Defra to streamline habitats guidance after review finds rules "working well"

However, in its review of the Habitats and Wild Birds Directives, which came into force in 2010, the Department for the Environment, Food and Rural Affairs (Defra) said that there was "significant scope for improving the effectiveness" of its related regulations while "reducing costs for businesses".

A cross-Government Major Infrastructure and Environment Unit will be established from next month in order to reduce unnecessary delays and costs to major infrastructure projects as a result of compliance with environmental regulations, it said.

Chancellor of the Exchequer George Osborne announced that the Government would review the way that the Directives are implemented in England, to ensure that "gold plated" rules were not placing "ridiculous costs" on businesses, as part of the Autumn Statement in November. However, Defra's review pointed out that Natural England objected to less than 0.5% of the 26,500 land use consultations it received annually under the Directives.

Environment Secretary Caroline Spelman said that she "strongly supported" the aims of the Directives, which are intended to protect rare and threatened species that could be harmed by development. "I have said all along that I want them to continue to be effective in protecting important wildlife sites," she said.

"Central to that is ensuring that we maintain their integrity, and the best way of doing that is to make it as simple as possible for people to comply with them. The action we are taking will make it clearer for developers to understand how to comply with the Directive, and will ensure that our wildlife still receives the high level of protection it deserves."

The Treasury set out its programme for major infrastructure investment as part of an updated National Infrastructure Plan last November. It sets out a long-term wish list of over 800 projects.

The Government will also publish new guidance which will explain "in much clearer terms" what needs to be done to comply with the Directives, Defra said. It intends to set up a 'web portal' for stakeholders to access all existing guidance by August, and will streamline and simplify the existing "extensive portfolio" into a single guidance manual due to be published in March 2013.

Additional guidance will be published by July 2012 setting out when a major project which does meet all the requirements will be able to proceed on "imperative reasons of overriding public interest" (IROPI). This test allows a project to proceed for social or economic reasons where there are no alternatives. Defra said it would identify which of the Government's 'top 40' projects were likely to fall within the scope of the IROPI as soon as possible.

A new advisory 'Multi Stakeholder Infrastructure and Habitats Group', chaired by the Environment Secretary, will be set up to identify potential issues and improve collaboration on major infrastructure projects by the summer. Further groups will be set up to make it easier to share environmental data, particularly in the marine sector.

Defra plans to hold a meeting with stakeholders to assess how far its recommendations have been delivered in September, with a progress report to follow by March 2013.

Planning law expert Richard Ford of Pinsent Masons, the law firm behind Out-Law.com, said that the commitment to provide further guidance on IROPI was a particularly important part of a "very welcome" review.

"There is still a lot of promoter concern that the review outcomes fall short of the hoped for reform of the UK regulations, but that is because the Directives themselves would need to be changed," he said.

He added that establishing a Habitats and Wild Birds Directives Marine Evidence Group would be useful as marine projects are "particularly susceptible" to planning objections on lack of data gathering.

The main problem in practice with the Habitats Regulations, which transpose the Habitats Directive into UK law, stemmed from that Directive's requirement to effectively "prove a negative" – that there would be no adverse impact on the integrity of a protected European site by planned works "beyond reasonable scientific doubt", added environmental law expert Gordon McCreath, also of Pinsent Masons.

"A test of 'beyond reasonable scientific doubt' is often very difficult to prove," he said. "Other than changing the European Directive itself, which I think ought to be considered, I hope clearer guidance emerges as to the appropriate weight of evidence required to demonstrate when a case has been proven beyond 'reasonable scientific doubt'."