Wildlife & conservation

Wildlife and conservation laws seek to protect habitats and species from harm or destruction. They are particularly important for land-based industries, but can be relevant for any company, especially ones whose processes can impact the natural environment.


Overview

Wildlife protection and conservation measures are articulated through a variety of different legislative regimes. Statutory provisions overlap with few overarching structures.

Different modes of protection are organised around:

• protecting enclaves based on their distinct geological, scientific, or natural features;
• preventing harm to specific species of flora and fauna;
• protecting ecosystems and biodiversity

Restrictions may be placed on development if it is planned on or near protected sites, or if it affects protected species, in particular through the planning regime. Different economic and leisure activities are also regulated on protected sites.

Landowners may have duties to control invasive species or manage land with regards to protected features.

Companies may be liable for environmental damage to land and water, for instance from manufacturing processes.

The Wildlife and Countryside Act 1981 is the main legislative foundation for the domestic protection of wildlife in Great Britain. It makes provision for species protection, the establishment of protected sites across different regimes, and for control of invasive alien species. Much of the Act has been amended by subsequent legislation, including:

• in England and Wales, by the Countryside and Rights of Way Act 2000 and the Natural Environment and Rural Communities Act 2006;
• in Scotland, by the Nature Conservation (Scotland) Act 2004 and the Wildlife and Natural Environment (Scotland) Act 2011.

Wildlife and conservation legislation in Northern Ireland is centred around the wide-ranging Wildlife (Northern Ireland) Order (SI 1985/171), which deals with the protection of plants, wild animals and birds, deer, and the designation of areas of special protection. The Environment (Northern Ireland) Order 2002 (SI 2002/3153) similarly covers both pollution prevention and protected areas.


Nature conservation agencies:

Natural England
Environment Agency
Natural Resources Wales
Scottish Natural Heritage
Northern Ireland Environment Agency

Agencies are supported by the Joint Nature Conservation Committee (JNCC) as a public advisory body.


General guidance:

Revised National Planning Policy Framework

Natural England guidance on complying with wildlife protection laws

Scottish planning policy on the natural environment

Enclaves

A variety of designations, from sites of special scientific interest to national parks, exist to protect and conserve areas for their beauty, ecological value, or heritage. These areas are usually managed by local authorities, and designation typically restricts permitted development on the site or regulates different activities.

Certain activities might be subject to several different controls. Areas may similarly be subject to multiple designations, introduced at both the domestic and EU level.

Protected areas

The National Parks and Access to the Countryside Act 1949 set up frameworks for the creation of:

• sites of special scientific interest (SSSIs);
• national parks;
• areas of outstanding national beauty (AONB); and
• local and national nature reserves (LNRs/NNRs).

The Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 (SI 1985/170) gives the Department of Agriculture, Environment and Rural Affairs (DAERANI) duties to make policies for nature conservation, including through designating protected areas. Public bodies must take nature conservation into account in their planning policies.


General guidance:

Defra/Natural England protected sites guidance for planning authorities
Natural England 2012 designations strategy
Natural England designation programme
NRW protected areas portal
SNH protected areas portal
DAERANI protected areas portal

Sites of special scientific interest

Sites of special scientific interest (SSSIs) are the main conservation designation in the UK. They protect areas of conservation interest to maintain diversity of wild animals and plants. They are designated by:

• Natural England and Natural Resources Wales under Part II of the Wildlife and Countryside Act 1981 as amended, including by Part IV of the Natural Environment and Rural Communities Act 2006; and
• Scottish Natural Heritage under Part II of the Nature Conservation (Scotland) Act 2004 as amended by the Wildlife and Natural Environment (Scotland) Act 2011.

The Northern Irish equivalent, areas of special scientific interest (ASSI), are designated by the Northern Ireland Environment Agency (NIEA) under Part IV of the Environment Order (Northern Ireland) 2002 (SI 2002/3153).

Conservation agencies have wide discretion to designate sites based on flora, fauna, geological or physiographical/geomorphological features. Designation does not stop any activity occurring on land, instead focusing on managing such activity. Damaging the protected features of an SSSI is an offence.

