European protected species policies for mitigation licences
Ecologists can use European protected species (EPS) policies on development sites to benefit EPS by changing survey, mitigation or compensation methods.
Applies to England
This guide is for ecologists with the skills and experience to carry out survey, mitigation and compensation activities needed for EPS mitigation licences. You can use these policies to benefit EPS on development sites.
You may need to provide references to verify your experience.
During the coronavirus pandemic, you also need to follow the coronavirus guidance for surveying wildlife.
These Defra EPS policies apply to Natural England’s EPS mitigation licences. You may be able to use the policies for all EPS mitigation licences. They are most likely to be useful for great crested newt (GCN) and bat mitigation licences.
This guidance does not affect Natural England’s statutory functions or the discretion it has to grant an EPS mitigation licence.
You must still apply for a mitigation licence if a development proposal affects an EPS in a way that would otherwise be illegal.
You need to include evidence and justification in your licence application, to show you have met the requirements of the policy.
You can use these policies to:
- reduce the level of survey you need to carry out
- reduce the mitigation requirements
- improve flexibility on where you create habitats as a compensation measure
Mitigation means reducing or removing the negative effects of your proposal on the EPS. For example, by capturing and relocating EPS before your works. You should only consider mitigation measures when it’s not possible to avoid the harm.
Compensation means offsetting any unavoidable remaining impacts after avoidance and mitigation. For example, through habitat creation or enhancement. Compensation includes post-development habitat management, site maintenance and any population monitoring needed to inform these measures.
Using the policies
To use these policies, your application must include how you:
You may be able to use more than one policy on your development site.
Legal agreement for mitigation and compensation measures
You may need a legal agreement to confirm the mitigation and compensation measures. This will include habitat management, site maintenance and population monitoring. For example, the legal agreement may be a Section 106 agreement at the planning stage or a Section 7 and 13 NERC Act agreement at the licensing stage. The local planning authority (LPA) or Natural England will advise and agree this with you.
If a legal agreement is required, you’ll need it in place before Natural England grants you a licence. You’ll need to allow extra time in your project planning to get the agreements in place.
Show your proposal benefits EPS
You’ll need to show that your proposal benefits the local EPS population.
To benefit EPS you can:
- increase the distribution of suitable habitat or the range of the species, by creating or enhancing habitat outside its current range
- improve the quality of occupied habitat
- improve connectivity between habitats or linking of isolated blocks of suitable habitat, which can increase the resilience of populations
- enhance long-term maintenance and security of habitats to improve the future prospects of a population
Great crested newts: district level licensing
If your development is in an area covered by a GCN district level licensing scheme, you may be able to join the scheme. By joining a scheme you will not need to apply these policies yourself or submit a separate mitigation licence application.
Policy 1. Reduce mitigation measures for impacts on EPS
Defra considers that compensation for EPS impacts can be delivered without the need to relocate or exclude populations, where all of the following apply:
- exclusion or relocation measures are not necessary to maintain the conservation status of the local population
- the avoid-mitigate-compensate hierarchy is followed
- compensation provides greater benefits to the local population than would exclusion, or relocation, or both
You can use this policy to reduce mitigation measures, such as exclusion or relocation of EPS, by increasing compensation. For example, mitigation measures for GCN include exclusion fencing, drift fencing, pitfall trapping, hand and destructive searches, bottle trapping and draining down and hand searching in ponds.
This policy is most likely to be relevant for GCN, but may apply to other EPS.
This policy allows you to kill EPS and destroy their habitat without needing to exclude or relocate individual animals. You’ll need to show Natural England that your proposal ensures all of the following:
- loss of individual animals will not affect the conservation status of the species locally
- increased risk to the population is compensated by an increase in either the quality or quantity, or both, of suitable habitat
- compensation measures will provide benefit for the local EPS population
- compensation will have a longer term benefit for the local EPS population than avoiding or mitigating harm
1.1 Gather evidence
To use this policy, you must provide evidence to:
- show the importance of the onsite and local population
- identify where best to locate compensatory habitats to benefit the population
You may be able to get this evidence from:
- presence or absence surveys - including eDNA or DNA analysis
- habitat suitability assessments
If these surveys and assessments do not give clear evidence, you’ll need to carry out more surveys.
