Guidance Note: Natural Environment Legislation and Policy

The legislation and policy within the tables are explained in more detail later on in the Guidance Note.

Please note that information is correct at the time of publication. Further legislation and policy are likely to be produced in response to increased understanding of the natural environment and changing circumstances, including Great Britain's departure from the European Union. It is the responsibility of the developer to ensure that their proposals meet current legislative and policy requirements.

Summaries of Key Legislation and Policy

Legislation

European and UK

The Conservation of Habitats and Species Regulations 2017 ('The Habitats Regulations'): Consolidates the Conservation of Habitats and Species Regulations 2010 with subsequent amendments. The Regulations transpose Council Directive 92/43/EEC, on the Conservation of Natural Habitats and of Wild Fauna and Flora (The Habitats Directive), into UK national law. They also transpose elements of the EU Wild Birds Directive in England and Wales.

Since Great Britain's departure from the European Union, The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 have become a UK statutory instrument. These amend the 2017 Regulations so that they operate effectively, with most of the changes referring to the transfer of functions from the European Commission to the appropriate authorities in England and Wales. All other processes or terms in the 2017 Regulations remain unchanged and existing guidance is still relevant. The obligations of a competent authority for the protection of sites or species do not change.

The Habitats Regulations provide for the designation and protection of 'European sites', the protection of 'European protected species', and the adaptation of planning and other controls for the protection of European Sites. Several European sites in and beyond the County could be affected by development.

SACs and SPAs in the UK no longer form part of the EU's Natura 2000 ecological network. The 2019 Regulations have created a national site network[1] on land and at sea, including both the inshore and offshore marine areas in the UK. The national site network includes:

• existing SACs and SPAs
• new SACs and SPAs designated under these Regulations

Any references to Natura 2000 in the 2017 Regulations and in guidance now refers to the new national site network.

Under the Regulations, Swansea Council as a competent authority has a general duty, in the exercise of any of their functions, to have regard to the EC Habitats Directive and Wild Birds Directive, as far as they may be affected by the exercise of those functions. This includes undertaking Habitats Regulations Assessments (HRA) to assess potential impacts of plans or projects on European Sites.

See the Swansea Council Guidance Notes on Ecological Survey and Assessment Process and Protected Species Development Licences for further detail on the specific procedures relating to the Habitat Regulations.

Ramsar Convention 1971: Wetlands of International Importance (Ramsar Sites) declared under the Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971 are considered European Sites within UK and Local Government Policy.

Wildlife and Countryside Act 1981 (as amended by the Countryside and Rights of Way Act 2000 and the Natural Environment and Rural Communities Act 2006): The Wildlife and Countryside Act is the main legislation in the UK, which sets out protection of certain species of plants and animals and allows for the designation of Sites of Special Scientific Interest (SSSIs). It also considers invasive non-native species, and control of hunting and trapping wild animals.

The Invasive Alien Species (Enforcement and Permitting) Order 2019: The order allows for enforcement of EU Regulation (No. 1143/2014) on the prevention and management of the introduction and spread of invasive alien species in England and Wales, also known as the IAS Regulations.

Countryside and Rights Of Way (CRoW) Act (2000): Increases the protection for SSSIs and strengthens wildlife enforcement legislation. The Act also provides safeguards, which take into account the needs of landowners and occupiers, and of other interests, including wildlife. The Act places a duty on public bodies, including Swansea Council, to further the conservation and enhancement of SSSIs, and increases penalties on conviction of damaging an SSSI.

Natural Environment and Rural Communities (NERC) Act 2006: Places a statutory duty on all public bodies to have regard to the conservation of biodiversity (extending the CRoW Act duty (and later extended by the Environment (Wales) Act), and identifies species and habitats of principle importance for nature conservation in Wales. The NERC Act list of important species and habitats is superseded by the list provided in Section 7 of the Environment (Wales) Act 2016 (see below).  

National Parks and Access to the Countryside Act 1949 (as amended): The Act allows for the designation of National Nature Reserves (NNRs) and Local Nature Reserves (LNRs) and gives protection against damaging operations.