SSSI notification outlines natural features of interests, as well as how they should be protected and managed. Owners or occupiers of any designated land must ensure specified operations do not happen without the regulator’s written consent or in accordance with the terms of an agreement or a management scheme or notice.

A general duty is also placed on public bodies and officials to further conservation and enhancement of the flora, fauna or geological or physiographical features that led to designation.


Guidance:

JNCC guidance for the selection of biological SSSIs and earth science SSSIs
DAERANI guidance on criteria for selection of ASSIs
Natural England guidance on SSSIs for landowners
Natural England guidance on SSSIs for public bodies
NRW guidance on SSSIs for landowners
NRW guidance on SSSIs for public bodies
SNH guidance on SSSIs for land managers
DAERANI ASSI portal


Given that notification limits landowner’s rights to use land, decisions have been subject to judicial review:

R (Fisher) v English Nature [2004] EWCA Civ 663
Boggis v Natural England [2009] EXCA Civ 1061

National parks

National parks are substantial tracts of land with wide open spaces designated due to their natural beauty, wildlife, and cultural heritage, as well as their value as an open-air recreational resource. They are each administered by a national park authority.

There are ten national parks in England, three national parks in Wales, and two national parks in Scotland. Attempts to establish national parks in Northern Ireland have proven controversial due to perceived implications for farmers and residents

Areas of outstanding natural beauty

The framework for areas of outstanding natural beauty (AONBs) is set out under Part IV of the Countryside and Rights of Way Act 2000 and the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 (SI 1985/170).

The designation is used for smaller and less wild beautiful landscapes that would not suit national park designation. They are designated by Natural England, NRW, and DAERANI. Public bodies are required to have regard to the purpose of conserving and enhancing natural beauty when undertaking functions affecting the AONB. There are usually specific planning policies for development in AONBs.

There are currently 34 AONBs in England, 5 AONBs in Wales and 8 AONBs in Northern Ireland.

National scenic areas (NSA) are designated by Scottish Ministers under the Town and Country Planning (Scotland) Act 1997, as amended by the Planning etc. (Scotland) Act 2006 and introduced by the Town and Country Planning (National Scenic Areas) (Scotland) Designation Directions 2010.

NSAs are roughly equivalent to AONBs in Scotland. Administered by Scottish Natural Heritage (SNH), NSAs identify areas of exceptional scenery and protect them from inappropriate development. There are currently 40 NSAs in Scotland.


Relevant legislation:

For England and Wales –

National Parks and Access to the Countryside Act 1949
Part III Environment Act 1995
The National Park Authorities (England) Order 2015 (SI 2015/770)
The National Park Authorities (Wales) Order 1995 (SI 1995/2803)

For Scotland

National Parks (Scotland) Act 2000
The Loch Lomond and The Trossachs National Park Designation, Transitional and Consequential Provisions (Scotland) Order 2002 (SSI 2002/201)
The Cairngorms National Park Designation, Transitional and Consequential Provisions (Scotland) Order 2003 (SSI 2003/1)

Nature reserves

The National Parks and Access to the Countryside Act 1949 also lays down regimes for national nature reserves (NNR) and local nature reserves (LNR). The regime was refined under the Natural Environment and Rural Communities Act 2006.

Nature reserves are managed solely for a conservation purpose. Recreational uses are only allowed if this does not compromise its management for the conservation purpose. Land managed for a conservation purpose must provide, under suitable conditions and control, special opportunities for study and research and/or preservation of flora, fauna or geological or physiographical features.

Around two-thirds of NNRs are managed by Natural England; other public authorities or non-governmental organisations (NGOs) manage the remainder.

The Wildlife and Countryside Act 1981 also created a regime for marine nature reserves (MNRs), but this has been largely superseded by marine costal zones (MCZs) established under the Marine and Coastal Act 2009 and marine protect areas (MPAs) established under the Marine (Scotland) Act 2010.

