Grass snakes, slow worms and common lizards

Advice for developers on protected species issues in Greater London

Grass snakes, slow worms and common lizards are legally protected species that are likely to be encountered on development sites throughout Greater London wherever suitable habitat occurs.

Grass snakes use a wide variety of habitats, containing open areas where they can bask.  They primarily feed on amphibians and fish and are therefore most frequently found near wet habitats.  Rivers, marshes, damp meadows and still waterbodies such as lakes, ponds, old gravel pits and reservoirs are all potential grass snake habitat.  Grass snakes will also live in drier sites for example open woodland, rough grassland, allotments and heathland, where they feed on small mammals

Eggs are laid in a warm environment in early summer e.g. compost or manure heaps, rotting logs and less commonly, moss or piles of dead leaves.  Grass snakes hibernate in places such as rubble piles, mammal burrows and tree roots.

Slow worms (a legless lizard) prefer to live in damp and warm habitats.  Woodland, grassland, railway embankments, allotments and gardens all potentially support slow worms.  They are also frequently found on ‘brownfield’ of ‘wasteland’ sites.  Unlike other reptiles, they rarely bask, preferring to stay hidden under the soil or vegetation or debris.  They hibernate in winter under piles of leaves, amongst tree roots and in ground crevices.

Common lizards or viviparous lizards favour sheltered habitats containing dry, warm places where they can bask in the sunshine.  The majority of lizards are found in grassland, hedgerows, woodland edges, roadsides, and frequently railway embankments and ‘wasteland’ sites.  At night, they shelter within vegetation, beneath logs, stones and other materials, such as carpet.

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 native reptiles (snakes and lizards) are protected species.  They are protected by specific legislation and through Government planning policy guidance.

The common lizard, slow worm and two snakes, the grass snake and adder all occur in Greater London. Whilst the lizards and grass snake snake are still fairly widespread, adders are exceedingly rare in London, and are found at only a handful of sites. They are all included within a London-wide Reptiles Biodiversity Action Plan, led by English Nature that aims to:
•	Protect and conserve the native reptile populations of Greater London
•	To save the adder from its imminent extinction in Greater London
•	To promote wider awareness of reptile conservation in Greater London

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 REPTILES

All reptiles are protected under Section 9 of the Wildlife and Countryside Act 1981 (as amended). 

Under this legislation, it is illegal to:

•	Intentionally kill or injure grass snakes, slow worms or common lizards.

Trade in these species is also prohibited under Section 9[5].

N.B. Smooth snakes and sand lizards receive additional protection under the Wildlife and Countryside Act 1981 and are also protected under The Conservation (Natural Habitats &c) Regulations 1994. However, they will not be discussed as they are not found in London. 

The Developer’s Statutory Obligations

The minimum that developers are required to do is satisfy provisions of the statutory regulations provided under the Wildlife and Countryside Act 1981.  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 the intentional killing or injuring of reptiles during development.  There is a defence in the Act [Section 10(3)(c) which permits an otherwise illegal action 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 and/or injuring grass snakes, slow worms or viviparous lizards.  In practice this often requires the developer to implement some sort of mitigation strategy if these species 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. In some cases it will be appropriate to exclude land from development, for instance where locally significant populations are discovered and effective mitigation is not possible.

If grass snakes, slow worms or viviparous lizards are known or suspected to occur on a site, the developer needs to employ an appropriately skilled and experienced consultant to carry out a survey and consider whether mitigation is feasible without detriment to the species.  Failure to undertake early and appropriate surveys and impact assessments, and to 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.

Developers should be aware that developments that satisfy the legislation do not necessarily fulfil the spirit of the planning guidance, which is concerned with protecting the habitat used by protected species as well as the individual animals.

MENTION THE LONDON REPTILES SAP?

PROTECTION THROUGH THE PLANNING PROCESS

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 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 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.  In fulfilling their duties, planning authorities should ask developers to provide the following information as a step-by-step process, using best practice guidelines (see below), before planning applications are determined:

(a)	a survey, which identifies presence/likely absence, population size, etc.
(b)	an assessment of the development’s impact on the reptiles
(c)	a mitigation strategy, if mitigation is feasible without detriment to the species.

