Protected Species and Biodiversity: A Guide for Planners and Ecologists

Introduction

A green and pleasant land?

Over time, the British, and especially the English, landscape has come to be viewed through some sort of soft-focus lens as a green idyll (Rackham 1986). Add in the bucolic playing of brass bands, and there is a dreamy sense of yesteryear when all was well and plentiful.

After Blake (1808) set out his vision of England’s green and pleasant land, the power of this image grew, blossoming with its incorporation in the music of the hymn Jerusalem (Parry 1916; Elgar 1922). The apparently verdant English landscape has now achieved almost mythical status.

Like most myths, there is a risk that pricking the balloon will deflate the rhetoric and replace it with a harsher reality. For decades, there have been reports of species declines and losses across the UK, gradual impoverishment of the urban and rural landscapes, and the hollowing out of their biodiversity (Cocker 2018; Carrington 2019; Environment Agency 2022). The periodic State of Nature Reports (Hayhow et al. 2019; Burns et al. 2023) paint a progressively less and less rosy picture for the UK, detailing reductions and geographic retractions across a wide range of species groups from insects through to birds and orchids. With approximately 40% of species in moderate or steep decline – and this from an already heavily depleted background state (Sheail 1998) – Britain is regularly described as being ‘among the most nature-­depleted countries in the world’ (DEFRA 2023). Even a group as resolutely apolitical, and scientific, as the UK’s mammal society (Mammal Society 2023) remarked:

One in four of our native mammals is threatened with extinction, and many others are in decline. With Britain now recognised as one of the most nature-­depleted countries in the world, urgent action is needed.

That is not the picture of a pleasant land, and perhaps not even a green one (Helm 2019).

Many of these biodiversity losses have occurred as agriculture has changed, and with it the mosaic landscape which supported a wide range of formerly common species (Cocker 2018; RTPI 2019; Hayhow et al. 2019; Burns et al. 2023). We are still losing the remaining ancient woodland, meadows, hedgerows and other habitats at an alarming rate. Gone too are huge numbers of insects, birds and other plants and animals reliant on them for survival (Hayhow et al. 2019; Burns et al. 2023). These include moths declining by 88%, ground beetles by 72% and butterflies by 76% (Carrington 2019). Between 1970 and 2010, 75% of the 20 million farmland birds were lost. Between 2002 and 2013 more than half of all of UK species declined (Tree 2018). As the UK’s Natural History Museum put it in 2020: the UK has led the world in destroying its natural environment (NHM 2020). That is obviously nothing to be proud of.

Many of the changes have seen the breakup of once continuous blocks of habitat into much smaller fragments or the repeated salami-slicing of residual blocks of habitats (Cocker 2018). As a result, each supports disproportionately fewer individuals of a species, or numbers of species, than before, and many of these are common and the same. With it comes an increased risk of extinction too: a future faced by 14% of the UK’s species in 2019 (Hayhow et al. 2019) and 16% in 2023 (Burns et al. 2023).

In spite of the English Government’s 25-year Plan for A Green Future for England (Gove 2018) and the Environment Bill (2021), the state of the English and the wider devolved administrations’ biodiversity resources are not something to celebrate. One in 6 species in Wales is at risk of extinction; this is more than 1 in 10 in Scotland and more than 1 in 10 in Northern Ireland.¹

Changes that have occurred in the farmed and upland areas of the UK have mostly been outside of the developmental planning system. Under a wide range of incentive payments, these show no obvious sign of stopping (Helm 2019). As a result, there is increased pressure on areas of land within the local authority planning system to help balance and stem the losses and keep connectivity between blocks of suitable habitats in urban and rural areas.

With an ever-growing demand for housing, a steadily increasing population and central and devolved governments committed to economic growth – but with a stated policy of having no net impact on the environment, as habitats are altered or lost (DEFRA 2016), and requiring a net gain of habitat for any new developments (NPPF (HMG 2021)); Scottish Government 2018; Gove 2018; Environment Bill 2021) – the pressures on natural resources continue to rise (Cocker 2018; Horner and Davidson 2020). Whether a balance can be achieved or not is uncertain.