Ramsar

Ramsar sites identify wetlands of international importance, following criteria of the 1971 Ramsar Convention, which promotes sustainable use of wetlands while retaining their ecological character (‘wise use’). In the UK they tend to overlap with SSSIs or ASSIs, or designation as a special protection area (SPA) or special area of conservation (SAC) (see below).


Additional conservation designations overlap with agricultural practice regulation (see Land and development guide), through:

the environmental stewardship scheme
nitrate vulnerable zones
Other international conservation designations include:
UNESCO natural World Heritage Sites (five in the UK)
UNESCO global geoparks (eight in the UK)
UNESCO biosphere reserves (six in the UK)

Natura 2000

Natura 2000 is an EU-wide network of protected areas sheltering Europe's most valuable and threatened species and habitats. It stretches across all Member States, covering over 18 per cent of land area and almost 6 per cent of marine territory.

Sites are designated as:

• special protection areas (SPAs) under the EU Wild Birds Directive 2009/147/EC, first issued in 1979; and
• special areas of conservation (SACs) under the EU Habitats Directive 92/43/EEC.

These Directives are implemented in UK law under:

• the Conservation of Habitats and Species Regulations 2017 (SI 2017/1012) in respect of England and Wales, including the adjacent territorial sea, and to Scotland and Northern Ireland in relation to reserved and excepted matters;
• the Conservation (Natural Habitats, &c.) Regulations 1994 (SI 1994/2716) in respect of Scotland;
• the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995 (SR 1995/380) in respect of Northern Ireland; and
• the Conservation of Offshore Marine Habitats and Species Regulations 2017 (SI 2017/1013) in respect of UK offshore marine areas.

While Natura 2000 does include strictly protected nature reserves (from which human activities are excluded), most of the land remains privately owned. Sites must be managed in a sustainable manner, both ecologically and economically. Given that almost all land-based European sites (including areas of foreshore) are also designated as SSSIs, European designations are unlikely to greatly affect their day-to-day management. Conservations agencies will continue to work in partnership with those who own, use and manage land.

Consideration of Natura 2000 sites and species is built into the planning regime by mandating appropriate assessment of impacts is undertaken before potentially damaging activity occurs, placing limits on activities that would damage ecological integrity. In exceptional circumstances, a plan or project may still be allowed to go ahead provided there are no alternative solutions and it is justified for imperative reasons of overriding public interest. The same requirement applies to environmental permits granted under the Environmental Permitting (England and Wales) Regulations 2016 (SI 2016/1154), the Environmental Protection Act 1990 or the Pollution Control and Local Government (Northern Ireland) Order 1978 (SI 1978/1049) (see Land and development and Industrial regulation guides).

Natura 2000 Viewer is an online tool. It lists all sites and provides key information on:
designated species and habitats;
data on population sizes; and
information on conservation status.


There is a significant body of case law on appropriate assessment under Article 6(3) of the EU Habitats Directive, including:

Case C-127/02, Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij [2004] ECR I-7405

Case C-441/17, Commission v Poland ECLI: EU:C:2018:255

Birds Directive

The EU Wild Birds Directive 2009/147/EC places duties on Member States to protect, manage and control wild birds and their habitats, as well as to prohibit or regulate the sale or hunting of certain species. It has led to the creation of a network of SPAs to protect wild birds’ breeding grounds and habitats.


The basis for designating a SPA is ornithological criteria alone:

Case C-355/90, Commission v Spain [1993] ECR I-4221
Case C-44/95, R v Secretary of State for the Environment, ex p Royal Society for the Protection of Birds [1996] ECR I-3805.
Member States cannot refuse to designate because of economic or political implications.

Habitats Directive

The EU Habitats Directive 92/43/EEC requires Member States to take measures to ‘establish a system of strict protection’ for the species it covers. It also provides a framework for the creation of SACs with a view to building a network of representative habitats across the EU.

