Great crested newts

GCN and their breeding sites and places of shelter receive full statutory protection under the:

• Wildlife and Countryside Act 1981 (as amended)
• the Conservation of Habitats and Species Regulations 2010 (as amended) (the Habitats Regulations)

It is an offence to kill, injure, take, or disturb any great-crested newt, or damage or disturb any breeding site or place of shelter.

The combined effect of the national and European legislation is to give full protection to all of GCN’s life stages and to their aquatic and terrestrial habitats. This includes habitats used to migrate or disperse between breeding, foraging and refuge sites.

Developers and landowners wanting to undertake activities that may affect great crested newts should get site-specific advice before creating designs and a programme.

Development proposals or activities affecting GCN or their habitats must provide for the species’ and its habitats’ conservation under licence from Natural Resources Wales (NRW).

If proposals need any consent like planning or listed building consent, or extraction licences, it must be active and provided to NRW with the licence application.

Developers and landowners should note that licences are often needed from NRW to carry out development and vegetation clearance works that affect GCNs. This includes any other European protected species, and is irrespective of whether planning permission is needed for those works. Failing to get a licence before starting development or site clearance works could result in offences being committed. This could lead to delay, prosecution, fines, confiscation of equipment, legal fees and, potentially, a custodial sentence.

A licence is granted under the provisions set out in the Habitats Regulations. To grant a licence, NRW must be satisfied that the proposed activity meets the Habitats Regulations’ criteria, which are known as “the three tests”.

The three tests

These tests cover:

• the need for the proposed development/activity
• consideration of possible alternatives such as for activity, method, timing, phasing, location
• maintaining the favourable conservation status of the GCN population to be affected

Similarly, the Habitats Regulations requires us to consider a proposed development’s affect on GCNs before determining planning applications that could affect them or their habitats. Therefore we must also be satisfied that the proposals will meet the criteria of the Habitats Regulations’ three tests before granting planning consent. This duty is irrespective of whether the application is for outline, reserved matters or full planning.

The developer or landowner must give enough information to help us assess proposals against the Habitats Regulations and, if a licence is required, help NRW. This information includes:

• up to date presence/absence survey data
• a population estimate, if present
• a habitat assessment
• an impact assessment
• a mitigation and compensation strategy
• a management and monitoring plan

Penalties:

The maximum penalty for non-compliance with the above legislation for each offence is a £5000 fine and/or six months imprisonment. Any equipment used to commit the offence may be forfeited. Both the company and individuals can be held liable.

Guidance note one:

We will require a GCN survey if:

• there is any water body on or within 500m of the boundary of the development site, with the exception of rivers or streams with a noticeable flow
• there are existing GCN records on or within 500m of the boundary of the development site

This survey needs to be undertaken by a suitably experienced and qualified ecologist.

GCN can be found in ephemeral ponds that hold water until at least August.

A records search for GCN

When suitable water bodies are present on or within 500m of a site, run a records search to identify local, previously identified GCN populations. The search for records should be made to at least 500m from the proposal site and sometimes further depending on the development’s scale. Consider likely impacts of the development and whether a landscape scale population assessment approach may be beneficial.

Ask the South East Wales Biological Records Centre to make a search. Also, other relevant organisations may hold useful data including NRW and local amphibian and reptile groups.

Site developers will still need to refer to guidance sheets relating to reptiles, amphibians and bats if:

• no records of GCN are present within 500m of the development site
• the survey does not confirm presence of GCN, but there are water bodies on and adjacent to the development

Guidance note two:

If the proposed development is within eight metres of a watercourse, please consult NRW.

Guidance note three:

We will only accept survey/assessment work completed by a suitably qualified person within the recognised survey guidelines.

General survey guidance for protected species can be found in ‘Guidance Sheet B9: Survey Requirements’. In addition The Great Crested Newt handbook provides detailed guidance for surveying GCN. The appointed ecologist should make an assessment of any ponds on or near the site even if they only hold water seasonally. They should be within around 500m provided that they are not separated by significant barriers to dispersal such as a major trunk road or motorway.

Muddy, cattle-poached, heavily vegetated or shady ponds, ditches and temporary, flooded hollows can be used by GCN.