Local planning authorities are unable to properly consider protected species issues without this information.  

IMPORTANT:

TO ABIDE BY BEST PRACTICE, DEVELOPERS SHOULD PROVIDE THE ABOVE INFORMATION BEFORE SUBMITTING PROPOSALS TO THE PLANNING AUTHORITY, SO THAT RISKS TO THE SPECIES AND THE FEASIBILITY AND EFFECTIVENESS OF ANY 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. A Section 106 agreement can be used in some circumstances.

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 reptile 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 Area Team, local Wildlife Trust or local biological records centre on reptile records.  Ecological consultants with appropriate experience should be employed to survey proposed development sites that support habitat suitable for grass snakes, slow worms or common lizards before planning proposals are submitted (or even before the land is acquired). 

If reptiles are present, developers should employ ecological consultants with the right knowledge and experience of work with reptiles to assess the impact of the development on the reptiles and to assess whether mitigation measures are feasible without detriment to the species.  Developers should submit these findings with their planning application.

Early awareness of reptiles on a site means developers can consider conservation and mitigation before planning proposals become finalised, e.g. alter plans to accommodate reptile habitat.  This can save developer’s resources and time later in the process, as well as produce a more satisfactory planning application that meets the needs of all parties, and conservation interests.

There is always the possibility that reptiles will be found during development, even after surveys have been carried out.  When a reptile is encountered, any works that may be in breach of the law should cease immediately and urgent advice should be sought from English Nature.

Developers should be aware that mitigation for impacts on reptile populations can be a lengthy process, and should make allowances for this in forward planning. In addition, there can be medium to long-term implications where post-development population monitoring and habitat management is identified as necessary.

Key players - their ROLES AND responsibilities

Developers
•	If the presence of reptiles is known or suspected, provide the local planning authority with survey results, an assessment of the development’s impact and the possibility of mitigation without detriment to the species.
•	Comply with the legislation and planning conditions.
•	Where possible, incorporate reptile habitat into the built environment to enhance local populations

Local planning authorities
•	Take reptiles 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 reptiles may occur.
•	Provide general advice to local authorities regarding planning applications and forward planning matters such as local development plans.
•	Leads on the Reptiles Species Action Plan for the London Biodiversity Action Plan.

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’).  Grass snakes, slow worms and common lizards are listed on Schedule 5 of the 1981 Act.  It is an offence under Section 9 to:

•	Intentionally kill or injure these species
•	Sell or trade in these species

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 to any statutory species protection provisions affecting the site concerned.

APPENDIX 2

Stages of THE planning PROCESS FOR A SITE WHERE GRASS snakes, slow worms or common lizards 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 suitably skilled and experienced ecological consultants to survey application site for reptiles using best practice techniques.
Responsibility:	Developer	

2.	Employ suitably skilled and experienced consultants to assess the impact of the development on any reptiles found to be present, and whether mitigation is feasible without detriment to the speciesif 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 reptiles.
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 Biological Recording Project

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	
Froglife
Mansion House
27-28 Market Place
Halesworth
Suffolk
IP 8AY

01986 873733
www.froglife.org	The Herpetological Conservation Trust
655a Christchurch Road
Boscombe
Dorset
BH1 4AP

01202 391319
www.herpconstrust.org.uk	

FURTHER INFORMATION

The English Nature leaflet Reptiles in Your Garden, provides general advice and has details of species identification. This leaflet is available free from English Nature’s Enquiry Service (Tel: 01733 455100)

Best Practice
The Herpetofauna Groups of Britain and Island (1998). Evaluating local mitigation/translocation programmes: Maintaining Best Practice and lawful standards. HGBI Advisory Notes for Amphibian and Reptile Groups (ARGs), can be downloaded from the Froglife website (see above). 

JNCC. 2003. Herpeofauna Workers’ Manual. JNCC, Peterborough.