WELLINGTON HOUSE, WINCHESTER COLLEGE, KINGSGATE STREET, WINCHESTER, HAMPSHIRE PHASE 1 AND 2 BAT ASSESSMENT

Transcription

1 WELLINGTON HOUSE, WINCHESTER COLLEGE, KINGSGATE STREET, WINCHESTER, HAMPSHIRE PHASE 1 AND 2 BAT ASSESSMENT Final Document September 2013 Invertebrate, Bird, Mammal, Reptile, Amphibian and Botanical Surveys Management Plans Habitat Appraisal Marine NVC EcIA ECOSA Ltd, 1 Beck Mews, 108 Stockbridge Road, Winchester, Hampshire, SO22 6RN Tel: info@ecosa.co.uk Web: Registered Office: 3-4 Eastwood Court, SO51 8JJ Registered in England No:

2 WELLINGTON HOUSE, WINCHESTER COLLEGE, KINGSGATE STREET, WINCHESTER, HAMPSHIRE PHASE 1 AND 2 BAT ASSESSMENT Table of Contents EXECUTIVE SUMMARY INTRODUCTION Background Aims and Scope of Report Site Setting and Description Site Proposals METHODS Introduction Phase 1 Bat Survey Phase 1 Survey Building Assessment Criteria Phase 1 Survey Timing, Weather Conditions and Personnel Phase 1 Survey Equipment Phase 1 Survey Limitations Phase 2 Bat Surveys Survey Methods Phase 2 Survey Personnel Phase 2 Survey Equipment Phase 2 Bat Survey Limitations RESULTS AND ASSESSMENT Introduction Phase 1 Bat Survey Bat Roost Building Assessment Bat Foraging and Commuting Habitat Phase 2 Bat Survey SUMMARY EVALUATION, CONSIDERATION OF IMPACTS AND RECOMMENDATIONS Introduction Summary Evaluation Potential Impacts of Proposed Development Recommendations Updating Survey Appendix 1 Protected Species Legislation COPYRIGHT This report is the copyright of Ecological Survey & Assessment Limited (ECOSA). Any unauthorised reproduction or usage by any person is prohibited. i

3 EXECUTIVE SUMMARY Ecological Survey & Assessment Limited (ECOSA) was contracted by Winchester College to carry out Phase 1 and 2 bat assessments of Wellington House and adjacent buildings, part of the Winchester College complex. The site comprises a cluster of buildings on Kingsgate Street, Winchester. Bat surveys were required in support of a planning application for the demolition of all buildings in the cluster, with the exception of the main part of Wellington House, and redevelopment of the site to create up to 12 residential units. The Phase 1 and 2 surveys were aimed at determining the presence or likely absence of roosting bats supported by the Wellington House complex and, if present, the surveys were aimed at assessing the number, species and location of bat roosts present within the buildings. The Phase 2 survey was also aimed at determining key areas of on-site bat foraging and commuting activity. The Phase 1 bat survey confirmed the presence of approximately 25 pipistrelle type droppings within the roof void of number 78 Kingsgate Street. The Phase 2 surveys did not record any roosting bats within the buildings and it is not considered that they are currently used by roosting bats. The grounds are used occasionally by foraging and commuting common pipistrelle and a single noctule was recorded commuting over the buildings. Bat activity at the site was exceptionally low, with no bats recorded during one of the three surveys. It is considered that the small number of bat droppings identified during the Phase 1 survey were from a single pipistrelle bat roosting intermittently for short periods during the last three to four years. It is considered that the roost is not currently in use. As a result, it is considered that the building does not currently support roosting bats and it is therefore not considered necessary to apply for a European Protected Species Licence (EPSM) in respect of bats. It is, however, recommended that roof stripping works proceed under the supervision of a licensed bat worker during a destructive search, as a precautionary measure. An updating Phase 1 survey is recommended if development works have not commenced by July

