Wildlife Protection. Guidance for Local Planning Authorities in Hertfordshire. Compiled by Dr Jenny Jones Hertfordshire Biological Records Centre

Transcription

1 Wildlife Protection Guidance for Local Planning Authorities in Hertfordshire Compiled by Dr Jenny Jones Hertfordshire Biological Records Centre Originally produced in the year 2000 amended 2003

2 Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 2

3 CONTENTS Page Introduction 3 Statutory and non-statutory sites in Hertfordshire 4 9 Statutory sites 4 County Wildlife Sites 5 Countryside features 6-7 Other sites of nature conservation interest Biodiversity and sustainable development 8-9 Protected species and planning Applications general guidance The role of English Nature 14 The role of the Hertfordshire Biological Records Centre 15 Map of the County Wildlife Sites and other Ecology Sites 16 Legislation Guidance in relation to birds Guidance in relation to bats Guidance in relation to otters 28 Guidance in relation to dormice 28 Guidance in relation to water voles Guidance in relation to great crested newts Guidance in relation to reptiles Guidance in relation to invertebrates 38 Guidance in relation to badgers Guidance in relation to plants Checklist of protected species in Hertfordshire Contacts for advice and assistance References Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 3

4 INTRODUCTION The provisions of the Wildlife and Countryside Act 1981, the Protection of Badgers Act 1992 and the European Conservation (Natural Habitats etc) Regulations 1994 and their implications for development control are complex. National and international recognition of the importance of nature conservation led the Government to publish Planning Policy Guidance note 9 on Nature Conservation (PPG9) issued in October PPG9 clearly states that sites of nature conservation interest and protected species need to be safeguarded. Where conflict is inevitable planning should ensure that harmful effects are minimised. PPG9 sets out the Government s objectives for nature conservation and the framework for safeguarding natural heritage under UK and international law. Local planning authorities must take their contents into account within development plans and when making decisions on planning applications and appeals. Amongst the key issues addressed is the importance of both statutory designated areas, such as Sites of Special Scientific Interest (SSSIs) and non-statutory areas for nature conservation (such as Wildlife Sites). Environmental Assessment Policy is clarified in the Guidance Note and species protection endorsed. Notably paragraph 47 of PPG9 states that The presence of a protected species is a material consideration when a local planning authority is considering a development proposal which, if carried out, would be likely to result in harm to the species or its habitat." This set of guidelines produced by the Hertfordshire Biological Records Centre (HBRC) aims to inform anyone involved in changing the use of land where there are important habitats or where protected species live about their legal obligations and best practice to follow. It is the responsibility of Hertfordshire s Local Planning Authorities to ensure that the implementation of their duties when making planning decisions does not cause a breach of the legislation. The document does not refer in detail to the preparation of Structure and Local Plans but Planning Officers should be aware that Section 37 of the Habitats Directive states the need to include policies in their development plans encouraging the management of features of the landscape which are of major importance for wild flora and fauna. The document is based on a similar document produced by Derbyshire County Council (1996) but has been extended to include further details which may be helpful to planning officers when making planning decisions relating to Hertfordshire. The report is for guidance only. Readers must refer to the published acts and conventions for full details and consult with English Nature or HBRC for further advice. Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 4

5 Statutory and non-statutory sites in Hertfordshire PPG9 states that Statutory and non-statutory sites, together with countryside features which provide wildlife corridors, links or stepping stones from one habitat to another, all help to form a network necessary to ensure the maintenance of the current range and diversity of our flora, fauna, geological and landform features and the survival of important species. Statutory Sites Currently only a small proportion of the county s wildlife resource is protected by statutory legislation. Designated sites include: Site Designation Importance Explanation Sites in Hertfordshir e Ramsar International Listed under Convention of Wetlands Importance especially as waterfowl habitat. SPA Special Protection Area SAC Special Areas of Conservation NNR National Nature Reserves SSSI Sites of Special Scientific Interest LNR Local Nature Reserves International International National National Regional/ Local Classified under the EC Directive on the Conservation of Wild Birds. Designated for migratory and certain key species. Designated under the EC Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora (the Habitats Directive). Provides protection for certain key habitat types and species Designated by English Nature under section 19 of the National Parks and Access to the Countryside Act 1949 or section 35 of the Wildlife & Countryside Act Sites chosen to protect habitat and associations of plants and animals. Designated by English Nature under section 28 of the Wildlife & Countryside Act 1981.Identified in accordance with published guidelines as being of particular value for their flora and fauna, geological and physiographic features. Designated under section 21 of the National Parks & Access to the Countryside Act Designated by local authorities in consultation with English Nature. Their function is both site protection public amenity and education. 1 (Lea Valley) 1 (Lea Valley) 1 Broxbourne Woods (Wormley- Hoddesdonpark Woods) 1 Broxbourne Woods This number is increasing as more LNRs are being proposed English Nature must be consulted about all development proposals likely to affect statutory nature conservation sites and also must be consulted if any activity on the site may cause damage to their special interest. PPG9 states that The key importance of SSSIs means that development proposals in or likely to affect them must be subject to special scrutiny Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 5

