In the Matter of the Highways Act 1980 and the Acquisition of Land Act 1981

PUBLIC INQUIRY

IN THE MATTER OF THE HIGHWAYS ACT 1980 AND THE ACQUISITION OF LAND ACT 1981

AND IN THE MATTER OF:

THE M4 MOTORWAY (JUNCTION 23 (EAST OF MAGOR) TO WEST OF JUNCTION 29 (CASTLETON) AND CONNECTING ROADS) AND THE M48 MOTORWAY (JUNCTION 23 (EAST OF MAGOR) CONNECTING ROAD) AND THE LONDON TO FISHGUARD TRUNK ROAD (EAST OF MAGOR TO CASTLETON)) COMPULSORY PURCHASE ORDER 201-

-and-

THE M4 MOTORWAY (JUNCTION 23 (EAST OF MAGOR) TO WEST OF JUNCTION 29 (CASTLETON) AND CONNECTING ROADS) AND THE M48 MOTORWAY (JUNCTION 23 (EAST OF MAGOR) CONNECTING ROAD) SCHEME 201-

-and-

THE M4 MOTORWAY (WEST OF MAGOR TO EAST OF CASTLETON) AND THE A48(M) MOTORWAY (WEST OF CASTLETON TO ST MELLONS) (VARIATION OF VARIOUS SCHEMES) SCHEME 201-

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THE LONDON TO FISHGUARD TRUNK ROAD (EAST OF MAGOR TO CASTLETON) ORDER 201-

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PROOF OF EVIDENCE ON DORMICE

DR ELISABETH HALLIWELL

FOR THE NATURAL RESOURCES BODY FOR WALES

Table of Contents

Introduction
Background
Species and site context
Issues
Alternatives
Conclusion
References

INTRODUCTION
I am Dr Elisabeth Clare Halliwell. I am the Mammal Ecologist (Farmland and Woodland Mammals) in the Evidence Analysis Group of the Natural Resources Body for Wales (NRW). I am based at NRW’s office in Bangor. I have held this position since April 2013. Prior to that, I was the Mammal Ecologist for the Countryside Council for Wales from March 2001.
As Mammal Ecologist (Farmland and Woodland Mammals) I undertake and commission mammalian research and survey projects, provide scientific advice and guidance within NRW and to external partners, and represent NRW at relevant Wales and UK fora. I am responsible for mammalian conservation issues in Wales and I provide specialist advice to NRW operations staff on dormouse conservation in Wales. This includes woodland management for dormice, commenting on and contributing to high profile casework that affects dormice, advising on licensing issues and developing mitigation guidelines. I provide NRW input to UK guidance on dormice including interpretation of legislation as it affects dormice. I represent NRW on the UK Dormouse Steering Group. I have over 15 years’ experience giving specialist advice on dormouse conservation in Wales.
Prior to working for the Countryside Council for Wales I worked for the Wildlife Trusts UK office as a Local Records Support Officer (2.5 years), before which I undertook postdoctoral research at Royal Holloway University of London on pine marten Martes martes and hazel dormouse Muscardinus avellanarius (1 year). I have a BSc honours degree in Biology from the University of Southampton and a PhD for research into pine marten and red squirrel Sciurus vulgaris interactions from the University of Aberdeen.
This proof has been prepared on the basis of the Welsh Government (WG)’s evidence as presented in the original Environmental Statement (ES) published in March 2016, the first Environmental Statement Supplement (ESS) published in September 2016 and the second ESS published in December 2016. Reference is made particularly to Appendix SS10.4 of the second ESS, the ‘Draft Hazel Dormouse Mitigation Strategy’ (“the draft MS”, SS10.4). I have also had the opportunity to consider the Proof of Evidence of Jon Davies[1] (“the dormouse proof”, [WG core document 1.19.1 and appendices]) and where appropriate have provided NRW’s response to the relevant points.
BACKGROUND
Relevant legislation and guidance
The hazel dormouse is a European protected species (EPS) under European Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (as amended) (‘the Habitats Directive’) [WG 3.1.21]. The main aim of the Habitats Directive is to ‘promote the maintenance of biodiversity’ and Member States are required to take measures ‘to ensure the restoration or maintenance of natural habitats and species of Community interest at a favourable conservation status’ (‘FCS’). Member States are also required to introduce measures to ensure protection of those habitats and species. The hazel dormouse is also listed on Schedule 5 of the Wildlife and Countryside Act 1981 (as amended).
The Habitats Directive is transposed into UK law by the Conservation of Habitats and Species Regulations 2010 (as amended) (‘the Habitats Regulations’) [WG 3.1.22]. The dormouse is a European protected species by regulation 40 of and Schedule 2 to the Habitats Regulations.
Regulation 41 of the Habitats Regulations states:

(1) A person who—

(a) deliberately captures, injures or kills any wild animal of a European protected species,

(b) deliberately disturbs wild animals of any such species,

(c) deliberately takes or destroys the eggs of such an animal, or

(d) damages or destroys a breeding site or resting place of such an animal,

is guilty of an offence.

(2) For the purposes of paragraph (1)(b), disturbance of animals includes in particular any disturbance which is likely—

(a) to impair their ability—

(i) to survive, to breed or reproduce, or to rear or nurture their young, or

(ii) in the case of animals of a hibernating or migratory species, to hibernate or migrate; or

(b) to affect significantly the local distribution or abundance of the species to which they belong.

2.5.Under regulation 53 of the Habitats Regulations, a derogation from the above provisions of regulation 41 may be granted for specific purposes and subject to criteria stated in regulation 53(9):

‘(9) The relevant licensing body must not grant a licence under this regulation unless they are satisfied—

(a) that there is no satisfactory alternative; and

(b) that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.’

2.6.NRW is the relevant licensing body in Wales for the purposes of regulation 53.

2.7.With regard to FCS, Article 1(i) of the Habitats Directive provides:

‘(i) conservation status of a species means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations within the territory referred to in Article 2;

The conservation status will be taken as ‘favourable’ when:

— population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, and

— the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and

— there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis[.]’

2.8.Thus, for European protected species, conservation status has four components:[2]

population;
range;
habitat; and,
future prospects.

Section 6 of the Environment (Wales) Act 2016 (‘the 2016 Act’) [WG 3.1.16], places a ‘biodiversity and resilience of ecosystems duty’ on public authorities exercising functions in Wales. Under section 6 of the 2016 Act, a public authority ‘must seek to maintain and enhance biodiversity in the exercise of functions in relation to Wales, and in so doing promote the resilience of ecosystems, so far as consistent with the proper exercise of those functions’.
In the 2016 Act, “biodiversity” is defined as ‘…the diversity of living organisms, whether at the genetic, species or ecosystem level’.[3] The 2016 Act specifies certain matters relating to the “resilience of ecosystems” which public authorities must take into account in complying with its duty under section 6:

‘… a public authority must take account of the resilience of ecosystems, in particular the following aspects—

(a) diversity between and within ecosystems;

(b) the connections between and within ecosystems;

(d) the condition of ecosystems (including their structure and functioning);

(e) the adaptability of ecosystems.’

2.11.In the exercise of their functions, the Welsh Ministers have a further, separate duty, under section 7 of the 2016 Act, to ‘take all reasonable steps to maintain and enhance the living organisms and types of habitat included in any list published under this section’.

2.12.Dormouse is a species listed on the interim section 7 (species) list [NRW 2.10].[4]

2.13.Planning Policy Wales (9th Ed. Nov 2016) [WG 5.1.12] provides the national planning policy context for the consideration of protected species in the planning system in Wales.

2.14.Section 5.5.11 of PPW states:

‘The presence of a species protected under European or UK legislation is a material consideration when a local planning authority is considering a development proposal which, if carried out, would be likely to result in disturbance or harm to the species or its habitat’

2.15.Section 5.5.12 of PPW states that developments are always subject to the legislation covering EPS, regardless of whether or not they are within a designated site, iterates the prerequisites for a derogation where development would contravene the protection afforded to EPS, and states:

‘[…]To avoid developments with planning permission subsequently not being granted derogations in relation to European protected species, planning authorities should take the above three requirements for derogation into account when considering development proposals where a European protected species is present’.

