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Thomson Ecology HandbookEuropean protected species

TEH Index

Part 1: Legal frameworks

Part 2: Planning policy and other guidance

Part 3: Development and features of biodiversity importance

Part 4: Surveys and assessment

Part 5: Mitigation and enhancement

Part 6: Practical techniques

European protected species

General process

Licences for development affecting European Protected Species can only be granted if the three tests set out in Habitats Directive (and associated Regulations) are met.

For most development schemes, licences for activities affecting species protected under European legislation may only be granted if there are imperative reasons of overriding public interest (sometimes referred to as the IROPI test). The reasons can include preserving public health and safety, or if there are beneficial consequences of a social, economic or environmental nature.

Even if there are such reasons, it must be shown that there is no satisfactory alternative to the proposed development (the NSA test). 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. That the development meets these requirements will normally also need to be demonstrated to the licensing authority during the licence application process.

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 (the FCS test). 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.

Typically, an application will need to be made to the licensing authority which sets out how these three tests are met. Licences are not normally granted until full planning consent is achieved for the development and any significant environmental conditions are discharged.

National variations:

England:

Licence applications normally comprise an application form plus two main documents; a ‘reasoned statement’ justifying why the licence is required and a method statement setting out the approach to be taken to mitigation prepared by the consultant ecologist working on the developer’s behalf. The reasoned statement may be prepared by the applicant (i.e. developer) or by persons authorised to do so on their behalf. 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. Templates are provided by the licensing authority and these vary from species to species. The templates must be used by those making an 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, the 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.

Following (and prior to) the Penfold Review, a number of improvements to the licensing procedure have occurred in recent years. However, licensing remains a complex field which requires specialist understanding to navigate and succeed. Rejection of the application on the first attempt remains common.

Wales:

In Wales, there are two documents: the licence application and the method statement. The applicant needs to provide enough information to satisfy the licensing authority that there is no satisfactory alternative and that the favourable conservation status of the species concerned will be maintained. Templates are provided by the licensing authority for the most commonly encountered European protected species. The method statement must include survey information, mitigation and compensation proposals, details of project surveillance and post project monitoring. As in England, the applicant is the developer and that person must be supported by an ecologist who is also named on the licence.

Scotland:

In Scotland, there is a single licence application which could be completed by the developer or the appointed ecologist. If the developer makes the application, an ecologist with appropriate experience who will undertake the works must also be named. Whoever is named on the application form is the person with the legal responsibility for ensuring that work is undertaken as described. The application form would normally be supported by a separate document which provides detail on the survey, impact assessment, and plans for mitigation and compensation; these last being set out in a detailed method statement. The applicant needs to demonstrate that the favourable conservation status of the species concerned will be maintained. For applications made to Scottish Natural Heritage, there is one just one type of application form for all European protected species licence applications and the supporting information required also follows the same format, regardless of species.

Northern Ireland:

The Northern Ireland Environment Agency has produced several application forms for European Protected Species licences, including one for development affecting bats and another for development affecting otters. As in England and Wales, the applicant is the developer and they are supported by an ecologist named on the licence. In addition to the application form, a method statement must be submitted containing details of the survey, an impact assessment and details of the proposed mitigation and compensation.

Ireland:

Applications for protected species licences are made to the National Parks and Wildlife Service. There is no standard application form or method statement to complete; however, it will still be necessary for the applicant to set out how the three tests are met. The applications must also include survey results and the proposed mitigation measures.

Nationally protected species

General process

In some circumstances, development affecting species which are not European Protected Species but are nevertheless protected under national legislation may also require a licence. The need for a licence depends on the level of protection given to the species and the methods (trapping, etc) used to implement the mitigation. Licences are required to implement mitigation if 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.

Whether or not a licence is required, 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 the licensing authority if applicable) 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.

National variations:

England and Wales:

The situation is less straightforward than it is for European protected species. This is because licences are not issued specifically for the purposes of development under the version of the Wildlife and Countryside Act that applies in England and Wales. This means that licences, if required, have to be applied for on the basis that they are for the conservation of the species. This can lead to creative wording but it is likely that the reasons for granting licences will be aligned with Scotland at some point.

Scotland:

In Scotland, licences can be issued for the purposes of development under the Wildlife and Countryside Act. A licence can only be granted if the work completed under the licence will result in a significant social, economic or environmental benefit and if there is no other satisfactory solution. This is much more straightforward than the situation in England and Wales.

Northern Ireland:

In Northern Ireland, the situation is much the same as for England and Wales except that the relevant legislation is the Wildlife (Northern Ireland) Order 1985 as amended.

Ireland:

Licences to disturb protected species or destroy breeding or resting places an be granted for any purpose under the Wildlife Act 1976 as amended.

Badgers and licensing

England, Wales and Scotland:

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:

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.

Northern Ireland and Ireland:

There is no equivalent of the Badgers Act in Northern Ireland and Ireland. Instead, badgers are protected under the Wildlife (Northern Ireland) Order 1985 and the Wildlife Act 1976.

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