The Wild Side of Development

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19 January, 2021

Lyndsay Baxter

The Metropolitan Police announced in December 2020 that Bellway Homes had admitted damaging or destroying a breeding site or resting place for bats at a construction site in Greenwich, London. Bellway were fined £600,000, which is a record fine and the largest fine ever issued by a court in relation to a wildlife crime, plus they are to pay further costs of over £30,000. Bellway Homes also agreed to make a voluntary donation of £20,000 to the Bat Conservation Trust.

The case was brought after Bellway Homes carried out demolition work at a site in Artillery Place, Woolwich, London in 2018. Soprano Pipistrelle bats had been documented as being present at the site in 2017 and Bellway Homes had been notified in planning documents that should they wish to carry out work they would need to first obtain the appropriate mitigation and a Natural England (NE) European Protected Species licence, as all bats within the UK are European Protected Species.

Police were notified by the local planning authority (LPA) in December 2018 that demolition work had been carried out at the site, who then made enquiries with NE who have confirmed no such licence was applied for. Further, the planning officer for the site also confirmed an attempt had been made by Bellway Homes to remove that particular aspect of the planning requirements, which was not granted.

Following an investigation, Bellway Homes were charged in November 2019 and on 8 December at Woolwich Crown Court, Bellway Homes pleaded guilty to the offences that they damaged or destroyed a breeding site or resting place of a wild animal of a European protected species, namely Bats, Typical (all species) Vespertilionidae.

Bats are offered legal protection and any structures or place which bats use for shelter or protection are protected from damage or destruction whether occupied or not. This legislation has been incorporated into planning policies including the National Planning Policy Framework (NPPF), which means that LPAs have a legal obligation to consider whether bats are likely to be affected by a proposed development and can request a wildlife mitigation strategy be submitted for approval or a bat survey be carried out before a development can commence.

If a bat survey demonstrates that development is likely to affect bat foraging and/or commuting habitat then linear features such as tree lines should be retained, and compensatory planting should be considered wherever possible. Whereas if a bat survey demonstrates that bats and/or a known roost are likely to be affected by the proposed development and planning permission is to be granted, a condition should be place in the planning decision notice, to require the developer to apply for and obtain a European Protected Species Licence before work commences, which is what Bellway failed to do.

In instances where an LPA has not done any what is outlined above, they could themselves have failed their duties.

Since this case, NE, who are the government's adviser for the natural environment in England, have updated their guidance for LPAs, which deals with how they are to access a planning application when there are protected species on or near a proposed development, including survey requirements, assessing information provided by developers, agreeing avoidance, mitigation or compensation measures, considering whether a protected species licence is likely to be granted, and making a decision. The updated guidance is designed to make it easier by distinguish between planning obligations and licensing requirements. The guidance was updated on 7th January 2021 and further details can be found here . This is in additional to the NE guidance for developers, which was published in November 2020, which explains what must be consider if you're planning a development on or near a site used by protected species. The guidance can be found here .

If you are looking to develop a site, it is important to follow the guidance as planning applications have previously been refused on nature conservation grounds, include the case of Woolley v Cheshire East Borough Council, in which planning permission was revoked and the judgement clarified the legal duty of the LPA. It is also essential that you carry out the required surveys, comply with planning obligations and obtain the European Protected Species Licence if so required - as Bellway Homes have found it that it can be quite a costly mistake to make. If you are purchasing a property from a developer, it is important to remember to ensure you have adequate indemnity from the developer to ensure that they have and will discharge all planning conditions at the relevant time, which will include any planning conditions in relation to the wildlife, if so required.

For more information contact Lyndsay Baxter in our Housing & Regeneration department via email or phone on 0333 207 1130. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Housing & Regeneration department here

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