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Biodiversity off-setting – Nature’s Fool’s Gold

Environmental lawyer comments on Environment Secretary’s plans for ancient woodland

Photo of oak tree: istock

7 January 2014

Consultant environment solicitor Carol Day comments on the Environment Secretary's remarks about the UK's ancient woodland.

On 4th January, the Today programme reported Owen Paterson’s remarks to The Times about ‘biodiversity offsetting’. In particular, the Secretary of State for Environment, Food and Rural Affairs proposed that developers would be allowed to destroy ancient woodland if they agreed to plant 100 trees for each one felled. The mandatory off-setting scheme, aimed at accelerating the development of new homes, would oblige developers to measure the impact of their proposals on biodiversity and to fund compensatory schemes.

Many environmentalists have greeted the concept of biodiversity off-setting with some scepticism, primarily because those promoting it don’t appear to have biodiversity’s interests at heart. However, these most recent comments - from a Secretary of State with the responsibility to protect England’s natural assets - reveal a woeful failure to understand just what it is about our natural landscape that makes it valuable to people and wildlife.

Ancient semi-natural woodlands have been in continuous existence since 1600 or 1700 and were not planted, indeed many have been evolving since the end of the last glaciation about 10,000 years ago. Very little such habitat remains in the UK – some 1.25% of the British Isles supported ancient woodlands in the 1981 Forestry Commission Census of Woodland. It is likely that significantly less than that exists now. These ancient woods of birch, hazel, alder, aspen, oaks, lime, field maple, beech, hornbeam, holly, yew and elm host characteristic assemblages of insects, birds and mammals, providing great interest to nature lovers and enjoyment to those simply wanting a beautiful place in which to stretch their legs.

Is it possible that new tree planting could be as valuable as these precious habitats? Of course, in several hundred years they could be, but what about now?  Interestingly, the concept of ‘equal value’ has been explored by the Courts in this very context.

During the 1980s and early 1990s, the Department of Transport was pressing for the construction of an East London River Crossing served by a trunk road through Oxleas Wood in Greenwich. The construction of the road required the compulsory purchase part of the wood, which was owned and managed by the local authority as a public open space. The then Secretary of State certified that he was satisfied that land to be provided in exchange for Oxleas was of equal value to the public. Nine local residents challenged this proposition in the High Court on the grounds that the land to be given in exchange would not give unfettered access to the public in the way which the current land did for several years while the woodland was growing.

Sadly, the Oxleas nine lost the case, the Hon Justice Hutchinson holding that the phrase "equally advantageous" was not to be strictly construed in the manner in which the applicants intended. Questions of evaluation and weight were to be left to the decision-maker, the Secretary of State, and not to the court.

It might be time to re-visit whether such an interpretation is still appropriate.

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