4 1.0 INTRODUCTION 1.1 Background Ecological Survey & Assessment Limited (ECOSA) was contracted by John Wells, Bursar of Winchester College, to undertake Phase 1 and Phase 2 bat surveys in relation to the proposed demolition and conversion works at the Wellington House complex to create up to 12 new residential units. The site address is Wellington House, Kingsgate Street, Winchester at SO23 9PE, located at National Grid Reference (NGR): SU Aims and Scope of Report The Phase 1 and Phase 2 bat surveys were aimed at assessing the presence or likely absence of roosting bats supported by Wellington House and adjacent buildings within Winchester College and, if present, to provide an assessment of the number, species, status and location of bat roosts supported by the site. The Phase 2 survey was also aimed at determining any important areas of foraging and commuting activity within the vicinity of the building. This information allows an assessment of the value of the Wellington House complex and associated grounds for roosting, foraging and commuting bats to be made. The data gathered during the bat survey work has been used to assess the potential ecological impacts of the proposed demolition and conversion works, and recommendations based on the findings of the surveys and the identified impacts are provided. 1.3 Site Setting and Description The surrounding landscape comprises the City of Winchester, with the site positioned within the eastern area of the city. The water meadows, associated with the River Itchen and St. Catherine s Hill are located to the east. The River Itchen is 500m to the east and Winchester Cathedral is some 220m north of the site. Winchester College as a whole is a large campus spread throughout the city centre, including a range of Grade I, Grade II* and Grade II listed structures, which represent over six centuries of continuous development. The original buildings were established in the late fourteenth century. The buildings are located in mature managed grounds, covering an area of approximately 100 hectares (ha), enclosed by a stone wall to the north and east. Wellington House, Wellington Cottage and Numbers 78 and 79 Kingsgate Street form a cluster of buildings located within the Winchester College complex, positioned on Kingsgate Street in the east of the city. The buildings are connected in an L shape and back onto three gardens, one of which is disused and overgrown. Wellington House and Wellington Cottage are of Victorian construction and house the College s Geography 2

5 Department and offices. Numbers 78 and 79 Kingsgate Street are staff houses built in the 1960s. The Wykeham Arms pub is immediately opposite Wellington House on Canon Street to the south. 1.4 Site Proposals Wellington House and adjacent buildings are identified as Site 2 within the Winchester College Campus and Conservation Development Framework (March 2010), which sets out suitable sites within the College for redevelopment and/or conservation. Wellington House is of an awkward internal configuration that does not fulfil modern teaching standards. Furthermore, numbers 78 and 79 Kingsgate Street are 1960s buildings which are not in keeping with the range of historic buildings throughout Kingsgate Street. Redeveloping these buildings in isolation would not be viable. The proposals for the site involve demolition of all buildings in the cluster, with the exception of the main part of Wellington House, and redevelopment of the site to create up to 12 residential units. 3

6 2.0 METHODS 2.1 Introduction This section details the methods used during the Phase 1 and 2 bat surveys carried out for Wellington House and adjacent buildings at Winchester College between May and July Phase 1 Bat Survey Wellington House and adjacent buildings were investigated externally to identify potential bat access/egress locations and roosting areas such as gaps or holes in roof tiles, and to record direct evidence of bat presence such as droppings and urine staining adhered to the external elevations of the buildings. Detailed investigations of all accessible roof voids within the buildings was undertaken to record evidence of bat roosting activity such as live animals, corpses, droppings, feeding remains, urine staining and fur staining. The buildings were assessed for their suitability for supporting roosting bats (see Paragraph 2.2.1). The survey conformed to current Bat Conservation Trust guidelines 1. The development works will not involve the removal of any significant on-site trees therefore an assessment of the potential for on-site vegetation to support roosting bats was not applicable to the survey Phase 1 Survey Building Assessment Criteria During the Phase 1 bat survey an assessment was made of the suitability of Wellington House and adjacent buildings to support roosting bats and the buildings were graded for their importance to bats based on the following criteria: Bats Present - Evidence of bat presence confirmed during survey. Evidence may include presence of bats themselves (live or dead), presence of droppings, feeding remains, urine stains etc. Where possible, a provisional assessment of roost status is made although this will require further Phase 2 surveys to confirm status. High Potential - High potential buildings are those that have features highly suitable for use by roosting bats, including gaps around soffits, hanging tiles, extensive roof spaces etc. High potential buildings are often, but not always, 1 Hundt, L. (2012). Bat Surveys: Good Practice Guidelines. Bat Conservation Trust, London 4

