Download Appendix 13

Appendix 13.1. Legislation
Great Crested Newts
Great crested newts are protected under section 9 of the Wildlife and Countryside Act 1981
(as amended) and regulation 41 of The Conservation of Habitats and Species Regulations
2010. Taken together it is illegal to:
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Deliberately kill, injure or capture any wild animal of European protected species;
Deliberately disturb wild animals of any European protected species in such a way to
be likely to significantly affect:
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The ability of any significant groups of animals of that species to survive,
breed, rear or nurture their young; or
The local distribution of that species.
Recklessly disturb a European protected species;
Damage or destroys breed sites or resting places of such animals;
Deliberately takes or destroys the eggs of such an animal;
Possess or transport or any part of a European protected species, unless acquired
legally;
Sell, barter or exchange any part of a European protected species.
The maximum fine per offence is £5000 the Countryside and the Rights of Way Act 2000
(CROW) amendment contains a provision for a custodial sentence of up to 6 months instead
of, or in addition to, a fine. Along with a lengthy development delay until an appropriate
mitigation programme has been agreed and completed.
Natural Environment and Rural Communities Act 2006 (NERC) also lists the Great crested
newt as a species of principle importance under Section 41 and Section 40 requires every
public body in the exercising of its functions (in relation Section 41 species) ‘have regard, so
far as is consistent with the proper exercise of those functions, to the purpose of conserving
biodiversity’ ; therefore making the Great crested newt a material consideration in the
planning process and requiring a detailed ecological survey before planning permission can
be granted. In addition, local authority planning departments should also meet the
requirements of the Planning Policy Statement 9 (PPS9); which requires planners not only to
protect biodiversity, but where possible to enhance it.
Water voles
Due to the major declines Water Voles receive legislative protection which was further
strengthened from April 2008 . Water Voles are protected under the Wildlife and Countryside
Act 1981 (as amended) under Section 9 which makes it a criminal offence to:
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intentionally or recklessly damage, destroy or obstruct access to any structure or
place used for shelter or protection;
intentionally or recklessly disturb Water Voles whilst occupying a structure or place
used for that purpose;
intentionally kill, injure or take Water Voles;
posses or control live or dead Water Voles or derivatives;
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sell Water Voles or offer or expose for sale or transport for sale;
publish or cause to be published any advertisement which conveys the buying or
selling of Water Voles.
The maximum fine per offence is £5000 the Countryside and Rights of Way Act 2000
(CRoW)amendment contains a provision for a custodial sentence of up to 6 months instead
of, or in addition to, a fine. Along with a lengthy development delay until an appropriate
mitigation programme has been agreed and completed.
Natural Environment and Rural Communities Act 2006 (NERC) also lists Water Voles as a
species of principle importance under Section 41 and Section 40 requires every public body
in the exercising of its functions (in relation Section 41 species) ‘have regard, so far as is
consistent with the proper exercise of those functions, to the purpose of conserving
biodiversity’ ; therefore making the Water Vole a material consideration in the planning
process and requiring a detailed ecological survey before planning permission can be
granted. In addition, local authority planning departments should also meet the requirements
of the Planning Policy Statement 9 (PPS9); which requires planners not only to protect
biodiversity, but where possible to enhance it.
Bats
Bats are protected under section 9 of the Wildlife and Countryside Act 1981 (as
amended) and regulation 39 of the Conservation of Habitats and Species Regulations 2010.
Taken together it is illegal to:
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Deliberately kill, injure or capture any wild animal of European protected species;
Deliberately disturb wild animals of any European protected species in such a way to
be likely to significantly affect:
The ability of any significant groups of animals of that species to survive, breed, rear
or nurture their young; or
The local distribution of that species.
Recklessly disturb roosting bats or obstruct access to their roosts;
Damage or destroys breed sites or resting places of such animals;
Deliberately takes or destroys the eggs of such an animal;
Possess or transport or any part of a European protected species, unless acquired
legally;
Sell, barter or exchange any part of a European protected species.