6 Non statutory sites: County Wildlife Sites Whilst statutory sites cover the most important ecological sites in the county, they are insufficient on their own to maintain the full diversity of habitats and species surviving in Hertfordshire today. Non-statutory sites within Hertfordshire which are of substantive nature conservation value (of district or county importance for wildlife) are currently being identified as Wildlife Sites. The value of these non-statutory sites in enhancing the nationally important statutory sites is recognised in PPG9 by stating that: Local planning authorities should have regard to the relative significance of international, national, local and informal designations in considering the weight to be attached to nature conservation interests. Development likely to have an adverse effect on sites of nature conservation importance should not be approved unless there are reasons for the proposal which outweigh the need to safeguard the substantive nature conservation value of the site. County Wildlife Sites are regarded as being of critical natural capital (assets whose loss or damage would produce significant and irreversible changes for the worse). This designation can assist the local authorities in the planning process and many districts have incorporated the wildlife sites in their Local Plans. If planning permission is granted the Local Planning Authority (LPA) should consider the use of conditions and/or planning obligations to provide appropriate compensatory measures. The selection of Hertfordshire s Wildlife Sites, from the range of habitats present within the County, has been undertaken through the rigorous application of the Selection Criteria drawn up for the Habitat Survey Project ( ). The procedure for the selection of Wildlife Sites is primarily carried out by ecological experts from the Hertfordshire Biological Records Centre (HBRC) and the Herts & Middx Wildlife Trust (HMWT) with final approval coming from the Wildlife Site Project Steering Group Committee. Currently 1967 sites have been designated as County Wildlife Sites. With appropriate management over time or more detailed data being submitted, other sites may gain sufficient wildlife importance to meet the selection criteria. Equally inappropriate management or development may cause the deterioration of Wildlife Sites below the critical threshold. In addition to habitat criteria, areas considered to be of high importance for endangered species can also be selected as Wildlife Sites. Working in partnership with organisations such as the Hertfordshire Natural History Society, Hertfordshire Bat Group and Hertfordshire Amphibian and Reptile Group, key species areas have been identified as Wildlife Sites. Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 6

7 Countryside features and other sites of Nature Conservation Importance In addition to County Wildlife Sites the Local Authority may need to take account of other areas of nature conservation interest. PPG9 states that: countryside features which provide wildlife corridors, links or stepping stones from one habitat to another all help to form a network necessary to ensure the maintenance of the current range and diversity of our flora, fauna, geological and landform features and the survival of important species Some of these countryside features may already be identified within the county Wildlife Site areas, others may be identified as ecological sites within HBRC s database system. If the Planning officer observes any of the features (listed below) during a development control visit, it would be advisable to consult with HBRC in case the area has some significant importance for wildlife. HBRC will be able to check the area against their extensive species and habitat database and provide advice accordingly. Developments and land use changes that may adversely affect, directly or indirectly, the nature conservation value of landscape features, which are of major importance for wild fauna and flora, should only be approved if it can be shown that the reasons for development clearly outweigh the need to retain the features. Mitigation measures will need to be provided for, within the control of the developer, which would reinstate the nature conservation value of the features. The LPA should consider the imposition of conditions and obligations to reinstate the nature conservation value of the landscape features and promote the management of these habitats by entering into management agreements with landowners and developers where appropriate. PPG9 and the Habitats Directive both state the need to encourage such conservation measures. The presence of one or more of the features listed below may indicate that a site has potential wildlife value. river corridors hedgerows canals linear tree belts/ shelter belts ditches and banks large or small areas of woodland lakes semi-natural grasslands - reservoirs pasture/herb-rich meadows ponds heathlands reed beds, fens & mires road verges & embankments gravel pits disused railways derelict areas recolonised by plants & animals allotments parks & open spaces within urban areas green Lanes Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 7