The survey information you provide will vary depending on the proposed amount of habitat loss and capture effort. Proposals with significant habitat loss and no EPS capture will need a more comprehensive understanding of the local population. For losses of small areas of habitat with a slightly reduced capture effort proposed, a standard survey may be enough.
If you want to use both policy 1 and policy 4 on a site, you’ll need to provide enough evidence to show you have predicted the impacts of the development with sufficient certainty. NE will only grant you a licence if it’s confident you have accurately predicted the impacts.
1.2 Reduce mitigation requirements
You can reduce or remove mitigation measures if you can show they are:
- not needed to meet the legal tests
- not needed to maintain the local population in the long term
You need to create enough new habitat to allow the population to recover to a size that exceeds what was lost to the development. Ideally, compensatory habitats should be close and well connected to the existing population, so the EPS can colonise naturally. If you need more flexibility in the location of compensatory habitats, you may be able to do this using policy 2, in addition to this policy 1.
You need to show the:
- local EPS population is not at risk of local extinction
- EPS will be able to colonise compensation habitats
1.3 Increase compensation requirements
To use this policy, you’ll need to increase compensation. The additional compensation must offset the increased risk to the population of less effort to exclude or relocate the EPS population.
The overall measures must provide greater long-term benefit to the local population, compared to the approach that would achieve the least harm.
1.4 Impacts on other protected species
If more than one EPS are present on your site, you may be able to use the policy for all EPS.
You must follow the legal requirements for other protected species. For example, if common reptiles are present, you may need to capture and remove them, even if you do not need to for GCN or another EPS on the site.
1.5 Change an existing licence
You may be able to change an existing licence to use policy 1. For example, if you want to stop the capture and relocation of a species before you have cleared the site.
Your licence modification request will need to include the information required for a policy one application, described in sections 1.1 to 1.4. Natural England will consider licence modification requests on a case-by-case basis.
Policy 2. Location of compensation habitats
If the licensing tests are met and the avoid-mitigate-compensate hierarchy is followed, off-site compensation measures may be preferred to on-site compensation measures, where both of these conditions apply:
- there are good reasons for maximising development on the site of EPS impacts
- an off-site solution provides greater benefit to the local population than an on-site solution
You can use this policy to have more flexibility in where you can create new compensation habitats.
You need to show there are:
- greater benefits to the local EPS population creating off-site habitats compared to creating on-site habitats
- good reasons to maximise development within the development site
2.1 Provide more survey information
You need to show that the conservation status of the population will be secure after the development.
You need to include all of the following:
- the extent of likely loss of EPS habitat at or near the development site
- the effect the development will have on how habitats connect, and how this will affect the EPS population
- the existing distribution of the species in the proposed compensation location
- how the new habitat will provide a benefit to the local population
- how the new habitat will extend to, or connect with, existing EPS populations in the local area
Where the remaining habitat at or near the site will no longer be able to support the EPS population, you may need to carry out more surveys than you normally would. You will need to show the compensation will give an overall benefit for the EPS.
2.2 Show compensation measures improve conservation status
You must show that creating new or improving existing habitat outside the development area improves the conservation status of the species. For example, by:
- increasing its range and abundance
- increasing the distribution of its suitable habitat or improving its habitat quality
- connecting its habitat to existing populations
- improving its long term survival by creating a habitat away from future development
Compensation should normally be within the affected population or metapopulation. Where a population covers a large area, the compensation measures could be located at a considerable distance from the development site. However, you must not reduce the geographical extent of the occupied range or the continuity of occupied habitat.
To use compensation measures outside the affected population or metapopulation, you need to show a bigger net benefit to the conservation status of the EPS than measures solely for the affected population. If the compensatory habitats are not well enough connected to allow natural dispersal, you’ll need to relocate the EPS.
