ENGLISH NATURE
Introduction
Between 1994 and 1997, I worked with the Third Battle of Newbury group, campaigning for sustainable alternatives to the proposed A34 Newbury bypass. Part of my work focused on trying to determine why English Nature was taking such a low-key approach to this controversial road. After all, it is English Nature's stated objective to "oppose vigorously road proposals that adversely and irreversibly affect Sites of Special Scientific Interest" [1] and the Newbury bypass is expected to affect four SSSIs quite drastically. I believe what I found out makes Newbury a clear demonstration that English Nature does not meet public expectations so far as the three issues identified by the Sub-Committee are concerned.
I would like to submit this summary to the Committee, and I am sending a copy of the full report (which lists the [bracketed] references used here) to the Clerk. I would also like to commend to the Committee the report produced by WWF-UK in November 1997 "English Nature: A Muzzled Watchdog", which sets our evidence in a wider policy context.
PUBLIC INQUIRY
"English Nature is not a campaigning organization, but rather must present the nature conservation case at Public Inquiry and then abide by the decision made" [1]. The 1988 public inquiry into the Newbury bypass boiled down to a choice between the DoT's preferred western route; a central route incorporating some or all of the existing A34 bypass; and a route to the east of Newbury
"English Nature's predecessor, the NCC, attended a Public Inquiry held in 1988 to examine possible routes for a Newbury Bypass. Its primary concern at that time was to protect the Thatcham Reedbeds SSSI from destruction which would have resulted from the eastern route proposal." [1] Surely its primary concern should have been to present a full and balanced assessment of the environmental costs and benefits associated with all the proposed alternatives and thereby allow the Inspector and the public to make a proper choice between them. This did not happen. A careful examination of the proofs of evidence suggests the NCC knowingly presented a more damning and detailed case against the eastern route than against the western one, deliberately sacrificing the important ecological sites to the west of Newbury in an attempt to protect Thatcham Reedbeds on the east.
The Proof of Evidence given by the NCC amounted to 9500 words of text and an appendix of 38 pages on the eastern route. However, the NCC's evidence on the preferred route was a mere 798 words of text and a short appendix of maps. Given the extraordinary quality of the ecology on the western route, it seems hard to explain why one submission should be so much longer than the other. And indeed, if the NCC's intention was to present a balanced case at a public inquiry, surely the relative submissions should have been roughly similar? The disparity was not merely one of length. The eastern route submission was altogether more comprehensive, and environmental impacts recognized and assessed for the eastern route were not even mentioned in the western route submission. Despite the fact that the Kennet and Lambourn rivers were known to be of SSSI quality at the time, no information was presented on the environmental impact on them by the NCC.
Asked to "please confirm that English Nature or its predecessor has assessed the direct, indirect, or other effects of the construction, operation, or maintenance of the road, and please list what those effects would be on each habitat or species" [4], David Henshilwood (English Nature's Thames & Chilterns Team Manager) replied: "English Nature does not have the resources to commission the detailed scientific studies which would be necessary to quantify these effects."[5]. The effects were, nevertheless, meticulously assessed for the Eastern route and presented to the public inquiry by the NCC. David Henshilwood stated: "I consider that all the relevant facts were presented to the Public Inquiry". [5]
But were they? The NCC's Proof of Evidence at the Public Inquiry confirms that on all but one occasion, access was restricted to public footpaths [40]. The NCC used information supplied by the Institute of Terrestrial Ecology (ITE), described as "inadequate" and "a highly superficial ecological assessment" [7]. Furthermore, English Nature was unaware of the presence of bats, badgers, and dormice at certain parts of the route [6] as late as May 1994, and apparently unaware of the rare ice-age snail Vertigo Moulinsiana at sites near the river Kennet even after clearance work had commenced in 1996. In July 1995, the Highways Agency admitted: "As [protected] species were not detected at the time of the Inquiry, no account was taken of them in assessing the impact of the western Bypass and to that extent the impact of the scheme was under-estimated" [9].
The disparity between the environmental assessments of the preferred and alternative routes at Newbury has happened on road projects before. In its Article 169 proceedings against the UK government over the A406 East London River Crossing at Oxleas Wood, the European Commission (DGXI) highlighted the glaring imbalance between environmental assessments of preferred and alternative routes as one reason for its intervention [8].