8 Some of the above countryside features may also be covered by separate legislation such as the examples listed below. Note this is not intended to be a comprehensive list of relevant legislation. Hedgerow Regulation 1997 The Hedgerow Regulations provide planning authorities with a limited means of protecting important hedgerows as defined by statutory criteria. The regulations apply to most countryside hedgerows which are 20 metres or more long or which meet another hedgerow at each end. Garden hedges are excluded. No landowner/ manager may remove/destroy such a hedge without permission from the Local Planning Officer. The Local Authority has 6 weeks to respond. The criteria for defining important hedgerows are complex but the hedgerow must be at least 30 years old and meet one of 8 set criteria which identify hedgerows of particular archaeological, historical, wildlife or landscape value. One of the criteria is the presence of species protected under Schedule 5 of the Wildlife & Countryside Act 1981 or the presence of a species listed in one of the JNCC publications. For wildlife information regarding hedgerows it would be advisable to consult with HBRC. Unless satisfied that removal is justified, the authority should refuse permission. Woodland Protection Ancient woodlands (sites believed to have been woodland since the 1600s) may be included on the Ancient Woodland Inventory produced by English Nature. They have no statutory protection but are regarded as areas of high nature conservation value. Woodlands already have a measure of protection through the system of conditional approval for Felling Licences and Woodland Grant Schemes administered by the Forestry Authority. Planners and HBRC can have an input into the Woodland Grant Scheme applications to help conserve biodiversity. The District/Borough Councils can protect individual trees or groups of trees which are considered to be important by the use of Tree Preservation Orders (TPO). The law relating to TPOs is in the Town & Country Planning Act (1990). If trees are covered by a TPO the permission of the Council is required before they can be pruned or felled. The statutory duty to consider the use of Tree Preservation Orders when granting planning permissions, and at other times, remain an important mechanism contributing to biodiversity. English Nature is currently setting up a national register of Veteran Trees. In Hertfordshire all veteran tree records are being computerised at HBRC initially and then forwarded to English Nature. Veteran trees are often found in isolated areas where their loss would inevitably result in the loss of all their associated flora and fauna. It is therefore important to locate Hertfordshire s veteran trees. Pond Protection Some European countries have legislated to protect all ponds. In the UK, ponds have no specific protection although PPG9 and the Habitats Directive specifically refer to ponds as being of major importance for flora and fauna. Through the Environment Agency s statutory duty ponds can be conserved through their powers with regard to water management and pollution control. When determining a planning application that involves the loss of a pond, efforts should be made to incorporate the pond within the development or create new ponds to mitigate the loss of habitat Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 8

9 Biodiversity (the variety or variability of life) and Sustainable Development At the Rio de Janeiro Summit in1992, the UK was a signatory of the Agenda 21 commitment; a key feature of which is the need to achieve sustainable development. The UK was also a signatory to the Convention on Biodiversity. The planning system has a key role to play in influencing the abundance and variety of animals and plants in our environment. PPG9 states that: the components of diversity should be used sustainably; that is, in a way and a rate which does not lead to their long term decline and which meets the needs of present and future generations With careful planning and control, conservation and development can be compatible. As a result of the Government s commitment to the Rio Convention, Britain has published a UK Biodiversity Action Plan (1994) which lists habitats and species to be given priority for conservation action. This led to the establishment of the UK Biodiversity Action Plan Steering Group which resulted in a series of reports. There is now a long list of Biodiversity Action Plan (BAP) species and the list is likely to be added to. The Joint Nature Conservation Committee (JNCC) is responsible for maintaining and updating the national list. In Hertfordshire a 50 Year Vision ( Local Biodiversity Action Plan) was produced in Since then a County Biodiversity Officer has been appointed to promote, facilitate and co-ordinate the biodiversity action planning process across Hertfordshire. Rarity is one of the prime reasons for the establishment of protected areas. A species can be internationally rare but relatively common locally or nationally. Similarly a nationally rare species can, in some circumstances, be more common at international level. Many locally, nationally, internationally rare or vulnerable species may not be protected by law under the Wildlife and Countryside Act. These are often referred to as Red Data Book Species or species of conservation concern. The Natural History Society specialist County Recorders are currently responsible for recording such species and HBRC are working in partnership with the Society to identify areas with rare or vulnerable species. Planners should ensure that the local biodiversity resource is adequately understood in its local, national or international context and that its wider value is taken into account in all planning decisions. Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 9

