Biodiversity: key laws and policies

Creatures of habitats

18 October 2017

Most development proposals have the potential to affect biodiversity. Cassie Todd looks at the key laws and policies that apply, reviewing ecology surveys and changes to European Protected Species licensing

Any proposal to develop land will be made in a complex framework of environmental law. Before looking at some of the recent revisions to the licensing that relates to species protected under European regulation, it is worthwhile reviewing the overall legislative and surveying contexts.

International law

Internationally derived laws such as the Ramsar Convention 1971 and the Conservation of Habitats and Species Regulations (Amendment) 2012 – the Habitats Regulations – protect nature conservation areas such as Ramsar wetland sites, Special Areas of Conservation and Special Protection Areas. A 'test of likely significance' is required under the Habitats Regulations where developments may affect these areas or their designated features. The regulations also protect certain species and the areas where they are known to live. This includes the Great Crested Newt, as well as all species of bat, Hazel Dormouse, otter, Smooth Snake and Sand Lizard, which are known as European Protected Species (EPS).

Domestic law

Domestic law such as the Wildlife and Countryside Act 1981, as amended, protects Sites of Special Scientific Interest, nesting birds and certain species according to their conservation status. For example, Water Vole numbers are in significant decline and therefore receive the highest protection from harm, disturbance and damage to their burrows. Widespread reptiles, including the Grass Snake, Adder, Common Lizard and Slow Worm, are in less severe decline, and receive comparatively limited protection. Other legislation that applies includes the Protection of Badgers Act 1992, which makes it an offence wilfully to kill, injure, take or ill-treat a badger or interfere with a sett, including those found on development sites. Meanwhile, the Natural Environment and Rural Communities Act 2006 lists priority habitats and species that require conservation. Habitats and species on this list are not necessarily legally protected, such as acid grassland, hedgehog and Common Toad.

The Countryside and Rights of Way Act 2000 amends and strengthens existing legislation, meaning that some offences under the 1981 act can result in imprisonment. The Wild Mammals (Protection) Act 1996 makes it an offence to crush or asphyxiate any wild mammal with intent to cause unnecessary suffering as well; this may apply during site clearance for development, particularly where burrowing animals such as foxes and rabbits are present. Under the Hedgerow Regulations 1997, permission must also be obtained from the planning authority before removing 'important' hedgerows. A hedgerow’s location, age, species richness, the presence of historical and archaeological features and protected species are all factors that can make a hedgerow 'important'.

The National Planning Policy Framework of 2012 and the government’s Circular 06/2005 on biodiversity and geological conservation, from the former Office of the Deputy Prime Minister, help ensure that planning authorities apply these laws. The planning authority has a duty to ensure that listed species are adequately protected and ecological features are retained and enhanced, where possible, before granting planning consent.

Survey restrictions

The purpose of an ecology survey is to assess a development proposal’s risk of breaching wildlife legislation and policy. This usually begins with a Preliminary Ecological Appraisal (PEA), which is normally possible throughout the year. The PEA may recommend further surveys or mitigation to avoid legal offences if suitable habitats and potential for protected species are identified.

Ecology surveys are highly seasonal, according to a species’ lifecycle. But broadly speaking, the ecology survey season is between April and September. Some seasons are very tight; for example, the Great Crested Newt season is between mid-March and mid-June. Others, such as the reptile season, are broad, lying between mid-March and September. However, wintering bird surveys are only possible between October and March. Badgers and otters can be surveyed any time. The best advice is to consider ecology surveys as early as possible to avoid delays to projects.

Guidance and standards

Planning authorities will expect to see a report prepared by a qualified ecologist to accompany planning applications, where there is potential for proposals to have an impact on protected species or valuable habitats.

The following will increase the chance of obtaining planning consent, in an ecological context.

Protected species licensing

Developers must obtain a mitigation licence from the relevant SNCO before there are impacts on certain species, including EPS, Water Vole, badger and the Smooth Newt in Northern Ireland. The UK SNCOs include Natural England, Natural Resources Wales, Scottish Natural Heritage and the Northern Ireland Environment Agency.

There has been a substantial change in the approach to licensing for EPS. Natural England has introduced 4 policies designed to benefit such species’ conservation, as well as cutting delays and costs. It has not been confirmed whether the other SNCOs will adopt these policies.

Developers and consultants are expected to use the policies for Great Crested Newts and bats in the first place, with other EPS to follow.

Policy 1

The first new policy allows greater flexibility when excluding and relocating EPS from development sites. It focuses on conservation at the level of population, rather than protection of individual animals.

The development site must provide significantly better habitat quality, a greater area and improved connectivity for newts. This will mean fewer delays and require less money to be spent on amphibian exclusion and more on ponds and terrestrial habitat.

Policy 2

The second policy permits greater flexibility in the location of newly created habitats compensating for habitats that will be lost. This works naturally with the first policy, but allows habitat creation on land outside the development site.

However, in this case it must benefit newts more than if mitigation is kept on site. This may involve initial surveys over a broader area, and result in habitat creation, enhancement or restoration for the species concerned.
Developers will be able to contribute to habitat creation and enhancement projects across the local authority area, allowing development to continue without lengthy measures for amphibian exclusion.

Policy 3

This policy allows EPS to have access to temporary habitats that will be developed later. This applies particularly to quarries, which tend to have high populations of Great Crested Newt. Natural England wants to keep newts in quarries, and prevent the extensive use of exclusion fencing and time spent relocating newts, because the habitat provided for newts by quarries far outweighs newt mortality during quarrying activities.

A management plan to cover the life of the quarry, as well as restoration and aftercare once it is decommissioned, will need to be agreed.

Policy 4

This allows ecologists to depart from standard best practice survey methods – such as the guidance documents produced by the Bat Conservation Trust 2016 and by English Nature for the Great Crested Newt in 2001 – and conduct appropriate and relevant surveys where the impacts of development can be confidently predicted, in the expert judgement of the ecologist.

A single bat roost inspection, which is possible all year round, or a habitat assessment with an environmental-DNA water sample to detect Great Crested Newt DNA – possible between mid-April and the end of June – may be all that is required. In the use of this policy, Natural England will also expect the mitigation package to cover a worst-case scenario as a trade-off for the reduced project delays.

This policy could apply where there are significant health, safety and access constraints or an urgent development need.

Traditional standard

The traditional approach to licensing remains in place. However, these new policies provide more flexibility if the criteria can be met, and they can be used independently or in combination. Natural England strongly advises use of its Discretionary Advice Service (DAS) before invoking one of the policies, at least until they become embedded in the process. It takes up to 15 working days for Natural England to respond to a DAS request, and it charges £110 per hour plus VAT for doing so.

Biodiversity can be complex to manage for developments in planning and construction. This complexity will only increase with the changes that are taking place. Commissioning a PEA at the start of a development project will identify the ecological constraints and viable mitigation measures for a development proposal, which may save significant time and cost further down the line.

Cassie Todd is Principal Ecologist, South West region (Dorset) at agb Environmental

Further information