Otters

Protection of European protected species

European Protected Species (EPS), their breeding sites and resting places are protected against disturbance and harm. Also EPS plants are protected. If you have a valid purpose, NRW can grant you a licence to undertake works affecting EPS legally, and avoid breaking the law.

Guidance note two

Legislation covering European protected species applies regardless of whether they are found in a designated site. A preliminary ecological survey to confirm a protected species presence and an assessment of the development’s likely impact on the species will be needed. This will inform the planning decision-making process.

When EPS are involved, we will consult with NRW, the licensing authority, before granting planning permission.

Guidance note three

When European protected species are present onsite, the developer will have to apply for derogation (development licence) from NRW.

As a competent authority under the Conservation of Species and Habitats Regulations 2010 (‘Habitat Regulations’), we must consider the Habitats Directive’s requirement to establish a system of strict protection. Also we must consider that derogations are allowed only where Article 16 of the EC Habitats Directive’s three tests are met (TAN 5, 6.3.6).

In order to comply with our duty under the Habitats Regulations, we will need to consider all three tests in our decision. (See the Judicial Review of Woolley vs Cheshire East Borough Council 2009). NRW must be consulted on whether test three is met before the application is determined.

Local priority habitats and species: Section 42 (NERC Act 2006)

Biodiversity is the variety of life on earth. It includes all plant and animal species and the network of systems that support them. The conservation and enhancement of biodiversity are key elements of sustainable development.

The loss of biodiversity and resulting negative environmental impact is contrary to the aims and objectives of sustainable development. In principle, sustainable development should not lead to a net loss in biodiversity or natural resources.

Much of the pressure on biodiversity is related to development and land use. Consequently the planning and development process has a fundamental role to play in controlling and relieving this pressure. Failure to address biodiversity issues may cause a planning application to be refused.

Section 40 of the Natural Environment and Rural Communities (NERC) Act 2006, places a duty on all English and Welsh public authorities to consider the purpose of conserving biodiversity in their work.

A key purpose of this duty is to embed consideration of biodiversity as an integral part of policy and decision-making throughout the public sector.

The UK Biodiversity Action Plan

The UK Biodiversity Action Plan (UK BAP) describes the UK’s biological resource and sets out a plan for its protection. This is the UK’s response to the Convention on Biological Diversity which it signed in 1992 thereby committing to halt biodiversity’s decline by 2010.

All four UK countries’ governments adopted the recommendations of experts and published the UK list of priority species and habitats in August 2007. This list is the result of the most comprehensive analysis ever run in the UK. It contains 1150 species and 65 habitats that have been listed as priorities for conservation action.

Planning permission is only granted when we are satisfied that all three tests are likely to be met. If not, then refusal of planning permission may be justified (TAN5, 6.3.6). A proportional approach can adapt how the tests are applied. That is, the severity of the tests will increase with the extent of the negative effect on a species/population.

Test one

Is the derogation in the interests of public health and public safety, or for other vital reasons of overriding public interest? This would include social or economic interests, and those mainly benefitting the environment.

Only public interests promoted either by public or private bodies can be balanced against conservation aims. Projects entirely in companies’ or individuals’ interests would generally not be covered.

The public interest must also be overriding, and as such, not every kind of public interest is sufficient. In most cases, a public interest is likely to be overriding only if it is a long-term interest and provides long-term benefits.

Test two

Is there a satisfactory alternative?
An analysis of whether there is no satisfactory alternative needs to consider:

• the specific situation that needs to be addressed
• whether there are any other solutions
• whether any of the other solutions will resolve the situation which the derogation is sought for

From the options, choose the most appropriate which will ensure the species’ best protection while addressing the situation. This could involve alternative locations or routes, different development scales or designs or alternative processes or methods. Derogation must be a last resort.

This appraisal must also consider whether an alternative is satisfactory. This appraisal must be based on objectively verifiable factors, like scientific and technical considerations. Also the approach must be limited to the extent necessary to address the situation.

Where another alternative exists, any arguments that it is unsatisfactory will need to be convincing. An alternative cannot be deemed unsatisfactory because it would cause greater inconvenience or force a behaviour change.

Test three

Is the derogation non-detrimental to maintaining the species’ population at a favourable conservation status in their natural range?

