Frequently Asked Questions

1. What is a protected species?
2. Which species are protected?
3. What responsibilities do local authorities have in relation to protected species?
4. Other species of conservation concern
5. Biodiversity enhancements
6. When should we request a survey for protected species?
7. Is an initial scoping survey enough?
8. Can a survey be conditioned?
9. When during the year can surveys be carried out?
10. How up to date does a survey need to be?
11. What should protected species survey reports include?
12. When should Natural England be consulted?
13. What should a mitigation strategy be designed to achieve?
14. How can mitigation be secured as part of a planning permission?
15. Where can applicants find someone to carry out a protected species survey?

1. What is a protected species?

1.1 Due to pressures on habitat and decline in populations some species have become vulnerable. The legislation in the United Kingdom, under domestic or European law, provides for the protection of certain species of wild plants, birds and animals.  The degree of protection could be partial (for example: prohibiting trade, closed seasons) or full, in which case the disturbance, killing or injuring of just one of the species could constitute an offence.  Their associated breeding and sheltering places are also protected.

The list of protected species under domestic legislation is subject to a five-yearly review whereby species can be added to, or removed from the schedules of protected species. Details of the species afforded protection under the various pieces of legislation can be found in Legislation and policy guidance relating to the planning system.  Species which are protected under the Conservation of Habitats and Species Regulations 2010 are often referred to as ‘European Protected Species’.

2. Which species are protected by law?

2.1 Details regarding the level of protection afforded to species can be found in the protected species lists: (277kb). It should be noted that this standing advice relates to protected species and their interaction with the planning system only. For advice on implications for land management practices and protected species, please contact your local Natural England office.

3. What responsibilities do local authorities have in relation to protected species?

3.1 Many species receive legal protection under various Acts of Parliament and Regulations. The presence of a protected species is a material consideration (Paragraph 98 Circular_06/2005) when a planning authority is considering a development proposal and as such, where impacts upon a protected species are likely to result from a development, surveys must be provided to support a planning application. 

3.2 Paragraph 99 of the same Circular states that

‘It is essential that the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before the planning permission is granted, otherwise all relevant material considerations may not have been addressed in making the decision. The need to ensure ecological surveys are carried out should therefore only be left to coverage under planning conditions in exceptional circumstances, with the result that the surveys are carried out after planning permission has been granted.’ 

3.3 However, it is acknowledged that the delays and costs incurred in undertaking such surveys mean that they should only be requested where there is a reasonable likelihood of protected species being affected.  The guidance provided in this advice aims to help you make a judgement as to when it is reasonable to expect a protected species survey to accompany an application. Specifically, the flow chart: (46kb), decision tree: (132kb) and the individual species sheets  which form part of the standing advice should help you when making these decisions.

3.4 The Circular goes on to state that where there is a reasonable likelihood of protected species being present and affected by a development the surveys should be completed and any necessary measures put in place, through conditions and/or planning obligations, before the permission is granted.

3.5 Section 40 of the Natural Environment and Rural Communities Act (2006) states that:
‘Every public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity’.
Section 40(3) also states that ‘conserving biodiversity includes, in relation to a living organism or type of habitat, restoring or enhancing a population or habitat’.

3.6 Under The Conservation of Habitats and Species Regulations 2010 , (the Habitats Regulations 2010) all consenting bodies, including local authorities, must have regard to the requirements of the Habitats Directive insofar as they may be affected by the exercise of their functions.  Recently the courts have considered the application of this duty by Planning Authorities (Woolley v Cheshire Borough Council and Millennium Estates Ltd [2009] EWHC 1227 Admin and M R (Vivienne Morge) v Hampshire County Council [2010] EWHC 608 Civ and [2011] UKSC 2).

3.7 The Supreme Court in the Morge v Hampshire County Council case referred to above has ruled that it cannot see why planning permission should not be granted unless the proposed development:

1. Would be likely to offend the prohibitions in Article 12(1) and
2. Would be unlikely to be licensed as a derogation from those provisions

Natural England is the licensing authority for this purpose.  We have provided guidance on how we apply these tests when considering licence applications.