Mawhinney review
Even if English Nature and the NCC presented the best information available to them in 1988, much new information has come to light since then. Throughout 1994, Friends of the Earth (FoE), the Berkshire Buckinghamshire and Oxforshire Naturalists Trust (BBONT), and the National Rivers Authority (NRA) continued to uncover things the public inquiry had missed. On 19th December 1994, Secretary of State for Transport Dr Brian Mawhinney put the Newbury bypass on hold for a period of review expected to last one year. This was an excellent opportunity for English Nature to present an updated environmental case. We asked David Henshilwood: "to take advantage of the current review period to make known the full environmental impact of the road" [4]. He declined. English Nature chose to stand by the flawed, partial evidence presented at the Public Inquiry; while the rest of the country's mood continued to shift firmly away from road-building, English Nature took no notice: "The Public Inquiry decision was made against the background of legislation and Government policy then in place. The fact that legislation and policy have changed subsequently is a matter for Government -- not for English Nature." [1]
ENVIRONMENTAL IMPACT ASSESSMENT (EIA)
If the Department of Transport had complied with the directive 85/337/EEC (the "EIA directive") [10], things would have been rather different. There would have existed at the public inquiry a rigorous and definitive statement on the full environmental effects of the western route. Having written a dispensation into the Highways Act 1980, to exempt from consideration projects that were "in the pipeline" when the EIA directive came into force in 1988 [41], the DoT claimed it did not need to carry out an EIA for the Newbury project. But it maintained that "the direct and indirect effects of the project on flora and fauna were identified, described and assessed, and taken fully into account in reaching a decision on the published proposals." [12]
But as new environmental information was discovered about Newbury, NGOs repeatedly pointed to the need for a full EIA to be carried out. RSPB stated: "The proposed route was not subject to a formal Environmental Impact Assessment... The impact of the western route on the environment could be considerable and warrants Environmental Assessment." [14] Those sentiments were echoed by other NGOs, but not by English Nature, whose Position Statement on the Newbury Bypass [1] makes no mention of the lack of EIA, or the failure to present such a document at the public inquiry. This is particularly ironic, as the NCC's former Chief Scientific Officer, Professor Norman Moore, has stated: "... it would be vandalism of the first order if they [Newbury's protected sites] were to be destroyed without an Environmental Assessment being carried out." [15]
English Nature's statement on Roads and Nature Conservation says it will support "full and public consideration of environmental effects of transport policies and programmes" and "seek full and extended use of the Environmental Assessment Regulation, including early publication of detailed environmental appraisal of options, and encourage use of the environmental assessment process for all road schemes, even where it is not mandatory" [16]. So for English Nature, the applicability of directive 85/337/EEC is irrelevant. Why did it not call for an EIA at Newbury when the opportunity repeatedly presented itself?
PROTECTED HABITATS
Snelsmore Common SSSI
English Nature claims "The NCC did not object to the loss of a small part of the Snelsmore Common SSSI, having already secured an alteration to the preferred route..." [1] But its guidelines on SSSI site selection state "loss of or damage to certain parts [of SSSIs] would... detract significantly from the value of the whole... [and] cannot be justified by the survivial of the larger fraction" [18]. An English Nature spokesman appeared on TV suggesting only a part of the Common would be affected by the road, completely ignoring indirect effects (noise, microclimatic effects, light pollution, localised acid-rain, and run-off) that are considered will be "significant".
At Twyford Down, English Nature actively opposed the DoT, insisting on its full four month's notice of entry to the SSSI land, as stipulated in the Wildlife & Countryside Act [29], and refused to allow "the stripping and translocation of topsoil before the outcome of the issue between the DoT and the European Commission." [30] At Newbury, English Nature granted permission to enter Snelsmore Common SSSI within two days of application, despite an outstanding legal complaint to the European Commission against the DoT over its failure to carry out an EIA: it granted permission for part of the SSSI to be destroyed, even though this might subsequently have been ruled illegal by the Commission.
Kennet and Lambourn riverine SSSIs
According to the NRA: "The river Kennet is a unique habitat with excellent fisheries and a very high diversity of both aquatic and marginal plants and aquatic invertebrates. Therefore, there is a need to maintain the existing high ecological value of the catchment." [35] English Nature confirms that: "Water quality and flows are a particular concern in retaining its remarkable diversity of water plants and its value as a trout fishery." [89]. And the NCC did voice considerable reservations about the proposed bypass crossing of the Kennet valley: "The NCC... did object to the proposed construction of an embankment across the Kennet valley, recommending instead the use of a stilted flyover." [1]
David Henshilwood reports: "The inquiry inspector decided that the extra cost was not justified by the environmental benefit." [51] But could the Inspector reasonably have been expected to balance the cost and benefit, given the flawed case the NCC presented to the 1988 inquiry? By under-representing or choosing to ignore the environmental impacts of the western route, the NCC also under-represented the environmental benefits of mitigation measures like a stilted viaduct over the Kennet valley.
