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Responsibilities of civil engineers

Summary

This report provides a guide to the responsibilities of civil engineers working in environmentally protected areas in particular SSSIs in England, relating to their inherent laws, restrictions, and site management.

1 INTRODUCTION

This report studies the concepts surrounding civil engineering works in designated environmentally protected areas. It includes the history and background of SSSIs and the challenges faced by civil engineers working in such areas. The report also describes the different responsibilities and roles that civil engineers must take when trying to deliver professional, environmentally friendly and profitable construction in these areas.

2 THE HISTORY AND BACKGROUND OF SSSIs

The National Parks and Access to the Countryside Act in 1949 first introduced the scheme of Sites of Special Scientific Interest (SSSI). The Act gave powers to the Nature Conservancy Council (NCC) to designate both National Nature Reserves and SSSIs. The main division between SSSIs and National Nature Reserves is that SSSIs can have multiple land uses. For example most SSSIs found in The Broads are situated in agricultural areas.

The act was put in place to give legal protection to land with national biological and/or geological and/or physiographical importance, so it could be safeguarded for the future. It also permitted the compulsory purchase of land and promoted the formation of agreements between the NCC and land stake holders.

The Countryside Act in 1968 gave more powers to the Nature Conservancy Council (NCC). It allowed land management agreements to be put in place between the NCC and land owners, tenants, etc. Further changes were made in 1981 with the Wildlife and Countryside Act, which gave sites greater protection through new planning legislation for SSSIs. It also identified that notice should be given to the NCC when stakeholders intended to carry out certain activities which could be damaging to the site. The Wildlife and Countryside Act 1981 (W&CA 1981) also provided protection of certain animal and plant groups. E.g. Schedule birds are given full protection.

In 1991 the NCC was reorganised and four bodies were given the power to designate land with SSSI status. These were the Northern Ireland Environment Agency, English Nature (recently renamed Natural England), Scottish Natural Heritage and Countryside Council of Wales.

All these acts have contributed to the formation of SSSI designation, management and legal protection today.

3 SSSI LEGISLATION

The next element of the report will identify areas within SSSI legislation which are of particular importance to civil engineers. It is necessary for civil engineers to understand the legislation behind SSSIs, especially when the construction works could affect their fragile framework. Also any misunderstandings when working in SSSIs can cause delays in procurement of the project and ultimately losses in profits.

3.1 Notification

Notification is the process where by an area of land is accredited as being an area with national special scientific interest.

Predominately civil engineering companies will begin projects knowing where SSSIs are located inside the project area. However it is not impossible for SSSIs to be notified during a project, especially ones lasting decades. This is why in this section of the report the process of notification will be explained.

Notification of a site is based on a scientific study carried out by Natural England with help from other conservation bodies where available. The notification process maybe initiated by a landowner inviting Natural England to the site or alternatively by Natural England itself. Natural England has rights of access for notification of sites and to assess the condition of special features within already designated areas. For more information on the notification of SSSIs refer to the ‘Guidelines for the selection of SSSIs', published by the Joint Nature Conservation Committee.

Included within a notification will be a description of why the land is of special interest, possibly including survey data collected from the site i.e. reptile populations. The notification will also contain a register of all activities which could be potentially harmful to the special interest located within the site. It is vital for engineers to know what these activities are and how they can be worked around. Finally a notification will provide information regarding the future management of the site to maintain and safeguard the special interest.

It is possible to find out the details for which the SSSI has been notified by visiting the Natural England website. By searching for the relevant SSSI you can view:-

-Details of the position and area of the SSSI

-Reasons for notification

-Date of notification and subsequent revisions to the notification

Subsequent to the notification of a SSSI the land manager has three months in which to object to the action. Nine months after the notification Natural England must confirm it. This may come with modifications to the original notification. It is important to understand that the site is protected prior to this process. This legislation was implemented after landowners were found destroying the sites special interest before the notification was passed.

It is also possible for notifications to be removed by Natural England either due to the interest within the site no longer being classed as nationally important or the special interest not being present anymore.

3.2 Management

The existing management plans of SSSIs should be understood by civil engineers before the design and construction phases can commence. This can only benefit the future of SSSIs, through the prevention of any damaging activities. The damaging activities associated with a particular site can be found in the citation of the SSSI on Natural England's website.

Under SSSI legislation management agreements can be setup between not only the landowner of the SSSI, but also the land manager of any land which can affect the site. For example the management of adjoining farmland and wetland areas can influence the condition of the SSSI massively so agreements could be setup with landowners of these areas.

The approach to management of the land for the conservation of SSSIs is split up into 3 categories shown below taken from “Sites of Special Scientific Interest - Encouraging positive partnerships” by DEFRA.

