Legislation and Policy Overview
This page summarises legislation and policy that are enforced across England and Wales in relation to biodiversity.
Different legislation and policy may be applicable for Scotland and Northern Ireland which are not included here.
Local planning policy is referenced in the relevant ecological reports, where applicable.
International Legislation
International Conventions
The UK is a Contracting Party to numerous environmental conventions, the commonest form of international agreements to encourage a coordinated response to managing the environment. Key environmental conventions ratified in the UK include:
The legal obligations of the multiple Conventions to which the UK is a Contracting Party are enacted through a suite of national environmental legislation. The most relevant are described in the following paragraphs.
The Conservation of Habitats and Species Regulations 2017
The Conservation of Habitats and Species Regulations 2017 aims to promote the maintenance of biodiversity by requiring the Secretary of State to take measures to maintain or restore wild species listed within the Regulations at a favourable conservation status in the UK.
The Regulations make it an offence (subject to exceptions) to deliberately capture, kill, disturb, or trade in the animals listed in Schedule 2, or pick, collect, cut, uproot, destroy, or trade in the plants listed in Schedule 4. However, these actions can be made lawful through the granting of licenses by the appropriate authorities. Licenses may be granted for a number of purposes (such as science and education, conservation, preserving public health and safety), but only after the appropriate authority is satisfied that there are no satisfactory alternatives and that such actions will have no detrimental effect on wild population of the species concerned.
Post Brexit
The Secretary of State for the Environment, Food and Rural Affairs and Welsh Ministers have made changes to parts of the 2017 Regulations so that they operate effectively in England and Wales post Brexit (2019 Regulations). Most of these changes involved transferring functions from the European Commission to the appropriate authorities in England and Wales. All other processes or terms in the 2017 Regulations remain unchanged and existing guidance is still relevant.
National Legislation (England and Wales)
Wildlife and Countryside Act 1981
The Wildlife and Countryside Act (WCA) 1981 (as amended) implements the Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention 1979, implemented 1982) and implements the species protection requirements of EC Birds Directive 2009/147/EC on the conservation of wild birds in Great Britain (the birds Directive) in England and Wales. The WCA 1981 has been subject to a number of amendments, the most important of which are through the Countryside and Rights of Way (CRoW) Act (2000).
Countryside and Rights of Way Act 2000
The protection of Sites of Special Scientific Interest (SSSIs), already established in the Wildlife and Countryside Act, is strengthened in this legislation. The Act also allows for prosecution of third parties that damage or destroy a SSSI in England or Wales.
Hedgerow Regulations 1997
The Hedgerow Regulations 1997 are designed to protect ‘important’ countryside hedgerows in England and Wales. Importance is defined by whether the hedgerow (a) has existed for 30 years or more; or (b) satisfies at least one of the criteria listed in Part II of Schedule 1 of the Regulations.
Under the Regulations, it is against the law to remove or destroy hedgerows on or adjacent to common land, village greens, SSSIs (including all terrestrial SACs, NNRs and SPAs), LNRs, land used for agriculture or forestry and land used for the keeping or breeding of horses, ponies or donkeys without the permission of the local authority. Hedgerows 'within or marking the boundary of the curtilage of a dwelling-house' are excluded.
Protection of Badgers Act 1992
This animal welfare legislation protects badgers and their setts in England and Wales, and makes it illegal to:
Wild Mammals (Protection) Act 1996
All wild mammals in England and Wales are protected against intentional acts of cruelty under the above legislation. This makes it an offence to mutilate, kick, beat, nail or otherwise impale, stab, burn, stone, crush, drown, drag or asphyxiate any wild mammal with intent to inflict unnecessary suffering.
To avoid possible contravention, due care and attention should be taken when carrying out works (for example operations near burrows or nests) with the potential to affect any wild mammal in this way, regardless of whether they are legally protected through other conservation legislation or not.
National Legislation and Policy (England)
Environment Act 2021
This legislation requires developments in England to demonstrate a measurable net gain in biodiversity and sets a target of a minimum of 10% biodiversity net gain for all developments (excluding exemptions). It also stipulates that a management plan with a minimum 30-year term, should be adopted to ensure biodiversity net gain can be delivered.
The Environment Act also introduces Local Nature Recovery Strategies (LNRS), a new system of spatial strategies for nature, covering the whole of England. LNRS are to be prepared and published by the ‘responsible authority’, namely the local authority, mayoral authority or National Park authority whose area is, or is within, the strategy area, the Broads Authority or Natural England. Section 40 of the NERC Act (duty to conserve biodiversity) makes provision about the duties of public authorities in relation to LNRS.
