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Trees

Development advice

Particular species of plants and animals in Wales have special protection. This is normally because of their vulnerable conservation status, which may be because:

  • they are endangered
  • they are declining in number or range either in the UK or the European Community
  • they can be victims of persecution or cruelty like badgers, or birds, as with the collection of their eggs

These species are protected under legislation that is independent of but closely related to the town and country planning legislation in Wales.
The main acts for protecting biodiversity in England and Wales are:

However, there is another layer of legislation produced at a European level. The Conservation (Natural Habitats) Regulations 1994 (the Habitats Regulations) implement the Habitats Directive’s requirements for species in the Directive’s IV and V annexes. The Conservation of Habitats and Species Regulations 2010 consolidate all the various amendments made to the 1994 Regulations regarding England and Wales.

In addition to legally protected species, the planning and development process has a fundamental role in controlling and relieving this pressure. Planning Policy Wales requires local authorities to protect wildlife and natural features in the wider environment. Biodiversity action plans must give appropriate weight to priority habitats and species.

Where it is reasonably likely that a development will affect a designated site or protected or priority habitat/species, make an assessment of the probable impact.

Planning Policy Wales states: “the presence of a species protected by European or UK law is a material consideration when local planning authorities consider a development proposal which would likely disturb or harm the species or its habitat”.

Therefore, a protected species’ presence or otherwise and the extent that a proposed development may affect it must be established before planning permission is granted. A habitat assessment and survey work for a species’ presence or absence and usage level should occur before consent is given too. It is best practice that such a survey is done before planning applications are submitted.

Where developments could affect protected species and the authority requires a survey, it should be completed and necessary protection measures enacted before permission is given. This may include through conditions and/or planning obligations.

In appropriate circumstances, permission may impose a condition preventing the development from proceeding without first getting a licence under the appropriate wildlife legislation.

Additional guidance in accounting for protected species in development can be found in ‘Technical Advice Note (TAN) 5: Nature Conservation and Planning (2009)’. This document provides advice about how the land use planning system should help to protect and enhance biodiversity and geological conservation. Also it should be read alongside Planning Policy Wales.

Annex 7 of TAN 5 explains the legislative provisions for protecting birds, badgers, other animals and plants. It explains where licences may be needed to do certain operations associated with development. A list of all protected species of animals and plants can be found in table two of annex eight in TAN 5.

Further guidance on protected sites and species in Wales is available from a wide range of sources including Natural Resources Wales.

Part I of the Wildlife and Countryside Act 1981 (as amended) protects wild plants of the species listed in Schedule 8. Most of these are not European protected species.

Section 13 of the Wildlife and Countryside Act 1981 (as amended) gives legal protection to certain wild plants listed in Schedule 8. Lesser protection to other wild plants is not listed. Without a licence or relevant defence, it is an offence to:

  • intentionally pick, uproot or destroy a wild plant listed in Schedule 8
  • intentionally uproot any wild plant not included in Schedule 8 without being an authorised person
  • sell, offer or expose for sale, or have possession of or to transport for sale any living or dead wild plant, or any part of or anything derived from wild plants in Schedule 8
  • publish or cause publication of any advertisement likely to be understood as someone buying, selling, or intending to buy or sell the last point’s items

Breaching protected species law is often a criminal offence. A grant of planning permission does not relieve developers from compliance with protected species law. Offences may be made during land development even where the development is in line with valid planning permission (TAN 5, 2009).

Natural Environment and Rural Communities (NERC) Act 2006, Section 42

Conserving and enhancing biodiversity are key elements of sustainable development.

Losing biodiversity and the subsequent negative environmental impact is contrary to the aims and objectives of sustainable development. In principle, sustainable development should not lead to a net loss of biodiversity or natural resources.

Much of the pressure on biodiversity relates to development and land use. Consequently the planning and development process has a fundamental role in controlling and relieving this pressure. Failure to address biodiversity issues may cause a planning application’s refusal.