10 Species on the UK priority BAP list known to be in Hertfordshire include: pipistrelle bat bittern brown hare grey partridge thatch Moss otter song thrush water vole bullfinch dormouse linnet cornflower great crested newt spotted flycatcher shepherd s needle white clawed crayfish turtle dove corn cleavers greater stag beetle stone curlew violet click beetle corn bunting scarlet malachite beetle reed bunting molecricket tree sparrow Species listed on the local BAP which are of conservation concern by virtue of being locally threatened, locally rare or locally distinctive. Natterer s bat nightingale corn parsley water rail river water-dropwort palmate newt kingfisher narrow-fruited corn salad long-eared owl great pignut pochard green-winged orchid brown hairstreak hawfinch corn buttercup chalkhill blue snipe corn gromwell grizzled skipper ivy-leaved water crowfoot Duke of Burgundy pasque flower silver-washed fritillary petty whin snakes-head fritillary Areas supporting species listed as being of conservation concern on one of the published lists may be encountered on proposed development sites which have not been designated as wildlife sites. Where areas supporting these species are threatened by development the LPA may have to consider how critical the site is for the survival of the species. Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 10

11 Protected Species and Planning Applications- General Guidance The effects of development on flora and fauna are a key criterion in statutory Environmental Assessment as listed in Schedule 1 to the Town & Country Planning (Assessment of Environmental Effects) Regulation, Where formal environmental assessment is not required by the Regulations, it is best practice to undertake an ecological appraisal of a site to understand the effects of the development, particularly necessary where a species protected by law or a site of wildlife importance would be affected. PPG9 sets out the relationship between the species protection legislation in the Wildlife & Countryside Act 1981, The Protection of Badgers Act 1992, the Habitats Regulations 1994 and the Planning Acts. The Guidance Note states that in planning decisions: the presence of a protected species is a material consideration Information on the presence of protected species or rare species may be on the basis of information received from the public, recognised specialist, nature conservation organisation or from records held on HBRC s database. Planning decisions likely to affect protected species and their habitats should be fully informed by expert survey and advice. Early advice needs to be sought from an appropriate expert from the onset, especially if there are seasonal constraints. It is often in the developer interest to check for the presence of a protected species at an early stage- ideally before the land is bought. Developers need to be aware of the implications of encountering protected species on potential development sites. If a development is likely to result in disturbance or damage to a protected species habitat, then a licence will usually be required. Ignoring their presence can lead to time delays and additional costs. Planning application drawings may need to be modified to enable the favourable conservation status of the species concerned to be maintained and the timings of the work may need to be phased around the species concerned. Planners should use the procedures under the General Procedure Orders (Town & Country General Procedure Order 1995) to require the submission of adequate information about the effects of the proposed development. The Planning Officer will need to ensure that full details are obtained, either from the applicant (through appropriate consultants) or from the statutory agencies or local nature conservation organisations whose members are experienced of surveying for the species concerned. It is recommended that ecological surveys undertaken are forwarded to HBRC for independent evaluation. Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 11

12 SPECIES INFORMATION NEEDED BY THE LOCAL AUTHORITY Rationale for the proposed work Survey information identification of location, status and level of population This may require looking outside the development footprint. To obtain this information it may be necessary to survey at particular times of the year. The method of survey (eg date/ techniques) should be stated. Mitigation measures against the impact. This should include a reasoned statement as to the choice of compensation. Where possible protected species should be maintained in situ, with appropriate management implemented to conserve the population. The development may need to be redesigned to safeguard the species and works may need to be restricted to particular times of the year. A monitoring programme should be included and any need for a DEFRA/English Nature licence stated. Summary of the impact the development is likely to have on the species This should include a projected assessment of the species status before and after the development. The threatened species population will need suitable breeding areas, adequate foraging habitat, places of shelter and connecting habitat corridors to allow dispersion of the population. These provisions will need to be safeguarded before planning permission can be given. In addition to the design lay out of the planning application,consideration may need to be given to any ecological implications of artificial lighting. Floodlighting can have a severe effect, particularly on some of the nocturnal species already under threat. The Planners are directed to HBRC s publication The possible implications of artificial lighting by Alan Outen (1998) If protected species are likely to be seriously affected by a development, planning permission should be refused. The planning officer must be careful not to grant planning permission which may provide a legal justification for undertaking operations that would harm a protected species. Planning authorities should also be particularly careful when they impose planning conditions for other reasons, that these conditions do not place a requirement on the applicant to carry out an activity which would cause a breach of the wildlife protection law. English Nature's solicitors consider that such a condition would constitute an error in law. If the applicant does not provide sufficient information for the LPA to determine an application, the LPA should consider not accepting / registering the application until such time as the information becomes available. Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 12

