A Summary of Changes to the 1994 Habitat Regulations with respect to European Protected Species
Several changes have been made to the Habitat regulations following two recent judgements against the UK Government in the European Court of Justice. Existing protection measures under the Wildlife and Countryside Act (1981) remain in place.
The main changes to the legislation will mean that:
- European Protected Species (EPS) licences will be required more often
As the law now extends to the ‘accidental damage’ of resting or breeding sites, there will be a significant increase in licence requirements for agricultural and forestry operations.
- Some of the offences to protect EPS have become more complex
The disturbance of protected species is now classified as being either “high level” or “low level” disturbance depending on the impact of the development . The impact will be assessed in relation to ‘the ability of any significant group of animals of that species to survive , breed, or nurture their young’ or ‘the local distribution or abundance of the species’
The clarification given to this definition will simplify the decision making process, but will require more thorough survey work to be undertaken.
High level disturbance, or where the 1994 regulations are relevant, will always require an EPS licence. Low level disturbance may no longer require a licence, provided that all works comply with the Wildlife and Countryside Act.
Any prosecution will need to show whether the disturbance was ‘deliberate’, intentional’ or ‘reckless’. Proposed operations will need to be assessed in relation to the level of possible disturbance and to minimise the level of risk to all parties.
- Clients are now responsible for EPS licence applications
The developer must now take responsibility for making the application for an EPS licence, and the accuracy of its contents. Any false statement in their application could expose the developer to prosecution. They will also be responsible for compliance with all licence conditions. It is now much easier for the regulator to prosecute under this new offence by proving a breach of condition once a licence has been granted.
Consultants will still be responsible for their method statements and any professional advice given.
- EPS licences may be more difficult to obtain
The regulators will be strictly applying the legal tests which have to be satisfied for a licence to be granted.
The role of obtaining planning permission documents has now been moved from DEFRA to the consultant.
- The maximum fine for breaches has been increased to £5000 and/or a six month custodial sentence.
The court will have regard to ‘whether the offence could reasonably have been avoided.’ so it is essential to adhere to best practice at all times.
We are advising our clients to ensure that thorough ecological surveys are conducted prior to development and that sufficient time is allowed to undertake any mitigation or licence applications. Closer co-operation will be needed with the design team in order to incorporate adequate mitigation and compliance measures.
European protected species include the following:
- Bats, Horseshoe (all species)
- Bats, Typical (all species)
- Common Otter
- Dolphins, porpoises and whales (all species)
- Dormouse (but not edible or fat dormouse)
- Great crested newt (or warty)
- Large Blue Butterfly
- Marine Turtles
- Natterjack Toad
- Sand Lizard
- Smooth Snake
- Sturgeon
- Wild cat
European protected plants include:
- Creeping Marshwort
- Early Gentian
- Fen Orchid
- Floating-leaved Water Plantain
- Killarney Fern
- Lady's Slipper
- Shore Dock
- Slender Naiad
- Yellow Marsh Saxifrage
Habitat types to be aware of:
Otters are now frequent throughout the west country and any construction or development work within 50 metres of a watercourse could potentially damage an otter ‘resting’ or ‘feeding’ area’. Threats must be identified and potential damage avoided.
We are used to looking for bats in old buildings but new regulations put increased protection on tree roosts as well. Old trees with broken limbs, dead wood or forks are particularly attractive and should be checked.
Dormice are commonly found in scrubby edges around woodlands. Hazel bushes are a particular favourite but they can be found on a wide range of plants. Take particular care with brown field or abandoned agricultural sites.
Great Crested Newts are common in clean ponds but are rare in Cornwall and most of Devon. Natterjack Toads are also very rare in the West Country.
Old piles of rubble or hardcore are often home for snakes and lizards.
The changes to the Habitat Regulations do not change any of the existing protection given by the Wildlife and Countryside Act (1981), which was updated through the Countryside and Rights of Way (CRoW) Act (2000).
(Note: This information is for guidance purposes only. Specific assistance should be sought from a suitably qualified ecologist or lawyer. The following summary information applies only in England and Wales. Different protection measures apply in Scotland and Northern Ireland.)
For further information please contact Tamar Consulting on 01579 372141 or contact any of the staff directly.
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