3.2.1 Management Scheme

The management scheme is a catalogue of suggestions from Natural England for the landowner on how they feel the land would be best managed.

Management Scheme - “is a scheme describing how best to conserve, and/or restore, the special features of an SSSI. This will be drawn up in discussion with the owners or occupiers. The aim is for all owners and occupiers of the land to be aware of the preferred methods of managing the land to conserve or restore the special features (flora, fauna, geology or physiography) for which the site was notified.” Sites of Special Scientific Interest - Encouraging positive partnerships by DEFRA.

3.2.2 Management Agreement

Management Agreements - are formal contracts setup between the land manager and Natural England made under s15 of the Countryside Act 1968 or s16 of the National Parks and Access to the Countryside Act 1949, whereby the landowner agrees to carry out particular work to protect the future of the SSSI. Under these agreements payments may be paid to land owners from Natural England to help with the maintenance of the special interest.

3.2.3 Management Notice

Management Notices - These give an obligation to the land manager to carry out particular works within a particular time period set out by Natural England or allows Natural England to enter the land and carry out work itself. The notice can appealed by the recipient to the Secretary of State. The notice is given when it is believed that, for no justifiable reason, the special features of a site have been “inadequately conserved”.

3.3 Carrying out operations within SSSIs

When carrying out works inside SSSIs it is important to know whether the works fall under operations that could be classed as damaging to the special interest for which the site has been designated a SSSI. These damaging operations are listed within the notification given to the land owner when the site is designated.

It is vital before any works are started that the notification and proposed design is cross-referenced to make sure no works could be classed as damaging. Therefore it would be advisable to consult Natural England to discuss whether any of the proposed activities could affect the SSSI. If it is found that the planned works fall under one of the damaging activities an application for consent must be sent to Natural England.

The application must be written and is recommended to be submitted at least 4 months prior to the start of planned works. It would be prudent to contact Natural England before submitting an application as they can help in the formulation and details of the application. The application once received by Natural England will be assessed to see whether the works will negatively affect the SSSI and if so what mitigation will be implemented to minimise the impact on the site.

The application must contain adequate information relevant to the works. It is in the best interest of both Natural England and the applicant to disclose as much information relating to the works and design as to speed up the application process. As any inconsistencies and discrepancies created within the application will only cause the need for clarification and ultimately delay the process.

Natural England has three options regarding the outcome of an application:-

  1. Consent - They can give consent for works to be carried out.
  2. Consent with conditions - They can give consent for the works to take place with conditions attached.
  3. Refusal of Consent - The application can be rejected.

Natural England has 4 months to make a decision on the consent and will give justified reasons for making them.

The role of Natural England does not end with the assessment of the application. If Natural England deems that any listed or other activity is harming the special interest it has the powers to modify/remove the consent for the works during construction. If modification of the consent is required renegotiation of the construction works can take place.

It is preferred that during the renegotiation of the works an agreement may be formed to resolve problems Natural England have concerning the works. However if an agreement cannot be created Natural England's decision can be appealed. The appeal should be presented to the Secretary of State within 2 months of the modification/ refusal/ withdrawal of consent. An appeal also maybe needed if Natural England does not reach a decision on the application within 4 months.

The appeal should be in writing but in some cases it maybe necessary for the applicant to present their ideas in person. The Secretary of State has the powers to grant consent, modify the consent and uphold Natural England's decision to refuse consent.

3.4 Offences and Penalties

If the legislation surrounding construction in SSSIs is not properly understood or ignored the ramifications can be very costly. If it is found that a stake holder to the land has knowingly, without reasonable excuse, damaged a SSSI they can be taken to court. If taken to the Magistrate's Court a 20 000 fine can be issued and in the worst case scenario, at the Crown Court, the party can be forced to pay an unlimited fine. It is also important to note that public bodies are open to the same scrutiny in court as private parties.

It is not only the financial consequences a civil engineer should be aware of; a company's reputation can be destroyed. Environmental incidents on a project can even lead to not being considered for future similar contracts. This can be deadly in an already very competitive industry.

3.5 Planning Applications

When a planning application is submitted to a planning authority of which an activity described could be harmful to a SSSI it is necessary to make an application for consent to Natural England. It is strongly recommended to contact Natural England before sending an application to the relevant planning authority so the design of the project and the method of construction can be discussed. These discussions are invaluable and will make it much more likely for the application to be accepted.

Under the Town and Country Planning (Environmental Impact Assessment (EIA)) Regulations 1999, relating to the application of development consent, the need for an EIA is assessed. Sites are split into two categories:-

Schedule 1 - All these sites require EIAs.

