The Habitats Directive1 is brought into force in the UK by the Conservation (Natural Habitats) Regulations 1994 (Habitat Regulations). Schedules 2 and 4 of the Regulations are lists of species afforded special protection (Box 1).

This list of European Protected Species (EPS) includes some old favourites that are rare or threatened such as all bats and lady’s slipper orchid. It also includes some obscure species (surely the slender naiad is a water nymph rather than an aquatic plant?). Others, such as marine turtles, could not possibly be affected by works on National Trust land – or could they?

Box 1

The significance of European Protected Species to the National Trust
Most of the species occur on Trust land or, in the case of marine species, just off it. Bats, the shore dock and early gentian have strongholds on Trust land, and we are actively contributing to the conservation of the rare lady’s slipper orchid. But ‘dolphins, whales and porpoises’ – how could any works that the Trust does on its land possibly affect these sea creatures? Just a suggestion: Construction of a jetty could disturb the local bottle-nosed dolphins. It could give rise to increased under-sea noise pollution making it more difficult for the dolphins to use their echolocation system. This could constitute a disturbance and trigger the need for a special licence with appropriate agreed mitigation.

Evolution of a new system
Until recently, when Schedule 2 or 4 species were affected by what is known as a development (Box 2), licences were issued by the Statutory Nature Conservation Agencies. These so-called ‘Conservation Licences’ were issued under Section 44(2)(c) of the Habitat Regulations for the purposes of ‘conserving wild animals and plants or introducing them to a particular area’.

Box 2:

The argument in support of this application of the Habitat Regulations was that a Conservation Licence permitted, for example, the safe removal of a species in the way of development and adequate mitigation procedures to protect the translocated individuals. So removing great crested newts from a pond that was to be built upon, and transferring them to a new custom-made pond was interpreted as conservation.

These days it is not so straightforward. Issuing of Conservation Licences to protect EPS where development occurs has been successfully challenged. As from 2000, in England and Wales, a new licensing system with respect to development has been in place. Scotland already approaches the legislation in the ‘revised’ way and Northern Ireland may be expected to follow suit soon.

When should a Development Licence application be considered?
In England or Wales, any ‘development’ that adversely affects any EPS will require a special Development Licence. Applications forms are available from DEFRA and NAW respectively.

Article 16 of the Habitats Directive is clear as to when a development affecting an EPS can go ahead. Three tests must be satisfied before DEFRA (and by default the Welsh Assembly) can issue a licence to permit otherwise prohibited acts. In short this boils down to the licence being granted for a development that affects an EPS when DEFRA or the NAW is satisfied that there is:

1. Overriding public interest.
E.g. the newly acquired property must open soon and we urgently need staff to be accommodated away from rooms that the public will visit.

2. No satisfactory alternative.
E.g. there is no other potential living accommodation available … the cost of new build and predicted lack of planning permission for this means we must use existing built structures.

3. The development will not be detrimental to the species.
E.g. the mitigation required to convince DEFRA that the bats roosting in what was the servants’ bedrooms will not be adversely affected by the proposed development could include partitioning the space, with one side for bats and the other for people.

Unlike the bottle-nosed dolphins and the jetty example, the above is a real issue for the Trust at the moment.

Planning permission
If the development requires planning permission, not unusual for Trust properties, the local planning authority will guide DEFRA/NAW on the first two tests. It will consult English Nature (EN) or the Countryside Commission for Wales (CCW) on the third*. Where planning permission is not required, DEFRA/NAW will deal with the application themselves, but will consult with EN or CCW.

Invariably, for either scenario, in order to satisfy DEFRA or NAW that the EPS has indeed been protected (so including mitigation proposals), a suitably qualified consultant will need to be contracted to complete the licence application form. A suitably qualified consultant is, essentially, one who has done one before - the usual ‘Catch 22’ - or who has obtained a reference from such a person.

Confused? Wondering how much this will all cost in terms of your time, consultant’s fees and the opportunity costs? We were too! So we went to see DEFRA and came back with some guidance.
This is available as a downloadable PDF document (102k).

* Note that the NAW has recently circulated a consultation document in which integrates planning legislation and the Habitat Regulations 1994. This would result in local authorities having control over the whole process of issuing Development Licences with EPS