The maximum fine per offence is £5000 and if more than one bat is involved, £5000 per bat
(Wildlife and Countryside Act 1981 Section 21). The Countryside and Rights of Way Act
2000 (CROW) amendment contains a provision for a custodial sentence of up to 6 months
instead of, or in addition to, a fine. Along with a lengthy development delay until appropriate
mitigation has been agreed and completed.
The Natural Environment and Rural Communities Act 2006 (NERC)also lists bats as a
species of principle importance under Section 41 and Section 40 requires every public body
in the exercising of its functions to ‘have regard, so far as is consistent with the proper
exercise of those functions, to the purpose of conserving biodiversity’ . In addition, local
authority planning departments should also meet the requirements of the Planning Policy
Statement 9 (PPS9); which requires planners not only to protect biodiversity, but where
possible to enhance it.
Reptiles
Common Lizards, Slow Worms, Grass Snakes and Adders are protected under the Wildlife
and Countryside Act 1981 (as amended) they are listed as a schedule 5 species therefore
part of Section 9(1) and section 9(5) apply; the Countryside and Rights of Way Act 2000
(CROW) also strengthens their protection. It is offence to:
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Intentionally, or recklessly, kill or injure any of the above species, and/or;
Sell, or attempt to sell, any part of the species, alive or dead.
If a proposed development is likely to have an impact on these reptiles the statutory nature
conservation organisation must be consulted.
The rare Sand lizard and Smooth Snake receive 'full protection' under the Wildlife and
Countryside Act (1981) Section 9 and the Conservation of Habitats and Species Regulations
(2010); the Sand Lizard and Smooth Snake are listed on Schedule 2 thus regulation 41
applies. Read together it is an offence:
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Deliberately kill, injure or capture any wild animal of European protected species;
Deliberately disturb wild animals of any European protected species in such a way to
be likely to significantly affect:
The ability of any significant groups of animals of that species to survive, breed, rear
or nurture their young; or the local distribution of that species.
Recklessly disturb sheltering European protected species or obstruct access to their
resting place;
Damage or destroys breed sites or resting places of such animals;
Deliberately takes or destroys the eggs of such an animal;
Possess or transport or any part of a European protected species, unless acquired
legally;
Sell, barter or exchange any part of a European protected species.
The maximum fine per offence is £5000 and if more than one animal is involved, the fine is
£5000 per animal (Wildlife and Countryside Act 1981 Section 21) The Countryside and
Rights of Way Act 2000 (CROW) amendment contains a provision for a custodial sentence
of up to 6 months instead of, or in addition to, a fine. Along with a lengthy development delay
until appropriate mitigation has been agreed and completed.
Natural Environment and Rural Communities Act 2006 (NERC) lists all reptile species as a
species of principle importance under Section 41. Section 40 requires every public body in
the exercising of its functions ‘have regard, so far as is consistent with the proper exercise of
those functions, to the purpose of conserving biodiversity’ (all biodiversity and not just
section 41 species and habitats); therefore making reptiles a material consideration in the
planning process and requiring a detailed ecological survey before planning permission can
be granted. In addition, local authority planning departments should also meet the
requirements of the Planning Policy Statement 9 (PPS9); which requires planners not only to
protect biodiversity, but where possible to enhance it.
Badgers
Badgers have historically been given legal protection since 1973 however The Protection of
Badgers Act 1992 consolidated and strengthened previous legislation. It is a criminal
offence:
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To wilfully kill, injure, or take any Badger;
Possess or cruelly ill-treat a badger;
Posses any dead badger or part of one;
Posses or control a living, healthy Badger;
Intentionally or recklessly damage, destroy or obstruct access to a sett, or disturb a
Badger whilst it is occupying a sett.
The maximum fine per offence is £5000; the Countryside and Rights of Way Act 2000
(CRoW)amendment contains a provision for a custodial sentence of up to 6 months instead
of, or in addition to, a fine. Along with a lengthy development delay until an appropriate
mitigation programme has been agreed and completed
Local authority planning departments should also meet the requirements of the Planning
Policy Statement 9 (PPS9); which requires planners not only to protect biodiversity, but
where possible to enhance it. Planning authorities are required to take into account of
protected species so a detailed ecological survey is normally required.
