Particular species of flora and fauna within Wales are subject to special protection. This is normally because of their vulnerable conservation status, for example because they are endangered or are suffering decline in numbers or range, either within the context of the UK or the European Community, or because they can be the victims of persecution or cruelty (such as that inflicted on badgers or the collection of the eggs of birds). These species are protected under legislation that is independent of, but closely related to, the Town and Country Planning legislation in Wales.
The main Acts for protection of biodiversity in England and Wales are the Wildlife and Countryside Act 1981, and the Countryside and Rights of Way Act 2000. However, there is another layer of legislation produced at a European level. The Conservation (Natural Habitats, &c) Regulations 1994 (the Habitats Regulations) implement the requirements of the Habitats Directivelxv in relation to species listed in Annexes IV and V of the Directive. The Conservation of Habitats and Species Regulations 2010 consolidate all the various amendments made to the 1994 Regulations in respect of England and Wales.
In addition to legally protected species, the planning and development process has a fundamental role to play in controlling and relieving this pressure. Planning Policy Wales requires local authorities to protect wildlife and natural features in the wider environment, with appropriate weight attached to priority habitats and species in Biodiversity Action Plans.
Where there is a reasonable likelihood for a development to impact on a designated site or protected or priority habitat / species an assessment of the likely impact must be undertaken.
Planning Policy Wales states that: “the presence of a species protected under European or UK legislation is a material consideration when a local planning authority is considering a development proposal which, if carried out, would be likely to result in disturbance or harm to the species or its habitat”.
Therefore it is essential that the presence or otherwise of a protected species and the extent that it may be affected by a proposed development is established before any planning permission is granted, therefore a habitat assessment and survey work for presence or absence and level of use should be carried out prior to consent. It is considered best practice that such a survey is carried out before planning application is submitted.
Guidance Note 1:
Where protected species could be affected by a development and a survey is required by the authority the survey should be completed and any necessary measures to protect the species should be in place, such as through conditions and/or planning obligations, before the permission is given.
In appropriate circumstances, the permission may also impose a condition preventing the development from proceeding without the prior acquisition of a licence under the appropriate wildlife legislation.
Additional guidance in accounting for protected species in development can be found in Technical Advice Note (TAN) 5: Nature Conservation and Planning (2009). This document provides advice about how the land use planning system should contribute towards protecting and enhancing biodiversity and geological conservation. It should also be read in conjunction with Planning Policy Wales.
Annex 7 of TAN 5 explains the legislative provisions for the protection of birds, badgers, other animals and plants and explains where licences may be needed to undertake certain operations associated with development. A list of all protected species of animals and plants can be found at Table 2 of Annex 8 of TAN 5.
Further guidance on protected sites and species in Wales is available from a wide range of sources including Natural Resources Wales.
Legislative Status: Protection of European protected species
European Protected Species (EPS) - their breeding sites and resting places - are protected against disturbance and harm. EPS plants are also protected. If you have a valid purpose, NRW can grant you a licence to undertake the work legally and avoid breaking the law.
GUIDANCE NOTE 2:
Legislation covering European Protected Species applies regardless of whether or not they are found within a designated site. A preliminary ecological survey to confirm whether a protected species is present and an assessment of the likely impact of the development on the species will be required in order to inform the planning decision-making process.
Bridgend CBC will consult with NRW (the licensing authority) before granting planning permission when European Protected Species are involved.
GUIDANCE NOTE 3:
When European protected species are present on site it will be necessary for the developer to apply for derogation (development licence) from the Natural Resources Wales.
As a competent authority under the Conservation of Species & Habitats Regulations 2010 (‘Habitat Regulations’), the Council must have regard to the Habitats Directive’s requirement to establish a system of strict protection and to the fact that derogations are allowed only where the three conditions under Article 16 of the EC Habitats Directive are met (the ‘three tests’) (TAN5, 6.3.6).
In order to comply with its duty under the Habitats Regulations, the Council will need to take all three tests into account in its decision (see Judicial Review, Woolley vs Cheshire East Borough Council 2009). NRW must be consulted on whether test (iii) is met before the application is determined.
Legislative Status: Local Priority Habitats and Species: Section 42 (NERC Act 2006)
Biodiversity is the variety of life on earth and includes all species of plants and animals 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 the subsequent negative environmental impact, runs 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 public authorities in England and Wales to have regard, in the exercise of their functions, to the purpose of conserving biodiversity.