Natural Environment and Rural Communities Act 2006
This legislation enabled the amalgamation of English Nature with the Countryside Agency and the Department for Environment, Food & Rural Affairs' Rural Development Service to form a new agency called 'Natural England', which came into existence in October 2006.
The importance of biodiversity conservation was given a legal basis, requiring government departments to have regard for biodiversity in carrying out their functions, and to take positive steps to further the conservation of listed species and habitats. Local government was given a statutory duty to further the conservation and enhancement of SSSIs, both in carrying out operations, and in exercising decision-making functions.
Section 40 of the Natural Environment and Rural Communities (NERC) Act 2006, requires all public bodies to have regard to biodiversity conservation when carrying out their functions. This is commonly referred to as the ‘biodiversity duty’.
Section 41 of the Act requires the Secretary of State to publish a list of habitats and species which are of ‘principal importance for the conservation of biodiversity’. This list is intended to assist decision makers such as public bodies in implementing their duty under Section 40 of the Act. Under the Act these habitats and species are regarded as a material consideration in determining planning applications. A developer must show that their protection has been adequately addressed within a development proposal.
National Planning Policy Framework 2025
The National Planning Policy Framework promotes sustainable development in England.
Paragraph 187 states that planning policies and decisions should seek to protect and enhance sites of biodiversity value and minimise impacts on biodiversity as well as providing biodiversity net gains.
Paragraph 192 states that in order to protect and enhance biodiversity, plans should identify, map and safeguard components of local wildlife-rich habitats and wider ecological networks and promote the conservation, restoration and enhancement of priority habitats, ecological networks and the protection and recovery of priority species; and identify and pursue opportunities for securing measurable net gains for biodiversity.
Government Circular 06/2005
Government Circular 06/2005 was produced in connection with the Planning Policy Statement 9: Biodiversity and Geological Conservation which has now been revoked and replaced by the National Planning Policy Framework.
The National Planning Policy Framework references the Circular and the guidance contained within, namely the statutory obligations for biodiversity and geological conservation and their impact within the planning system.
The Circular provides guidance on the protection of designated international and national nature conservation sites, non-designated sites, the conservation of species, and advice on the related issues and statutory powers.
Part IV relates to conservation of species protected by law and confirms the presence of such a species is a material consideration for planning decisions. Paragraph 99 states “It is essential that the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before the planning permission is granted, otherwise all relevant material considerations may not have addressed in making the decision”.
Paragraphs 104 to 117 summarise legal status of species afforded protection under the Habitats Regulations (now, the 2017 Regulations) and the licensing process while paragraphs 118 to 122 explain the same for species afforded protection under the Wildlife and Countryside Act. Paragraphs 123 and 124 summarise the protective status of badgers under the Protection of Badgers Act.
National Legislation and Policy (Wales)
Environment (Wales) Act 2016 and the Biodiversity Duty
The Environment (Wales) Act 2016 introduces a new biodiversity duty, which highlights biodiversity as an essential component of ecosystem resilience. This new duty replaces the biodiversity duty in the Natural Environment and Rural Communities Act 2006. Part 1 of the Act deals with Sustainable management of natural resources including Biodiversity and Resilience of Ecosystems Duty. The Environment Act enhances the current NERC Act duty to require all public authorities, when carrying out their functions in Wales, to seek to “maintain and enhance biodiversity” where it is within the proper exercise of their functions. In doing so, public authorities must also seek to “promote the resilience of ecosystems”. As under the NERC Act the new duty will apply to a range of public authorities such as the Welsh Ministers, local authorities, public bodies and statutory undertakers. This ensures that biodiversity is an integral part of the decisions that public authorities take in relation to Wales. It also links biodiversity with the long-term health and functioning of our ecosystems, therefore helping to align the biodiversity duty with the framework for sustainable natural resource management provided in the Act.
Planning Policy Wales (2021)
Paragraph 6.4.3 of the document refers to Biodiversity and Ecological Networks and states:
The planning system has a key role to play in helping to reverse the decline in biodiversity and increasing the resilience of ecosystems, at various scales, by ensuring appropriate mechanisms are in place to both protect against loss and to secure enhancement. Addressing the consequences of climate change should be a central part of any measures to conserve biodiversity and the resilience of ecosystems. Information contained in SoNaRR, Area Statements and species records from Local Environmental Record Centres should be taken into account. Development plan strategies, policies and development proposals must consider the need to:
Biodiversity and Resilience of Ecosystems Duty (Section 6 Duty)
Planning authorities must seek to maintain and enhance biodiversity in the exercise of their functions. Planning authorities must also take account of and promote the resilience of ecosystems, in particular the following aspects:
In fulfilling this duty, planning authorities must have regard to:
Planning Authorities should also refer to up to date ecological survey information (where appropriate).
