Protected Species and the Planning System – relevant Legislation and Policy.

Please note that this summary is accurate at the date of the issue of this Standing Advice only.  Legislation is liable to change and you are recommended to check the actual original text to ensure that you are looking at up-to-date legislative requirements.

The main pieces of legislation relating to protected species in England are as follows:

1. The Wildlife and Countryside Act 1981 (as amended)

   1.1 The Wildlife and Countryside Act 1981 (as amended) [1] (WCA) implements parts of the Birds Directive 2009 [2] and the Berne Convention (1979) [3] into national legislation.  It includes a number of Schedules which are reviewed (usually every five years) on which details of the protected species, and their level of protection, are detailed.  A detailed summary of the relevant sections of the Wildlife and Countryside Act, along with the protection afforded under them can be found within Paragraphs 118-122 of ODPM Circular_06/2005.

   1.2 Details of the species listed on the Schedules: (277kb).  There is no provision within the Wildlife and Countryside Act which allows Natural England to issue a wildlife licence where a protected species is affected by development activities. This means that where development works affect a species that is protected under the Wildlife and Countryside Act 1981 (as amended) this may be a breach of the legislation and a developer would only be able to seek to rely on the ‘incidental result of an otherwise lawful operation’ defence if enforcement proceedings were brought due to the breach.  If a developer can show that the works carried out followed good practice and are being carried out in accordance with a lawfully granted permission, such as planning permission, it may support his defence. 

   1.3 Please note however, that with regards to the water vole, where translocation of animals is proposed, Natural England does not feel this could be considered the incidental result of other activities and so would not be covered by the defence in the legislation.  If there is no alternative to translocation, Natural England may be able to issue a licence to trap and translocate the water voles for the purpose of conservation.

2. Natural Environment and Rural Communities Act 2006 (NERC Act)

   2.1 Section 40 of the NERC Act states that:
   ‘Every public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity’. 
   Section 40(3) also states that ‘conserving biodiversity includes, in relation to a living organism or type of habitat, restoring or enhancing a population or habitat’.

   2.2  Section 41 of the NERC Act states that the Secretary of State will produce a list of living organisms and types of habitat which are of principal importance for the purpose of conserving biodiversity.  Details of the habitats and species contained within the Section 41 list.

3. The Conservation of Habitats and Species Regulations 2010 (Habitats Regulations 2010)

   3.1 The Conservation of Habitats and Species Regulations 2010 (usually referred to as the 2010 Habitats Regulations) implement Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive) into national legislation.  Article 12 of the Habitats Directive contains a range of prohibitions seeking to protect certain species (European Protected Species). Those prohibitions include deliberate capture or killing and deliberate disturbance.  Article 16 provides for a number of circumstances in which a Member State may derogate from the obligations in Article 12. The Habitats Regulations (Regulation 41) make a breach of the Article 12 provisions a criminal offence. The derogations contained in Article 16 are implemented by way of a licensing regime (Regulation 53) which can make an activity that would otherwise be an offence, lawful if carried out in accordance with a licence.

   3.2 Regulation 9(5) provides that “a competent authority, in exercising any of their functions, must have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions”. A Planning Authority is a competent authority for the purposes of these Regulations and is exercising a function in deciding whether or not to grant planning permission. The Supreme Court, in the recent case of Morge (FC) (Appellant) v Hampshire County Council  [2011]UKSC 2,  has recently considered the application of this duty, as it was contained in identical form in a previous set of Regulations. In his leading judgment in the Supreme Court Lord Brown said “I cannot see why a planning permission (and, indeed, a full planning permission save only as to conditions necessary to secure any required mitigation measures) should not ordinarily be granted save only in cases where the Planning Committee conclude that the proposed development would both (a) be likely to offend article 12 (1) and (b) be unlikely to be licensed pursuant to the derogation powers.”

   3.3 If therefore the Planning Authority concludes that the carrying out of the development for which permission has been applied for even if it were to be conditioned, would be likely to offend Article 12(1), by say causing the disturbance of a species with which that Article is concerned, then it must consider the likelihood of a licence being granted. The licencing authority is Natural England.