A key purpose of this duty is to embed the consideration of biodiversity as an integral part of policy and decision making throughout the public sector.
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 to which the UK signed up in 1992, making a commitment to halt the decline of biodiversity by 2010.
The Governments of all four UK countries 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 undertaken in the UK. It contains 1150 species and 65 habitats that have been listed as priorities for conservation action.
It is essential that planning permission is only granted when the Council is 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 the application of the tests: the severity of any of the tests will increase with the severity of the impact of derogation on a species/population.
The derogation is in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment.
Only public interests, promoted either by public or private bodies, can be balanced against conservation aims. Projects that are entirely in the interest of companies or individuals would generally not be considered as covered.
The public interest must also be overriding and as such not every kind of public interest is sufficient. A public interest is in most cases likely to be overriding only if it is a long-term interest and provides longterm benefits.
There is no satisfactory alternative. An analysis of whether there is no satisfactory alternative needs to consider: a) the specific situation that needs to be addressed; b) whether there are any other solutions; and c) whether any of the other solutions will resolve the situation for which the derogation is sought.
From amongst the possible alternatives, the most appropriate that will ensure the best protection of the species while addressing the situation should be chosen. 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 take account of whether an alternative is satisfactory. This appraisal must be founded on objectively verifiable factors, such as scientific and technical considerations. The approach must also be limited to the extent necessary to address the situation.
Where another alternative exists, any arguments that it is not satisfactory will need to be convincing. An alternative cannot be deemed unsatisfactory because it would cause greater inconvenience or compel a change in behaviour.
The derogation is not detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.
Assessment of the impact of a specific derogation will normally have to be at a local level (e.g. site or population) in order to be meaningful in the specific context.
Two things have to be distinguished in applying test iii: a) the actual conservation status of the species at both a biogeographic and a (local) population level; b) what the impact would be In such cases where the conservation status is different at the different levels assessed, the situation at the population level should be considered first.
In the case of destruction of a breeding site or resting place it is easier to justify derogation if sufficient and appropriate compensatory measures offset the impact and if the impact and the effectiveness of compensation measures are closely monitored to ensure that any risk for a species is detected.
To aid the planning process when European protected species are present on site it is recommended that:
If advice from NRW is received which confirms that test (iii) will be met (and the Council has decided that all three tests are met) consent should be granted on the condition that all mitigation measures as approved by NRW be fully implemented.
Following WAG guidance, TAN5 (6.2.1) and in partial fulfilment of a requirement under S25(1) of the Wildlife and Countryside Act 1981 (as amended) 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.
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, the applicant must send a copy of the local authority consultation document (part of the Natural Resources Wales application) to the planning officer. This form requests details from the Council to show that the three tests have been met and considered as part of the planning decision and forms a record of the LPA’s compliance.
In the event of police investigation, such records could provide valuable evidence that the LPA has exercised due diligence.
Further guidance on how the three tests are to be considered is provided by the EC Guidance documentl on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC.
European Protected Species most likely to encounter in Wales:
The following animals are listed on Schedule 2 of the Habitats Regulations:
The following plants occurring in Wales are European Protected Species (EPS), and are listed on Schedule 5 of the Conservation of Habitats and Species Regulations 2010:
Licencing European Protected Species
Natural Resources Wales has a standard method of application for licences in respect of development. Briefly, a licence application requires the developer or landowner who will be undertaking the proposed works to appoint a suitably qualified and experienced ecologist who will 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 a Method Statement. The Method Statement must be to the approved Natural Resources Wales format (provided with the licence application information) and will present much the same information as that required by the Council to inform the planning application.
Once an application is received by the Natural Resources Wales, 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 permits only those activities identified in the Method Statement, so it is important that developers and landowners carefully review and agree the Method Statement before submission to Natural Resources Wales.
The activities and measures detailed in a licence are there to avoid unnecessary harm to the protected species; failure to follow the exact measures in the licence can lead to prosecution. Any activity carried out that deviates significantly from the licensed Method Statement may be considered a breach of the 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, such as inspecting and maintaining exclusion fencing, carrying out monitoring and management works or mitigation measures being supervised on site by the ecologist, which are not implemented as specified in the licensed Method Statement might also be considered a breach of the licence.
A breach of the licence is considered to be a criminal offence. Under the current legislation, anyone authorised to carry out activities implemented under the licence may be held responsible for breaches of the licence terms and conditions.
