UK Environmental Law Association’s response to the Department for Food and Rural Affairs’ invitation to shape the Nature of England.
Introductory comments
UKELA is the UK's foremost membership organisation working to improve understanding and awareness of environmental law, and to make the law work for a better environment. As such, UKELA has a keen interest in ensuring the effectiveness of the legal framework to securing nature conservation.
Question 1 – What do we need to do to embed the true value of our natural resources in decision making at all levels?
a. How can we reflect all the different kinds of value described above?
Existing values and potential values of natural resources can only be embedded in decision making when the relevant information is provided to the decision-makers in relation to each decision, and the decision-maker is placed under a duty to prioritize those values. Consequently, where planning policies or validation criteria require the submission of proposals to protect support and enhance particular values, then these requirements are brought to the forefront for both applicants and decision-makers. Where decision-makers act rather than react, then criteria have to be applied e.g. through the processes of SEA with regard to the achievement of the objects in relation, for example, to biodiversity action plans at each level of decision-making.
There needs to be effective legal mechanisms supported by a clear policy framework, relevant information and guidance, to ensure that decisions taken for and affecting natural resources, are given due consideration.
Question 2 – Have we identified the right overarching challenges for the White Paper to consider?
a. If not, what should we focus on?
Water.
The assertion that water quality in rivers has improved measurably since 1990 in part reflects belated partial compliance by the UK with obligations under the Fresh Water Fishwaters Directive and the Urban Waste Water Directive. However, the position with regard to compliance with the Water Framework Directive arguably remains a long way short of that which the language of the Directive appears to require. Good ecological status of water is directly prejudiced by failure to take the actions required to control both point source discharges and non-point source discharges.
Measures to protect water bodies and their ecosystems from damage from ever increasing road traffic directly from discharges from highways and indirectly from emissions to air are almost entirely lacking, with no progress in relation to retrofitting sustainable urban drainage systems to the existing network and less than comprehensive progress in relation to much of new transport infrastructure.
Habitat Networks
The SSSI network and its relative condition is the basis of the national network of habitats. However, the network was not designed to put in place the physical measures necessary to arrest the decline in species and habitats of particular interest or to plan for their enhancement. A principal challenge, not mentioned in this section though the Lawton review mentioned subsequently covers part of the issue, is that of the protection, restoration and enhancement of networks throughout the country, and not merely associated with islands of favourable condition, of features required to enable species to flourish, and land management consistent with that.
b. How should we approach these challenges?
The on-going degradation arising from in some areas inadequate measures under the Water Framework Directive is required to be addressed by strengthening the existing RCMPs under that directive, and ensuring that those policies are also integrated within other decision-making processes. The increasing requirements of water management statements if fully implemented, contributes to the understanding of the impacts of particular proposals on ecological quality of water.
Network enhancement should be driven by comprehensive policies within at least local development frameworks which require each decision to maximize the nature conservation values of a site under development, or otherwise at issue, and requiring at minimum full mitigation and compensation. This could be addressed by strengthening the biodiversity duties for public bodies and the wording of Planning Policy Statement 9
Question 3 – What are the existing policies and practices aimed at protecting England’s natural assets (including but not limited to those set out above on our biodiversity, seas, water bodies, air and soil) that currently work most effectively?
a. What works less well – what could we stop doing or do differently?
Question 4 – What mechanisms should we focus on to ensure we manage our natural systems more effectively in future?
The proposition that there should be a focus on particular mechanisms appears to imply the diversion of resources from other mechanisms, which would be unsatisfactory. However, it is reasonable to consider measures of universal application for species or habitats across their natural range potentially to deliver far greater benefits to nature conservation than those restricted to specific sites of perceived higher conservation value.
a. How should we define success?
Concepts such as favourable conservation status and good ecological condition are already defined and described at national and at European Union levels. The concept can be extended to include other national important species and habitats and water bodies.
Mechanisms such as species recovery plans and biodiversity action plans are appropriate, and their extension as more general measures for less endangered species and habitats.
b. How can we agree on common goals and assess our progress towards them?
Goals for species and habitats should be based on the key concepts indicating favourable status, which should be established objectively in the light of scientific knowledge, enabling the identification of issues that prevent achieving favourable status and the measures necessary to achieve and maintain that status The work of the Technical Advisory Group in relation to the Water Framework Directive and the Joint Nature Conservation Committee’s work in assessing and reporting conservation status under the Habitats Directive may form an appropriate model.
Question 5 – How best can we reduce our footprint on the natural environment abroad, through the goods, services and products we use?
