of section 41 of the NERC Act 2006, the Secretary of State has published a list (which is periodically updated) of the habitat types and species in England which are of principal importance for biodiversity conservation. Local authorities are required to take steps to further the conservation of the species and habitats found on the list, and this requirement will need to be anticipated by developers in preparing and assessing their proposals for mineral extraction.

Similar requirements apply in respect of 'features of the landscape that are of major importance for wild flora and fauna', as referred to in Article 10 of the Habitats Directive. These features are those that, because of their linear and continuous structure or their function as stepping-stones, are essential for the migration, dispersal and genetic exchange of wild species. Local authorities are required to encourage the management of such features with a view to improving the ecological coherence of the Natura 2000 network.

Special requirements also apply to Limestone Pavement Orders, Tree Preservation Orders, Hedgerows and Local Wildlife and Geological Sites (for which separate guidance has been issued by Defra L0537.

Conservation of Species Protected by Law

Particular species of flora and fauna within England are subject to special protection, normally because they are endangered or suffering a decline in numbers or range, either within the UK or elsewhere within the European Union. The species concerned are generally protected under the Wildlife and Countryside Act 1981, or the Habitats Directive, although some are also protected under more specific legislation, for example the Protection of Badgers Act 1992. The presence of a protected species is a material consideration when a planning authority is considering a development proposal that, if carried out, would be likely to result in harm to the species or its habitat. In such circumstances, planning authorities are required to consult Natural England before granting planning permission. Where there is a reasonable likelihood of a protected species being present and affected by the proposed development, these details need to be properly investigated before an application can be determined. This places an obligation on developers, under those circumstances, to carry out appropriate ecological surveys. Such surveys are normally required to be completed and any necessary measures to protect the species put in place, through conditions and/or planning obligations, before the permission is granted.

In the case of species that are protected under the Habitats Regulations, much stricter controls apply, including licensing under Regulation 44 of the Habitats Regulations.

Environmental Impact Assessment

Environmental impact assessment (EIA) under EC Directive 85/337/EEC is mandatory for projects that are 'EIA development' within the meaning of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, as amended (the EIA Regulations). The amending Directive (97/11/EC) made the EIA process mandatory for all quarrying operations exceeding 25ha. Smaller quarries may also be subject to EIA requirements if they are thought likely to have significant environmental effects.

The EIA Directive (as amended) requires that, where a project is considered likely to have significant effects on the environment:

• an Environmental Statement (ES) must be prepared, describing the likely effects of the development on the environment and (where relevant) any proposed mitigation measures. The statement must be publicised and consulted upon;


• the ES (and any other environmental information obtained as a result of consultation) must be taken into account before development consent is granted; and


• where development consent is granted, the decision-maker must publish their decision and the reasons on which it is based.

The ES should include all the information set out in Part II of Schedule 4 of the EIA Regulations, and such of the information in Part I as is reasonably required to assess the environmental effects of the development.

Strategic Environmental Assessment

The SEA Directive relates to the preparation of Plans and Strategies, rather than to individual development proposals. Mineral operators will frequently wish to get involved with Plan preparation, since this may influence their future prospects (e.g. by identifying mineral safeguarding areas, preferred areas for future working and specific site allocations; and by setting out development control policies). To this extent, operators will need to engage in statutory consultation processes relating to Plan development and, as part of this, may wish to contribute to the process of Sustainability Appraisal which, in England & Wales, is used within the planning system to implement the SEA requirements.

Water Framework Directive

The draft Circular on statutory obligations advises that planning decisions should take into account the impact of the development on the water environment and on the environmental objectives of the Water Framework Directive (WFD), as set out in the river basin management plans (RBMPs). In particular, the Circular highlights the requirement to prevent deterioration in status of any water body (subject to the application of Article 4.7 of the WFD). In order to do this, public bodies are required to have regard to Environment Agency advice and standing guidance.

 

Continued with Operation

TOP

Return to Introduction