Standing Advice for Planning Consultations - Birds

Published date: June 2022

This is standing advice to help planning applicants to submit development proposals that avoid or minimise the disturbance or damage to wild birds and their nests, and minimise any adverse impacts on wild bird populations; and to assist planning officers and other regulators in ensuring that appropriate measures are in place to protect wild birds.

For most planning applications, this standing advice should mean there is no need for us to provide any further, case specific bird advice. We will only provide further advice in Planning Act cases where bird impacts potentially give rise to issues of national interest or in exceptional circumstances not covered by this standing advice. Issues of potential national interest include when the birds affected are part of the notified or qualifying interest of a Site of Special Scientific Interest (SSSI) or Special Protection Area (SPA), or where there are potentially significant impacts on a Natural Heritage Zone population. However, we may if necessary still provide additional bird advice for section 36 & section 37 Electricity Act cases in circumstances where there are no issues of national interest.

Consideration of birds in development management

Scottish Planning Policy requires that the presence (or potential presence) of legally protected species, such as wild birds, is factored into the planning and design of development proposals, and that any potential impacts on protected species are fully considered prior to the determination of planning applications.

All wild birds, their nests and eggs are protected by law and there are no licensing provisions for development works that would otherwise result in an offence being committed. It is essential therefore that, where necessary, a planning application includes appropriate measures to avoid the damage or disturbance of wild birds and their nests.

Legal protection for birds

All wild birds, and their nests, are protected by the Wildlife and Countryside Act 1981(as amended) (WCA). Offences relevant to development works include to intentionally or recklessly:

• kill, injure or take a wild bird;
• take, damage, destroy or interfere with a nest of any wild bird whilst it is in use or being built;
• obstruct or prevent any wild bird from using its nest;
• take or destroy an egg of any wild bird.

Species listed in Schedule 1 of the WCA are afforded additional protection due to their rarity, vulnerability or sensitivity to disturbance. For these species it is an offence to intentionally or recklessly:

• disturb any wild bird whilst it is building a nest or is in, on, or near a nest containing eggs or young:
• disturb any wild bird whilst lekking (where birds gather to display; applicable in Scotland to capercaillie and ruff);
• disturb the dependent young of any wild bird.

For species listed in Schedule 1A of the WCA (golden eagle, white-tailed eagle, hen harrier & red kite) it is also an offence to intentionally or recklessly:

• harass any wild bird at any time (any harassment but particularly relevant to roosting birds outwith the breeding season).

The nests of species listed in Schedule A1 of the WCA (golden eagle & white-tailed eagle) are also protected between breeding seasons as they are long-lasting structures that can be re-used by these birds from year to year. For these species it is an offence to intentionally or recklessly:

• take, damage, destroy or interfere with a nest at any time that is habitually used by any wild bird.

Further details are provided in Implications of additional protection for hen harrier, red kite and golden eagle under Schedules A1 & 1A of the Wildlife and Countryside Act (1981)

This means that if a bird is affected in these ways by a development, and no action is taken to prevent it, an offence may be committed. The advice below is aimed to help ensure that no offences occur and overall impacts on birds are minimised or removed.

Protected Areas

Some species of birds are protected further where they are the qualifying interest of a SPA or a notified interest of a SSSI.

Where a development might affect the qualifying interest of a SPA, the consenting authority must not permit the development unless it can show beyond reasonable scientific doubt that it will not adversely affect the integrity of the site. In these circumstances, the Habitats Regulations require a Habitats Regulations Appraisal (HRA) to be undertaken. A HRA is required for any effects occurring outwith, as well as within, the boundary of the SPA if there is a likely effect on a qualifying interest. For example the HRA should review any effects on the qualifying interest that are foraging/roosting beyond the boundary of the SPA (functionally linked land), or are using alternative nest sites outside of the SPA.

Our guidance assessing connectivity with SPAs lists typical foraging distances and distances between alternative nest sites for some key species, to help identify where development proposals outwith SPAs might still have an impact on SPA interests. As a precaution, maximum ranges presented in the guidance should to be taken into account when undertaking the HRA.

When a development could affect birds

Birds occur everywhere in all types of habitats, including highly urbanised or industrial areas and can use buildings for nesting and roosting. Birds could therefore potentially be affected by most development proposals due to direct mortality, disturbance, displacement and/or loss or damage of habitat.

If construction work is taking place during the breeding season, there is a risk of direct mortality, disturbing nesting birds or damaging their nests, and an offence being committed. The bird breeding season runs in the main from March to August, though the precise timing within this period varies from species to species, and some species start breeding earlier or finish later than this. The sensitive period when nests and dependent young could be affected will therefore depend on the species that are likely to nest in and around a development site. For details of the breeding seasons for different species see bird breeding season dates in Scotland.

The distances from development works at which breeding birds are at risk of disturbance is dependent on the species, habitat, terrain and the type of development activity, and may require the judgment of an experienced ornithologist. Most breeding birds are tolerant of some human activity and will only suffer significant disturbance when there is prolonged activity close to a nest. However, some more vulnerable species are prone to significant disturbance from larger distances, and by relatively short periods of human activity. We have guidance on the disturbance distances in selected Scottish bird species. We also have more specific guidance on the use of helicopters and aircraft in relation to disturbance risks to Schedule 1 and 1A raptors and wider Schedule 1 species

Outwith the breeding periods, the main risk of disturbance is from development close to where birds regularly congregate at important feeding or roosting sites. Disturbance distances are again dependent on the species and the particulars of a development proposal, and require the judgement of an experienced ornithologist.