13 The law requires that reasonable precautions are taken to safeguard the species but what are reasonable precautions? If the applicant for development acts responsibly by following a recommended consultation procedure, taking account of the advice they receive, it could be considered that reasonable precautions have been taken. However, the final decision would be the decision of the courts. When development is permitted that may have an effect on the protected species, the Planning authority should avoid any potential harm by the use of appropriate planning controls. The compensation strategy can be agreed and monitored as a planning condition(s). Long term management and monitoring may also be covered by section 106 agreements between the planning authority and the developer. Clear objectives and methodology within compensation schemes are important in monitoring conditions or section 106 agreements. If there is a possibility of a licence being required for the works, English Nature or the Department for Environment, Food & Rural Affairs (DEFRA) must be consulted. Licences derogating from the protection afforded to European protected species are issued by DEFRA. The Planning Authority should be aware that three tests must be satisfied before DEFRA can issue a licence to permit otherwise prohibited acts: Regulation 44(2)(e) states that licences may be granted by DEFRA to preserve public health or public safety or other imperative reasons of overriding interest including those of social or economic nature and beneficial consequences of primary importance for the environment. Regulation 44(3)(a) states that a licence may not be granted unless DEFRA is satisfied that there is no satisfactory alternative Regulation 44 (3)(b) states that a licence cannot be issued unless DEFRA is satisfied that the action proposed will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range DEFRA will need from the Local Planning Authority a copy of the planning application consent, the report to the planning committee and the report/minutes of the meeting when permission was granted by the committee. A determination of the first two tests will be made on the basis of the information provided by the planning authority and DEFRA will seek advice from English Nature in considering the third test. Planning controls are additional to the species protection legislation. The planning authority should clearly define a set of procedures involving consultation with the applicant as well as the Hertfordshire Biological Records Centre (the Local Authorities independent ecological advisors), English Nature and the relevant specialist voluntary body; this will ensure that wildlife legislation is complied with by the local planning authority and that persons undertaking development are made aware of the legal requirements. Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 13

14 FLOW DIAGRAM OF SIMPLIFIED DEVELOPMENT CONTROL PROCESS Planning Application Ecological Advisors HBRC English Nature Species Specialist Is a protected site affected? Local Plan Consultation YES Field Evaluation by an appropriate specialist to determine the impact on the species and propose mitigation Evaluation report The development has an impact on the species that can be minimised and compensated for Evaluation report The development seriously affects the species survival and cannot be compensated for Consult with HBRC as independent ecological advisors (Quality Control) Make modifications to proposals Approve development with appropriate conditions/ obligations Refuse permission for development Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 14

15 The Role of English Nature English Nature is the Statutory Government Organisation whose purpose is to promote conservation of England s wildlife and natural features. It was formed by the Environment Protection Act 1990 from the Nature Conservancy Council. It has duties to designate areas as Sites of Special Scientific Interest (SSSIs) through Part II of the Wildlife & Countryside Act (1981). English Nature is required to notify the Secretary of State, Local Planning Authority and the land owners or occupiers when a site is to become an SSSI. The notification includes a description of the site location, special interest and any operations which would be likely to damage that interest. Under the General Development Order, Local Planning Authorities must consult English Nature before granting permission for the development of land in or likely to affect an SSSI. English Nature also designate and advise on SPAs, SACs and NNRs and also advise Local Authorities on the declaration and management of Local Nature Reserves. In relation to protected species the chief role of English Nature is to ensure that species given legal protection are maintained as, or restored to become, viable populations. The Organisation also has the same responsibility as any other body to ensure that cruel treatment to an animal does not occur. English Nature is responsible for advising on the issuing of licences under the Wildlife & Countryside Act (1981), Conservation (Natural Habitats &c) Regulations (1994) and the Protection of Badgers Acts (1992) to enable works to be undertaken which involve the moving or disturbance of protected species. Licences cannot be issued retrospectively so it is important to consult English Nature well in advance of the need to carry out such work. In certain circumstances English Nature will object to development proposals, particularly where no proposals have been put forward to safeguard the species on it s habitat. English Nature has both national and local offices. The headquarters are based in Peterborough and for Hertfordshire the regional office is based in Colchester. Where the issue is primarily a local one, such as site related casework, the most usual point of contact is the Local Team. The address and phone number for the Regional English Nature Office is given below: English Nature Harbour House Hythe Quay Colchester Essex CO2 8JF Tel: essex.herts@english-nature.org.uk Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 15

