2007 legislation changes
Substantial changes to the legislation on European Protected Species came into force in October 2007 and there are some very important implications for developers and their consultants. The Conservation (Natural Habitats &C.) (Amendment) Regulations 2007 now apply in England and Wales.
Key changes are as follows:
· Some offences have become more complex and, critically, former legal defences, including ‘intentional result of a lawful operation’ have been removed. The developer (and their ecologist) could now be prosecuted, even if the offence occurred accidentally
· The developer is now the named licence holder and responsibility for accuracy of the application and licence implementation rests with the developer
· There is now a specific offence for breach of an EPS licence condition. This highlights the need for the developer and ecologist to work closely together. Both parties must also maintain a detailed paper-trail throughout a project if ‘due diligence’ ever needs to be demonstrated
· Consultation with the Local Planning Authority must now take place before the licence application can be submitted
· There are now greater powers of inspection and investigation for police and conservation officers of the statutory agencies
· Increased complexity of offences and the removal of legal defences mean that offences are now ‘strict liability’ – in other words there is no need for a prosecutor to prove intent. This means that survey will have to be much more thorough than previously
Licence application timescales
The need to consult the Local Planning Authority ‘up front’ can add potential delays to the timescale for preparation and submission of a licence application. Our current advice to clients is to allow up to 2-3 months from instruction to an EPS licence being granted. This delay could have significant consequences for timing of site works and it highlights the need for timely engagement of a professional ecologist. The fauna which most often require licence applications are bats (all species), great crested newt and dormouse and, as ever, our advice is to instruct survey as early as possible and seek early advice regarding potential licensing requirements.