What is it with Great Crested Newts?

For a species that has spent the last 40 million years paddling around in ponds, celebrity (or perhaps notoriety) has come late in the career of the Great Crested Newt. However, for those in planning and environmental circles it is a familiar emblem: for some a bold illustration of species protection in action, for others a depressing example of red tape stifling development. And now, the Great Crested Newt is in the news again. This is because the way the newt is dealt with in the planning system is changing, bringing a radical new approach to how the government proposes to protect and encourage biodiversity.

The Great Crested Newt is currently protected under Schedule 2 of the Conservation of Habitats and Species Regulations 2010 and Schedule 5 of the Wildlife and Countryside Act 1981, which make it a criminal offence to damage or destroy the newts, their eggs, breeding sites or resting places without a licence from Natural England. In practice developers are often obliged to rescue and relocate individual newts from ponds prior to development. This can be an expensive and time consuming process, especially as relocation is restricted to certain times of year.

However, this is now set to change in a move towards "district level licensing".

The new system, developed by Natural England, involves gathering data to build up a picture of the distribution and habitat condition of the Great Crested Newt at district level. From this, the organisation will assess the impacts on the newts from all planned development in the whole district over the whole local plan period. Developers of affected sites will then pay a proportionate tariff for newt habitat creation. This marks a significant departure from the individual application assessments currently undertaken, which look only at a single site around the time of the application.

In August 2020, Natural England published its Action Plan for 2020-21, which supports the government's 25-year environment plan and includes details of plans to reform wildlife species licensing work towards the district licencing approach. On 19 August 2020, the government also updated its guidance on the Great Crested Newt Licencing scheme, inviting developers to pay to join a district level licensing scheme where these were available. These schemes will be operated by Natural England, Local Planning Authorities or third parties. As the guidance explains, the advantage to developers of paying to join such a scheme is that it avoids the need for them to carry out their own surveys, plan or mitigation work. However, at present such schemes can only be joined where a district level scheme operates in the area. Where a district level scheme is not available, developers will still need to apply for an individual licence to carry out work that affects great crested newts.

It is also important to understand these changes in the context of the wider shift from individual species protection to habitat protection, as introduced by the new biodiversity net gain regime set out in the Environment Bill 2019-2021. And, as with biodiversity net gain, these changes are also a work in progress. Developers should pay close attention to the continued roll-out of voluntary district-level licensing as, in due course, (should the system operate successfully on a local level) it is likely to become the norm across England. In addition, the government is also understood to be exploring how this approach could be expanded to other species.

Change in the way we balance the need to protect the environment and individual species against the need for infrastructure and development, remain very much in the air.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.