Protected species may be all things bright and beautiful to some, but not today’s contractors. As Stephen Cousins explains, fall foul of the wildlife laws and it’ll be less a case of animal magic than...
As an environmental manager at Carillion, Mike Leighton likes to take pride in his abilities. His latest project – to build a road bridge over a river on the Isle of Sheppey in Kent – was planned to perfection. Planning permission had been granted, ecological scoping surveys carried out, the relevant licences from Natural England granted and work was on site and progressing well.
But one night, while Leighton slept soundly in bed, an intruder was secretly making its own plans for the site, plans that would throw this well-honed project into disarray.
‘It was a subcontractor who first spotted the great crested newt in a pool of water where a supporting column was to be positioned,’ explains Leighton. ‘We couldn’t believe it. The ecology consultant hadn’t done the survey properly and the discovery resulted in a two-month delay to construction. We weren’t responsible for selecting the consultant, so now we would only use a trusted ecology company.’
It’s a nightmare scenario, but one that is surprisingly commonplace in an industry that has been dealing with ecological issues and legislation for many years. Inadequate ecology reports, unexpected species turning up on sites and increasingly complicated legislation are making life hell for site managers and delaying projects. And if that wasn’t enough, the recession is causing further problems as mothballed developments come to represent prime real estate for creatures great and small.
‘Contractors don’t think of wildlife issues in the way they think of other constraints on building, like health and safety or labour. It’s an issue with firms across the board, from smaller contractors doing house extensions to large contractors working on multi-phase developments,’ says Dr Matt Heydon, principal specialist for wildlife management at Natural England, the public body responsible for the conservation of biodiversity in the UK.
But getting it wrong can have serious implications for contractors. ‘I’ve just been working with a medium-sized contractor on a development who, when it came to discharging planning conditions, still hadn’t appointed an ecologist, didn’t have a licence from Natural England, or a code of practice for ecology,’ says Phil Hughes, a construction manager working for developer Benchmark Leisure who has been managing ecological issues on construction sites for several years.
‘It meant the project was delayed by a year.’ Benchmark has now taken control of all ecology matters for subsequent phases.
Even pro-active site managers are struggling to keep up
Ryan Mellor, URS
Changes to legislation have undoubtedly made contractors’ ecological responsibilities more complex in recent years. In 2006, section 41 of the Natural Environment and Rural Communities Act introduced a list of more than 900 species considered to be of principal importance for conservation, including several that are invisible to the human eye.
In August 2007 the amended Habitats Directive introduced stricter protection for European protected species in the UK, including bats and great crested newts, making it illegal to harm or kill them, or even disturb their habitats. And most recently, in April last year, the Wildlife and Countryside Act (1981) was amended to give extra protection to five more species: the roman snail, short-snouted seahorse, spiny seahorse (see case study overleaf), angel shark, and the endangered water vole.
‘Even the most proactive and aware site managers are struggling to keep up with these changes,’ says Ryan Mellor, associate director of environmental and engineering consultant URS.
If it is thought that protected species are likely to be on a site, the client or developer will usually appoint an ecologist to establish their presence and draw up measures for mitigation to form part of the planning application. It will then often be the contractor’s responsibility to commission further surveys in support of relevant licences from Natural England. These licences allow the contractor to carry out activities that would otherwise be illegal, such as the removal or relocation of species.
The licences aim to ensure that the impact on wildlife is minimised and will often include conditions to ensure ‘zero net loss’, meaning construction teams must ensure there are the same number of protected creatures after development as there was before work began, and that destroyed habitats such as ponds or roosting areas are replaced by a viable equivalent on or near the site.
As contractors’ ecological responsibilities have increased under new legislation, so have the number of licence applications. In 2007 Natural England received 1,869 applications, up from 959 in 2006, 818 in 2003 and 193 in 2000.
Heydon reminds contractors that getting a licence from Natural England is not always straightforward. ‘They often think that once planning permission is granted, getting a licence from us is a foregone conclusion. But it’s not and if we refuse your application you won’t be able to start work. We have to make an independent assessment.’