Schedule 2 - These sites only need an EIA when the works are likely to have “significant effects on the environment”

Under the regulations however schedule 2 sites should always be assessed when the site is within/partially within a SSSI. The two lists detailing which sites are included in Schedules 1 and 2 can be found in The Town and Country Planning (Environmental Impact Assessment) Regulations 1999.

Consent for operations may also be given to landowners by public bodies that have carried out the relevant applications themselves.

3.5.1 Planning Policy Statement 9 (PPS9) - Biodiversity and Geological Conservation

Further advice on the planning process in relation to carrying out works in SSSIs can be found in the PPS9, which replaced the Planning Policy Guidance 9: Nature Conservation.

The statement, published in August 2005, gives guidance to all parties involved in application for planning permission. There are three core issues that run through the statement; these are the promotion of maintenance, restoration and enhancement of environmentally sensitive areas. The statement pushes for parties to an application to look in detail at these three options before, during and after an application is submitted. The statement points out that within the land development procedure there is an opportunity to create greater biodiversity through well thought out and effective design.

The report also gives guidance on damage to the environment within development applications. It describes how compensation can be provided for the damage of an environmentally sensitive feature to allow an application to be passed. For example the application maybe permissible as long as compensatory habitat creation is planned to be carried out on site. It also encourages mitigation to be researched during the application process, so that parties are fully aware of their roles in the process. It suggests also that the process by which an application is scrutinised should be weighted with the importance of the designation of the site i.e. National, European or International importance. Finally the guide suggests refusal of applications where neither mitigation nor compensation can be agreed upon within an application.

From a civil engineering point of view the key information gained from the PPS9 is:-

3.6 Public bodies working in SSSIs

Some public bodies have the powers to grant consent for potentially damaging activities in SSSIs on their own. However they have to follow a similar approval process to private applicants. They should give notice to Natural England before granting permission for an activity to take place. This is to allow Natural England to put together recommendations, objections and suggestions regarding the best way to protect the site during and after the works. It is also important to note that the Environment Agency has statutory obligation to enhance SSSIs when working in them.

4 DESIGN ENGINEERS ROLES

The design engineers have the initial duty of care to carry out conscientious actions in the progress of a project affecting an environmentally designated area. The engineers will have to be aware of the planning legislation regarding their particular site before even thinking about the design. This may be regarding the details of the sites SSSI status, but also may be to do with individual species legal protection. This is why it is crucial to carry out a detailed EIA before starting the planning process.

It would be sensible for civil engineers to refer to 'Environmental Law :the law and policy relating to the protection of the environment' a book by Bell and McGillivray which outlines, as the title suggests, legislation regarding environment protection. This book is updated yearly to accommodate any legislative changes made by bodies such as Natural England etc.

The first point a designer must determine is whether there is a design option which can avoid the SSSI. This therefore will evade any direct impacts the works will have on the SSSI. If it is unavoidable that the works will interfere with the SSSI it is important to gather good baseline data (E.g. data collected before the project starts). It can be used to draw comparisons and to assess the projects impact. This is vital in understanding the scale of the problem and consequently mitigating against, as many SSSIs have lost species they were originally designated for. SSSIs are routinely monitored to assess their condition in order to pick up any adverse impacts.

Conversely it is important to see whether the works will be beneficial to the SSSI. For example on the Broadland Flood Alleviation Project works have been carried out to protect SSSIs from saline flooding. In addition the works could be deemed to be required as part of the 'management' of the site. In other words necessary to maintain the SSSIs interest.

Once the baseline surveys are completed an EIA should be put together. During this process there should be correspondence with Natural England to determine whether any of the works proposed could be considered as an action potentially damaging to the special interest of the site. It is key for the engineer to get in touch with Natural England as early as possible in the design so that time is not lost through the need for re-design.

The subsequent stages after carrying out an EIA will be to discuss with an environmental scientist the mitigation needed for the project or if any is needed at all. The mitigation process should start again as early as possible to reduce delays in the commencement of the works. On the Broadland Flood Alleviation Scheme mitigation is carried out in-house when the resources are available. However when there are insufficient in-house resources available mitigation and ecological surveys can be sub-contracted out to ecological consultants with supervision from the design team. Environmental surveys should be carried out prior, during and after the construction to determine whether the mitigation was successful. This will not only help the in the evaluation of the project, but can also help with the environmental management of future projects.

The design of the project under the guidance of PPS9 should try to either maintain, enhance or restore features specific to the site. This may require additional design outside the remit of the original design specification.

4.1 How environmental features can be integrated into design when working within SSSIs

When working in SSSIs it is encouraged to enhance the site where possible through environmentally considerate design. This can be achieved by involving the environment team in the design process as much as possible. By utilizing the environmental teams expertise alterations can be made which will improve the condition of the SSSI. Ideally the enhancements could be incorporated into the design with no extra cost.

