Guest blog – HS2 Limited and Natural England – Partners in Crime? by Dominic Woodfield


Dominic Woodfield is the Managing Director of Bioscan, a long established and well-respected consultancy specialising in applied ecology.

He is a life-long birder, a specialist in botany, habitat restoration and creation and in protected fauna including bats, herpetofauna and other species. He is also a highly experienced practitioner in Environmental Impact Assessment and Habitats Regulations Assessment. Most of his work is for the development sector, but he has also undertaken commissions for Natural England, the RSPB, Wildlife Trusts and campaign groups. He once mounted an independent legal challenge in defence of an important site for butterflies in Bicester, Oxfordshire, which resulted in planning permission for a five-hundred unit housing development being overturned. He lives in Oxford with his partner and family.

Jones Hill Wood shortly after the eviction of protestors in October 2020. The left-hand half of the wood as visible in this photo will be removed by HS2. Photo: Dominic Woodfield

Jones Hill Wood is an ancient semi-natural woodland sitting atop a gentle hill in the countryside north of Great Missenden in the Buckinghamshire Chilterns. That village was the home of the celebrated Roald Dahl and Jones Hill Wood is part of the countryside around it that inspired tales such as Fantastic Mr Fox. Much of Fantastic Mr Fox concerns the flight of woodland denizens from the wrath and the diggers of farmers Boggis, Bunce and Bean (the farm adjoining Jones Hill Wood is still owned by a Mr Bunce). The story ends with the farmers miserably but tenaciously waiting for Mr Fox to emerge from a hole at the bottom of a crater that is all that’s left of his devastated home, unaware that the wily hero has outwitted them by creating a far-reaching underground tunnel network that the reader is left confidently thinking will allow the woodland creatures to survive the siege.

There is now a new cast of characters playing out a story of wildlife versus diggers in the countryside around Roald Dahl’s home. The scenes today at Jones Hill Wood could be straight out of the illustrations of Roald Dahl’s book or its successful animated film adaptation, but the villains Boggis, Bunce and Bean have been replaced by HS2 Ltd and Natural England. Adding to the pantheon of characters in this 21st Century version are a group of protestors, local residents and politicians, NGOs, concerned independent ecologists and lawyers. Some are wholly unconvinced that destroying around half of Jones Hill Wood to create one side of a railway cutting is an acceptable price to pay for the delivery of the new high-speed line. Others are merely horrified at the way HS2 are going about it and by the complicity and lack of backbone that appears to be being shown by the regulator Natural England in holding HS2 Ltd to account, despite its promises of exemplary environmental standards.

Last autumn, the battle to save Jones Hill Wood came to the first of many recent crunch points when protestors who had occupied the wood with the consent of the landowner for much of 2020 were forcibly evicted by HS2 as a precursor to felling and clearing the site. The protestors had not used their time idly, and claimed to have collected evidence of bat roosts, including a roost of the rare barbastelle bat. As HS2 geared up to fell the woodland, the advice of ecological professionals and lawyers was sought and despite problems with disclosure it quickly emerged that HS2 had failed to carry out any proper surveys of bats to establish what mitigation was required to comply with their strict protection under UK and European law. “Hold up!”, I hear you say. “They had not bothered to survey an ancient woodland properly for the presence of bats? Are there any more likely places bats could be?” But it is true. ‘Cavalier’ is how I described the position when I was contacted in October 2020 and first asked to look at the standards of information produced by HS2. I now think that was overly generous.

Step forward the Woodland Trust whose CEO Darren Moorcroft described HS2’s intention to fell ancient woodland without proper bat surveys or a bat licence as tantamount to “bulldozing a church or listed building without even looking what’s inside it”. Drawing on advice and witness evidence from myself and others that it was statistically inconceivable that an area of ancient woodland of this size would not contain bat roosts, they put HS2 on notice that they were poised to legally challenge, by means of seeking an injunction if necessary, any decision to fell the wood without proper surveys. Disapproval or concern was also expressed from other NGO quarters, albeit with varying degrees of vigour. Questions were raised in Parliament and The House of Lords. And Natural England were quite rightly asked pointed questions about their role in facilitating or failing to properly regulate all of this.

A standing dead beech tree with high potential for roosting bats in the part of Jones Hill Wood to be felled. Photo: Dominic Woodfield

The mounting clamour to do the right thing eventually became too difficult for HS2 to ignore. It became evident by the lack of felling that Jones Hill Wood was being given an unofficial reprieve. We now know that this was in part because HS2 scrambled its hired ecologists to get out during October and November to try and patch up the baseline dataset with further survey work. Not only was this the wrong time of year for effective bat surveys, but by this point the woodland had suffered weeks of constant security presence, removal of ground flora and understorey and the deployment of high-powered lighting angled up into the trees – lighting that could be seen for miles across the Chilterns and cannot have done anything other than displace more light sensitive bats from the wood and disturb those others that tried to return to their roosts regardless. Such disturbance of roosts is an offence under the law, but only if it can be proven – such proof being a high bar that HS2 has consistently pointed at with a proverbial wink and a smile. As the protestors and others have found, it is very difficult to prove wildlife offences are taking place on a site that you cannot get anywhere near due to intense security.

