Bats, the planning process and you

 Introduction

 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 requests, compared to the small number of  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 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.

 Summary 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 of Habitats and Species Regulations 2017 (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 Natural England  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 2019 the updated National Planning Policy Framework was published  (link to https://www.gov.uk/government/publications/national-planning-policy-framework--2)  and paragraph 175(a) states that “if significant harm to biodiversity resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated, or, as a last resort, compensated for, then planning permission should be refused.” Importantly, in paragraph 170(d) local councils are instructed to ensure that planning policies and decisions should contribute to and enhance the natural and local environment by “minimising impacts on and providing net gains for biodiversity, including by establishing coherent ecological networks that are more resilient to current and future pressures.”

 The NPPF also refers to Government circular 06/2005(link to https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/11481/143792.pdf) and 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 (now Natural England) 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.”

Natural England does not routinely comment on planning applications unless sites with statutory protection (such as SSSIs) are affected. However they have published Standing Advice on European Protected Species which can be found here:  (link to https://www.gov.uk/guidance/protected-species-how-to-review-planning-applications#standing-advice-for-protected-species).

 Homeowners undertaking simple repairs and maintenance works where bat roosts are present do not generally require special licences and are entitled to receive free advice from Natural England (add link to https://cdn.bats.org.uk/pdf/Our%20Work/Guide_-_The_Natural_England_Roost_Visiting_Service.pdf?mtime=20181105154129) by contacting  the National Bat Helpline on 0345 1300228. All developments involving planning permission that affect bats or their roosts will require a European Protected Species Licence once planning permission has been granted and before work commences. This may also apply to large projects, such as complete re-roofing, even where planning permission is not required.

 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."

 Bats and the Planning Process

 The regulations and guidance referenced in the first part of this article make 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 include details of the surveys which have been undertaken and, if necessary, details of mitigation and compensation to be applied. Applications which do not include sufficient data, or have not been carried out in line with Good Practice Guidelines published by the Bat Conservation Trust, should be rejected.

 In order to help individuals, developers and local councils to determine the types of applications for which a bat survey should be carried out  the Partnership for Biodiversity in Planning has recently launched an online wildlife assessment check that can be found here (link to https://www.biodiversityinplanning.org/wildlife-assessment-check/)

 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 adversely affected by a development then Natural England 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 or their roosts destroyed, 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 European Protect Species licence has met all three of the necessary conditions. Similarly if councils have failed to take sufficient account of protected species in determining applications (for instance if no surveys have been submitted or if they have been left to be done under a condition) there may be grounds for an appeal or complaint to the local government ombudsman.

 Role of the Bat Group

 Most bat work is carried out under the authority of conservation and scientific licences issued by Natural England under the terms of the Conservation of Habitats and Species Regulations and 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 local councils, the Surrey Wildlife Trust and firms of environmental consultants.

Finding an ecological consultant

The Chartered Institute of Ecology and Environmental Management provides advice on this, including a searchable directory of Registered Practices: see https://cieem.net/i-need/finding-a-consultant/ The website also includes a directory including most of its members, so that if you have a consultant in mind you can check whether they are part of this body and thus bound by its code of professional conduct: see https://cieem.net/i-need/about-our-members/members-directory/

 Conclusion

 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 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.