EU nature directives: rights, responsibilities and results are we striking the right balance?

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1 EU NATURE DIRECTIVES: RIGHTS, RESPONSIBILITIES AND RESULTS : DODD : UKELA : (2008) 20 ELM 237 EU nature directives: rights, responsibilities and results are we striking the right balance? Andrew Dodd Head of Site Conservation Policy, RSPB 1 Introduction In April 2009, the EU Birds Directive 2 will celebrate its thirtieth anniversary and enter its fourth decade. Fast approaching its seventeenth birthday, its younger sibling, the EU Habitats Directive, 3 will still be in its teens. Together, the nature directives comprise coordinated EUwide action to tackle long-term declines in Europe s biodiversity arising from decades of habitat destruction and degradation, and species persecution and exploitation. In seeking to protect biodiversity for its own sake, they make a significant contribution to society s aim of achieving sustainable development. Developers and other economic interests often accuse the nature directives of being too restrictive and of stifling much needed economic growth: that they interfere with a more fundamental right to use and enjoy property in both the private and public interest and load the dice too much in favour of nature conservation. This is to misunderstand the role played by the nature directives in ensuring government and local decision-makers give proper weight to the public value of Europe s biodiversity. Too often, the nature directives are used as scapegoats to gloss over other problems arising from poor legal and policy development or resistance to better and smarter regulation. What are the directives trying to do? In 1979, faced with ongoing and rapid declines in European wild bird populations, the European Community recognised the need for bird conservation to be addressed at an international scale, as birds know no national boundaries. 4 The justification for coordinated action at European level was simple: that no Member State should gain a short-term economic advantage over another by destroying its environment. The Birds Directive took specific action for rare, vulnerable and threatened species as well as migratory birds, as the latter represented a common European heritage where loss of habitat in one country could have affected the bird populations of 1 The Lodge, Sandy, Beds SG19 2DL. andrew.dodd@rspb.org.uk. Website: 2 Council Directive 79/409/EEC of 2 April 1979 on the Conservation of Wild Birds (Birds Directive). 3 Council Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora (Habitats Directive). 4 G Williams, D Pullan and others The European Birds Directive Safeguarding Special Places for People and Wildlife (RSPB Sandy 2005). another. Thirteen years later, the Habitats Directive extended a similar approach to cover other flora and fauna and habitats of European importance. Both directives apply in the terrestrial and marine environments and cover the protection, management, control and exploitation of the EU s wildlife. 5 They are the cornerstones of the EU s efforts to protect biodiversity and halt and reverse decades of decline, 6 and at the same time provide wider public goods such as ecosystem services, health benefits and resilience to climate change. Their philosophical and legal approach reflects the UK Government s own guiding principles on sustainable development: 7 living within environmental limits using sound science responsibly achieving a sustainable economy. The essential aim of both directives is to maintain at, and where necessary restore to, favourable conservation status (FCS) flora, fauna and habitats of European importance. 8 In simpler language, they aim to create healthy and prospering populations and habitats with good prospects of remaining that way in the future. 9 Understanding and implementing this fundamental aim of the nature directives is central to making them work more effectively and transparently, yet only now are we getting to grips with it. An often-forgotten aim of the Birds Directive was not to make things worse than they were in The graph 5 European Court of Justice Case C 6/04 Commission v United Kingdom 20 October In paras , the court confirmed application in the marine environment beyond territorial waters. The judgment applies strictly to the Habitats Directive, but the UK Government applied the logic of the Court s judgment to the Birds Directive. European Commission Guidelines for the Establishment of the Natura 2000 Network in the Marine Environment. Application of the Habitats and Birds Directives (EC Brussels 2007) environment/nature/natura2000/marine/index_en.htm. 6 European Council Presidency Conclusions. Göteborg European Council 15 and 16 June 2001 (European Council 2001). 7 HMSO Securing the Future: UK Government Sustainable Development Strategy (HMSO London 2005). 8 Habitats Directive art 2(2). Favourable conservation status does not appear on the face of the Birds Directive. However, the EC has argued the obligation extends to the Birds Directive and is implicit in art 2 of it see CEC Guidance Document on Hunting under Council Directive 79/409/EEC on the Conservation of Wild Birds: the Birds Directive (European Commission Brussels 2004). 9 European Commission Assessment, Monitoring and Reporting under Article 17 of the Habitats Directive: Explanatory Notes and Guidelines. Final Draft. October 2006 (European Commission Brussels 2006). 10 Birds Directive art 13.

2 238 (2008) 20 ELM : EU NATURE DIRECTIVES: RIGHTS, RESPONSIBILITIES AND RESULTS : DODD : UKELA 120 Population index (1980=100) % Com m on fore st birds (28) -15% All com m on birds (124) -44% Common farmland birds (33) Source: EBCC/RSPB/BirdLife/Statistics Netherlands Year Figure 1: Trends in Europe s common birds 11 above illustrates the failure to achieve this for Europe s common breeding birds, especially those dependent on farmland habitats. It is not all doom and gloom, however, as some species are now faring better due to the Birds Directive. A twin-track approach Both directives adopt a twin-track approach to biodiversity conservation, using a combination of habitat conservation and species protection measures to attain the goal of FCS. Habitat conservation is at the heart of both directives, primarily through the establishment of a coherent network of protected areas known as Natura This comprises special protection areas (SPAs) for birds 13 and special areas of conservation (SACs) for other fauna, flora and habitats of Community importance. 14 While the focus of attention has been on creating the Natura 2000 network, both directives recognise that, on its own, it will not achieve FCS for those species and habitats. Habitat creation and management outside SPAs and SACs are essential but neglected complimentary measures. 15 Species conservation under the nature directives is 11 Courtesy of EBCC/RSPB/BirdLife International/Statistics Netherlands A Biodiversity Indicator for Europe: Trends in Common Birds. 12 Habitats Directive art 3(1). 13 Established under Birds Directive art 4(1) for species listed in Annex I and art 4(2) for regularly occurring migratory species. 14 Established under Habitats Directive art 3 for habitats and species listed in Annexes I and II. 15 Birds Directive art 3 requires Member States to preserve, maintain and re-establish sufficient diversity and area of habitats for all wild birds through measures such as protected areas, habitat creation, restoration and management. Art 4 requires the taking of special conservation measures for migratory species and those listed on Annex I: SPAs are specified as one such measure. Habitats Directive art 10 gives Member States the power to encourage the management of features of the landscape of major importance for wild flora and fauna, in particular to improve the coherence of the Natura 2000 network. Such features are those essential to the migration, dispersal and genetic exchange of wild species. achieved through establishing schemes of general protection from deliberate killing or taking and, for certain species, destruction of eggs and nests, or disturbance or deterioration of breeding sites and resting places. 16 Within these schemes some exceptions are allowed, for example, the hunting of certain wild birds under specified conditions. 17 This strict protection regime for species and habitats is modulated by a robust system of derogations that enable social, economic and other environmental factors to be considered and weighed against the public interest need to meet the objectives of the directives. These checks and balances are central to the way in which the directives seek to balance rights to develop and manage land with responsibilities on landowners and managers to respect and contribute to achieving the biodiversity aims of the nature directives. Without them, Europe s biodiversity would be in an even more denuded state than it is. Adjusting the mindset The nature directives fundamentally change the way in which decisions concerning the use and management of land affecting species and habitats of Community interest need to be viewed. More than 16 years after adoption of the Habitats Directive, we are still in a period of adjustment to this change. Resistance to developing an understanding of the purpose of the directives and how they work is often at the root of criticisms. Such resistance to environmental regulation is pervasive in society. There is a general antipathy to red tape, manifesting itself in regular calls to reduce the 16 Birds Directive arts 5 9; Habitats Directive arts Birds Directive arts 7, 8 and Annexes II and IV.