These losses call into question the continuing capacity of the natural environment, and the remaining depleted ecosystems, to provide clean air, water, fertile soils and somewhere for everyday enjoyment (‘ecosystem services’) as our natural capital continues to be shredded (Helm 2019; https://www.naturalcapitalinitiative.org.uk; Environment Agency 2022). No matter what term is used, it is critical that all potential impacts that affect these resources are understood: individually and cumulatively. Many of these impacts will be assessed under the umbrella of the planning system.

Why do LPAs need help with protected species when evaluating planning applications?

For those without the necessary skills, knowledge (Oxford 2012; ALGE 2016; Snell and Oxford 2022) or time to research the literature (much of it is either too complex or general) when reviewing ecological and protected species data, local planning authority (LPA) officers rely on the quality of submissions and the probity of data and claims accompanying an application. If they are fortunate, and few are (HoL 2018), contracted-out ecological advice may be available for an LPA officer.

A series of reviews by the Association of Local Government Ecologists (ALGE 2013, 2016, 2020; Snell and Oxford 2022; Boulton et al. 2021) showed that the data normally provided to LPAs are inconsistent at best. Boulton et al. (2021) call for better data to accompany planning applications. In the decade since being first reported by ALGE (Snell and Oxford 2022), little has changed. As a result, the need for a single reference resource – however imperfect – that helps LPA staff weed out the good from the bad in ecological submissions is only likely to grow.

The role of this primer is to help identify those gaps for protected species – which form the core of ecological planning submission data – and to provide practitioners with a simple basis with which to make an informed, reliable appraisal of what is coming over their desk. It should also allow them to understand and evaluate the advice sometimes offered from elsewhere within the authority and to provide a serious reference point when queried – as they will be – by councillors and developers seeking to add pressure to push a proposal through.

How to use this book

For those wishing to understand the background to statutory protected species material in planning applications, its origins, LPA needs and the problems associated with delivering it at a local authority level, Chapter 1 is a short introduction. Chapter 2 looks at the iterations of Natural England and DEFRA (NED) guidance produced by Natural England (NE), and some of the practical problems associated with NE standing advice. These are developed in Chapter 4. Alternative approaches offered by several groups to the material in the standing advice are reviewed and evaluated, including a better, statutory, option operated in Scotland.

For any potential supplier of protected species material to planners, and for planners themselves, the brief Chapter 3 is important. It summarises the key components of the British Biodiversity Standard BS 42020 (2013). The Biodiversity Standard underpins the LPA’s expectations of data quality, availability and transparency in all planning applications, as well as why these are required in planning submissions.

Chapter 4 looks in more detail at the revised 2022 Natural England and DEFRA standing advice and some of the serious problems that remain, as well as how to deal with these in a positive and practical way. Eleven steps are given which, if applied, will provide what planners, sponsors and ecologists should expect when protected species (and non-protected species) are covered in a planning application. Understanding these steps helps when using the core tables of Chapter 5.

Chapter 5 is the main section of the guide and fills almost half of the space in the book. It can be used by itself but would benefit from readers looking at Chapter 3 and at the 11 steps given in Chapter 4. The first part of Chapter 5 introduces a suite of headings that should be covered for all protected species addressed in planning applications. These are worked through in detail in individual species-specific tables. Each table should be used by planners and applicants alike where the species occur to provide a common ground for the methods to be used, the recognition of limitations and the suitability of material that accompanies a planning application.

Chapter 6 looks briefly at the limited relationship between protected species and biodiversity net gain processes, as well as some of the challenges that remain as a result.

1. The Planning System, Protected Species and Biodiversity

When a planning application thumps onto a desk – or more usually makes a high-pitched ping! as it arrives in the computer in-tray – it contains a whole load of details. Among the issues listed in the set of cover sheets that normally accompany a planning application will be queries about protected species, biodiversity and geological conservation. This usually comes after flood risk and before foul sewage. It may well have tick boxes about protected species, the proximity of designated sites and waterbodies within 200 m. It is not exhaustive, and a naïve reader might be forgiven for thinking that biodiversity and protected species are therefore no big deal.