Assessment of a specific derogation’s impact will normally have to be at a local level in order to be meaningful in the specific context. This may mean the level of a site or population.

Two things have to be distinguished in applying test three:

1. The actual species’ conservation status at both a biogeographic and local population level.
2. What the impact would be.

In cases where the conservation status is different at the different levels assessed, consider the situation at the population level first.

With destruction of a breeding site or resting place, it is easier to justify derogation:

• if sufficient and appropriate compensatory measures offset the impact
• if the impact and the effectiveness of compensation measures are closely monitored to ensure any risk for a species is detected

To aid the planning process when European protected species are present onsite, it is recommended that:

• applicants submit a method statement showing how test three can be met to the local planning authority with amended plans noting all proposed mitigation and compensation
• NRW receive the method statement, a copy of the survey report, and the application details for their written approval on whether test three will be met
• the applicant should also submit a statement addressing tests one and two to the local planning authority to help inform its assessment of the tests.

Details of the requirements of this method statement are available from the EPS licensing section of Natural Resources Wales.

If NRW’s advice confirms that test three will be met and we have decided that all three tests are met, consent should be granted. This will be on the condition that all mitigation measures as approved by NRW are fully implemented.

The following will be attached as an informative (II037) to the planning consent:

“Where any species listed under Schedules 2 or 5 of the Conservation of Habitats and Species Regulations 2010 is present on the site, or other identified area, in respect of which this permission is hereby granted, no works of site clearance, demolition or construction shall take place unless a licence to disturb any such species has been granted by the Natural Resources Wales in accordance with the aforementioned regulations.”

This follows Welsh Government guidance TAN5 (6.2.1) and in partial fulfilment of a requirement under S25(1) of the Wildlife and Countryside Act 1981 (as amended).

Reference to the provisions of the Conservation of Habitats and Species Regulations 2010 will also be made in the planning officer’s reasons for approval.

When applying for their licence, applicants must send the planning officer a copy of the local authority consultation document. This is part of the Natural Resources Wales application. This form requests details from us to show that the three tests have been met and considered as part of the planning decision. Also, it forms a record of the Local Planning Authority’s (LPA) compliance.

In the event of police investigation, such records could provide valuable evidence that the LPA has exercised due diligence.

The EC guidance document on animal species of community interest’s strict protection under the Habitats Directive 92/43/EEC further advises how the tests should be considered.

The most common European Protected Species in Wales:

The following animals are listed on Schedule 2 of the Habitats Regulations:

• bats of all species
• dormouse, muscardinus avellanarius
• great crested or warty newt, triturus cristatus
• otter, lutra lutra

The following plants in Wales are European Protected Species (EPS), which are listed on Schedule 5 of the Conservation of Habitats and Species Regulations 2010:

• fen orchid, liparis loeselii
floating water-plantain, luronium natans
• killarney fern, trichomanes speciosum
• shore dock, rumex rupestris

Licencing European Protected Species

NRW has a standard method of application for licences regarding development. Briefly, a licence application requires the developer or landowner who will be doing the proposed works to appoint a suitably qualified and experienced ecologist. The latter must be named on the licence application. The appointed ecologist will most likely be responsible for coordinating the licence application, which requires the completion of an application form and method statement.

The method statement must be to the approved Natural Resources Wales format, which is given with the licence application information. It will present much the same information as that required by us to inform the planning application.

Once NRW receives an application, it will normally take up to 30 days for a determination.

The licence granted will have conditions attached and will only be valid with the approved method statement. The licence only permits those activities which the Method Statement identifies. Thus it is important that developers and landowners carefully review and agree the method statement before submission to NRW.

The activities and measures detailed in a licence are there to avoid unnecessary harm to the protected species. Failure to follow its exact measures can lead to prosecution. Any activity carried out that deviates significantly from the licensed method statement may be considered a breach of licence. This includes works carried out in different locations, using different methods or at a different time than that identified in the method statement. Any committed works identified in the method statement which are not implemented as it specifies might also be considered a breach of licence. These may include:

• inspecting and maintaining exclusion fencing
• carrying out monitoring and management works
• mitigation measures which the ecologist supervises onsite

Breaching the licence is a criminal offence. Under the current laws, anyone authorised to carry out activities under the licence may be held responsible for breaches of its terms and conditions.