16 The Role of the Hertfordshire Biological Records Centre The Hertfordshire Biological Records Centre (formerly HERC) manages the county s biological records database and acts as ecological advisors to the county and sponsoring district councils. HBRC manages an extensive database with information on the distribution of species and habitats across Hertfordshire. A key role of HBRC is the identification of areas with locally distinctive/important plant and animal communities. Currently approx sites with some ecological importance have been identified, the most important of which are County Wildlife Sites. The Habitat Reports, distributed to each district, provide brief details of the designated Wildlife Sites but further information on these and other sites is available at HBRC. Databases used by HBRC include Access, Recorder ( the national species recording database) and Geographical Information Systems (GIS) such as Arc View and DMAP. Using powerful GIS systems areas of importance for wildlife have been mapped principally to alert planners and other decision makers to their importance. If the planning system is to play an effective role in biodiversity conservation, planners will need specialist advice. Using the biological records and data sets available, HBRC are able to interpret and provide advice on the significance and rarity of species and habitats. Recommendations can be given on the actions that may be necessary to sustain habitats and protected/rare species. HBRC contacts are listed below Liz Anderson Ecology Officer Graham Goodall Ecology Officer Martin Hicks Ecology Officer Jenny Jones Ecology Officer Anita Parry Ecology Officer Sarah Postletwaite Ecology Officer Lynn Toynbee Administration * Esther Collis Biodiversity Officer * The Biodiversity Officer works for the Hertfordshire Environment Forum but is hosted by HBRC. The voluntary nature conservation bodies are an important source of specialist advice and local knowledge. Records and survey information is provided to HBRC from a variety of nature conservation organisations and specialists including: The Herts & Middx Wildlife Trust, The Hertfordshire & Middlesex Bat Group, Hertfordshire & Middlesex Badger Group, Hertfordshire Mammal Group, Hertfordshire Amphibian and Reptile Group, Hertfordshire Dragonfly Group, Hertfordshire Moth Group, Butterfly Conservation and the Hertfordshire Natural History Society recorders and members. Planners should ensure that there is adequate and up-to-date information available about the biological resource of an area. Any ecological data relevant to a site of nature conservation interest received by the LPA should be copied to HBRC. Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 16

17 Map of the County Wildlife Sites and other Ecology Sites Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 17

18 LEGISLATION The Wildlife and Countryside Act 1981 (and later amendments) Part 1 of The Wildlife and Countryside Act 1981 (and later amendments) sets out the protection which is afforded to wild animals and plants in the UK. Every five years, the Schedules to the Act relating to protected animals (Schedule 5) and plants (Schedule 8) are reviewed. Local Authorities are notified of any amendments and additions to those Schedules as a result of the review. The last review was in The protection offered by the Act is additional to that offered by the planning system. The level of protection varies according to the species. For animals listed on Schedule 5 of the Wildlife & Countryside Act (full protection) it is an offence to: intentionally kill, injure or take from the wild (section 9 part 1) damage, destroy or obstruct access to any structure or place used by the species whether or not the animals are in occupation (section 9 part 4a) recklessly disturb the species whilst they are in a place of shelter or protection (section 9 part 4b) The Wildlife & Countryside Act Birds Protected under Schedule 1 (parts 1 and 2) (details given on page 20-23) Animals (other than birds) protected under Schedule 5 (found in Hertfordshire) great crested newt full protection page all species of bats full protection page hazel dormouse full protection page 28 otter full protection page 28 water vole habitat protected and protected from disturbance page grass snake intentionally kill and injure only page slow worm intentionally kill and injure only page common lizard intentionally kill and injure only page white clawed crayfish intentionally take only page 38 violet click beetle full protection page 38 mole cricket full protection page 38 Plants Protected under Schedule 8 (details given on page 43-44) The above list excludes species protected from being offered for sale or those protected under Schedule 6. A checklist of these is given on page Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 18

19 Exemptions There are some instances where actions are not regarded as an offence: Injured or disabled animals may be taken and cared for with the sole purpose that they will be released once recovered. Animals within the living area of dwelling houses may be disturbed but not killed, injured or taken. Actions prohibited by legislation are allowed if a valid licence is obtained in advance from the proper authority. An offence is not committed if the act was the incidental result of a lawful operation and could not reasonably be avoided (clause in Section 10 of the Wildlife & countryside Act and Regulation 40 of the European Regulations). This can be relevant to planning. Development of land with planning permission that would otherwise be prohibited by virtue of the presence of protected species can go ahead because of this clause. However, this is only the case if the act could not have been reasonably avoided. For example the lawful operation of building houses needs to be able to show that the habitat damage and any killing or injury of the protected species on site cannot be reasonably avoided. It is the interpretation of what is reasonable that needs careful thought. As an example, if a piece of land has planning permission to build, it may not be reasonable to expect the habitat beneath the house to be safeguarded; but it would be reasonable to expect effort to be made to capture protected animals and provide them with a suitable alternative place to live to avoid injury and ensure survival. In these instances, even if planning permission has been granted, the provision of the Wildlife & Countryside Act still apply. Penalties Since the Wildlife and Countryside Act (1981) was passed there have been several changes to the system of penalties imposed through the courts. Maximum fines are now set on a five point scale. Offences under Section 9 of the Wildlife & Countryside Act and Regulation 39 of the Habitat Regulations could result in a fine of 5000 per offence. Prison sentences can also be imposed. In cases where a number of animals are involved each can be counted as a separate offence and each can attract the maximum penalty. Potential offences involving many animals could add up to a very large fine. Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 19