Countryside Act 1968: Amends the National Parks and Access to the Countryside Act 1949, to confer powers on local authorities and other bodies for the conservation and enhancement of the countryside.

Wales

The Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2017: Requires that certain types of project are subject to an assessment of their environmental impact before planning permission can be determined.  Specific procedures relating to environmental impact assessments are set out in more detail in the Swansea Council Guidance Notes on Ecological Survey and Assessment Process⁵.

Environment (Wales) Act 2016: Sets out the requirement for the sustainable management of natural resources. It includes a new Biodiversity and Resilience of Ecosystems Duty (Section 6), which strengthens the NERC Act duty:

The duty requires that public authorities, including Swansea Council as the Local Planning Authority, must seek to maintain and enhance biodiversity so far as consistent with the proper exercise of their functions and in so doing promote the resilience of ecosystems.

In exercising this duty Swansea Council, as a public authority, must take account of the resilience of ecosystems, in particular the following aspects:

a) diversity between and within ecosystems;

b) the connections between and within ecosystems;

c) the scale of ecosystems;

d) the condition of ecosystems;

e) the adaptability of ecosystems.

These measures, together with those in the Well-being of Future Generations Act (below), are intended to ensure that the Ecosystem Approach, as advocated in international policy, is given a statutory basis in Wales.

The Act also requires a coordinated approach for the management of natural resources at a national and local level through the production of specific Welsh Government policy and a national report and local statements from NRW, as follows:

1. The State of Natural Resources Report (SoNaRR) - NRW report that gives an assessment of natural resources in Wales and how well these resources are being managed in a sustainable way. 
2. Natural Resources Policy - Welsh Government policy that sets out the priorities, risks and opportunities for managing natural resources sustainably. The policy takes into account the findings of the SoNaRR.
3. Area Statements - NRW statement that provides a local evidence base which helps to implement the priorities, risks and opportunities identified in the National Policy and how NRW intends to address these.

The extensive and coordinated information relating to natural resource management needs to be taken into consideration in the determination of planning applications. The Welsh Ministers may direct a public body, such as Swansea Council, to take such steps as appear to them to be reasonably practicable to address the matters specified in an area statement provided by NRW.

The Environment (Wales) Act Section 7 requires the Welsh ministers to publish, review and revise lists of living organisms and types of habitat in Wales, which they consider are of key significance to sustain and improve biodiversity in relation to Wales.

Well-being of Future Generations (Wales) Act 2015:Public bodies such as Swansea Council must set objectives which contribute to the Welsh Government's seven Well-being Goals. The most relevant goal (the 'Resilience' Goal) in the context of Biodiversity is:-

'A nation which maintains and enhances a biodiverse natural environment with healthy functioning ecosystems that support social, economic and ecological resilience and the capacity to adapt to change (for example climate change).'

The planning system in Swansea must contribute to meeting the Resilient Wales Goal.

Topic Based Legislation

Trees and Hedgerows

• Tree Preservation Orders: The legal framework for Tree Preservation Orders (TPO) is contained within the Town and Country Planning Act 1990, and the Town and Country Planning (Trees) Regulations 1999. Under the provisions of the Act, a number of TPOs have been made to protect specific trees, groups of trees and woodlands across the County. The purpose of a TPO is to protect trees that make a significant impact on their local surroundings. Special provisions also apply to trees within conservation areas. In addition to their amenity value trees are an important natural asset and play an essential role in supporting biodiversity and ecological systems.
• Ancient Woodlands, including Ancient Semi-Natural Woodland (ASNW), Plantation on Ancient Woodland Sites (PAWS), Restored Ancient Woodland Sites (RAWS) and Ancient Woodland Site of Unknown Category (AWSU): Not protected with specific legislation however, National Planning Policy (PPW) requires the protection of ancient woodland and this is developed further in LDP Policy ER 11.
• Hedgerow Regulations 1997: These regulations protect important hedgerows in the countryside, in particular hedgerows which are more than 20 metres long or those which meet another hedgerow at either end.