Sites with refuges such as log piles or rubble, grassland, scrub, woodland or hedgerows within 500m of a pond should be surveyed/protected. This is provided that they are not separated by significant dispersal barriers like a major trunk road or motorway.

A habitat survey should also be run in the proposal site to determine the site’s value to terrestrial amphibians and for them to breed.

The Habitat Suitability Index can be used to identify potential breeding ponds for GCN. However:

• the Habitat Suitability Index only gives an estimate of the likelihood that a pond could be used by GCN
• it works only with ponds, and is not suitable for use with lakes, ditches or running waters
• it cannot be used to determine presence or likely absence of GCN
• it cannot be used as a replacement for a full survey

All suitable ponds identified during the preliminary appraisal should be subject to a survey to establish the presence of GCN. A pond survey is the only way to effectively and confidently confirm the presence of GCN, their abundance and, in many cases their population distribution. It is the surest way of providing sufficient information to us and NRW. However, pond surveys are highly seasonal. They must be run at the correct time of year, or risk being inadequate to validate planning or licence applications or be subject to challenge.

Terrestrial surveys may assist GCN assessments, but cannot provide robust population information without considerable cost, effort and time.

To determine if GCN are present, the pond must be surveyed on four separate occasions. If great crested newts are found, at least two further surveys must be run to establish a population size class. Surveys for great crested newts are licensable activities and must be made by a suitably qualified and experienced ecologist licensed for the survey methods chosen.

Guidance note four:

Where surveys show the development proposal will affect GCNs, a method statement should be sent with the planning application for us to register the application. If the proposed avoidance, mitigation, compensation measures are unsatisfactory, the Local Planning Authority will refuse the planning application.

The data obtained from the GCN surveys must be formulated into a method statement which is submitted to us to inform our planning decision.

The method statement should detail the survey area, project proposals, survey methods and results. The method statement should present the impact assessment which details how aquatic and terrestrial habitats as well as the amphibians might be affected. Impacts should be classed as temporary, short term or long-term and the scale of each impact should be identified. The method statement should include practical avoidance measures and, where avoidance is impossible, provide a detailed mitigation strategy with a timetable.

The method statement should also identify whether a licence is needed before commencing development activities.

Developers and landowners should note that we will not condition the production of the method statement. The information in the method statement is needed to help us make our determination regarding the Habitats Regulations. Applications which anticipate an effect on GCN due to the proposals, but which don’t have an appropriate method statement will most likely not be validated.

If the application is validated, but information about GCNs is later found insufficient during the determination, this may affect the planning decision.

NRW has a standard method of application for licences for developments. Briefly, a licence application needs the developer or landowner undertaking the proposed works to appoint a suitably qualified, experienced ecologist which the licence application names. The appointed ecologist will most likely be responsible for coordinating the licence application, which needs a completed application form and method statement. The method statement must be to the approved NRW format, which is provided with the licence application information. It will present much the same information as we need to inform the planning application.

Normally licence applications take up to 30 days for a decision.

The licence granted will have conditions attached and will only be valid with the approved method statement. The licence permits only those activities identified in the method statement. Thus it is important that developers and landowners carefully review and agree the method statement before submission.

Breach of licence

The activities and measures detailed in a licence are there to avoid unnecessary harm to protected species. Failure to follow the licence’s exact measures can lead to prosecution. Any activity carried out that deviates significantly from the licensed method statement may be considered a breach of the licence. This includes works carried out in different locations, using different methods or at a different time than that identified in the method statement. The licence may be considered breached if committed works identified in the method statement are not done as specified such as:

• inspecting and maintaining exclusion fencing
• carrying out monitoring and management works
• mitigation measures supervised onsite by the ecologist

Breaching the licence is illegal. Under the current law, anyone authorised to conduct activities under the licence may be held responsible for breaches of the licence’s terms and conditions.

Therefore, fully brief all staff and contractors onsite about the licence and its implications for working onsite before allowing them to start onsite. Keep onsite at all times:

• an updated copy of the licence and the associated method statement
• any identification sheets that may be helpful to site workers
• contact details for the appointed ecologist

Expiration of the licence

Licences have an expiry date. If works need to continue beyond the expiry date, you must apply for an extension. An extension cannot be issued for an expired licence. Once a licence has expired, you must apply for a new licence. Depending on the time elapsed from expiry, this may or may not need extra surveys to ensure accurate and updated information supports the licence application.

