EPS are protected under the Conservation of Habitats and Species Regulations 2017, which lists several offences (see European Protected Species). If you have a valid purpose, we can grant you a licence to undertake the work legally. This page cannot cover all aspects of the law, but may help you decide whether a licence is necessary.
When would works require a licence?
A licence is required for anything that would be an offence under the Regulations. For example, this could include works which would disturb (as defined in the legislation) bats or dormice, damage a bat roost, or damage or destroy a breeding site of great crested newts.
NRW can only grant a licence if the following three tests are met:
- The purpose of the work is for preserving public health or public safety or other imperative reasons of over-riding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment
- There is no satisfactory alternative
- The action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status (FCS) in their natural range
This last test might require that the work is modified to avoid or minimise adverse effects (mitigation), or that an alternative breeding site/resting place or habitat is provided instead to safeguard the FCS (compensation). Either way, you will need the advice of an ecological consultant.
Along with filling in the licence application form, the consultant will need to write a method statement explaining how the work will be done to minimise any detrimental effects. For further guidance, see ‘Information to be provided in a European Protected Species licence application’.
When might I work without a licence?
There might be situations in which you could continue without a licence. If the work can be organised in such a way that there would be no offences committed (ie no damage or destruction of a breeding site/resting place, no capturing, killing or injuring of individuals, no taking or destruction of eggs, and no disturbance), then there is no need for a licence.
If the work involves any interference with the breeding site/resting place, this must be done at a time when there would be no disturbance caused, and it must be restored in time for the animal to use it again in the same way as it had done so previously. This means that it must be a like-for-like replacement (ie same materials and access points for a bat roost, same habitat for dormice / otters / great crested newts), and that it must be available immediately on completion of the work (ie not requiring a period of establishment). In other words there must be ‘Continued Ecological Functionality’. The Welsh Government and Defra are preparing to publish guidance on this.
This is a difficult area legally and your consultant will be able to advise you further. It is advisable that the consultant writes a Method Statement for the work, even though a licence is not required, and that you agree it with NRW before work starts. It might also be appropriate for the consultant to brief all staff working on the site. This reduces the chances of offences being committed and makes the process transparent and accountable.
The Method Statement should provide contingency plans of what actions will be undertaken (and by whom) if any protected animals are encountered during the course of the work. This could be seeking the advice of the consultant ecologist and/or NRW to decide whether the disturbance is minimal and work can continue without the need for a licence.
Developers should be aware that if work is held up or modified and there is a possibility that animals will be disturbed, or a breeding site / resting place will be unavailable to them (even if only temporarily), they should apply for a licence in good time.
If a building with a bat roost requires re-roofing or repair work, you would not need a licence if:
- the existing materials are replaced like-for-like (ie similar type of roofing slates, similar felt or membrane)
- the same access points are retained and there are no structural changes made to the roost
- the work is done whilst bats are absent and is completed before they would normally return to the roost