Therefore all staff and contractors onsite should be fully briefed on the licence and its implications for working there, before being allowed to start onsite. Onsite at all times, there should be:

• an updated copy of the licence
• the associated method statement
• any identification sheets that may be helpful to site workers
• contact details for the appointed ecologist

Licences have an expiry date. If works need to continue beyond it, an extension must be applied for. Extensions cannot be issued for licences that have expired. Once a licence has expired, a new licence must be applied for. Depending on the time since expiration, this may or may not need additional surveys to ensure that accurate, updated information supports the licence application.

Licencing UK Protected Species

The Wildlife and Countryside Act (WCA) 1981 lists protected plant and animal species on various schedules, with differing levels of protection according to their needs. NRW can issue licences for several purposes under this legislation including scientific, research, educational, conservation and photography, but not for development.

The WCA does not allow NRW to issue a wildlife licence where development activities affect a UK protected species. This means that where development works affect a species protected under the WCA, this may be illegal. A developer would only be able to use the ‘incidental result of an otherwise lawful operation’ defence if enforcement proceedings were brought in these circumstances. Developers may support their defence if they can show the works follow good practice and are done according to lawfully granted permission, like planning permission. However ultimately, this is a matter for the courts to decide.

Part I of the Wildlife and Countryside Act 1981 (as amended) protects wild animals listed in Schedule 5, which are largely not European protected species.

With some exceptions and without a licence or relevant defence, it is an offence in respect of any wild animal listed in Schedule 5 to:

• intentionally kill, injure or take them;
• intentionally or recklessly damage, destroy or obstruct access to any structure or place used for shelter or protection, even when the animal isn’t present
• intentionally or recklessly disturb them whilst occupying a structure or place which they use for shelter or protection
• trade in a wild animal of a listed species whether alive or dead, or any part of it or anything derived from it
• publish an advert, or cause one to be published which is likely to be understood as meaning someone trades or intends to as mentioned above
• intentionally or recklessly disturb a dolphin, whale or basking shark wherever it may be
• possess or control a live or dead wild animal of a listed species, or any part of it or anything derived from it

The need to run a survey for UK protected species.

Where any birds, animals or plants protected under the Wildlife and Countryside Act 1981 Schedule 1, 5 and 8 respectively may or may not be present, we strongly recommend you run surveys before considering development proposals. Protected species may be found in a range of habitats, both in countryside and some urban situations.

The presence of protected species may affect the programming of work and scope development. However early consideration can resolve most potential conflicts and avoid expensive delays. It is wise to do this even before buying a site, as the presence of protected species could affect the scope for development. The field survey should confirm if protected species are there or likely to be there.

An assessment for protected species should be considered at an early stage on any sites that may support them. You should assess how important the site is in terms of protected species.

Guidance note four:

Where protected species are present locally and the site supports potential habitat, we expect to receive survey and mitigation plans before deciding on planning applications. Planning conditions and other agreements may be put on consents to ensure effective conservation of affected species.

Sometimes formal environmental assessments are needed before planning permission will be considered. This is mainly for large-scale projects.

The South East Wales Biological Records Centre should be asked to run a search for protected species to inform the survey effort. Also other relevant organisations may hold useful data including NRW, and local species interest groups.

However based on existing information and a habitat assessment, you may not need a new survey if your ecological advisers are sure that:

• the impacts of development will be minimal
• further survey information would neither change this view nor significantly modify mitigation proposals

Where mitigation and compensation are needed, present these plans with the application. This will allow a full evaluation of the net effects of development and protected species protection measures. Also, it can help speed up the decision-making process.

Protected species friendly features can be incorporated into the landscape design. Along with mitigation, developments can avoid affecting protected species and achieve net gain for the environment.

If planning permission is granted, the law protecting protected species still applies even if there are no conditions relating to protected species. Because of this, developers must make every reasonable effort to safeguard protected species. Similarly, some damaging activities like archaeological investigations may not need planning permission but could still be unlawful if done without proper care.

