In the UK many of our native animals and plants and in some cases their homes and
habitats, are protected under a number of different laws. Additionally some species
are also protected by European law, giving them further protection as European Protected
European Protected Species are protected by the Wildlife and Countryside Act 1981
(as amended) and through inclusion in Schedule 2 of the Conservation of Habitats
and Species Regulations 2010 (as amended). Amendments to the legislation means that
legal protection for a European Protected Species ‘EPS’ falls mostly under the Habitats
and Species Regulations (2010).
Building works that would contravene the protection afforded under the Conservation
of Habitats and Species Regulations 2010 require a European Protected Species (EPS)
Mitigation Licence prior to the commencement of works. Natural England, under powers
conferred by the Secretary of State, has authority to issue licences but only for
certain purposes. The purposes include “preserving public health or public safety”
or other “ imperative reasons of overriding public interest, including those of social
or economic nature and beneficial consequences of primary importance for the environment”.
Licences can also only be issued if there is no satisfactory alternative, and the
action authorised will not be detrimental to the maintenance of the population of
the species at a favourable conservation status in their natural range.
At a planning level following on from a recent High Court ruling local authorities
must consider all planning applications where European Protected Species are likely
to be affected and an EPS licence is required. The ruling refers to the three tests
given above and states:
“When dealing with cases where a European Protected Species may be affected a planning
authority…. has a statutory duty under Regulation 3(4) to have regard to the requirements
of the Habitats Directive in the exercises of its functions”.
The National Planning Policy Framework (NPPF) 2012 places a clear responsibility
on the Local Planning Authority to aim to conserve and enhance biodiversity and to
encourage biodiversity in and around developments. The circular ‘Biodiversity and
Geological Conservation (ODPM 2005)’ remains active and states that:
‘ It is essential that the presence or otherwise of protected species, and the extent
that they may be affected by a proposed development, is established before planning
permission is granted otherwise all relevant material considerations may not have
been addressed in making the decision’.
Regulation 9(3) of the of the Conservation of Habitats and Species Regulations (2010)
states that LPAs must have regard to EPS when granting planning permission.
In addition, the Natural Environment and Rural Communities Act (NERC) 2006 places
a duty on all public bodies to promote and enhance biodiversity in all its functions.
Section 40 of the Act states “ Every public authority must, in exercising its functions,
have regard, as far as is consistent with the proper exercise of these functions,
to the purpose of conserving biodiversity. Special attention is paid to species included
on the Government’s list of species of principal importance.
The planning policies and legislation means that the developer will need to have
a clearly documented compensation strategy to maintain the numbers of species in
the local area.
What Does This Mean in Practical Terms
This legislation can affect all scales of development, from the small domestic extension
to the building of a housing estate or motorway.
Due to the legislation most planning authorities will not register an application
without the necessary protected species surveys with a report presenting any necessary
mitigation where appropriate. Some planning authorities will still register the application
but will not make a decision until the appropriate survey work and report has been
presented. This may mean that an application has to be withdrawn until the relevant
report can be submitted.
Short Guide to Submitting a Planning Application where Protected Species are Involved
1. Get the protected species and other ecological surveys organised as soon as possible
during the preparation of the application. Do not wait until the last moment since
the results of the survey may have a material affect on the proposed design.
2. Treat ecology as an integral part of the project. Have the proposed development
assessed, preferably before purchase, to find out if there are any protected species
or other ecological issues and act on the recommendations as soon as practically
3. Remember that many aspects of dealing with the natural world don’t fit easily
into a timed project management chart. The only way to deal with this is to be aware
and fully prepared.
4. For species that hibernate there will only be a limited part of the year in which
to perform full surveys. Make sure they are completed in time or there may be a delay
of several months.
5. Be prepared to incorporate mitigation measures into the project design. This may
be the only way to acquire planning permission.