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Reconciling post-Brexit development and environmental protection goals

New Forest

The words “zombie legislation” paint a fairly amusing picture, but, make no mistake, they refer to a serious issue, says Ben Kite, at environmental consultancy EPR.

In the context of UK ecology, they allude to the prospect that a great number of protections for precious areas, species and habitats - currently enshrined through legislation stemming from EU law – will be weakened or lost post-Brexit.

The concern held is that legislation “banked” through the impending Great Repeal Bill will languish, become slowly diluted by new statutory instruments and won’t be enforced. Those holding such concerns were not much reassured when the government’s new ‘Plan for Britain’ website, at the time of launch on 16 March, made not one single mention of the environment.

Earlier this year, in response to the uncertainty generated by the prospect of the Great Repeal Bill, the House of Commons Environmental Audit Committee (EAC) published a report urging the UK Government to safeguard existing protections by formulating a new Environmental Protection Act (EPA).

UK ecologists, however – particularly those simultaneously working to strengthen UK ecosystems and help the development community meet growing housing demand – would like to see the government go one step further.

Specifically, triggering Article 50 offers the UK an opportunity to refine and enhance our environmental legislation. It gives us a chance to simplify protection mechanisms, redirect our efforts to where they are most needed, clarify decision-making and achieve a broader range of goals across ecology, agriculture and development.

In the lead up to and aftermath of Britain’s exit from the EU, establishing a list of environmental priorities for the UK will therefore be essential.

A core focus for any new UK EPA must be to integrate protection for European designated sites. Under the EU Birds and Habitats Directives, the creation of Special Protection Areas (SPAs) and Special Areas of Conservation (SACs) have ensured the preservation of some of our most precious and rare landscapes, such as the New Forest, the Norfolk Broads and the mountains of Snowdonia.

"Triggering Article 50 offers to opportunity to refine and enhance our environmental legislation"

Yet, while these protections are an indispensable means of preserving our common natural heritage, there is room to improve their delivery mechanisms. The property and infrastructure development communities are frequently frustrated by multi-phased and complicated processes. This has often led to protracted legal cases revolving around how legislation should be interpreted and applied, rather than constructive debate on how we can best apply innovation to improve both the natural and built environments.

Work carried out by the Law Commission in 2015 on other areas of wildlife law showed that there was considerable scope for consolidating the messy plethora of existing legislation to simplify matters for both the development and conservation communities. The current combination of UK and EU legislation has led to overlapping systems and terminologies – alongside mismatches in the level of protection afforded to certain species – that can place disproportionate burdens on developers.

Ultimately, environmental legislation in its current form is more commonly viewed as an obstacle to development than as an effective means of bringing about much-needed biodiversity benefits. In this context, it is essential that the role sustainable development can play in driving environmental improvements – particularly in already ecologically impoverished areas – is acknowledged as the UK reforms its environmental rules.

In order to achieve this, however, both Natural England and local planning authorities must “grasp the nettle” and clarify where regulatory responsibilities lie for different environmental issues. Both have, in recent years, taken steps back from actively engaging with certain issues, leading to uncertainty for developers.

In order to both protect wildlife and deliver much needed development, we need well-funded and expert regulators with a clear brief from government to assist and expedite the delivery of sustainable projects (i.e. those that deliver in social, environmental and economic terms).

We must see past the false choice hitherto presented to us between development and environmental protection goals; we can and must achieve both. In a post-Brexit Britain, development can be more effectively harnessed as an opportunity to fund and deliver positive environmental change.

Ben Kite is the managing director at ecological consultancy Ecological Planning & Research (EPR)


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