Bat Mitigation and Licensing

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What is the role of a bat consultant in the planning process?

The first duty of a bat consultant is to ensure clients at all times are aware of their legal obligations. Being protected by the full weight of the law from disturbance of both the bats themselves and their habitat likewise, it is crucially important that planning applicants and developers are aware of the need to ensure their proposed development does not affect or destroy a roost. To do so would be a criminal offence. However, though a serious matter, dealing with protected species on development sites need not be difficult or present a planning applicant with any real risk of refusal.

The second duty is to assist the applicant in securing a planning consent. Guided by the bat consultant, applicants can ensure that mitigation and enhancements for the loss of roosting opportunities—bat habitat—are offered within a planning application. In doing so, the applicant therefore satisfies ODPM Circular 06/05 and PPS9: central government guidance which insists that protected species issues are dealt with as a material consideration by planning officers, prior to a decision being issued. Essentially, since the inception of these documents, matters of bat mitigation cannot be left to conditions of consent. This concept has been tested twice in the Supreme Courts. Most notably, in what has become known as “the Woolley case,” Simon Woolley brought a prosecution against Cheshire East council for not properly applying the tests of the EC Habitats Directive in deciding on a planning application. The judicial review of this case, in the Court of Appeal and Supreme Court found both times in the favour or Mr Woolley and set the precedent which carries through to today.

How is mitigation decided upon?

A Bat survey provides scientific information about the species of bats and population numbers using a site, tree or building. Whether through scoping or emergence surveys, the data collected is combined with the bat consultant’s knowledge of the nature and biology of bats—the ecology of that or those species—ensuring that whatever habitat mitigation or enhancements as proposed, cannot be robustly challenged by third party objectors or the planning officers themselves. In some cases, the mitigation measures may require a European protected species license, or EPSL, to ensure that the actions can be undertaken legally (destroying a bat roost without a license is unlawful without an EPSL.) This process is a separate matter to seeking a planning consent and requires, more often than not, that planning obligations are fully satisfied prior to applying for a mitigation license. Bat consultants can also advise on the timing of mitigation. As bats hibernate in temperate climates, to avoid be active at times where the insects they predate on are much less abundant, so they have to undergo much biological change in order to survive this period. In consequence they are very sensitive to being disturbed while in a state of torpor and indeed, to do so could kill a bat. For this reason, often the mitigation needs to be executed outside of the hibernation season, which is typically November through April inclusive. Delays and costs associated with this are implicit, so the earlier you engage an ecologist to survey at your site, so the better informed and less planning risk you will have.

If you found this article useful, please let us know. Or to obtain a quote for a bat survey or mitigation method statement call Arbtech today on 08450 176950.