2.16.Technical Advice Note 5: Nature Conservation and Planning (2009) (‘TAN 5’) [WG 11.2.14] , para 6.2.2 states:

‘the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before the planning permission is granted, otherwise all relevant material considerations may not have been addressed in making the decision. It is considered best practice that such a survey is carried out before planning application is submitted. Planning permission should not be granted subject to a condition that protected species are carried out and, in the event that protected species are found to be present, mitigation measures are submitted for approval. However, bearing in mind the delay and cost that may be involved, developers should not be required to undertake surveys for protected species unless there is a reasonable likelihood of them being present’..

2.17.TAN 5 sets out guidance in respect of EPS and, at paragraph 6.3.7 states that:

‘it is clearly essential that planning permission is not granted without the planning authority having satisfied itself that the proposed development either would not impact adversely on any European protected species on the site or that, in its opinion, all three tests for the eventual grant of a regulation 44 licence[5] are likely to be satisfied. To do otherwise would be to risk breaching the requirements of the Habitats Directive. It would also present the very real danger that the developer of the site would be unable to make practical use of the planning permission which had been granted, because no regulation 44 licence would be forthcoming’.

2.18.Section 3 of the Well-being of Future Generations (Wales) Act 2015 (‘the 2015 Act’) [WG 3.1.18] creates a ‘well-being duty’ by which public bodies, including the Welsh Ministers, ‘… must carry out sustainable development’.[6] The 2015 Act provides that this must include setting and publishing “well-being objectives” designed to maximise its contribution to achieving each of the well-being goals and ‘taking all reasonable steps (in exercising its functions) to meet those objectives’.[7]

2.19.In the 2015 Act, “sustainable development” means

‘the process of improving the economic, social, environmental and cultural well-being of Wales by taking action, in accordance with the sustainable development principle […] aimed at achieving the well-being goals’.[8]

2.20.Section 4 of the 2015 Act sets out “well-being goals” amongst which is ‘A resilient Wales’, which is defined in the 2015 Act as:

‘A nation which maintains and enhances a biodiverse natural environment with healthy functioning ecosystems that support social, economic and ecological resilience and the capacity to adapt to change (for example climate change).’

2.21.In November 2016, the Welsh Ministers published their Well-being Objectives [WG Core Document, 5.1.11].

2.22.Guidance on best practice techniques for dormouse sites affected by development is given in the Dormouse Conservation Handbook.[9]

2.23.The Design Manual for Roads and Bridges (DMRB)[10] [NRW 4.3] contains a section giving advice in relation to dormice. This document is now 16 years old and much of the detail is now outmoded. However, reference is made to the DMRB where it provides clear and useful enunciation of principle.

2.24.Introduction to dormouse ecology

2.25.The dormouse is a small nocturnal mammal traditionally considered to be most closely associated with ancient woodland, particularly hazel (Corylus avellana) coppice. More recently, it has been recognised that dormouse populations are also found in a number of other habitats such as hedgerows, scrub and some conifer woodlands.9

2.26.Dormice have a specialised diet, feeding primarily on flowers, insects, fruit and nuts9, with many of these food items only available for a limited period of time. This, together with the fact that dormice are mainly arboreal and avoid travelling on the ground, means that they require a well-structured habitat with a diverse a range of plant species from which to forage throughout their active season. Dormice will enter a torpid state in poor weather conditions and hibernate on the ground during winter. Survival during hibernation depends on individuals gaining sufficient weight in autumn.

2.27.Dormice are naturally found in low densities, particularly when compared with other small mammals such as wood mice (Apodemus sylvaticus) and bank voles (Myodes glareolus).[11] Female dormice produce one or two litters of four to five young per year (compared to up to six litters per year for wood mice). These low densities and slow breeding rates, make dormouse populations vulnerable to adverse events such as disturbance, habitat loss and poor weather conditions as numbers cannot rapidly recover when conditions improve[12].