If biodiversity and protected species literally only tick two boxes, why should planners worry about biodiversity and ecosystem services (or natural capital as it has been renamed – Natural Capital Initiative https://www.naturalcapitalinitiative.org.uk) in planning applications?

This is because LPA planners are the first line of defence in terms of assessing and agreeing, or rejecting, planning proposals. They are the cornerstone of the edifices that are regional and national levels of biodiversity policy delivery and reporting, and they have a legal duty to cover biodiversity (NERC 2006; NPPF 2021; Environment Act 2021), which includes protected species.

1.1 The policy needs for biodiversity evaluation

As far back as 2006, as the updated National Planning Policy Framework (NPPF) (HMG 2021) notes, the Natural Environment and Rural Communities (NERC) Act of 2006 (HMG 2006) placed a clear duty on LPAs to deliver biodiversity and ecosystems conservation at the local level on behalf of central government. As NE’s (2022) guidance on planning puts it:

Section 40 of the Natural Environment and Rural Communities Act 2006, which places a duty on all public authorities in England and Wales to have regard, in the exercise of their functions, to the purpose of conserving biodiversity. 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, which should be seeking to make a significant contribution to the achievement of the commitments made by government in its Biodiversity 2020 strategy.

As well as the sense of duty, the other important term used here is ‘embed’. Embedding in this context means that everything should be seen through the prism of conserving biodiversity. Clearly, that requires a bit of skill and knowledge. Understanding what is needed, and how to do it, was apparently straightforward, and hopefully suitable guidance was available from Natural England (2022):

Guidance on statutory obligations concerning designated sites and protected species is published separately because its application is wider than planning and links are provided to external guidance.

That Natural England (2014 and 2022) guidance is covered in Chapter 2 and in detail in the Appendix. Little of it is suitable for LPA needs.

In addition to the 2006 NERC Act (HMG 2006), there is a clear duty under Section 17 of the Crime and Disorder Act 1998 to prevent wildlife crime, as outlined in the 1981 Wildlife and Countryside Act and as amended. Any incidents are reported to the police and their wildlife crime officers.

Without prejudice to any other obligation imposed on it, it shall be the duty of each authority to which this section applies to exercise its various functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that it reasonably can to prevent:

(1) crime and disorder in its area (including anti-social and other behaviour adversely affecting the local environment).

This includes biodiversity and protected species. Having raised expectations of a fully embedded appraisal of all planning applications by LPAs, NE sought to temper the risk of too much zeal – and attempted to put the genie back in the bottle – by stating that:

Local planning authorities should take a pragmatic approach – the aim should be to fulfil statutory obligations in a way that minimises delays and burdens.

The result is a bit of a Catch-22: cover in all aspects, but not so deeply that it causes problems to developers. It brings out an early use of the concept of burdens: something onerous that might, in some way, reduce the speed of the otherwise exemplary unencumbered developer. It of course assumes that LPAs know how to pragmatically minimise delays and burdens while still fulfilling statutory ­obligations – another Catch-22.

Just what are the statutory obligations that might prove burdensome to developers? In England they are covered in detail in the NPPF (HMG 2021). In chapter 15 of the NPPF it states that planning should contribute to conserving nature and securing net gains for biodiversity. Each of the devolved administrations has its own analogous statements or policies. The Northern Ireland Strategic Planning Policy Statement (2015, paragraph 6.171) recognises the statutory duty of LPAs to conserve biodiversity. The Scottish Planning Policy (2014) does much the same, and in paragraph 194 it recognises the vital services provided by ecosystems. In Wales, the term is resilience. Planning Policy Wales Edition 10 of 2018 links this duty to section 6 of the Environment (Wales) Act of 2016 by:

maintaining and enhancing biodiversity;

not causing significant loss of habitats or populations of species;

providing a net benefit to biodiversity;

maintaining and enhancing green infrastructure.