7 buildings of more historic construction. Further Phase 2 surveys will be required to confirm the presence/absence of bats. Medium Potential - Medium potential buildings have a moderate number of features that may be utilised by bats for roosting, these may include loose fascias, roof spaces etc. Further Phase 2 surveys are likely to be required to confirm the presence/absence of bats. Low Potential - Low potential buildings are those that provide limited bat roosting potential although some features that may be utilised by bats may be present. Further Phase 2 surveys are likely to be required to confirm the presence/absence of bats. Negligible Potential - Negligible potential buildings are extremely unlikely to support roosting bats due to the absence of suitable features. Further Phase 2 surveys are unlikely to be required for buildings with negligible potential Phase 1 Survey Timing, Weather Conditions and Personnel The Phase 1 survey was carried out by Senior Ecologist Frances Lowe (Natural England Licence Number ) on 23 rd May The weather conditions were 70 per cent cloud cover with showers, a light variable breeze and an ambient temperature of 13 Celsius Phase 1 Survey Equipment During the Phase 1 survey, the lead surveyor was equipped with 8x42 binoculars, a ladder, a digital camera and a one million candle power torch Phase 1 Survey Limitations Not all potential bat roosting features are accessible to the surveyor, e.g. gaps within soffit boxes, behind fascias and beneath roof materials and therefore assessments are based upon the potential for these features to provide suitable roosting opportunities. 2.3 Phase 2 Bat Surveys Survey Methods The Phase 2 survey work consisted of two dusk emergence surveys, which commenced approximately 15 minutes before sunset and extended until approximately 1.5 to two hours after sunset, and one dawn return survey, which commenced 1.5 hours before sunrise and ended at sunrise. 5

8 The Phase 2 surveys were undertaken by four experienced ECOSA surveyors, who were positioned within previously identified vantage point areas surrounding Wellington House and adjacent buildings. These vantage point locations allowed near full survey coverage of all elevations of building which support potential bat roost features. These vantage points were utilised to observe any bats emerging from roosting locations within the buildings subject to survey. During the Phase 2 surveys each surveyor recorded the time, species, location and direction of flight for each bat encountered, with particular attention paid to establishing bat access/egress locations. Table 1 provides details of each Phase 2 survey visit. Survey Date 25 th June th July 2013 Survey Type Dusk Emergence Dusk Emergence Table 1 Phase 2 bat survey details 31 st July 2013 Dawn Return 04:00 05:30 Duration Weather Conditions Sunset/ Sunrise Time 21:07 22:52 15 C, dry, no wind and no cloud cover 21:22 21:10 22:50 16 C, dry, light south-westerly breeze and no cloud cover 21:17 18 C, still, dry, warm and little cloud cover 05: Phase 2 Survey Personnel The Phase 2 surveys were led by Frances Lowe, supported by three suitably experienced ECOSA surveyors Phase 2 Survey Equipment During the Phase 2 survey each surveyor was equipped with a Pettersson 240x time expansion bat detector. The Pettersson detectors were connected to Edirol R-90 recorders for the full duration of the surveys. Recordings made with the Pettersson detectors were later analysed using Sonobat (v2.9.7) to confirm the identity of any species encountered Phase 2 Bat Survey Limitations Some bat species, e.g. long-eared bats, generally emerge from their roosts in total darkness and do not produce strong echolocations, and therefore these bats can be difficult to observe and record during Phase 2 bat surveys, this may lead to underrecording. 6