English Nature is curiously reluctant to detail what effect the road might have on the riverine environments; there is no clue in the Position Statement [1], and we can find no stronger statement than David Henshilwood's rather lame suggestion that: "English Nature does not guarantee that there will be no effect on wildlife." [38] RSPB contend: "The bypass will result in direct loss of floodplain habitat and will sever the ecological corridor provided by the river system. Such damage to a habitat of SSSI quality appears to be inconsistent with the Government's commitment that 'wherever possible, new routes must be kept away from protected areas such as AONBs and SSSIs' (PPG13)." [14]
Special Areas of Conservation
"Under the [Habitats] Directive, the member states agree to establish a series of protected sites, which, when designated, will be called Special Areas of Conservation (SACs)." [59]
Do any habitats or species on the route of the Newbury bypass merit the designation of SACs? No site on or near the Newbury bypass appeared on the original UK list when it was first published in March 1995. As a result, in May 1995, we asked David Henshilwood to "please confirm that you have assessed all habitats along the proposed bypass route for SAC eligibility" [61]. Mr Henshilwood confirmed: "The route has been assessed." [26] Asked "Which habitats along the route do you intend to nominate as SACs?", he replied: "None, pending publication by Government of the list of possible river SACs". At that time, Mr Henshilwood confirmed the presence on or near the route of the the following habitats/species covered by the directive: annex I, 24.4, floating vegetation of Ranunculus of plain and submountainous rivers, 31.11, Northern Atlantic wet heaths with Erica tetralix, 31.2 dry heaths; annex 2, Vertigo moulinsiana.
After further questioning about the applicability of the Habitats Directive, David Henshilwood commented: "The provisions of EEC Directives 79/409 and 92/43 relating to SPAs and SACs do not apply, since there are currently no sites on the route of the bypass which are proposed or designated as either SPA or SAC." [5] This comment was factually incorrect; "strictly-protected" species (bats, dormice, and otters) are protected by article 12 of the Habitats Directive [32] irrespective of the designation of SACs.
Mr Henshilwood had previously said: "the route has been assessed" for SAC eligibility [26]. Asked about the population of Vertigo Moulinsiana at Rack Marsh near the Lambourn, and whether this warranted a proposal for a SAC, he stated: "It is not considered that Rack Marsh is of sufficient European importance to be put forward as a SAC" [26].
On 15th February, FoE announced that "English Nature has confirmed that it has not carried out a survey on the snail in the 200m strip where the road actually crosses the [Kennet] floodplain." [87] At this point, the Newbury snail became a national media issue [71]. The following day, 80% of callers to a national telephone poll responded "Yes" to the question "Should a tiny rare snail halt the controversial Newbury bypass?" [86] English Nature then carried out survey work for the snail at various locations where it had previously been recorded, or evidence suggested it was likely to occur".[80] Despite searching frantically for better snail habitats elsewhere, English Nature's team found no better colonies than one directly on the Newbury bypass route (at the Lambourn) and the one immediately adjacent to it (at the Kennet). FoE decided to carry out its own surveys.
