Advice for Property Developers

Background

There are reports regularly to all police forces in Scotland that indicate that properties are developed or repaired while they house bat roosts or nesting birds. The building of new properties sometimes displaces badgers without a licence to do so being in force, or less commonly new properties are built too close to a badger sett.

On some occasions land is bulldozed or flattened on sites that are home to protected creatures such as great-crested newts or otters, or as is much more frequently reported, scrub is cleared in spring and early summer while birds are nesting.

Mature or semi-mature trees are sometimes felled to make room for building development and while an appropriate felling licence or council planning permission may be issued to permit the felling, this does not circumvent the need to ensure, so far as is possible, that there are no nesting birds, bat roosts or red squirrel dreys in the trees, or that their removal is not likely to adversely affect a badger sett.

Legislation

The Wildlife and Countryside Act 1981, as amended by the Nature Conservation (Scotland) Act 2004, covers offences committed against birds. It is an offence to intentionally or recklessly

kill, injure or take any wild bird
take damage destroy or otherwise interfere with the nest of any wild bird while it is in use or being built
obstruct or prevent any wild bird from using its nest

Putting this in context, birds, especially swallows, swifts and house martins, often nest in old properties. As soon as they begin to build a nest it is protected, and nests will be in continuous use from early April often until the end of September.

Tree-nesting and scrub-nesting birds will be actively building nests and rearing young from early March until early August. Even if the birds are those that are often considered to be pests, such as sparrows, rooks and pigeons, their nests are protected unless their destruction can be justified under one or more of the General Licences issued by the Scottish Government.

The Act also protects red squirrels from being intentionally or recklessly killed, injured, or any structure or place it occupies or uses for shelter or protection being damaged or destroyed, or the animal being disturbed while it is occupying such a structure or place.

The Conservation (Natural Habitats etc) Regulations 1994 give full protection to European Protected Species (EPS) which in this context are the otter, great-crested newt and all species of bat. It is an offence to deliberately or recklessly

capture, injure or kill a wild animal of EPS
harass, or disturb such an animal while it is occupying a structure or place which it uses for shelter or protection or while it is caring for its young
obstruct access to a breeding site or resting place of such an animal, or deny the animal the use of the breeding site or resting place, or disturb such an animal in a manner that is, or in circumstances which are, likely to affect the local distribution or abundance of the species to which it belongs
take or destroy the eggs of such an animal (great-crested newt)
to damage or destroy a breeding site or resting place of such an animal (Note this is an absolute offence and does not need to be carried out deliberately or recklessly.)

Offences range from filling in ponds that have great-crested newts, to damaging or obstructing otter holts on river banks or obstructing or destroying bat roosts during re-roofing work. Bat roosts are protected even when bats are not present and if a roost is destroyed it is not necessary to gain a conviction that it be proved that the person involved had knowledge that such a place was a bat roost.

The Protection of Badgers Act 1992 gives protection to badgers and badger setts. It is an offence to

wilfully kill, injure or take a badger
damage, destroy or obstruct a badger sett, or disturb a badger when it is occupying a badger sett

In context, it is an offence to destroy a sett during ground preparations for building, or to fell trees close-by a badger sett.

General advice to planners, developers, builders, plant operators, foresters, tree fellers etc.

Plan work for a time of year least likely to cause disturbance to wildlife and remember licences, if required, may only be issued at certain times of the year
Consider employing a competent and appropriate wildlife consultant to inspect the site well before work is due to commence and prepare an environmental impact assessment
Seek advice as required from the following
Scottish Government (Licensing section) - 0131 244 7381
Scottish Natural Heritage (Licensing section) - 01463 725000
Scottish Badgers - 01356 624851
Bat Conservation Trust - 0845 1300 228 (Helpline)

Police Wildlife Crime Officers (Force by Force contacts)

Central Scotland : Insp Brian Sharkey, Callander. 01877 332630
Dumfries & Galloway : Sgt Scott McLachlan, Dumfries. 0845 600 5701
Fife : Det Sgt Graeme Mitchell, Glenrothes. 01592 411907
Grampian : Supt Alan Smailes, Elgin. 0845 600 5700
Lothian & Borders : PC Jim McGovern, HQ. 0131 311 3517
Northern : Ch Insp Paul Eddington, Dingwall. 01436 715555
Strathclyde : Joe Connelly, HQ. 0141 532 6885
Tayside : Alan Stewart, Perth. 01738 892650

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