Proof of evidence on Dormice

ELECTRICITY ACT 1989 (Sections 36, 37, 62(3) & Schedule 8) TOWN AND COUNTRY PLANNING ACT 1990 (Section 90) and THE ELECTRICITY GENERATING STATIONS AND OVERHEAD LINES (INQUIRIES PROCEDURE (ENGLAND AND WALES)) RULES 2007 APPLICATION BY RES UK & IRELAND LIMITED, DATED 27 MARCH 2009, FOR CONSENT UNDER SECTION 36 OF THE ELECTRICITY ACT 1989 TO CONSTRUCT AND OPERATE A 100MW WIND TURBINE GENERATING STATION IN POWYS, MID WALES ( LLANBRYNMAIR ) DECC REFERENCE: LLANBRYNMAIR BERR/2009/004 Proof of evidence on Dormice of Elisabeth Halliwell BSc (Hons), PhD Natural Resources Wales

1. Introduction 1.1. I am Dr Elisabeth Clare Halliwell. I am the Mammal Ecologist (Farmland and Woodland Mammals) in the Terrestrial Ecosystems Group of Natural Resources Wales (NRW), formerly the Countryside Council for Wales (CCW), based in Bangor. 1.2. As Mammal Ecologist (Farmland and Woodland Mammals) I undertake and commission mammalian research and survey projects, provide scientific advice and guidance within NRW and to external partners, and represent NRW at relevant Wales and UK fora. 1.3. I have held this position since March 2001; for the first 3 years my remit included all terrestrial mammals until a second Mammal Ecologist was appointed to the group, and our work areas were split. Prior to that I worked for the Wildlife Trusts UK office as a Local Records Support Officer (2.5 years), before which I undertook a postdoctoral position at Royal Holloway University of London on pine marten Martes martes and hazel dormouse Muscardinus avellanarius (1 year). 1.4. I have a BSc honours degree in Biology from the University of Southampton and a PhD for research into pine marten and red squirrel Sciurus vulgaris interactions from the University of Aberdeen. ] 1.5. In my role as Mammal Ecologist I provide specialist advice to regional staff on dormouse conservation in Wales. This includes woodland management where dormice are present, commenting on and contributing to high profile casework that affect dormice and advising on licensing issues. I provide NRW input to UK guidance on dormice including interpretation of legislation as it affects dormice. I represent NRW on the UK Dormouse Biodiversity Action Plan group.

2. Summary 2.1. The ecological consultants for the Llanbrynmair windfarm proposal, Ecology Matters Ltd, have concluded that there will be no impact on hazel dormouse, a European Protected Species, as a result of the works on the proposed access route to the windfarm development site ( 1 paragraph 1.3.1 [CD-CON-003-ECO-002]). This opinion was based on an assessment of the suitability of the affected habitat for dormice, followed by a dormouse survey of selected hedgerow sections ( 2 section 5.12). 2.2. It is my view that insufficient evidence has been gathered to support the conclusion that there will be no detrimental impact to dormice from the proposed works to the access road. 3. Legislative and policy context 3.1. The hazel dormouse is a European Protected Species, afforded protection by the EU Habitats Directive, which is translated into UK law by Regulation 40 and Schedule 2 of Annex IVa of the Conservation of Habitats and Species Regulations 2010 (The Habitat Regs). Regulation 41 of the Habitat Regs states that (1) A person who (a) deliberately captures, injures or kills any wild animal of a European protected species, (b) deliberately disturbs wild animals of any such species, (c) deliberately takes or destroys the eggs of such an animal, or (d) damages or destroys a breeding site or resting place of such an animal, is guilty of an offence. 1 Llanbrynmair Windfarm additional information on dormouse surveys and habitat assessment additional report submitted to Natural Resources Wales on 26/09/13. 2 Llanbrynmair Windfarm Supplementary Environmental Information August 2013.