High powered lighting directed onto Jones Hill Wood by HS2 contractors, November 2020.

Despite multiple requests, HS2 have consistently failed to release information about survey results, methodologies, mitigation and other matters, with Natural England dragging their feet through the FOI process at every turn. However, from what information has filtered through the latter route, the following has been learned. It emerged in March 2021 that surveys by HS2 over the winter of 2020/21 had indeed found a winter roosting site for soprano pipistrelle bats. Here was the proof that if HS2 had been successful in its intentions to fell the wood the previous autumn, offences would have been committed. Any contrition from HS2? No. Any sharp intake of breath from NE? No.

So, it was now beyond dispute that a licence was required – vindicating the protestors’ and Woodland Trust’s position. But how do you apply for a licence when you have failed by your own incompetence or disregard to meet the minimum survey requirements over the countless survey opportunities you have had in the seven years since you were granted permission for a project, and then find that it is still too early in the year to carry out such surveys?

Step forward Natural England, holding open and beckoning you towards a side door that lets you circumvent this problem. This is in the shape of something called licensing policy 4 (LP4). LP4 allows NE to accept educated guesswork to bridge the gap between industry standard or otherwise adequate surveys and the level of information required for sufficient certainty in the licensing process. According to NE’s own guidance, it is expressly intended for use in “simple” situations where there are good, justifiable reasons why the surveys are not as good as they should be and where more common species whose requirements are better known are concerned.

Using LP4, HS2 applied in early 2021 for a licence to cover bat offences at Jones Hill Wood based on a worst-case scenario that the wood contained roosts of a broad range of bat species, including the rare barbastelle, and multiple individuals of those species.

Let’s stop for a second to consider how far HS2 have been dragged. Their position in October 2020 was that there were no bat constraints at Jones Hill Wood sufficient to prevent them clearing the site there and then. Their position is now that numerous roosts, including breeding roosts of rare species, might be destroyed. Why would they change their position so comprehensively – could it be a case of “say whatever you think will get you a licence”?

Evidently, yes. Because Natural England have indeed granted a licence covering impacts up to and including the loss of multiple roosts and the loss of breeding sites for three bat species (see The mitigation and compensation for these impacts involves putting up a few bat boxes, and significant reliance on future measures that will take decades to be delivered. A breeding roost of barbastelle bats adequately compensated (such that there is no net negative effect on local populations of this rare species) by sticking up some bat boxes? Is there a proven instance of this cursory level of compensation for this type of roost and this species working? I know of none.

With the licence issued last week, the tree fellers moved in on Jones Hill Wood this morning, 6th April 2021. By the time you read this, the woodland may be felled.

What is the takeaway message from this? Quite clearly, it is that as long as your project is sufficiently big enough that you can bully Natural England, you needn’t bother complying with adequate wildlife surveys or indeed other minimum industry standards. Just paint a worst case and commit to unproven or long-into-the-future mitigation and compensation measures and that will get you past the regulatory hurdle. Want to take down this line of trees full of old woodpecker holes? I’ve done no bat surveys but I will mitigate on the basis that a barbastelle breeding roost is present. Taking my lead from the Jones Hill Wood licence, this means I need do no more than stick up some bat boxes over there. Fine, here’s your licence.

The basic premise behind licensing policy 4 – that there must be allowance for situations where impacts can be confidently predicted even when survey standards have not been able to be met – is eminently sensible. But the problem with any such policy is guarding against its abuse. By issuing HS2 with a bat licence for Jones Hill Wood in the manner in which they have, Natural England have demonstrated that they will not block such abuse. Their approach to protected species licensing is instead rapidly descending into rubber stamping giant leaps of faith. Licensing decisions are becoming based not on “we are absolutely confident this mitigation is proven and will work” but “we feel there’s a chance this mitigation could work”. That represents a departure from both the spirit and the letter of the Habitats Directive and the UK Regulations that still, post-Brexit, seek to enforce it, and may yet be challenged in the courts. And what message does it send to other developers and householders with a bat issue?

When Boggis, Bunce and Bean pursued their quarrel with Fantastic Mr Fox and their diggers destroyed his wood, Roald Dahl did not feel any need to write about licenses and wildlife crime. The story unfolds in a mid-20th Century world entirely unfettered by regulation or intervention from a government nature agency. It is hard not to conclude that we are heading back towards this point. And one alarming question remains hanging: if HS2 were so close to getting away with wildlife crime at the well-watched Jones Hill Wood, what the hell is happening at the countless other woods, hedgerows and mature trees affected elsewhere along the route?  

Still from Fantastic Mr Fox – or the failure of state nature conservation bodies at a wood near you?

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