It is therefore important that all staff and contractors on the site are fully briefed on the licence and its implications for working on site, prior to being allowed to start on site. An up to date copy of the licence and the associated Method Statement should be held on site at all times, together with any identification sheets that may be helpful to site workers and contact details for the appointed ecologist.
Licences have an expiry date. If works need to continue beyond the expiry date an extension must be applied for. An extension cannot be issued for a licence that has expired, once a licence has expired then a new licence must be applied for. Depending on the time elapsed from expiry this may or may not require additional surveys to ensure that accurate and up to date information supports the licence application.
Licencing UK Protected Species
The Wildlife and Countryside Act 1981 lists protected species of plants and animals 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.
There is no provision within the WCA which allows Natural Resources Wales to issue a wildlife licence where a UK protected species is affected by development activities. This means that where development works affect a species that is protected under the WCA this may be a breach of the legislation and a developer would only be able to seek to rely on the ‘incidental result of an otherwise lawful operation’ defence if enforcement proceedings were brought due to the breach. If a developer can show that the works carried out followed good practice and are being carried out in accordance with a lawfully granted permission, such as planning permission, it may support his defence. However, ultimately this is a matter for the courts to decide.
Part I of the Wildlife and Countryside Act 1981 (as amended) affords protection to wild animals of the species listed in Schedule 5, most of which are not European protected species.
With certain exceptions and in the absence of a licence or a relevant defence, it is an offence in respect of any wild animal of a species listed in Schedule 5 to:
Do I need to undertake a survey for UK Protected Species?
Where any birds, animals or plants protected under the Wildlife and Countryside Act 1981 Schedule (1, 5 & 8 respectively) may or may be present, we strongly recommend that you undertake surveys before considering development proposals.
An assessment for protected species should be considered at an early stage on any sites that may support them.
The presence of protected species may affect the programming of work and the scope for development. Early consideration can, however, resolve most potential conflicts and avoid expensive delays. It is wise to do this even before purchasing 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); assess how important the site is in terms of protected species.
Protected species may be found in a range of habitats, both in countryside and some urban situations.
Guidance Note 4:
Where protected species are known to be present locally and the site supports potential habitat Bridgend CBC will expect to be provided with survey and mitigation plans before making a decision on planning applications. Planning conditions and other agreements may be imposed on consents to ensure effective conservation of the affected.
Sometimes formal environmental assessments are required before planning permission will be considered; this is mainly for large-scale projects.
South East Wales Biological Records Centre should be requested to undertake a search for protected species to inform survey effort. In addition other relevant organisations may hold useful data including NRW, and local species interest groups.
However, you may not need a new survey if your ecological advisers are confident that, based on existing information and a habitat assessment, the impacts of development will be minimal, and that 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, and can help speed up the decision-making process.
Protected species friendly features can be incorporated into the landscape design, in combination with mitigation can avoid impact on protected species and achieve net gain.
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, such as archaeological investigations, may not require planning permission but could still be unlawful if undertaken without proper care.
However, other considerations will be taken into account, for example, Species of principal importance in Wales (S.42) and UK Biodiversity Action Plan priority species. Bridgend CB Local Development Plan Policy ENV6 Nature conservation expects developers to avoid or overcome harm to nature conservation assets and/or species of wildlife which may be either resident, in-situ or which have been demonstrated to frequent habitats within the site on a migratory basis.
Do I need to undertake a survey for Priority species or habitat?
GUIDANCE NOTE 5: Where there is a reasonable likelihood for a development to impact on a priority habitat or species an assessment of the likely impact must be undertaken. The type of assessment needed will take the form of an ecological survey and report.
It is important to bear in mind that the survey work needed to inform such assessments will be seasonally restricted see Guidance sheet: survey requirements. Discussion of biodiversity survey needs at the pre-application stage can help reduce the likelihood of delays resulting from requirements for survey being identified at a later stage.
Normally, development which would adversely affect these features is not acceptable.
GUIDANCE NOTE 6: Only in special cases, where the importance of a development outweighs the impact on the feature, would an adverse affect be permitted. In such cases, planning conditions or obligations will be used to 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 off-site as part of a biodiversity off-setting scheme.
To reflect the loss in quality of a habitat it may be requirement to offset a greater area than that lost by the impact of the development to achieve a no net loss of biodiversity through the provision of offsets.
