Scottish Wildlife Series

OTTERS AND THE LAW

The otter’s long whiskers are very sensitive and help the animal find its prey in dark or murky waters.Besides the general legal requirement for planning authorities to assess the potential environmental impacts of their planned activities, there is specific European and domestic legislation to protect otters.

Otters are protected by the EC Habitats Directive, which is transposed into domestic law through the Conservation (Natural Habitats, &c.) Regulations 1994. The latter are hereafter referred to as 'the Habitats Regulations'. Under the Habitats Regulations, otters are classed as "European Protected Species" and therefore given the highest level of species protection.

The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2007 enhanced this protection such that, in summary, it is now illegal to:

Thus, otter shelters are legally protected whether or not an otter is present.

1There are several specific offences of disturbance. See the Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2007, for details. Note also that the wording of the Scottish legislation in this regard is different to that in England and Wales.

The Law in Practice

It is not the intention of the law to prevent all development in areas used by otters.  However, legal protection does require that due attention is paid to the presence of otters and appropriate actions are taken to safeguard the places they use for shelter or protection.  If a potential problem is identified, then often a modification to the development is sufficient to ensure that otters will not be adversely affected and therefore no offence will be committed.

There are provisions in the above legislation to allow certain otherwise illegal activities to take place under licence.  Under the Habitats Regulations, the circumstances under which a licence can be issued are narrowly defined and 3 very specific tests must all be satisfied. 

If the application does not satisfy all 3 tests a licence cannot be issued.

The Scottish Government is the licensing authority for development-related activities.  Note that although a planning authority does not have a licensing remit, it must take account of protected species when considering applications for development and must be satisfied that the above tests have been applied and met prior to granting permission for the development to proceed.   SNH will be consulted by the planning authority and the Scottish Government in respect of the third test (maintenance of favourable conservation status).