The Biodiversity Crisis: Construction Projects, Impacts & Contracts AEnvCoW provided the following written response to the Scottish Government, after attending a biodiversity event on 24th June 2021, which was held by the Scottish Government, in preparation of CoP15 (October 2021, China). This response was copied to all AEnvCoW stakeholders, including all environmental regulators across the UK. This text has now been adopted to become AEnvCoW’s position statement on the Biodiversity Crisis.
Overview
The preparation which AEnvCoW observed in the run-up to CoP 15 was almost silent on planning, development and construction and AEnvCoW provides the following comments to the Government:
- The gulf between what planning applications, and EIAs, state in their predictions / EIA Reports in order to obtain consent, compared with the reality of the environmental, and biodiversity, These impacts frequently extend far beyond the predicted impacts, and frequently go un-monitored, and un-identified, and are likely to be significantly contributing to the Biodiversity Crisis.
- Absence of evaluating, and valuing ecosystem services, particularly during construction or ‘biodiversity net gain’ during construction
- The relative absence of fair, transparent, 3rd party environmental compliance monitoring, and reporting, during construction, paid for by developers (Employers) and appointed independently of construction
- The absence of environmental legislation that sets out roles and responsibilities for delivering environmental commitments, such as an equivalent to the CDM Regulations for health and safety.
- The relative absence of effective contractual mechanisms to define non-conformance and provide recourse for non-compliance with environmental commitments.
Contractors are expected to comply with the contract, and law, but often there are few contractual options / recourse in place for the Employer to convert environmental non-conformances into penalties, or it is reliant on Employers/Contractors to self-regulate their own environmental compliance. This does not work well on commercial contracts, particularly with the current lack of effective construction compliance monitoring regulations, which would require Employers, and Contractors, to demonstrate their environmental compliance. ie. CDM Regulations for the environment. This scenario dis-incentivises Employers, and Contractors, from delivering their environmental commitments and mitigation and it is often compounded by poor Contractor / Employer compliance monitoring, and reporting, that is often not publicly available.
Due to the current situation, this environmental risk is being realised on every construction project in the country, and they significantly, yet discreetly, contribute to the Biodiversity Crisis.
Purpose
AEnvCoW has been engaging with regulators and stakeholders across the UK for several years, to shine a light on these issues. To this end, the purpose of this position statement is to:
- Highlight that weaknesses in planning and environmental legislation exist, particularly regarding 3rd party environmental compliance monitoring, and reporting during construction, which is significantly contributing to the Biodiversity
- Highlight the critical role of an EnCoW (and its status and authority) in construction contracts, and procurement, in relation to the Biodiversity
- Highlight the need for the Government to carry out its own Strategic Environmental Assessment of existing environmental legislation and construction phase compliance monitoring.
- Recommend an open data store/bank – a repository for biodiversity records derived from research and commercial development projects, which must be driven by regulatory requirements and managed centrally by
- Share AEnvCoW’s knowledge, and work, as a foundation for future work that Key Agencies, and Government, can progress
- Inform the Biodiversity Crisis consultation with these issues.
Opportunities
AEnvCoW has helped establish two volunteer working groups with different remits to investigate, and consult, on the above issues:
- Regulatory & Planning Group (Chaired by the Heads of Planning Scotland (HoPS)).
- IEMA Post Consent and Construction Phase
We have observed through our own consultation, and the above working groups, that existing levels of Government resources are not sufficient to address these multi-disciplinary issues, which span planning, environmental regulation, procurement and construction contracts. Consequently, good- willed environmental practitioners / volunteers at AEnvCoW & IEMA are seemingly joining the dots between these areas and raising awareness of their combined impacts on, and contributions towards, the Biodiversity Crisis on behalf of the Government. It is not possible for volunteers to robustly affect these changes, as ultimately these opportunities need to be realised through Government intervention, to address the systemic, root cause of these issues within the planning and regulatory regimes.
AEnvCoW has carried out a substantial amount of consultation and we would like to share our experience, and knowledge with the Government, and other Key Agencies, to highlight opportunities, to reduce impacts on the Biodiversity Crisis from construction projects. This will also support the Natural Capital Agenda, Environment Strategy, Planning Bill reforms and EIA Regulations.