On 30th May, with the designation of a SAC in prospect, FoE announced: "The proposed European reserve... includes eight separate colonies of the snail spread over the floodplains of the Rivers Kennet and Lambourn; two of these would be affected by the bypass route. One colony at Rack Marsh, described by a leading expert [Dr Martin Willing] as holding 'a notable abundance of the species' will be destroyed. The other colony affected, on the River Kennet floodplain, supports 'one of the densest populations seen' by the same expert in 20 years of study. This second site will be damaged by alterations to local hydrology and by pollutants contained in vehicle spray and water draining from the road surface". [91]
On 6th June 1996, the Department of Transport announced it had awarded the contract to build the road. The same day, the Department of the Environment and English Nature formally proposed a SAC on the bypass route. The Kennet site would be left in situ; the Lambourn site (Bagnor island) would be dug up and moved to a new site near the river Kennet, very close to the bypass route. The Lambourn site was part of the area David Henshilwood had previously described as "not... of sufficient European importance"[26]. At that time, English Nature's Thames and Chilterns Team commented: "Provided that measures advised by English Nature are successfully implemented, we believe that it should be possible to maintain the overall population within the Kennet and Lambourn Floodplain, and to enhance the distribution of the snail within the areas where these measures are to be carried out" [80]. However, the Highways Agency's own surveyor had previously stated: "The sensitivity of the species to disturbance is clearly demonstrated and it is unlikely that it would be a successful candidate for any species recovery programme". [81]
Five days later, FoE et al sought leave to apply for a judicial review in an attempt to challenge the decisions to let the contract and to fail to include sites affected by the bypass in the candidate list of SACs [82]. On 25th June, Mr Justice Sedley refused the application. Nevertheless, he understood "the applicants' case... that it is an abuse of governmental power to press ahead with a project which may destroy the habitat of a species which, had there been timeous compliance with the Habitats Directive and its domestic enforcement measure, the Conservation (Nature Habitats etc) Regulations 1994, would have enjoyed legal protection from any such threat to its habitat". He commented: "There is... much genuine and scientifically founded doubt on the applicants' part as to the viability of the snail in these conditions. It is evident, too, that the applicants fear that English Nature is not acting as independently of government as it should be." Furthermore, while refusing to accept the "properly presented" legal case, he accepted that it left "significant and troubling" questions. [83] FoE's Charles Secrett commented: "This decision is yet another demonstration of the urgent need for tougher laws to protect Britain's wildlife. The fact that the Government can legally consult on the designation of a European nature reserve while simultaneously allowing a road to damage it is preposterous." [93]
But even if one accepts this argument, the question still remains: given that English Nature knew about the snail in mid 1994, or, at the latest, in July 1995, why did it fail to properly assess the snail habitats for SAC eligibility until mid 1996? How did David Henshilwood arrive at the wholly mistaken view that Rack Marsh was not "of sufficient European importance to be put forward as a SAC" [26]?
PROTECTED SPECIES
English Nature's treatment of protected species found on the bypass route also raises questions. The species concerned are bats, badgers, dormice, nightjars, Vertigo moulinsiana, and nesting birds. As the Highways Agency admits: "As the species were not detected at the time of the Inquiry no account was taken of them in assessing the impact of the western bypass and to that extent the impact of the scheme was underestimated. There is no information on the likelihood of these or other protected species being found on other routes so it is not possible to reach a conclusion on any effect on the new balance between the routes." [9] In other words, protected species might be found wherever they choose to build a new road, so it doesn't matter when they do find them.
Some species (bats, dormice, and otters) are protected by annex IV of the Habitats Directive [32], as "Animals and plant species of community interest in strict need of protection". Article 12 of that directive makes clear the responsibilities of member states, prohibiting: "a) all forms of deliberate capture or killing of specimens of these species in the wild; b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation, and migration; c) deliberate destruction or taking of eggs from the wild; d) deterioration or destruction of breeding sites or resting places."
How did English Nature treat the protected species?
* Bats - Authorized the destruction and removal of bat roosts.
* Badgers - Waited until 7 months before construction before investigating, despite its own guidelines that badger relocation takes 2 years.
* Dormice - Authorized relocation, despite the definitive Mammal Society guidance that this was likely to be unsuccessful, and despite the Habitats Directive prohibition on deliberate capture or disturbance.
* Nightjar - Vigorously opposed RSPB's well-researched attempt to have Snelmore Common SSSI listed as a special protection area (SPA).
* Vertigo moulinsiana - Did nothing to conserve the rare ice-age snail until national media interest and a legal challenge by FoE forced it to notify sites as SAC, whereupon it authorized the relocation of the snails against the advice of one of the country's leading mollusc experts and the Highways AGency's own surveyor.
* Nesting birds - Allowed tree and scrub clearance work to continue into the bird nesting season, in contravention of Section 1 of Part 1 of the Wildlife & Countyrside Act.
* Otters -- apparently expressed no concerns.
