Nightingales return to Lodge Hill ©Will Tofts

As Nightingales return to England, the Brexit juggernaut lumbers on, crushing all dissent as it goes. But the resulting mulch is full of contradiction and confusion.

Take our current commitments to protecting Birds for example. Until 2019 (and perhaps for longer) as members of the EU we are signed up to protecting birds via the Birds Directive (1979). Think about that for a minute. The UK has been signed up to a European law which requires us to protect wild birds for nearly 40 years, nearly as long as we have been members of the Common Market, European Economic Community, European Community and European Union. In that time wild birds have not been doing too well – well most of them. There have been successes eg the Stone Curlew, Bittern and Cirl Bunting are all good examples. And these have all done well precisely because of their protection and recognition under European law.

Sadly, for a long time the UK ignored aspects of EU law and failed to protect wild birds. But thanks to the European Court of Justice (ECJ), we were forced into taking action, under threat of punitive measures (large fines and a real threat that things we wanted the EU to do would be downgraded or ignored.)

A good example of how the ECJ shapes and clarifies the law as it is originally written down in an EU Directive (ie not necessarily very clearly) is the Waddensee judgement. Back in 2004 the ECJ was asked to rule whether a particular bit of the Birds and Habitats Directive applied to “all plans and projects” or not. They decided it did. so a local planning authority deciding whether to approve a developer’s plans for example to build houses near to a Birds Directive Special Protection Area would need to look very closely at all the consequent impacts of that development on the nearby SPAs.

Research had shown quite clearly that additional housing creates an additional recreational pressure on those sites – put simply new residents of new houses near to heathlands or estuaries are going to walk their dogs (on and off the leads) ride their bikes, have picnics and do all the normal things that people do near to where they live. Which meant that those additional houses were having an adverse effect on the species and habitats of the European sites – SPAs and Special Areas of Conservation (SACs).

This led to the infamous housing blockade of 2005 in the Thames Basin Heaths – the one that Michael Gove is still banging on about.

The EU had forced planners to stop developers from building houses right next to heathlands, because of the impact of the additional recreational pressure on the species and habitats of the heathlands. For Gove this is ridiculous red tape, for people interested in retaining some few remnants of nature in England, this is legal protection for nature actually working. While housing within 400m of a heathland (or other habitat eg Estuary) was stopped, it was allowed within a wider 5km zone but only if a range of mitigation measures were put in place, that would, at least in theory, remove the “adverse effect” on the European site. These measures included much increased wardening to educate visitors not to let their dogs off the lead where they could disturb ground nesting birds for example. And also the creation of alternative greenspace (SANGS) to encourage people to visit other places that would not affect the special wildlife of the European sites.

One such area is the Thames Estuary, much of which, including the Medway and Swale estuaries in North Kent, is  a Special Protection Area. A big campaign, led by Friends of the North Kent Marshes, successfully stopped the “Boris Island” airport from being built there. Medway Council, like many others where European sites occur, is bound to take measures to mitigate the impact of additional houses on places like the Thames Estuary SPA. Accordingly, Medway council has just advertised for a SAMMS manager – SAMMS is short for Strategic Access and Management Monitoring Scheme. This is what they say about the job:

Ah how lovely, you might think. Medway Council really care about birds. Sorry to disappoint you, but no.

Medway Council are still planning to build a 5000 house new town on the UK’s largest Nightingale population at Lodge Hill. Lodge Hill, which was designated as a Site of Special Scientific Interest on account of its incredibly rich wildlife (not just Nightingales.) Regular readers will know I have written many times about Lodge Hill here  and also last year a People Need Nature project explored Lodge Hill and its many qualities, as a source of inspiration for artists writers and composers.

This I think illustrates perfectly how our membership of the EU, and especially the power of the European Court of Justice, has shaped our approach to conserving wildlife in the UK. On the one hand, European law protects European sites from the indirect impacts of new housing, eg dog-walking. On the other hand, our domestic wildlife legislation may well not be powerful enough to prevent our best wildlife sites (SSSIs) legally protected under domestic law, from having houses built on them.

When the Great Repeal Bill transfers all that EU law onto the UK statute books, the power of the ECJ will be removed. It’s inconceivable that this Government will create an equivalent power to challenge (and over-rule) when it decides to ignore its own legal protection for wildlife.

RSPB have a campaign running to help Save Lodge Hill. If you’re interested, take a look.