GUEST POST : Of newts, mushrooms, bats and knotweed

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News this week that the £90m Monks Cross Shopping Centre development in York has been delayed by the appearance of a rare newt on the site shows once again how it is sometimes the tiniest things that can bring development projects to a juddering halt. In the past we have seen bats, orchids, mushrooms, slowworms and all manner of other “natural environmental issues” hold up building works. This put me in mind of a piece my colleague Dominic Whelan wrote for Estates Gazette last year – nice and colourful and I thought you would enjoy the opportunity to read it here…

There are many challenges which developers face in completing a successful development.  These range from the basic principle of obtaining a viable planning consent to dealing with local neighbours and allaying their concerns.

However, more often than not, Environmental issues will also have to be addressed.  While the most obvious environmental concern a developer will have will usually be potential or actual contamination, there are other things may arise under the umbrella of “environmental issues ” which may have a much wider scope than the issue of contamination.  Many developments have to take into account various ecological issues, which the planning authority are duty bound to consider, as part of the decision-making process.

Seemingly innocuous creatures such as newts, bats and slow-worms are fighting their corner more vigorously (or rather, others are doing it for them) and developers have to take account of their very specific requirements.  And they don’t come cheap!

What issues can arise?

The potential ecological issues which can arise are almost endless.  They are site-specific and therefore it is a vital part of any developer’s due diligence that they take early specialist advice.  Ongoing ecological issues which have to be managed and accommodated within the development often throw up interesting and challenging issues (although developers often use less flowery language if they are unexpectedly picking up the tab).

Some examples of the common (and less common) issues which can arise:

Newts

The great crested newt and its habitat are protected by law and are this little newt is the unofficial number one in the list of amphibians developers fear the most!

The number of great crested newts has dropped significantly over time and the blame for this has largely been attributed to the loss of its natural habitat.  It is a criminal offence not only to intentionally kill a newt, but also to damage its habitat.  Therefore, a development has to be designed so to accommodate any such newts.  You could form a long line of developers who have paid thousands to protect or “rehouse” this newt.

The process of finding a viable solution to the existence of newts is not straightforward.  Firstly, it may not be clear if the site is actually occupied by newts.  If a development site includes a pond, then clearly a developer should be alert to the possibility that newts may be present.  However, newts spend most of the year on land, so even if the development site does not contain any ponds but it is near a pond, it could still be affected.  Newt “surveys” can only be carried out at certain times of the year (during the breeding months of March – June), so early action will be needed to avoid unnecessary delays.

The newts and their habitat have to be considered by the planning authority when they make their decision and consent can be refused on account of their presence.  Often their presence is accommodated and protected by using planning conditions or s106 planning obligations.  If it is agreed that the newts can be “rehoused” or contained using, for example, newt fencing , then this process can be expensive.  If rehousing is required, then the developer has to obtain a licence from DEFRA.  Not at all straightforward.

Japanese Knotweed

A well known and very troublesome plant.  It was first introduced to the United Kingdom from Japan back in the 19th Century as an ornamental plant.  Its threat comes from both its strength and the ease by which it can spread and take over a site. It can damage buildings, concrete and tarmac creating obvious issues for developers.  Funders for end purchasers are particularly adverse to its presence and will usually want to see it eradicated before releasing funds.

It is a criminal offence to plant or allow Japanese Knotweed to grow.  If it is found on the site it will ordinarily have to be removed.  This is a specialist job not least because the waste has to be destroyed in a controlled manner.  Even just the smallest root can take hold elsewhere if not destroyed properly.

Developers are well advised to investigate for this problem weed as early as possible.  Eradicating the problem early in the development is often an easier (and therefore cheaper) option than dealing with this when construction has already started.  Developers will inevitably need to show the end purchaser that the problem has been dealt with.

Slow-worms

Although a slow-worm looks like a snake, it is in fact a legless lizard.   Another protected amphibian; it has made its presence felt at a number of development sites.  When the £26m A338 road works were found to be destroying the slow-worms’ habitat, months of road delays were caused during their relocation.  Slow worms indeed!

Bats

Another common problem is that of bats.  They are often found on development sites, where there are old buildings present.  As a protected species, Local Authorities are required to take them into consideration in respect of any development application.  If found, developers can be required to change the construction timings so to fit in with the bats’ lifecycle and minimise the effect the of development.  It is also commonplace for planning authorities to require new bat boxes to be provided to provide safe accommodation.  All this can, of course, add hugely to development costs.