Please note your site may be affected by Badger legislation even if there is not a sett on
your site. This is because using heavy machinery within 30m of a sett, substantially reducing
their foraging habitat or obstructing access to a sett could be considered interference with a
badger sett and hence illegal.
Birds
All wild bird species in the UK are protected from killing, injury and taking under the Wildlife
and Countryside Act 1981 (as amended). In addition this legislation makes it an offence to
take, damage or destroy a nest while in use or being built, and to take or destroy the eggs of
any nesting bird.
Also certain species are listed on Schedule 1 of the Wildlife and Countryside Act 1981 (as
amended). This makes it an additional offence to intentionally or recklessly disturb the adults
while they are in and around their nest or intentionally or recklessly disturb their dependent
young.
Species listed on Schedule 1 of the Wildlife and Countryside Act 1981 (as amended) include
kingfisher, red kite and greenshank. Such species are considered to be in greater need of
legal protection or of high nature conservation priority.
Birds of conservation concern are also included on the Red and Amber lists.
Birds on the Red list are those of high conservation concern and include common and
widespread species such as the house sparrow, starling and skylark.
Birds on the Amber list are of medium conservation concern and include the dunnock, barn
owl and kestrel.
Some birds of conservation concern are priority species on the UK Biodiversity Action Plan
(UKBAP). Priority species in the UKBAP are also Species of Principal Importance for the
Conservation of Biodiversity in England under Section 41 of the Natural Environment and
Rural Communities Act 2006 (NERC) Also section 40 of the NERC Act requires every public
body in the exercising of its functions to ‘have regard, so far as is consistent with the proper
exercise of those functions, to the purpose of conserving biodiversity’ . In addition, local
authority planning departments should also meet the requirements of the Planning Policy
Statement 9 (PPS9); which requires planners not only to protect biodiversity, but where
possible to enhance it.
Otters
Otters are listed on schedule 5 of the Wildlife and Countryside Act 1981 (as amended) and
therefore protected under Section 9 and also are protected under regulation 39 of
theConservation (Natural Habitats &c.) (Amendment) Regulations 2007. Taken together it is
illegal to:
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Deliberately kill, injure or capture any wild animal of European protected species;
Deliberately disturb wild animals of any European protected species in such a way to
be likely to significantly affect:
The ability of any significant groups of animals of that species to survive, breed, rear
or nurture their young; or
The local distribution of that species.
Recklessly disturb a European protected species or obstruct access to their roosts;
Damage or destroys breed sites or resting places of such animals;
Deliberately takes or destroys the young of such an animal;
Possess or transport or any part of a European protected species, unless acquired
legally;
Sell, barter or exchange any part of a European protected species.
The maximum fine per offence is £5000; The Countryside Rights of Way Act 2000
(CRoW)amendment contains a provision for a custodial sentence of up to 6 months instead
of, or in addition to, a fine. Along with a lengthy development delay until an appropriate
mitigation programme has been agreed and completed.
The Natural Environment and Rural Communities Act 2006 (NERC) also lists the Otter as a
species of principle importance under Section 41 and Section 40 requires every public body
in the exercising of its functions (in relation Section 41 species) ‘have regard, so far as is
consistent with the proper exercise of those functions, to the purpose of conserving
biodiversity’ ; therefore making the Otter a material consideration in the planning process
and requiring a detailed ecological survey before planning permission can be granted . In
addition, local authority planning departments should also meet the requirements of
the Planning Policy Statement 9 (PPS9) which requires planners not only to protect
biodiversity, but where possible to enhance it.
The Natural Environments and Rural Communities (NERC) Act (2006)
The Natural Environment and Rural Communities (NERC) Act came into force on 1st Oct
2006. Section 41 (S41) of the Act requires the Secretary of State to publish a list of habitats
and species which are of principal importance for the conservation of biodiversity in England.