20 Under the Wildlife and Countryside Act (1981) the Local Authority also has a statutory role to raise awareness of protected species Local Authorities are required by Section 25 of the Wildlife & Countryside Act, where they consider it expedient, to take steps to bring to the attention of the public and of school children in particular the provisions of Part 1 of the Act, relating to the protection of species. SOME OTHER RELEVANT LEGISLATION The Protection of Badgers Act 1992 The Protection of Badgers Act affords specific protection to badgers covering deliberate interference with the animals themselves and their sett. Details are given on page The European Council Directive on the Conservation of Wild Birds The Birds Directive The Directive requires member states to preserve sufficient diversity and areas of habitat to sustain populations of naturally occurring birds. The key provision was the introduction of SPA. 150 species of birds are listed in Annex 1 of the directive; over 50 of these species naturally occur in the UK The Habitats Directive The European Communities Council Directive on the Conservation of Natural Habitats and Wild Fauna and Flora. The main objective of this directive is the maintenance and restoration at a favourable conservation status, of natural habitat types and species of community importance, while taking account of cultural, economic, social and regional requirements. This was enacted in the UK through the Wildlife & Countryside Act (1981) and the Habitat Regulations (1994). Certain habitats and species have been listed on Annexes to the Directive: Annex 1 for habitats and Annex 11 for species. Member states are required to identify SACs which together with SPAs under the Birds Directive will become part of a coherent community network of designated sites. Species protection provisions are listed on Annex IV. Species listed on the European Directives and Conventions is given on page Countryside and Rights of Way Act (CROW) 2000 Part III of the Act provides a statutory basis for biodiversity conservation. Government Departments and the National Assembly must have regard to biodiversity conservation and maintain lists of species and habitats for which conservation steps should be taken or promoted. The Act improves procedures associated with the notification, protection and management of SSSIs. Conservation agencies are given the power to refuse consent for damaging activities and to encourage positive management of the land. There is a statutory duty for public bodies to further the conservation and enhancement of SSSIs. Legal protection for threatened species updates the Wildlife & Countryside Act 1981 notably by creating a new offence of reckless disturbance and by increasing the powers available to the police and wildlife inspectors. Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 20

21 GUIDANCE IN RELATION TO BIRDS Protection of wild birds, their nests and eggs Under the Wildlife & Countryside Act (1981) as amended 1985, it is an offence to: intentionally kill, injure or take any wild bird take, damage or destroy a nest whilst it is in use or being built take or destroy an egg of any wild bird. The exceptions here are certain pest species controlled by authorised persons on their own land and certain game birds and wild fowl which may be taken in season. Example of an offence under this section of the Wildlife & Countryside Act The removal of a hedgerow on a housing development having been informed that birds are nesting there. There have been a number of successful prosecutions where the work had been committed in the reasonable knowledge that it would result in killing or the destruction of nests and eggs. Additional protection for some bird species and their presence in Herts Some rare or vulnerable birds have additional protection where it is an offence to intentionally disturb these birds whilst nesting or to disturb their dependent young. In Hertfordshire these include: crossbill, firecrest, black redstart, hobby, kingfisher, barn owl, little ringed plover, quail, Cetti s warbler, marsh warbler and Savi s warbler. Other birds which are probably now extinct as breeding species but have bred in Hertfordshire in the past are: cirl bunting, corncrake, stone curlew, red-backed shrike, bearded tit, woodlark and wryneck. Two specially protected birds- bittern and dotterel- are associated with specific sites on passage or wintering. Other protected rare visitors include goshawk, honey buzzard and red kite. In recent years the re-introduced Red Kite has been increasingly observed in Hertfordshire. Some birds may not be disturbed during the close season ( February 1 st - August 31 st in most cases). In Hertfordshire these include goldeneye garganey, scaup and pintail. The RSPB has drawn up a list of Birds of Conservation Concern which include species which have undergone a dramatic decline according to recent or historical data. Birds on their red list ( species of greatest concern) known to be present in Hertfordshire are: bittern, red kite, grey partridge, quail, turtle dove, nightjar, wryneck, woodlark, skylark, song thrush, marsh warbler, spotted flycatcher, red blacked shrike, tree sparrow, linnet, bullfinch, reed bunting and corn bunting. Birds records for Hertfordshire are maintained by the Hertfordshire Bird Club ( see contact list on page 49-50). Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 21