3.8 When, if it is necessary, a local authority is required to consider the likelihood of a licence being granted it should have in mind the three tests set out in Regulation 53 of the Habitats Regulations, namely:

1. The consented operation must be for “preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment”; and
2. There must be “no satisfactory alternative”; and
3. The action authorised “will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range

3.9 For major developments where an environmental impact assessment is required, Planning Authorities should to note the implications of the case of Regina v Cornwall County Council ex parte Jill Hardy [2001 JPL 786] with respect to protected species as a planning consideration and that body’s obligations under the Environmental Impact Assessment Regulations.

Other species of conservation concern

3.10 Section 41 of the Natural Environment and Rural Communities Act requires the Secretary of State to publish a list of habitats and species which are of principal importance for the conservation of biodiversity in England. The list has been drawn up in consultation with Natural England, as required by the Act.

3.11 The Section 41 list is used to guide decision-makers such as public bodies, including local and regional authorities, in implementing their duty under section 40 of the Natural Environment and Rural Communities Act 2006, to have regard to the conservation of biodiversity in England, when carrying out their normal functions. 

3.12 Where one or more of these species could be affected by a planning proposal, Natural England recommends that surveys and mitigation for any impacts are secured from the applicant prior to a decision being taken.

3.13 Such measures may assist Local Authorities in evidencing that they are fulfilling their duty under Section 40 of the Natural Environment and Rural Communities Act 2006 as referred to above.

Biodiversity Enhancements – policy and legislative requirements

3.14 As stated at paragraph 3.5 above public authorities have a duty, under s40 of the NERC Act, to have regard to the purpose of conserving biodiversity when exercising their functions.

3.15 The Government guidance contained within ODPM Circular_06/2005 makes it clear that developments should build in features beneficial to wildlife or geological features as part of the overall design. Natural England recommends that LPA’s maximise the opportunities for enhancements associated with all developments. The enhancements should be proportionate to the scale of the development proposed and could range from the installation of nest boxes or bat bricks in a small scale development through to the creation of areas of semi-natural habitat for larger scale applications as part of a wider green infrastructure network. Some examples of this are creating new areas of wetland and incorporation of ecological corridors which can also be used as pedestrian or cycle routes.

3.16 This is supported by the aims of the NPPF which states planning policies should promote the preservation, restoration and re-creation of priority habitats, ecological networks and the protection and recovery of priority species populations, linked to national and local targets, and identify suitable indicators for monitoring biodiversity in the plan, and aim to prevent harm to geological conservation interests (paragraph 117);

3.17 Further guidance can be found within Planning for Biodiversity and Geological Conservation: A Guide to Good Practice. This publication also presents case studies on how biodiversity has been built in to developments to maximise their biodiversity gain.

4. When should we request a protected species survey?

4.1 To ensure that all relevant material considerations are taken into account, the presence of protected species and the extent to which they may be affected by a proposed development should be established before planning permission is granted, except under exceptional circumstances.  Developers should only be required though to carry out surveys for protected species if there is a reasonable likelihood of protected species being present and affected (see paragraphs 98 and 99 of  Government Circular: Biodiversity and Geological Conservation – Statutory Obligations and their impact within the Planning System (ODPM Circular 06/2005)) .

4.2 We have produced a flow chart: (46kb) and decision tree: (132kb) which provides guidance on when a protected species survey is likely to be required. Survey requirements are based upon habitats and features which could be recorded during any site visit undertaken by you during the consideration of the planning application.  It may also be helpful to request an initial scoping survey from the applicant which will provide information on the habitats present on or in the vicinity of the application site (these are often referred to as a Phase 1 survey).  The decision tree is designed to help you decide whether there is a reasonable likelihood of protected species being present and affected at the application site.  The individual species sheets provide additional advice on survey requirements for the species most frequently encountered in the planning process.

4.3 As a matter of good practice Natural England advises that information about protected species likely to be encountered in your area should be added to the list of local validation requirements.  If applications are submitted without the information requested they should not be validated until that information arrives.

5. Is an initial scoping survey enough?

5.1 Scoping surveys (which are often referred to as extended Phase 1 surveys) are useful documents to define whether further survey effort for a particular species is required.  Where a scoping report recommends further surveys need to be conducted, Natural England recommends that the application should not be validated until the detailed surveys have been conducted, and the results provided. For example where a scoping survey reveals there are ponds on the application site and a great crested newt survey is recommended, the application should not be validated until the results of the amphibian surveys are submitted.  All surveys should be carried out at an appropriate time of year and employ methods that are suited to the local circumstances.  It is important that this work is undertaken by a reputable, experienced, qualified and, where appropriate, suitably licensed person.

5.2 Note: For details of optimal survey periods, please refer to FAQ no 7 “When during the year can surveys be carried out?”

6. Can a survey be conditioned?

6.1 ODPM Circular_06/2005  ‘Biodiversity and Geological Conservation – Statutory Obligations and their Impact within the Planning System’ advises that surveys should only be conditioned under exceptional circumstances.  The presence of protected species is a material consideration when a local authority is considering a planning application that could affect a protected species.  If surveys are not carried out before planning permission is granted there is a risk that not all material considerations will have been addressed (see paragraphs 98 and 99).

6.2 There are some occasions when it is appropriate to condition surveys, usually where additional surveys are likely to be required but only if the full impacts of the proposal are understood at the planning application stage.  Further survey work may be required for instance to inform the detailed mitigation, or where there may be a time lag between granting of permission and the development commencing.  In these cases, a condition could be used to secure additional/updating ecological surveys to ensure that the mitigation is still appropriate for the current situation.  This is particularly important for outline applications or multi-phased developments.

7. When during the year can surveys be carried out?

7.1 Some surveys, such as scoping surveys or looking for evidence of bats in buildings, can be carried out all year round but may be more productive at certain times of year. For more specific surveys, there are often relatively narrow times of year when surveys can occur. For details of optimal survey periods, please refer to Optimum Times to Survey Table: (75kb). 

8. How up to date does a survey need to be?

8.1 Surveys should not be over 2-3 years old for medium to high impact schemes or multi-plot or phased developments. Where a European Protected Species licence is to be applied for once planning permission has been granted, Natural England now expects applicants to carry out a walk-over of the development site within 3 months of an application being submitted to check that the habitats have not changed significantly since the survey was carried out.

9. What should detailed survey reports for protected species include?

9.1 Protected species survey reports should provide the Council with sufficient information to allow a robust assessment of the potential impacts resulting from a development upon the species present on an application site to be undertaken.  Surveys should be undertaken by suitably experienced, and where necessary licensed, ecological specialists.  Whilst the survey effort for individual species and sites will vary (see individual species sheets for survey effort) all survey reports should follow a similar style; a suggested outline is provided below:

Executive summary

• Summary of species found
• Likely effects of proposed development?
• Overview of mitigation proposed
• Summary of survey and/or reporting constraints

Introduction

• Details of site (location, grid reference, site plan)
• Summary of proposed works, including timing, along with the size and nature of the development footprint

Survey methodology

• Data search – methodology for any Local Records Centre/Local Interest Group data searches.
• Details of those carrying out the surveys and whether they are licensed (if need be)
• Date(s) of the survey(s), start/finish times along with weather conditions and temperature for all of the surveys at the site
• Exact details of the survey methodology used and whether it followed good practice guidelines for the species concerned (see individual species sheets). Any deviation from the good practice guidelines should be fully justified on ecological grounds
• Details of the make and model of any equipment used during the survey (for example, the strength of a torch beam may alter the detection rate for great crested newts and lead to a lower count)
• Any constraints to the survey (for example, were some areas not fully surveyed, and if so, the applicants should justify the reason for this)

Survey Results

• Details of data search results including any local or statutory wildlife sites
• Details of the habitats on site which may support protected species
• Results of the species specific surveys including number of animals recorded, location (where appropriate), status of area (for example, with bats is it a maternity or hibernation site?) – it may be best to append raw data as an annex to the main report
• Identification of key areas within the site for protected species (this may be best illustrated as an annotated site plan)

