Great crested newt licensing for major infrastructure projects: shifting the paradigm

Introduction

Detailed surveys undertaken between 2012 and 2016 identified the presence (or potential presence) of great crested newts Triturus cristatus (GCN) throughout the High Speed Two (HS20 Phase One (London to West Midlands) route (Figure 1 shows an example of GCN presence within Sector N1, Southam to Bickenhill). The surveys identified 105 GCN meta-populations (a group of connected and interacting populations) within 250m of the route; meta-populations are referred to in Figure 1 as AMPs (assumed meta-populations).

GCN are legally protected by the Conservation of Habitats and Species Regulations 2017 (as amended)^[1] and the Wildlife and Countryside Act 1981 (as amended)^[2] and undertaking any actions, which would otherwise be illegal, require licensing by the relevant licensing body Natural England (NE). NE only licence for specific purposes as set out in Regulation 55 of the Conservation of Habitats and Species Regulations 2017^[3] and when the licensing tests (commonly referred to as the ‘three tests’) are satisfied. Due to the potential impacts to GCN and their associated habitats, the Phase One works required a mitigation licence to legally undertake the works.

Options for licensing

The standard GCN licensing approach requires that each work site has a licence. The applications, including all the proposed mitigation and compensation measures to legally allow the work to proceed, would be prepared for each work site and submitted to NE.

A standard licence takes several weeks to compile and approximately 30 working days for NE to review. In early discussions with NE it was determined that, due to the number of work sites (defined as works interacting with known AMPs) along the route, a standard licensing approach would be time-consuming, costly and difficult for NE to resource. For example, NE issued 223 great crested newt mitigation licences for England in 2019, with HS2 Ltd (HS2) GCN Method Statements totalling 47 in that year; if submitted to NE via the standard licensing process, this would have resulted in a 21% increase in workload for the NE licensing team.

In addition to the standard licence, at the time that the licence options were being assessed, NE were developing the District Level Licensing (DLL) approach for GCN. At the time of writing, DLL are available in Kent and Medway; Cheshire East, Cheshire West and Chester; Essex; Shropshire; Swindon and Wiltshire; Somerset; Greater Manchester and North Somerset and South Gloucestershire. The DLL approach was not an option for HS2 Phase One due to the locations affected and as the project is permitted by a hybrid Bill rather than subject to a Town and Country Planning Act consent.

A fresh approach – The organisational licence

Organisational licensing^[4] is an approach offered by NE for routine activities affecting protected species, where the organisation has consistently met the conditions of other types of wildlife licences in the past. However, an organisational licence had not previously been issued to a development organisation, such as HS2, covering such a wide geographical area and where the impacts, mitigation and compensation measures required were so extensive.

Working together, HS2 and NE developed the existing organisational licence format to be fit-for-purpose for a major infrastructure project. This involved considering GCN at a landscape-scale, rather than an individual population, or meta-population, approach typical of a standard licence. This approach resulted in the production of two important documents that supported the licence application: 1) Great Crested Newt: Populations and Habitats Assessment, Phase One Route Wide; and 2) Great Crested Newt Habitat Management, Maintenance and Population Monitoring Plan (HMMPMP)^[5].

The Populations and Habitats Assessment reviewed and assessed GCN populations and habitat at the route-wide scale in order to inform the Favourable Conservation Status legal test. The Conservation Status is considered ‘favourable’ when the population and range of the species is healthy and will be maintained in the long-term^[6]. The HMMPMP adopted a habitat quality approach as the basis for determining success of any GCN mitigation. The commitments made in the HMMPMP are a major step-change from the standard approach of determining success, which has historically always been focussed on numbers of GCN; the disadvantage of the standard approach being that without a long-term, strategic approach to the population and to their habitat and landscape management, GCN populations would always remain at risk from habitat change and stochastic events.

The licence application for HS2 was developed as a novel approach to an organisational licence and in March 2017 the licence was issued by NE to HS2.