Examples of enhancements incorporated into projects include green roof designs, habitat creation for nesting birds in building design, roadside habitat construction and creating roosting opportunities for bats (e.g. open soffits and bargeboards to provide bat boxes).

E.g. Buckenham Marshes - Material was needed to create a new floodwall, but instead of creating a new soke dyke scrapes where created instead. These have provided better habitat for winter wildfowl and have helped to minimize the loss of fen meadow elsewhere in the site.

5 CONTRACTORS ROLES

The contractor of the project will also be heavily involved with the environmental issues related to works in SSSIs. The contractor's roles will differ to the design engineer as obviously they will be more involved with the delivery of the design than the actual details of the design. The contractors will have to work closely with their environmental team to make sure all legislation regarding planning permission and working within SSSIs is adhered to. It is also important to understand that this is an ongoing process throughout the project. As with any project there will be events which will cause changes in working methods. Consequently these events should initiate a procedure where the methods are re-appraised to see how they will affect the environment.

5.1 Waste Management

When working within SSSIs there is always the risk of contamination of the site and its special features. This can be prevented through the implementation of effective site and waste management.

Contamination prevention needs to start with the identification of what is classed as waste and the inherent dangers it posses to the site. Waste can be identified in the European Waste Catalogues (EWCs) which help to classify the waste. The EWC classification of waste begins with discovering where the waste has originated. It then goes onto to see if the waste should be considered as Absolute (Hazardous), Mirror (Could be hazardous or non-hazardous) or Non-Hazardous. The outcome of the classification will determine what should be done to dispose of the waste.

It is key for contractors to know how to store and transfer waste within and from site respectively. The formation of a Site Waste Management Plan, which is now a legal requirement, will drastically help to reduce the risk contamination on site. The formation of a detailed plan on how to deal with waste before starting works allows all parties to the project to know there roles before it is too late. The protection of the site should not end with the SWMP but should continue into the procurement stage by documenting all waste management activities.

E.g. On certain sites - e.g. bogs, mires, etc. It is important to be careful when using lime rich materials (e.g. crushed concrete) as they can alter the delicate pH of the soils. This can drastically affect the biodiversity of a SSSI by killing flora and ultimately affecting the fauna.

Engineers should be aware of the key legislation surrounding waste management to be best prepared when working in SSSIs. The Environment Agency provides helpful advice and support regarding legislation and effective site waste management.

5.2 Environmental Mitigation

It is very likely when working within SSSIs that mitigation will have to be carried out to protect the special interest of the site. The mitigation may be devised by environmental team, but as a civil engineer it is important to understand the details of this process as it can affect the progress of the project significantly. The mitigation will have to be programmed, so it is important to understand how this is going to affect the programming of the actual construction. This is why good communication between the contractor, design team and environmental scientists is paramount to the success of working in SSSIs.

5.3 Permits for carrying out activities

Some activities which need to be carried out on site will need permits to do so. These are normally relating to activities potentially damaging to the special interest set out in notification of the site. For example permits to dig and permits to abstract water are used to protect habitats on some sites. These permits will normally be signed off by the environmental scientist and the site engineer. Permits to import materials are used to guard against the introduction of contaminants to a site e.g. Japanese Knotweed and Giant Hogweed. These contaminating weeds are listed in schedule 9 of the Wildlife and Countryside Act 1981.

6 CONCLUSION

The most important point to emphasise about civil engineering in SSSIs is the need for effective communication between all parties involved with the contract, but also with the SSSI stakeholders. Through regular correspondence with all parties the probability of producing a design that will benefit the SSSI, instead of damaging it, will massively improve. The key source of guidance for any civil engineer working in a SSSI or any other environmentally sensitive area is their environment team. They will be able to provide details on environment legislation, design enhancements and much more relating to successful completion of the project.

Another point to stress is that it is not just the designers who should be forward thinking, but the contractors need to be too. They need to fully understand all the regulations relating to the site, not only ones regarding SSSI designation but also individual species protection and suck like. Furthermore they need to know how their working methods will affect the site, so they can minimize any impacts they have recognised could be damaging.

In the future it seems there will definitely be a move towards more environmentally responsible design not only in ESA, SSSIs, etc, but outside. This is already shown in PPS9 where local authorities have been encouraged to promote biodiversity not just in environmentally designated areas, but outside as well. With more and more urban areas spreading out into the green field areas it is inevitable that more and more SSSIs are going to be affected by civil engineering. However the question is will this be bad thing or way that civil engineering industry can promote itself as a fore runner in environmentally friendly design and construction.

References