Guiding the planners – London’s protected species

Paul Losse,  Natural England

Paul Losse of Natural England sheds light on protected species – giving GiGLer readers a whistle-stop tour of the key legislation and guidance for planners.

Bats, great crested newts, common dormice and badgers are well known to be highly protected species. But did you know that the hedgehog fungus, depressed river mussel and click beetle, amongst many other species, must also be taken into account if they are found on a development site? Protected species are a material consideration in planning, and planning officers and developers often need a little guidance in adhering to this aspect of planning law.

Planning law is complex, even before you introduce biodiversity to the equation. Now planners face additional biodiversity obligations. Under the new local development framework, every borough is required to report on biodiversity. It is the borough planners, not the ecologists, that will be responsible for this.

In addition to local development frameworks, planning officers need to be aware of three crucial pieces of legislation: The Habitats Regulations (1994), the Wildlife and Countryside Act (1981), and the Protection of Badgers Act (1992), as well as the guidance provided in Policy Planning Statement 9 (PPS9) and the Mayor’s London Plan. Legislation and planning guidance

PPS9

The recently published Policy Planning Statement, PPS 9: Biodiversity and Geological Conservation, is the essential tool for planning officers making planning decisions which could impact on certain species and on biodiversity in general. PPS9 makes it clear that biodiversity is an important consideration in planning. One of the key principles states that, ‘The aim of planning decisions should be to prevent harm to biodiversity and geological conservation interests … If significant harm cannot be prevented, adequately mitigated against, or compensated for, then planning permission should be refused’. The guidance sets out how planning applications for developments on or close to protected areas, such as sites of special scientific interest or important habitats, should be treated. PPS9 also includes provisions for legally protected and UK Biodiversity Action Plan, or BAP, priority species – those species which need special action to halt their decline.

The London Plan

BAP species are also recognised in the London Plan. Policy 3D.12 states, ‘The Mayor will and boroughs should resist development that would have a significant adverse impact on the population or conservation status of protected species or priority species identified in the London Biodiversity Action Plan and borough BAPs’. London BAP species include stag beetle, black poplar, house sparrow and many more. A full list can be downloaded from the London Biodiversity Partnership website, www.lbp.org.uk.

Habitats Regulations (1994)

The highest level of protection is given to European protected species, as defined by the Habitats Regulations.This includes all species of bat, the great crested newt and the dormouse. If any of these species is known or suspected to be present, the local planning authority is required to undertake three tests before deciding the outcome of a planning application for the site:

1. There should be no satisfactory alternative to the development.

2. The development should not have a detrimental impact on the species, such that its population drops below ‘favourable conservation status’ within its natural range.

3. The development is in the interests of public health or safety, or has other overriding social, economic or environmental benefits.

If the development is likely to result in an offence being committed under the Habitats Regulations, the applicant must also apply for a licence from Natural England once planning permission has been granted.

Wildlife and Countryside Act (1981)

Under the Wildlife and Countryside Act, all species of bird are protected – but not all birds are equal! Some species, including the kingfisher, peregrine falcon and black redstart, are specially protected from intentional or reckless disturbance at or near the nest. A higher level of mitigation work would be needed if these species were present on a development site. Other species, including the common lizard, slow worm, grass snake, adder and water vole, receive less protection but their presence must still be considered. Protection of Badgers Act (1992) Badgers are a special case and are well protected by their own act of Parliament. Under this piece of legislation, badgers’ setts are protected from damage or destruction, as are the badgers themselves while they are in their setts.

To survey, or not survey?

Information on protected species present is needed from the applicant at the time of the planning application. But how do you know if these species are there in the first place?

This is a bit of a grey area, however there are several clues which might indicate the need for a species survey:

• If there are historic records of a protected species on the site.

• If there is suitable semi-natural habitat (e.g. woodland, a waterbody, rough grassland, old trees) which could support protected species.

• If nearby habitats are known to support protected species, and the development will result in the removal or alteration of similar natural or seminatural habitat.

• If there are good casual observations of species present on site – for example, if bats have been seen entering or exiting roof spaces.

Your starting point for all this information should be GiGL. GiGL collects, collates, manages and disseminates information relating to wildlife in London, and can provide details of any records of protected or BAP species. However it is important to note that if GiGL does not have a record of a species at a particular site, this does not mean that the species is not present.

If an environmental impact assessment is required, an evaluation of the suitability of the site for protected species should be carried out as a matter of course. In many cases a rapid site assessment by an ecologist to establish the likelihood of their presence may be all that is needed. A full survey could follow if the ecologist recommends it.

The decision making process

Once the planning officer has the relevant information from the applicant, Natural England recommends the following sequential approach to determining the application:

• Information – Do you have sufficient survey information from a suitably experienced and qualified ecologist?
• Avoidance – Can harm to protected or priority species be avoided altogether?
• Mitigation – If it is not possible to avoid damage, can the impact be minimised?
• Compensation – If harm is unavoidable, can the applicant provide features to ensure that the species continues to be supported?
• Net benefits – Development can often be beneficial to wildlife. Has the applicant considered how habitats that support species can be enhanced or incorporated into a development?

To ask GiGL to carry out a data search for you, contact Lauren Alexander lalexander@wildlondon.org.uk.

If you would like further information on becoming a GiGL partner, on appointing GiGL as your data custodian, or on making your survey data more widely available to GiGL’s service users, contact Mandy Rudd mrudd@wildlondon.org.uk.

Paul Losse is Natural England’s Senior Specialist (Land Management and Communities)