3 EU NATURE DIRECTIVES: RIGHTS, RESPONSIBILITIES AND RESULTS : DODD : UKELA : (2008) 20 ELM 239 regulatory burden. The energy devoted to deregulation is often at the expense of finding better and smarter ways to implement existing regulation. Even so, on reflection, it is probably fair to say that the restrictions placed on development by the Birds Directive were too strong. The 1991 Leybucht Dykes European Court of Justice judgment 18 would have made it virtually impossible for proposals of socio-economic importance to justify damage to an SPA. It is for this reason that the European Community immediately took the opportunity to rebalance the approach to rights and responsibilities in the draft Habitats Directive that was eventually adopted in The more explicit decision-making tests introduced by the Habitats Directive acknowledge the right to develop or manage land, provided it is done responsibly by avoiding damage to Natura 2000 sites or European protected species. 19 Where damage is likely, then the environmental costs are explicitly internalised by the proponent through mitigation measures or, in extremis, compensation measures. 20 Importantly, the new tests allow socioeconomic plans or projects to override the conservation objectives of the directive in specified circumstances. 21 Although it has, in some respects, been toned down compared with the Birds Directive, the Habitats Directive still represents a significant shift in approach compared with traditional decision-making in the United Kingdom. Perhaps the biggest change is the reversal of the onus of proof: proponents have to demonstrate that their plan or project will not have an adverse effect on a Natura 2000 site or European protected species. This is in stark contrast to the traditional presumption in favour of development where nature conservation objectors have to prove the harm a scheme would cause. Equally importantly, clear justification is required to sanction ecological damage, with evidence on the lack of alternative solutions and reasons of overriding public interest European Court of Justice Case C 57/89 Commission v Germany (28 February 1991). 19 Habitats Directive art 6(3) in respect of Natura 2000 sites and art 16 in respect of European Protected Species. 20 Where damage is permitted to a Natura 2000 site, Habitats Directive art 6(4) requires Member States to take all necessary compensatory measures to ensure the overall coherence of the Natura 2000 network is protected. 21 Habitats Directive art 6(4) states that where, in the absence of alternative solutions, damage to a Natura 2000 site is unavoidable, a plan or project can be permitted for imperative reasons of overriding public interest, including those of a social or economic nature. Where the Natura 2000 site hosts a priority habitat or species, the only considerations that can be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment, or following an opinion from the Commission, other imperative reasons of overriding public interest. Article 16 states that a Member State can derogate from the protection regime for European protected species provided there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status. The derogations concerned include: (c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment. 22 ibid Habitats Directive art 6(4). Parts of industry and government are still resistant to these changes, frequently seeing them as obstacles to development rather than a means to ensure the right decisions can be made in society s wider interests. Encouragingly, this paradigm of the directives as an obstacle to sustainable development is being challenged by the government s Sustainable Development Commission (SDC). In its report on options for tidal power in the United Kingdom, the SDC described the directives as follows: the directives should be seen as representing an enlightened approach to dealing with environmental constraints, and one that is at the heart of sustainable development. 23 Case studies The following case studies illustrate where good progress is being made and where the right balance on rights and responsibilities is being found and where it is not. Using examples from the habitat conservation and species protection parts of the nature directives, these case studies illustrate how a better understanding of the goals of the directives is needed, as well as more creativity in implementation to meet those goals. Ports a case study in paradigm shifts The UK ports sector is a very good example of an industrial sector and nature conservation groups working closely together over the last years to strike a better balance of rights and responsibilities under the nature directives. This period has seen a fundamental shift in outlook by all parties; today, cooperation and conservation are the norm. Ports and Natura 2000 sites often vie for the same coastal space: at least 25 of the 39 major ports 24 in England and Wales are in or adjacent to an estuarine Natura 2000 site. This overlap is the main reason why there has been a history of conflict and confrontation between the ports sector and nature conservation groups in the United Kingdom and elsewhere in northern Europe. Historically characterised by mistrust and suspicion on both sides, there have been major battles, including creation of the Trinity Terminal, Felixstowe in the late 1980s 25 and, more recently, the Dibden Bay Container Terminal, Southampton Water. Dibden is perhaps the most well known, if not infamous, of recent major port proposals in terms of the relationship between nature conservation and ports. Yet Dibden is the exception to the rule in terms of how the ports industry and nature conservation bodies work 23 Sustainable Development Commission Turning the Tide: Tidal Power in the UK (SDC 2007) p publications.php?id= Defined by the Department for Transport as a port that handled over 1 million tonnes in the year Major ports account for 97 per cent of reported traffic by tonnage; see DfT Port Master Plan Guidance Consultation Document (2007). 25 Created by the Felixstowe Dock and Railway Act 1988.

