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Licensing
Licensing
- Protected Species Licences
- Licences for Survey Work
- Licences for Development
Protected Species Licences
Licences are issued by government agencies to permit activities that would otherwise be illegal. For example, licences may be issued to allow disturbance to species or damage to their habitats. However, the licences are not generally issued to allow the killing and injury of species that are of conservation concern.
Licences may be required for survey work involving protected species, and development activities that will affect protected species. The different nature of these two kinds of action, and the level of protection (i.e. European or UK), has important implications for the licensing process.
Licences for Survey Work
- Licensing authority for survey work:
- England: Natural England
- Wales: Countryside Council for Wales
Under the legislation, it may be an offence to cause disturbance to or capture a particular species. For those wishing to undertake a survey for that species using techniques involving direct contact with the animal or using traps, an individual can apply for a license from the appropriate licensing authority.
Applicants for survey licences must show a suitable level of knowledge of the subject species and experience in relevant survey techniques.
The licence allows the protected species to be disturbed or caught legally. It is usually a condition of the licence that any animals caught are released shortly after capture and in the same location.
Licences for Development
For some protected species, including all European protected species and badgers, it is possible for the developer to apply for a licence allowing the development activities to go ahead whilst remaining within the law. Our consultant ecologists can advise on and help with the licence application process, based on specialist knowledge of the species and any survey information already gathered. The licensing process is different depending on whether the species is covered by European or UK only legislation, and on the level of protection afforded to the species in question.
European Protected Species
- Licensing authority for development work:
- England: Natural England
- Wales: Welsh Assembly Government, with advice from Countryside Council for Wales
Licence applications comprise two main documents; A method statement setting out the approach to be taken to mitigation prepared by the consultant ecologist working on the developer’s behalf and a ‘reasoned statement’ justifying why the licence is required. This may be prepared by the applicant (i.e. developer) or by persons authorised to do so on their behalf.
For most development schemes, licences for activities affecting species protected under European legislation may only be granted for reasons of overriding public interest. This includes preserving public health and safety, or if there are beneficial consequences of a social, economic or environmental nature. In addition, it must be shown that there is no satisfactory alternative to the proposed development. If planning permission has been granted or the development is a permitted development, then the proposal should already have been shown to meet these requirements - see Woolley Ruling. That the development meets these requirements will also need to be demonstrated to licensing authority during the licence application process, via the reasoned statement.
The outcome of a licence application will normally not be determined until planning issues have been resolved. However, changes to the licensing procedure that came into force in mid-March 2009 mean that from this time, in exceptional circumstances, a licence could be issued before full planning consent is secured. In this case, the applicant must demonstrate that the scheme already complies with the tests set out in the Habitats Regulations. Licences acquired prior to receipt of full planning consent are likely to include a condition requiring all necessary consents and / or wildlife-related conditions to be discharged before licensed activities may commence.
To grant a European protected species licence (EPSL) the licensing authority should also be satisfied that the activity will not be detrimental to the maintenance of the species at a favourable conservation status. This can be demonstrated by producing a suitable mitigation proposal, showing how impacts are to be reduced or how compensation measures such as habitat improvement or creation will be provided. The method statement gives the details of such mitigation actions, including post-project monitoring and habitat management, and is a requirement of the licence application.
The licence application is signed by both the developer and the consultant ecologist but overall responsibility for compliance with the licence terms and conditions (including the method statement) lies with the developer. It is very important that the details of the method statement are well thought out and agreed by the developer and ecologist before the application is made. This is because a licence application containing a variety of options is likely to be refused by the licensing authority. Amendments to an issued licence can take 30 working days or more to be approved and deviation from the method statement once the licence is issued can now result in criminal prosecution under amendments to the Habitats Regulations made in 2007.
Representatives of the licensing authority, or their advisers, may undertake site visits to check the accuracy of statements made about the site in the licence application and to monitor compliance with the licence method statement.
For phased developments, licensing authority may require the submission of an overall masterplan for the species concerned with the first application. The masterplan should include information on the impacts and mitigation associated with each phase of the development and demonstrate that the total mitigation package is coherent and workable. For larger developments, it may also be necessary to submit a habitat management plan with the licence applications.
Nationally Protected Species
- Licensing authority for development work:
- England: Natural England
- Wales: Countryside Council for Wales
For species protected under national legislation and not European legislation, the situation is less straightforward. Licences are not issued for the purposes of development under the Wildlife and Countryside Act. Nevertheless, licences are required to implement mitigation in some circumstances, depending on whether the actions required during the mitigation process would be illegal.
For example, if it is an offence to take or capture the species (e.g. the white-clawed crayfish or water vole), then a mitigation proposal that involved the capture and removal of the species from a development site could only legally be carried out under licence from the appropriate licensing authority. Or, if it is not an offence to take or capture the species (e.g. slow worm), then a mitigation proposal that involved the capture and removal of the species from the development site would not need a licence to be carried out legally. Regardless of whether a licence is required to undertake the works, mitigation for protected species may still be necessary to avoid other offences.
The planning authority may request the preparation of a method statement describing how the mitigation will be implemented, including the level of effort to be used and the degree to which compensation will be made for habitat lost. Current best practice is that the method statement should be submitted with the planning application. The implementation of the method statement may then become a planning condition. Even when the planning authority does not request such a method statement, it is good practice to have one prepared and, depending on the type of development, agree the content with either the planning authority (who should consult licensing authority) or the licensing authority.
Agreeing the method statement in this way is vital if a defence provided within the legislation is to be relied upon with confidence. The defence permits otherwise illegal activity if it is the incidental result of a lawful operation and could not reasonably have been avoided. The key is to agree what is ‘reasonable’ before any activities (e.g. site clearance) start. This is usually done via the method statement. If, for example, an individual of the protected species were to be killed or injured during site clearance, then the defence can be relied upon because an effort has been made to remove them from site in accordance with the agreed method statement. Equally, if replacement habitat has been provided to the level agreed with the regulatory body, then you should not be liable to prosecution for destruction of habitats.
Badgers and Licensing
- Licensing authority for development work:
- England: Natural England
- Wales: Countryside Council for Wales
Badgers are protected under the Protection of Badgers Act 1992. Under this legislation, some activities affecting badgers or their setts can be carried out under licence from the appropriate licensing authority. Four separate types of licence are available for specific activities, as follows:
- For agriculture, forestry, flood defence and damage to property;
- For protecting/investigating ancient monuments;
- For science and education; and
- For development
Licences for development permit interference with a badger sett, including disturbance of a badger when it is occupying a badger sett. The licence application is made by an ecologist and must be accompanied by a detailed method statement setting out the details of mitigation works to be carried out under the licence. The licence will normally only be issued once detailed planning permission has been obtained, but receiving planning permission offers no guarantee that a licence will be granted.
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