The key factors to be taken account of in specifying the relevant ratios are:
Any planned loss and replacement of the above habitats should be discussed in detail with Bridgend County Borough Council at the pre-application stage, as recommended by national policy (PPW 5.5.1), who will be able to provide advice. Pre-application discussions with statutory consultees such as Natural Resources Wales are recommended, in addition to non-statutory consultees such as South and West Wales Wildlife Trust and RSPB if appropriate. This should be done at the very beginning of the design process to allow adequate and suitable mitigation and compensation measures to be included in the design and to aid the planning application process.
Natural Resources Wales have a regulatory function with regards to the water environment and advice can be found on the NRW website for more information on consents and permissions which developers may need to obtain from them.
The UK BAP set out a programme for conserving biodiversity in the UK and this includes the list of habitats which were conservation priorities.
Under the requirement set out in section 42 of the Natural Environment and Rural Communities Act (2006), the Welsh Government has published a list of the types of habitat which, in its opinion, are of principal importance for the purpose of conserving biodiversity in Wales.
The list contains 51 of the total 65 UK BAP habitats with an additional 3 marine habitats that are 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 be used to guide decision-makers such as local and regional authorities, in implementing their statutory duties to have regard to the conservation of biodiversity in the exercise of their normal functions.
Ignoring or inadequately addressing the potential of a development to affect important wildlife habitats or species could lead to delay in the processing of the application or refusal of permission. In some cases it could delay or even prevent implementation of a planning permission, for example, where a protected species is found on a development site after work has started.
The following groups of habitats are known as United Kingdom Biodiversity Action Plan (UKBAP) Habitats which are found in Bridgend County Borough and included in the local BAP, identifying priorities at a county level.
Relevant Habitat Action Plans (HAPs) were developed to cover the actions that are needed to help conserve many of the county borough's Key Species. However, some species are not adequately covered by the Habitat Action Plans, for these species individual Species Action Plans (SAPs) were produced.
SAPs were produced for species so highly threatened, or rapidly declining, that urgent action must be taken to avoid local extinction - the rarer fritillary butterflies are a case in point; where a species is widespread, occurring on a range of habitats, but general habitat work will not cater for it; there are species which, although restricted to a particular habitat, have such peculiar ecological requirements that normal habitat management will not cater for it: for example, the 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 to play in meeting biodiversity targets and contributing to the quality of life and well-being of the community. The nature conservation interests for which they have been designated are a material consideration in planning decisions (TAN 5) and Policies in the Bridgend Local Development Plan provides for their protection.
Therefore, as in the case of designated sites TAN 5 expects developers to identify how their proposals may affect BAP habitats and species (either positively or negatively) and where relevant, how the proposed development sites contribute to wider ecological networks or mosaics.
Bridgend Local Biodiversity Action Plan Habitats Woodland
Woodland and Hedgerows
Coastal, Marine & Rock
Guidance Note 4: Some of these habitats do not receive statutory protection, but are protected by planning policy. They will be found both within and outside designated site.
The protection offered by the Wildlife and Countryside Act 1981 and the Habitats Regulations (2010) is additional to that offered by the planning system.
LDP Policy ENV6 Nature Conservation (4.1.26) The Natural Environment and Rural Communities (NERC) Act 2006 places a statutory duty on public bodies to conserve biodiversity. It is therefore essential that a balance is achieved between the need for development and the need to protect existing habitats and species which contribute to the general biodiversity of the County Borough. It is the aim of Policy ENV6 to achieve that balance between the location, design, and layout of development or redevelopment, and the need to conserve that site’s biodiversity interest, whilst also taking into account the interests of any adjacent nature conservation resources.
Under the requirement set out in Section 42 of the NERC Act (2006), the Welsh Government has published a list of the types of species which, in its opinion, are of principal importance for the purpose of conserving biodiversity in Wales.
Bridgend CBC has an obligation to protect and promote the long-term conservation of Section 42 and other protected species as part of the planning process and must be able to provide a clear audit trail for any decisions which might impact on them. Therefore where these species occur information should be sought from appropriate experts and taken into account in the development plans.
The Bridgend LBAP contains details of Section 42 habitats and species of principal importance for nature conservation that occur in Bridgend. Bridgend’s local biodiversity action plan is available on the UK biodiversity action reporting system (BARS).
Bridgend Local Biodiversity Action Plan Species
The Welsh Government has selected the status of priority habitats and species as a headline indicator, providing a measure of national progress towards sustainable development. Future development in Bridgend will play a key role in ensuring that the status of habitats and species is improving.
To aid monitoring of works to priority habitats and species. All development works that effect these features should be recorded on The Biodiversity Action Reporting System (BARS) website.
