the planning process and you
The most common type of enquiry the Surrey Bat Group receives is from members of the public seeking assistance in opposing planning applications. The sheer number of these calls, compared to the number of licenced batworkers in the county, makes it impractical for the group to become directly involved. We have produced these notes to give general guidance about the legislation protecting bats in this country and to show how we believe councils should go about enacting and adhering to the relevant legislation. This information is based on our understanding of the law in England – readers in other parts of the United Kingdom will find local differences.
of Legal Status
All British bat species are afforded protection under the Wildlife and Countryside Act 1981 through inclusion on schedule 5, and additionally under the Conservation (Natural Habitats &c.) Regulations 1994 (which were issued under the European Communities Act 1972), through inclusion on schedule 4. These make it illegal to kill, injure, capture or disturb bats; or to obstruct access to, damage or destroy bat roosts. A bat roost is interpreted as "any structure or place used for shelter or protection" whether or not bats are present at the time. This legislation provides defences so that necessary operations may be carried out in sites utilised by bats, provided English Nature is notified and allowed reasonable time to advise on whether the proposed operation should be carried out and, if so, at what time and which methods may be permitted. The Wildlife and Countryside Act was amended and strengthened by the Countryside and Rights of Way Act 2000, which removed the need to prove intent to damage a roost, and strengthened the penalties for offences (a fine of up to £5000 and six months’ imprisonment) as well as making them arrestable.
The UK is a party to the Agreement on the Conservation of Bats in Europe, set up under the Bonn Convention, under which article three of the agreement requires protection of all bats and their habitats, including the identification and protection from damage or disturbance of important feeding areas for bats.
In 2005 the government introduced Planning Policy Statement 9 (PPS 9) dealing with Biodiversity and Geological Conservation. This document sets out policies which need to be taken into account by local and regional planning authorities. Some of the key aims of this document are to promote sustainable development by ensuring biological diversity is conserved and enhanced, where possible improving the quality and extent of natural habitat and enhancing biodiversity in green spaces and among developments so that they are used by wildlife and valued by people. The Key Principles of this document state that 1 (i) “…planning decisions should be based upon up-to-date information about the environmental characteristics of their areas” and in 1 (vi) “The aim of planning decisions should be to prevent harm to biodiversity……” and that “…..adequate mitigation measures should be put in place……” and “if significant harm cannot be prevented…..then planning permission should be refused.”
To accompany PPS 9 the Office of the Deputy Prime Minister has published circular 06/2005. Part IV of this document deals with the Conservation of Species Protected by Law. Paragraph 98 states that “The presence of a protected species is a material consideration when a planning authority is considering a development proposal…..” and that “Local authorities should consult English Nature before granting planning permission.” Most importantly paragraph 99 states “It is essential that the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before the planning permission is granted, otherwise all relevant material considerations may not have been addressed in making the decision.”
Planning for Biodiversity and Geological Conservation - A Guide to Good Practice is a further document that will be found very useful, as well as the Bat Mitigation Guidelines.
An important thing to note is that although the Wildlife and Countryside Act does provide defences for development to be carried out which will destroy bat roosts, the habitat regulations require a special licence to be issued by the Department of the Environment, Food and Rural Affairs (DEFRA) if roost destruction or disturbance is to take place. In practice English Nature (EN) will provide advice to homeowners with bat problems directly affecting the living area of dwellings under the Wildlife and Countryside Act, while all developments involving planning permission will require a DEFRA licence. For such a licence to be granted all three of the following conditions have to be met:
1. A licence may be granted "to preserve public health or public safety or for reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment."
2. A licence may not be granted unless "there is no satisfactory alternative."
3. A licence may only be issued if it "will not be detrimental to the maintenance of the species at a favourable conservation status in its natural range."
In the case of this latter condition DEFRA will seek advice from EN, who may in turn consult with the local bat worker.
and the Planning Process
An excellent summary of how these regulations knit together is provided on page 3 of the Bat Mitigation Guidelines, published by English Nature in January 2004. This, taken with the ODPM circular, makes it very clear that it is the intention of the government that local authorities and developers consider protected species at the earliest possible stage in the planning process. Any planning application that is likely to affect protected species should come with details of the surveys which have been undertaken and should include, if necessary, recommendations for mitigation. Applications which do not include sufficient data should be rejected.
In order to help local councils to determine the types of applications for which a bat survey should be carried out the bat group has produced a document setting out the main criteria for a survey. These were finalised in June 2002 and formally presented to representatives of all the district councils in Surrey at a meeting of the Development Control Group in January 2003.
Once planning permission has been
granted it is unlikely that the presence of bats will stop a development in
progress. However if there are good reasons to believe bats are being affected
by a development then English Nature should be notified, as there may be grounds
for delaying or modifying the project, as the necessary licences and permissions
will still have to be obtained. In extreme cases where roost destruction is
imminent and if there is tangible evidence that bats are being harmed, the
police should be called. Theoretically, even if a council and developer have
gone through the above procedures, it may be possible to launch a judicial
review to determine whether or not a DEFRA licence has met all three of the
necessary conditions. Similarly if councils have failed to take sufficient
account of protected species in determining applications there may be grounds
for an appeal or complaint to the local government ombudsman.
of the Bat Group
Most bat work is carried out under the authority of conservation and scientific licences issued by English Nature under the terms of the Wildlife and Countryside Act. These licences carry a specific injunction not to venture onto private property without the permission of the landowner. It is therefore not generally possible for the bat group, or its members, to undertake surveys on behalf of groups opposing developments. We are more usually asked to provide expert advice to organisations such as English Nature, local councils, the Surrey Wildlife Trust and firms of environmental consultants.
The Surrey Bat Group has prepared a draft species action plan for the serotine bat, which is thought to be in serious decline in the county. If this is adopted and incorporated within the Surrey biodiversity action plan, it will place an additional onus on councils to protect roosts and habitats used by that species.
The information contained in this document is to the best of our knowledge accurate, but much of the legislation relating to bats and planning is a matter of interpretation. We hope these notes prove to be useful, but to enhance their effectiveness we rely upon you – the users of the information - to let us know how you have used them and the effect they have had. Please e-mail us (delete NOSPAM from address first) with your experiences so that we can gauge the effectiveness of the current legislation, and add anything relevant that you have learned to this site for the benefit of others who may be facing a similar situation.