Question 6 – What best practice and innovative approaches to protecting and enhancing our natural environment do you think should be considered as we develop the White Paper?
It seems that there is a growing appetite for exploring new approaches to conservation, e.g. habitat banking or recovering the value of ecosystem services - e.g. the paper noted in 428 ENDS Report45 (Sept.2010) - Sutherland et al., The Identification of Priority Policy Options for UK Nature Conservation, 47 Journal of Applied Ecology 955. We would emphasise the importance of a proper legal analysis of the range of devices now being considered, so that there is informed discussion aboutthe practicalities of such mechanisms, their fit with other legal frameworks and their acceptability (e.g. do they amount to a "commoditisation" of nature?). It would not be helpful if the legal dimension lags behind the possible enthusiasm for trying something different, especially something that may be attractive as apparently relying more heavily on private resources and initiative.
Question 7 – How best can we harness and build on public enthusiasm for the natural environment so people can help improve it through local action, as informed consumers or by shaping policy?
This enthusiasm can be channelled into appropriate action through the provision of greater information to the public through consultation on further ecological studies in relation to plans and projects, and drawing in the information which they have to the decision-making process. Local government and local organizations at parish and community level can also very usefully be involved in initiatives for habitat restoration maintenance and enhancement.
Question 8 – What should be our vision for the role of Civil Society in managing and enhancing the natural environment and for engaging individuals, businesses and communities in setting the agenda for that work?
The vision should be that the natural environment and infrastructure is as central to all decision-making and practice as built environment and infrastructure.
Question 9 – How best can Government incentivise innovative and effective action on the natural environment, across England, at the local level?
There is no doubt that agricultural policy is capable of impacting positively and negatively on nature conservation over wide swathes of the country. More specifically, the ready availability of appropriate guidance and expertise to district councils, local councils and community groups without cost to users would be decisive in enabling and influencing practice on the group.
a. How best can local Government and other local partners work together to improve local outcomes on the natural environment, and pursue a more integrated approach linking a healthy natural environment to economic prosperity, sustainable development and a better quality of life, health and wellbeing?
Joint working is likely to be enhanced by the availability of a shared resource of expertise in the subject area, as indicated above.
b. What are the most effective mechanisms for managing the natural
environment where cross-boundary issues are involved, and making the
link to other mechanisms for economic growth, transport and planning?
The most effective mechanisms on cross-border issues are formal joint bodies. Where this is not possible, then for the bodies to share personnel and resources on technical issues concerning nature conservation would in practice lead to compatible advice given to authorities on either side of the divide.
c. How best can the value of the natural environment be considered within
local planning?
What is lacking is consistent application of national policies at local plan/local development framework level to integrate benefits to the natural environment in planning decisions. Such a shortcoming can only partially be made good through national guidance, given the statutory weight of the plan/framework, and therefore a stronger legal framework is desirable.
Question 10 – How best could the economy reflect the true value of nature’s services in the way business is done, to drive smarter, greener growth?
This question is outwith UKELA’s remit, but it will be pleased to comment on any legal measures in relation to green drivers.
Question 11 – Responsible businesses are already looking for ways to reduce their impact on the environment. How can we encourage more action like this?
Ultimately without effective regulation and enforcement irresponsible businesses are unlikely to target impact reduction.
Question 12 – What are the barriers to joining up and seeking multiple benefits from our natural assets?
The barriers to joining up are the absence of integrated decision-making. In relation to areas under integrated control, such benefits are much more readily achieved.
Question 13 – What are the barriers to thinking big and taking a landscape scale approach to managing our natural assets?
The principal barrier is the nature of decision-making, and its preoccupation with the specific anthropocentric project and with artificial infrastructures. Neither landscape planning nor water planning is fully integrated with other procedures.
Question 14 – What should be the priorities for the UK’s role in EU and international action, to protect and enhance the natural environment at home and abroad?
When Member States next report on the implementation and application of the Habitats Directive in 2013 it will include a more robust assessment of conservation status than the last report produced in 2006. The 2013 report should stimulate a thorough review at national and EU level to assess the effectiveness of measures in achieving the aims and objectives of the Directive.
The UK should support EU measures on green infrastructure and targets to secure the ‘no net loss of biodiversity’.
Question 15 – If you could choose just one priority action for the Natural Environment White Paper to drive forward locally, nationally or internationally – what would it be?
The integration of environmental and nature conservation policy into decision-making to ensure that habitat improvement becomes a constant feature of development, not merely a standard of no net loss of biodiversity....
UK Environmental Law Association: making the law work for a better environment
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President: Rt. Hon. Lord Justice Carnwath C.V.O.