A proactive approach towards facilitating the delivery of biodiversity and resilience outcomes should be taken by all those participating in the planning process. In particular, planning authorities should demonstrate that they have sought to fulfil the duties and requirements of Section 6 of the Environment Act by taking all reasonable steps to maintain and enhance biodiversity in the exercise of their functions.
The broad framework for implementing the duty and building resilience through the planning system includes addressing:
Good Practice Guide GPG 3 (October 2015) NRW Approach to Bats and Planning
As explained in Planning Policy Wales (Chapter 5 - Conserving and Improving Natural Heritage and the Coast), the presence of a European protected species is a material consideration for a development proposal that would be likely to result in disturbance or harm to the species or its breeding sites or resting places. Planning Policy Wales also explains that planning authorities should seek the advice of Natural Resources Wales for all planning applications likely to result in disturbance or harm to bats and should always consult them before granting permission. Local Planning Authorities address this by screening applications to identify when there is a reasonable likelihood that bats may be present and, therefore, when to require a bat survey and report that will confirm if bats are present and if they likely to be disturbed or harmed by the proposal. The overall requirement on Local Planning Authorities, Natural Resources Wales and developers is to avoid harm or disturbance to bats and their breeding sites and resting places, unless Natural Resources Wales has given a licence to allow the harm or disturbance. Natural Resources Wales may only give a licence if the requirements for derogation are met, including that disturbance or harm to individual bats (or to their breeding sites and resting places) would not be detrimental to the maintenance of the population.
Implications for Developments
This section outlines the implications of the above legislation and policy in relation to designated sites, habitats, plants and protected species.
European Designated Sites
Special Areas of Conservation (SACs) and Special Protection Areas (SPAs) are sites of European importance and are designated under the EC Habitats Directive 92/43/EEC on the Conservation of natural habitats and of wild fauna and flora (the Habitats Directive) and the EC Birds Directive 2009/147/EC on the conservation of wild birds (the Wild Birds Directive) respectively. Both form part of the wider Natura 2000 network across Europe and the National Site Network (sites within the UK, following Brexit).
Under the Habitats Directive Article 3 requires the establishment of a network of important conservation sites (SACs) across Europe. Over 1000 animal and plant species, as well as 200 habitat types, listed in the directive's annexes are protected in various ways:
SPAs are classified under Article 2 of the Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds both for rare bird species (as listed on Annex I) and for important migratory species.
The Conservation of Habitats and Species Regulations 2017 (as amended) form the legal basis for the implementation of the Habitats and Birds Directives in terrestrial areas and territorial waters out to 12 nautical miles in England and Wales (including the inshore marine area) and to a limited extent in Scotland and Northern Ireland.
Ramsar sites are designated under the Convention on Wetlands of International Importance, agreed in Ramsar, Iran, in 1971. The Convention covers all aspects of wetland conservation and recognises the importance of wetland ecosystems in relation to global biodiversity conservation. The Convention refers to wetlands as “areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres”. However, they may also include riparian and coastal zones. Ramsar sites are statutorily protected under the Wildlife & Countryside Act 1981 (as amended) with further protection provided by the Countryside and Rights of Way (CRoW) Act 2000. Policy statements have been issued by the Government in England and Wales highlighting the special status of Ramsar sites. The Government in England and Wales has issued policy statements which ensure that Ramsar sites are afforded the same protection as areas designated under the EC Birds and Habitats Directives as part of the National Site Network (e.g. SACs & SPAs). Further provisions for the protection and management of SSSIs have been introduced by the Nature Conservation (Scotland) Act 2004.
Nationally Designated Sites
Sites of Special Scientific Interest (SSSI) are designated by nature conservation agencies in order to conserve key flora, fauna, geological or physio-geographical features within the UK. The original designations were under the National Parks and Access to the Countryside Act 1949 but SSSIs were then re-designated under the Wildlife & Countryside Act 1981 (as amended). As well as reinforcing other national designations (including National Nature Reserves), the system also provides statutory protection for terrestrial and coastal sites which are important within the National Site Network.
Statutory Locally Designated Sites
Local authorities in consultation with the relevant nature conservation agency can declare Local Nature Reserves (LNRs) under the National Parks and Access to the Countryside Act 1949. LNRs are designated for flora, fauna or geological interest and are managed locally to retain these features and provide research, education and recreational opportunities.