Assessment of impacts

• What are the potential direct impacts of the scheme on the protected species present on the application site? (For example loss of great crested newt breeding ponds, bat roosts, feeding areas or direct killing or injuring of individuals?)
• What are the potential indirect impacts of the scheme on protected species? (For example: will commuting routes be severed? Are potential hydrological impacts likely to result which will result in changes to water levels or water quality within a newt breeding pond?)
• Where European protected species, water voles and badgers are concerned, it may be appropriate for the survey report to detail whether the activities are likely to require a licence

Mitigation Strategy

• Details of the avoidance, mitigation and compensation measures for each of the species to be affected by the development
• Details of what habitat is to be lost (area, quality, location) and that which is to be provided as mitigation
• Location of any receptor site for translocated animals (be it on or off-site)
• Management prescriptions for receptor sites to make any necessary habitat enhancement and/or creation for the species concerned
• Details of any capture and translocation exercise that needs to be undertaken including timing, capture effort and trapping procedure
• Location of replacement features (such as bat roosts, nesting features, ponds, hibernation areas for reptiles or amphibians and so on)
• Details of long-term management and security of the site from future development
• Details of any compensatory measures that are to be provided to remove any residual impacts which cannot be avoided or mitigated

Monitoring and Management

• Details of post-construction monitoring proposals to ensure that the aims of the mitigation are realised.
• Details of the short, medium and long-term management for the habitats and species affected by the proposal including funding for the implementation of the management plan.

10. When should Natural England be consulted?

10.1 Unless there are additional local consultation arrangements in place, Natural England should be consulted for all developments where:

• Ecological surveys or reports have been submitted which indicate that an application is likely to affect species protected under the Habitats Regulations 2010 or other protected species where detailed advice is not provided by the Standing Advice; or

• The proposal requires an Environmental Impact Assessment; or

• The proposal affects nationally important landscapes including an Area of Outstanding Natural Beauty or National Park; or 

• The proposal is likely to damage features of a Site of Special Scientific Interest (SSSI); or 

• The proposal is likely to have a significant effect upon Special Area of Conservation (SAC), Special Protection Area (SPA) or Wetland of International Importance under the Ramsar Convention (Ramsar Sites); or 

• The proposal is for mineral workings that would lead to the loss of the best and most versatile agricultural land

10.2 Natural England’s should not be consulted when:

• A proposal has the potential to affect species protected under the Habitats Regulations but no ecological surveys accompany the application; or

• The application is accompanied by an ecological scoping (or Phase 1) report which highlights the requirement for further species specific surveys and these have not been provided; or 

• Ecological surveys or reports have been submitted which indicate that the application is likely to affect badgers, water vole, white-clawed crayfish, common reptiles, barn owls and other breeding birds not protected by Schedule 1).

In these situations, Natural England’s protected species standing advice should be consulted.  Information on any local consultation arrangements between your authority and Natural England can be found on the Local Resources page.

11. What should a mitigation strategy be designed to achieve?

11.1 The aims of any mitigation strategy should be to conserve the population size and geographical distribution of the species impacted in the short term.  In the medium to longer term, in accordance with guidance contained within Planning Policy Statement 9, the population should be enhanced.  In order to achieve this it is important to consider several key areas and whilst species specific advice is provided in the individual species sheets, general information is provided below.

Management of receptor sites

11.2 Where receptor sites or alternative roosting features are required, these should be established sufficiently far in advance of works commencing to allow time for habitats to be sufficiently mature to accommodate the species concerned.  This may take more than one full growing season for some sites.  For some species, such as bats, alternative roosting sites will need to be provided before the loss of the original roost(s).

11.3 In addition to the short-term management required during the establishment phase, a long-term management plan for all habitats and species will be required.  This should provide mechanisms for funding the implementation of management in perpetuity.  Natural England generally recommends that the use of a Section 106 agreement is the most appropriate means of securing this.  Long-term management may be undertaken by the applicant or transferred to a third party (by agreement) such as the Local Planning Authority or a local residents group.

Monitoring

11.4 To ensure that the aims of the mitigation strategy are fully met, a monitoring programme should be undertaken, funded by the applicant, over several years.  This should follow the relevant good practice guidelines for each of the species affected (see individual species sheets for details) to ensure that the populations affected are conserved, and wherever possible enhanced.