This issued licence provides the most efficient approach for NE, as it is a single project licence that is renewed every two years and requires a reduced resource to manage compared to a series of standard licences, as the licensee is responsible for reviewing and approving ongoing deliverables, such as Method Statements. The resource input and responsibilities for HS2 (as the licensee) are significantly greater than for the standard licence approach, however, due to having a dedicated ecological resource, Method Statements can be reviewed within two weeks. Therefore, using an organisational licence has substituted the reviewing time from 30 working days (for an individual licence) to 10 working days for a Method Statement (Figure 2) and will have saved approximately 2,000 working days over the lifetime of the HS2 organisational licence.

Managing the organisational licence

The licensee (HS2) has the day-to-day management of the licence and point of contact being the responsibility of an Appointed Person (Phase One Ecology Lead) (Figure 3). The Appointed Person can delegate certain responsibilities to Authorised Persons within HS2 (the Ecology Managers). There are currently three Ecology Managers within HS2 all of whom are approved as Authorised Persons. The roles of the Appointed Person and Authorised Persons are novel and nuanced as they are delivery focused (being employed by the licensee and working very closely with Contractors who are undertaking the GCN impact assessments and developing and implementing mitigation), but also involve providing a regulatory function by approving the Contractors Method Statements and monitoring compliance of their implementation.

Implementation of the mitigation and compensation measures is the responsibility of the Accredited Agents (AA), who are HS2 Contractors ecologists approved to work under the licence by the Authorised Persons. In 2017 there were 49 successful applications for AA under the HS2 organisational licence and this has been increasing each year where there are currently 169 approved (June 2020) as AA (Figure 4).

Responsibilities for delivery of the organisational licence was, at commencement, identified with three main steps:

• HS2 to approve Contractors Method Statements setting out the detailed design of impacts and mitigation for each population;
• Contractors undertake the works in accordance with an HS2-approved detailed design Method Statement; and
• HS2 to ensure compliance with the licence conditions.

These proved to be large individual steps, with the implementation of each requiring development and refinement, as significant resource demands were realised (see Figure 5). There were no existing similar processes in place at HS2 and all licence support and monitoring documentation and processes required developing and implementing.

Each step was reviewed, and relevant processes, guidance and instructions put in place to ensure effective and efficient delivery. This involved developing:

• A compliance process and recording system.
• A bespoke Method Statement template.
• Guidance on the use of the new Defra Licensing Policies.
• An innovative GIS-based decision-making tool; and
• a process for effective engagement between all stakeholders.

Compliance recording

Monitoring compliance at all stages of licence delivery is a core requirement for regulator audit purposes. This has been captured through the development of the following:

• Compliance checklist: this is the main compliance recording document for recording the details of Authorised Persons; AA compliance with required minimum experience; that Method Statements provide all information required to comply with the licence and supporting documents; and evidence of approval (or rejection) of a submitted Method Statement. The GCN compliance checklist is reviewed and revised, where improvements are identified, to ensure it meets its intended function. For example, new fields provided to capture where compliance checks are needed.
• On-boarding: AA are invited to an on-boarding session organised and led by the Appointed Person and also attended by NE. The on-boarding involves a half-day session with presentations and Q&As with the aim of:
  • Providing clarity on roles and responsibilities of all those working under the licence.
  • Engendering a sense of shared responsibility for delivery of the mitigation under the licence.
  • Promoting a collaborative and integrated approach.
  • Stressing the need to consider a route-wide approach to mitigation and licence delivery.
  • Providing guidance on the application of the Defra Licensing Policies.
  • Providing clarity on compliance requirements and processes; and
  • striving to ensure clear, consistent and comprehensive communication and engagement between all those involved.
• Assurance Plan: detailing how HS2, as the licensee, will manage its assurance responsibilities necessary for legal compliance purposes and to provide confidence, and engender a high level of trust, with NE and other stakeholders. The Assurance Plan provides criteria to identify Method Statements where impacts of works have been assessed as high, where Licensing Policies have been used, where there are increased stakeholder interests and where there are raised concerns of non-compliance. From this HS2 are able to identify where targeted, focussed or random compliance checks need to be undertaken. These can either be site based, virtual or desk based. HS2’s assurance involves checking the following information:
  • AA possession of their notification letter from HS2.
  • The approved Method Statement is available on site and in the correct version.
  • Evidence that the AA has supervised the works on site.
  • The works undertaken accord with the approved Method Statement.
  • Evidence of site inductions / toolbox talks.
  • Evidence of suitability / maturation of receptor site terrestrial and / or aquatic habitat.

Where non-compliance issues are identified, they are raised with the AA and Contractor, and shared with NE as appropriate.

Method statements

The organisational licence application did not contain the level of detail that would normally be expected at assessment stage for individual licence applications, due to the absence of scheme and impact detailed design at the time of application. Therefore, the licence conditions require a Method Statement (MS) to be produced per affected AMP, that clearly sets out impacts and mitigation and compensation proposals. Each MS is approved by an Ecology Manager in their role as Authorised Person.

A MS template was developed, with guidance on the level of information required, at the commencement of the licence to provide a consistent approach. The template was a 15-page Word document for AA to input all the relevant impact and mitigation information to submit to HS2 for approval.

Following feedback and lessons learnt from use of the template, improvements were made to try to provide greater clarity on the level of information required and to make the MS more concise. It was found that despite, what were considered, clear instructions in the template, the completed MS were consistently overly long, difficult to read and follow and, therefore, difficult to approve without additional iterations. Using feedback from MS authors it was identified that due to: 1) previous experience and expectations with standard licences; and 2) a risk-averse approach due to the very high profile of the project and the licence (with the regulator, general public and the industry as a whole), that they felt unable to reduce the content. As a consequence, most MS involved several iterations before being suitable for approval, putting significant pressure on the programmed works, as well as on those reviewing and approving the MS.

Key template issues:

• Time taken to write and review the document. The MS could be 40-80 pages long and take up to six hours to review.
• Duplicate information in each completed MS.
• Each author has their own writing style so each MS could vary considerably in quality and content.
• No standardisation in the plans provided; and
• many reviews required prior to approval (Figure 6), with 1% of submitted MS going through 11 iterations.

Figure 6 illustrates that with the Word MS template more than 50% of submitted MS took more than two versions to get approval and over 20% took five or more versions to get approval.

Due to the issues encountered with the MS template it was decided to take a novel approach and re-produce the template in a format, whereby: 1) most of the decision-making content was taken from the author (to avoid wordy explanations and unnecessary justifications); and 2) ensuring that the content was only that required for compliance purposes (to avoid the inclusion of unnecessary additional information or data). Workshop sessions with the Appointed Person, Authorised Persons (who work directly with ecologists and AA) and senior HS2 environment team members (who work directly with Contractor project management teams), resulted in an improved MS template in Excel spreadsheet format.

The revised template approach asks licence compliance questions and provides drop-down menu responses wherever possible, and provides different sheets within the template for different compliance requirements, as follows:

• Site information
• Survey baseline
• Impact assessment
• Mitigation
• Habitat creation
• Site management
• Monitoring; and
• Work schedule and plans.

The Excel template is tailored to meet the specific need of the licensee, to provide only the information required to enable compliance with the licence. For example, a standard licence would require detailed information on the maintenance and monitoring of the mitigation site and GCN population, which is captured in the Excel template by providing all relevant options from the HMMPMP in drop-down menus covering up to 10 years post-impact monitoring. Early success of the Excel MS template is very positive:

• review times are on average 2 hours, providing approximately a 33% reduction in reviewing time; and
• 100% of MS have been approved at either version one or two.

Licensing policies

Defra introduced four innovative new Licensing Policies (LPs) for European Protected Species in December 2016; shortly before HS2 applied for and were granted the organisational licence.

A summary of the LPs is provided in Figure 7 below.

The LPs encourage thinking on a wider, landscape scale, and thereby channelling investment into bigger, better, more joined-up habitat for wildlife (The Lawton Report)^[7]. The LPs lend themselves very well to a landscape-scale project such as HS2, and it is a requirement within the MS template to evidence that they have been considered. Where the application of the LPs is being considered engagement with NE is required to ensure all relevant issues are considered and for NE’s own records.