(2) For the purposes of paragraph (1)(b), disturbance of animals includes in particular any disturbance which is likely (a) to impair their ability (i) to survive, to breed or reproduce, or to rear or nurture their young, or (ii) in the case of animals of a hibernating or migratory species, to hibernate or migrate; or (b) to affect significantly the local distribution or abundance of the species to which they belong. Subject to certain provisions set out in the legislation a derogation may be granted to disturb the species or damage its habitat (breeding site/resting place) subject to ensuring that the action will not be detrimental to the maintenance of the population of the species at a favourable conservation status (FCS) in its natural range. 3.2. Schedule 9 of the Electricity Act 1989 concerns the preservation of amenity in relation to proposals falling within the Act. It requires regard to be had to the desirability of (inter alia) preserving fauna and it requires reasonable mitigation of any effect which such proposals would have on such fauna. 3.3. There is therefore a clear statutory requirement, underpinned by European legislation, to secure, maintain and re-establish suitable habitat for dormouse, and to ensure that, in consenting any plans or projects, there is no likely detriment to the maintenance of the favourable conservation status of the species. 3.4. This duty is translated into planning policy through Overarching National Policy Statement (NPS) for Energy (EN1) [CD/CON/003/PLA/003], Planning Policy Wales (PPW) [Document

Reference CD/CON/003/PLA/010] and Technical Advice Note (TAN) 5 Planning and Nature Conservation [CD/CON/003/PLA/011]. 3.5. Although NPS-EN1 sets out the national policy for energy proposals to be considered by the Major Infrastructure Planning Unit of the Planning Inspectorate, it is also a material consideration when considering energy proposals that are to be considered by other consenting regimes. 3.6. Paragraphs 5.3.3 and 5.3.4 state that the applicant should clearly set out any effects on protected species and show how the project has taken advantage of opportunities to conserve and enhance biodiversity interests. 3.7. Paragraphs 5.3.7 and 5.3.8 state that as a general principle, and subject to policies in the NPS, that development should aim to avoid significant harm to biodiversity interests, including through mitigation and reasonable alternatives, and that in taking decisions the decision maker should ensure appropriate weight is attached to protected species. 3.8. PPW in section 5.5.12 highlights that developments are always subject to the legislation covering European Protected Species regardless of whether or not they are within a designated site, and goes on to outline the requirements for a derogation where development would contravene the protection afforded to European Protected Species. It states a derogation may only be authorised if there is no satisfactory alternative and if the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in its natural range. The development works to be authorised must be for the purposes of preserving public health or safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment.. Local

planning authorities are under a duty to have regard to the requirements of the Habitats Directive in exercising their functions. To avoid developments with planning permission subsequently not being granted derogations in relation to European protected species, planning authorities should take the above three requirements for derogation into account when considering development proposals where a European Protected Species is present. 3.9. TAN 5 at paragraph 6.2.2 further states that the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before the planning permission is granted, otherwise all relevant material considerations may not have been addressed in making the decision. Planning permission should not be granted subject to a condition that protected species surveys are carried out and, in the event that protected species are found to be present, mitigation measures are submitted for approval. However, bearing in mind the delay and cost that may be involved, developers should not be required to undertake surveys for protected species unless there is a reasonable likelihood of them being present. However, the level of likelihood that should trigger a requirement for developers to undertake surveys should be low where there is a possibility that European Protected Species might be present. 3.10. I consider that on the basis of an inadequate approach to survey as set out in the sections below that the applicant has failed to demonstrate that the proposals will have no likely detrimental impact on the maintenance of the FCS of the species and is therefore contrary to EU and National legislation and planning policy. 4. Suitability of the hedgerows for dormice 4.1. The ecological consultants, Ecology Matters Ltd, completed an assessment of the suitability of the habitat for dormice of the sections of hedgerow impacted by the proposed Llanbrynmair access road in 2010, with additional habitat assessments being completed in 2012

and 2013. The initial survey was updated as further works were identified along the access road in subsequent Supplementary Environmental Information documents (SEIs). Sites considered to contain habitat suitable for dormice were selected for dormouse (nut) surveys 3. 4.2. The habitat assessment considered the species mix of the hedgerows to assess if a sufficient variety of woody plants were present to provide a succession of foods over the seasons and the physical structure of the habitat to assess if sufficient cover and understorey was present to support dormice 4 [CD-CON-003-ECO-002]. 4.3. The features described by the ecological consultants, including high species diversity and a low level of management, will increase the likelihood of dormice utilising, and being permanently resident in, hedgerows. However, dormice may also use lower quality hedgerows seasonally and for dispersal/movement between other habitat patches. 4.4. NRW staff member, John Messenger, undertook an assessment of the hedgerows to be affected by the proposed access route. John Messenger is a NRW Species Officer with over 25 years of experience of working on dormice. He also designed and oversaw the first comprehensive dormouse survey of Wales. His assessment concluded that there are a number of sections of hedgerow that have the potential to be used by dormice, particularly when considered in association with other connected habitat. Some of these are additional to the hedgerows considered potentially suitable by Ecology Matters and surveyed for evidence of dormice. 3 Llanbrynmair Windfarm Supplementary Environmental Information August 2013; paragraph 5.7.11 4 Llanbrynmair Windfarm additional information on dormouse surveys and habitat assessment additional report submitted to Natural Resources Wales on 26/09/13; paragraph 1.2.2

4.5. The following are examples of where we do not agree with the assessment made by Ecology Matters 5 [CD-CON-003-ECO-002]: - hedgerow 1.12 (CH 2400-2575) is described as not suitable habitat for dormice. However this hedgerow generally has a very good structure and is well connected to other suitable habitats. - hedgerow 1.9 (CH 1950-2000) is described as fairly open and flailed but it does have the potential to be used by dormice having a good structure and species diversity. - hedgerow 1.8 (Ch 1380-1450) is described as..a tall, unmanaged hedge of very spindly hazel and hawthorn with a very open nature and would lend itself to laying. This area provides good quality dormouse habitat and overhead connectivity across the road. 4.6. Sections 1.14 (CH 2970-3050) and 1.15 (CH 3340-3450) were surveyed by the consultants for dormice, but no signs were found. 6 [CD-CON-003-ECO-002]. Both sections provide good quality dormouse habitat and the survey methodology used was inadequate to be able to presume absence (see below). 4.7. Hedgerows in the southern section of the access route, near Talerddig are connected, or effectively connected to nearby woodland dingles which would provide suitable habitat for dormice. No attempt has been made to survey the areas to be affected for dormice such as 3.16 (CH 15950). Other sections are described as having no ecological issues, but dormice would need to be considered if there were to be any impacts on these hedgerows. 5 Llanbrynmair Windfarm additional information on dormouse surveys and habitat assessment additional report submitted to Natural Resources Wales on 26/09/13; table. 6 Llanbrynmair Windfarm additional information on dormouse surveys and habitat assessment additional report submitted to Natural Resources Wales on 26/09/13; table.

5. Dormouse presence 5.1. The ecological consultants for the scheme conclude that there is no evidence of dormice in the area from either desk studies or surveys 7 [CD-CON-003-ECO-002]. This conclusion is reached from a desk study of dormouse records in the area and survey work of areas considered to contain habitat suitable for dormice. 5.2. The SEI 2013 reports 8 that a desk study undertaken in 2010 found just one record for dormice in the two 10km squares that cover the footprint of the windfarm. This record is near Talerddig (at OS GR SH917023) at the southern end of the access road. Interrogation of the National Biodiversity Network database over a wider search area shows that there are additional records of dormice approx 7km from Llanerfyl to the northwest and northeast. The presence of records to the north and south demonstrates that the development site is within the range of the hazel dormouse in Wales. The absence of existing records for dormice within the actual development area is unsurprising due to the lack of general surveys for the species, the relative remoteness of the area and the relatively low level of biological recording in Montgomeryshire. 5.3. The survey work undertaken by the ecological consultants to establish the presence of dormice comprised a search for hazelnuts that had been eaten by dormice at 4 sites along the access route in December 2010. At the first three sites no hazelnuts were found and at the fourth site, of 148 hazelnuts examined, none were considered to have been eaten by dormice 9 [CD-CON-003-ECO-002]. 5.4. Searching for hazelnut shells with distinctive signs to indicate that they have been eaten by dormice is a standard approach to finding 7 Llanbrynmair Windfarm additional information on dormouse surveys and habitat assessment additional report submitted to Natural Resources Wales on 26/09/13; paragraph 1.2.6 8 Llanbrynmair Windfarm Supplementary Environmental Information August 2013; paragraph 5.12.4 9 Llanbrynmair Windfarm additional information on dormouse surveys and habitat assessment additional report submitted to Natural Resources Wales on 26/09/13; paragraph 1.2.5

evidence of the presence of dormice. However, relying on this technique to assume absence is not reliable. The likelihood of finding dormouse eaten hazelnuts depends on the presence of sufficient fruiting hazel being available for dormice to feed upon. Dormice can be found in habitats where there is no hazel present. The technique is inappropriate for compact, managed hedgerows, where flailing is likely to reduce nut productivity and the tight structure of the hedge gives easier access to any nuts by mainly ground dwelling species, such as mice and voles. Searching for dormouse eaten hazelnuts is also unreliable in areas with low densities of dormice. 5.5. NRW, or CCW before it, have not produced guidance on best practice for dormouse surveys, but the Natural England Advice Note Dormouse surveys for mitigation licensing best practice and common misconceptions contains some useful advice on this matter. In particular the advice note states nut searches can be a useful additional tool in heavily fruiting areas of hazel, but there are very few sites where this technique alone should be applied and there is a significant risk of false negatives, especially where low densities of dormice occur.... Nut searches should not be used as evidence of likely absence of dormouse on any site. 10 [CD-CON-003-ECO-001]. Natural England species guidance is used across the UK. 5.6. Dormouse nest tubes are the most commonly used survey technique to establish the presence of dormice, although dormouse nest boxes can also be used 10 [CD-CON-003-ECO-001]. Tubes and boxes could be deployed in suitable habitat within the development footprint or in adjacent woodland during the period that dormice are active (ie not hibernating), usually April to October. 6. Conclusions 10 See http://www.naturalengland.org.uk/images/wmlg37_tcm6-29146.pdf

6.1. The ecological consultants responsible for assessing the potential impacts on mammals of the proposed windfarm development near Llanbrynmair, Ecology Matters Ltd, have concluded that sufficient evidence of surveys has now been provided to show that there will be no impact on Dormouse a European Protected Species 11 [CD-CON- 003-ECO-002]. This conclusion was based on an assessment of the habitat suitability of the affected areas and hazelnut surveys of areas considered suitable for dormice. 6.2. It is my view that the Ecology Matters Ltd definition of potentially suitable habitat was too narrow and additional hedgerow sections should have been considered. As a result the dormouse surveys will have been too limited in scope. The Natural England Advice Note [CD- CON-003-ECO-001] states dormouse surveys to inform mitigation licence applications should not be limited to perceived optimal habitat. 6.3. The survey method chosen to look for the presence of dormice, hazelnut searches, does not follow best practice and cannot be relied upon to assume that dormice are absent from the site. 6.4. It is my view that there are a number of sections of hedgerow along the route of the access road that will be impacted by improvements to the road that are potentially suitable for dormice to utilise. The dormouse survey effort has not been sufficient, in scope or approach, to demonstrate the likely absence of dormice from these areas, or that the proposals will not result in any likely detriment to the maintenance of the favourable conservation status of this European Protected Species, and is therefore contrary to national planning policy set out in NPS EN1, PPW and TAN5. 11 Llanbrynmair Windfarm additional information on dormouse surveys and habitat assessment additional report submitted to Natural Resources Wales on 26/09/13; paragraph 1.3.1