23 November 2015

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 November 23, 2015
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It is well known that nature and wildlife are vulnerable and that human actions can inadvertently cause damage. It is also understandable that on a busy construction or development project there are other pressures, luckily there are laws setting out what issues you need to consider.

Wildlife law is a complex area and this post can only give a broad overview but with that in mind lets run through some of the key areas.

Protected species

Plants and animals can be protected under UK law (Wildlife and Countryside Act) and European law (Conservation Regulations) or even their own specialist legislation like the Protection of Badgers Act. This post will focus mainly on the law covering animals.

It is illegal to injure, kill, capture or disturb an animal of a European protected species as well as to sell one, damage or destroy their resting place or destroy or take their eggs.

The Wildlife and Countryside Act generally makes it illegal to sell, kill, injure, disturb or capture a protected species of animal or to uproot a protected plant. There is variation between animals though and reptiles for example are not protected from being captured or disturbed.

The Act also protects all birds while nesting as well as eggs, chicks and the nest itself while in use.

Both laws and the Badgers Act recognise that sometimes it may be necessary to carry out these actions for conservation or science and allow for licences, normally covering disturbance capture.

The Conservation Regulations also allow for licences to permit development but only.

  • Where this is in the overriding public interest
  • There is no alternative way of meeting that public interest
  • There is no effect on the species as a whole

There are no licences for development under the Wildlife and Countryside Act and if a species is protected under it is an issue on a site there are four ways to proceed.

  • The simplest and best is simply to amend any proposed development so that there is no need to disturb or move the protected species.
  • For reptiles, as mentioned above there is no protection from capture or disturbance. This means reptiles can be caught and relocated to avoid killing or injuring them without the need for a licence. This does not mean any approach is acceptable, there are best practice standards for this kind of work that a professional ecologist will follow and that can be enforced as part of planning law.
  • If work is done mainly for conservation or public safety rather than directly for development a licence can be issued. An example would be relocating water voles to allow work to stop a road collapsing into a river or to help the water vole population expand into new habitat. These kind of licences are not easy to obtain and rarely suitable for development sites.
  • If an animal of a protected species is discovered to have been killed or injured accidentally there is a defence that this “was an incidental result of an otherwise lawful operation and could not reasonably have been avoided”. It is important to note that this defence can only be used if the work was not reckless about the risk and there was no reason to expect the protected species to be on site. If there was any reason to expect a protected species, such as suitable habitat the defence will probably not be accepted, which makes it important to know what could be on your site.

Protected sites

Sites can be protected by European law as discussed before, by UK law or by local councils. These protections normally reflect the importance of a site so a European site is significant for the whole continent, a site protected in UK law is nationally important and a site protected by a county council is important for the county.

European protected sites have been covered in an earlier post so I won’t repeat that here.

UK sites protected for plants, animals or geology are known as Sites of Special Scientific Interest (SSSIs). Where there is an application for planning permission that could affect a SSSI the planning authority will consult either Natural Resources Wales or Natural England depending on where it is. If they advise that the development may harm the site by damaging what it is protected for then planning permission will normally be refused.

There is no general standard for locally important sites as these are decided on by each council but in general terms destruction or damage or a site would be counted against any planning application. However in some cases a council may decide that the benefits of the proposed development outweigh the damage.

Planning law

This will be covered in more detail in a later post but briefly nature conservation is a material consideration for planning decisions and even when no protected species or sites are involved the effect of any planning application on the environment will be considered.

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