1. European Protected Species Regulations in practice Experience of a Consultant Ecologist European Criminal Law and Enforcement in England Dr Peter Shepherd

2. Introduction The aim of this presentation is to provide a flavour of a consultant ecologists’ experience of dealing with European Protect Species (EPS) legislation. The presentation is based on the direct experience of a number of consultant ecologists canvassed for opinion and issues raised by consultants and developers through the Natural England Customer Panel (industry liaison group).

3. Legislation - protection Regulation 41 (1) and (2) of the Conservation of Habitats and Species Regulations (2010) (as amended) (1) A person who— (a) deliberately captures, injures or kills any wild animal of a European protected species, (b) deliberately disturbs wild animals of any such species, (c) deliberately takes or destroys the eggs of such an animal, or (d) damages or destroys a breeding site or resting place of such an animal, is guilty of an offence. (2) For the purposes of paragraph (1)(b), disturbance of animals includes in particular any disturbance which is likely— (a) to impair their ability— (i) to survive, to breed or reproduce, or to rear or nurture their young, or (ii) in the case of animals of a hibernating or migratory species, to hibernate or migrate; or (b) to affect significantly the local distribution or abundance of the species to which they belong.

4. Underlying principles Key objective of the Directive in relation to species is to maintain and where necessary restore Favourable Conservation Status Implement measures in a proportionate and appropriate manner. (However, not about Member States reducing their obligations to act in an effective manner). Measures need to be effective in maintaining or restoring Favourable Conservation Status, while also taking account of economic, social and cultural requirements and regional and local characteristics (Article 2 (3)). A species-by species approach is needed as not all provisions will be appropriate or proportionate. However, just because a species is already in Favourable Conservation Status taking no measures at all is not an option.

5. Licencing Regulation 53 - (1) Subject to the provisions of this regulation, the relevant licensing body may grant a licence for the purposes specified in paragraph (2). (2) The purposes are— (a)scientific or educational purposes; (b)ringing or marking, or examining any ring or mark on, wild animals; (c)conserving wild animals or wild plants or introducing them to particular areas; (d)protecting any zoological or botanical collection; (e)preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment; (f)preventing the spread of disease; or (g)preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber or any other form of property or to fisheries. (9) The relevant licensing body must not grant a licence under this regulation unless they are satisfied— (a)that there is no satisfactory alternative; and (b)that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.

6. Codes of Conduct In addition to licensing which is clearly linked to development permitting procedures (e.g. development requiring planning consent) there are on-going activities. These include for example, agriculture and forestry Present more complex issues, not least that the majority of activities in these sectors are not subject to any prior approval, and it would be considered disproportionate to impose licensing controls. These on-going activities are dealt with through guidance and codes of conduct much of the time. These are meant to complement the rather than replace formal legal protection

7. Species This presentation is drawn primarily from experiences of dealing with the more commonly encountered protected animal species listed in Schedule 2 to the Conservation Regulations, which are more often than not found outside protected sites (i) All 17 species of bat (ii) Great crested newt (iii) Dormouse (iv) Otter

8. Issues around implementation Issues can be broadly placed into: (a) The every newt is sacred syndrome and how it relates to the maintenance of Favourable Conservation Status (b) Bureaucratic problems

9. Every Newt is Sacred? This issue often causes great frustration and bemusement among consultants, who can be required to undertake extensive works to meet licensing requirements where there is unlikely to be any impact on FCS, but a breach of the legislation. The primary aim is to maintain or restore species to Favourable Conservation Status (FCS), but does this mean every newt, or bat requires protection at all costs regardless of how proportionate or necessary this requirement may be? Ecologically the answer to this is very often No, especially if the impact is one of disturbance or loss of places of rest of minor importance to FCS. However, legally a breach of the protection can be foreseen leading to the need for a licence. Article 12 (4) recognises there will be incidental killing of EPS, but this is in circumstances that are not licensed – e.g. on-going activities, yet no legal action is taken in these circumstances.

10. Every Newt is Sacred (2) The apparent discrepancy in approach between on-going activities and licensed works often leads to a sense of disproportionate application of controls when it comes to derogation licensing. Licences are being sought for development projects where the impact of the action taken is no different, and often less than on-going activities. E.g. loss of a day roost for a single pipistrelle bat, loss of sub- optimal terrestrial habitat at distance from a newt breeding pond. This precautionary approach is often taken to avoid delay to a project from third party challenge. A fertile area where the law is used to fight/frustrate planning consents.

11. Bureaucratic Difficulties Most developers are agnostic about the need to conserve species and see their protection as just one of a number of issues they have to regularly deal with through the planning process. However, developers are far from agnostic about cost and delay (which invariably leads to significant costs). Especially when they consider these problems to arise for bureaucratic reasons. This regularly raises questions about proportionality and appropriateness of the consenting system as it is currently operated in England and generates real antagonism towards EPS and the Directive as whole

12. Licensing The consenting regime (licensing) is not integrated with the planning regime - often a lack of clarity between the two processes. Sometimes too much overlap and other times not enough. Seasonal survey delays, sensible judgements at planning. Disproportionate costs – licence applications are voluminous documents. Great Crested Newt Application – an application form (19 pages), reasoned statement (9 pages), and an excel method statement (33 pages plus 13 compulsory figures). Does not include the required annexes, evidence base, and figures. Cost and time to obtain licences – current time for bat licences to be registered(22/10) 25 applications to be allocated to an assesor.44 days to get from date of application get to allocation to officer and then 30 days after that - 4 months before you are told if FIR required

13. Licensing Risk adverse approach is adopted as the developer nor the ecologist is willing to test interpretation of the law in the courts. Frustration and confusion over different approaches – domestic as opposed to commercial licensing – yet impacts are no different. Interpretation of legislation are we being too restrictive – suitable alternatives, breeding site or resting place

14. Final thoughts Licensing has since the late 1990’s become a bureaucratic and cumbersome process that often seems an excessive approach to meeting the objectives of the directive especially when compared to other approaches that satisfy the Directives requirements. This has generated great frustration in the development sector and resulted in antagonism to the species the legislation is seeking to protect. This is unhelpful and does not serve the purpose of the Directive. There needs to better coordination between planning and licensing. Various positive actions have already been undertaken in recent years in very difficult economic circumstances. However there is a need to continue to try and reduce cost and delay, particularly around low impact situations with little risk to FCS. There is a need for the consenting authority to give greater leadership/opinion/assessment of significance of impacts on FCS and how this should be reflected in the appropriate choice of licensing or code of conduct approaches to dealing with EPS in the development process. The consenting authority needs sufficient resources to operate the consenting system efficiently, in a manner that is seen as reasonable and proportionate by those it is most affecting.