NERC Act 2006, Section 40

This gives all English and Welsh public authorities a duty to consider the aim of conserving biodiversity in their work. A key purpose of this duty is to embed consideration of biodiversity as an integral part of policy and decision making throughout the public sector.

The UK Biodiversity Action Plan (UK BAP) describes the UK’s biological resource and a plan for protecting it. This is the UK’s response to the Convention on Biological Diversity. The UK signed up to it in 1992, and thereby committed to halting the decline of biodiversity by 2010.

The governments of all four UK countries adopted the recommendations of experts and published the UK list of priority species and habitats in August 2007. This list results from the most comprehensive analysis ever made in the UK. It contains 1,150 species and 65 habitats that have been listed as priorities for conservation.

The UK BAP set out a programme for conserving biodiversity in the UK, and this includes the list of habitats which were conservation priorities.

As per the Natural Environment and Rural Communities Act (2006)’s section 42, Welsh Government published the habitats it sees as key for conserving Welsh biodiversity. The list contains 51 of the total 65 UK BAP habitats with an additional three marine habitats specific to Wales. The list is the definitive reference for all statutory and non-statutory bodies involved in operations affecting Welsh biodiversity. Also, it should be used to guide decision-makers like local and regional authorities to consider conserving biodiversity in their work when completing statutory duties.

Ignoring or inadequately addressing a development’s potential to affect important wildlife habitats or species could delay processing the application or refusing permission. Occasionally, it could delay or even prevent implementing planning permission. For example, they could occur where a protected species is found on a development site after work has started.

The following groups of habitats are known as UK BAP Habitats. They are found in Bridgend County Borough and included in the local BAP, which identifies priorities at a county level.

Habitat Action Plans

Relevant Habitat Action Plans (HAPs) were developed to cover the actions needed to help conserve many of the county borough's key species. However, some species are not adequately covered by the Habitat Action Plans, and individual Species Action Plans (SAPs) were produced for these species.

Species Action Plans

SAPs were created for species so highly threatened or rapidly declining that urgent action must be taken to avoid local extinction. The rarer fritillary butterflies are an example. They are relevant where a species is widespread, or occurs on a range of habitats but general habitat work will not cater for it. Also, they are relevant for species restricted to a particular habitat which have such peculiar ecological requirements that normal habitat management doesn’t cater for them. The Shrill Carder Bee is an example of this.

Where development proposals may affect national or local BAP habitats or species, the same principles apply as to locally designated sites (TAN 5; 5.5.4).

Local sites have an important role in meeting biodiversity targets and adding to the community’s quality of life and wellbeing. The nature conservation interests which they have been created for are a material consideration in planning decisions (TAN 5). Also, the Bridgend Local Development Plan’s policies protect them.

Therefore as with designated sites, TAN 5 expects developers to identify how their proposals may affect BAP habitats and species either positively or negatively. Where relevant, developers should identify how the proposed development sites contribute to wider ecological networks or mosaics.

Bridgend Local Biodiversity Action Plan Habitats: woodland

Woodland and hedgerows habitats include:

  • ancient and species-rich hedgerows
  • lowland ancient woodlands
  • upland oak woodlands
  • upland mixed ash woodlands
  • wet woodlands
  • lowland wood-pasture and parklands
  • beech and yew woodland
  • lowland mixed deciduous woodland
  • traditional orchards

Grassland habitat includes:

  • hay meadows and old pastures
  • lowland dry acid grasslands
  • calcareous grasslands
  • cereal field margins

Marshland habitat includes:

  • purple moor-grass and rush pastures
  • coastal and floodplain grazing marshes
  • reedbeds
  • fens and flushes
  • blanket bogs

Heathland habitat includes:

  • heathlands

Coastal, marine and rock habitat includes:

  • coastal sand dunes
  • saltmarsh
  • shingle
  • coastal cliff and slope
  • limestone pavements

Water habitats includes:

  • eutrophic standing waters and ponds
  • aquifer fed naturally fluctuating water bodies
  • rivers
  • mesotrophic lakes
  • oligotrophic and dystrophic lakes

Other habitats include:

  • open mosaic habitats on previously developed land
  • urban green space such as parks, allotments, flower-rich road verges and railway embankments)
  • caves and disused tunnels and mines
  • coal mining spoil heaps

Guidance note four:  

Some of these habitats do not receive statutory protection, but are protected by planning policy. They will be found both within and outside designated sites.

