Standing advice for protected species

1. Issue Date: 22 February 2011

2. Next Review Date: 21 February 2013 then every two years after that

3. Local Planning Authorities to which this standing advice applies: All Borough, County, District, Unitary and National Park Authorities within England.

4. Advice Reference: StAdv/PrSp/NAT23_02_11

   This advice is issued in accordance with:

   • Article 16 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 SI 2010/2184
   • Section 28I of the Wildlife and Countryside Act, 1981 (as amended by the Countryside and Rights of Way Act 2000)
   • ODPM Circular 06/2005: Biodiversity and Geological Conservation –Statutory Obligations and their impact within the Planning System
   • National Planning Policy Framework

5. Application of Standing Advice

   5.1 When any of the Local Planning Authorities (“LPAs”) named in point 3 receive a planning application which requires consultation with Natural England they should first check whether any up-to-date standing advice exists which is relevant to the development.

   5.2 The standing advice is up-to-date if the next review date (point 2 above) is later than the date of the initial planning application on which the Authority wish to consult Natural England. If unsure the LPA should check with Natural England.

   5.3 For planning applications:

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

   • requiring an Environmental Impact Assessment; or

   • affecting Nationally important landscapes including an Area of Outstanding Natural Beauty or National Park; or

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

   • 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

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

   LPAs should still consult Natural England as usual (or, as agreed, if local consultation arrangements are in place).

   Some species for which European sites are designated are also European Protected Species. For clarity parapgraph 119 of the National Planning Policy Framework (NPPF) states:

   "The presumption in favour of sustainable development (paragraph 14, NPPF) does not apply where development requiring appropriate assessment under the Birds or Habitats Directives is being considered, planned or determined."

6. Status of standing advice

   6.1 When determining an application for development that is covered by standing advice, in accordance with Government guidance in Circular 06/2005 (the Circular), LPAs must take into account the standing advice.

   6.2 For the avoidance of doubt standing advice is a material consideration in the determination of applications in the same way as a letter received from Natural England following consultation.

   6.3 When this and other standing advice is revised or withdrawn, the LPAs named in point 3 will be informed directly by e-mail or letter and any new standing advice will be published on Natural England’s web site and the replaced standing advice removed.

7. Natural England’s remit in relation to protected species and the planning process

   7.1 Natural England works for people, places and nature, to enhance biodiversity, landscapes and wildlife in rural, urban, coastal and marine areas; promote access, recreation and public well-being; and contribute to the way natural resources are managed so that they can be enjoyed now and in the future. Further information on Natural England can be found on our website at www.naturalengland.org.uk.

   7.2 Natural England has two legally distinct and separate roles:

   • It provides advice in response to planning consultations to planning authorities where development proposals affect statutory nature conservation sites, nationally important landscapes and development requiring an environmental impact assessment.  With regard to protected species, paragraph 98 of the Circular states that where development proposals are likely to cause harm to a species or its habitat local authorities should consult Natural England.  By consulting and implementing this advice the consenting body has met that requirement for matters that come within the scope of the advice.

   • It is also the competent authority charged with determining applications for licences under wildlife legislation.  Licence applications for a development should be regarded as the last available option where all other reasonable alternative ways of avoiding or minimising impacts on the protected species have been discounted and it is still likely to result in offences under wildlife legislation. Natural England is responsible for enforcing licence conditions.  The investigation and prosecution for all other offences relating to protected species is a matter for the police and Crown Prosecution Service respectively.

8. Key principles

   8.1  Paragraph 118 of the National Planning Policy Framework advises that when determining planning applications, local planning authorities should aim to conserve and enhance biodiversity by applying the following principles:

   • if significant harm resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated, or, as a last resort, compensated for, then planning permission should be refused;

   • proposed development on land within or outside a Site of Special Scientific Interest likely to have an adverse effect on a Site of Special Scientific Interest (either individually or in combination with other developments) should not normally be permitted. Where an adverse effect on the site’s notified special interest features is likely, an exception should only be made where the benefits of the development, at this site, clearly outweigh both the impacts that it is likely to have on the features of the site that make it of special scientific interest and any broader impacts on the national network of Sites of Special Scientific Interest;

