Protected species

Legislative & planning context

Under section 40 of the NERC Act (2006) all public authorities have a duty to have regard to the conservation of biodiversity in exercising their functions. Section 41 is the list of UK BAP priority habitats to which the NERC Act particularly applies.

The principle piece of wildlife legislation in the UK is the Wildlife and Countryside Act (WCA) 1981 (as amended), which was strengthened by the Countryside and Rights of Way Act (CROW) in 2000. Under this legislation the level of protection varies between species but at a minimum it is illegal to deliberately or recklessly kill or injure that animal. The implication of ‘recklessly’ means that if suitable habitat for that species is present on a site it should be treated as if they are present until their absence has been confirmed or their presence deemed unlikely by a suitably qualified person, such as an ecologist.

The other important piece of wildlife legislation is the Conservation of Habitats and Species Regulations 2010. This replaces and consolidates all the amendments that have been made to the original Conservation (Natural Habitats) Regulations 1994. Under this European legislation some species listed on the WCA 1981 receive additional protection in the form of it being illegal to disturb them or their places of shelter. A Habitat Regulations licence is needed to legalise any activity that would otherwise contravene this legislation. Licences are issued by Natural England only if they are satisfied that the actions proposed will not be detrimental to that species at the local population level, usually because some form of mitigation will be implemented. The mitigation required is proportional to the level of impact, which is influenced by the nature of the development and the relative importance of the site for that species.

Also relevant is the Protection of Badgers Act 1992. Although based on the need to protect badgers from baiting and deliberate harm it contains restrictions which apply more widely to developers - certain activities within 30 meters of a sett require a licence.

In relation to activities likely to be carried out by OCC, the above legislation makes it illegal to:

For bats, dormice and great crested newts:

• Intentionally kill, injure or take from the wild.
• Damage, destroy or obstruct access to any structure or place used by the species whether or not the animals are in occupation.
• Recklessly disturb the species while they are in a place of shelter or protection.

For reptiles:

• Intentionally or recklessly kill or injure any native reptile.

For birds:

• Intentionally take, damage or destroy the nest of any wild bird whilst it is in use or being built.
• Intentionally or recklessly disturb any wild bird listed on Schedule 1 while it is nesting, near a nest with young or disturb the dependent young of such a bird.

For water voles:

• Intentionally or recklessly kill or injure a water vole.
• Intentionally or recklessly damage, destroy or obstruct access to any structure or place used for shelter or protection.
• Intentionally or recklessly disturb a water vole whilst occupying a place or structure used for that purpose.

For badgers:

• Interfere with a badger sett by damaging or destroying it.
• Obstruct access to, or any entrance of, a badger sett.
• Disturb a badger when it is occupying a sett.

For white-clawed crayfish:

• Intentionally or recklessly kill or injure.

The National Planning Policy Framework (NPPF) and Local Plans set out planning policies for the protection of biodiversity through the planning system. Paragraph 165 of the NPPF states that planning policies and decisions should be based on up-to-date information on the natural environment and other characteristics of the area.

European protected species (found in Oxfordshire)

The species listed below are referred to as European Protected Species (EPS) and are listed on Schedule 2 and 4 of the Conservation of Habitats and Species Regulations 2010 (they are all also covered by UK legislation).

The species listed below are listed on various Schedules of the Wildlife and Countryside Act 1981 (as amended).

Below is a guide to the procedures to follow to ensure that the County Council complies with all UK and European legislation regarding protected species and biodiversity. We also try to ensure that all our activities and processes are carried out in accordance with the standards set out in British Standard 42020 Biodiversity – Code of practice for planning and development (BS 42020:2013).

Feasibility stage

Protected species must be shown to have been a material consideration in the planning process and addressing the issue of protected species early on (at the feasibility stage) will help ensure this is the case whilst also avoiding potentially costly and unexpected delays to work. Altering the timing of work and/or the location of new buildings/extensions is the easiest way of changing a scheme to avoid impacts on protected species.

For further advice contact OCC’s Protected Species Officer (PSO) who can undertake a brief desk study or site visit (if needed) which will inform you as to whether any protected species surveys will be need to be carried out before the planning application is made or works commence.

Following this, if further surveys are required because there is the potential for protected species to be present, PSO will be able to advise you as to whether or not they will be able to carry out this work. If not, a list of suitable consultant ecologists will be provided and they will be able to give further advice as and when needed with regards to any work carried out by external consultants.

Detailed design stage

Any recommendations made as a result of an earlier desk study, site visit or ecological surveys should be incorporated into the plans at this stage. This includes details such as the location of bat boxes / bricks and any new or replacement wildlife features such as ponds or hedgerows.

Planning stage

If ecological surveys have been carried out, a report by PSO or external consultants will need to be submitted with the planning application. All surveys should be completed before the planning application is submitted. The exception is for further checks to be made by an ecologist to ensure that no protected species have moved into an area in the time between permission being granted and works commencing.

Construction stage

If a working methodology or mitigation strategy has been detailed in a planning Condition, ecological report or Habitat Regulations licence then this must be followed. It may be necessary to have an ecological consultant on site to ensure that the methodology is correctly implemented and adhered to.

If any protected species are discovered on site during works then work in that area must stop immediately and an ecologist contacted (Sarah Postlethwaite or an external consultant if necessary). Work should not recommence until the go-ahead has been given by the ecologist. If a licence is required, it could take a month or more before work can recommence.

If surveys confirm the presence of a European protected species on site, a licence may be required before any works that could affect that species can commence. In order to obtain this, a number of surveys will be required over a period of several months, hence the importance of seeking ecological advice early on in the process. Licence applications will need to be made by an ecological consultant, and must show that the work is needed for 'imperative reasons of overriding public interest including those of a social or economic nature' and that there are no 'satisfactory alternatives'. The licence application must also detail the mitigation that will be put in place to ensure that the development will not have a detrimental impact on the local population of that species.

Obtaining advice from Oxfordshire County Council

Oxfordshire County Council's Protected Species Officer can advise on proposed developments that may impact on protected species and undertake surveys to identify potential habitat for protected species. This is a limited resource and will not negate the need to commission ecological consultants for some projects.

Protected Species Officer contact details

Sarah Postlethwaite
Email: sarah.postlethwaite@oxfordshire.gov.uk
Mobile: 07768 548163

https://www.gov.uk/guidance/protected-species-how-to-review-planning-applications#standing-advice-for-protected-species