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Natural England EPSM Licensing: an overview of the law and the process

The following is distilled from Natural England's publication European Protected Species: Mitigation Licensing – How to get a licence and outlines how and when licences should be applied for, and how ECOSA will assist with that process. We have also posted answers to some of the questions we are frequently asked about EPSM Licensing.

It should be noted that where an appropriate licence has not been secured and European Protected Species (EPS) come to light during works, all work must stop until ecological assessment (to attain the status of species involved) has been made and a licence has been obtained, if required. Such a delay following the commencement of works can prove extremely costly to a project and more than justifies an investment in thorough ecological surveys as part of the project preparation.

The Law

The Conservation of Habitats and Species Regulations 2010 (as amended) provides protection to the following European Protected Species:

Animals Plants
Bats, Horseshoe (all species) Creeping Marshwort
Bats, Typical (all species) Early Gentian
Common Otter Fen Orchid
Dolphins, porpoises and whales (all species)   Floating-leaved Water Plantain
Dormouse Killarney Fern
Fisher's Estuarine Moth Lady's Slipper
Great Crested Newt (or warty) Shore Dock
Large Blue Butterfly Slender Naiad
Lesser Whirlpool Ram's Horn Snail  Yellow Marsh Saxifrage
Marine turtles
Natterjack Toad
Pool Frog  
Sand Lizard
Smooth Snake
Sturgeon
Wild Cat 

Under European and UK law it is an offence, with certain exceptions, to:

  • deliberately or recklessly capture or kill any wild animal of an EPS;
  • deliberately or recklessly disturb any such animal;
  • deliberately take or destroy eggs of any such wild animal;
  • damage or destroy a breeding site or resting place of such a wild animal;
  • deliberately pick, collect, cut, uproot or destroy a wild plant of a EPS; or
  • keep (possess), transport, sell or exchange, or offer for sale or exchange, any live or dead wild animal or plant of a EPS, or any part of, or anything derived from such a wild animal or plant.

Licensing - The Criteria

The exceptions under which licences are granted are:

  • (a) scientific or education;
  • (b) ringing or marking, or examining any ring or mark on, wild animals;
  • (c) conserving wild animals or wild plants or introducing them to particular areas;
  • (d) protecting any zoological or botanical collection;
  • (e) preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment;
  • (f) preventing the spread of disease;
  • (g) preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber or any other forms of property or to fisheries.

Licences can only be issued by Natural England where the proposed activity meets the criteria for one of the purposes above (typically (e)) and the following two criteria (together commonly referred to as the "three tests‟)

  • that there is no satisfactory alternative; and
  • that the action authorised will not be detrimental to the maintenance of the species concerned at a favourable conservation status in their natural range.

Mitigation licences, sometimes referred to as Development Licences, vary in terms of scale and complexity but would be required for:

  • Large scale activities. Examples are the construction of new roads, schools, hospitals,business parks, housing estates, pipelines and mineral extraction.
  • Medium scale activities. Examples are barn conversions, small local housing schemes, conversion of redundant buildings and local infrastructure such as drainage schemes.
  • Smaller scale activities. Examples are loft extensions, repairs/maintenance to buildings including dwelling houses, boreholes, archaeological investigations and the felling of unsafe urban trees.

Mitigation licences, and other EPS licences, are awarded by Natural England, who also ensure compliance, enforce licence conditions and, where appropriate, take legal action.

Avoidance

A licence is not always necessary. Natural England advocates the use of good practice and avoidance measures to minimise the impact of a proposed activity on wildlife and in particular EPS. Licensing should be seen as the last resort where all other alternative ways of avoiding impacts on the species have been discounted. ECOSA will advise whether works can proceed in the absence of a licence; it is not Natural England's role to do this.

Deciding to apply for a licence

ECOSA will advise you on the likelihood of the proposed activity resulting in a breach of the legislation and how to take avoidance measures.

The ultimate decision on whether to apply for a licence or not will rest with you, as the person responsible for commissioning the proposed activity, taking into account our advice.

Adequate surveys carried out at the right time of year are crucial in ensuring that the presence of EPS is detected. Natural England's advice is that, based on adequate survey data:

  • if the consultant ecologist considers that the proposed activity is reasonably likely to result in an offence under EPS law, a licence will be required; or
  • if the consultant ecologist considers that the proposed activity is reasonably unlikely to result in an offence under EPS law, then no licence is required.

However, where no licence is required, Natural England would urge that reasonable precautions be taken to avoid affecting EPS during works. If EPS are found, then work should cease until you have assessed (in consultation with a consultant ecologist) whether you can proceed without committing an offence. A licence should be applied for if offences are unavoidable and the work should not be re-started until a licence is obtained.

Preparing the licence application

ECOSA typically takes responsibility for the preparation of Natural England licence applications for clients. However, it is up to you to identify the named individual who will be the licensee responsible for ensuring compliance with the licence and its conditions; and to provide adequate information for the statement of purpose for the development, for example from a Design and Access Statement or a Planning Statement.

The licence application pack consists of the application form, a Method Statement form and a Reasoned Statement form. The Reasoned Statement of Application (RSA) sets out the need for the development and covers the 'no satisfactory alternative' test while the Method Statement addresses 'favourable conservation status' tests and presents specific mitigation proposals. ECOSA will consult with you regarding the viability of any changes to the development proposal or schedule of works and other factors potentially within your control. The application will be signed both by the individual being designated licensee and by the ECOSA consultant responsible for the project.

When to submit the licence application

Most developments requiring an EPS licence will also be subject to planning consents. Natural England expect the planning position to be fully resolved, including all conditions relating to wildlife, before a licence application is submitted.

Some activities, for example tree felling or archaeological or geological site investigation prior to development, may not require planning permission but may still need an EPS licence. Once licensed site investigation work is complete, a new licence application will need to be submitted for any subsequent development works.

ECOSA normally submit applications to Natural England on behalf of our clients.

Natural England's decision

Natural England aim to determine and issue decisions within 30 working days of receipt of a fully completed application pack, and will notify the applicant and ECOSA of their decision.

In some cases, applications may be refused with further information requested to enable the application to be granted. However, Natural England will now discuss with the consultant ecologist any requests for minor changes or points of clarification and so potentially avoid the time delays associated with the traditional further information request. 

It should be noted that there is no fast-track method of obtaining a licence and sufficient time should be allowed within a project's timescales to carry out necessary surveys and obtain a licence.

When a licence is awarded

Mitigation licences are issued by Natural England in the name of the applicant (who is thereafter referred to as the licensee). It will also name ECOSA as the ecological consultant working on behalf of the licensee. All mitigation licences will name the relevant species, the permitted actions and where appropriate the maximum numbers to be affected. A licence will also contain a standard set of conditions. In most cases the licence will comprise a three page document and an annex written by Natural England which sets out how the works are to be carried out.

On 21 November 2007 a new offence was introduced for non-compliance with any EPS licence issued after that date. Failure to adhere to the terms of the licence (which includes the prescribed methodology) will result in Natural England taking enforcement action against the licensee. A person found guilty of an offence is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale (£5000 in November 2011), or to both. It is therefore important that the terms of the licence are adhered to at all times.

See our frequently asked questions about Natural England Licensing for more information about costs and practicalities.