The list has been drawn up in consultation with Natural England, as required by the Act. The
S41 list is used to guide decision-makers such as public bodies, including local and regional
authorities, in implementing their duty under section 40 of the Natural Environment and Rural
Communities Act 2006, to have regard to the conservation of biodiversity in England, when
carrying out their normal functions.
Habitats of Principal Importance
Fifty-six habitats of principal importance are included on the S41 list. These are all the
habitats in England that have been identified as requiring action in the UK Biodiversity Action
Plan (UK BAP). They include terrestrial habitats such as upland hay meadows to lowland
mixed deciduous woodland, and freshwater and marine habitats such as ponds and subtidal
sands and gravels.
Species of Principal Importance
There are 943 species of principal importance included on the S41 list. These are the
species found in England which have been identified as requiring action under the UK BAP.
In addition, the Hen Harrier has also been included on the list because without continued
conservation action it is unlikely that the Hen Harrier population will increase from its current
very low levels in England.
In accordance with Section 41(4) the Secretary of State will, in consultation with Natural
England, keep this list under review and will publish a revised list if necessary.
The Conservation of Habitat and Species Regulations (2010)
The Conservation of Habitat and Species Regulations 2010 came into force on April 1st and
supersedes The Conservation (Natural Habitats, &c.) Regulations 1994. This new regulation
updates the 1994 regulations legislation and consolidates all the many amendments which
have been made to the Regulations since they were first made in 1994. The new
Regulations do not make any substantive changes to existing policies and procedures (other
than in relation the establishment of the Marine Management Organisation (MMO)– which
takes on certain licensing functions from Natural England - and to ensure consistent with the
approach in the Marine and Coastal Access Act 2009). These 2010 regulations amongst
other things provide protection to European species laid out within Part 3 of the regulation
which are listed within the criteria laid out within s40 with s41 highlighting what constitutes an
offence. Under the Regulations, competent authorities i.e. any Minister, government
department, public body, or person holding public office, also have a general duty, in the
exercise of any of their functions, to have regard to the EC Habitats Directive.
Hedgerow regulations (1997)
Under the Hedgerows Regulations 1997 it is against the law to remove or destroy certain
hedgerows without permission from the local planning authority.
Local planning authority permission is required before removing hedges that are at least 20
metres (66 feet) in length, more than 30 years old and contain certain species of plant. The
authority will assess the importance of the hedgerow using criteria set out in the regulations.
Protection of Badgers Act (1992)
This Act makes it an offence to wilfully kill, injure, take, possess or cruelly ill-treat a badger,
or attempt to do so; to intentionally or recklessly interfere with a sett. Sett interference
includes disturbing badgers whilst they are occupying a sett, as well as damaging or
destroying a sett or obstructing access to it.
CRoW Act (2000)
The Countryside and Rights of Way Act 2000 amends the Wildlife and Countryside Act and
reinforces protection given to SSSIs and other important wildlife sites. Importantly, under the
Act it has became a criminal offence to "recklessly disturb" Schedule 1 nesting birds and
species protected under Schedule 5 of the Wildlife and Countryside Act.
The Act strengthens the legal protection for threatened species and makes certain offences
'arrestable'. It also enables heavier penalties on conviction of wildlife offences.
The Wildlife and Countryside Act 1981 (as amended)
This Act is the principal piece of legislation protecting wildlife in Great Britain and has been
amended following revisions (Wildlife and Countryside (Amendment Act)1985, Countryside
and Rights of Way Act 2000 see below). It aims to protect habitats, by designating them as
Sites of Special Scientific Interest (SSSIs) as well as individual species. All wild birds are
given some protection during the breeding season, whilst protection to other species varies
according to their conservation status.
The Act makes it an offence to intentionally kill, injure or take species listed on Schedule 5 of
the Act. It is also an offence to damage, destroy or obstruct access to any place the animal
uses for shelter or protection; and to disturb an animal whilst is using a structure or place for
shelter.
Rare species which receive full protection under Schedule 5 of the Act include Great crested
newts, bats, water voles, dormice and lesser silver water beetles.