As the LPs are a relatively new approach to GCN mitigation, the AA on-boarding sessions include a dedicated briefing on LPs, which covers the rationale for the LPs, an overview of each LP in turn, and examples / case studies.

Despite the support provided, use of the LPs was hesitant, with reliance on the traditional approaches that ecologists are familiar with. Therefore, to improve the uptake of LPs, NE and HS2 developed a guidance note on the implementation of LP1 and are developing a guidance note on LP2 (LP1, 2 and 4 are most relevant to the HS2 Project, and LP1 and 2 are the least understood by ecologists). At the time of writing, LPs have been applied within 24 MS (LP1 used 12 times and LP4 used 12 times), and uptake in the use of LPs increased between 2017/18 and 2019/20 (LP1 use increased from five to seven, and LP4 use increased from zero to 12).

Decision-making tool

Any proposals for the use of LPs must be proposed, agreed and reported within the organisational licence conditions, however, use of LPs is in its infancy and so there are few case studies and no existing guidance to help guide ecologists. Therefore, a geospatial decision-making tool was designed to provide a level of guidance and to ensure consistency of approach across Phase One. The decision-making tool is designed to provide:

• Guidance on a Phase One-wide method for considering suitability of individual AMPs for LP use.
• Guidance on a Phase One-wide process for proposing and agreeing use of LPs by Contractors within the execution of the organisational licence; and
• an analysis of likely opportunities for LP use using currently available data.

The GCN mitigation approach is based on the principle of ensuring sufficient suitable habitat available to each of the GCN meta-populations following construction, so not to affect their Favourable Conservation Status.

To provide an analysis of likely suitability of LP use using Phase One-wide data, the decision-making tool uses existing habitat data and available mitigation and landscape planting data to provide ‘before’ and ‘after’ ranges and extents of Suitable Terrestrial Habitat (STH) and ponds. This enables the calculation of change in availability within each AMP and within a migration zone outside each AMP. This data is also used for a calculation of connectivity between AMPs (before and after construction).

The analysis of likely opportunities is calculated using decision trees (Figure 8) and identifies the potential of each AMP for use of LPs 1 and 2 as a Red / Amber / Green (RAG) rating. An opportunities mapping analysis is based upon the limited design information at that time and showed that opportunities to use LPs are likely in 59 AMPs (amber rating) and highly likely in six (green rating) with 36 AMPs unlikely to have opportunities to use LPs (red rating).

At the time of writing, there is no feedback on the usefulness and effectiveness of the decision-making tool or the need for consideration of revisions, but these will be addressed as required once there is sufficient evidence base from discussions with the practitioners. However, such a tool is a significant step-change in the application of the LPs, with potential for wider application to ecologists nationally.

Engagement

HS2 has on-boarded AA (approximately annually) to ensure that the responsibilities under the organisational licence were clear. The most recent on-boarding session was recorded for the benefit of those who could not attend in person and made available for all AA. Sessions were also arranged to explain the Excel MS template, the fields within it and how to populate it.

In order to achieve timely and effective mitigation on site (for which an approved MS is required), fortnightly Ecology Consents Meetings are available for the AA, with the Authorised Persons and NE, to discuss issues around data, assessment and mitigation prior to formal submission of the MS. Typical items for discussion are potential application of an LP, discussing a novel approach, or a particularly complex issue for which they might seek approval from NE or the Authorised Person.

The Authorised Persons have initiated weekly meetings where AA are encouraged to discuss site specific MS prior to formal submission to HS2 (via the document control system). This engagement provides an opportunity to explain any issues to the Authorised Person and to refine the MS content to increase the likelihood of approval at first submission.

Where input is required for approaches not covered in the organisational licence, the AA submits a Task Request Form direct to NE to seek advice or approval via email.