A bird survey should be carried out where a development presents a risk of disturbing nesting birds or damaging their nests, or a risk of disturbance of important feeding and roosting sites, or where there is potentially significant loss or damage to bird habitats, or in direct connectivity to a protected area for which birds are either a qualifying interest (SPA) or notified interest (SSSI).

Carrying out a bird survey

Bird survey methods will vary depending on the nature and scale of the development and the species likely to occur, but should be done by persons with the appropriate knowledge of bird ecology and practical experience of bird survey work. For small developments where only common bird species are likely to be affected, the survey could just be a simple check of the development site and timing the works to make sure no bird nests are at risk of being damaged or disturbed (e.g. small residential developments). Larger developments, and particularly those requiring an Environmental Impact Assessment (EIA), will need more extensive surveys; potentially covering a wide range of different habitats and species, and requiring the application of a variety of survey methods. This is to help not only avoid any immediate damage or disturbance to birds and their nests, and avoiding an offence being committed, but also to assess the longer term impacts of any displacement and habitat loss or deterioration, particularly where rarer, more vulnerable species could be affected; and to inform measures to avoid, mitigate or compensate for potentially significant impacts.

Our guidance recommended bird survey methods to inform impact assessment of onshore wind farms provides detailed advice on bird survey requirements and methods specific to onshore wind farm development. However, it also includes bird survey advice and methods that are applicable more generally to other types of development, and therefore should be read for a wider scope of developments.

Reporting survey results

Where there are potentially significant impacts on birds from a development, and detailed bird surveys have been necessary, a survey report should be submitted as part of the planning application, and as part of an EIA where required.

The survey report should include:

• details of experience of surveyors;
• information gathered from Local Record Centres or other sources (eg. RSPB and the Scottish Raptor Monitoring Scheme;
• the methodology of each type of survey undertaken;
• survey details, including survey area, date, time and weather conditions;
• descriptions of habitat(s) surveyed;
• any limitations to the survey, such as access;
• maps showing the location of bird records in relation to the development and the extent of suitable habitat likely to be affected by the development; and
• an assessment of the importance of the bird populations surveyed and how they might be affected by the development.

If birds could be affected by the development, the report must include measures to minimise impacts on birds, this can be provided in a protection plan. The plan should include:

• measures proposed to minimise or remove impacts on birds, including annotated maps and/or photographs showing the location of any measures proposed and how they relate to survey information and construction work; and
• a summary of any residual impacts once the above measures have been implemented.

Measures to minimise impacts on birds

Measures to minimise impacts on birds should follow the hierarchy of avoidance, mitigation and compensation. Each measure implemented during development should be clearly identified within the survey report and protection plan. Some examples of measures that are commonly implemented are provided below:

Avoidance

• Design the development and construction methods to avoid damage or disturbance to important bird habitat and maintain habitat corridors; and/or
• Schedule works outwith the sensitive periods when birds could be affected. The sensitive period(s) for each bird is on a species by species and locational basis.

Mitigation

• Mark exclusion zones around bird nests (following the guidance above re. disturbance distances) or potential breeding habitat, and any important feeding and roosting sites that might be affected, where construction work can’t be avoided during sensitive periods; and/or
• If nesting birds are located and work needs to be undertaken within disturbance distance, delay works until breeding attempts have finished and any fledged young are fully independent or have moved away from any source of disturbance.
• A suitably qualified Ecological Clerk of Works (ECoW) should undertake both of the above measures.

Compensation

• Create new habitat (either onsite or offsite) where there is loss to existing habitat; and/or
• Restore any habitats where development has temporary disrupted the extent or function of it; and/or
• Enhancement of existing habitats (either onsite or offsite) to provide benefits for the target species.

For all development proposals where birds are potentially impacted, pre-construction surveys should be timetabled into project plans. This is to enable checks for any new breeding birds or nest locations different to those in the original survey, and to ensure the measures proposed to minimise impacts on birds remain appropriate due to the potential time gap between survey and construction commencing. A watching brief by a suitably qualified ECoW might be required during construction work to look out for any new, or previously unseen bird nests, and implement any actions required to avoid any damage or disturbance.

Wind farm development

Wind farm developments present additional risks to birds from collisions with turbine blades, and the potential displacement and indirect loss of habitat if birds avoid the wind farm and its surrounding area. Displacement can include barrier effects where birds are deterred from using their normal routes between feeding and roosting sites. Our suite of wind farm guidance covers issues specifically related to this type of development and the particular requirements for survey and assessment of the impacts of wind farms on birds, as well as mitigation measures and post consent monitoring.

Licensing development works affecting birds

There is no licensing provision to allow development that would otherwise result in an offence with respect to wild birds, so measures must be put in place to minimise or remove the risk of this happening and avoid any offence being committed.