Breeding birds

Advice for local planning authorities 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 (for example peregrine falcon and black redstart) nest in locations with little or 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 local planning authorities should employ the legislation and 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 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.

There is no provision for licensing any 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 is a lawful operation but does not give developers carte blanche to disregard the law.  However the phrase “could not reasonably have been avoided” provides an important caveat and illustrates why local planning authorities need to have due regard to relevant planning policy guidance.

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”.

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.

PROTECTION THROUGH THE PLANNING PROCESS

Local planning authorities should have due regard to Planning Policy Guidance: Nature Conservation (PPG9).

PPG9 (paragraph 47) 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.)

The intention of the planning guidance is to ensure that protected species are safeguarded without the need to invoke the law.  A local planning authority should therefore have due regard to the presence of breeding birds when determining a planning application.

Planners should use 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.

Development Control

For a local planning authority to be able to determine a planning application that may have an impact on breeding birds, the planning application must be accompanied by:

(a)	a 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 nesting birds
(c) 	a mitigation strategy.

If the application does not include all of the above, the authority should request them prior to determining the application.

Surveys and mitigation strategies should not be made a requirement of a planning condition or be undertaken after permission has been granted.  Local planning authorities cannot consider protected species issues properly without complete information.

Provided the necessary supporting information is made available to allow proper determination of an application, the local planning authority should attach planning conditions or obligations as appropriate to help ensure that the intentions of PPG9 are realised.  For example, if an appropriate mitigation strategy is provided as supporting information, a condition should be attached requiring the implementation of a detailed mitigation plan.

Ultimately it is for the developer to ensure compliance with the law during the actual implementation of the development, not the planning authority.  It is for the planning authority to monitor whether planning conditions are being properly discharged.

The wildlife legislation applies throughout the development process before and after planning permission is given. 

Unitary Development Plans

The development control system is the first line of defence to secure the effective conservation of the protected species.  Development plans should provide information regarding the position of the local authority on protected species, which developers can use before producing their proposals.

Within local development plans, policies for protected species should give clear guidance about the criteria that applications would have to meet, and the likelihood of planning permission being granted, for proposals affecting protected species.

Such a policy should:

(a)	refer to the Wildlife and Countryside Act 1981 (as amended) and para 47 of PPG9: Nature Conservation, and;
(b)	indicate that there will be a requirement for protected species surveys for development proposals, where appropriate.
 
If there is no policy for protected species, a proposal that harms a protected species or its habitat is not contrary to the development plan, giving the local planning authority less justification for refusing permission or attaching conditions on protected species grounds.

Key players - their ROLES AND responsibilities

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.

Developers
•	If the presence of breeding birds is know 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.

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 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, 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

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