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 there should be no liability for 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:

  • For agriculture, forestry, flood defence and damage to property
  • For protecting/investigating ancient monuments
  • For science and education
  • 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.

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.

Thomson Ecology Handbook

This online version of the Thomson Ecology Handbook provides a general overview of current wildlife legislation* and is aimed at helping project managers understand and plan for ecology from the start.

Find out more

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