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Find out how the presence of protected species can affect planning.
The presence of protected species is a material consideration in the determination of planning, listed building, advertisement consent and Estate Management applications. This is in accordance with Planning Policy Statement 9 (Biodiversity and Geological Conservation) (PPS9), Natural Environment & Rural Communities (NERC) Act 2006 (section 40), Wildlife and Countryside Act 1981 as well as Circular 06/05.
Protected species such as great crested newts, otters, dormice and bats benefit from the strictest legal protection. These species are known as European Protected Species ('EPS') and the protection afforded to them derives from the EU Habitats Directive, in addition to the above legislation. Water voles, badgers, reptiles, all wild birds, invertebrates and certain rare plants are protected to a lesser extent under UK domestic law (NERC Act and Wildlife and Countryside Act 1981).
In the UK the requirements of the EU Habitats Directive is implemented by the Conservation of Habitats and Species Regulations 2010 (the Conservation Regulations 2010). Where a European Protected Species ('EPS') might be affected by a development, it is necessary to have regard to Regulation 9(5) of the Conservation Regulations 2010, which states:
"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."
The Conservation Regulations 2010, (Regulation 41) contains the main offences for EPS animals. These comprise:
"Deliberate capture or killing or injuring of an EPS"
"Deliberate taking or destroying of EPS eggs"
"Deliberate disturbance of a EPS" including in particular any disturbance which is likely - (a) to impair their ability - (i) to survive, to breed or reproduce, or to rear or nurture their young, or, (ii) in the case of animals of a hibernating or migratory species, to hibernate or migrate, or (b) to affect significantly the local distribution or abundance of the species to which they belong
"Damage or destruction of a EPS breeding site or resting place" (applicable throughout the year). e.g. bat maternity roost (breeding site) or hibernation or summer roost (resting place), e.g. great crested newt pond (breeding site) or logpiles / piles of stones (resting place), e.g. dormice nest (breeding site or resting place (where it hibernates)
In some circumstances a person is permitted to 'derogate' from this protection. The Conservation Regulations 2010 establishes a regime for dealing with such derogations via the licensing regime administered by Natural England. The approval of such a license by Natural England may only be granted if three strict "derogation" tests can be met:
the activity to be licensed must be for imperative reasons of overriding public interest or for public health and safety;
there must be no satisfactory alternative; and
favourable conservation status of the species must be maintained.
Notwithstanding the licensing regime, the Council as Local Planning Authority (LPA) has a statutory duty to have regard to the requirements of the Habitat Directive and therefore due weight to the presence of an EPS on a development site is given as part of any planning, listed building, advertisement or estate management consent application. Therefore in consideration of a planning application for a development which could affect an EPS the LPA will consider whether an offence to an EPS is likely to be committed by the development proposal.
Before you apply
Prior to the submission of an application, the applicant should consider if it is likely that an offence will occur. If the answer is 'yes', it will be necessary for a phase 1 ecological study to be undertaken and report prepared. If, following this study, it is determined that there are protected species present and that one of the offences described above will occur, it will be necessary for further studies to be undertaken. As part of the additional studies and report that will be prepared, the applicant will need to demonstrate that the three derogation tests, detailed above, can be met.
The Council uses the biodiversity checklist Biodiversity Checklist to determine whether there is a likelihood of protected species being present. If you are unsure whether your proposal will affect a protected species, it is suggested that you refer to the checklist. If any answer to the questions are 'yes', there is a likelihood of protected species being present and it is recommended that you speak to a suitably qualified ecologist to determine whether a survey is required.