Mushrooms

An earth star mushroom (a mushroom which opens to look like a star) is rare in Europe and was considered extinct in UK until recently.  An unlucky developer in Darlaston, West Midlands reportedly managed to find a development site with one of these happily growing on it.  The mushroom’s habitat was threatened by the proposed 100-home estate. Although planning consent was already granted, it was reported that ecologists demanded that work stopped whilst relocation plans were formalised, to move the mushroom which was deemed worthy of retention.

Orchids

Orchids are an example of a delicate flower with the power to move buildings!  A developer in the Cotswolds relocated a home on their site, when a discovery of an Epipactis Phyllanthes, no less, was found on the proposed footprint of the home.

Seabirds

Whilst there may be many challenges to defeat if Boris Johnson is to get his proposed Thames Estuary airport, one (of no doubt many) ecological objections will be the effect that it will have on the local bird population.  The RSPB believe that up to 200,000 birds and another 30,000 in the nearby Medway would be affected.  The question, given the numbers involved, is whether replacement habitats could, realistically be created elsewhere. No doubt this is only touching the surface of the potential environmental and ecological issues that will have to be overcome on a scheme of this size.  You only have to look at the furore surrounding Stansted to know that this will not be a straightforward development.

Planning Authorities’ duties

Local Authorities have a general duty to take into account environmental and sustainability issues to which the proposed development may give rise.  This will encompass protecting “protected species ” and also sensitive development sites (such as those designated as Sites of Special Scientific Interest).

However, a greater level of investigation is required if Environmental Impact Assessments are required.  The principle of Environmental Impact Assessments derives from an EU Directive and is a procedure which must be followed before certain projects can be granted planning consent.  The idea is that it gives the relevant planning authority sufficient information to consider the environmental impact the proposed development will have when they determine whether to approve the application.

As expected, there are certain major projects where an assessment is mandatory and these mandatory projects are specifically listed in the legislation (so called ” Schedule 1 Projects”).  For example, where there is an obvious environmental impact such as waste disposal plants or major infrastructure projects, an assessment will be needed.

There are also “Schedule 2 Projects ” which, again , is a list of specific projects.  However, Schedule 2 Projects only require an assessment, if the specific project is deemed likely to give rise to significant environmental effects.

Local Authorities are the arbiters as to whether or not your project requires an assessment.  There is a procedure under which you can apply to the Local Authority for a determination as to whether an assessment is required (with a right to appeal to the Secretary of State if you disagree).  Theoretically, a developer can simply apply without an assessment if they consider that an assessment is not required but the Local Authority will be required to refuse the application if they disagree.

What can you do to protect yourself?

Sadly, the answer is that you cannot entirely protect yourself.  Development brings with it the inherent risk that you will discover something you would rather you hadn’t.  The focus must be on doing all you can to minimise the risks.  Therefore, knowledge is key.

Firstly, make sure you are well advised.  Whilst Environmental and Ecological advisers may not come cheap, they are essential in ensuring that all reasonable investigations are carried out properly.  They should also be able to assist you in assessing the level of risks of discovering an environmental or ecological issue and therefore the level of due diligence that you, or rather they, should undertake. They will also prepare the necessary statements to satisfy the planning authority.

Find out early in your development plans what the Local Authority will require in terms of Environmental or Ecological assessments.  The costs of these surveys and anything which comes out of them may not be insignificant, so should be taken into account in considering the viability of the development.

As part of this due diligence process make sure that, via your solicitor, the Seller or their agents answer full and detailed enquiries before contract.  Speak to people with knowledge of the site.  For example, a site manager who has worked on the property for years can be a great source of information on potential issues.

Bear in mind that many of the examples listed above will not always be capable of being spotted on a site inspection.  For example, a rare orchid or mushrooms could be dormant and preparing itself just to appear when you least expect it.  This highlights exactly why specialist advice from those who can recognise the warning signs is key.

Despite recent suggestions from George Osborne that he will look to relax environmental restrictions on developments where this is causing significant cost to business, it would seem fanciful to suggest that environmental issues will ever be removed from the planning process.  Developers need to remain alert to the Environmental and Ecological issues that can cause a significant cost to the development.

And above all they should do their best to avoid those not so magic mushrooms!

Dominic Whelan, Partner at specialist property law firm Brecher

Key points box

Key points to note

  • Assess the property for environmental and ecological issues as part of your initial due diligence
  • Find out what level of environmental assessments the local authority will require at an early stage
  • Get appropriate and specialist advice as early as possible

Examples of protected species

  • Badgers
  • Bats
  • slow worms
  • newts