4 240 (2008) 20 ELM : EU NATURE DIRECTIVES: RIGHTS, RESPONSIBILITIES AND RESULTS : DODD : UKELA 26 For a more detailed account of the history of recent major port proposals in England see R K A Morris and C Gibson Port Development and Nature Conservation Experiences in England between 1994 and 2005 (2007) 50 Ocean & Coastal Management Now called Natural England following the bringing together, in 2006, of English Nature, the Countryside Agency and Rural Development Service, under the Natural Environment and Rural Communities Act RSPB Port Development and Nature Conservation. Supply & Demand in the GB Ports Industry (RSPB Sandy 1997) and MDS Transmodal Supply and Demand in the GB Ports Industry A Report for the RSPB and English Nature by MDS Transmodal (RSPB Sandy 2002). 29 PortsWatch Troubled Waters: the PortsWatch Manifesto to Stop Needless Destruction of Important Coastal Sites by Port Developments (RSPB Sandy 2003). cooperatively together today. Other schemes from the late 1990s onwards exemplify the drive on both sides for creative solutions that respect the responsibilities of the nature directives while allowing development to go ahead when it is in the overriding interest of the UK economy eg Harwich Channel Deepening, Immingham Outer Harbour, Bathside Bay Container Terminal, and London Gateway. 26 Reaching this position has seen significant movement from each side in an effort to reach a better understanding of the other s viewpoint and motivations. Such movement has, in large part, been catalysed by the searching questions asked of all parties by the Habitats Directive. By the mid to late 1990s, the RSPB and English Nature 27 were facing a growing number of major portrelated developments. To test the industry s claims that massive increases in major container port capacity would be needed, the RSPB took the bold step in 1997 of commissioning a major study on supply and demand in the UK ports sector from well-respected industry consultants: something the UK Government had steadfastly refused to do. The aim was to improve the RSPB s knowledge and understanding of the industry and its future capacity requirements, and to test industry claims on future capacity growth. This study was updated in 2002 in conjunction with English Nature in the melée of major port public inquiries. The resulting studies 28 supported the need for increased major container port capacity, especially in south-east England, to maintain UK trade and competitiveness. The studies had important indirect effects by increasing the credibility of the RSPB within industry and government circles, breaking down barriers, and opening up better dialogue. They also put the RSPB and English Nature in a better position to test claims over future capacity needs. Using this information, the RSPB, with other environmental NGOs, formed the PortsWatch coalition that published its manifesto in This challenged government to produce a coherent national ports strategy that included a methodology for determining the need for greater port capacity while demonstrating that the best use was made of existing ports. Ultimately, this work helped create the space for a shift in national policy so that government has now committed to commission UK demand forecasts on a fiveyearly basis. 30 These will no doubt be central to the proposed National Policy Statement on ports 31 and therefore provide the essential framework for future decisions on the need for proposed new capacity: something missing from the decisions on the major ports schemes of the last few years. This increased understanding by nature conservation bodies of how the ports sector worked was mirrored in a similar journey by the ports industry in relation to nature conservation, in particular how to work with, rather than against, the nature directives. Overall, it has resulted in a practical and highly constructive way for port developers and nature conservation bodies to work with the directives. Early and open dialogue enables ecological and legal issues to be addressed, often before formal applications are made. Central to this constructive approach is reaching agreement on a series of interrelated issues: the scope of the impact assessment findings on predicted damage to Natura 2000 sites mitigation to reduce (if not avoid) those impacts nature and magnitude of residual adverse effects objectives, design, and location of habitat compensation measures comprehensive monitoring packages. All of this is wrapped up in detailed legal agreements that provide the necessary certainty and confidence to all parties on what is required of them in order to meet the requirements of the nature directives. The decision then rests with the competent authority on whether the strict tests on alternative solutions and imperative reasons of overriding public interest have been met. We are now in a very different place from where we were years ago: the trust and relationships formed have allowed nature conservation bodies and the UK ports industry to develop a common understanding of the nature directives and their implementation. This is providing the foundation to push the boundaries even further to develop new and more effective ways to implement the directives that better respect their purposes. 32 This positive attitude is perhaps best expressed by the ports industry itself in oral evidence to the Planning Bill: 33 Q 62 Tom Brake: 34 Would it be fair to say that the industry view is that birds, flora and fauna, and the environment generally, get in the way of port development? 30 Department for Transport Ports Policy Review Interim Report (Department for Transport London 2007). 31 ibid. 32 See for example A M Dodd EU Habitats Directive and Habitat Compensation: Spatial Planning in England and Implementing Habitat Compensation under Article 6(4) of the Habitats Directive (unpublished MSc thesis Oxford Brookes University 2007). 33 Planning Bill, General Committee House of Commons, 8 January 2008 col Member of Parliament for Carshalton and Wallington (Liberal Democrat).