22 Key Habitats and signs Key habitats for birds include all land and aquatic habitats - in particular hedgerows, trees, rough grassland, marshland and open water. Built structures may also be important such as the use of high buildings for nesting by swifts and the use of rural barns by barn owls. It should be born in mind that mobile species frequently range over a large area where they breed, feed and rest. The Barn Owl for example, in addition to roosting places, is equally dependent upon extensive foraging areas. Bird signs are easily recognised and could be noted during the development control officer s site visit. Look out for owl pellets (regurgitated indigestible parts of the owls prey with bones and hair), droppings (e.g. white splashes in buildings) feathers (barn owl feathers are distinctive) and in general, any nests in hedges, grassland and trees. Critical nesting times/ Optimal survey The optimal survey time for breeding birds is in the spring. For counts of wintering wetland birds survey October-March. The chart below shows the critical times that birds will be nesting in hedgerows and small trees. Other species such as water birds and waders will generally start nesting earlier in the year. It should be born in mind that the breeding period of the barn owl may extend through to September. Monthly dependence of birds on hedgerows Jan Feb Mar April May June July Aug Sept Oct Nov Dec Nesting Birds Birds feeding on fruits Optimal Survey Jan Feb Mar April May June July Aug Sept Oct Nov Dec Survey for breeding wintering bird survey wintering bird survey Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 22

23 Birds: Recommended Consultation Procedure for LPAs in Hertfordshire Where specially protected birds are known or suspected to nest in an area of habitat, then the applicant should be requested by the LPA to provide sufficient information concerning the population, evaluation of the importance, an assessment of impact and proposals for mitigation. Once this information is received by the LPA, they should consult English Nature. English Nature are empowered to grant licences for nest inspections. Licences are normally site specific and valid for a limited period. In all other circumstances where development may involve impact on nesting habitats e.g. hedgerows, trees, open water or wet grassland, the LPA could consult the Hertfordshire Biological Records Centre, Hertfordshire Bird Club or Herts & Middx Wildlife Trust who may provide guidance on the appropriate timing of proposed development or retention of certain areas of habitat. The LPA may then proceed with the determination of the application paying due consideration to any objections and the law. Conditions should be attached to the planning permission listing, at a minimum, reasonable precautions which should be taken to protect the site or species. Many previously common birds are now in decline and best practice procedures should be followed to help halt this decline. Procedures such as retaining suitable areas in developments to provide nesting cover and felling trees to avoid the nesting period should be recommended. Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 23

24 Case example: barn conversion with barn owls Barn owls have declined drastically in Hertfordshire in recent years but there are still some surviving pairs who will be dependant on rural barns, old hollow trees and sufficient rough grassland and hedgerows for foraging. When a planning application is submitted for a barn conversion it may be wise to check for the presence of barn owls at an early stage to avoid their possible discovery later when building work has started. The sudden discovery of a breeding nest may bring about costly delays of building works until the dependent young has left the nest site (usually by the end of August). If fresh owl pellets are found it may be wise to assume that the birds are breeding and that no works should be undertaken until further survey by an appropriate expert. Contact the local office of EN who can arrange for a holder of a barn owl inspection licence to visit the site. Barn owl survey information should include which part of the site is being used by barn owls along with recommendations for how the birds can be accommodated within the development and how disturbance would be kept to a minimum. Mitigation measures would need to include: Incorporating provision for barn owls (nestboxes)into parts of the development site. Suitable boxes can be built within the roof space attached to the roof timbers and boarded off from the rest of the loft. It will be necessary to create a new entrance hole in the end wall close to the apex to provide access to the nesting area. Details of suitable dimensions for the entrance hole and nesting place is given in the booklet Barn Owls on Site: A guide for developers and planners (1995). The timing of any work is important: any work in areas known or likely to be occupied by Barn Owls must avoid the breeding season normally March to September. Suitable alternative nest and roost sites (nestboxes) should be provided within 0.5km of the existing site as soon as possible and certainly prior to any works being undertaken. These should be retained as sanctuary areas with disturbance kept to an absolute minimum. Any noisy equipment required for site works should be positioned away from buildings occupied by Barn Owls and any new tree plantings or overhead wires should be positioned away from known flight paths. Areas of meadow and rough grassland should be maintained through section 106 agreements and where possible new foraging habitats provided. Hertfordshire Biological Records Centre: Wildlife Protection Guidance for Local Planning Authorities 24