The SAC designation process requires Member States to propose a list of sites based on criteria set out under Annex III (Stage 1) and relevant scientific information, indicating which natural habitat types and species native to its territory the site hosts. The European Commission then establishes a draft list of sites of Community importance. Once a site has been adopted (see Appendix I), Member States must designate it as soon as possible, and within six years at most, establishing priorities for natural habitat types and/or species.


The list of sites should be based on purely scientific concerns:

Case C-371/98 R v Secretary of State for the Environment, Transport and the Regions, ex parte First Corporate Shipping [2000] ECR-I-9253

Environmental damage

Companies causing environmental damage are liable under the EU Environmental Liability Directive (ELD) 2004/35/EC, and are responsible for mitigating and remedying the damage – the ‘polluter pays’ principle. It is implemented in UK law under:

• the Environmental Damage (Prevention and Remediation) (England) Regulations (SI 2015/810);
• the Environmental Damage (Prevention and Remediation) (Wales) Regulations (WSI 2015/1394);
• the Environmental Liability (Scotland) Regulations (SSI 2015/214); and
• the Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) (SR 2015/231).

Damage to the environment is defined as: :

• environmental damage which impacts habitats and species protected under the Habitats and Birds Directives or by a SSSI designation,
• pollution of surface or groundwater resources,
• significant adverse effect on marine waters, or
• contamination to land that threatens human health.


Related guides:

Land and Development for further information on the environmental liability and planning regimes
Water guide on pollution of marine and freshwater environment

Species

Measures to protect species of flora and fauna include primarily hunting/taking prohibitions and trade restrictions.

Protection
The Wildlife and Countryside Act 1981 makes it an offence (subject to exemptions listed under Schedule 2) to intentionally kill, injure or take any wild bird. Taking, damaging or destroying nests or eggs is also an offence. Special penalties are specified for birds listed under Schedule 1.

Other offences include:

• killing, injuring or taking any wild animal listed under Schedule 5;
• interfering with places used for shelter or protection,
• certain methods of killing, injuring or taking wild animals;
• intentionally picking, uprooting or destroying any plant listed under Schedule 8 or, not being an authorised person, intentionally uproots any wild plant not included under that Schedule;
• possessing or selling (or offering for sale) any plant included under Schedule 8.

The Wildlife (Northern Ireland) Order (SI 1985/171) makes similar provision for Northern Ireland.

The Wildlife and Natural Environment (Scotland) Act 2011 introduces further measures in respect of Scotland.

Specific pieces of legislation protect particular species:

• the Protection of Badgers Act 1992 makes it an offence if a person ‘wilfully kills, inures or takes, or attempts to kill, injure, or take, a badger’ without a permit. European Badgers are recognised as a species requiring protection under Appendix III of the Bern Convention;
• the Deer Act 1991 and the Deer (Scotland) Act 1996 criminalise various activities including poaching deer, killing deer, and the use of ammunition in hunting deer.
• the Marine (Scotland) Act 2010 focuses in part on the protection of seals, through a licensing system.
• the Wild Mammals (Protection) Act 1996 protects wild animals in Great Britain from cruelty.

Trade

The UK ratified the CITES Convention, which places trade restrictions on certain protected species of wild fauna and flora, in August 1976. The Endangered Species (Import & Export) Act 1976 initially gave effect to CITES, although this has been substantially amended and is now largely superseded by EU provisions.

Wildlife trade is now regulated in the UK by the directly applicable EU Wildlife Trade Regulation 338/97/EC, which protects certain species of wild fauna and flora through import and export restrictions, a permits and certification framework and restrictions on the movement of live specimen.

The restrictions are supplemented by:

• the EU Wildlife Trade Implementation Regulation 865/2006/EC, which sets rule for implementation; and
• the EU Wildlife Trade Permit Regulation 792/2012/EU, which sets rules for the design of permits, certificates and other documents.

Enforcement measures for the UK are set out under the Control of Trade in Endangered Species Regulations 2018 (SI 2018/703).


