Protected species, construction projects, and the law

The law regarding protected species in the UK has recently gone through some important changes that have the potential to cause significant expense to the unwary developer/contractor. It is now a criminal offence to harm a protected species and heavy fines are payable for individual species killed. In addition, equipment may be confiscated and imprisonment up to six months may result.

According to Dr Grace O'Donovan of environmental consultancy RAW, county and district councils currently seem inadequately informed of the consequences of breaching these laws, although this is changing. "Ecological surveys are set to become an integrated part of the overall planning process. The worse-case scenario is that no ecological surveys are carried out and protected species are unlawfully killed during the construction phase and significant fines are subsequently charged to the contractor/developer.

"Five years ago, few ecology planning conditions were served, now 50% of all planning applications include an ecology condition, which can delay development for as long as 24 months," O'Donovan says.

Brownfield or greenfield sites are often left unused for long periods of time, thus allowing vegetation to develop and wildlife the opportunity to expand or move in from surrounding habitats. It is possible, therefore, that several protected species may occur on these sites. By their nature they usually have no statutory wildlife protection, but they often abut on to sites identified as being of local nature conservation interest known as SINCs (sites of importance for nature conservation) or SLINCs (sites of local importance for nature conservation).

This often has consequences for the development, as these adjacent sites cannot be disturbed. They may also contain protected species with active ranges, for instance badgers, or Great Crested Newts, in which case appropriate licences must be applied for to exclude or otherwise mitigate for these species to prevent a breach of the law.

However, O'Donovan notes: "Not all protected species are protected equally. There are two levels of legislation - one of national significance called the Countryside Rights of Way Act (CROW 2000) incorporating the Wildlife and Countryside Act (1981). This includes bats, other mammals such as badgers, water voles and dormice, reptiles and amphibians such as Great Crested Newts, adders and slow worms, birds, plants and invertebrates.

"There are more than 600 species protected by law in the UK."

This schedule prohibits intentional killing, injuring or taking of any of these species and also prohibits damage to, destruction of, or obstruction of access to any structure or place for shelter or protection. Disturbance of an animal occupying such a structure or place is also prohibited.

Then, at European level, the Conservation (Natural Habitats &c.) Regulations (1994) - known in short as the Habitats Regs - state that it is an offence to deliberately kill, capture, or disturb a European protected species, or to damage or destroy the breeding site or resting place of such an animal. Species that could be found on development sites, which are specifically afforded such high protection in the UK are all bat species, Great Crested Newts and otters. The UK has an extra responsibility with regard to these species as they are considered threatened at the European level.

It is therefore the UK's responsibility to translate the European directive into its own legislation and this has resulted in even more stringent law being introduced in recent times, particularly in relation to bats.

Since the CROW Act 2000, it is no longer possible to obtain a licence as a planning condition for species that are included in the Habitat Regs without first completing a survey to determine their presence or absence on a site and then determining their population size if present. A licence may now only be applied for if it is considered by the consultant ecologist as "not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range".

O'Donovan explains: "This last sentence raises the possibility that planning permission could be refused if the development is considered detrimental to the species survival in the area. Many local authorities and developers alike will not be completely aware of the implications of this change - raising the possibility of planning permission being granted, but a licence being refused stopping the development altogether."

The contractor view

Ecological and animal habitat surveys are usually carried out by the client prior to contractors getting on site and the client is usually responsible for securing the necessary planning permission.

"The client identifies what's there and the contractor draws up mitigation plans to deal with it," says Paul Thomas, group environmental manager at Galliford Try. "That might mean cordoning off ponds or trees where bats may be roosting, as the roosts are protected too. We have to get licences to deal with some species or habitats from Natural England or the Environment Agency individuals need licences too."

But things can get more difficult for contractors when species are identified after construction has started.

"Nesting birds in springtime are a big issue," says Thomas, "and all bird species are protected under the law during nesting. We've had two or three cases already this year. Staff have come back on site after the weekend and found a nest in the corner of an excavator.

"It's not a major concern. Out of the hundreds of jobs we have on the go, we've only had three incidents this year. But when it does happen we have to cordon the area off until the eggs hatch a few weeks later. In terms of risk it's generally something we have to accept, but we can usually work around it."

Hedgerows can cause particular problems as they make very good nesting areas at this time of year. Thomas says: "Once the birds are nesting you can't remove them, so we try to cover the hedges in netting beforehand to prevent birds from nesting there in the first place."

On one occasion Thomas says Galliford Try was working at a school that had a nature reserve within its grounds and one of the staff thought he spotted a Great Crested Newt. "We got a survey done and it turned out to be a smooth newt, which isn't protected, so no mitigation was needed. But it was encouraging that our guy spotted it and was very proactive in bringing it to our attention. And it shows you can potentially find protected species in places you'd never expect to see them."

Staff at Galliford Try are trained to look out for protected species and how to deal with them. The firm sets its own internal standards on ecology, but also makes use of toolbox talk kits on how to deal with various species provided by the Construction Confederation Environmental Forum.

"We also have professional ecologists we can call in and get advice as to how to deal with any situation," says Thomas. "Ecology is generally quite a well managed area. Badgers, voles and bats are high profile now, so people easily associate environmental issues with those species. As an issue it is more prevalent in construction people's minds now and gives less concern than some pollution-type activities, for example.

"In our internal systems, we encourage a policy of no net loss of ecological resources. If we have to cut down a tree with a nest site, we will put up a bird box elsewhere, so the same amount of resource is still there in the area. The aim is to have a neutral impact on the ecology," he concludes.