Guidance

Guidance for broadband suppliers working in protected nature sites

Updated 5 July 2023

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This publication is available at https://www.gov.uk/government/publications/natural-england-guidance-for-broadband-suppliers/protected-nature-sites-for-guidance-for-broadband-suppliers

This guidance has been written by Natural England for broadband suppliers planning to deliver gigabit capable broadband within or close to sites in England which are designated and protected by law to conserve their special habitats, species and/or geology.

1. Summary - Getting permission for the installation of broadband in or near to protected nature sites in England.

1. Broadband supplier to consult this guidance.

2. Broadband suppliers must determine whether network build plans will be within or near to protected nature sites. [footnote 1]

3. Broadband supplier to check network build plans against the location of protected nature sites using Defra Magic mapping and the supporting information on Natural England Designated Sites system. Suppliers can also use Natural England’s Discretionary Advice Service by completing the charged service request form and send to consultations@naturalengland.org.uk.

4. Broadband suppliers to review their plans and endeavour to avoid building gigabit-capable broadband networks in locations that could result in harm to protected nature sites.

5. If network build in or near to protected sites cannot be avoided, the broadband supplier should consider contracting an ecologist to help design the proposal to minimise its impacts on the site, gather the environmental information that the Local Planning Authority (LPA) and Natural England is likely to need and to design any mitigating actions.

6. If the network build will affect a protected nature site, broadband suppliers should first:

  • Seek advice from the LPA on whether prior approval for the siting and appearance of the proposed apparatus under permitted development rules is needed in the usual way.

  • If prior approval is required, the supplier should submit a notice to the Local Planning Authority, who, after consulting Natural England, will determine whether prior approval has been granted or not within 56 days.

  • provide any necessary information about the proposal to enable the LPA to decide whether to grant its approval and, if necessary, to undertake a Habitats Regulations Assessment (for SAC, SPA and Ramsar sites only)

7. If prior approval is granted by the LPA, the broadband supplier gives notice under Regulation 8 of the Electronic Communications Code 2017 to Natural England directly at consultations@naturalengland.org.uk This notice should include a full description of the approved proposal that would affect the protected site including the exact locations of the apparatus, the proposed timing of the works and the proposed methods of installation or maintenance.

8. Once Natural England is consulted under Regulation 8, it will make its assessment of the potential effect network build plans would have on the protected site. Natural England will then respond to the supplier within 28 days advising whether any conditions to protect the site during the works are needed.

9. If Natural England recommends conditions, the broadband supplier should strive to amend its proposed operations to take account of them.

10. Broadband suppliers must obtain any other permissions, agreements, licences or permits they may lawfully require from other regulators or third parties before undertaking works on or close to a protected nature site.

2. Introduction

This guidance has been commissioned by the Department for Digital, Culture, Media and Sport (DCMS) to assist electronic communications companies (or ‘Code Operators’[footnote 2] as they will be referred to) to understand:

  • the statutory framework in relation to protected sites, especially when developing programmes of work for the installation or maintenance of fibre broadband infrastructure

  • factors to consider when designing schemes to minimise impacts on protected sites

  • the information that will be required by regulatory decision makers.

The guidance also touches on obligations in relation to protected species and land under an agri-environment scheme agreement.

The DCMS and/or Code Operators should seek legal advice if they have queries in relation to the interactions between the various articles of legislation that are referred to in this guidance.

3. What are protected nature sites?

In the context of this guidance, protected nature sites are considered to be Sites of Special Scientific Interest (SSSIs), and the European sites that they underpin:

  • Sites of Special Scientific Interest (SSSIs): These represent the best examples of the full range of natural and semi-natural habitats and the most important geological and physiographical sites. They are protected by the Wildlife & Countryside Act 1981 (as amended), referred to in this guidance as the “Wildlife & Countryside Act”. This includes provisions for enforcement action where the features of special interest of an SSSI are damaged or disturbed.

  • National Nature Reserves (NNRs): NNRs are declared under the National Parks and Access to the Countryside Act 1949 to protect some of our most important habitats, species and geology, and to provide ‘outdoor laboratories’ for research. Further information on the general purpose of NNRs and the habitats and species that individual NNRs support see National Nature Reserves in England. Most NNRs overlap with SSSIs.

  • Marine Conservation Zones (MCZs): These are intertidal and offshore areas designated for a range of nationally important, rare or threatened marine habitats and species and which are protected by the Marine and Coastal Access Act 2009.

