Breeding birds

Advice for developers on protected species issues in Greater London

Breeding birds are legally protected species that are likely to occur on development sites throughout Greater London wherever suitable habitat occurs.

Sites that contain areas of trees, scrub, extensive grassland, ponds, lakes or ditches are likely to support breeding birds.

Some of London’s rarer, specially protected breeding birds (such as peregrine falcon and black redstart) nest in locations with little of no natural habitat.  Other species such as swifts, house martins and house sparrows also nest in buildings.

English Nature London Office 
Devon House, 12-15 Dartmouth Street, Queen Anne’s Gate, London SW1H 9BL
Telephone: 020 7340 4870 Fax: 020 7340 4880
Email: london@english-nature.org.uk

INTRODUCTION

All wild birds are protected species.  They are protected by specific legislation and through Government planning policy guidance.

This advice note aims to explain, as simply and briefly as possible, how developers should seek to comply with legislation and understand planning policy guidance.  The appendices provide more detailed wording from legislation and guidance, and contact details for relevant organisations. 

This note is not intended to be a definitive guide.  Reference to the relevant Acts and Planning Policy Guidance notes is recommended.

Other protected species such as bats and great crested newts are protected by additional legislation and are covered by separate advice notes.

STATUTORY PROTECTION OF BIRDS

Birds are protected under the Wildlife and Countryside Act 1981 (as amended).

With certain exceptions, it is illegal to:
•	Intentionally kill, injure or take any wild bird
•	Intentionally take, damage or destroy the nest of any wild bird while that nest is in use or being built
•	Intentionally take or destroy an egg of any wild bird.

Both poultry and game birds are exceptions.  Also excluded are birds listed on Schedule 2 of the Act  (i.e. traditionally hunted birds, mostly wildfowl) for which the above actions only become offences during a “closed season”.  

Schedule 1 of the Act contains a list of birds for which all offences carry harsher penalties and for which the following extra protection applies.  Under the legislation it is illegal to:
•	Intentionally or recklessly disturb a Schedule 1 bird while it is building a nest or is in or near a nest containing eggs or young
•	Intentionally or recklessly disturb dependent young of such a bird.
 
Schedule 1 birds that regularly breed in London include the kingfisher, black redstart, peregrine falcon, hobby, barn owl and little ringed plover.

NB Only those sections of the Act relevant to this advice note have been described.  Other sections prohibit certain methods of killing and catching birds; prohibit the possession or control of any wild bird or egg taken in breach of the Act; restrict the sale or other forms of trade of wild birds and their eggs if not bred in captivity (except Schedule 3 birds); restrict the exhibition of birds; prohibit the possession of Schedule 4 species unless registered and ringed; and set standards for keeping birds in captivity.

The Developer’s Statutory Obligations

The minimum that developers are required to do is satisfy the statutory regulations provided under the Wildlife and Countryside Act.  The wildlife legislation applies throughout the development process before and after planning permission is given, as well as for developments that do not need planning permission.

There is no provision for licensing potential offences during development.  The defence in the Act permits otherwise illegal activity if it is the “incidental result of a lawful operation and could not reasonably have been avoided”.  Implementation of a valid planning permission constitutes a lawful operation but the developer must still put in place reasonable measures to avoid killing, disturbing or damaging wild birds, their nests, eggs and young.  In practice this requires the developer to implement some sort of mitigation strategy if breeding birds are, or are likely to be, present on the development site.  Ultimately it is for the developer, using the advice of consultants if necessary, and in discussion with the local planning authority and English Nature, to determine what would be considered reasonable.

NB Although this defence can be applied in respect of Schedule 1 birds, a much greater burden of proof would be required to ascertain that the activity “could not reasonably have been avoided”.

If breeding birds are known or suspected to occur on a site, the developer may need to employ an ecological consultant to carry out a breeding bird survey and produce an appropriate mitigation strategy.  Failure to undertake surveys and develop mitigation strategies can lead to delays in the determination of a planning application, refusal of a planning application, or delays in implementation if there has been a lack of foresight as to the scope of any necessary mitigation.

PROTECTION THROUGH THE PLANNING PROCESS

Developers should be aware that developments that satisfy the legislation do not necessarily fulfil the spirit of the planning guidance.

Developers should note that during the determination of planning applications, local planning authorities should have due regard to Planning Policy Guidance: Nature Conservation (PPG9).  The intention of the planning guidance is to ensure that protected species and their habitats are safeguarded without the need to invoke the law.

PPG9 states that the presence of a protected species is a material consideration when a local planning authority is considering a development that, if carried out, would be likely to result in harm to the species or its habitat.  (Please see Appendix 1 for fuller text.)

Planners should be using the guidance in PPG9 as a tool to safeguard protected species and their habitat from development or, if the site can be developed, to obtain necessary mitigation.  In fulfilling their duties, planning authorities should ask developers to provide the following information before planning applications are determined:

(a)	a breeding bird survey, which identifies the habitat used by breeding birds, the species present and the number of breeding bird territories  
(b)	an assessment of the development’s impact on breeding birds
(c)	a mitigation strategy

Local planning authorities are unable to properly consider protected species issues without this information.  If developers follow best practice, they should provide the above information before submitting proposals to the planning authority so mitigation strategies can be discussed and formulated before planning proposals are finalised.

The local planning authority can attach planning conditions or obligations on determination to ensure the intentions of PPG9 are realised.  For example, if an appropriate mitigation strategy is provided as supporting information, a condition could be attached requiring the implementation of a detailed mitigation plan.
Unitary Development Plans 

Development plans should provide information regarding the local authority’s policy on protected species.  Within local development plans, policies for protected species should give clear guidance to developers about the criteria that applications would have to meet, and the likelihood of planning permission being granted, for proposals affecting protected species.