In addition, all 4 countries have their own biodiversity strategy documents, none of which were updated after 2020, although Scotland (Scottish Government 2020) created statements of intent.

As part of their statutory duties, LPAs must also protect designated sites Table 1.1). These vary from local nature reserves, designated by LPAs, through to sites of national and international importance, some of which carry multiple designations.

Table 1.1 The hierarchy of protected designated sites in the UK (RTPI 2019).

EC = European Commission; UNESCO = United Nations Educational, Scientific and Cultural Organization; NI = Northern Ireland; RSPB = Royal Society for the Protection of Birds

In addition, a 2015 decision by the Planning Inspectorate confirmed the duty of LPAs to include biodiversity when assessing permitted developments, while certain cases also confirmed the need to consider species and habitats covered by the amended 2017 Conservation of Habitats and Species Regulations (RTPI 2019).

What this all means is that LPAs cannot ignore protected species, biodiversity and ecosystem services in their daily approach and, as the RTPI (2019) noted, they would risk long and expensive legal cases if they did. As will be seen later, there is a difference between not ignoring and recognising protected species and biodiversity issues with the submission of suitable methods and data in a planning application.

1.1.1 LPAs and biodiversity: the strategic approach

Clearly, a reactive piecemeal approach will not work for LPAs. A decade or more ago, the Association of Local Government Ecologists (ALGE) set out in a flow chart the basic planning process (Fig. 1.1).

Figure 1.1 The simplified planning flowchart (ALGE).

Figure 1.1 underlines the need for good quality, up-to-date data and the importance of clear guidance at the LPA level to help potential planning applicants. At the same time, it also places pressure on the ability of LPA planners to critically understand and evaluate what is presented to them.

As will become clear, the ALGE and the Chartered Institute of Ecology and Environmental Management (CIEEM) are both working hard to improve the quality of data collected (CIEEM 2019a) and received by local ALGE members in local planning authorities. As a first step towards this, they jointly produced an Ecological Impact Assessment checklist (CIEEM 2019a), based on the need for data adequacy set out in clauses 6.2 and 8.1 of the British Biodiversity Standard BS 42020 (BSI 2013).

Table 1.2 shows the range of questions asked so that an LPA might tick off issues in any application. This has clear merit. However, it depends on the ability of the LPA to understand the quality and forms of replies provided by applicants. This, as will be seen later, is one of the Achilles’ heels of the LPA sector. The very fact that there are significant shortfalls in both the capacity and competence of LPA planners (see Section 1.3.1 and ALGE 2013; Snell and Oxford 2022) means that the checklist raises as many questions as it answers. In addition, as individual LPAs all operate their own versions of validation checklists (Abrahams 2019) – the things that they want to see in an application – and not all appear to match Table 1.2, there is an ongoing problem. Until LPAs are able to fully understand what is submitted to them in planning applications, it means that there is little chance of a truly objective, critical appraisal of the sort set out by ALGE and CIEEM. Understanding what LPAs say they want is an important first step.

Table 1.2 The CIEEM/ALGE (CIEEM 2019) checklist for ecological data accompanying planning applications (ALGE and CIEEM).

1.2 What do LPAs say they want?

Most LPAs – as would be expected under their biodiversity duties – have well-­developed biodiversity policies and strategies, which include the relevant sections of legislation. All note that these duties need to be applied in submitting and reviewing planning applications.

For anyone wishing to submit a document for planning purposes, it makes sense for the LPA to provide simple, clear guidance on what it expects. However, this varies widely between LPAs (Abrahams 2019). For example, Huntingdonshire District Council, a small district Planning Authority, identifies its biodiversity duties in policy LP 30 as part of its local plan up to 2036 (Huntingdonshire District Council 2019). Under LP 30 it refers to some of the procedural steps that any application must follow. Some of these are set out in a short checklist. And in practice, these steps would seem to be discretionary rather than mandatory: observed more in principle than practice.