If you will not be relocating the affected EPS to the new habitat, the compensation needs to be within the range of a known population of the same EPS, so the habitat can be colonised.
2.3 Screen for disease
You must carry out disease screening on EPS when they are to be moved:
- more than 2km
- beyond a physical barrier, such as a major road or river
Policy 3. Let EPS use temporary habitats
Where development (such as mineral extraction) will temporarily create habitat which is likely to attract EPS, Defra favours proposals which enable works to proceed without the exclusion of EPS, where the conservation status of the local population would not be detrimentally affected.
On completion of development, such sites must contribute to the conservation status of the local population as much as or more than the land use which preceded development.
The measures to achieve this should be set out in a management plan and secured by a legal agreement.
You can use this policy where developments create temporary EPS habitats. For example, a mineral extraction site.
Under this policy, you can keep EPS in, or allow them access to, the temporary habitats, instead of relocating or excluding them. You should only use this when the benefits of access to the habitat outweigh the risks from killing, injuring or disturbing them.
When the development is complete, the site must maintain or improve the conservation status of the EPS population.
This policy is most likely to be relevant for GCN, but may apply to other EPS.
3.1 Submit a management plan
You must submit a management plan. The plan needs to include:
- baseline survey information on the current population
- how you’ll monitor the population
- how you’ll manage works and how you’ll affect the EPS habitat during works
- how you’ll make EPS habitat available at all times to maintain the local population in the long term
- how the temporary habitat will connect with offsite habitats
- how your restoration and aftercare will maintain or improve the conservation status of the local population
You need to have a legal agreement for your management plan.
Policy 4. Alternative sources of evidence to reduce standard survey requirements
Natural England will be expected to ensure that licensing decisions are properly supported by survey information, taking into account industry standards and guidelines. It may however accept a lower than standard survey effort where all the following apply:
- costs or delays associated with carrying out standard survey requirements would be disproportionate to the additional certainty that it would bring
- ecological impacts of development can be predicted with sufficient certainty
- mitigation or compensation will ensure that the licensed activity does not detrimentally affect the conservation status of the local population of any EPS
You can use this policy to reduce the need for survey data. Instead, you’ll need to use other sources of information to provide confidence for your approach.
You can use alternative sources of evidence and your expert judgement to not meet standard survey requirements. You’ll need to show all of the following:
- the cost or delay of a standard survey is disproportionate to the benefit or certainty it would provide
- you can confidently predict the impact of development on the species
- mitigation or compensation measures will maintain or improve the species’ conservation status
4.1 Show the standard survey is disproportionate
To show a standard survey is disproportionate, you’ll need to explain the:
- cost of a full survey, relative to the scale of the project and the scale of the potential impact
- time delay for a full survey
- level of survey that’s possible - for example, if you discover bats near the end of the survey season, you might be able to carry out a proportion of the standard survey requirements
The cost of surveying can be much less than providing compensation. By carrying out even limited survey work, you could reduce the amount of compensation you need.
4.2 Predict the impact
To confidently predict the impact on the species, you could use:
- information from local records centres or local groups
- DNA analysis or eDNA tests
- a thorough site inspection or habitat survey
You need to show how you’ve used the alternative information and expert judgement to predict the impact. It’ll be more difficult to do this for novel or complex situations.
4.3 Design mitigation and compensation measures
You need to provide mitigation and compensation to cover the maximum impact of your activity, based on an assessment of plausible scenarios. You should base your assessment of plausible scenarios, and decision on the amount of mitigation and compensation needed, on the:
- survey information available and alternative sources of evidence
- level of risk of an adverse outcome
- degree of uncertainty
- conservation status of the species locally and nationally
Get help with your application
You should use Natural England’s discretionary advice service (DAS) to get advice on using these policies either before, or when, you’re developing your proposal. Use DAS for advice during the early stages of your proposal, before you’ve drafted a licence application.
You should use Natural England’s pre-submission screening service after you’ve drafted your application documents, to get advice before you submit the final licence application.
This guide explains how to use the EPS policies, and is a result of the consultation on wildlife licensing: policies for EPS licences.