20 Apr 2023
by Tim Smith, Cameron Yardley

The Environment Act 2021 (the Act) has encouraged looking at the cumulative effect of development in all areas, rather than taking an individualistic approach.  

The Act includes legally binding targets on species abundance for 2030, to aid decline of species reversal and to improve our natural environment.  

Councils should be actively conscious of the requirement to consider protected species and biodiversity net gain in developments and planning. 

Protected Site Strategies 

Protected Sites Strategies will play an important part in the restoration of nature. The aim is to bring together key stakeholders to address on and off-site pressures on protected sites. Local Nature Recovery Strategies will provide consistent spatial plans for nature across England. Protected Site Strategies can help with packages of measures designed to address challenges faced by specific protected sites.  

The concept of a Protected Site Strategy is broad. It includes any approach to mitigation or compensation that is wider than the individual project level. The Strategies will be helpful where there is evidence to show sites are being affected by a range of different impacts. There will be a variety of solutions that a strategic approach can inspire based on the factors affecting the site’s condition and local circumstances.  

The Strategies will focus on moving away from project-specific solutions which can be difficult, time consuming and expensive to introduce. The measures will ultimately place a new duty on local planning authorities to co-operate with Natural England, and other local planning authorities and public bodies, in the establishment and operation of the Strategies.  

The Strategies will feed into Local Nature Recovery Strategies, support local planning authorities and other public authorities in discharging their duty in respect of biodiversity and developing local plans, and complement plans for biodiversity net gain. 

A Species Conservation Strategy is a new way to safeguard particular species at the greatest risk of extinction in the future. The new Strategies will allow identifying better ways to comply with existing legal obligations to protect these species and assist councils in doing so.  

Planning and protections 

The Government has provided a guide which local planning authorities can access to assess whether the planning application would have a detrimental impact on a certain species. At this stage, if it may harm or disturb a protected species, planning permission may not be granted.  

There is a requirement to consult Natural England if a development proposal might affect a Site of Special Scientific Interest, (SSSI) needs an environmental impact assessment, or needs an appropriate assessment under the Conservation of Habitats and Species Regulations 2017. Natural England may object to a planning permission if it is likely to harm a protected species on a Site of Special Scientific Interest. 

The first stage is to assess the site and establish where the protected species are located. For example, bats, breeding birds and dormice can be situated in ancient or veteran trees or hedges, or those with significant decay features.  

You then need to look at whether the development proposal would affect them. At this stage establish when it is appropriate to take a survey. Surveys submitted with planning proposals have to be carried out at the most appropriate time to survey the presence of protected species and the purpose of the survey.  

Before considering a planning proposal, it is important to discuss the survey requirements with the developer, as Natural England can advise developers on survey requirements.  

A survey should be asked for if: 

  • There is suitable habitat on the site to support protected species. 
  • It is likely that protected species are present and may be affected by the proposed development. 
  • Protected species are present, but you are unsure if they will be affected.  

It should be explained to the developer that a detailed survey may not be necessary if they can evidence the protected species is unlikely to be affected, even if they are on or near a development site.  

This can be demonstrated by explaining:  

  • Their working methods 
  • The timing of development 
  • The life cycle and sensitivity of the specific species.  

It is a good idea to ensure developers use a suitably qualified and licenced ecologist to carry out the surveys at the right time of year, using the appropriate methods. It is unwise to decide on planning applications until you are in receipt of all the necessary surveys.  

A planning authority will have to assess whether planning permission is required if a protected species is affected, and whether Natural England should be consulted.

Related topics