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 Species (EPS).


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 possible.

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.


21-23 North Road, Hertford, Hertfordshire SG14 1LN - Tel: 01992 552407, mail:
Protected Species and The Law