5 EU NATURE DIRECTIVES: RIGHTS, RESPONSIBILITIES AND RESULTS : DODD : UKELA : (2008) 20 ELM 241 Richard Everitt: 35 Unequivocally not. We work in some of the most sensitive coastal environments in the United Kingdom. Huge amounts of work and effort are put into balancing the need to expand ports with protecting some of the most sensitive sites in Europe. Natura 2000 and spatial planning Looking ahead, the spatial planning system offers one of the best opportunities for more positive implementation of the nature directives in the United Kingdom. Central to this is the requirement to apply Article 6(3) and (4) of the Habitats Directive to spatial plans, following the European Court of Justice judgment against the United Kingdom in This positive judgment represents a sea change in UK implementation of the directives, following years of resistance from central government. Applying Article 6(3) and (4) of the Habitats Directive to spatial plans can help provide a better balance of rights and responsibilities by meeting societal objectives without causing harm to Natura 2000 sites. 37 Integrating the Habitats Directive s requirements into strategic planning is the obvious way to head off potential project level conflicts as this allows scope to: anticipate potential impacts plan mitigation strategically identify alternative solutions that avoid damage reach more sustainable solutions. Helping to pave the way for the sustainable implementation of renewable energy is perhaps the greatest challenge faced by the nature directives and spatial planning. The need to mitigate the effects of climate change requires a huge increase in supply of renewable energy, mostly offshore. Rather than being the obstacle portrayed by some, integrating the nature directives into robust spatial planning for renewables should be playing a key role in delivering sustainable new capacity and meeting UK carbon emission targets. We are still in a transition period, akin to the first few years of applying Article 6(3) and (4) at the project level. Inevitably, there are teething problems over methodologies and growing pains in developing new solutions. Yet the spatial plan system provides ample scope for striking a more sustainable balance between nature conservation goals and development aspirations. Hen harriers in the UK The hen harrier is a beautiful but all too rare bird of prey that should be a common sight on our upland moors and 35 Chairman, UK Major Ports Group and Chief Executive, Port of London Authority. 36 European Court of Justice Case C 6/04 (n 5). 37 A M Dodd, B E Cleary, and others The Appropriate Assessment of Spatial Plans in England: A Guide to Why, When and How to Do It (RSPB Sandy 2007) spatialplansengland_tcm pdf. lowland heaths. Formerly widespread throughout the United Kingdom, by 1900 it was restricted by persecution to Orkney and the Western Isles. A slow recovery began after 1939 due to a combination of a decline in moorland gamekeepers and an increasing tendency for the birds to nest in new forestry plantations where there was little disturbance. 38 Conflict with driven grouse moors persists and the resulting illegal persecution is the main reason why hen harriers are still absent from most of England and parts of Scotland. The lack of hen harriers is probably most noticeable in the English uplands where persecution is denying the species any real chance of attaining the healthy and prospering population required by the Birds Directive. In 2007, there were just 23 nesting attempts, of which only 14 were successful; it has been estimated that the English uplands should support up to 230 pairs. 39 Persecution persists because hen harriers (and other birds of prey) are blamed for continuing declines in red grouse, the lack of a shootable grouse surplus, and disruption of driven grouse shoots. 40 Grouse stocks have been declining for a long time for well known reasons that have nothing to do with raptor predation (see below). However, one study 41 showed that if raptor populations were protected on a grouse moor, numbers reached a level that made grouse shooting unviable ie hen harriers ate the shootable surplus before 12 August. Based on this one study it is not possible to know if this would happen everywhere. However, there is a strong perception that it would, and this results in high levels of persecution. Studies by game and upland management organisations 42 have identified a number of factors contributing to long-term grouse declines: habitat loss and fragmentation poor habitat management increased predation by foxes and crows poor survival and productivity due to disease. Despite broad agreement that better habitat management is central to a sustainable recovery of upland wildlife and of grouse shooting, deep-rooted resistance to the conservation of hen harriers remains among a minority of those involved with the management of UK uplands. Science has identified that improved management, including diversionary feeding of hen harriers, could present a way forward: yet the killing continues, in large part due to difficulties in securing evidence and convictions against those involved in persecution. This means that the same minority feel able to flout the legislation designed to 38 RSPB and others Birds of Prey in the UK: On a Wing and a Prayer (RSPB Sandy 2008). 