By contrast, the sorts of clear checklists and guidance provided for applicants by Chichester District Council are very helpful (Table 1.3). Chichester’s concise 4-page resume sets out what it wants, why it is wanted and how these requirements should be met in any submission. It also says why it would fail an application. Details, and a clear checklist follow in 5 appendices. A similar approach is followed by Chelmsford District Council. Chelmsford’s appendices provide more detailed guidance on survey times and outline methods. Both Chichester and Chelmsford refer applicants to the Governmental Natural England and DEFRA species survey guidance for detailed methodologies. In contrast, Scarborough District Council (since subsumed into North Yorkshire Council) has a dated Biodiversity Action Plan (2004) and provides little by way of biodiversity guidance; it refers applicants to the Wildlife Assessment Check (WAC) for survey details (www.biodiversityplanning.org).

Table 1.3 Chichester protected species check list.

As Table 1.4 shows and Abrahams (2019) noted, there is little consistency in the approaches of councils, risking variation in the quality and robustness of the data sought, provided or received. That in turn may impact on how well what comes across the desk is understood.

Table 1.4 The differing expectations and requirements of 4 LPAs

In order to try to help planners, especially those with limited staffing levels, such as Scarborough/North Yorkshire, the Biodiversity in Planning’s WAC (PBP 1, see section 2.3) is being promoted as a helpful tool to guide applicants along the decision stages in order to end up with a valid application. Ideally, it will help preclude errors and insufficiencies in an application, resulting in an easier job for planners. This is examined in Chapter 2.

1.2.1 Why reliable data matters in the planning system

As with many elements of public discourse, where there are elements of law and contention, the planning system is essentially an adversarial one. This places the quality and reliability of data at the very heart of the matter.

At its simplest, an individual, group or company may wish to develop or alter part or all of a site. This could be a building, a vacant plot or a larger area of land. Details of that proposed change form the core of a planning application submitted to the LPA. The application will normally be accompanied by a range of subsidiary documents which set out in detail how the application appears to meet local planning legislation and policies.

Once submitted, and then validated, the application documents are open to public scrutiny. This is also when the adversarial element can kick in, as the data presented, and how they are interpreted, can be called into question by both the LPA and those with an interest in the outcome. These may be the immediate neighbours, or a range of groups opposing larger and more contentious applications. It is at this point that the reliability of the data submitted to the LPA may be queried. Being able to understand the implications of possible biodiversity changes caused by a planning application sits squarely in the job description of local authority planners (RTPI 2019). This may be a problem as LPA staff levels continue to shrink (Oxford 2012; ALGE 2013; HoL 2018; Snell and Oxford 2022).

It is a common political axiom: there is ‘wastage’ to trim in any bureaucracy. In the UK, central and devolved governments have cut many posts across all sectors at national and local levels, including planning. Among those sections of the LPA ‘fat’ most targeted have been the planners, the source of ‘burdensome’ delays to developers (Gove 2018). The ALGE has watched, and reported (ALGE 2013; HoL 2018; Snell and Oxford 2022), as specialist ecologists have been lost from LPAs. With this has come a reduction in the capacity of the authorities to effectively evaluate planning applications from an ecological and biodiversity standpoint. LPA ecologists have not been immune from the metaphorical axe, with more work expected to be done by those that remain.

Whether or not there is any ‘fat’ or slack in the planning divisions of most LPAs is debateable (Oxford 2012; ALGE 2013; HoL 2018; Snell and Oxford 2022). Regardless of size, the UK planning system operates on a simple premise: evaluating whether a planning application may or may not have any negative impacts (on people, on landscapes or the setting of buildings, as well as on protected species and general bio or geodiversity) before agreeing or refusing permission. Understanding what these impacts might be, and if these will be significant, minor, absent or positive, requires three simple elements in order to assess each application.

The first is the provision of good, reliable and valid datasets to planners. Without these, the merits of the case being put forward by the developer cannot be assessed.

The second is the availability of detailed and suitable guidance for use by planners that will allow meaningful evaluation of those data and their claims.

The third is a large enough body of suitably qualified LPA planners or available staff, with enough time, to use that guidance to make informed decisions and provide viable and credible recommendations to