9 3.0 RESULTS AND ASSESSMENT 3.1 Introduction This section provides the results of the Phase 1 and Phase 2 bat surveys carried out for Wellington House and adjacent buildings at Winchester College between May and July Phase 1 Bat Survey Bat Roost Building Assessment The results of the Phase 1 bat survey for Wellington House and adjacent buildings are provided in Table Bat Foraging and Commuting Habitat The Winchester College site is situated within a semi-urban setting surrounded by Winchester city to the west and historic water meadows associated with the River Itchen to the east. The water meadow habitat provides optimum foraging habitat for bats and it is likely that populations and species diversity is moderate within the local area. Limited vegetation is present on the site in the form of the rear gardens of numbers 78 and 79 Kingsgate Street, comprising small areas of short-mown lawns and borders, and the small area of land surrounding Wellington Cottage, which is overgrown comprising tall ruderal vegetation and a single tree. These limited areas of habitat are limited in biodiversity and structure and provide low value bat foraging habitat. Bat foraging activity was exceptionally low during the Phase 2 surveys, with no bats recorded during one of the survey occasions. The vast majority of the bats recorded were heard faintly but not seen, suggesting that they were some distance away. All foraging bats recorded were common pipistrelle Pipistrellus pipistrellus. A single registration of noctule Nyctalus noctula, along with a few common pipistrelle, were recorded commuting and foraging over the site, respectively. Given these factors it is considered that in the context of the surrounding area the habitat immediately adjacent to Wellington House and adjacent buildings is of low value for foraging and commuting bats. 3.3 Phase 2 Bat Survey Table 3 provides the species, numbers and locations of bats recorded during the Phase 2 bat survey. The Phase 2 survey recorded two species of bat: noctule and common pipistrelle. 7

10 No bats were recorded roosting within the surveyed buildings. Individual accounts for each species of bat recorded foraging and commuting within the site grounds of the Wellington House and adjacent buildings complex during the Phase 2 survey are provided below. 8

11 Wellington House and Adjacent Buildings, Winchester College, Winchester - Phase 1 and Phase 2 Bat Assessment ECOSA Ltd Surveyed Feature Wellington House Table 2 Phase 1 building assessment, summary of features with bat roost potential and evidence of bat roost activity Photograph Building Description Description of Potential Bat Roost Features A four-storey Victorian building with a converted roof and a complex layout to the rear comprising various extensions including flats. The building is of double-skin brick construction with a hipped and gabled clay-tiled roof and stone casement fenestration. The assessment identified the potential for bats to enter the roof voids via gaps at the eaves for roosting purposes. However, the heavy cobwebbing present suggested that no bats have been flying through the spaces. Evidence of Bat Roost Activity and Location The Phase 1 investigation identified that all roof voids within Wellington House were free of bat droppings and other evidence. Assess. of Bat Roost Potential Low Figure 1 Southern elevation of Wellington House in centre, showing 78 Kingsgate Street to right Internally, there is no roof void in the main four-storey part of the building; however, a number of separate voids are present throughout the remainder of the building, all of which were investigated. The voids are bitumen-lined with heavy cobwebbing throughout. Some of the roof voids are insulated with fibreglass; others have no insulation. Figure 2 Rear of Wellington House Figure 3 Example of internal roof void with no insulation 9

12 Wellington House and Adjacent Buildings, Winchester College, Winchester - Phase 1 and Phase 2 Bat Assessment ECOSA Ltd Surveyed Feature Wellington Cottage Photograph Building Description Description of Potential Bat Roost Features Figure 4 North-western elevation of Wellington Cottage A three-storey double-skin brick structure merging with the western end of Wellington House. The building is of Victorian construction and has a pitched slate roof. A lean to extension is present and hanging tiles clad the upper storey. The northern elevation of Wellington Cottage is entirely clad with hanging tiles. The roof void is of the same age and construction as those within Wellington House, being of timber construction with bitumen felt lining and fibreglass insulation. Heavy cobwebbing is present throughout. Phase 1 investigation identified the following potential bat access/egress and roosting locations: Gaps under roof slates, providing bat access to crevices between the slates and the roof lining; and Extensive areas of hanging tiles with numerous gaps underneath, providing access to crevices between the tiles and the walls. Evidence of Bat Roost Activity and Location No evidence of bats was recorded from Wellington Cottage internally or externally during the Phase 1 assessment. Assess. of Bat Roost Potential High Figure 5 Northern gable wall of hanging tiles Figure 6 Gaps under hanging tiles on northern elevation 10

