Protected species and development

 

Protected species and development

In the UK and Ireland, a number of species of animal and plant are legally protected. Some species are referred to as European protected species which are those receiving strict protection under the Habitats Directive and others are referred to as nationally protected species which are those protected through domestic legislation (even though this may also originate from European conventions).

Protected species are a material consideration in the planning process and so the effect of development on protected species should be considered by the planning authority when determining planning applications. Planning authorities may have policies which provide protection over and above that provided in law and may impose planning conditions to ensure that the development complies with those policies.

European Protected Species

European protected species are those protected by the Habitats Directive (as implemented under the relevant regulations in the UK and Ireland). Article 12 of the Directive sets out the protection that member states should afford to protected animal species and Article 13 does the same but for plants. European protected species include some widespread and familiar UK species such as otters, great crested newts and all species of bat. The wording of the Directive has been transcribed slightly differently by the devolved administrations of the UK and in Ireland.

England and Wales

In England and Wales, the Directive is implemented through the Conservation of Habitats and Species Regulations 2010, as amended. For protected species, the Regulations make it an offence, with very few exceptions, to:

    • Deliberately capture, injure or kill any wild animal of a European protected species
    • Deliberately disturb wild animals of any such species in such a way as to be likely
      • To affect significantly the local distribution or abundance of the species to which they belong
      • Deliberately take or destroy eggs of any such wild animal
      • Damage or destroy a breeding site or resting place of such a wild animal
    • Deliberately pick, collect, cut, uproot or destroy a wild plant of a European protected species
    • Keep, transport, sell or exchange, or offer for sale or exchange, any live or dead wild animal or plant of a European protected species, or any part of, or anything derived from such an animal or plant

The duplicate protection once provided in England & Wales by the Wildlife and Countryside Act was removed in 2007. However, some residual offences with respect to European protected species of animal remain in the Wildlife and Countryside Act. These are (with certain exceptions):

      • Disturbance while it is occupying a structure or place which it uses for shelter or protection
      • Obstructing access to any structure or place used for shelter or protection

Scotland

In Scotland, the protection is provided by the Conservation (Natural Habitats, &c.) Regulations 1994, as amended in Scotland. These make it an offence to:

      • Deliberately or recklessly capture, injure or kill or harass any wild animal of a European protected species
      • Deliberately or recklessly disturb such an animal
        • While it is occupying a structure or place used for shelter or protection
        • While it is rearing or otherwise caring for its young
        • While it is migrating or hibernating
        • In a manner that is, or in circumstances which are, likely to significantly affect the local distribution or abundance of the species to which it belongs
        • In a manner that is, or in circumstances which are, likely to impair its ability to survive, breed or reproduce, or rear or otherwise care for its young
      • Deliberately or recklessly take or destroy the eggs of any such wild animal
      • Deliberately or recklessly obstruct access to a breeding site or resting place, or otherwise deny the animal use of the breeding site or resting place
      • Damage or destroy a breeding site or resting place of such a wild animal
      • Deliberately or recklessly pick, collect, cut, uproot or destroy a wild plant of a European protected species
      • Possess, control, transport, sell or exchange, or offer for sale or exchange, any live or dead wild animal or plant of a European protected species, or any part of, or anything derived from such an animal or plant

The key differences between the Scottish interpretation and that in England and Wales are emboldened. The harassment clause was inserted principally to deal with the treatment of cetaceans (whales and dolphins). Note that the Law Commission, in its review, is considered the insertion of the reckless offence into the Regulations for England. This goes further than the wording in the Directive (for which see Ireland, below).

Northern Ireland

In Northern Ireland, the protection for European protected species is provided by The Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995, as amended. These are similar to the Regulations in England and Wales but include the offence of disturbing an animal in a place of shelter. The Regulations make it an offence to:

      • Deliberately to capture, injure or kill a wild animal of a European protected species
      • Deliberately to disturb such an animal while it is occupying a structure or place which it uses for shelter or protection
      • Deliberately to disturb such an animal in such a way as to be likely to—
        • Affect the local distribution or abundance of the species to which it belongs
        • Impair its ability to survive, breed or reproduce, or rear or care for its young
        • Impair its ability to hibernate or migrate
      • Deliberately to take or destroy the eggs of such an animal
      • Deliberately to obstruct access to a breeding site or resting place of such an animal
      • To damage or destroy a breeding site or resting place of such an animal
      • Deliberately pick, collect, cut, uproot or destroy a wild plant of a European protected species
      • Keep, transport, sell or exchange, or offer for sale or exchange, any live or dead wild animal or plant of a European protected species, or any part of, or anything derived from such an animal or plant

Ireland

In Ireland, the protection is via the European Communities (Birds and Natural Habitats) Regulations 2011. These are almost a direct transcription of the Directive and do not include the clarifications on the disturbance offence that is provided in the UK or the reckless offence that exists in Scotland. They make it an offence to:

    • Deliberately capture or kill any specimen of a European protected species of animal in the wild
    • Deliberately disturb these species particularly during the period of breeding, rearing, hibernation and migration
    • Deliberately take or destroys eggs of those species from the wild
    • Damage or destroy a breeding site or resting place of such an animal
    • Deliberately pick, collect, cut, uproot or destroy any specimen of these species in the wild
    • Keep, transport, sell, exchange, offer for sale or offer for exchange any specimen of these animal or plant species taken in the wild, other than those taken legally

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 as follows.

Thomson’s ecology handbook

This online version of the Thomson’s 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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