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Thomson Ecology HandbookNationally 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

Nationally protected species

For most other protected species, the most important legislation in England, Wales and Scotland is the Wildlife and Countryside Act 1981, as amended. In Northern Ireland, similar protection is provided by The Wildlife (Northern Ireland) Order 1985 and in Ireland by Wildlife Act 1976, as amended. A summary of the protection given to plants, birds and other animals in each country is set out below.

Plants

England and Wales

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.

Scotland

The protection for plants in Scotland is also under the Wildlife and Countryside Act. The protection is much the same except with additional offences of recklessly uprooting any wild plant and recklessly picking, uprooting, destroying etc any plant listed on Schedule 8.

Northern Ireland

The protection for plants in Northern Ireland is under The Wildlife (Northern Ireland) Order 1985, as amended. The protection given to plants is much the same as for Scotland, including the reckless offences, but with the additional offence of destroying any wild plant without the land owner’s permission.

Ireland

The protection of plants in Ireland is provided by the Wildlife Act 1976, as amended by European Communities (Wildlife Act, 1976) (Amendment) Regulations 1985 and the Wildlife (Amendment) Act, 2000. The protection applies to specific species only, either throughout Ireland or in particular areas, as determined by the Minister. The Act makes it an offence to cut, pick, collect, uproot or otherwise take, injure, damage, destroy or sell etc any such species and also to wilfully alter, damage, destroy or interfere with the habitat or environment of any such species. This last clause goes significantly beyond the protection for Schedule 8 plants in the UK. The Act does not include a list of protected plant species; instead, this is provided by the Flora (Protection) Order 1999 (the earlier 1987 order has been revoked).

Birds

England and Wales

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

* The Natural Environment and Rural Communities Act 2006 inserted a new schedule, ZA1, 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’. 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 or disturb dependent young. Schedule 1 includes species such as the barn owl and kingfisher.

Scotland

The Wildlife and Countryside Act also provides protection for wild birds in Scotland. The protection is similar except that it has been amended independently for Scotland to include ‘reckless’ offences for all birds including those listed on Schedule 1. The amendments for Scotland also include additional offences of (i) interfering with a nest of any wild bird, even when it’s not in use, for certain species of bird; (ii) obstructing or preventing any wild bird from using its nest; and (iii) disturbance of lekking Schedule 1 species at the lek.

Northern Ireland

The Wildlife (Northern Ireland) Order 1985 provides the protection for birds in Northern Ireland. The original Order contained the same offences as those set out in the Wildlife and Countryside Act. It has subsequently been amended, through the Wildlife and Natural Environment Act (Northern Ireland) 2011, with the addition of ‘reckless’ offences for all birds including those listed on Schedule 1.

Ireland

All wild birds receive protection in Ireland, under the Wildlife Act 1976 as amended; the original exceptions in the Third Schedule of the Act all now receive protection as a result of amendments in 1980 (bullfinch) and1985 (all the others). The law prohibits hunting (with exceptions); injury; wilfully taking, removing, destroying or mutilating eggs and nests; and wilfully disturbing protected species of birds on or near a nest containing eggs or young. Furthermore, Section 40 of the Act prohibits, with certain exceptions, the cutting, grubbing, burning or destruction of vegetation on uncultivated land between 1st March and 31st August, which covers the nesting and breeding season for the majority of birds. A defence in the legislation which allows capturing or killing birds if it is urgently necessary to prevent damage does not apply to birds of prey. The law also includes a specific defence for those constructing a road or carrying out any other building and construction work, meaning that unintentional (NB this word was introduced in the 1985 amendment) killing, injury, etc of any bird species is not an offence if it occurs as a result of such activity.

Animals other than Birds

England and Wales

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:

Species fully protected under the Wildlife and Countryside Act in England and Wales include:

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 require consideration over and above their legal protection, as a result of planning policy.

The Act also provides protection to any dolphin or whale and basking shark from intentional or reckless disturbance. Separately, 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).

Scotland:

As for birds, the protection for certain animals in Scotland is also provided by the Wildlife and Countryside Act but subject to slightly different amendments from those in England and Wales. Principal among the amendments which apply only in Scotland are the addition of the ‘reckless’ offence in relation to killing, injury, etc. and the addition of a harassment offence in relation to dolphins, whales and basking shark. The Protection of Badgers Act 1992 also applies in Scotland.

Northern Ireland:

The protection given to certain animals in Northern Ireland is provided by The Wildlife (Northern Ireland) Order 1985, as amended. It contains much the same offences as those in the Wildlife and Countryside Act, except there is an additional offence of damaging or destroying anything which conceals or protects a place of shelter used by an animal listed on Schedule 5 of the Order. As for birds, the protection for other animals was also amended by the Wildlife and Natural Environment Act (Northern Ireland) 2011 to create ‘reckless’ offences for all types of offences relating to the animal species listed on Schedule 5 of the Order. Species on Schedule 5 include badger, common lizard, pine marten, smooth newt and red squirrel. European protected species are not included on Schedule 5 of the Order; the protection for these is provided by The Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995, as amended.

Ireland:

In Ireland, the protection for animals other than birds is provided by the Wildlife Act 1976. The law prohibits hunting (with exceptions), injury, and wilfully interfering with or destroying the breeding place or resting place of any animal listed on the Fifth Schedule of the Act. The law includes a specific defence for those constructing a road or carrying out any other building and construction work, meaning that the unintentional killing, injury, etc of these animals are not offences if they occur as a result of such activity. The Fifth Schedule includes badger, hedgehog, hares, red squirrel and natterjack toad. The list of protected animals in Ireland is considerably shorter than that of Britain.

Review of the Schedule 5 and 8 of the Wildlife and Countryside Act

(England, Wales and Scotland)

The list of species included on Schedule 5 and 8 of the Wildlife and Countryside Act should be reviewed every five years and, as a result of these reviews, 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.

Fifth Quinquennial Review

The fifth review was published in December 2008. The following species were recommendations for addition to Schedule 5 (protected animals other than birds):

In addition, it was recommended that two species of plant (rock nail and tree 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.

In August 2011, the Governments for England and Wales published their response and these came into force in October 2011. The main outcomes were that (i) the white skate and rock nail received protection; (ii) the angle shark, the twaite shad, pool frog received further protection; (iii) the protection for the tentacled lagoon worm and lagoon sand shrimp was reduced; (iv) the Narrow-bordered five-spot burnet moth, Slender Scotch burnet moth and tree lungwort also received protection but from sale only; (v) the spiny lobster, porbeagle shark, common skate, undulate ray, and spiny dogfish did not receive protection; and (vi) the Essex emerald moth and the lagoon snail were removed from Schedule 5. In addition, the taxonomic revisions that affected Schedule 8 were all accepted.

In Scotland, the Government indicated that it was minded to agree with all of the recommendations contained in the review. It undertook a consultation exercise and published a summary of the consultation responses in 2012. The recommendations contained in the review do not yet appear to have resulted in amendments to the Schedules of the Act.

Sixth Quinquennial Review

The sixth QQR was submitted to Defra, the Welsh Government and the Scottish Government in April 2014. However, the content of the review and the government response have not been published.

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