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.