Welsh Government has chosen the status of priority habitats and species as a headline indicator to measure of national progress towards sustainable development. Future development in Bridgend County Borough will play a key role in ensuring the status of habitats and species is improving.

To help monitor priority habitats and species, all development works affecting them should be recorded on the Biodiversity Action Reporting System (BARS) website.

When to run a survey for priority species or habitats

Guidance note five:

Where there is a reasonable likelihood for a development to affect a priority habitat or species, an assessment of the likely impact must be made. The assessment should be an ecological survey and report.

It is important to bear in mind that the survey work needed to inform such assessments will be seasonally restricted. See the guidance sheet for survey requirements. Discussion of biodiversity survey needs at the pre-application stage can help reduce the likelihood of delays due to requirements for surveys being identified later.

Normally, development which would adversely affect priority habitat or species is unacceptable.

Guidance note six:

Only in special cases, where the importance of a development outweighs the impact on the feature, would an adverse effect be permitted. In such cases, planning conditions or obligations will be used to mitigate the impact.

The loss of or damage to any of the BAP habitats or species should be compensated for on a no-net loss basis. They can be replaced on a like for like basis onsite or offsite as part of a biodiversity off-setting scheme.

To reflect a habitat’s loss of quality, offsetting a greater area than lost by development may be needed to achieve no net loss of biodiversity.

Determine the size or quality of replacement habitat

The three key factors to consider in specifying the relevant ratios are:

  1. Habitat value, accounting for the relative distinctiveness and quality of what is lost and provided in return.
  2. Risk and uncertainty. This factor considers that we can know what biodiversity is being lost due to development. However creating or restoring habitat is always subject to risks that the offset will fail to deliver habitat of the expected quality.
  3. Time preference, in that we would prefer a given amount of biodiversity now rather than sometime in the future. While habitat loss due to development is immediate, creation or restoration of habitats may take many years.

Advice on replacement habitat

Any planned loss and replacement of the above habitats should be discussed in detail with us before applying, as national policy (PPW 5.5.1) recommends. We will be able to advise you.

Pre-application discussions with statutory consultees like Natural Resources Wales are recommended. We also recommend talking to non-statutory consultees such as South and West Wales Wildlife Trust and the RSPB if appropriate. This should be done at the design process’s outset. Seeking this advice will allow enough suitable mitigation and compensation measures to be included in the design, and aid the planning application process.

Natural Resources Wales (NRW) have a regulatory function regarding the water environment. Advice can be found on the NRW website about consents and permissions which developers may need to obtain from NRW.

Important considerations

Ancient woodlands are virtually irreplaceable and should not be removed or destroyed. Hedgerows are subject to the Hedgerow Regulations. These habitats may contain or be used by protected animals, who will be subject to specific surveys and mitigation/compensation measures.

Guidance note seven:

Developers/applicants must give enough evidence to show avoidance is impossible before mitigation or compensation are considered as viable alternatives.

Avoidance measures built into development proposals may remove the need for detailed survey work. We will seek expert advice from NRW in determining cases when this may be applicable.

Avoidance measures are those which can reasonably be implemented to avoid an offence occurring. As such, these Reasonable Avoidance Measures (RAMs) can often avoid the need for a licence. RAMs are the preferred approach when considering a scheme’s design. RAMs may include measures such as:

  • revising site layout to avoid losing an important feature
  • carrying out works at a time which is less likely to result in disturbance
  • amending working methods to reduce effects to acceptable levels

If RAMs are practical for a scheme, they must still be noted in a Method Statement sent to us for approval. The resulting planning consent will likely have as a condition, implementation of the RAMs Method Statement’s measures.