CONCLUSIONS
English Nature's reluctance to rock the boat over the Newbury Bypass has been used by supporters of the road to suggest it has little environmental impact. English Nature has been used repeatedly as an apologist for the road: "English Nature has confirmed that all the action which has been taken in relation to protected species... [is] in accordance with the Habitats Regulations." [55], "English Nature were consulted on measures to mitigate the effects..." [12], "English Nature's plans and future funding will appreciably enhance the [Snelsmore] Common's valuable heathland characteristics" [56]. Is English Nature a willing partner to such disingenuous statements? Roads Minister, Mr John Watts: "We will continue to work closely with interested parties including English Nature to minimize the effects on these sensitive sites." [11] English Nature: "We shall continue to do our utmost in cooperation with the Highways Agency to minimize the inevitable effects on wildlife" [51]
Thames and Chilterns Team English Nature defines its remit to "present the nature conservation case at Public Inquiry and then abide by the decision made". But as we have considered, the NCC knowingly failed to present a full and accurate case against the western route to protect Thatcham Reedbeds SSSI. Some people argued the NCC was placed in an impossible position. But it could have protected both eastern and western routes and supported on-line improvements, like those recommended by Friends of the Earth, by speaking out tactically during the Mawhinney review. This would have given Dr Mawhinney the support he needed to defend his decision in the cabinet.
Ultimately, the public have certain expectations of what their "watchdog" should do. Most people would expect English Nature, if not to have opposed the bypass, at least to have fully evaluated its environmental effects and made that information publicly available so that everyone could reach a balanced view. As we have already seen, English Nature's own Position Statement on Roads and Nature Conservation [16] sets out a policy of vigorous opposition to road proposals that adversely affect SSSIs. The "Vision Statement" in its Citizen's Charter says: "English Nature will give the lead in sustaining and enriching England's natural heritage for all to enjoy now and in the future." [34] English Nature's involvement in the Newbury Bypass is a catalogue of repeated failure to present a balanced view of the environmental impacts of the road. It profoundly affected the Public Inquiry Inspector's decision, and its endorsement by the Secretary of State for Transport.
To sum up, we believe English Nature's failures have played an important part in ensuring the construction of "one of the most environmentally damaging road proposals in the country at the present time".
SUMMARY
We believe English Nature's involvement in the Newbury saga raises questions that are (in the words of Mr Justice Sedley) "significant and troubling":
1. Why did the NCC submit a much more detailed public inquiry case against the western route than against the eastern route?
2. What was the nature of the public inquiry deal between the NCC and the Departments of Transport/Environment?
3. Why were environmental impacts that were studied in great detail for the eastern route not similarly studied for the western route?
4. Why was no information about protected species (such as bats, badgers, dormice, or Vertigo moulinsiana) presented to the public inquiry?
5. Why has English Nature never attempted to make known the probable environmental impacts of the western route?
6. Why did English Nature not take advantage of the Mawhinney review to make known the need for an environmental impact assessment, or to highlight the new environmental information that had come to light after the 1988 inquiry?
7, Why did English Nature strenuously resist RSPB's call for the inclusion of Snelsmore Common in the Thames Basin Heaths pSPA?
8. Why did English Nature grant immediate permission for the destruction of part of Snelsmore Common SSSI, while the legality of the scheme was still being questioned in Europe?
9. Why has English Nature given no clear picture of the environmental impact on the newly designated riverine SSSIs?
10. Why were the riverine SSSI boundaries confined to the rivers themselves, when other riverine SSSIs have included an area of floodplain habitat as well?
11. Why did English Nature not perform a proper assessment of the route for SAC eligibility?
12. Why, when English Nature knew about the existence of Vertigo moulinsiana in mid 1994 (or mid 1995 at the latest), did it not put forward areas on the bypass route for consideration as SACs until legal action by FoE forced it to do so?
13. Why did English Nature suggest that Vertigo moulinsiana could be successfully relocated when the evidence from mollusc experts seemed to suggest that was not the case?
14. Why was English Nature unaware of the existence of bats, badgers, dormice, and Vertigo moulinsiana on the route until a very late stage in the road planning process?
15. Why were suspected badger setts being discovered on the bypass route even after clearance work had commenced?
16. Why was clearance work allowed to continue into the bird nesting season?
17. Why did English Nature issue a "Position Statement" about the Newbury bypass that gave scarcely any clues as to the environmental impact of the road? Why was the statement so badly lacking?
18. Why did English Nature allow Mr Simon Melville to speak on its behalf about the road when his personal pro-bypass views were very well known?
19. Why did English Nature not "vigorously oppose" this road proposal in line with its national policy, or at the very least, make known a full and balanced assessment of its environmental impacts?