13 Wellington House and Adjacent Buildings, Winchester College, Winchester - Phase 1 and Phase 2 Bat Assessment ECOSA Ltd Surveyed Feature Number 78 Kingsgate Street Photograph Building Description Description of Potential Bat Roost Features Figure 7 Numbers 78 (left) and 79 (right) Kingsgate Street Figure 8 Droppings within roof void A three-storey 1960 s construction with rendered walls to the lower storey. The walls are brick with cavities. The slate roof is pitched and abuts the wall of Wellington House to the south and is contiguous with the roof of 79 Kingsgate Street to the north. The roof void is large, being built around a central skylight which illuminates the upstairs landing. The skylight is isolated from the roof void by walls that form a square column within the void. The roof void is lined with timber close boarding and has fibreglass insulation. A small gap at the eaves of the roof void allows daylight to entre from the eastern elevation, although this gap was not visible externally. The roof void appeared to be entirely sealed from the rear of the property. Bats may gain access into the roof void via a small hole at the eaves of the eastern elevation. Evidence of Bat Roost Activity and Location Approximately 25 pipistrelle 2 type droppings varying in age from old to less than 1 year in age were recorded within the western half of the roof void, near to the central column. This indicates that a single pipistrelle bat has roosted within the roof void a number of times in the past. No bats were seen to be present at the time of the survey. Assess. of Bat Roost Potential Past Bat Roost Present Number 79 Kingsgate Street Number 79 Kingsgate Street is of identical construction to number 78 both internally and externally. No gaps allowing ingress of daylight were visible from within the roof void, and the building was found to be remarkably well-sealed. No features were recorded which could potentially allow bats to access roosting features or roost within the building. No evidence of bats was identified internally or externally during the Phase 1 survey. Low Figure 9 Western elevation 2 There are three species of pipistrelle bat, the common pipistrelle Pipistrellus pipistrellus, the soprano pipistrelle Pipistrellus pygmaeus and the Nathusius pipistrelle Pipistrellus nathusii. The species can be separated by their echolocations, examination of physical characteristics and Phylogenetic Analysis Identification of bat droppings. Unless confirmation of identification has been made by visual identification the three species shall be referred to in this report as pipistrelle bat. All three species will roost in similar locations within buildings. The soprano pipistrelle has a tendency to form larger roosts numbering 100s of bats and is associated with wetland habitat. Nathusius pipistrelle bats frequently share maternity roosts with soprano pipistrelle bats. 11

14 Table 3 Phase 2 bat survey results Survey Date 25 th June th July st July 2013 Recorded Bat Roosts No bats were recorded emerging from the buildings. No bats were recorded emerging from the buildings. No bats were recorded returning to the buildings. General Bat Activity at the Site Species No. of Passes First Pass Last Pass Common pipistrelle 13 21:31 22:49 Summary: Common pipistrelle recorded from all four survey locations, particularly in the rear garden of number 78 Kingsgate Street, and the western elevation of Wellington Cottage, where bats passed the surveyor from the north and south, although the majority of bats were heard but not seen. One registration was recorded from Kingsgate Street to the east of the buildings but the bat was not seen. No other bat species were recorded. No bats were recorded during the survey. Species No. of Passes First Pass Last Pass Common pipistrelle 14 04:00 05:14 Noctule 1 04:45 04:45 Summary: More than half of the bat registrations were recorded from the rear garden of number 78 Kingsgate Street, although none of the bats recorded from here, the rear of Wellington House or on Kingsgate Street were visible, and many of the calls were faint, likely to be from distant bats. The single noctule recorded was likely to be a bat commuting high over the site. Summary Assessment Phase 2 emergence surveys did not record bats roosting within any of the buildings. The level of bat activity recorded within the site was very low, likely to be a result of the urban setting of the site. The Water Meadows to the east of the site offer excellent foraging and commuting habitat and may be preferred by bats. 12