2.28.Dormice are widely distributed across Wales, and are found in all counties with the exception of Anglesey. However dormice have a patchy distribution (see Figure 1, below) and are not considered to be ‘common’ anywhere in Wales.[13]

2.29.Dormouse populations in England and Wales have been undergoing substantial decline in recent years. Analysis of data from the National Dormouse Monitoring Programme has shown a significant decline since the mid-1990s, with counts of dormice falling by 38% since 2000, a rate of decline equivalent to a fall of 55% over 25 years.13

2.30.Factors considered to be causing the decline in dormouse populations include changes in woodland and hedgerow management leading to a poorer habitat quality, loss and fragmentation of woodlands, loss of hedgerows and climate change. [14]

2.31.Article 17 of the Habitats Directive requires Member States to report on the implementation of the Directive every six years. The third UK report in 2013[15] concluded that the status of the dormouse population was ‘bad – declining’, future prospects were ‘inadequate’ and the overall assessment of conservation status was ‘bad – declining’.

Figure 1 Dormouse distribution in Wales (1990-2016) based on National Biodiversity Network. Records at 2km resolution downloaded on 26/09/16.

2.32.There is therefore significant and justified concern regarding the status of the dormouse in Wales with conservation action, originally under the auspices of the UK Biodiversity Action Plan, working to improve the management of woodlands and hedgerows for the benefit of dormice and to reduce the impact of fragmentation.

SPECIES AND SITE CONTEXT
In summary, the ES and the draft MS report that, following surveys by the WG’s ecological consultants, dormice have been found at three locations to be affected by the construction of the proposed M4 Corridor Around Newport (“the scheme”):
around junction 29 at Castleton and New Park Farm;
at the eastern end around north and east of Magor; and,
south of Tata Steel [ES, 10.4.242; WG 1.19.1, 3.2.4-3.2.6].
It is proposed, as part of the scheme, that vegetation occupied by dormice will be removed in all of the above locations. It is further proposed that dormice in the Castleton/New Park Farm area [SS10.4, D.1.18], the location with the largest habitat loss, will be trapped and removed.
The DMRB describes the dormouse as an ‘edge’ species requiring a diverse, well-developed shrub layer[16]. Such habitat is present on roadside verges and, therefore, verges may contribute significantly to supporting local populations and provide an important corridor connecting to other areas of habitat.
Dormice were found by WG ecologists during the widening of the M4 in 2007 between junctions 29 and 32 to the west of Castleton [SS10.4, B.1.2]. High densities of dormice have been found in roadside habitats in other locations such as the M2 widening in Kent[17] and the A449 road improvements in the county of Newport.[18]
The potential scale of the impact of the scheme in respect of dormice is larger than any other development scheme previously licensed in Wales. In so far as I am aware, no other scheme in the UK has required the removal of such a large area of dormouse habitat, proposed to translocate such a large number of dormice or proposed to hold dormice in captivity prior to release into an alternative receptor site.
ISSUES
The ES states that the scheme would result in the removal of around 36 hectares (ha) of woodland in Castleton and Magor [ES 10.7.175, although no information is provided on the habitat loss at Tata Steel]. The draft MS gives the area of woodland and scrub habitat used by dormice to be removed as 26.41 ha [SS10.4 D.2.4] together with 5.5 km of hedgerow [SS10.4 Table 5]. Table 1 of the dormouse proof gives different figures and identifies a total of 34.33 ha of woodland and scrub and 5.4 km of hedgerow. However, Table 1 does not include the 6.25 ha of habitat at the M4/M48 junction identified in D.2.4.5 of the draft MS. By adding this habitat to the areas given in Table 1 it would appear that the total dormouse habitat loss will comprise 40.58 ha of woodland and scrub and over 5km of hedgerow.
Impacts of the scheme on the local dormouse population will arise from, for example, loss of habitat to support the local population, risk of injury and killing of dormice during clearance of habitat, severance of connectivity of remaining habitats and increased risk of mortality post construction.
NRW responded to the published draft Orders and ES on the 4th May 2016[19] and to the ES Supplement published in December 2016 on 31st January 2017[20].
In the context of dormice, NRW objected to the scheme, advising of significant concerns regarding the proposed dormouse strategy and requested further information. NRW stated that based on the information presented in the ES NRW would not be able to conclude there would be no detriment to the maintenance of the FCS of dormice as required prior to the granting of a derogation under regulation 53(9) of the Habitats Regulations19.