11.5 We also advocate, as part of good practice, that the results of all monitoring surveys should be submitted to the local records centre and the relevant county recording group for the species concerned to allow a greater understanding of the distribution and current status of the species concerned to be studied.  Details of local record centres.

11.6 If the results of the monitoring highlight that the mitigation is not conserving the species concerned, the management plan should be modified accordingly.

Security of mitigation sites

11.7 It would be inappropriate to move animals to a receptor site, or increase the population in an area to be enhanced, if the long-term security of the site is not secured against future works.  These need not just be related to future development aspirations for the site – land management practices such as heathland reversion of a woodland site would remove any available dormouse habitat for example.  Consequently, the applicant should provide the Local Planning Authority with details of the long-term plans for any land used for mitigation.

11.8 In addition, if replacement roosts are provided for bats within residential dwellings, these should be secured long-term to ensure that any access points to the roost are not removed or blocked by future owners, effectively removing the mitigation.

12. How can mitigation measures for protected species be secured?

12.1 Circular 11/95: Use of conditions in planning permission specifically encourages planning authorities to consider the use of conditions and planning obligations in the interests of nature conservation. With regards to protected species, Circular 11/95 states that local planning authorities should not refuse planning permission if appropriate conditions can be imposed or planning obligations entered into which are designed to prevent deliberate harm to the protected species.

12.2 It is not appropriate for Natural England to provide detailed advice on the wording of conditions.  However, in order to assist, we have set out below two examples of planning conditions that local authorities may find useful when drafting conditions or planning obligations in respect of protected species.  It is for local authorities to ensure that any conditions that they use meet the 6 tests outlined in paragraphs 14-42 of Circular 11/95.

12.3 In circumstances in which an applicant has provided a detailed mitigation strategy in support of their application, a condition which incorporates the following elements may be suitable:

12.3.1 “The biodiversity mitigation measures as detailed in the approved mitigated plan dated INSERT DATE shall be implemented in accordance with any specified time table and completed in full prior to the substantial completion, or the first bringing into use of the development hereby approved, whichever is the sooner. The development shall subsequently be implemented entirely in accordance with the approved details. Thereafter, unless otherwise agreed in writing by the local planning authority, the mitigation measures shall be permanently maintained and retained in accordance with the approved details.”

12.4 Where a local authority is satisfied that sufficient information and certainty about the deliverability of mitigation has been provided at the application stage it may be appropriate to impose a condition which compels the submission of a detailed mitigation strategy which should be implemented once planning permission has been granted (see FAQ 9 ‘What should protected species survey reports include?’ for guidance on the contents of a mitigation strategy).  In these circumstances, a condition which incorporates the following elements may be suitable:

12.4.1 “Prior to the commencement of any works which may affect [insert name of species] identified during the surveys or their breeding sites or resting places, a detailed mitigation strategy  shall be submitted to, and approved in writing by the Local Planning Authority.  All works shall then proceed in accordance with the approved strategy with any amendments agreed in writing.”

12.5  This pro forma for completing mitigation plans: (25kb) may also be helpful.

13. I want to advise an applicant to get a protected species survey done.  Where can they find someone to do the work?

13.1 The Institute of Ecology and Environmental Management (IEEM) maintain a list of members who offer commercial consultancy services and this information is available on their website at www.ieem.net (from the main page, select ‘About IEEM’ and then ‘Directory’). In addition, the Environmental Consultants Directory web site: www.endsdirectory.com offers a similar search. Another useful source to try is the Yellow Pages.

13.2 Before appointing an ecological consultant, it would be prudent to make enquiries about their abilities and experience. Please note Natural England cannot get involved in providing details of consultant success. However, prospective clients may wish to ask about the following:

• Possession of a Natural England survey licence for the specific species concerned (where applicable).

• Previous experience. Consultants should be asked for examples of recent work which they have undertaken. You may wish to check whether previous clients were satisfied with the standard of work and value for money.

• History of licence applications. You may wish to enquire about the consultant’s success rate in applying for licences of the type required, particularly the proportion of applications that have been successful without amendment.

• Costs. These vary widely between consultancies, so you may wish to seek more than one quotation. As with any sort of professional service, it is helpful to be as clear as possible about what is required and what will be included in the quoted price.

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