Natural England have recently changed their licensing process, which is now more stringent and requires an increased level of detail. Method statements associated with licence documents are legally binding and must be adhered to. Natural England are still experiencing delays processing licence applications.
Natural England have previously raised concerns over some consultants advice in respect to when a mitigation licence is required. Specifically these relate to:
- Works destroying or damaging a bat roost proceeding under “an unlicensed method statement”; and,
- Moving up to five bats before applying for a mitigation licence to enable or facilitate development
Natural England has stated that persons acting on such advice are highly likely to be committing offences under The Conservation of Habitats and Species Regulations 2010 (as amended) and could find themselves being investigated by the Police and/or Natural England and make them liable to prosecution.
The Regulations fully protect bats and their breeding sites or resting places, making it an offence to:
- Deliberately capture (take), injure or kill
- Deliberately disturb bats
- Damage or destroy a bat breeding site or resting place (roost)
- Obstruct a resting place (roost)
In addition, the Wildlife & Countryside Act 1981 (as amended) makes it an offence to intentionally or recklessly:
- Disturb any bat whilst it is occupying a structure or place which it uses for shelter or protection
- Obstruct access to any structure or place which any bat uses for shelter or protection
Breeding sites or resting places are protected whether bats are present or not at the time of works and irrespective of planning permission having been granted.
When is a Mitigation Licence required?
A mitigation licence is needed for any works that cannot avoid triggering one or more of the offences under The Conservation of Habitats and Species Regulations 2010 or the Wildlife & Countryside Act 1981 (as amended).
When is a Precautionary Method of Working Appropriate?
- Presence of bats has not been confirmed, but potential for a transient bat roost to be present cannot be fully discounted More details…
- Works undertaken under the principle of Continuing Ecological Functionality More details…
Ecosulis can provide pragmatic yet legally compliant advice in respect to the need for a mitigation licence or precautionary method of working for any project. We aim to provide peace of mind to anyone undertaking works that may affect bats and/or their breeding/resting places.
Presence of bats has not been confirmed, but potential for a transient bat roost to be present cannot be fully discounted
Natural England cannot issue precautionary mitigation licences and as such the use of a structure as a breeding or resting place must be confirmed before a mitigation licence can be obtained. The use of some roosting opportunities such as gaps under tiles can be extremely difficult to detect as they can often be only infrequently used by a low number of bats. Survey effort should be proportionate to the level of likely presence of bats and as such in some instances bat roosts may not be detected, but potential remains despite a reasonable survey effort.
In such instances the consultant may recommend that the works proceed under a precautionary method of working. The aim of a precautionary method of working is to enable features to be fully investigated and minimise the risk of inadvertently causing an offence. Works should only proceed under a precautionary method of working when reasonable survey effort has been undertaken. If bats or evidence of bats is discovered during the works then it works would cease immediately, and this can be costly to halt and wait for a mitigation licence to be obtained (takes a minimum of six weeks). In addition, it may also be necessary to justify the level of survey effort prior to proceeding under a precautionary method of working.
Works undertaken under the principle of Continuing Ecological Functionality
Not all works affecting a bat roost will trigger an offence under The Conservation of Habitats and Species Regulations 2010 or the Wildlife & Countryside Act 1981 (as amended) and therefore require a mitigation licence. For instance, minor renovation or maintenance works to a structure that supports a summer bat roost can avoid triggering an offence if completed at a time of year when bats are not present in a roost i.e. during the winter. However, the Continuing Ecological Functionality concept may not be invoked to allow the taking and transporting of bats, or the permanent alteration or destruction of a roost.
If works are being undertaken under the Continuing Ecological Functionality concept then it is advisable to proceed under a precautionary method of working, which should detail the measures being undertaken to avoid triggering an offence.