We are using this information to inform discussions with our industry partners and other consultations across the UK and we would welcome discussion with the Government on the matter. For transparency, AEnvCoW sits on the Cross Party Group on Construction and the Linear Infrastructure Environmental Management Group. It has also consulted the Environment Agency, Natural Resources Wales, SEPA, the Northern Ireland Environment Agency, Forestry Land Scotland, Chartered Institute of Ecology and Environmental Management (CIEEM), Chartered Institute of Water & Environmental Management (CIWEM), Institute of Civil Engineers (ICE), Institute of Clerks of Works & Construction Inspectorate (ICWCI) and the Civil Engineering Contractors Association (CECA) Scotland.
The Role of an Environmental Clerk of Works Position Statement
AEnvCoW recognises that there can be significant inconsistencies in applying the role of an Environmental Clerk of Works (EnvCoW), as those fulfilling the role are often engaged to deliver a variety, or combination, of design, implementation and environmental compliance monitoring elements. Blending these elements can compromise delivery of an EnvCoW role, which in turn can adversely affect environmental outcomes and compliance. To improve consistency and quality in the EnvCoW role (and to better support achievement of environmental outcomes / compliance) AEnvCoW has developed this position statement, in consultation with regulators and professional bodies.
AEnvCoW supports provision of clarity in roles and responsibilities, similar to the principles successfully applied under Construction (Design & Management) Regulations 2015 (CDM) that deliver health and safety obligations. This approach advocates clear distinction, and separation, of roles and responsibilities for design, implementation and compliance monitoring, as follows:
- Design: working for the Developer / Contractor e.g.:
- Environmental Managers / Advisor
- Technical Specialists
- Implementation: working for the Contractor e.g.:
- Environmental Managers / Advisors
- Technical Specialists
- Monitor: Independent monitoring of the Project:
- Environmental Clerk of Works (EnvCoW).
Much like health and safety management under CDM Regulations, AEnvCoW believes that commissioning organisations should avoid delegating their responsibility, and each project stakeholder should provide sufficient time and resources to manage environmental risk.
AEnvCoW broadly supports the approach outlined by the Institute of Clerks of Works and Construction Inspectorate, which highlights that to achieve ‘quality’ and environmental ‘outcomes’, an EnvCoW should be either employed by a Developer/Client, an environmental regulator, or a consenting body. This is because these have a vested interest in compliance and environmental outcomes. This position is similarly supported by the Planning Inspectorate (PINS), which states that compliance inspectors should be paid for by the Developer and appointed by the consenting body. AEnvCoW advocates this approach.
To provide fair, transparent, compliance monitoring (which is key to the EnvCoW’s role and distinguishes it from other site environmental roles) design, and implementation, advice should not be provided by the EnvCoW. To this end, AEnvCoW’s definition of an EnvCoW is:
“An independent environmental or construction professional with direct responsibility for monitoring and reporting on compliance with planning consents, environmental permits, legislation and mitigation.”
An EnvCoW cannot ‘ensure’ compliance on a project, as the role is responsible for monitoring and reporting compliance. EnvCoW’s who consider they ‘ensure’ works are likely to be delivering a different environmental role with responsibility for delivering compliance.
Prior to the appointment of an independent EnvCoW, the project should have approved site specific environmental / ecological plans and mitigation proposals. It is the EnvCoW’s role to impartially assess compliance against these plans and mitigation and EnvCoWs should carefully communicate compliance observations to provide a feedback mechanism for the project. AEnvCoW recognises that this is currently not always the case, as construction contracts and legislation do not require this. Where an EnvCoW provides design/implementation advice/recommendations, they risk limiting their impartiality to assess compliance.
AEnvCoW recognises that construction contracts must support, and enable, this process. This approach is most likely to be successfully achieved with regulatory reform for environmental obligations. This would involve defining environmental roles and responsibilities for delivering/ensuring and monitoring environmental obligations in legislation, as well as requiring projects to share their data and monitoring reports.
AEnvCoW is striving to embed this position in legislation, and guidance, as part of its Strategy to define, and promote, the role of an EnvCoW and help drive up environmental compliance.