Water

The Water Framework Directive: This was transposed into UK law in December 2003. It applies to all surface freshwater bodies (including lakes, rivers and streams), groundwater and groundwater dependant ecosystems, estuaries and coastal waters out to one mile from low water. The Directive aims to improve the ecological health of inland and coastal waters and prevent further deterioration. The overall aim is for all inland and coastal water bodies to reach at least "good" ecological status.

Sustainable Drainage Systems: Schedule 3 of the Flood and Water Management Act 2010: This makes sustainable drainage systems (SuDS) a mandatory requirement for all new developments of more than 1 dwelling or where the construction area is 100m².or more. Biodiversity enhancements are a key part of achieving a suitable sustainable drainage solution (SuDS).  SuDS must take into account the opportunities to provide multifunctional benefits including improving biodiversity, water quality and protecting and improving the environment.

Protected Species

Badgers: TheProtection of Badgers Act 1992 - protects badgers and their setts.

Wild Mammals: Wild Mammals (Protection) Act 1996 - makes it an offence to inflict unnecessary suffering on wild mammals.

Fish: Salmon and Freshwater Fisheries Act 1975 (as amended) - protects freshwater fish, particularly salmon and trout, with topics including water pollution, habitat disturbance and fish migration routes. Eels (England and Wales) Regulations 2009 establishing measures for the recovery of the stock of European eel.

Environmental Policy

International

Convention on Biological Diversity (CBD): The United Nations Convention on Biological Diversity (the CBD), to which the UK government is a signatory, has produced a Strategic Plan for 2011-2020. The vision of this strategic plan is:-

"By 2050, biodiversity is valued, conserved, restored and wisely used, maintaining ecosystem services, sustaining a healthy planet and delivering benefits essential for all people."

A series of Biodiversity Targets, known as the 'Aichi Targets' are set out by the CBD.

These are grouped into 5 strategic goals as follows:-

Strategic Goal A:      Address the underlying causes of biodiversity loss by mainstreaming biodiversity across government and society

Strategic Goal B:      Reduce the direct pressures on biodiversity and promote sustainable use

Strategic Goal C:     To improve the status of biodiversity by safeguarding ecosystems, species and genetic diversity

Strategic Goal D:     Enhance the benefits to all from biodiversity and ecosystem services.

Strategic Goal E:      Enhance implementation through participatory planning, knowledge management and capacity building

In addition, the CBD considers the ecosystem approach, describing it as 'a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way', which is widely recognised as international best practice for addressing the decline in biodiversity. Through the concept of sustainable management, the Environment (Wales) Act 2016 puts the ecosystem approach on a statutory basis, drawing on the 12 principles established by the CBD.

UK

The UK Post-2010 Biodiversity Framework: the UK Post-2010 Biodiversity Framework, published in July 2012, succeeds the UK Biodiversity Action Plan (UKBAP) and the 'Conserving Biodiversity - the UK Approach' document. It is the result of a change in strategic thinking following the publication of the CBD's 'Strategic Plan for Biodiversity 2011-2020' and its 'Aichi Biodiversity Targets'. The Framework demonstrates how the work in the four countries of the UK contribute to achieving the Aichi Biodiversity Targets, and identifies the activities required to complement the country's biodiversity

Wales

Natural Resource Management Approach: Welsh Government strategy for management of natural resources involves taking an integrated approach to ensure that natural resources are managed sustainably.

'Natural resources cover much more than the "environment". They supply everything from the air we breathe to the food we eat; from the land we develop to the water we use to cool our heavy industry.

They are as fundamental to the success of our economy and the wellbeing of our people as they are to quality of the natural environment. Demands on our natural resources are increasing so we need to find a way to work together to build healthier relationships with our environment. By managing our natural resources sustainably, we can create jobs and support sustainable housing and infrastructure to help our economy thrive.

The aim is to sustainably manage natural resources in a way and at a rate that can maintain and enhance the resilience of our ecosystems whilst meeting the needs of present generations without compromising the ability of future generations to meet their needs. The overall aim is to ensure that Wales has increasingly resilient and diverse ecosystems that deliver economic, environmental and social benefits.'