   3.4 We would also draw your attention to the relevant case law.  It is important that the principles established by relevant case law are taken into account and applied when making any decision.  There have been several cases that may be useful for officers to consider in consultation with your legal teams, particularly:

   • R v Cornwall County Council ex parte Jill Hardy [2001] JPL 786
   • R (Simon Woolley) v Cheshire East Borough Council and Millenium Estates Ltd [2009]EWHC 1227 Admin
   • R (Vivienne Morge) v Hampshire County Council [2011] UKSC 2 and [2011] UKSC 2

4. The Protection of Badgers Act 1992

   4.1 The legislation affording protection to badgers is primarily concerned with animal welfare and the need to protect badgers from activities such as baiting and deliberate harm.  The Protection of Badgers Act 1992 makes it an offence to: 

   • Wilfully kill, injure, take, possess or cruelly ill-treat a badger, or attempt to do so; 
   • To intentionally or recklessly interfere with a sett (this includes disturbing badgers whilst they are occupying a sett, as well as damaging or destroying a sett or obstructing access to it.

   4.2 As with The Wildlife and Countryside Act 1981 (as amended), there are several defences to prosecution in the legislation and the text should be consulted for details of these.  Penalties for offences include fines up to £5,000, plus up to six months imprisonment for each illegal sett interference, or badger death or injury.

   4.3 Full Details of the Protection of Badgers Act legislation. Paragraphs 123 and 124 of the Circular set out the relevance of badgers as a material consideration in planning decisions.

5. Wildlife Licensing

   5.1 Wildlife licences permit otherwise unlawful activities, and can only be granted for certain purposes.   Natural England will be producing guidance in due course on how we apply the 3 tests set out in Regulation 53 of the Habitats Regulations 2010 when granting licences.  These tests are:

   • The consented operation must be for “preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment”; and
   • There must be “no satisfactory alternative”; and
   • The action authorised “will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range''.

   5.2 Natural England’s National Wildlife Licensing Unit issues licences for various reasons and in respect of development these are generally for the purpose of “preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment” [Regulation 53(2)(e)].

   5.3 The Licensing Unit does not comment on planning applications and are unable to offer advice to applicant’s at the planning application stage or pre-submission stage for a licence application.  Such comments will still be made by Natural England Land Use staff.

   5.4 It is not the responsibility of Natural England to identify the need for a licence. This decision is the responsibility of the ecological consultant or individual developer concerned.  A licence should be applied for if, on the basis of survey information and specialist knowledge, it is considered that the proposed activity is reasonably likely to result in an offence.  No licence is required if, on balance, the proposed activity is unlikely to result in an offence.

   5.5 For further information regarding licences that can be issued in respect of a development or proposed activity please visit Natural England’s Wildlife Management and Licensing page.

6. Planning Guidance

   6.1 Circular_06/2005 places a clear responsibility on Local Planning Authorities to further the conservation of habitats and species of principal importance where a planning proposal may adversely affect them.

   6.2 The Circular is supported by a guide to good practice.  Both documents provide local planning authorities with detailed guidance, and examples of best practice when dealing with protected species issues as part of the development control process

   6.3 The National Planning Policy Framework places clear responsibility on Local Planning Authorities to aim to conserve and enhance biodiverisybiodiversity and to encourage biodiversity in and around developments.

[1] The Wildlife and Countryside Act (WCA) has been amended both by the Countryside and Rights of Way Act 2000 and the Natural Environment and Rural Communities Act 2006. You are advised to ensure that you consider a consolidated and up to date version of the WCA when referring to it.
[2] Directive 2009/147/EC on the conservation of wild birds (the codified version of Council Directive
79/409/EEC as amended)
[3] The Convention on the Conservation of European Wildlife and Natural Habitats.

It should be noted that the protection afforded to species under the UK and EU legislation referred to here is in addition to that provided by the planning system and the applicant must ensure that any activity they undertake on the application site (regardless of whether or not planning permission has been obtained ) complies with the appropriate wildlife legislation. Failure to do so may result in fines and, potentially, a custodial sentence.

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