Protected Species

What are protected species?

The United Kingdom hosts a number of rare and endangered plant and animal species and many of these are protected through legislation and through planning policy.  These “Protected Species” are a “ material consideration” in the planning system.  Before a planning authority can determine an application they will need to know what the likely impact on that protected species will be and if there is an impact that it can be mitigated otherwise they will not have considered all the material considerations when making their decision and their decision could be challenged and annulled in the courts.


European protected species

The United Kingdom hosts a number of European protected species of animals and plants.  These species receive special protection under UK law and it is an offence under the Wildlife and Countryside Act 1981 (as amended) and the European Habitats and Species Directive (92/43/EC), enacted in the UK through The Conservation of Habitats and Species Regulations 2010 to deliberately or recklessly, to destroy or damage their habitat, or to disturb, kill or injure the species without first having obtained the relevant licence from the Natural England.

Planning Authorities have a statutory duty under these regulations to have regard to the requirements of the Habitats Directive and need to be satisfied that the development is likely to receive a licence from Natural England, and therefore comply with the Habitats Directive before granting planning permission.

Nationally protected species

Some species are protected at a national level only.  This includes species such as the water vole (under the 1981 Wildlife and Countryside Act as amended) and the badger (through the 1992 Protection of Badgers Act) and these species are also a “material consideration” within the planning process.

Species such as common reptile species are protected under this legislation – this makes making it an offence to

Species listed on Section 41 of 2006 The Natural Environment and Rural Communities Act

Section 40 of the 2006 Natural Environment and Rural Communities Act (The NERC Act) states that “Every public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity.”

Under Section 41 of The NERC Act the government periodically publishes a list of the habitats and species that are of principal importance for the conservation of biodiversity in England (under section 42 in Wales).  The list includes 56 habitats and 943 species and is based upon the UK biodiversity Action Plan List of Priority Species and Habitats and should be used to guide local and authorities when implementing their duty and as such is a material consideration in the planning process.

European Protected Species of Animal found in the UK

Common name Scientific name
Bats, Horseshoe (all species) Rhinolophidae
Bats, Typical (all species) Vespertilionidae
Butterfly, Large Blue Maculinea arion
Cat, Wild Felis silvestris
Dolphins, porpoises and whales (all species) Cetacea
Dormouse Muscardinus avellanarius
Frog, Pool Rana lessonae
Lizard, Sand Lacerta agilis
Moth, Fisher’s Estuarine Gortyna borelii lunata
Newt, Great Crested (or Warty) Triturus cristatus
Otter, Common Lutra lutra
Snail, Lesser Whirlpool Ram’s-horn Anisus vorticulus
Snake, Smooth Coronella austriaca
Sturgeon Acipenser sturio
Toad, Natterjack Bufo calamita
Turtles, Marine Caretta caretta
Chelonia mydas
Lepidochelys kempii
Eretmochelys imbricata
Dermochelys coriacea

European Protected Species of Plant found in the UK

Common name Scientific name
Dock, Shore Rumex rupestris
Fern, Killarney Trichomanes speciosum
Gentian, Early Gentianella anglica
Lady’s-slipper Cypripedium calceolus
Marshwort, Creeping Apium repens
Naiad, Slender Najas flexilis
Orchid, Fen Liparis loeselii
Plantain, Floating-leaved water Luronium natans
Saxifrage, Yellow Marsh Saxifraga hirculus


Planning Policy

We have a wealth of experience dealing with planning policy in relation to biodiversity, including appearance at public inquiry.  Feel free to contact us should you want to discuss in further detail.

National planning policy framework

National Planning Policy in relation to biodiversity is set out in the National Planning Policy Framework (The NPPF).  The NPPF was published in 2012 and aimed to simplify the planning system. There were some changes in biodiversity policy as a result of the framework and “the presumption in favour of sustainable development” has meant that there is some flexibility in the application of planning policy.  Some key paragraphs in the NPPF are:

Para. 7: There are three dimensions to sustainable development: economic, social and environmental. These dimensions give rise to the need for the planning system to perform a number of roles: […] .contributing to protecting and enhancing our natural, built and historic environment; and, as part of this, helping to improve biodiversity, use natural resources prudently, minimise waste and pollution, and mitigate and adapt to climate change including moving to a low carbon economy.