Natural Resources Policy: The focus of the Natural Resources Policy is to improve the management of natural resources. It forms a key part of the delivery framework for the sustainable management of natural resources established by the Environment (Wales) Act. It is also key to the delivery of the Well-being Goals set out within the Well-being of Future Generations Act. The priorities are:

• Delivering nature-based solutions;
• Renewable energy;
• Circular economy; and
• Supporting people and places by taking a place based approach.

Nature Recovery Action Plan: Welsh Government, working closely with the Wales Biodiversity Partnership (WBP) produced a Nature Recovery Action Plan in 2015, which aimed at addressing the underlying causes of biodiversity loss by putting nature at the heart of its decision making, by increasing the resilience of Wales' natural systems (ecosystems), and by taking specific action for habitats and species. It set out how Wales will deliver the commitments of the UN CBD to halt the decline in our biodiversity by and reverse that decline. The plan was refreshed in 2020 to include transformative actions to influence behaviour and investment decisions to ensure we maintain and enhance biodiversity. Five immediate priorities were identified in 2020:

• Aligning the responses to the climate emergency with the biodiversity crisis;
• Addressing the post EU exit funding gap for agri-environment measures;
• Providing spatial direction for targeting action for biodiversity;
• Improving the condition of the Protected Sites Network; and
• Exploring new and sustainable funding mechanisms for biodiversity action.

Biodiversity and Planning Policy

National Development Framework

Future Wales: The National Plan 2040

Policy 9 - Resilient Ecological Networks and Green Infrastructure: Policy 9 sets out Welsh Government's commitment to reversing biodiversity decline. It identifies key ecological areas, green infrastructure and networks for safeguarding. The policy promotes the use of innovative nature-based approaches to site planning and the design of the built environment to achieve cumulative action towards enhancing biodiversity and the resilience of ecosystems.

Policy 9

To ensure the enhancement of biodiversity, the resilience of ecosystems and the provision of green infrastructure, the Welsh Government will work with key partners to:

• identify areas which should be safeguarded and created as ecological networks for their importance for adaptation to climate change, for habitat protection, restoration or creation, to protect species, or which provide key ecosystems services, to ensure they are not unduly compromised by future development; and
• identify opportunities where existing and potential green infrastructure could be maximised as part of placemaking, requiring the use of nature‑based solutions as a key mechanism for securing sustainable growth, ecological connectivity, social equality and well‑being.

Planning authorities should include these areas and/or opportunities in their development plan strategies and policies in order to promote and safeguard the functions and opportunities they provide. In all cases, action towards securing the maintenance and enhancement of biodiversity (to provide a net benefit), the resilience of ecosystems and green infrastructure assets must be demonstrated as part of development proposals through innovative, nature‑based approaches to site planning and the design of the built environment.

Planning Policy Wales and Technical Advice Notes

The Welsh Government's aims and objectives for nature conservation are set out in Planning Policy Wales, edition 11 (PPW) and are supported by the advice in Technical Advice Note (TAN) 5: Nature Conservation and Planning. These two elements provide the main national planning guidance for biodiversity. 

PPW sets out how the 7 well-being goals and 5 ways of working of the Well-being of Future Generations (Wales) Act 2015 can be realised in planning and development management to create sustainable places and improved well-being.

PPW advocates a 'placemaking approach' for the planning and design of development and spaces that will form the basis of development management decision making.  An explanation of placemaking is provided (PPW paragraph 2.9 refers).

Placemaking is a holistic approach, focussed on positive outcomes, it considers:

• social, economic, environmental and cultural values of development proposals;
• the potential of an area to create development that promotes people's prosperity, health, happiness and well-being;
• wider surroundings, not just individual sites; and
• integration of multiple issues.

Placemaking requires:

• smart, multi-dimensional and innovative thinking;
• early consideration of all the factors;
• high standards of evidence.

It is clear that maintaining and enhancing biodiversity will lead to resilient biodiversity and ecosystems, which is a positive outcome of the placemaking approach.

PPW sets out 5 key planning principles. These provide a vision for places created through placemaking and in combination will ultimately lead to the right development in the right place.

