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Articles 23rd Mar 2016

New protected species licensing approach from Natural England

Some of you may have read the article by Penny Simpson “Meeting the favourable conservation status for European Protected Species: A different approach” in the September 2015 edition of CIEEM’s journal “In Practice”.

The article scrutinised the “site based” approach to Great Crested Newt (GCN) licensing set out in Natural England’s GCN Mitigation Guidelines. It suggested that a more strategic approach may be appropriate, under which compensatory habitat could be provided further afield and under which there would be a move away from the view that “every newt is sacred”.

At the same time we understand that there have been ongoing discussions between Defra and Natural England over the appropriate approach to European Protected Species licensing and a positive response to Penny’s ,article from Natural England has appeared in CIEEM’s December 2015 edition of “In Practice”.

Linked to this, Freeths LLP has recently had a very positive licensing outcome for one of its developer clients.

Freeths, working together with consultancy FPCR, has obtained from Natural England a GCN licence for its client, permitting a 54-dwelling housing development in Derbyshire to proceed:

  • Without requiring GCN fencing around the construction zone
  • Without requiring GCN trapping
  • Requiring only a destructive search prior to commencing development
  • Permitting killing of GCN in the event that any GCN remains in the construction zone following the destructive search
  • Thereby permitting development to proceed over the autumn and winter 2015/2016 and avoiding delays of at least 9 months and very significant costs.

In this case the nearest breeding pond was sited about 310m from the construction site and, together with a few other ponds, contained a low population of GCN. The site nevertheless contained suitable habitat and a judgment was made by the developer team that GCN could well be in the construction zone.

Natural England had delayed in considering the licence application at the outset and had also initially refused the application on the basis that the GCN data presented was inadequate.

Natural England then changed its mind and agreed that the data was adequate. But by that time it was the start of October 2015 and so there was no likelihood that a normal fencing and trapping approach could be accommodated before the first likely frost. Following representations from Freeths, the licence finally issued by Natural England averted any need for the developer to carry out a lengthy fencing / trapping process so avoiding significant cost and delay for the client and allowing the development to proceed over the winter.

Freeths presented arguments in the licence application’s Reasoned Statement in support of an urgent need for the licence / delivery of the development. Freeths also drafted sections for the Method Statement setting out how this approach was consistent with the “favourable conservation status” test.

Freeths sees the grant of this licence as a significant turn in the tide in Natural England’s approach. There is clear recognition now that “every newt is not sacred” and is now believed that, with the right arguments and submissions, the door is now open to push harder for less onerous EPS licences.

On 22 December 2015 we received Natural England’s “EPS Mitigation Licensing Latest Developments” newsletter. This informs us that NE hopes to launch a public consultation on four new EPS policies in February 2016 which will allow greater flexibility for those needing licences. Our understanding is that this consultation is a formal process to consider putting into practice a less onerous approach. Watch this space!

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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