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Jon's blog: Strict enforcement of tough new protected species legislation is likely

On 21 August tough new environmental legislation came into force with a view to strengthening conservation measures relating to European Protected Species and their habitats. These changes, which had been ordered by the EU, seek to tighten UK regulation while simultaneously closing any loophole that might conceivably allow offenders to avoid prosecution by claiming incidental damage.

Since then the Department for Environment, Food and Rural Affairs (Defra) has approved an extended list of priority species and habitats requiring protection, which will be used to guide future government approved conservation action across the whole of the UK. This list is based on the most comprehensive analysis ever undertaken in this country, and contains some 1,149 species and 65 habitats listed for priority conservation action under the UK Biodiversity Action Plan (BAP). This up 577 species and 49 habitats from the last BAP in 1997. New introductions include some once common species such as hedgehogs, house sparrows and starlings.

Natural England has already warned that strict enforcement of this new legislation is likely, and the industry must be prepared for this. No longer will it prove an adequate defence for a construction or utility company to suggest that damage to any European Protected Species or their habitat was accidental, or down to the fact that the person concerned had no knowledge of the existence of a species on a specific site.

The need to obtain a thorough environmental survey prior to work commencing therefore takes on increased significance for any construction company. Given the growing list of species of both plants and animals now classified as protected, no area can be designated as “safe” without a detailed survey.

It is not all bad news. Whilst the presence of protected species can undoubtedly prove problematical, it need not completely rule out planned works. Relocation is also still allowable, provided it is carried out by protected species licence holders and a suitable alternative site can be found or created.

The types of animals classified as European Protected Species and most likely to be encountered here in the UK include several types of bat, otters, dormice, water voles, great crested newts, Natterjack toads and some butterflies. Prosecution penalties currently range from fines of up to £5,000 to a six month prison sentence, but perhaps of greater significance for most companies remains the unwanted publicity that the contravening of such regulations is likely to stimulate.

Jon Abbatt is development sector manager with environmental consultancy ADAS

European Protected Species found in UK
Bats, Horseshoe (all species) Rhinolophidae
Bats, Typical (all species) Vespertilionidae
Common Otter Lutra lutra
Dolphins, porpoises and whales (all species) Cetacea
Dormouse (but not edible or fat dormouse) Muscardinus avellanarius
Great crested newt (or warty) Triturus cristatus
Large Blue Butterfly Maculinea arion
Marine Turtles Caretta caretta, Chelonia mydas, Lepidochelys kempii, Eretmochelys imbricate, Dermochelys coriacea
Natterjack Toad Bufo calamita
Sand Lizard Lacerta agilis
Smooth Snake Coronella austriaca
Sturgeon Acipenser sturio
Wild cat Felis silvestris

European Protected Plants found in UK
Creeping Marshwort
Early Gentian
Fen Orchid
Floating leaved water Plantain
Killarney Fern
Lady's Slipper
Shore Dock
Slender Naiad
Yellow Marsh Saxifrage

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