Guidance:

Defra/Natural England protected species guidance for planning authorities


Major international Conventions adopted to protect wildlife include:

Ecosystems

Beyond species and habitats, the law recognises that the interrelations between species and their habitats also constitutes a valuable natural capital. The integrity of ecosystems is protected through controls on non-native species and measures dedicated to conserving biological diversity. Planning policy also increasingly takes biodiversity into consideration.

Non-native/invasive alien species

Species introduced to areas outside their usual natural habitats through human actions and posing a threat to native wildlife are known as invasive non-native species.

The Wildlife and Countryside Act 1981 prohibits the release of animals and planting of plants listed under Schedule 9, except under licence. Landowners are required to ensure invasive plants present on their land do not spread to the wild or grow on someone else’s property. The disposal of invasive plants is also controlled through the Environment Agency in England.

In Northern Ireland, similar measures are enacted through the Wildlife (Northern Ireland) Order 1985 (SI 1985/171).

In Scotland, a general ‘no-release’ approach is taken. Exemptions are provided under secondary legislation, where necessary.

The UK’s regulation of invasive species is currently coordinated with the EU, within the framework of the EU Invasive Alien Species (IAS) Regulation 1143/2014/EU. The IAS Regulation sets an EU list of invasive species and establishes three distinct types of measures:

• measures to prevent the intentional or unintentional introduction;
• surveillance systems to detect presence as early as possible and take rapid eradication measure to prevent them from establishing; and
management action to prevent further spread and minimise harm caused.

Measures providing for the enforcement of the EU IAS Regulation in UK law were introduced under:

• the Invasive Alien Species (Enforcement and Permitting) Order 2019 (SI 2019/527);
• amendments to the Wildlife and Countryside Act 1981 introduced by the Conservation (Natural Habitats, &c.) (Miscellaneous Amendments) (Scotland) Regulations 2019 (SSI 2019/364); and
• the Invasive Alien Species (Enforcement and Permitting) Order (Northern Ireland) 2019 (SR 2019/159).


Guidance:

Natural England/Defra/EA guidance on preventing invasive plants from spreading
SNH guidance on invasive non-native plants
DAERANI field guide to invasive species in Northern Ireland
NI Direct guidance on invasive species in Northern Ireland
Species of particular concern prompt their own guidance, including Japanese knotweed.

Biological Diversity

The Natural Environment and Rural Communities Act 2006, Environment (Wales) Act 2016 and the Wildlife and Natural Environment Act (Northern Ireland) 2011 place an obligation on public authorities to have regard to conserving biodiversity, including restoring or enhancing populations or habitats, when exercising their functions. Under the Nature Conservation (Scotland) Act 2004, public bodies in Scotland must also further conservation of biodiversity within their functions.

The revised National Planning Policy Framework integrates a number of provisions (at paragraphs 174 to 177) on habitats and biodiversity.

UK biodiversity conservation is articulated within an international framework: the UK Post-2010 Biodiversity Framework explains how the UK plans to achieve the Aichi Biodiversity Targets, established under the Convention on Biological Diversity (CBD), and objectives set out under the EU Biodiversity Strategy for 2020 (COM 2011/244 final).


The European Commission adopted a new EU Biodiversity Strategy in May 2020. It presents a long-term plan for protecting nature and reversing the degradation of ecosystems with a view to putting Europe’s biodiversity on a path to recovery by 2030.

Appendix I

Sites of Community importance (Habitats Directive):

• Alpine biogeographical region, thirteenth update (Decision 2020/100/EU)
• Atlantic biogeographical region, thirteenth update (Decision 2020/495/EU)
• Black Sea biogeographical region, fifth update (Decision 2018/39/EU)
• Boreal biogeographical region, thirteenth update (Decision 2020/494/EU)
• Continental biogeographical region, thirteenth update (Decision 2020/97/EU)
• Macaronesian biogeographical region, eighth update (Decision 2020/99/EU)
• Mediterranean biogeographical region, thirteenth update (Decision 2020/96/EU)
• Pannonian biogeographical region, eleventh update (Decision 2020/98/EU)
• Steppic biogeographical region, third update (Decision 2019/15/EU)