15 4.0 SUMMARY EVALUATION, CONSIDERATION OF IMPACTS AND RECOMMENDATIONS 4.1 Introduction This section presents a summary evaluation of Wellington House and adjacent buildings based on the results of the Phase 1 and 2 bat surveys. The results and evaluation have been used to provide an assessment of the ecological impacts of the proposed demolition and conversion works on bat species. Finally, recommendations are made for mitigation measures considered necessary to maintain the conservation status of bats at the site. An outline of protected species legislation relevant to bats is provided in Appendix Summary Evaluation The Phase 1 bat survey recorded a cluster of approximately 25 pipistrelle type bat droppings varying in age from a few years old to less than one year old within the roof void of number 78 Kingsgate Street. These droppings were considered to be associated with a low status roost of a single pipistrelle bat that has been used sporadically over a number of years and was not in use during the Phase 1 and 2 bat surveys. The Phase 2 surveys did not record any bats emerging from or returning to roost within any of the buildings surveyed. Levels of bat activity were particularly low, with no bats recorded during one of the surveys. Bats were mainly heard but not seen and the species recorded comprised common pipistrelle and a single noctule registration. A small number of common pipistrelle were recorded foraging to the rear of Wellington Cottage and number 78 Kingsgate Street. It is considered that the findings of the Phase 2 survey are a good reflection of the status of bats at the site, given that the surveys were carried out under optimum survey conditions. It is considered that the past bat roost within number 78 Kingsgate Street is not currently in use. It may be intermittently used by a single, non-breeding bat and is considered to be of low local value. The site grounds are used by low numbers of foraging common pipistrelle and commuting noctule bats. However, it is likely that the Water Meadows to the east of the site and other surrounding habitat provides a more important foraging resource than the habitat within the site boundary. 13

16 4.3 Potential Impacts of Proposed Development The proposed works will involve the conversion of the original part of Wellington House and demolition of the adjacent buildings (Wellington Cottage and numbers 78 and 79 Kingsgate Street) to allow the site to be redeveloped into up to 12 residential units. As the Phase 2 surveys did not record any bats emerging from number 78 Kingsgate Street and no bats are considered to have been roosting in the building for some time, it is not thought likely that these works will result in the disturbance and/or destruction of bat roosts. There is no evidence to suggest that the other buildings have been used by roosting bats. Given the Phase 2 survey results, the presence of a low number of old pipistrelle type bat droppings within the roof void is considered to be evidence of a past, low-status single pipistrelle bat roost. It is considered likely that this roost is used intermittently on an occasional basis, perhaps just for a few nights in the past, and that it is not currently in use. As a precautionary measure, outline recommendations have been provided in Paragraph for implementation, so as to avoid any remaining potential negative impacts on roosting bats at the site. In England, all bat species and their roosts are fully protected under the Wildlife and Countryside Act 1981 through inclusion in Schedule 5. In addition, these species are protected under the Conservation of Habitats and Species Regulations Refer to Appendix 1 for further details. 4.4 Recommendations Due to the fact that no evidence of roosting bats was recorded during Phase 2 bat surveys at the site, it is considered that number 78 Kingsgate Street does not currently support roosting bats, and the remaining buildings within the Wellington House complex are not considered to support roosting bats. The risk of disturbance of proposed works to existing bat roosts is therefore low and it is therefore not considered necessary to apply for a European Protected Species Mitigation (EPSM) licence prior to the redevelopment works commencing. However, as a precautionary measure it is recommended that a destructive search working method is implemented during stripping of the roof of number 78 Kingsgate Street, whereby systematic clearance is conducted by a licensed bat worker, as follows: 14

17 The work should take place from March to October, inclusive, in order to reduce the risk of encountering hibernating bats which are more vulnerable to disturbance; A toolbox talk should be given to contractors on site who will be involved in the works; Prior to any works commencing at the site, the building should be inspected internally and externally by a licensed bat worker, to locate any roosting bats. Where considered appropriate, any bats found should be removed to an appropriate roosting feature (e.g. under retained features to the rear of Wellington House) or, if a significant roost is found, works should stop and a EPSM licence should be sought from Natural England; and To ensure that no bats are injured or maimed during the works the careful removal of all identified bat roost areas and suitable bat roosting features to be impacted, such as roof materials, soffits and fascias should be carried out by/under the supervision of a licensed bat worker, using hand tools. 4.5 Updating Survey If site works have not commenced by July 2015, it is recommended that the Phase 1 bat assessment is updated. This is because bat species are highly mobile and the ecology of the site is likely to change over time. Further updating Phase 2 bat surveys may also be required, following the results of the updating Phase 1 survey. 15