I’ve been having visions of smug-looking newts in sun loungers
Phil Hughes, Benchmark Leisure
But Hughes argues that Natural England isn’t as transparent and efficient as it could be. ‘The process is very bureaucratic and they seem to take an “arm’s length” approach. Even though their local rep was very helpful with advice on what we should be including in the application, the final application goes to a central office who just look at it as a box-ticking exercise and can refuse it based on that. I’ve tried phoning them several times after submitting an application and they refused to discuss it.’
If you’ve won the contract for a site inhabited by protected species, the advice from Mellor at URS is to get an ecology consultant on board who is aware of the likely issues and who can guide you through the legal processes. The consultant will be responsible for carrying out surveys to support the licence application, helping to draw up a mitigation strategy and, if planning permission requires it, developing a code of practice for ecology.
Although there has been an improvement and greater consistency of standards among consultants in recent years, quality can vary.
‘Some ecologists are on a mission to frustrate us. It is only a good ecologist who gets the balance right between the interests of the species and the interests of his client, because most err on the side of caution,’ says Benchmark’s Hughes. ‘Get close to your ecologist because a lot of what they outline in licence applications in terms of mitigation will incur significant costs for you.’
Mellor says it’s worth looking for firms with official accreditation or qualification. Membership of the professional institutes, the Society for the Environment or the Institute of Ecology and Environmental Management are a good guide to quality. It’s also good practice to double check the advice you’re being given. And don’t be afraid to ask questions.
‘Reports are often submitted without references to where the information has come from,’ says URS’s Mellor. ‘It’s perfectly legitimate for contractors to ask questions like: “Where do these recommendations come from?” or: “What methodology and guidance are you referring to?” CIRIA guidance documents are a good source for double checking advice,’ he adds.
Even when there are no protected species inside your site boundary, it’s a legal offence for a development to obstruct the movement of certain species, such as the water vole, so ecologists should also be providing advice on what’s on adjacent land.
Contractors should ask what the ecology risk is and how they are going to manage it
Ryan Mellor, URS
An empty site won’t remain empty for long where wildlife is concerned, so if you don’t want to discover a newt colony after work begins, survey data should be current.
‘Contractors often make the mistake of relying on data from ecological surveys that were prepared before planning permission was granted, but when planning approval gets held up, sometimes for years, species move in and the data becomes irrelevant,’ says Natural England’s Heydon, who recommends that data be no more then a year old.
Protective legislation applies at all times, not just during planning, so it’s important to prepare for species turning up unexpectedly when work is under way. For instance, great crested newts often find their way into puddles of water created by site drainage work, and ground-nesting birds can set up roost in areas where vegetation has been stripped back.
‘We often get calls from sites in the spring when birds tend to nest, and their protected status means you can’t touch them until they leave,’ says Mellor. ‘And some bird species are now even nesting outside of season in response to climate change.’
In such cases Mellor recommends contractors set aside a contingency budget to cover unexpected delays, as well as retaining an ecologist to offer advice in the event of a protected species making an unexpected appearance. ‘Contractors should also be asking what the ecology risk is and how they are going to manage it. Ecology and conservation should be included on a risk register, in the same way the supply of materials or labour is.’
In the case of mothballed sites, a monitoring strategy including periodical ecological surveys should be maintained while contractors wait to return to site. Prevention is better than cure, so it’s important to consider measures to prevent species from entering sites wherever possible. Clearing sites of scrub and trees ahead of spring will deter nesting birds, and sealing entrances to roof spaces will prevent birds and bats entering refurbishment projects. Fencing can also keep out animals.
Wildlife was once an afterthought on construction projects, but now it’s a top priority. Get your strategy wrong and apart from delays you could be facing fines or even jail.
‘You’ve got to know what you’re dealing with and give yourself time to deal with it,’ says Heydon. ‘Make sure you know what you’re up against, do the proper surveys, get the right advice on implications for development and allow time for any licence applications.’
But Hughes warns that construction managers need more training, more information and more support. ‘Natural England and the industry in general must increase the emphasis on training to make them aware of their responsibilities under European legislation. The current situation can’t continue. I recently met a contractor planning to lay 40 miles of pipeline who didn’t even know that if he came within 600m of a great crested newt pond he’d have to get a licence. He eventually got one… and the project was delayed.’
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