  • European Sites: These are areas which overlap with SSSIs and have additional protection through the Conservation of Habitats and Species Regulation 2017 (as amended), referred to as “The Habitats Regulations”. The term ‘European site’ (or ‘habitats site’ as they are referred to in the National Planning Policy Framework) is the generic term used for the following designations:

  • Special Areas of Conservation (SAC): designated for the internationally important habitats and species that they support. Further information on SACs can be found on the Joint Nature Conservation Committee website.

  • Special Protection Areas (SPA): classified for the internationally important populations or assemblages of wild birds that they support. See the Joint Nature Conservation Committee website for more information about SPAs.

  • Wetlands of international importance (Ramsar Sites): which are designated especially as waterfowl habitat. Further information on Ramsar sites can be found on the Joint Nature Conservation Committee website

In practice, the status of land as SSSI and European site means that public bodies [footnote 3] must apply a series of tests before undertaking or permitting operations:

  • in relation to SSSIs, public bodies (known as Section 28G authorities under the Wildlife and Countryside Act) must apply tests to ensure that any proposed operations are not likely to damage or disturb habitats, species or geology of special interest see section 4

  • in relation to European sites, public bodies (known as competent authorities under the Habitats Regulations) must apply the tests to ensure there will be no adverse effects on the integrity of SACs and SPAsas required under the Habitats Regulations see section 5

Although mentioned in the Electronic Communications Code, National Nature Reserves (NNRs) are for the most part protected and underpinned by a SSSI designation (although there are a few exceptions where this is not the case). Further to this, Lundy is the only Marine Nature Reserve in England designated under section 36 of the Wildlife and Countryside Act.

Since the Electronic Communications Code was introduced, Marine Conservation Zones (MCZ) have been designated in accordance with the Marine and Coastal Access Act 2009 (as amended). These have been designated in the marine and intertidal habitats, but occasionally extend into terrestrial environments. The designation of an MCZ imposes duties on developers and decision makers where proposed operations are likely to hinder the achievement of the conservation objectives for these sites.

The significance of these various levels of protection is reflected in the following which will be helpful in providing national policy context:

4. Statutory framework and regulatory process

When drawing up programmes of work to deliver fibre broadband services, Code Operators must work in accordance with the following articles of legislation:

  • under Article 3(1) the Town and Country Planning (General Permitted Development) (England) Order 2015 (the “GPDO 2015”) a development must not be begun or continued before the developer has received written notice of the approval of the Local Planning Authority

  • the Town and Country Planning Act 1990 in relation to the determination of planning applications by Local Authorities

  • under regulations 73 to 76 of the Habitats Regulations, a generally permitted development likely to have a significant effect on a European site must not be begun or continued before the developer has received written notice of the approval of the local planning authority

  • the Electronic Communications Code (Conditions and Restrictions) Regulations 2003, referred to as “The Electronic Communications Code Regulations”

To speed up these decision-making procedures, Natural England’s advice is that Code Operators relying on the General Permitted Development Order should always engage with local planning authorities and the requirements of the GPDO first.
Should prior approval be granted by the local planning authority for a permitted development project, which might affect a protected nature site, the Code Operator should then submit a notice directly to Natural England as required by regulation 8 of the Electronic Communications Code Regulations.

Natural England will assist and provide its advice to Code Operators and Local Planning Authorities by responding to:

  • consultations on prior approvals for LPAs in accordance with the GPDO 2015 and / or regulations 73 to 76 of the Habitats Regulations

  • consultations on planning applications from LPAs in accordance with section 28I of the Wildlife and Countryside Act

  • notices from Code Operators as required under regulation 8 of the Electronic Communications Code Regulations

When considering prior approvals for electronic communications infrastructure (other than those that are required to satisfy regulations 73-76 of the Habitats Regulations) the Local Planning Authorities (LPA) can only consider the siting and appearance of the proposal, although in terms of siting, this will be relevant to protected Nature Sites.

Regulation 8(3)(a) of the Electronic Communications Code enables Natural England to recommend conditions are placed on proposed operations where electronic communications infrastructure is proposed within an SSSI. Therefore, in responding to this consultation, Natural England would consider whether a proposed project:

  • was likely to harm (damage or disturb) the features of special interest of SSSIs or the integrity of European sites

  • would result in adverse impacts on the national interests for which a NNR was declared under section 35 of the Wildlife and Countryside Act (It should be noted however, that in practice, the national interests of a NNR would only be considered if the NNR was not also underpinned by an SSSI)

  • would affect a Marine Nature Reserve (although in England, only Lundy has been designated in this way)

The Electronic Communications Code indicates that where a Code Operator proposes to install infrastructure in a National Park, the Broads, the New Forest or a limestone pavement area, written notice must be provided to the Local Planning Authority. Further to this, they must also consult the National Trust where they propose to install telecommunications infrastructure on their land. Protected landscapes, and National Trust ownership sometimes overlap with SSSIs and European sites and so the Code Operator will sometimes be involved in serving notices to multiple organisations for the same land.

