The biodiversity duty – beware works impacting protected wildlife!

The Natural Environment and Rural Communities Act 2006 was amended by the Environment Act 2021 to require public authorities to further the conservation and enhancement of biodiversity – the ‘biodiversity duty’.

Background

Defra has now issued further guidance reminding local authorities in England that they must consider what action they plan to take to meet this biodiversity duty by 1^st January 2024. Policies and specific objectives must then be agreed and actions taken to deliver the policies and achieve the objectives.

The Environment Act 2021 also introduced strategies on local nature recovery, species conservation and protected sites. Public authorities must understand how/if these strategies are relevant to their organisation and are required to be aware of how they affect land that they own or manage. Consideration must also be given to how public authorities can contribute to the strategy where appropriate.

The duty

The biodiversity duty will contribute to the achievement of national goals and targets on biodiversity. Per the Environmental Improvement Plan (EIP23), by 2030 the government has committed to halt the decline in species abundance and to protect 30% of UK land. Then by 2042, it has committed to increase species abundance by at least 10% from 2030, restore or create at least 500,000 ha of a range of wildlife rich habitats, reduce the risk of species extinction, and restore 75% of our one million hectares of terrestrial and freshwater protected sites to favourable condition, securing their wildlife value for the long term.

Guidance is given to public authorities on how habitats can be improved, how space can be made for wildlife, how protected sites can be enhanced, how building management can be improved. Public authorities are also encouraged to educate, advise and raise awareness among the general public. The full guidance can be accessed here.

Protected species – don’t forget your existing obligations!

As can be seen above, there is a focus by the government on wildlife and species with the 2042 targets, but duties to protect wildlife have been in place for some time.

The Wildlife and Countryside Act 1981 (legislation.gov.uk) (1981 Act) and The Conservation of Habitats and Species Regulations 2017 (legislation.gov.uk) (2017 Act) give certain species legal protection.

The 1981 Act lists protected species, plants and animals. Offences include intentionally or recklessly—

(a) damaging or destroying any structure or place which certain wild animals use for shelter or protection;

(b) disturbing any such animal while it is occupying a structure or place which it uses for shelter or protection; or

(c) obstructing access to any structure or place which any such animal uses for shelter or protection.

Under the 2017 Regulations a person who —

(a) deliberately captures, injures or kills any wild animal of a European protected species,

(b) deliberately disturbs wild animals of any such species,

(c) deliberately takes or destroys the eggs of such an animal, or

(d) damages or destroys a breeding site or resting place of such an animal, is guilty of an offence. European protected species include bats, greater crested newts, common otters and natterjack toads.

Certain activities can be authorised by obtaining a licence. Natural England and Natural Resources Wales are the regulators which can issue licences to permit activities that affect wildlife and their habitats.

When an offence takes place relating to a protected species, these will be investigated by the police and/or Natural England or Natural Resources Wales.

Public authorities (and their contractors) need to be alert to the impact any of their works may have on protected species and the need for a licence to avoid a criminal investigation/prosecution. Failure to obtain a licence when carrying out an activity that needs one can result in an unlimited fine for businesses.

As well as the relevant legislation, the government provides guidance relating to wildlife licences here and here.