Finding great crested newts on site can cause delays. But plans to streamline the process must play out in the context of changes (or not) to environmental legislation post-Brexit

Al Watson and Jill Carey

In February 2017 the government launched a housing white paper with a very ambitious title: Fixing Our Broken Housing Market. Touted as the most radical changes to the housing market in decades, the disappointed reaction from the industry was that it did not contain any fixes, or even many ideas. Indeed, just a few months later, some of the initiatives have already been abandoned.

However, if we take a second look at the proposals, there is at least one initiative that may assist developers by unplugging an infamous cause of delays: the protection of a rare species of newt. This has already been hailed in some newspapers as a victory for builders. In fact developers should not celebrate that victory prematurely.

The current position under EU rules is that the discovery of great crested newts can bring development grinding to a halt, as encountering just one newt on site will mean that works have to stop until the unusual amphibian has been relocated. The risks for developers of failing to comply are significant, as anyone who fails to protect a colony when carrying out works could face a prison sentence and/or substantial fine.

To illustrate the impact, a developer in Milton Keynes spent £1m catching and moving 150 newts, which delayed its housing project by a year. Leicestershire council spent a similar sum and delayed building a road for three months, only to discover there were no great crested newts on the site after all - just ordinary newts. Protective measures included constructing a 1,000 yard exclusion zone around each pond and spending hundreds of thousands of pounds on fences and traps so newts could be relocated. The council had even been required to inspect the traps twice a day when temperatures rose above 5°C, to ensure no newts were exposed to the heat.

However, tucked away in the new post-Brexit vote white paper is a case study on a pilot approach by Woking council and Natural England that proposes to streamline this process by focussing conservation efforts on sites where they will bring maximum benefits to the great crested newts. The new proposals will use DNA mapping to identify ponds where the newts are most prevalent, and developers will be obliged to protect these habitats. By shifting the focus from the individual creature to the habitat, developers will have more certainty and a great deal of time can be saved. If the Woking pilot is successful, it will be rolled out nationwide.

The government cannot avoid the legal reality, however politically inconvenient it may be

In theory, therefore, this seems to be a win for the developers and the wildlife. But those of us who have been around the block often enough to see our own footprints are more cautious. After all, the plan-based approach at local government level and the time taken for its effects to be felt in practice is one of the reasons why the housing market is “broken” in the first place.

In a world where local authorities and statutory consultees like Natural England continue to receive anything but substantive funding, the practical implications are that this could take time to be implemented. Unless the government is suggesting that a proportion of the increase in planning fees will be used directly for strategic environmental licensing. Another alternative is that the government envisages the money saved by developers in the short term means they will have more money to pay as contributions towards the licensing process.

There is a wider issue here. The industry knows that, unless and until the repeal of the European Communities Act 1972, full compliance is required with a relevant and applicable European legislation. The government cannot avoid the legal reality, however politically inconvenient it may be.

That then brings us to the March 2017 white paper titled Legislating for the United Kingdom’s withdrawal from the European Union. Hidden on page 17 is the catchphrase for the government’s environment protection: “The Government is committed to ensuring that we become the first generation to leave the environment in a better state than we found it.” This is a very bold objective for policy. The text then goes on to explain that: “The Great Repeal Bill will ensure that the whole body of existing EU Environmental Law continues to have effect in UK law. […] The Government recognises the need to consult and produce changes to the regulatory frameworks, including through parliamentary scrutiny.” Or, to put it another way, using the government’s current favourite turn of phrase: what they want is something strong and stable for the future that looks and feels like EU legislation on the environment.

The conclusion is that we do not expect any immediate surge of development activity as a consequence of what is currently no more than a pilot project on page 40 of the government’s housing white paper - particularly with a snap election looming. There is a great deal more to be done than removing one small, green obstacle if the housing market is indeed to be “fixed” any time soon.

Al Watson is Head of Planning and Environment and Jill Carey is a senior associate in the real estate disputes team at Taylor Wessing