Other considerations will be examined such as whether there are species of principal importance in Wales (S.42) and UK Biodiversity Action Plan priority species. Our Local Development Plan Policy ENV6 Nature Conservation expects developers to avoid or overcome harm to nature conservation assets and/or wildlife which may be:

• resident
• in-situ
• have been shown to visit habitats in the site on a migratory basis

Surveys for priority species or habitats

Guidance note five:

Where it is reasonably likely a development would affect a priority habitat or species, an assessment of the likely impact must be made. The assessment will need to be in the form of an ecological survey and report.

Normally, developments which adversely affect the above are unacceptable.

Remember that the survey work needed to inform such assessments will be seasonally restricted. See the guidance sheet ‘Survey Requirements’. Discussing biodiversity survey needs at the pre-application stage can reduce the likelihood of delays due to requirements for surveying being identified later on.

Guidance note six:

Only in special cases where a development’s importance outweighs the impact on the feature, would an adverse effect be allowed. In such cases, planning conditions or obligations will mitigate the impact.

The loss of or damage to any of the BAP habitats or species should be compensated for on a no-net loss basis. They can be replaced on a like for like basis on site or offsite as part of a biodiversity off-setting scheme.

To reflect the loss in quality of a habitat, offsetting a greater area than that lost by the impact of the development may be required. This is to achieve a no-net loss of biodiversity through providing offsets.

The three key factors to be taken account of in specifying the relevant ratios are:

1. Habitat Value. This is considering the relative distinctiveness and quality of what is lost and what is provided in return.
2. Risk and Uncertainty. This is considering that we can know what biodiversity a development is removing. Yet creating or restoring habitat is always subject to risk that the offset will fail to deliver habitat of the expected quality.
3. Time preference. This is considering the fact that we would prefer to have a given amount of biodiversity now rather than sometime in future. While habitat loss due to development is immediate, creation or restoration of habitats may take many years.

Any planned loss and replacement of the above habitats should be discussed in detail with us at the pre-application stage, as recommended by national policy (PPW 5.5.1). We will be able to advise you. Pre-application discussions with statutory consultees such as NRW are recommended, as well as non-statutory consultees like South and West Wales Wildlife Trust if appropriate. Another could be the RSPB.

This should be done at the very beginning of the design process. It will allow adequate and suitable mitigation and compensation measures to be included in the design, as well as to aid the planning application process.

Natural Resources Wales have a regulatory function for the water environment. Their website gives more advice and information on the consents and permissions which developers may need from them.

Note that:

• ancient woodlands are virtually irreplaceable and should not be removed or destroyed
• hedgerows are subject to the Hedgerow Regulations
• these habitats may contain or be used by protected animals, which will be subject to specific surveys and mitigation/compensation measures

The UK Biodiversity Action Plan (BAP) details a programme for conserving British biodiversity, and this includes a list of habitats which are conservation priorities.

As per section 42 of the Natural Environment and Rural Communities Act (2006), Welsh Government has published a list of habitat types. In its opinion, these are of principal importance for conserving biodiversity in Wales.

The list contains 51 of the total 65 UK BAP habitats with an extra three marine habitats specific to Wales. The list is the definitive reference for all statutory and non-statutory bodies involved in operations that affect biodiversity in Wales.

It should also guide decision-makers like local and regional authorities in implementing their statutory duties. It should make them pay regard to biodiversity conservation in completing their normal functions.

Note for developers

Ignoring or inadequately addressing a development’s potential to affect important wildlife habitats or species could delay processing applications or refusing permission. In some cases, it could delay or prevent implementing planning permission, as when protected species are found on a development site after work begins.

Plans to protect habitats

Relevant Habitat Action Plans (HAPs) were developed to cover the actions needed to help conserve many of the county borough's key species. However, some species are not adequately covered by the habitat action plans, and individual Species Action Plans (SAPs) were produced for them.

SAPs were produced for:

• species so highly threatened or rapidly declining that urgent action must be taken to avoid local extinction like the rarer fritillary butterflies
• widespread species occurring in a range of habitats, but for which general habitat work will not cater for them
• species which have such peculiar ecological needs that normal habitat management won’t be sufficient although they are restricted to particular habitats like Shrill Carder Bee

Where development proposals may affect national or local BAP habitats or species, the same principles apply as to locally designated sites (TAN 5; 5.5.4).