Even if the development plan contains no protected species policies, developers should still address breeding bird issues when submitting planning applications, as PPG9 indicates that the local planning authority should consider the requirements of these species (irrespective of whether it has a policy).

BEST PRACTICE

Developers should consult with organisations, such as the English Nature local team, local Wildlife Trust or local biological records centre on breeding bird records.  Ecological consultants should be employed to survey proposed development sites that support habitat suitable for breeding birds before planning proposals are submitted (or even before the land is acquired).

If breeding birds are present, developers should employ ecological consultants to assess the impact of the development on the breeding birds and, if necessary, produce a mitigation package and submit these with their planning application.

Early awareness of breeding birds on a site means developers can produce a mitigation strategy before planning proposals become finalised, e.g. alter plans to accommodate habitat for nesting birds.  This can save developer’s resources and time as well as produce a more satisfactory planning application and mitigation strategy for all parties.

There is always the possibility that breeding birds will be found during development even after surveys have been carried out.  In which case, any works that may be in breach of the law should cease and advice sought from an ecological consultant.

Key players - their ROLES AND responsibilities

Developers
•	If the presence of breeding birds is known or suspected, provide the local planning authority with survey results, an assessment of the development’s impact and a mitigation strategy if necessary.
•	Comply with the legislation and planning conditions.

Local planning authorities
•	Take breeding birds into account as a material consideration when determining planning applications as set out in PPG9.
•	Ensure protected species are taken into account in preparation of Unitary Development Plans, other Local Plans, planning briefs etc.
•	Monitor planning conditions and obligations.

English Nature London team
•	Provide generic advice to developers and consultants regarding surveys and mitigation.
•	Give guidance to local planning authorities on site-specific issues where breeding birds may occur.
•	Provide general advice to local authorities regarding planning applications and forward planning matters such as local development plans.

APPENDIX 1

STATUTE AND GUIDANCE

Legislation - The Wildlife and Countryside Act 1981 (as amended) transposes into UK law the Convention on the Conservation of European Wildlife and Natural Habitats (commonly the ‘Bern Convention’).  Schedules 1-4 of the 1981 Act are concerned with birds.  With certain exceptions it is an offence to:
•	intentionally kill, injure or take any wild bird
•	intentionally take, damage or destroy the nest of any wild bird while that nest is in use or being built
•	intentionally take or destroy an egg of any wild bird.

The exceptions are:
•	poultry
•	game birds – pheasant, partridge, black grouse, red grouse and ptarmigan
•	Schedule 2 birds during their closed season.

A wild bird is defined as a bird of a kind that is ordinarily resident in, or is a visitor to, Great Britain in a wild state except poultry and game birds.  Also excluded are the traditionally hunted birds listed on Schedule 2 for which the above actions only become offences during a “closed season”. 

Schedule 1 birds are subject to stiffer penalties for all offences and also carry extra protection.  For these birds, it is illegal to:
•	intentionally or recklessly disturb a Schedule 1 bird while it is building a nest or is in or near a nest containing eggs or young
•	intentionally or recklessly disturb dependent young of such a bird.

Planning Guidance - PPG9 (1994) paragraph 47 states:

The presence of a protected species is a material consideration when a local planning authority is considering a development proposal which, if carried out, would be likely to result in harm to the species or its habitat.  Local authorities should consult English Nature before granting planning permission.  They should consider attaching appropriate planning conditions or entering into planning obligations under which the developer would take steps to secure the protection of the species, particularly if a species listed in Annex IV to the Habitats Directive would be affected.  They should advise developers that they must conform with any statutory species protection provisions affecting the site concerned.

APPENDIX 2

Stages of THE planning PROCESS FOR A SITE where breeding birdS may be present

Pre-application stage
1.	Consult with appropriate bodies (e.g. English Nature Area Team, local Wildlife Trust, local Biological Records Centre) on protected species records and/or employ ecological consultants to survey application site for breeding birds using best practice techniques.
Responsibility:	Developer	

2.	Employ consultants to assess the impact of the development on any breeding birds found to be present and if necessary produce a mitigation package. 
Responsibility:	Developer	
Application stage			   	
3.	Consider validity of survey findings and suitability of proposed mitigation with advice from English Nature and other relevant conservation bodies if necessary.  Request any additional information and negotiate any required amendments.  Agree the mitigation package with the developer. 
Responsibility:	Local Planning Authority	

4.	Determine application in the light of the information provided with regard to PPG9 and the statutory provisions for breeding birds.
Responsibility:	Local Planning Authority	

5.	Attach conditions or planning obligations to any planning permission granted to ensure the implementation of the mitigation package.
Responsibility:	Local Planning Authority	
Post-application stage				
6.	Manage and monitor to ensure that planning conditions and the mitigation strategy are adhered to. 
Responsibility:	Local Planning Authority/Developer	

APPENDIX 3

USEFUL CONTACTS	

English Nature London Office:

English Nature
Devon House
12-15 Dartmouth Street
London SW1H 9BL

020 7340 4870
london@english-nature.org.uk
	
English Nature National Office:

English Nature
Northminster House
Peterborough
PE1 1UA

01733 455000
www.english-nature.org.uk	

London Wildlife Trust:

Skyline House
200 Union Street 
London SE1 0LW

020 7261 0447
www.wildlondon.org.uk
	
GLA Biodiversity Unit:

GLA Strategy  Directorate
City Hall
The Queen’s Walk
London SE21 2AA

020 7983 4000	

RSPB:

2nd Floor
Frederick House
42 Frederick Place
Brighton
East Sussex BN1 1AT

01273 775333
www.rspb.org.uk

__________________________________________________________________