Legislation and Policy

Overview

The hazel dormouse Muscardinus avellanarius is legally protected under Schedule 5 of the Wildlife and Countryside Act 1981 (as amended) and is afforded significant further protection as a European Protected Species under the Conservation of Habitats and species Regulations 2010 (as amended). Collectively and in summary, this legislation inter alia makes it an offence to:

  • Intentionally or deliberately kill, injure or capture dormice;
  • Intentionally, deliberately or recklessly disturb dormice in such a way as to be likely to significantly affect the ability of any significant group of dormice to survive, breed, or rear or nurture their young or the local distribution of or abundance of the species;
  • Intentionally or recklessly damage, destroy or obstruct access to places used by Dormice for shelter or protection (whether occupied or not) or intentionally or recklessly disturb a dormouse whilst it is occupying such a place;
  • Damage or destroy a breeding site or resting place of a dormouse;
  • Possess or transport a dormouse (or any part thereof) unless under licence; and
  • Sell or exchange dormice.

Development proposals affecting the dormouse require a European Protected Species licence from Natural England.

Conservation Status

IUCN status was revised in 2009: M. avellanarius is now ‘of least concern’, whereas previously it was ‘low risk (near threatened)’. This change is predominantly due to the observation that in Lithuania it is a common and widespread species, and no decline has been observed.  In parts of its northern range (e.g., UK, Netherlands, Sweden, Germany, Denmark) populations are declining and fragmented as a result of habitat loss and fragmentation

The Natural Environment and Rural Communities Act 2006

The hazel dormouse is a ‘Species of Principal Importance for the conservation of biodiversity’ (sometimes referred to as a ‘’Priority Species’’), listed under section 41 of the NERC Act 2006.

The Natural Environment and Rural Communities (NERC) Act 2006 was intended to raise the profile of biodiversity amongst all public authorities (including local authorities, and statutory undertakers) and to make biodiversity an integral part of policy and decision-making processes. The NERC Act also improved wildlife protection by amending the Wildlife and Countryside Act 1981.

Section 40 (S40) of the Act places a ‘Biodiversity Duty’ on all public bodies to have regard to the conservation of biodiversity when carrying out their normal functions. This includes giving consideration to the restoration and enhancement of species and habitats.

Section 41 (S41) 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 in England.  Public authorities have a responsibility to give specific consideration to the S41 list when exercising their normal functions. For planning authorities, consideration for Species and Habitats of Principal Importance will be exercised mainly through the planning and development control processes.

Planning Policy

Section 11 of the National Planning Policy Framework (NPPF) provides guidance on conserving and enhancing the natural environment through the planning system and replaces the preceding Planning Policy Statement 9 (PPS9):  Biodiversity and Geological Conservation.

As mentioned above dormice are a S41 ‘Species of Principal Importance for the conservation of biodiversity’. The NPPF specifies that when determining planning applications and writing planning policies, local planning authorities should aim to conserve and enhance ‘biodiversity’ including by applying the following principles:

  • if significant harm resulting from a development cannot be avoided, adequately mitigated or (as a last resort) compensated for, then planning permission should be refused;
  • planning policies should promote the preservation, restoration and re-creation of priority habitats, ecological networks and the protection and recovery of priority species populations, linked to national and local targets, and identify suitable indicators for monitoring biodiversity;
  • planning permission should normally be refused for development resulting in the loss or deterioration of irreplaceable habitats, including ancient woodland and the loss of aged or veteran trees found outside ancient woodland;
  • development proposals where the primary objective is to conserve and enhance biodiversity should be permitted;
  • opportunities to incorporate biodiversity in and around developments should be encouraged.

In addition to National Policy summarised above, Local Planning Authorities will have their own emerging or adopted Local Plan policies, which may set out how planning decisions will be made with respect to biodiversity and species such as Hazel Dormice.

Guidance

Further guidance on the treatment of hazel dormice in the planning system is set out in summary on the Government’s website https://www.gov.uk/hazel-dormice-protection-surveys-and-licences

However, this guidance is largely unhelpful, and more comprehensive advice is provided in the Natural England Dormouse Conservation Handbook (2nd Ed, 2006), and a later Interim Guidance Note released by NE.

Further to the above, Government Circular 06/05 (which at the time of writing was still extant) advises that the presence of a protected species is a material consideration when determining a development proposal, and the extent to which they may be affected by a proposed development should be established before permission is granted.

Biodiversity Plans and Strategies

The UK Biodiversity Action Plan 2007 (UK BAP) has been superseded by the UK Post-2010 Biodiversity Framework, and individual national biodiversity strategies. The UK framework sets out the overarching vision, strategic goals and priority activities for the UK’s work towards international biodiversity targets (known as the ‘Aichi Targets’), as agreed by 192 parties at the UN Convention on Biological Diversity in 2010. The Framework’s overall vision is that “by 2050, biodiversity is valued, conserved, restored and wisely used, maintaining ecosystem services, sustaining a healthy planet and delivering benefits essential for all people.”

In England, Biodiversity 2020: A strategy for England’s wildlife and ecosystem services is the national biodiversity strategy, which has the stated mission “(…)to halt overall biodiversity loss, support healthy well-functioning ecosystems and establish coherent ecological networks, with more and better places for nature for the benefit of wildlife and people.”  In order to focus activity and assess performance in achieving this mission, Biodiversity 2020 sets objectives relating to terrestrial and marine habitats and ecosystems, species and people.

In addition to the above National strategies, there are also a wide variety of local biodiversity strategies published by local nature partnerships. These may variously be referred to as Local Biodiversity Action Plans, Biodiversity Opportunity Areas (BOAs) or strategies, or Nature Improvement Areas (NIAs). There may also be local level designated sites, usually called Local Wildlife Sites (LWSs) or Sites of Nature Conservation Importance (SINCs) designated in part due to the presence of hazel dormice.

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