Guidance note five:

Developers/applicants must give enough evidence to show avoidance is impossible before mitigation or compensation are considered viable alternatives.

Avoidance measures built into development proposals may remove the need for detailed survey work. We will seek expert advice from NRW in determining cases when this may be applicable.

Avoidance measures are those that can reasonably be done to avoid an offence occurring. As such, these Reasonable Avoidance Measures (RAMs) can often avoid the need for a licence. RAMs are the preferred approach when considering a scheme’s design. RAMs may include measures ranging from:

• revising the site layout to avoid losing an important feature
• carrying out works at a time which is less likely to result in disturbance
• amending working methods to reduce impacts to an acceptable level

If RAMs are practical in a scheme, these must still be detailed in a method statement which is sent to us for approval. Implementing the measures outlined in the RAMs method statement will likely be a condition of resulting planning consent.

If the RAMs acceptably avoid all anticipated affects on GCN and their habitats, a licence is unlikely to be needed. Often this avoids or reduces delays to starting development, and regularly reduces costs too. Therefore during the master-planning process, it is important to create communication channels between your architects whether landscape or otherwise and your chosen suitably qualified ecologist. This will guide the design and programme at an early enough stage to identify whether RAMs may be a suitable approach.

Early identification and incorporation of green infrastructure assets like hedgerows, trees, or ponds into a development will help reduce a scheme’s development impact. Also it provides opportunities for RAMs, and avoids more complex mitigation and compensation schemes which may need a license.

For example the development could keep a GCN breeding pond in its design, with a suitable vegetation buffer and connectivity to other ponds. This could demonstrate the development’s avoidance of impact on GCNs. Constructing additional ponds and planting hedgerows for improved connectivity may create a net benefit.

Guidance note six:

Where RAMs cannot satisfactorily avoid affecting GCNs, mitigation measures will be needed so GCNs are unharmed and there is no net loss of their habitats.

See the mitigation guidelines for GCNs on Natural England’s website. Additional information can be found in the Great Crested Newt Habitat Management Handbook, Froglife.

Depending on the development’s scale and predicted effects, it may be impossible to rely on RAMs alone to solve all potential impacts. Early communication across the design team will promote greater understanding of all constraints whether ecological or otherwise, and allow balanced approaches to development design.

The exact measures needed will depend on the population size, distribution and proximity to the works and their scale, timing and duration. Measures could include trapping out the site to remove any GCN and installing fencing to prevent newts and other animals re-entering the site during construction.

The method statement should detail mitigation measures for implementation. As they will be licensed activities, they must be carried out in strict accordance with the method statement.

Guidance note seven:

Compensation will only be considered where the developer/applicant has satisfactorily shown avoidance and mitigation are impossible and the compensatory measures don’t cause net habitat loss.

Where mitigation cannot satisfactorily reduce all potential impacts to satisfactory levels, extra compensation measures will likely be needed. Compensation measures will be requirements of the licence. All compensation measures outlined in the licence must be adhered to, and failure to do so is illegal.

Usually compensation measures are associated with habitat losses. For example, if the proposed development cannot avoid losing a pond, compensatory pond(s) should be created before the original pond’s loss as per the licence. At least two new ponds must be created to compensate the loss of a GCN breeding pond.

Lost terrestrial habitats also need offsetting, so that enough terrestrial habitat is provided to maintain breeding, foraging, refuge and dispersal functions for the affected population. The population size and natural range must also be maintained. Consequently, consider the connectivity between retained habitats, new habitats and existing habitats in the wider area.

Habitat compensation must be provided ahead of exclusion of the site and capturing GCNs. This will enable the transfer of amphibians and other fauna to the compensation area/s before development disturbs them.

Large development sites can enhance surrounding habitats. Connecting corridors for newts and other plants and animals can provide natural interest for residents.

Enhancements can include:

• incorporating wildlife ponds including adjoining terrestrial habitat into new developments even if the development does not affect GCN
• creating ‘networks’ of ponds linked by suitable terrestrial habitat
• creating/enhancing refuges/over-wintering sites within existing as well as new habitat

Where GCN are affected by the loss of a pond, mitigation measures should include recreating ponds on a two for one basis.