18 Appendix 1 Protected Species Legislation European Protected Animals Bats 3 In England, all bat species are fully protected under the Wildlife and Countryside Act 1981 through inclusion in Schedule 5. In addition, all species of bat are protected under the Conservation of Habitats and Species Regulations Taken together, these legislative instruments make it illegal to carry out the following activities: 1. Deliberately or recklessly capture or kill any wild animal of a European protected species; 2. Deliberately or recklessly disturb any such animal; 3. Deliberately or recklessly take or destroy eggs of any such wild animal; 4. Damage or destroy a breeding site or resting place of such a wild animal; and 5. Keep, transport, sell or exchange, or offer for sale or exchange, any live or dead wild animal of a European protected species, or any part of, or anything derived from such a wild animal. Any activity that would result in a contravention of the above legislation would require a licence to avoid committing an offence. Natural England has powers to grant a licence for the following purposes: 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; or Preventing the spread of disease; or Preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber or any other form of property or to fisheries. The Habitats Directive contain three "derogation tests" which must be applied by Natural England when deciding whether to grant a licence to a person carrying out an activity which would harm an European protected species. For development activities this licence is obtained after Planning Permission has been obtained. The three tests are that: The activity to be licensed must be for imperative reasons of overriding public interest or for public health and safety; 3 Summarised from 16

19 There must be no satisfactory alternative; and Favourable conservation status of the species must be maintained. A recent court judgment 4 makes it clear that, notwithstanding the licensing regime, the Local Planning Authority must also address its mind to these three tests when deciding whether to grant planning permission for a development which could harm a European protected species. A Local Planning Authority failing to do so would be in breach of Regulation 3(4) of the 1994 Regulations which requires all public bodies to have regard to the requirements of the Habitats Directive in the exercise of their functions. In order to determine whether an activity requires a licence, Natural England advises that the guidance of a consultant ecologist is sought. However, Natural England offer the following advice as a guide: A licence is needed if the consultant ecologist, on the basis of survey information and specialist knowledge of the species concerned, considers that on balance the proposed activity is reasonably likely to result in an offence under Regulation 39 5 of the Habitats Directive; or If the consultant ecologist, on the basis of survey information and specialist knowledge of the species concerned, considers that on balance the proposed activity is reasonably unlikely to result in an offence under Regulation 39 of the Habitats Directive then no licence is required. However, in these circumstances Natural England would urge that reasonable precautions be taken to minimise the effect on European protected species should they be found during the course of the activity. If they are found then work should 4 Judgment handed down by His Honour Judge Waksman QC sitting as a judge of the High Court at the start of June 2009 in the case of R (on the application of Simon Woolley) v Cheshire East Borough Council. The judgment clarified for the first time the legal duty of a Local Planning Authority when determining a planning application for a development which may have an impact on European Protected Species ("EPS"), such as bats, great crested newts, dormice or otters. 5 Regulation 39 of the Habitats Directive states: (1) It is an offence to: (a) deliberately or recklessly to capture, injure or kill a wild animal of a European protected species; (b) deliberately or recklessly- (i) to harass a wild animal or group of wild animals of a European protected species; (ii) to disturb such an animal while it is occupying a structure or place which it uses for shelter or protection; (iii) to disturb such an animal while it is rearing or otherwise caring for its young; (iv) to obstruct access to a breeding site or resting place of such an animal, or otherwise to deny the animal use of the breeding site or resting place; (v) to disturb such an animal in a manner that is, or in circumstances which are, likely to significantly affect the local distribution or abundance of the species to which it belongs; (vi) disturb such an animal in a manner that is, or in circumstances which are, likely to impair its ability to survive, breed or reproduce, or rear or otherwise care for its young; or (vii) to disturb such an animal while it is migrating or hibernating; (c) deliberately or recklessly to take or destroy the eggs of such an animal; or (d) to damage or destroy a breeding site or resting place of such an animal. 17

20 cease and an application be made to the Wildlife Licensing Unit at Natural England, Bristol. 18