Badgers and development: What are the Legal Constraints?

Understanding the relationship between badgers and development is essential for anyone preparing a planning application. While badgers are a familiar feature of the British countryside, they are also a legally protected species. This means that development projects must carefully consider potential impacts before work begins.

Failing to address badger constraints early can result in planning delays, redesign costs or, in serious cases, legal offences. With appropriate ecological advice, however, most projects can proceed lawfully and efficiently.

Badgers are protected under the Protection of Badgers Act 1992 and are recognised in planning policy as a protected species. The legislation makes it an offence to intentionally harm badgers or interfere with their setts without appropriate authorisation.

Under the Badgers Act 1992, it is illegal to:

• Wilfully kill, injure or take a badger
• Damage or destroy a badger sett
• Obstruct access to a badger sett
• Disturb a badger while it is occupying a sett, or interfere with a sett in a way likely to cause disturbance

It is important to understand that legal protection extends not only to the animals themselves but also to badgers and their setts. A sett can include entrances, tunnels and chambers that show signs of current or recent use.

Because of this protection, any proposed development that could affect a sett requires careful assessment before works commence.

Badgers can become a material consideration where:

• A development site contains an active or recently used sett
• Construction activity is proposed close to a sett
• Habitat loss may affect foraging territories
• Groundworks could disturb underground tunnel systems

Planning authorities have a statutory duty to consider protected species when determining a planning application. If there is a reasonable likelihood that badgers are present, survey information will be required to inform decision-making.

Most projects begin with a Preliminary Ecological Appraisal, during which a qualified ecologist will assess the site for signs such as sett entrances, spoil heaps, latrines and well-worn paths.

If evidence is found, a targeted badger survey may be recommended to determine activity levels and potential impacts.

A badger survey typically involves a walkover assessment of the site and surrounding land (where accessible). The ecologist will identify:

• Main setts
• Annexe or subsidiary setts
• Outlier setts
• Foraging signs and commuting routes

Unlike some protected species, badgers can be surveyed throughout much of the year. However, works affecting setts are subject to seasonal constraints. Licensed sett closure or destruction is typically undertaken outside the main breeding season (generally July to November), when dependent cubs are unlikely to be present. Timing is ultimately determined by licence conditions and confirmation of sett status prior to works.

Survey findings are presented within ecological reports submitted in support of planning. These reports outline constraints, assess risk and recommend next steps.

If a development cannot avoid impacts to a badger sett, a licence from Natural England may be required before works proceed.

Licensing is typically necessary where works would:

• Damage or destroy a sett
• Block access to a sett
• Disturb badgers during construction

A licence application must demonstrate that reasonable steps have been taken to avoid harm, and that appropriate mitigation and compensation measures are in place.

This process takes time and should be factored into the project programme to ensure all goes smoothly.

In most cases, impacts can be addressed through careful design. The mitigation hierarchy requires developers to prioritise avoidance mitigation wherever possible. This might include adjusting site layouts, establishing exclusion zones, or timing works to reduce disturbance.

Where impacts cannot be avoided, mitigation and compensation strategies may be required. These can include:

• Artificial sett construction
• Temporary exclusion under licence
• Protective fencing during construction
• Habitat enhancement to maintain foraging opportunities

Compensation measures are designed to ensure that badger populations are not adversely affected in the long term. Early ecological input at the feasibility stage often allows these measures to be incorporated into the development layout without significant commercial impact.

The legal consequences of failing to comply with badger legislation are significant. It is a criminal offence to kill a badger or interfere with an active sett without appropriate authorisation.

Prosecutions can result in fines, reputational damage and project delay. In addition, local authorities may refuse planning permission and prevent the project from continuing altogether if ecological information is insufficient.

Engaging an experienced ecologist early in the process is therefore not simply a planning formality; it is a risk management measure.

Compared to some other protected species, badger surveys are relatively flexible in terms of timing. However, licensing requirements can extend programme length if not anticipated.

Where a licence is required, developers should allow several weeks for preparation, submission and determination. Seasonal restrictions may also influence when works can lawfully commence.

By commissioning surveys early, developers retain control over programme and design decisions and prevent any unwanted delays.

Addressing badgers and development successfully requires a balanced approach. The objective is not to prevent development, but to ensure that ecological constraints are understood and managed responsibly.

Well-prepared ecological reports provide clarity to planning authorities and demonstrate that biodiversity considerations have been appropriately addressed. This supports smoother determination and reduces the risk of late-stage objections.

Professional ecological advice ensures that legal requirements under the Protection of Badgers Act are met while maintaining project viability.

What is considered a badger sett in planning terms?
A badger sett is any structure or place showing signs of current or recent use by badgers for shelter or breeding. This can include main setts, annexes and outliers, and each may carry planning implications.

How close can construction work take place to a badger sett?
Stand-off distances vary depending on the type of works, ground conditions and sett status. A qualified ecologist will typically recommend an appropriate buffer to reduce the risk of disturbance.

Do I need a licence to close a badger sett?
Yes. Any works that would damage, destroy or block access to a sett usually require a licence from Natural England. Works should not proceed until licensing requirements have been confirmed.

Can badger mitigation be conditioned through planning?
Yes. Local planning authorities commonly attach planning conditions requiring pre-commencement surveys, mitigation strategies or ecological supervision where badgers may be affected.

At what stage of a project should badgers be considered?
Badgers should be reviewed at feasibility or site appraisal stage. Early assessment helps identify risks, informs layout design and reduces the likelihood of delays later in the planning process.

At Collington Winter Environmental, we support developers, landowners and planning consultants in managing badger constraints across a wide range of schemes.

From initial site appraisal through to licensing strategy and implementation, we provide clear, proportionate advice aligned with current legislation and planning policy. Our experience in preparing robust ecological reports ensures that planning submissions are well-supported and defensible.

If your project involves potential badger constraints, contact Collington Winter Environmental today via info@collingtonwinter.co.uk or by filling out our contact form below to discuss how we can help you navigate badgers and development with confidence and clarity.