Code Operators and Local Planning Authorities must be mindful that they may encounter occasional scenarios where:

  • some parts of a European site are not underpinned by SSSI

  • the land adjacent to a European site is considered to be functionally linked to that site as the European features are dependent on that land eg assemblages of wintering wildfowl and waders that feed or roost land adjacent to an SPA

  • operations proposed adjacent to an SSSI will be likely to damage or disturb the features of special interest of that site, and/or

  • operations proposed adjacent to a European site will have a likely significant effect in relation to the designated features.

This is highlighted because under regulation 8 of the Electronic Communications Code, Code Operators are only required to consult Natural England where the proposed infrastructure will be installed within a SSSI, NNR or Marine Nature Reserve.

Under regulation 8(4) the Code Operator shall not be required to give notice for a range of specified operations which do not increase the environmental impact of the apparatus. However, should operations carried out without consultation result in damage or disturbance to the notified interest of an SSSI, the Code Operator may have acted unlawfully.

Under Regulation 7 of the Electronic Communications Code, operations can be carried out without prior approval or consultation where the operation undertaken is an emergency. While the term ‘emergency organisation’ is defined, the code does not define ‘emergency operations’. Natural England generally considers emergency operations to be those which must be carried out immediately in situations where there is a sudden, unexpected, or impending risk to health, life, property, or the environment, and where there has been no planning or preparation in advance.

5. Consideration of proposed projects, and whether these would result in damage or disturbance to the features of special interest of SSSIs

The Wildlife and Countryside Act already sets out a series of regulatory pathways that apply to protected nature sites. However, the Electronic Communications Code introduces a separate regulatory pathway through which Natural England can recommend approval or approval with conditions.

While Code Operators do not have statutory duties in relation to SSSIs, Natural England, the Local Planning Authority and Ofcom will all have a duty to take reasonable steps to further the conservation and enhancement of the special interest of SSSIs when exercising their functions and considering proposals made by a Code Operator.

When these public bodies consider whether the operation is likely to damage or disturb the features of special interest of an SSSI, they are not constrained by the boundary of the site.

Code Operators must be mindful of the duties of decision makers in relation to SSSIs. However, Natural England recommends that Code Operators ensure that they fully understand the tests that must apply so that they are able to second guess all the information that will be required to confirm that proposed infrastructure will not result in damage or disturbance to the features of special interest.

6. Assessments under the Habitats Regulations 2017

Many of the areas of land notified as SSSIs are also of international importance and have been designated as SACs or SPAs (collectively European Sites) and are afforded additional legal protection by the Habitat Regulations. It is Government policy, as set out in paragraph 181 of the NPPF, that Ramsar Sites should be afforded the same protection as SACs and SPAs and are also subject to the protections in the Habitat Regulations.

When a public body (or ‘competent authority’ as it is referred to under the Habitat Regulations) proposes to either undertake, or permit others to undertake work on a SAC, SPA or Ramsar site, it must go through a series of specific decision-making process tests usually referred to as a Habitat Regulations Assessment (HRA).

As Code Operators are not competent authorities, they are not required to undertake Habitats Regulations Assessments (HRAs) themselves and they will be dependent on LPAs to undertake these where required. However, Natural England recommends that Code Operators fully understand the tests that LPAs must apply so that they are able to anticipate the information that they will be required to provide to a LPA for its assessment. .

Further guidance on HRAs and associated duties can be found on GOV.UK:

7. How can you tell whether programmes of work might affect a protected nature site?

To help understand whether a proposed programme of work might affect a protected site, you can take the following steps:

You may also wish to read specific guidance on responsibilities for protecting wild birds and their habitats For example where bird species may be a special feature of an SSSI and could be affected by work on other land where they feed or nest.

This information should be used to help assess the potential impact of proposed operations.