Non-Statutory Locally Designated Sites
Non-statutorily designated sites can be designated by the local authority for supporting local conservation interest. Combined with statutory designation, these sites are considered within Local Development Frameworks under the Town and Country Planning system and are a material consideration during the determination of planning applications. The protection afforded to these sites varies depending on the local authority involved. There is variation as to how non-statutory designated sites are referred to by local authorities nationally and this may include (but not be limited to) Local Wildlife Sites (LWS), County Wildlife Sites (CWS), Sites of Biological Importance (SBI) or Biological Heritage Sites (BHS).
Protected Plants
With certain exceptions, all wild plants are protected under the WCA. This makes it an offence for an ‘unauthorised’ person to intentionally (or recklessly in Scotland) uproot wild plants. An authorised person can be the owner of the land on which the action is taken, or anybody authorised by them.
Certain rare species of plant, for example some species of orchid, are also fully protected under Schedule 8 of the Wildlife and Countryside Act 1981 (as amended). This prohibits any person from:
In addition to the UK legislation outlined above, several plant species are fully protected under Schedule 5 of The Conservation of Habitats and Species Regulations 2010. These are species of European importance. Regulation 45 makes it an offence to:
Invasive Non-Native Plants
Part II of Schedule 9 of the WCA lists non-native invasive plant species for which it is a criminal offence in England to plant or cause to grow in the wild due to their impact on native wildlife. Species included (but not limited to):
Injurious Weeds
Under the Weeds Act 1959 any landowner or occupier may be required prevent the spread of certain ‘injurious weeds’ including (but not limited to):
Amphibians and Reptiles
The sand lizard Lacerta agilis, smooth snake Coronella austriaca, natterjack toad Epidalea calamita, pool frog Pelophylax lessonae and great crested newt Triturus cristatus receive full protection under Habitats Regulations through their inclusion on Schedule 2. Regulation 41 prohibits:
a) To impair their ability to survive, breed, or reproduce, or to rear or nurture young;
b) To impair their ability to hibernate or migrate;
c) To affect significantly the local distribution or abundance of the species.
With the exception of the pool frog, these species are also listed on Schedule 5 of the WCA and they are additionally protected from:
Other native species of reptiles are protected solely under Schedule 5, Section 9(1) & (5) of the WCA, i.e. the adder Vipera berus, grass snake Natrix natrix, common lizard Zootoca viviparaand slow-worm Anguis fragilis. It is prohibited to:
Badgers
Badgers Meles meles are protected under The Protection of Badgers Act 1992 which makes it an offence to:
Bats
All species are fully protected by Habitats Regulations 2010 as they are listed on Schedule 2. Regulation 41 prohibits:
a) To impair their ability to survive, breed, or reproduce, or to rear or nurture young;
b) To impair their ability to hibernate or migrate;
c) To affect significantly the local distribution or abundance of the species.
Bats are afforded the following additional protection through the WCA as they are included on Schedule 5:
Birds
With certain exceptions, all birds, their nests and eggs are protected under Sections 1-8 of the WCA. Among other things, this makes it an offence to:
Certain species of bird, for example the barn owl, bittern and kingfisher receive additional protection under Schedule 1 of the WCA and are commonly referred to as “Schedule 1” birds.
This affords them protection against:
Hazel Dormice
Hazel dormice Muscardinus avellanariusare fully protected under Habitats Regulations through their inclusion on Schedule 2. Regulation 41 prohibits:
a) To impair their ability to survive, breed, or reproduce, or to rear or nurture young;
b) To impair their ability to hibernate or migrate;
c) To affect significantly the local distribution or abundance of the species.
Dormice are also protected under the WCA through their inclusion on Schedule 5. Under this Act, they are additionally protected from:
Otters
Otters Lutra lutra are fully protected under the Conservation Regulations through their inclusion on Schedule 2. Regulation 41 prohibits:
a) To impair their ability to survive, breed, or reproduce, or to rear or nurture young;
b) To impair their ability to hibernate or migrate;
c) To affect significantly the local distribution or abundance of the species.
Otters are also currently protected under the WCA through their inclusion on Schedule 5. Under this Act, they are additionally protected from:
Water Voles
The water vole Arvicola amphibius is fully protected under Schedule 5 of the WCA. This makes it an offence to:
White Clawed Crayfish
There is a considerable amount of legislation in place in an attempt to protect the White-clawed crayfish Austropotamobius pallipes. This species is listed under the European Union’s (EU) Habitat and Species Directive and is listed under Schedule 5 of the Wildlife and Countryside Act (1981). This makes it an offence to:
Last Updated
14 January 2025
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