OTTERS AND THE LAW
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:
- deliberately or recklessly kill, injure or take (capture) an otter
- deliberately or recklessly disturb1 or harass an otter
- damage, destroy or obstruct access to a breeding site or resting place of an otter (i.e an otter shelter)
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.
- The first test is that the licence application must demonstrably relate to one of several specific purposes listed in the Habitats Regulations. With respect to developments, the purpose most likely to be relevant is 'preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment.' If the application does not meet this, or one of the other listed purposes, a licence cannot be issued.
- The second test is that there is no satisfactory alternative.
- The third test is that the action authorised will not be detrimental to the maintenance of the population of the species concerned at favourable conservation status in their natural range.
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).