Para. 109: The planning system should contribute to and enhance the natural and local environment by: [….] minimising impacts on biodiversity and providing net gains in biodiversity where possible, contributing to the Government’s commitment to halt the overall decline in biodiversity, including by establishing coherent ecological networks that are more resilient to current and future pressures;

Para. 165: Planning policies and decisions should be based on up-to ‑date information about the natural environment

Government Circular: Biodiversity And Geological Conservation – Statutory Obligations And Their Impact Within The Planning System

The NPPF did not revoke the previous Biodiversity Planning Policy Statement guidance: “Government Circular: Biodiversity And Geological Conservation – Statutory Obligations And Their Impact Within The Planning System” which states that:

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 English Nature 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. For European protected species (i.e. those species protected under the Habitats Regulations) further strict provisions apply, as explained below, to which planning authorities must have regard.

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, through conditions and/or planning obligations, before the permission is granted. In appropriate circumstances the permission may also impose a condition preventing the development from proceeding without the prior acquisition of a licence under the procedure set out in section C below.

Local planning policy

Most local authorities have planning policy, set out in their local development framework, to conserve and enhance biodiversity, and this normally includes policies in relation to local wildlife sites and wildlife corridors.

When is a protected species survey required?

Whenever there is a reasonable likelihood that a planning proposal will adversely affect protected species an ecological assessment will need to be carried-out.   In the majority of cases this will need to be submitted with the planning application.

Common examples include:

  • Proposals to demolish or significantly modify a building – a bat survey is likely to be required
    • Works adjacent to a pond – an assessment for great crested newts may be needed
    • A development site on rough grassland – a reptile survey may be required

What does a protected species survey involve?

The type and scope of the survey depends on the species involved and how it might be affected by the proposals.  Because animals are not active at all times of the year there are timing constraints to most surveys.  However for most species an assessment of the suitability of a site to host the species can be undertaken all year round and an initial ecological appraisal or ecological risk assessment may be all that is needed to satisfy the planners that the risk of a particular species being present is low.  Feel free to contact us to discuss in confidence your proposals.

Protected Species Licensing

If an activity would be illegal under wildlife law or will impact on a protected species a licence for the works needs to be obtained from the statutory nature conservation organisation – Natural England in England, Countryside Council for Wales in Wales, or Scottish Natural Heritage in Scotland – before the works start.

The legislation and processes for licensing of wildlife activities is complex, some would say too complex, and the type of licence required, the documents that need to be submitted, and the tests that need to be met, vary depending on the species involved and the activity that is to be undertaken.

There are different processes for nationally protected species such as the badger and water vole and for different activities such as forestry or woodland management and we can advise and apply for such licences on your behalf.  We have summarised the process required to obtain a licence for development works affecting a European Protected Species, such as demolishing a house with a bat roost, below (this is the most common licence type, builders, developers and householders).

Feel free to contact us for free no obligation advice on planning, surveys and licensing.

European Protected Species on development sites – a step by step guide

On development sites a licence is normally issued because there is an “imperative reason of overriding public interest of a social or economic nature”.   Before issuing a licence the Statutory Nature Conservation Organisation will need to be satisfied that the “Favourable Conservation Status” of the species will be maintained which usually means that mitigation, such as a replacement bat roost, will need to be provided, and they will also need to be satisfied that “there is no satisfactory alternative” to the proposals, in other words could the works be undertaken differently with less impact.

Licensing is a separate process to planning permission and the Statutory Nature Conservation Organisation will not normally issue licences until planning permission has been granted.  The local authority needs to be satisfied that a licence for the works is likely to be granted before determining the application – otherwise as per recent case law their decision could have been found to be invalid and the permission invalidated.

Five step guide to getting planning permission and a European Protected Species licence…

Step 1 – undertake surveys to determine whether there are protected species on the site and if they are how they are using the site

Step 2 – establish whether or not the proposals will impact upon the species – if there will be an impact establish whether or not the impact can be minimised and design mitigation to compensate for the harm caused

Step 3 – submit the survey results and the mitigation plan to the local planning authority, including details of how the proposals meet all three tests of the habitat regulations – often the best way to do this is to submit a draft licence application

Step 4 – obtain planning permission – if it has been demonstrated that the three tests of the habitat regulations have been met and a licence for development works affecting a European protected species can be obtained there should be no objections in relation to the protected species in question.

Step 5 – Apply for the licence from Natural England (or other SNCO) and start the works (in line with the licence conditions) – allow for up to 6 weeks for the licence to be processed.