Recommendations for future HS2 Phases and other projects

The HS2 organisational licence approach has demonstrable benefits, in terms of cost and time savings and the positive development of processes and documentation, to advance its implementation and in securing the Favourable Conservation Status of GCN. Therefore, a similar approach could be applicable for other infrastructure projects, including Phase Two of HS2, other rail projects, major linear utility works and highways schemes.

However, the following points would need further consideration:

• The in-house capabilities of each organisation will differ and may require further training to ensure that there are suitable Appointed Person and Authorised Persons to manage the delivery of the licence.
• Providing a suitably high level of survey coverage prior to licence submission may not be possible for some linear schemes; and
• it may not be possible to accommodate all mitigation within the scheme boundary and, therefore, off-site mitigation may be more appropriate (including consideration of DLL).

Assuming the above are not prohibitive, the following measures are recommended for successful implementation of an organisational GCN licence:

• Provision at the outset of a clear process.
• Ensuring required documentation is all in place and designed specifically around delivery of the licence mitigation.
• On-boarding of all AA is undertaken as soon as possible and prior to any Method Statements being written, to ensure that the licence specifics and the method of delivery are fully understood.
• A simple, focused MS template.
• Early engagement sessions between licensee, NE and AA to be undertaken to discuss the MS prior to (or during) them being written; and
• where it is an expectation that LPs could provide a significant part of the mitigation approach, ensure that all available tools are used to aid the decision-making process and that AA fully understand how to implement them successfully.

A future improvement for the Excel MS template would be to include a GIS schema to enable the site boundary and all proposed works, including mitigation, to be included in a GIS format, which would reduce the number of documents and plans to be reviewed.

Conclusion

The specific and, quite possibly, unique circumstances of delivering HS2 has necessitated the development of novel approaches and writing (or re-writing) the standards. Ecological mitigation and compensation are central to the success of HS2 and, through the development and implementation of the Phase One GCN organisational licence, this setting of new standards and a new paradigm for established processes is clearly demonstrable.

The developed approach has reduced the time and cost implications involved in licensing development works for HS2 Phase One and put in place a process to ensure that delivering Favourable Conservation Status for GCN and compliance with the licence conditions can be implemented successfully.

Key to effective implementation of such an organisational licence are the development of processes for:

• Early engagement between stakeholders.
• Appropriate compliance and assurance measures and recording of those measures.
• Understanding the requirement for bespoke deliverables and putting in place processes and documentation to manage them effectively.
• An impact assessment and mitigation approach focusing on Favourable Conservation Status and ongoing commitments to habitat management; and
• allowance for an iterative approach to ensure lessons learnt can be captured and applied to realise continuing improvements.

The measures and processes that have been established are providing successful management of a complex organisational licence and its delivery, with obvious applications to the other phases of HS2. In addition, these measures and processes can have further application to other development projects, particularly those involving linear infrastructure. Transferability of the developed measures for HS2’s organisational licence may not be wholesale for other projects and every scheme must consider its own specific circumstances when considering a GCN organisational licence and how it will be managed and delivered.

Acknowledgements

Rebecca Lee, Senior Advisor – HS2 Protected Species Licensing, Natural England.

References

[1] The Conservation of Habitats and Species Regulations 2017.

[2] Wildlife and Countryside Act 1981.

[3] The Conservation of Habitats and Species Regulations 2017.

[4] Organisational licence for routine work affecting protected species.

[5] HS2 Ltd (2017) Phase One: Great Crested Newt Habitat Management, Maintenance and Population Monitoring Plan, document reference HS2-HS2-EV-PLN-000-000010.

[6] Natural England (2013) WML-G12 European Protected Species: Mitigation Licensing – How to get a licence.

[7] Lawton, J.H., Brotherton, P.N.M., Brown, V.K., Elphick, C., Fitter, A.H., Forshaw, J., Haddow, R.W., Hilborne, S., Leafe, R.N., Mace, G.M., Southgate, M.P., Sutherland, W.J., Tew, T.E., Varley, J., & Wynne, G.R. (2010) Making Space for Nature: a review of England’s wildlife sites and ecological network. Report to Defra.