Designation Where to find more information
  Why a site is important What might damage the features
SSSI Citation The list of Operations Requiring Natural England Consent (the ORNEC list) [footnote 5]  
SACs / SPAs Conservation objectives Supplementary Advice for European Site Conservation Objectives (SACOs)
Ramsar Conservation Objectives are not currently available for these sites although in most cases the information for SSSIs, SACs, and SPAs will be equally relevant  

Figure 1 The outline of protected sites information available on Designated Sites View

8. What must Code Operators consider once they have confirmed that their proposed operations might affect a protected nature site?

Natural England strongly recommends that Code Operators seek the advice of qualified ecologists experienced in ecological impact assessment techniques to help them determine whether proposed operations are likely to harm SSSIs, and to gather information for HRAs to determine any likely effect on the designated features of the European site(s) when applicable. Ecologists could also assist the Code Operator to develop mechanisms to avoid or mitigate against damage or disturbance, including identifying sensitive areas.

The Code Operator should note that the habitats, species and geology of special scientific interest for which individual SSSIs were notified, and the features for which European sites were designated can vary greatly in terms of their sensitivities, and their spatial and temporal coverage.

8.1 Sensitivity of designated features:

Each individual SSSI must be assessed in relation to the sensitivities of all the features of special interest of the SSSI for which it was notified, and in relation to any designated features of European sites. Some features may be more sensitive and vulnerable to impacts than others. For example, some such as geomorphological or geological features may have very low sensitivities and harm may be unlikely, while others such as wetland habitats (which may be very sensitive to any hydrological changes that might result from installation works) and breeding birds (which may be sensitive to visual or noise disturbance) many be at greater risk.

8.2 Spatial distribution:

Features of interest may be distributed widely across the site or may be present in fixed locations. Others may be more mobile. It is important to understand where individual features are located within a site to understand any potential impacts. For example, for many SSSIs, the tracks and roads that Code Operator are likely to follow when undertaking works may support no notified features, while for other sites certain features may preferentially occupy roadside verges. Indeed, there are road cuttings and roadside verges in some parts of the country that have been specifically notified for the special interest that they support.

8.3 Temporal distribution:

Some features such as vegetation communities are present throughout the year, while others such as breeding bird assemblages, or wintering assemblages of wildfowl and waders, may only be present at certain times of the year. It will be important for Code Operators to understand whether there are particularly sensitive times of year on different sites, as this may be important in scheduling work across multiple sites throughout the year.

In practice, this means that:

  • the operations that will be likely to result in damage or disturbance will vary greatly from SSSI to SSSI

  • the operations that would result in a likely significant effect or adverse effect on integrity will vary from European site to European site.

The working methodologies appropriate on one site might not be appropriate to another site. This in turn means that the solutions and working practices appropriate for one site, will not necessarily be appropriate for another, and decision making for each site needs to be based on a scientific understanding of the features, their sensitivities, and their tolerances.

9. Check list of environmental information to include in consultations with Natural England or applications for permissions to the local planning authority

When submitting a notice for prior approval to the Local Planning Authority or notifying Natural England under the Electronic Communications Code the Code Operator should provide sufficient information to allow local planning authorities and Natural England to fully understand what is being proposed and to draw informed conclusions as to the implications of that work on the special interest of the site. This will assist the Local Planning Authorities and Natural England to confirm whether the proposed operation would be:

  • likely to cause damage or disturbance to the features of special interest of an SSSI, or

  • result in a likely significant effect or adverse effect on integrity in relation to the designated features of a European site

The more information that is provided, the lower the likelihood that additional information will be required at a later date which might result in delays in decisions.

As a minimum Natural England would recommend the notice should contain:

  • SSSI name, and where relevant name of associated SAC, SPA or Ramsar site

  • contact details

  • location of the works - preferably including an annotated map of the working area, access routes, storage locations

  • start and end dates of the proposed operation

  • description of the proposed operation(s), including:

  • access needs and the storage and disposal of materials

  • action to be taken in adverse weather conditions

  • precise routing of cabling, operations, and vehicles

  • methodology of proposed works

  • frequency of access

  • the provenance and chemical nature of any imported materials eg, type of material if a temporary track is being constructed.

  • ground-pressure of vehicles to be deployed over soft ground such as fens, swamps and mires

  • any other information that you think will be relevant to decision-makers in relation to your proposed operations

10. Non-compliance

Should harm to a Protected Nature Site be caused, Code Operators should be aware that they may be at risk of enforcement action. For example, If a Code Operator fails to comply with the recommendations made by Natural England, then Natural England may refer to OFCOM as the regulator under section 110 of the Communications Act 2003.