The key planning principles are:

1. Growing our economy in a sustainable manner - by enabling development that contributes to long-term economic well-being.
2. Making best use of resources - by ensuring that development is in the most sustainable location, ensuring more sustainable use of natural resources and contributing, as far as possible, to making areas resilient to climate change, decarbonising society and achieving a more circular economy
3. Facilitating accessible and healthy environments - by creating places that are accessible to all and promote a healthy life style
4. Creating sustainable communities - by creating the right mix of good quality well-designed homes, jobs, services and facilities, in urban and rural areas so that people can be content in their everyday lives.
5. Maximising environmental protection and limiting adverse environmental impacts- by protecting, promoting, conserving and enhancing natural, historic and cultural assets

Based on the key planning principles (above) PPW sets out national sustainable placemaking outcomes (PPW figure 4 refers). These are the positive outcomes of the placemaking approach and essentially provide a framework for a sustainable place.  The national sustainable outcomes are based around the key planning principles.  The biodiversity related outcomes include:

Development proposals must seek to deliver development that addresses the national sustainable outcomes. In order to achieve this PPW requires:

• Consideration of all the factors at the earliest possible opportunity
• Detailed knowledge of a place
• Extensive community engagement, beyond that needed by statute

PPW identifies 4 themes of the placemaking approach and clusters the traditional planning topics around these themes to provide specific topic based guidance, as follows:

• Strategic and Spatial choices - good design/promoting healthier places/the Welsh language/sustainable management of natural resources/strategic planning/placemaking in rural areas/managing settlement form
• Active and social places- transport/housing retail and commercial centres/community facilities/recreational spaces
• Productive and enterprising places - economic development/tourism/the rural economy/transport infrastructure/telecommunications/energy/minerals/waste
• Distinctive and Natural places - landscape/coastal areas/historic environment/green infrastructure/biodiversity/ water, air. Soundscape and light/flooding/de-risking

Although planning topics are grouped under themes PPW emphasises that placemaking is a holistic approach and that all policy topic areas (across themes) must work together and not in isolation or conflict in order to create sustainable places with improved wellbeing. PPW outlines a specific process for implementing placemaking through Planning Policy Wales (PPW figure 6 refers). This essentially requires that proposals be assessed against the strategic and spatial choices theme before the other themes.

PPW - Specific Biodiversity Related Guidance: Biodiversity to a lesser or greater extent has an influence on all the key planning principles; national sustainable placemaking outcomes and collective placemaking themes and under the PPW placemaking approach should be addressed in most planning decisions.

With this in mind, the main specific national guidance for biodiversity can be found under the Distinctive and Natural Places theme, covering environmental and cultural components. Biodiversity and ecological Networks are specifically addressed in section 6.4

In determining planning applications PPW requires that all reasonable steps must be taken to maintain and enhance biodiversity and promote the resilience of ecosystems. Under the placemaking approach this needs to be balanced with the wider economic and social needs of business and local communities and is best achieved through the consideration of biodiversity at the earliest possible stage of the process of considering development proposal, a requirement of placemaking.

Where adverse effects on the environment cannot be avoided or mitigated, it will be necessary to refuse planning permission.

PPW is clear that under the Section 6 Duty (The Environment (Wales) Act 2016) planning authorities must seek to maintain and enhance biodiversity in the exercise of their functions. Therefore, LPA's must only support development that does not cause any significant loss of habitats or populations of species, locally or nationally and provides a net benefit for biodiversity. In order to effectively achieve this, PPW states that planning authorities must take account of and promote the resilience of ecosystems and in particular have regard to the following aspects:

• Diversity between and within ecosystems;
• Connections between and within ecosystems;
• The scale of ecosystems;
• The condition of ecosystems; and
• The adaptability of ecosystems.

The placemaking approach requires informed decision making and PPW requires planning authorities to have regard to:

• the Section 7 list of habitats and species of principal importance for Wales (Environment (Wales) Act 2016)
• the SoNaRR, published by NRW; and
• relevant Area Statements.

Plus

• up to date ecological survey information (where appropriate).

PPW advocates a stepwise approach to maintaining and enhancing biodiversity and achieving resilient ecosystems by ensuring that any adverse environmental effects are firstly avoided, then minimised, mitigated and as a last resort compensated for; enhancement must be secured wherever possible.