Local sites have an important role in meeting biodiversity targets and adding to community quality of life and wellbeing. The nature conservation interests are a material consideration in planning decisions (TAN 5), and the Bridgend Local Development Plan’s policies provide for their protection.

Therefore as with designated sites, TAN 5 expects developers to identify how their proposals may affect BAP habitats and species either positively or negatively. Where relevant, they must note how proposed development sites contribute to wider ecological networks or mosaics.

Bridgend Local Biodiversity Action Plan Habitats

The following habitat groups are known as United Kingdom Biodiversity Action Plan (UKBAP) Habitats. They are found in Bridgend County Borough and are included in the local BAP, which identifies priorities at a county level.

Woodland and hedgerows habitats include:

• ancient and species-rich hedgerows
• lowland ancient woodlands
• upland oak woodlands
• wet woodlands
• lowland wood-pasture and parklands
• beech and yew woodland, lowland mixed deciduous woodland
• traditional orchards

Grassland habitats include:

• hay meadows and old pastures
• lowland dry acid grasslands
• calcareous grasslands
• cereal field margins
• Marshland habitats include:
• purple moor-grass and rush pastures
• coastal and floodplain grazing marshes
• reedbeds
• fens and flushes
• blanket bogs

Heathland habitats include:

• heathlands
• Coastal, marine and rock habitats include:
• coastal sand dunes
• marine habitats statement
• saltmarsh
• shingle
• coastal cliff and slope
• limestone pavements

Water habitats include:

• eutrophic standing waters and ponds
• aquifer fed naturally fluctuating water bodies
• rivers
• mesotrophic lakes
• oligotrophic and dystrophic lakes
• Other habitats include:
• open mosaic habitats on previously developed land
• urban green space such as parks, allotments, flower-rich road verges and railway embankments
• caves, disused tunnels and mines
• coal mining spoil heaps

Guidance note seven:

Some of these habitats do not receive statutory protection, but are protected by planning policy.

The protection offered by the Wildlife and Countryside Act 1981 and the Habitats Regulations (2010) is additional to that offered by the planning system.

The Natural Environment and Rural Communities (NERC) Act 2006 places a statutory duty on public bodies to conserve biodiversity. Therefore, it is essential that there is a balance between development, and protecting existing habitats and species which contribute to our biodiversity. LDP Policy ENV6 Nature Conservation (4.1.26) balances the location, design, and layout of developments or redevelopments, and the need to conserve sites’ biodiversity. It also seeks to take into account the interests of any adjacent nature conservation resources.

As per Section 42 of the NERC Act (2006), Welsh Government published a list of species it sees as key for conserving Welsh biodiversity.

We have an obligation to protect and promote the long-term conservation of Section 42 species and others as part of the planning process. Further, we must be able to provide a clear audit trail for any decisions which might affect them. Therefore where these species occur, information should be sought from appropriate experts and considered in development plans.

Our Local Biodiversity Action Plan (LBAP) volume one contains details of Section 42 habitats and species key for nature conservation in Bridgend County Borough.

Bridgend local biodiversity action plan species include:

• hazel dormice
• bats (all species)
• otters
• water voles
• barn owls
• lapwings
• skylarks
• whinchats
• reed buntings
• spotted flycatchers
• great crested newts
• marsh fritillary butterflies
• high brown fritillary butterflies
• small blue butterflies
• double-line moths
• bordered gothic moths
• waved carpet moths
• hornet robberflies
• brown-banded carder-bees
• shrill carder-bees
• hairy dragonflies
• scarce blue-tailed damselflies
• bog bush-crickets
• medicinal leeches
• fen orchids
• whorled caraway
• shore dock
• viper’s-grass
• arable weed species (group plan)
• the lichen bacidia incompta

The Welsh Government has made the status of priority habitats and species a headline indicator used to measure national progress towards sustainable development. Future development in Bridgend County Borough will be key in ensuring that the status of habitats and species improves.

To help monitor works affecting priority habitats and species, all development works affecting them should be recorded on The Biodiversity Action Reporting System (BARS) website.

Guidance note eight:

Developers/applicants must provide enough evidence to show that avoidance is impossible before mitigation or compensation is considered a viable alternative.