39 G R Potts Global Dispersion of Nesting Hen Harriers Circus cyaneus; Implications for Grouse Moors in the UK (1998) 140 Ibis RSPB and others Red Grouse and Birds of Prey (RSPB Sandy 2008). 41 S M Redpath and S Thirgood Birds of Prey and Red Grouse (The Stationery Office London 1997). 42 P J Hudson Grouse in Space and Time (Game Conservancy Trust Fordingbridge 1992). The Heather Trust Laurent Perrier Award for Wild Game Conservation The Heather Trust Annual Report

6 242 (2008) 20 ELM : EU NATURE DIRECTIVES: RIGHTS, RESPONSIBILITIES AND RESULTS : DODD : UKELA ensure responsible management of upland moors and provide a secure future for hen harriers. Various solutions have been put forward to try to resolve this conflict, some compliant with the nature directives, others not. Enhancing the quality and extent of upland habitats, including heather moorland, is an important part of the response. Management of heather moorland for a shootable surplus of grouse and the conservation of other wildlife are often similar. Both need to address habitat deterioration and fragmentation. At the same time, a careful balance must be struck with management for other important biodiversity interests eg blanket bog protected under the Habitats Directive. Getting this balance right, so it meets the needs of these differing interests, is essential if future upland management is to sustain, rather than undermine, upland biodiversity in its widest sense. Diversionary feeding of hen harriers might be an option to reduce the numbers of grouse chicks eaten by hen harriers. Initial trials suggest this can be very successful. A long-term trial to test the combination of improved management and diversionary feeding is underway in south-west Scotland to develop practical solutions to resolve conflict as well as deliver the management and biological objectives of relevant protected areas. This represents the positive and proactive approach to joint problem solving that is much needed. Suggestions such as licensed killing or setting quotas of the numbers of hen harriers allowed in a particular area are contrary to the Birds Directive as they are designed to limit the population below its natural level. There is also no legal requirement for such action to secure the protection of a shootable surplus of grouse. 43 Nor is there any expectation that these measures would reduce the level of illegal killing. A fundamental cultural shift is needed to deliver sustainable upland management for grouse and harriers (and other birds of prey), jettisoning the Victorian legacy of intolerance. Concerns over the continued viability of gamebird shooting are understandable, but rather than using hen harriers as a scapegoat to hide more fundamental land management problems, land managers need to accept their responsibilities towards the natural environment in its widest sense. Continuing to call for control of birds of prey diverts attention and energy away from tackling longterm habitat issues that are the key to a more sustainable future for the United Kingdom s uplands. Are the directives working? It is important to ask whether the nature directives are actually doing the job for which they were designed. Yes moving in the right direction Research by the RSPB and BirdLife International shows the importance of the Birds Directive in the recovery of birds in Europe and especially the key role of SPAs. 44 The rate of recovery of Annex I species has been significantly greater inside the EU than outside, and within the EU has been greater for Annex I species than species not listed in the Annex. The role of protected areas in this recovery is critical. The greater the area of SPAs, the stronger the recovery, especially for the rare and vulnerable species in Annex I. This is borne out by evidence that these trends are more positive in those countries that designated larger areas of SPAs No of cases Ports Flood risk management Roads Water resources Military Gas ut ility Minerals/ H&S Figure 2: Article 6(4) Habitats Directive compensation cases in the United Kingdom by sector Red Grouse and Birds of Prey (n 40). 44 P F Donald, F J Sanderson and others International Conservation Policy Delivers Benefits for Birds in Europe Science vol 317 issue 5839 pp Seven cases affect both SPAs and SACs. 46 The military scheme did not proceed in the end but is included here for completeness as it was granted consent under art 6(4). Based on information provided by Defra and the RSPB.

