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Brexit and British wildlife

The EU offered protection to everything from the harbour porpoise to hen harriers. Now, the future of UK conservation law is uncertain. As an EU member state, British wildlife has been protected under two important pieces of European legislation: the habitats directive and the birds directive. These have required the UK government to establish and manage sites for the protection of vulnerable and rare animals, birds, plants, habitats and other species. In the UK, there are 271 special protection areas for birds (SPAs) and 658 special areas of conservation for other species and habitats (SACs). The future of nature conservation law after Brexit, when EU directives will no longer apply to Britain, is unknown.

The cornerstones of wildlife and habitat protection have been quietly left out of the withdrawal bill ripping the heart out of environmental law, campaigners say. A key principle under EU law which provides a robust legal backstop against destruction of the environment – the precautionary principle – has been specifically ruled out of the bill as a means of legal challenge in British courts. Based on the idea that the environment is unowned, the precautionary principle creates a bottom line forcing those who want to build or develop, for example, to prove in law what they are doing will not damage the environment. Other key elements of EU legal protection, the polluter pays, and the principle that preventative action should be taken to avert environmental damage, have also been ruled out in the bill as a means to protect the natural world from damage by policymakers, development or industry after Brexit.

In April 2014 the Bat Conservation Trust (BCT) reported on the conviction of Hargudial Singh RAI and ISAR Enterprises Ltd for destroying a roost used by brown long-eared bats in Matlock. The BCT believes that this case is the most significant conviction for bat crime ever recorded. Not only is it the first occasion where such a case has been heard in the Crown Court but to their knowledge, it is the first time that a proceeds of crime application has been heard in relation any wildlife crime not involving the illegal trade in endangered species.

On 7th March 2016, His Honour John Burgess sitting at Derby Crown Court heard the matter and fined ISAR Enterprises Ltd £3000, ordered them to pay £2000 costs and made a confiscation order under the Proceeds of Crime Act in the sum of £5730. A strong message is being sent to developers to the effect that they cannot, in future, expect to benefit from criminal behaviour.

Parts of the UK are inundated with flood waters again and with a changing climate, this will be an ever increasing phenomenon. Therefore, innovative solutions should be explored to prevent heavy rainfall from flooding homes/businesses.

Upstream land management should focus on re-instating wetlands and features such as ox-bow lakes. Increased tree planting should be encouraged on farmland and paid for via agri-environment schemes, since water sinks into the soil under the trees at a much faster rate than in association with other habitats types, reducing surface run-off and increasing the capacity for water retention before the saturation point is reached.

In addition, the re-introduction of beaver, which is a native species that was hunted into extinction four centuries ago, would mitigate the impacts of flooding and restore a keystone species. By creating ecologically valuable wetland habitats upstream, they can help to mitigate bigger floods downstream.

Nearly 1,500 badgers were killed in 2015 as part of the Government’s badger cull, Defra has announced, which include 756 animals killed in Dorset, 432 in Gloucestershire and 279 in Somerset as part of efforts to eradicate bovine Tuberculosis (bTB). According to Liz Truss, the Environment Secretary: “Our strategy to eradicate bTB is working”.

However, none of the culled badgers have been autopsied for bTB in the three years of badger culling (if the badgers are healthy, there is no point in culling them, since they cannot be transmitting bTB they do not carry) and bTB rates in cattle outside of the cull zones have been dropping consistently for five years due to improved testing, bio-security and movement controls.

According to the Badger Trust Chairman: “Unless the Government can prove the culling of badgers is working in terms of lowering bTB in cattle, this cruel, ineffective and hugely costly policy must be stopped immediately”.

Defra has recently published the results of an investigation into the use of environmental DNA (eDNA) to detect the presence of Great Crested Newt (GCN) in water bodies. On the basis of this study Natural England will now accept eDNA test results as evidence of presence or absence of GCN for licence applications.

Key information to note includes:

  • eDNA can have a better rate of GCN detection (99%) than a combination of conventional survey techniques ((95%);
  • It will detect GCN presence or absence within a water body up to 7 – 21 days after newts utilising it;
  • It requires 1 day time visit to each water body but the visit must be targeted when GCN are likely to be present in water bodies in the area (which may change on a yearly basis depending on local / regional conditions); and
  • The technique will not provide population size class assessments and therefore, should a population size class assessment be required to inform an EPS icence application, 6 survey visits will still be required using conventional survey methods, in accordance with current recommendations within the “Great Crested Newt Mitigation Guidelines, 2001”.

According to Natural England, the low impact bat class licence trial has covered 120 sites in England, saving money, reducing delays and enabling a speedier licencing process to take place.

The licence, which is being overseen by 32 registered and trained consultants, permits development work that affects low conservation status roosts, such as day, night or feeding roosts, affecting small numbers of common bat species.

The trial, which began last July, will run until the end of June 2014. Natural England is currently reviewing the trial licence and its use. It hopes to formally introduce this new licence in Summer 2014.