If the RAMs avoid all anticipated effects to a priority species and their habitats to acceptable levels, a licence from NRW is unlikely to be needed. Often this can avoid or reduce delays to commencing development and will often reduce costs as well. Therefore it is important to create communication channels between your architects, whether they are landscape or otherwise, and your chosen suitably qualified ecologist during master-planning. This will aid in guiding the design and programme at an early enough stage to identify whether RAMs may be a suitable approach.

Early identification and incorporation of green infrastructure assets into a development will help reduce a scheme’s development impact. It will provide opportunities for RAMs, and avoid more complex mitigation and compensation schemes which may need a license.

Guidance note eight:

Where harm is unavoidable, it should be minimised by mitigation measures.

It may be impossible to just rely on RAMs to fully address all potential effects on protected and priority species and habitats. This depends on the scale of the developments and predicted impacts. Where European and protected species are present, a licence may require compensation measures. Early communication across the design team promotes a greater understanding of all constraints, and allows a balanced approach to development design.

Where RAMs cannot satisfactorily avoid negative effects, mitigation measures will be needed to preclude harm and ensure no net loss of habitats. The exact measures needed depend on the species, its habitat, the population size, distribution and proximity to works, and the works’ scale, timing and duration.

The method statement will detail mitigation measures to be enacted. Where there are licensed activities, they must be done in strict accordance with the method statement.

Guidance note nine:

Compensation will only be considered where developers/applicants have satisfactorily shown avoidance and mitigation are impossible, and compensatory measures result in no net loss of habitat.

Where mitigation cannot satisfactorily reduce all potential negative effects, extra compensation measures will likely be needed. Where European Protected Species are present, a licence may require compensation measures.

Most frequently, compensation measures involve habitat losses. Habitat loss requires offsetting so there is sufficient habitat to maintain breeding, foraging, refuge and dispersal for the affected population. Also, the population size and natural range must be maintained. Thus it will be important to consider connectivity between kept habitats, new habitats and existing habitats in the wider area.

Habitat compensation must be provided ahead of site exclusion and the capture of protected species. This enables the transfer of protected species and other animals to the compensation area(s) before development disturbs them.

As part of the green infrastructure approach, habitats should be identified, protected and enhanced where possible. For example, incorporate existing natural assets like ponds, trees, or woodland and a buffer into the design and mitigate appropriately if development destroys natural assets. Enhancements can be made by including natural features in appropriate new developments and ensuring roads built across known migration routes have wildlife tunnels or bridges.

Large development sites can enhance surrounding habitats and connecting corridors for protected species and other plants and animals. Also they give residents natural interest.

Currently, we are moving towards a more integrated landscape-scale approach to biodiversity conservation. This aims to recover habitats and species, as well as the ecosystems and services they support. The Bridgend Local Biodiversity Action Plan will provide information and maps of priority habitats and species.

A development’s contribution depends on the location’s character, the type of development, the contribution it can make to eco-connectivity and regulatory and provisioning services. Developers can identify the provision, character and distribution of green infrastructure opportunities through ecosystem services maps. We created these together with Natural Resources Wales.

Guidance note 10:

As well as protecting priority habitats, developments should maximise their development’s contribution to green infrastructure and consider how they add to ecosystem services.

Increases in understanding of the natural environment will lead to further legislation and guidance being published. It is the developer responsibility to ensure their proposals meet current policy and guidance.

Guidance note 11:

Increases in understanding of the natural environment will lead to further legislation and guidance being published. It is the developer’s responsibility to ensure their proposals meet current policy and guidance.

Image credit: 'Lonely tree in a field' by sagesolar with licence credit.

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