7 EU NATURE DIRECTIVES: RIGHTS, RESPONSIBILITIES AND RESULTS : DODD : UKELA : (2008) 20 ELM Population index ( =100) All native species (35) Wader species (12) Wildfowl & allies (19) baseline Source: RSPB/ BTO/ JNCC/Defra Y ear Figure 3: Trends in UK s wintering birds 48 The value of SPAs is also seen in the strength of the Article 6 regime in protecting key wildlife sites from unnecessary damage. In the United Kingdom, there have been only 18 compensation cases since the Habitats Directive came into force in 1994: 12 affecting SPAs and 13 affecting SACs. 45 These have been largely restricted to sectors that would be expected to be able to justify such damage eg flood risk management, major port proposals (see Figure 2). This suggests that Article 6 is encouraging developers to find ways to avoid damage to Natura 2000 sites. The United Kingdom s wintering birds are generally better off overall, and have shown a strong recovery coinciding with adoption of the Birds Directive in 1979 (see Figure 3). A combination of improved habitat protection and management and better regulation of hunting are probably the key reasons. However, not all species are faring well, and some species have triggered high alerts with 50 per cent declines over the last 10 and 25 years. 47 No still some way to go As described earlier in this article, persecution persists and continues to undermine the ability to restore the populations of our birds of prey. While egg collecting and illegal killing in the lowlands have declined significantly, large areas of our uplands continue to be blighted by continued persecution. Figure 4 shows there is still a long way to go with many breeding birds, especially the more specialist birds of our woodland and farmland. 49 This reflects similar trends across Europe (see Figure 1). In this respect, the United Kingdom has failed to prevent things getting worse than they were in 1979 when the Birds Directive was adopted. Much of this is happening in the wider countryside outside protected areas. There are complex reasons for this, linked to the regulatory and fiscal frameworks governing the landuse and management of our countryside. It needs a multifaceted response to bring about cost-effective changes to the ways in which the countryside is managed for wildlife. Rarer breeding birds tend to be subject to more intensive conservation action from statutory and voluntary nature conservation bodies. This is gradually paying dividends, with many of them starting to recover well. 50 However, there is still some way to go before such species have self-sustaining, prosperous populations. Will the directives work in the future? The climate change challenge There can be no doubt that climate change poses huge challenges to biodiversity conservation. Developing appropriate responses to enable wildlife to adapt in the face of uncertainty will test our ability to maintain a flexible outlook that can secure healthy populations of wildlife able to withstand the pressures from climate change. The nature directives are often accused of lacking the flexibility necessary to help Europe s biodiversity cope with the predicted changes to our climate. In particular, protected areas are seen as too static and unresponsive. Legal advice to the RSPB, supported by its own analysis, Natural England State of the Natural Environment 2008 (Natural England Sheffield 2008) pp sone/default.htm. 48 Courtesy of RSPB, British Trust for Ornithology, Joint Nature Conservation Committee and Defra. 49 State of the Natural Environment 2008 (n 47). 50 RSPB Lifeline to Recovery: the RSPB s Species Recovery Success in the UK (RSPB Sandy 2005) 51 Courtesy of RSPB, British Trust for Ornithology, Joint Nature Conservation Committee and Defra. 52 R Sutherland, O Watts, G Williams Climate Change and the Birds and Habitats Directives: Can They Work Together? (2005) 26 Ecos (3/4)

8 244 (2008) 20 ELM : EU NATURE DIRECTIVES: RIGHTS, RESPONSIBILITIES AND RESULTS : DODD : UKELA Population index (1970=100) Farmland birds (19) Woodland birds (35) All species (98) 1970 baseline Source: RSPB/ BTO/ Defra Year Figure 4: Trends in UK s breeding birds 51 demonstrates clearly that the nature directives not only provide a workable framework to address climate change but can also act as a driver requiring EU Member States to deliver adaptive measures to sustain biodiversity into the twenty-first century. The case of the bittern Botaurus stellaris illustrates how well the nature directives are up to the task if they are implemented purposively and creatively. The bittern is a very rare and secretive heron, confined to reedbeds in England. Having declined to fewer than 11 booming males in 1997, 53 intensive conservation work has enabled the species to recover to over 50 booming males in 2007, albeit with less than half that number of nesting females. The population is concentrated in Suffolk coast SPAs that are highly vulnerable to sea level rise: some sites are already being badly damaged by coastal flooding. The long-term future of these sites for breeding bitterns is doubtful. The long-term solution is to create new reedbeds in less vulnerable locations to secure a healthy and prospering bittern population. The catch is that new reedbeds suitable for breeding bitterns take about 10 years to mature, eg RSPB Ham Wall reserve in Somerset. The answer is an