The following is a very brief and simplified summary of legislation pertaining to ecological surveys and mitigation. It does not constitute comprehensive professional legal advice. Note that with the arrival of the Environment Bill in 2021, these laws may be subject to alterations.
When writing reports and designing mitigation it is also valuable to check the Local Plan relevant to your development, as this document will likely detail further and more specific requirements for biodiversity and the natural environment. Though not detailed here, the Birds of Conservation Concern (BoCC) and the Red List for Britain’s Mammals are also important to consider.
|Legislation Name||Details of Legislation|
|Conservation of Habitats and Species Regulations 2010 (the Habitats Regulations”) (as amended)||In light of Brexit, this legislation has been amended by the UK Government using the The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019. It transposes the Habitats Directive (92/43/EEC) which allows the designation of Special Areas of Conservation (SACs) and the Birds Directive (79/409/EEC), which allows the designation of Special Protection Areas (SPAs).
Even under the updated legislation post-Brexit, these sites, previously referred to as ‘Natura 2000’ sites receive the highest level of protection. It requires that any activity within the zone of influence of these sites would be subject to a Habitats Regulations Assessment (HRA) by the competent authority (e.g. planning authority), leading to an Appropriate Assessment (AA) in cases where ‘likely significant effects on the integrity of the site are identified.
Regulation 41 protects European Protected Species (EPS) making it a criminal offence to; deliberately capture, injure or kill any such animal, deliberately disturb wild animals of such species, deliberately take or destroy their eggs (where relevant), damage or destroy a breeding or resting place of such an animal, possess, control, sell or exchange any live or dead animal or plant, of such species or deliberately pick, collect, cut, uproot or destroy a wild plant of such species.
There can be derogation from these prohibitions for specific reasons provided certain conditions are met. An EPS licensing regime allows operations that would otherwise be unlawful acts to be carried out lawfully. Natural England is the licensing Authority.
|The Wildlife and Countryside Act (1981) as amended||Very important within the UK with various schedules pertaining to different wildlife.
Schedule 1: protects wild birds (except those listed in Schedule 2). Legally protects their nests and makes it an offence to take, damage or destroy their nests when in use or being built, take or destroy their eggs or disturb a bird listed in this schedule while nest building, nesting with eggs/young or the young are still dependent.
Schedule 5: non-avian mammals with protection on varying degrees. Full protection means it’s an offence to intentionally kill, injure or take one of these listed animals and prohibits interference with places used for shelter or protection, or intentionally disturb animals while occupying such places. Species afforded full protection includes all EPS, common reptiles, water vole, white-clawed crayfish and Roman snail.
Schedule 8: protects plants. It is an offence to intentionally pick, uproot or destroy any plant or seed, and sell or possess any plant listed on this schedule.
Schedule 9: lists invasive species. It prohibits the release of animals and plants listed on this schedule into the wild.
|Natural Environment and Rural Communities (NERC) Act (2006)||This places a statutory duty under Section 40 on all public bodies, including planning authorities, to take, or promote the taking by others, steps to further the conservation of habitats and species of principal importance for the conservation of biodiversity in England (commonly referred to as the ‘Biodiversity Duty’). Section 41 lists the habitats and species of principle importance.|
|Protection of Badgers Act (1992)||Badgers are afforded specific legal protection in Britain under this act and Schedule 6 of the Wildlife and Countryside Act 1981 which prohibits certain inhumane methods of traps and devices for the capture or killing of wild animals.
Under this act, it is a criminal offence to intentionally kill, injure, take, possess, or cruelly ill-treat a badger, or to attempt to do so, interfere with a sett, by damaging or destroying it, to obstruct access to, or any entrance of, a badger sett; or to disturb a badger when it is occupying a sett.
A licence may be obtained from Natural England to permit certain prohibited actions for a number of defined reasons including interference of a sett for the purpose of development, provided that a certain number of conditions are met.
|National Planning Policy Framework (NPPF)||This sets out the Government’s view on how planners should balance nature conservation with development through the planning system.
Paragraph 174b states that council policies should “promote the conservation, restoration and enhancement of priority habitats, ecological networks and the protection and recovery of priority species; and identify and pursue opportunities for securing measurable net gains for biodiversity”.
In accordance with the NPPF, it is important that developments should contribute to and enhance the natural and local environment by: minimising impacts on existing biodiversity and habitats, providing net gains in biodiversity and habitats, wherever possible and establishing coherent ecological networks that are more resilient to current and future pressures.
|UK Post-2010 Biodiversity Framework||This replaces the UK Biodiversity Action Plan (UK BAP), published in 1994. It covered the period between 2010-2020.
The most recent biodiversity strategy for England, 'Biodiversity 2020: A strategy for England's wildlife and ecosystem services' was published by Defra in 2011 and an update published in 2013. This strategy sets out the strategic direction for biodiversity policy for the next decade.
It avoids setting specific targets for local areas because the Government believes that local people and organisations are best placed to decide how to implement the strategy in the most appropriate way for their area or situation.
When undertaking surveys, guidelines relevant to each protected species should be followed. Links to these guidelines are below: