Breeding birds and vegetation clearance timing

It is an offence under section 1 of the Wildlife and Countryside Act 1981 to take, damage or destroy the nest of any wild bird while it is in use or being built. That single sentence is why site clearance stops between March and August on most English development sites, and why the breeding bird season clearance question comes up at every pre-start meeting. The offence attaches to the nest rather than to the species, so it applies to a blackbird in a bramble patch as much as to anything rare.

There is no licence that makes it acceptable. The answer is timing, checking and supervision.

The offence and what it covers

Section 1 makes it an offence to intentionally kill, injure or take any wild bird, to take, damage or destroy the nest of any wild bird while it is in use or being built, and to take or destroy its eggs. Schedule 1 species attract a further offence of disturbance at or near the nest.

A limited defence exists where the act was the incidental result of a lawful operation and could not reasonably have been avoided. It is narrower than site managers hope. Clearing scrub with a tracked excavator in May, without a check, is an operation where nest destruction could reasonably have been avoided, so the defence does not help.

Penalties run to an unlimited fine, with imprisonment available for some offences, and each nest can be charged separately. On a site with a hedgerow full of nests, that arithmetic gets uncomfortable quickly.

The breeding season in practice

March to August is the conventional main season, and it is the period most conditions use. Treat it as a guide rather than as a guarantee in either direction.

Some species start earlier. Tawny owls and ravens can be on eggs in February, and woodpigeons and collared doves nest across most of the calendar. Barn owls raise second broods into the autumn. On the other side, a hedgerow in early March in a cold spring may have nothing in it at all.

So the honest position is that the calendar tells you when risk is high, and only a check tells you whether a nest is present. Conditions drafted around dates alone are weaker than conditions drafted around checks.

Pre-clearance checks and who carries them out

A nesting bird check is a careful inspection of the vegetation or structure to be cleared, carried out by an ecologist or a suitably experienced person, immediately before the work.

Immediately means within 24 to 48 hours. Birds build fast, and a check done the previous week does not cover the nest built on Thursday. On larger sites the check has to be repeated for each parcel as clearance moves across the site.

The check covers more than the obvious. Hedgerows, scrub, brambles, ivy on walls and trees, tussocky grass on the ground, bare ground and gravel where plovers and pipits nest, stacked materials, pipes and scaffolding, and buildings and their eaves. A quick walk-over looking at head height finds a fraction of what is there.

Get it into the Construction Management Plan as a procedure with named responsibility, rather than leaving it as an instruction in a condition nobody on site has read.

What happens when an active nest is found

Work stops in that area, not across the whole site.

The ecologist marks an exclusion buffer around the nest, sized for the species and the level of activity. Small passerines in dense cover may need only a few metres. Ground nesting birds on open ground, raptors and Schedule 1 species need substantially more, and the ecologist should record the reasoning. The buffer stays until the young have fledged and the nest is no longer in use, which the ecologist confirms by a follow-up visit rather than by assumption.

A nest that has been abandoned is a different matter from one between broods, and a nest that is still being defended is still in use. Where there is doubt, wait.

Plan for this rather than treating it as an emergency. Programme a fortnight of float into any clearance falling inside the season, and sequence the work so a stopped parcel does not stop the whole operation.

Conditions restricting clearance

The standard condition prohibits vegetation clearance, demolition and site preparation between stated dates, commonly 1 March and 31 August inclusive, unless a check has been carried out immediately beforehand by a competent ecologist and a written record submitted to the council.

Read the trigger and the evidence requirement. Some conditions require the record to be submitted and approved before clearance, which turns a 48-hour check into a several-week discharge exercise. Ask for wording that requires the record to be submitted within a set period after the check instead, and raise it during determination rather than after.

Where the council attaches a fixed date restriction with no check-based alternative, a section 73 application to vary the wording is available but slow. Better to get it right in the original decision notice.

Clearing outside the season and evidencing it

Clearance between September and February is the usual route, and it needs a paper trail as much as a timing decision.

Record the date and time of clearance, dated photographs of the vegetation before and after, the name and qualifications of whoever carried out the pre-clearance check, and a signed record of what was found. That file is the evidence if a complaint is made months later, and complaints about site clearance are common.

Then manage the cleared ground. Bare or lightly vegetated land regenerates quickly and becomes attractive to ground nesting birds within a single season, so keep it under a regular cutting or disturbance regime if the build will not start immediately. Land left to grow through a winter is a new constraint by the following April. A Preliminary Ecological Appraisal done early in the programme identifies which habitats need this treatment.

Nesting in buildings and structures

Buildings hold nests as readily as vegetation, and the species that use them are the ones that generate public objection.

Swifts under eaves and in soffit voids, house martins on external walls, swallows in open outbuildings, starlings and house sparrows in roof voids and behind fascias. Their nests receive the same protection while in use, and swifts in particular return to the same site year after year, so losing a nest site removes a breeding pair rather than displacing it.

Where a building supports these species, expect the council to ask for integral nest bricks in the replacement, specified and positioned to a recognised standard, with BS 42021 covering integral nest box selection and placement. Show them on the elevations rather than leaving them to a condition, and coordinate with the bat provision so the two are not fighting for the same corner of the roof.

Managing the risk on a phased site

Long programmes need a system rather than a series of decisions.

Split the site into clearance parcels on a plan and give each one a number. Clear as much as possible between September and February, parcel by parcel, keeping cleared parcels in a condition that discourages nesting. Book the ecologist for recurring checks on any parcel that has to be cleared in season. Keep one register recording each parcel, the check date, the ecologist, the finding and the clearance date.

The register is what a council officer asks for when a member of the public reports a hedge being flailed in June. Where protected species other than birds are also present, the Protected Species Survey sets out the separate licensing obligations, and a licensed ecologist is legally required for that work.

But the strongest control is the programme. Clearance planned in October costs the price of a machine. Clearance forced in June costs a stop notice and a reputation.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

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