Protected species and development

In the UK, a number of species of animal and plant are legally protected. Some species are covered by both European and UK legislation, whilst others are covered by UK legislation only.

European Protected Species
Nationally Protected Species
Plants
Birds
Animals other than Birds

European Protected Species

European protected species are covered by the Habitats Regulations 2010 (which replace the 1994 Regulations). The Regulations make it an offence, with very few exceptions, to:

deliberately capture, injure or kill any wild animal of a European protected species;
deliberately disturb wild animals of any such species in such a way as to be likely:
to impair their ability to survive, to breed or reproduce, or to rear or nurture their young; or,
in the case of animals of a hibernating or migratory species, to impair their ability to hibernate or migrate; or
to affect significantly the local distribution or abundance of the species to which they belong;
deliberately take or destroy eggs of any such wild animal;
damage or destroy a breeding site or resting place of such a wild animal;
deliberately pick, collect, cut, uproot or destroy a wild plant of a European protected species;
keep, transport, sell or exchange, or offer for sale or exchange, any live or dead wild animal or plant of a European protected species, or any part of, or anything derived from such an animal or plant.

European protected species include some widespread and familiar UK species such as otters, great crested newts and all species of bat. In addition to protection given to European protected species already described, these species are also partially protected in England & Wales under the Wildlife and Countryside Act, which adds the following offences (with certain exceptions) for animals:

disturbance while it is occupying a structure or place which it uses for shelter or protection; or
obstructing access to any structure or place used for shelter or protection.

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Nationally Protected Species

For most other protected species, the most important legislation is the Wildlife and Countryside Act 1981, as amended.

Plants

The Wildlife and Countryside Act provides limited protection to all plants, as it prohibits the intentional uprooting of any plant without the landowner’s permission. However, this is not likely to have any implications on development sites. Certain, mostly very rare, species of plant are listed on Schedule 8 of the Wildlife and Countryside Act. These species are strictly protected from picking, uprooting, destruction or sale. A familiar species, the bluebell, also appears on Schedule 8, but is protected from sale only.

Birds

The Wildlife and Countryside Act also gives blanket protection to all wild bird species, making it an offence, with certain exceptions, to intentionally:

kill, injure or take any wild bird species; and
take, damage or destroy its nest or eggs.

Some species, listed in Schedule 1 of the Wildlife and Countryside Act, have additional protection, making it an offence to intentionally or recklessly disturb them at the nest. Schedule 1 includes species such as the barn owl and kingfisher.
The Natural Environment and Rural Communities Act 2006 inserts a new schedule into the Wildlife and Countryside Act for birds whose nests are protected even when not in use. Currently the schedule includes only golden eagle, white-tailed eagle and osprey. In addition, the Natural Environmental and Rural Communities Act 2006 provides a legal definition of ‘wild bird’.

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Animals other than Birds

Animals other than birds receiving protection under the Wildlife and Countryside Act are listed in Schedule 5 of the Act. The level of protection is variable. For those species with full protection it is an offence to:

Intentionally kill, injure or take such a species;
Possess or control any live or dead specimen, or anything derived from such a species;
Intentionally or recklessly damage, destroy or obstruct access to any structure or place used for shelter or protection;
Intentionally or recklessly disturb such a species while it is occupying any structure or place used for shelter or protection;
Trade in such a species.

Species fully protected under the Wildlife and Countryside Act include:

the water vole
lesser silver water beetle
marsh fritillary
southern damselfly

Some species are offered partial protection only, for example, from killing, injury and selling (e.g. slow worm), some from selling only (e.g. common toad), and others from capture (e.g. white clawed crayfish). However, many of these species do require consideration, over and above their legal protection, as a result of planning policy.

The list of species included on Schedule 5 is reviewed every five years and the list is now considerably longer than in 1981. The recommendations of the fourth review (published in 2002) were partially adopted in April 2008, with the water vole gaining full protection increased from partial protection) and angel shark, Roman snail, spiny seahorse, and short-snouted seahorse also receiving protection. The fifth review was published in December 2008.

The following species were recommendations for addition to Schedule 5 (protected animals other than birds):

Pool frog (Northern clade only): England
Common skate
Porbeagle shark
Spiny lobster: England and Wales
Undulate ray
White skate
Spiny dogfis
Pine hoverfly: Scotland
Aspen hoverfly: Scotland
Narrow-bordered five-spot burnet moth
Slender Scotch burnet moth

In addition, it was recommended that two species of plant (rock nail and lungwort) be added to Schedule 8 (strictly protected plant species). Increased protection was proposed for water vole (Scotland only), allis shad, twaite shad, spiny seahorse (Scotland only), short nosed seahorse (Scotland only) and angel shark, while reduced protection was proposed for the tentacled lagoon worm and the lagoon sand shrimp. It was also recommended that the lagoon snail, the Essex emerald moth and the northern hatchet shell are removed from Schedule 5, as they no longer require protection.

Several ‘species’ of plant are also recommended for removal from Schedule 8 as a result of taxonomic changes. The outcome is awaited.

Prior to 2007, the European protected species were protected by both the Habitats Regulations and the Wildlife and Countryside Act which resulted in slightly differently worded but near enough the same protection duplicated in both pieces of legislation. In 2007, the duplication was removed such that the main protection for European protected species is now set out in the Habitats Regulations, with only protection from low level disturbance and obstructing access to places of shelter, which are not covered by the Habitats Regulations, remaining within the Wildlife and Countryside Act.

Badgers are the subject of another important piece of UK legislation that can affect planning and development - the Protection of Badgers Act 1992. This makes it an offence to wilfully kill, injure, take or ill-treat a badger and to interfere with a sett (including damage, disturbance and obstruction).

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