Protected species licencing and mitigation

There are many laws protecting wildlife in the UK and the government recognises that sometimes actions that would violate the letter of the law are necessary for the overall good of a protected species. In these cases there are a number of licencing systems that can be used depending on the type of animal, how it is protected and exactly what you want to do. This page covers the types of licence most commonly needed for development work and what they involve. The information here is for guidance only and is not intended as legal advice on the interpretation of any law.
For European protected species it is possible to obtain a licence for work that would be an offence such as damaging a pond used by newts or disturbing an otter in its holt. These are issued in England by Natural England and in Wales by the Natural Resources Wales. Licences must be applied for by two people an ecologist and a ‘licence holder’ who is in control of the land and legally responsible for making sure the licence is complied with.

A licence can only be granted if the proposal meets three tests.

• The purpose of the work is for preserving public health or public safety or other imperative reasons of over-riding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment
• There is no satisfactory alternative
• The action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range

The ecologist applying for the licence also has to provide a method statement setting out exactly what they will do and how this will meet the three tests. In many cases meeting the third test will require additional work such as creating new habitat (see Creating and managing wildlife habitat), restricting the timing of work and relocating animals away from harm.
Wildlife and Countryside Act
Water voles, frogs and toads and reptiles along with many other animals are protected under the Wildlife and Countryside Act 1981. The Act has no provisions for licences to allow development but there are two approaches that can be taken.

1. Rely on the defence that any harm to protected animals was ‘the incidental result of an otherwise lawful operation and could not reasonably be avoided’.

To use this defence it is best to have full planning permission in place before any work that could affect protected species to meet the ‘lawful operation’ standard. It is also necessary in order to say any harm ‘could not reasonably be avoided’ that where protected species are known to be on site measures have been taken to avoid harm. These measures will depend on the site and the species involved. For example where reptiles are on a site the normal approach is to fence the area where work will take place with a fence they cannot cross and relocate them to other parts of the site or other land owned by the client as well as improving the quality of the receptor area for reptiles. This process known as translocation can take anything from one to six months depending on the size of the site and number of reptiles and is followed by clearing all vegetation and rubble from the area before construction starts. Because even after translocation some reptiles may be hiding an ecologist needs to be on site during this clearance – see ecological watching brief.

2. Apply for a licence for conservation reasons

This option is not recommended in most cases but where water voles must be moved from a site to a new location and this would have a conservation benefit Natural England have suggested that a conservation licence may be appropriate.

Protection of Badgers
For badgers there are a range of licences that can be issued under the Protection of Badgers Act. Licences to disturb, damage or destroy a badger sett for the purposes of development are issued by Natural England or Natural Resources Wales. To obtain a licence it is necessary to give details of the badger setts affected and what will be done that affects them. The licence will require work to make sure badgers are not in a sett when it is destroyed, normally by using one way gates so they can leave but not re-enter and may include creating a new artificial sett.

Badger licences are only issued for work between July and November so it is important to have badger surveys early in any project schedule so that the work can be planned without causing delays to other parts of a project.

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