GUIDANCE NOTE 7:
Developers/applicants must provide sufficient evidence to demonstrate that avoidance is not possible before mitigation or compensation is considered as a viable alternative.
Avoidance measures built into development proposals may remove the need for detailed survey work, the council will seek expert advice from NRW in determining cases when this may be applicable.
Avoidance measures are those measures that can reasonably be implemented to avoid an offence occurring. As such, these Reasonable Avoidance Measures (RAMs) can often avoid the requirement for a licence. RAMs are the preferred approach when considering design of a scheme. RAMs may include measures ranging from revising the site layout to avoid loss of an important feature, carrying out works at a time which is less likely to result in disturbance or amending working methods to reduce impacts to an acceptable level.
If RAMs are practical within a scheme, these must still be detailed in a Method Statement which is submitted to the Council for approval. Implementation of the measures outlined in the RAMs Method Statement will likely be a condition of the resulting planning consent.
If the RAMs avoid all anticipated impacts affecting a priority species and their habitats to acceptable levels, a licence from Natural Resources Wales is unlikely to be required. This can often avoid or reduce delays to commencing development and will often reduce costs as well. It is therefore important to create communication channels between your architects (landscape or otherwise) and your chosen suitably qualified ecologist during the masterplanning process. This will aid in guiding 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 the development impact of a scheme and provide opportunities for RAMs and avoid more complex mitigation and compensation schemes which may require a license.
Guidance Note 8:
Where harm is unavoidable it should be minimised by mitigation measures
Depending on the scale of development and predicted impacts, it may not be possible to rely on RAMs alone to fully address all potential impacts affecting Protected and Priority Species and habitats. Where EPS are present compensation measures may be requirements of a licence. Early communication across the design team will promote a greater understanding of all the constraints, ecological or otherwise, and allow a balanced approach to the development design.
Where RAMs cannot satisfactorily avoid impacts, mitigation measures will be required to ensure no harm and that no net loss in habitats. The exact measures required will be dependent on the species, habitat, population size, distribution and proximity to works and the scale, timing and duration of the works.
Mitigation measures to be implemented will be detailed in the Method Statement and where there are licensed activities it must be carried out in strict accordance with the Method Statement
Guidance Note 9: Compensation will only be considered where the developer/applicant has satisfactorily demonstrated that avoidance and mitigation are not possible and the compensatory measures result in no net loss of habitat.
Where mitigation cannot satisfactorily reduce all potential impacts to satisfactory levels, additional compensation measures will likely be required. Where EPS are present compensation measures may be requirements of a licence.
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, so it will be important to consider the connectivity between retained habitats, new habitats and existing habitats in the wider area.
Habitat compensation must be provided in advance of exclusion of the site and the capture of Protected Species. This will enable the transfer of Protected Species and other fauna to the compensation area(s) before they are disturbed by development.
As part of the Green Infrastructure Approach habitats should be identified, protected and enhanced where possible. For example: incorporating existing natural assets (ponds, trees, woodland) and a buffer into the design of the development; and by ensuring appropriate mitigation if natural assets are lost to development. Enhancements can be made by promoting inclusion of natural features in appropriate new developments and by ensuring roads built across known migration routes have wildlife tunnels, bridges.
Large development sites have the opportunity to enhance the surrounding habitats and connecting corridors for protected species and other flora and fauna and provide natural interest for residents.
We are now moving towards a more integrated landscape-scale approach to biodiversity conservation with the aim of recovering habitats and species as well as the ecosystems and services that they underpin. The emerging Bridgend Local Biodiversity Action Plan will provide information and maps of priority habitats and species.
The contribution of a development depends on the nature of the location, the type of development, the contribution it can make to eco-connectivity and regulatory and provisioning services. Through the development of ecosystem services maps, developed by Bridgend CBC together with Natural Resources Wales the provision, character and distribution of Green Infrastructure opportunities can be identified by developers.
Guidance Note 10: As well as protecting priority habitats, should developments seek to maximise the contribution of their development to green infrastructure and take into account how their development contributes to ecosystem services.
Increases in our understanding of the natural environment will lead to further legislation and guidance being published. It is the responsibility of the developer to ensure that their proposals meet current policy and guidance.
Guidance Note 11: Increases in our understanding of the natural environment will lead to further legislation and guidance being published. It is the responsibility of the developer to ensure that their proposals meet current policy and guidance.