European protected species
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.
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.
Most dramatically, Natural England have rolled out four new policies with respect to great crested newts and committed to rolling out a completely different approach to GCN licensing in the future.
The four new policies, confirmed in December 2016, are as follows:
Policy 1 – Greater flexibility when excluding and relocating European Protected Species (EPS) from development sites: Defra considers that compensation for EPS impacts can be delivered without the need to relocate or exclude populations, where: exclusion or relocation measures are not necessary to maintain the conservation status of the local population; the avoid-mitigate-compensate hierarchy is followed; and compensation provides greater benefits to the local population than would exclusion and/or relocation.
Policy 2 – Greater flexibility in the location of newly created habitats that compensate for habitats that will be lost: If the licensing tests are met and the avoid-mitigate-compensate hierarchy is followed, off-site compensation measures may be preferred to on-site compensation measures, where there are good reasons for maximising development on the site of EPS impacts, and where an off-site solution provides greater benefit to the local population than an on-site solution.
Policy 3 – Allowing EPS to have access to temporary habitats that will be developed at a later date: Where development (such as mineral extraction) will temporarily create habitat which is likely to attract EPS, Defra favours proposals which enable works to proceed without the exclusion of EPS, where the conservation status of the local population would not be detrimentally affected. On completion of development such sites must contribute to the conservation status of the local population as much as or more than the land use which preceded development. The measures to achieve this should be set out in a management plan and secured by a legal agreement.
Policy 4 – Appropriate and relevant surveys where the impacts of development can be confidently predicted: Natural England will be expected to ensure that licensing decisions are properly supported by survey information, taking into account industry standards and guidelines. It may, however, accept a lower than standard survey effort where: the costs or delays associated with carrying out standard survey requirements would be disproportionate to the additional certainty that it would bring; the ecological impacts of development can be predicted with sufficient certainty; and mitigation or compensation will ensure that the licensed activity does not detrimentally affect the conservation status of the local population of any EPS.
The new approach to licensing, to be rolled out across England, over the next three years was announced in February 2017 in and alongside the Housing White Paper. The key points of this new approach are (i) the local planning authority holds an organisational licence allowing it to authorise operations that may affect great crested newts at the same time as granting planning permission; (ii) surveys will be undertaken areas across the local authority area to identify the locations where great crested newts are present regardless of any development proposal; (iii) great crested newt habitat is enhanced or created strategically by the local authority in advance of any development taking place and (iv) developers pay a contribution towards the habitat creation at the local level and therefore avoid individual site surveys, provision of on-site mitigation and obtaining an individual site licence from Natural England. Presumably the latter will remain an option for those not wishing to buy into the local authority scheme.
However, licensing remains a complex field which requires specialist understanding to navigate and succeed. Rejection of the application on the first attempt remains common.
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.
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.
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.
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.