integrated long-term strategy that: agrees a high level target for a favourable UK population, how much habitat is needed to maintain that population and, in broad terms, which protects and manages existing SPAs and other reedbed sites in the core range as long as reasonably possible to increase population resilience and creates compensatory habitat close to damaged SPAs as a matter of urgency to create stepping stones to sufficient (compensatory and additional) habitat in 53 The males make a remarkable far-carrying, booming sound (ie song) in spring. sustainable locations to support the target UK population over the medium and long-term. The nature directives provide the necessary legal context and possess all the tools to help shape this work and drive it forward: setting a favourable status for bitterns at a UK level, taking account of climate change factors to decide on population and range 54 identifying compensatory requirements arising from flood risk management plans and projects on the coast 55 establishing a new, sustainable protected area network 56 creating additional reedbeds to complement the protected area network and deliver a favourable status, providing the legal driver for the UK Biodiversity Action Plan work on this species. 57 Conclusion The nature directives have been a positive force in helping safeguard the best of Europe s wildlife. Their protective role preventing damage and promoting the recovery of rare or threatened species has been particularly successful. Less successful has been securing the positive management of protected areas and sustaining populations of more widespread species in the countryside. The fate of Europe s farmland birds is testament to this failure. The 54 Birds Directive art 2; Habitats Directive art 2(2). 55 Article 6(3) requires the appropriate assessment of plans or projects likely to have a significant effect on a Natura 2000 site. Article 6(4) requires compensatory measures for those plans or projects where an adverse effect could not be ruled out and the damage was justified in the absence of alternative solutions and for imperative reasons of overriding public interest. 56 A combination of Birds Directive arts 3 and Birds Directive art 3; Habitats Directive art 10.

9 EU NATURE DIRECTIVES: RIGHTS, RESPONSIBILITIES AND RESULTS : DODD : UKELA : (2008) 20 ELM 245 reasons are simple: lack of sufficient political will and the commensurate funding. Meeting the EU s goal of halting biodiversity loss, let alone ensuring Europe s wildlife reaches a favourable status, will require a major and collective shift in attitude by Member States. In 2005, the RSPB estimated that the cost of managing the Natura 2000 network across the then EU25 was in the region of 14 billion/year for at least 10 years. 58 This compared with an EC estimate in 2004 of 6.1 billion/ year. 59 If the political will exists, alongside adequate funding and creative and positive implementation, the directives contain the necessary tools for Member States to deliver their goals. The directives emphasise avoiding problems in the first place by integrating consideration of biodiversity into decision-making at project and spatial plan levels. The latter offers the greatest scope of avoiding problems by highlighting potential difficulties early on and finding less damaging ways to achieve the same social or economic ends. The series of checks and balances contained in the directives allows damaging development in the overriding public interest as a last resort, but properly demands that the environmental costs are fully internalised through appropriate mitigation and compensation. Spatial planning also offers the opportunity to plan strategically for the creation and enhancement of habitats to restore the healthy and prospering wildlife populations required by the directives. The UK ports industry is a leading example of the fundamental shifts in approach that are possible in the relationship between industry and conservation. Analysis of this relationship demonstrates how working with the nature directives can respect the needs of both the economy and the environment. Understanding how to integrate the objectives of the directives into business planning can remove seemingly insurmountable obstacles. By changing the way in which society carries out the business of resource exploitation affecting biodiversity, the nature directives seek to provide a better balance of rights and responsibilities than existed before their creation. In respecting their social and economic rights, they ask landowners and developers to understand and act in accordance with the responsibilities towards the natural environment which are set out in them. Ultimately, better and smarter implementation of the nature directives is the key to ensuring that they contribute in full to a sustainable environment within which a sustainable economy and society can thrive. 58 RSPB discussion paper Financing Natura 2000, Estimating Natura 2000 Funding Needs (RSPB Sandy 2005). This was based on estimates of management requirements for the whole network based on average management costs for five different land-use types. 59 European Commission Communication from the Commission to the Council and the European Parliament, Sec 2004/770. Financing Natura 2000 (EC Brussels 2004).

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