Finding protected wildlife on a development site can mean changing development plans to make sure that the wildlife is protected, just as the badge suggests. Here we discuss how to deal with protected animal wildlife.

What is protected animal wildlife?

A combination of European and UK legislation protects certain types of animals from harm. The NatureScot website provides a table of all the protected species in Scotland. The protected species most commonly found on development sites include badgers, bats and red squirrels but what does "protected" mean?

What does protection for animal wildlife mean?

Varying forms of protection are required for different species but in essence, it is an offence to kill, injure or capture them or disturb them in their dens or other structures where they are sheltering or resting. It is also an offence to obstruct access to such places or to damage or destroy them, particularly during breeding times.

What must be done if protected animals are found on site?

If protected animals are identified during site investigations before or during the planning application stage, NatureScot advises that a survey should be carried out by an appropriately qualified expert with knowledge and experience of dealing with the species involved. Any survey report produced should be made available to the planners either with the application or during the planning process.

If the protected animal is found when development is underway, where possible, development in the area concerned should be paused as soon as possible, and professional advice sought on the appropriate measures to take to mitigate the impact on the protected animal. Professional advice should be sought, in particular, on engagement with regulators to explain the position and agree next steps.

Can development go ahead on other parts of the site?

Depending on the species involved, it may be possible to ring fence the area occupied by the animal and protect them against the effects of the development. NatureScot has some standing guidance for particular species advising what other steps should be taken. For example, for badgers, NatureScot's advice includes:

  • Designing the development and construction methods to avoid damage or disturbance to setts;
  • Avoiding disturbing the badgers once the development is started and provide ramps and close off open pipework when not on site to avoid the badgers becoming trapped;
  • Creating exclusion zones of at least 30m from sett entrances (100m for pile driving or blasting);
  • Creating a buffer zone to minimise disturbance once the development is complete; and
  • Safeguarding water sources for the badgers.

Can a licence be obtained to allow development to go ahead?

If it is not possible to complete the development without committing an offence against protected animals, the scope for a licence from NatureScot should be explored. For some species, a licence may be granted to allow works to go ahead if the development will achieve a significant social, economic or environmental benefit and there is no other satisfactory solution.

What happens if the developer proceeds with the development without following the regulatory requirements?

Bellway Homes learned to their cost what happens if the rules are broken. Bats had been found in buildings on one of their development sites. The planners had confirmed that Bellway would need to take mitigation measures and obtain a licence before demolishing the buildings. Bellway went ahead with the demolition with neither mitigation nor licence in place. The Metropolitan Police investigated the damage and destruction of a bat breeding site and resting place. Following the investigation, Bellway were prosecuted. They pleaded guilty to a wildlife offence and were ordered to pay a record fine of £600,000. They also agreed to donate £20,000 to the Bat Conservation Trust.

To build or not to build?

The Bellway case is evidence that wildlife regulators will be robust in investigating suspected breaches. The level of fine also indicates that the UK courts are determined to send a message that wildlife offences will not be tolerated. It's therefore vital that compliance steps are taken to identify and manage the presence of protected animals on developments sites. For compliance advice and support or for representation in the event of a regulatory investigation, please contact Ramsay Hall or your existing Brodies contact.

Contributor

Ramsay Hall

Legal Director