A growing number of wildlife inhabits urban, suburban and rural areas across the UK. Over the years, a detailed regulatory regime has developed aimed at protecting various species of wildlife.

It is important that landowners, property developers, tenants and construction contractors understand the regulatory position as well as understanding how to respond where there's a concern that something has gone wrong.

Protected species

A protected species is one which is so threatened or vulnerable that it requires specific legal protection. A wide range of animals are covered. In this update, we focus on three examples.

Badgers

Badgers are protected under the Protection of Badgers Act 1992 which creates several offences including injuring or being cruel to badgers and interfering with badger setts. The latter offence has the potential to significantly impact upon work carried out on land.

Where an organisation is responsible for an offence relating to badgers, senior managers can also be punished if they contributed to that offence, including by failing to implement systems to prevent the offence taking place.

Beavers

The legal protection of beavers was introduced under the Habitats Regulations 1994, including very similar offences to those in place to protect badgers in relation to species and habitat. The significance of the protection is demonstrated by recent figures that Scotland's beaver population has more than doubled in the last three years.

Birds

All wild birds in the UK have protected status under the Wildlife and Countryside Act 1981 (the "WCA") – even those as common as pigeons and seagulls. Intentionally or recklessly killing, injuring or taking a bird; interfering with, or obstructing, bird nests; and taking or destroying eggs, are all criminal offences under the WCA.

There are additional offences in the WCA concerning categories of more vulnerable birds, such as Golden Eagles and Red Kites, in relation to harassment and disturbance (particularly during breeding seasons).

Employers can also be prosecuted in certain circumstances where an employee or agent commits an offence unless they can show that they took all reasonable steps and exercised all due diligence to prevent the offence being committed. That includes training staff on regulatory compliance, monitoring conduct and taking action to address concerning behaviour.

Demonstrating compliance

Landowners, developers and construction contractors may find themselves carrying out work on land (or water) which has the potential to impact protected species. A responsible organisation must understand the relevant regulatory regime before commencing works that may impact a protected species.

For instance, it is often necessary to instruct environmental experts to carry out investigations into the presence of protected species. Where their presence is identified, mitigation measures require to be put in place. That may include seeking a licence to interfere with protected species before any work is carried out.

If something goes wrong

Sometimes the presence of protected species will come as a surprise, even if steps have been taken to assess the area prior to commencing work. This is an important issue because business and individuals can be, and have been, prosecuted for breaches of the regulatory regime.

In the circumstances, there are certain steps that responsible organisations should take:0)

  • Pause - Where possible, operations which have impacted the protected species or habitat should be paused as soon as a concern arises.
  • Seek professional support - Professional advice should be sought on the appropriate steps to take to mitigate the impact on a protected species.
  • Consider engaging with regulators - Early engagement with regulators can assist in mitigating any impact on wildlife, minimise the prospect of enforcement action, and provide reassurance on next steps.

In order to engage in a credible manner with a regulator, it will be important to be in a position to demonstrate the steps taken to (a) assess the presence of a protected species (b) adapt works so as to limit the risk of impact on any protected species present and (c) limit the impact on protected species where an incident has occurred.

Key messages

With the population of protected species across the UK rising, it's vital that organisations have procedures in place to avoid harm to these species. That will assist in limiting the prospects of the specialist regulatory authorities across the UK investigating matters and potentially taking enforcement action.

Contributors

Ramsay Hall

Legal Director

Tony Convery

Associate