The Four New Licensing Policies

A consultation on four proposed new policies for European Protected Species (EPS) mitigation licensing undertaken in early 2016 has now been released.

After a long wait, the four new licensing policies have been released. The proposed policies are sought to achieve better outcomes for EPS and reduce unnecessary costs, delays and uncertainty:

  • Policy 1 – greater flexibility in exclusion and relocation activities, where there is investment in habitat provision
  • Policy 2 – greater flexibility in the location of compensatory habitat
  • Policy 3 – greater flexibility on exclusion measures where this will allow EPS to use temporary habitat
  • Policy 4 – reduced survey effort in circumstances where the impacts of development can be confidently predicted

Agreed wording

Policy 1 – Defra considers that compensation for EPS impacts can be delivered without the need to relocate or exclude populations, where: exclusion or relocation measures are not necessary to maintain the conservation status of the local population; the ‘avoid-mitigate-compensate’ hierarchy is followed; and compensation provides greater benefits to the local population than would exclusion and/or relocation.

Policy 2 – If the licensing tests are met and the avoid-mitigate-compensate hierarchy is followed, off-site compensation measures may be preferred to on-site compensation measures, where there are good reasons for maximising development on the site of EPS impacts, and where an off-site solution provides greater benefit to the local population than an on-site solution.

Policy 3 – Where development (such as mineral extraction) will temporarily create habitat which is likely to attract EPS, Defra favours proposals which enable works to proceed without the exclusion of EPS, where the conservation status of the local population would not be detrimentally affected. On completion of development such sites must contribute to the conservation status of the local population as much as or more than the land use which preceded development. The measures to achieve this should be set out in a management plan and secured by a legal agreement.

Policy 4 – Natural England will be expected to ensure that licensing decisions are properly supported by survey information, considering industry standards and guidelines. It may, however, accept a lower than standard survey effort where: the costs or delays associated with carrying out standard survey requirements would be disproportionate to the additional certainty that it would bring; the ecological impacts of development can be predicted with sufficient certainty; and mitigation or compensation will ensure that the licensed activity does not detrimentally affect the conservation status of the local population of any EPS.

We have read the policies and have some concerns over the practicality of their implementation with regards to conflicts with existing planning policy and the lack of evidence that would demonstrate that this approach would indeed save the developer time and money. In summary, our understating is as follows:

  • Policies only apply to EPS and are mainly applicable where GCN are an issue;
  • Policies may be applied all together or individually;
  • Conventional survey methods for GCN licensing approach (i.e. trapping and fencing) will remain as an option, but all policies need to be supported by good quality and up to date surveys;
  • Compensation under these Policies are to be secured through s106 or a NERC Agreement “where necessary to meet the FCS test”;
  • One compensation site could potentially be used for more than one development, but must not be outside the area used by the ‘local population’;
  • Monitoring will need to be prescribed under some of these policies;
  • Greater reliance on and encouragement to use Natural England’s Discretionary Advice Service (DAS) or Pre-Submission Service when applying the new policies;
  • Cannot be used with low impact class licenses (i.e. for bats or GCN);
  • The Policies do not remove the need to satisfy the 3 licensing legal tests;
  • Natural England policies may conflict with Local Planning Authority (LPA) national and local planning policies and will lead to difference of opinions between the two bodies.

Read the full Proposed new policies for European Protected Species licensing 2016 document, by Natural England for agreed wording and full breakdown of the new policies.