Stricter Conservation Rules For Mineral Operators

By Penny Simpson, an associate at DLA Piper UK LLP

Important changes have recently been made to the UK’s conservation legislation to provide greater protection for animals, plants and habitats covered by the Habitats and Birds Directives. Stricter rules with wider application will now apply to mineral operators and developers, and regulators will be applying the legislation more rigorously than before. Mineral operators and developers, and their contractors, therefore need to be aware of these changes to avoid regulatory action.

Who is affected?

The most significant changes are to the ‘European Protected Species’ (EPS) regime, which provides legal protection for certain animals and plants. The changes will have a large impact on operations in areas where EPS (such as great crested newts, otters, dormice and bats) may be present.

There are also changes to the ‘European Site’ regime, which provides legal protection for areas of land designated under the Directives. Operations or developments in or near any European Site (eg Special Protection Area for birds or Special Area of Conservation for animals/habitats) will be affected, particularly those requiring water abstraction or impounding consents, and those involved in marine aggregates extraction.

Impacts of the amended European Protected Species regime

The EPS regime has been altered considerably. The key impacts are as follows:

Greater pressure to undertake surveys and to alter proposals to avoid committing offences
Pressure to undertake EPS surveys prior to starting operations or before purchasing land will increase as there are now greater risks in terms of prosecution and penalties if offences are committed. Additionally, mineral operators and developers will come under more pressure to alter proposals at the outset to avoid the risk of offences because of the increased legal complexity of the regime, the potential difficulties in obtaining EPS licences (to allow otherwise unlawful activities) and the risk of prosecution under a new offence if any licence condition is breached.

Beware of the ‘no fault’ offence
A number of criminal offences exist to protect EPS. The most dangerous is the ‘no fault’ offence of damaging or destroying a breeding site or resting place of an EPS animal. It applies where the damage or destruction takes place even by accident. However, it is now more dangerous because the useful legal defences that used to apply have gone, which means if this offence is committed accidentally, without an
EPS licence, there is now no possible ‘get out’.

EPS licences will be required more often
The removal of the useful legal defences has a further knock-on effect. If operations or development, despite mitigation measures, are reasonably likely to lead to an offence being committed, the operator or developer will now have to obtain an EPS licence or risk prosecution (except in limited circumstances). It is no longer possible to rely on the old defence that the activity is ‘the incidental result of a lawful operation and could not reasonably have been avoided’.

EPS licences will also be more difficult to obtain
Regulators will be more strict in applying the legal tests to be met for granting EPS licences. Licences may, therefore, become more difficult to obtain. The legal basis for a licence application needs to be carefully set out in the required ‘Reasoned Statement’ and should involve taking legal advice.

Two legal tests will be particularly challenging:

• the operation must be needed ‘for imperative reasons of overriding public interest, including those of a social or economic nature...’. This will be extremely challenging for operations providing mainly local benefits
• there are ‘no satisfactory alternatives’ to the proposed operation. The applicant will need to provide an analysis of alternative methodologies, the ‘do nothing’ option and of alternative locations. An analysis of alternative locations can become complex. Operations that are described as having an ‘overriding’ need (see test above) might well require an analysis of alternative locations in a large geographical area.

Operators now responsible for licence applications
In the past an ecological consultant, rather than the operator or developer, would apply for any EPS licence required. Now the operator or developer will have to apply and will be responsible for the application and its accuracy. Any false statement could lead to prosecution. The ecological consultant will still be involved in preparing the application (in particular the ‘Method Statement’).

Operators now responsible for ensuring compliance with all licence conditions
A new offence now exists for breach of a licence condition. If a condition is breached the operator or developer will be first in the firing line. There is also a risk that the operator or developer could be prosecuted for breaches caused by contractors or ecological consultants. There are two legal defences to this offence, including a ‘due diligence’ defence. Operators should insist on documented compliance procedures to evidence their ‘due diligence’ in complying with licence conditions. Protective clauses should also be incorporated into contractor/ecological consultancy contracts.

Penalties raised
The maximum penalty for the main offences has been raised to £5,000 and/or a six-month custodial sentence.

Impacts of the amended European Site regime

The Habitats and Birds Directives require member states to designate land and marine ‘European Sites’ for the conservation of threatened species and habitats. They also impose a strict regime on operations which may have an adverse impact on any European Site. Applications for environmental permits or planning consents in areas near or within a European Site are determined in accordance with the regime. Except in limited circumstances, even a risk of adverse impacts of proposed operations on a European Site will lead to the application being refused. This is a complex regime which significantly alters the application process. Legal advice should be taken.

A number of changes have now been made to the European Site regime. Two new areas of activity of particular interest to mineral operators are now subject to the regime:

Water abstraction and impounding activities
Many mineral operators will need to apply for new abstraction licences (eg for dewatering activities) due to the removal of abstraction licence exemptions (since April 2006, under the Water Act 2003). If the abstraction is likely to affect a European Site the operator will have to consider this complex European Site regime.

Also, operators holdings existing abstraction or impounding licences should expect them to be reviewed in due course, to consider their impacts on European Sites, with the risk that licences could be amended or even revoked (financial compensation is available in some circumstances but this will be limited after 2012).

Marine aggregate extraction
Marine minerals dredging activities in British and Northern Irish waters are now also subject to the European Site regime as a matter of law. Previously the Government applied the regime to these activities only under policy. The new regulations, together with new guidance, set out in detail how applications for marine minerals dredging should be made and how the application shall be determined, implementing both the requirements of the European Site regime and the Environmental Impact Assessment Directive.

Conclusion

Mineral operators and developers are going to find their activities further constrained by the new conservation rules. In order to ensure that the regime changes cause the minimum of hurdles, operators need to ensure that they employ only those ecological consultants who can demonstrate that they are fully up to speed with the new legislation, and take legal advice in order to identify appropriate and creative mechanisms to allow operations to proceed while limiting legal exposure as far as possible.

DLA Piper UK LLP have particular expertise in wildlife and conservation law issues within their environment team. For further information contact Penny Simpson on tel: (0114) 283 3354; or email: [email protected]