Avoidance measures built into development proposals may remove the need for detailed surveying. We will seek expert advice from NRW in determining cases when this may be applicable.

Avoidance measures are those which can reasonably be implemented to avoid offences. As such, these Reasonable Avoidance Measures (RAMs) can often avoid the need for a licence. RAMs are the preferred approach when considering a scheme’s design. RAMs may include measures ranging from:

• revising the site layout to avoid losing an important feature
• carrying out works at a time which is less likely to result in disturbance
• amending working methods to reduce impacts to an acceptable level

If RAMs are practical in a scheme, these must still be detailed in a method statement which is submitted to us for approval. Applying the measures in the RAMs method statement will likely be a condition of the resulting planning consent.

If the RAMs avoid all anticipated effects on a priority species and their habitats to acceptable levels, an NRW licence is likely to be unneeded. Often this avoids or reduces delays to starting development and will often reduce costs as well. Therefore it is important to create communication channels between your architects whether they are landscape or otherwise and your chosen, suitably qualified ecologist whilst master-planning. This will help to guide the design and programme at an early enough stage to identify whether RAMs may be a suitable approach.

Early identification and incorporation of green infrastructure assets into a development will help reduce a scheme’s development impact and provide opportunities for RAMs. Also it avoids more complex mitigation and compensation schemes which may need a license.

Guidance note nine:

Where harm is unavoidable, mitigation measures should minimise it.

It may be impossible to just use RAMs to fully address all potential impacts on protected or priority species and habitats. This will depend on the scale of development and predicted impacts. Where endangered or protected species are present, compensation measures may be requirements of a licence. Early communication across the design team promotes greater understanding of all constraints whether ecological or otherwise, and allows a balanced approach to development design.

Where RAMs cannot satisfactorily avoid impacts, mitigation measures will be required to ensure there is no harm or net loss in habitat. The exact measures required will depend on the species, habitat, population size, distribution and proximity to works and their scale, timing and duration.

The method statement will detail the mitigation measures to be implemented. Where there are licensed activities, they must be carried out strictly according to the method statement.

Guidance note ten:

Compensation will only be considered where the developer/applicant has satisfactorily demonstrated that avoidance and mitigation are impossible. Also the compensatory measures must result in no net habitat loss.

Where mitigation cannot satisfactorily reduce all potential impacts to satisfactory levels, additional compensation measures will likely be needed. Where endangered or protected species are present, a licence may require compensation measures.

Compensation measures most frequently involve habitat losses. The loss of habitats requires offsetting, such that sufficient habitat is provided to maintain breeding, foraging, refuge and dispersal functions for the affected population. The population size and natural range must also be maintained. Thus it is important to consider connectivity between retained, new and existing habitats in the wider area.

Habitat compensation must occur before exclusion of the site and capture of protected species. This will enable the transfer of protected species and other fauna to the compensation area(s) before development disturbs them.

As part of the green infrastructure approach, habitats should be identified, protected and enhanced where possible. This may include:

• incorporating existing natural assets like ponds, trees, or woodland, and a buffer into the development’s design
• ensuring appropriate mitigation if natural assets are lost to development

Enhancements can be made by including natural features in appropriate new developments, and ensuring roads built across known migration routes have wildlife tunnels and bridges.

Large development sites have the opportunity to enhance the surrounding habitats and connecting corridors for protected species as well as other plants and animals. Also they provide natural interest for residents.

We are now moving towards a more integrated landscape-scale approach to biodiversity conservation. This has the aim of recovering habitats and species, as well as the ecosystems and services they underpin. The Bridgend Local Biodiversity Action Plan give information and maps of priority habitats and species.

A development’s contribution depends on:

• the nature of the location
• the type of development
• the contribution it can make to eco-connectivity
• regulatory and provisioning services

Through NRW and our creation of ecosystem services maps, developers can identify the provision, character and distribution of green infrastructure opportunities.

Guidance note eleven:

As well as protecting priority habitats, developments should maximise their contribution to green infrastructure, and account for how they add to ecosystem services.

Guidance note twelve:

Increases in our understanding of the natural environment will lead to further legislation and guidance. It is the developer’s responsibility to ensure their proposals meet current policy and guidance.