The presence of species protected under European or UK legislation, or under Section 7 of the Environment (Wales) Act is a material planning consideration. Development must conform to any statutory species protection provisions affecting the site and potentially the surrounding area.

Many of the most important areas of biodiversity value have been statutorily designated. Such sites must be protected from damage and deterioration, with important features conserved and enhanced by appropriate management. This does not necessarily prohibit development but development proposals affecting designated sites must be carefully assessed for their effect on the nature conservation interest of the designated site to enable informed decision making that would ensure the biodiversity interest of the protected site. Planning authorities must have regard to the relative significance of international, national and local designations in considering the weight to be attached to biodiversity. Development should be refused where there are adverse impacts on the features for which the site has been designated.Further guidance on designated sites is contained in TAN 5. PPW also requires that the contribution of the designated sites to the wider ecological network and resilient ecosystems should be taken into consideration. 

PPW also recognises the important role of non-statutory designations (Sites of Importance for Nature Conservation (SINCs), Ancient Woodland etc.) delivering an ecological network for biodiversity and resilient ecosystems and states that they should be given adequate protection in the planning process. Such designations should not preclude appropriate developments, where there are no adverse impacts on the features for which the site is designated. 

PPW - Green Infrastructure

PPW supports the provision of connected and multi-functional green infrastructure as part of the placemaking approach (section 6.2). The significant contribution green infrastructure makes to maintaining and enhancing biodiversity is recognised and the development of green infrastructure is an important way for planning system to deliver enhancement. The planning system should protect and enhance green infrastructure assets and networks because of these multi-functional roles.

It is clear from PPW that development plans and development proposals should firstly be assessed against key planning principles, national sustainable placemaking outcomes and the strategic and spatial choices. Next, the detailed impact and contribution to active and social places, productive and enterprising places and distinctive and natural places should be assessed.

Development Management Manual 2016

The manual states that the presence of a protected species is a material consideration when an LPA is considering a development proposal that, if carried out, would be likely to result in disturbance or harm to the species or its habitat. Section 9.4.14 adds that it is essential that the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before the planning permission is granted, otherwise all relevant material considerations may not have been addressed in making the decision.

Swansea Green Infrastructure Strategy

Strategy published by Swansea Council and Natural Resources Wales with a vision to regenerate our city for wellbeing and wildlife. The 5 Principles of Green Infrastructure to be applied to achieve this vision:

1. Multifunctional - making sure that all GI in the city centre provides as many benefits as possible.  For example, it may reduce pollution and/or flooding, offer shelter and/or food for native animals (birds, insects and/or small mammals), provide shade during hot summer days, and create attractive pleasant and/or calming spaces for people to meet, relax and play.
2. Adapted for climate change - absorbing water to reduce flooding, providing summer cooling and accommodating wildlife.  GI also helps mitigate climate change by capturing and locking up carbon.
3. Healthy - helping our physical and mental health by absorbing pollution, providing clean air, clean water, food and space to exercise, socialise and play and space to have contact with nature.
4. Biodiverse - supporting a wide variety of native species providing shelter and food and creating green corridors across the city centre linking to existing strategic wildlife corridors.
5. Smart and Sustainable - providing solutions, techniques and technologies that are low maintenance and reduce pollution and waste and maximise the use of recycled or sustainably sourced materials. 

Success will be measured via a number of performance indicators which will work towards targets to double (from 13% to 26%) GI by 2030 and to increase tree canopy cover to 20 - 25% by 2044.

Useful Websites

Welsh Government Environmental Law: https://law.gov.wales/environment

Wales Biodiversity Partnership Legislation Guidance: https://www.biodiversitywales.org.uk/Legislation-Guidance

NRW Protected Sites Search: https://naturalresources.wales/guidance-and-advice/environmental-topics/wildlife-and-biodiversity/protected-areas-of-land-and-seas/find-protected-areas-of-land-and-sea/

DEFRA Magic Map: https://magic.defra.gov.uk/magicmap.aspx

Aderyn - Local Environmental Record Centres Wales: https://aderyn.lercwales.org.uk/

[1] Ramsar sites do not form part of the national site network but are still protected in the same was as SACs and SPAs.