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Particular species of flora and fauna within Wales are subject to special protection.
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Bridgend County Borough Council’s Supplementary Planning Guidance 7 Trees & Development

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.


 

Protection of Plants

Part I of the Wildlife and Countryside Act 1981 (as amended) affords protection to wild plants of the species listed in Schedule 8, most of which are not European protected species.

Section 13 of the Wildlife and Countryside Act 1981 (as amended) gives legal protection to certain wild plants listed in Schedule 8, and lesser protection to other wild plants not so listed. In the absence of a licence or a relevant defence, it is an offence to:

  • intentionally pick, uproot or destroy a wild plant listed in Schedule 8;
  • not being an authorised person, intentionally uproot any wild plant not included in Schedule 8;
  • sell, offer or expose for sale, or have possession of or to transport for the purpose of sale, any live or dead wild plant, or any part of or anything derived from a wild plant listed in Schedule 8; or
  • publish, or cause to be published any advertisement likely to be understood as conveying that a person buys or sells, or intends to buy or sell, any of those things.

The breach of protected species legislation can often give rise to a criminal offence. A grant of planning permission does not relieve a developer from compliance with the protected species legislation and offences may be committed during the development of land, even where the development is in accordance with a valid planning permission (TAN 5, 2009).

Legislative Status

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.

 

Priority Habitats

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

  • Ancient and Species-rich Hedgerows
  • Lowland Ancient Woodlands
  • Upland Oak Woodlands
  • Upland Mixed Ash Woodlands
  • Wet Woodlands
  • Lowland Wood-Pasture and Parklands
  • Beech & Yew Woodland Lowland Mixed Deciduous Woodland
  • Traditional Orchards

Grassland

  • Hay Meadows and Old Pastures
  • Lowland Dry Acid Grasslands
  • Calcareous Grasslands
  • Cereal Field Margins

Marshland

  • Purple Moor-Grass and Rush Pastures
  • Coastal and Floodplain Grazing Marshes
  • Reedbeds
  • Fens and Flushes
  • Blanket Bogs

Heathland

  • Heathlands

Coastal, Marine & Rock

  • Coastal Sand Dunes
  • Marine Habitats Statement
  • Saltmarsh
  • Shingle
  • Coastal Cliff & Slope
  • Limestone Pavements

Water

  • Eutrophic Standing Waters and Ponds
  • Aquifer Fed Naturally Fluctuating Water Bodies
  • Rivers
  • Mesotrophic Lakes
  • Oligotrophic and Dystrophic Lakes

Other

  • Open Mosaic Habitats on Previously Developed Land
  • Urban Green Space (e.g. parks, allotments, flower-rich road verges
  • and railway embankments)
  • Caves and disused tunnels and mines
  • Coal Mining Spoil heaps

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.

Monitoring

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.

Surveys

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:

  • Habitat value – taking account of the relative distinctiveness and quality of what is lost and what is provided in return;
  • Risk and uncertainty – taking account of the fact that we can know what biodiversity is being lost as a result of development but that creating or restoring habitat is always subject to risks that the offset will fail to deliver habitat of the expected quality;
  • Time preference – taking account of the fact that we would prefer to have a given amount of biodiversity now rather than at some point in future. While the loss of habitat due to development is immediate, creation or restoration of habitats may take many years.

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.

Note:

  • Ancient woodlands are virtually irreplaceable and should not be removed or destroyed
  • Hedgerows are subject to the Hedgerow Regulations
  • These habitats may contain or be used by fauna that is protected, which will be subject to specific surveys and mitigation/compensation measures

 

Avoidance

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.

 

Mitigation

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

Compensation

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.

 

Enhancement

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.

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