   • development proposals where the primary objective is to conserve or enhance biodiversity should be permitted;

   • opportunities to incorporate biodiversity in and around developments should be encouraged;

   • planning permission should be refused for development resulting in the loss or deterioration of irreplaceable habitats, including ancient woodland and the loss of aged or veteran trees found outside ancient woodland, unless the need for, and benefits of, the development in that location clearly outweigh the loss; and

   • the following wildlife sites should be given the same protection as European sites:

     • potential Special Protection Areas and possible Special Areas of Conservation;
     • listed or proposed Ramsar sites¹; and
     • sites identified, or required, as compensatory measures for adverse effects on European sites, potential Special Protection Areas, possible Special Areas of Conservation, and listed or proposed Ramsar sites.

   8.2 The Circular contains the following advice (see paragraphs 98-99):

   • The presence of a protected species is a material consideration when a planning authority is considering a development proposal that, if carried out, would be likely to result in harm to the species or its habitat. Local authorities should consult Natural England before granting planning permission. They should consider attaching appropriate planning conditions or entering into planning obligations under which the developer would take steps to secure the long-term protection of the species. They should also advise developers that they must comply with any statutory species’ protection provisions affecting the site concerned...

   • 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. However, bearing in mind the delay and cost that may be involved, developers should not be required to undertake surveys for protected species unless there is a reasonable likelihood of the species being present and affected by the development. Where this is the case, the survey should be completed and any necessary measures to protect the species should be in place, throughconditions and/or planning obligations, before the permission is granted...

9. Validation requirements

   9.1 As stated above this standing advice represents Natural England’s advice on planning applications that may affect protected species and where there are no other issues as described in section 5 above, ‘Application of standing advice’.  It does not replace the local lists published by local authorities which specify the information that must accompany a planning application for it to be valid. 

   9.2 Natural England encourages the use of pre-application discussions to identify where protected species might be an issue and how the local authority expects the applicant to deal with this in their application.  This will help avoid problems later on in the process and reduce the risk of surveys being requested unnecessarily.

10. Scope and content of the standing advice

    10.1 This standing advice is designed to provide guidance for local authorities to:

    • Decide when there is a reasonable likelihood that protected species are present because of the associated habitats and features in the vicinity of the application site and therefore whether survey reports are required.

    • Survey requirements for those species most frequently affected by development proposals.

    • Advice on mitigation proposals for certain species covered by the Wildlife and Countryside Act 1981 (water vole, white-clawed crayfish, common reptiles, barn owls, other breeding birds not protected by Schedule 1).

    • Advice on mitigation proposals for badgers.

    10.2 The standing advice is comprised of the following documents:

    • A flowchart: (46kb) which provides guidance on how to consider protected species issues at different stages in the planning processes.

    • A decision tree: (132kb) to identify features on application sites that are likely to be associated with protected species.

    • Detailed species sheets for more detailed information on survey and mitigation requirements for the species most often encountered in the planning process.

    • Guidance on relevant legislation for information on the protection given to wild species and the implications for the planning system.

    • Frequently Asked Questions for general information such as the appropriate timing for surveys or possible standard conditions.

11. How to use the standing advice

    11.1 Check the local resources page for other information such as links to local records centres or local consultation protocols agreed between your authority and Natural England.  Please note that the information or protocols reached through the links on this page supplement the standing advice but are not part of it.

    11.2 Use the flowchart to decide what actions are appropriate for the different stages of the planning process.  Use the decision tree and the species sheets for advice on what should trigger the requirement for surveys for protected species. The FAQs provide additional advice on survey requirements.

    11.3 Use the species sheets for advice on the mitigation of impacts from development proposals for those species listed under 10.1.

    11.4 We expect the guidance contained in the standing advice to be applied proportionately.  It is generic advice designed to cover a range of situations and should not be read as implying that a full survey report is required for every planning application.

Footnote
1. Potential Special Protection Areas, possible Special Areas of Conservation and proposed Ramsar sites are sites on which Government has initiated public consultation on the scientific case for designation as a Special Protection Area, candidate Special Area of Conservation or Ramsar site.

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