However, If the operations undertaken by a Code Operator have caused harm to the special interest of a SSSI, Natural England may itself be able to use its powers under the Wildlife and Countryside Act for the purposes of enforcing failures to comply with conditions provided under Regulation 5(3) of the Electronic Communications Code.

11. Consideration of protected species

Species which are generally protected under the Wildlife and Countryside Act and the Habitat Regulations may also be present within the wider countryside as well as on protected sites. This may include species such as dormouse, badger, great crested newt and bats. Potential impacts on these must be considered when planning a project.

Before operations are undertaken by a Code Operator, further consideration must be given to the possible presence of protected species and the likely impact of activities on them, avoiding impacts where possible through following best practice guidance.

Although most impacts can be avoided or mitigated against, there are scenarios where an operation will affect a protected species and it cannot be avoided. Under these scenarios it will be necessary to secure the relevant protected species licence from Natural England to allow otherwise prohibited activities.

The licensing process in relation to protected species is separate to the planning system and considerations in relation to protected sites. There may be situations where in addition to consultations in relation to protected sites, a protected species licence will be required before carrying out a proposed programme of work.

Natural England’s pre-submission screening advice gives advice on planning proposals affecting protected species.

12. Other approvals and permissions

It remains the responsibility of the Code Operator to comply with other legislation that may also apply, and this might include for example:

  • if the works go over land which is in a Countryside Stewardship or Environmental Stewardship Agreement and in the works undertaken by the Code Operator affect the delivery of the management requirements of that agreement, the agreement holder should contact the Rural Payments Agency for advice

  • the felling of trees and shrubs may require a licence from the Forestry Commission. See Forestry Commission guidance

  • development where a full planning application for permission from the local planning authority may be required See Planning permission - when you need it

  • operations undertake works next to an Environment Agency Main River or Internal Drainage Board Main Drain. Check if you need an environmental permit.

  • if the proposed operations are cross-boundary and form part of a project that crosses from England into Wales, or from England into Scotland, then you must also consult with the relevant Statutory Nature Conservation Bodies (Natural Resources Wales or NatureScot)[footnote 6]

13. Natural England’s Discretionary Advice Service (DAS)

Code Operators can get free advice from Natural England if necessary to check whether proposed operations would affect a Protected Nature Site, and on what information should be included to support consultations. However, if this involves in-depth consideration, and lengthy discussion, then this must be delivered through a DAS contract.

DAS contracts must be agreed in advance of the submission of a statutory consultation and can be especially helpful if you need advice on avoidance of damage, your mitigation strategies to reduce damage to the environment, or if you need advice quickly (in less than 28 days).

You can find further information on Natural England’s DAS at Sites of special scientific interest: public body responsibilities [footnote 7] in the sections entitled ‘Get advice from Natural England’ and ‘Apply for Advice’.

14. Communications with Natural England

All Regulation 8 consultations with Natural England regarding the installation of electronic communications infrastructure should be sent to consultations@naturalengland.org.uk.

For general enquiries please contact enquiries@naturalengland.org.uk.

  1. Protected nature sites are those which are afforded statutory protection and include Marine Conservation Zones (MCZs), National Nature Reserves (NNR), Wetlands of International Importance (Ramsar sites), Sites of Special Scientific Interest (SSSIs), Special Areas of Conservation (SACs), Special Protection Areas (SPAs). ↩

  2. A ‘Code Operator’ is a person in whose case the electronic communications code is applied by a direction under section 106(3)(a) of the Communications Act 2003 ↩

  3. The term ‘public body’ is used to equate with ‘Section 28G Authorities’ and ‘competent authorities’ as discussed above, but should not be interpreted as including ‘Code Operators’. ↩

  4. The National Planning Policy Framework was revised by the Ministry of Housing, Communities & Local Government (now the Department for Levelling Up, Communities and Housing) on 20 July 2021. The revised Framework replaces the previous National Planning Policy Framework published in March 2012, revised in July 2018 and updated in February 2019. ↩

  5. Previously, the list of Operations Requiring Natural England Consent (the ORNEC list) was known as the list of Operations Likely to Damage (the OLDs list), and prior to that the list of Potentially Damaging Operations (PDOs). ↩

  6. NatureScot was previously known as Scottish Natural Heritage. ↩

  7. GOV.UK does not have a web page specifically for ‘Code Operators’ and consultations when they wish to undertake operations on Sites of Special Scientific Interest. ↩

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