NatureScot Wildlife Licensing: What to Do When Building or Garden Work Turns Up a Protected Species

If you find bats, a newt, a badger sett or an active nest during building or garden work, stop work in that area, get the find identified by someone qualified, and don't carry on until you know what the law requires. Continuing without a licence where one is needed is a criminal offence, with up to 12 months in prison and a £40,000 fine on summary conviction, and up to five years and an unlimited fine on indictment, for the most serious offences. NatureScot, Scotland's licensing body, grants licences only after three legal tests, and the real delay is usually the survey season, not the paperwork.

You may have opened the loft to convert it and found droppings and a faint ammonia smell, or met a newt in the mud of a pond you were draining, or found a sett-shaped hole under a hedge, or a nest mid-build in eaves you were about to strip. The question is no longer whether this is a problem for the project, but whether carrying on breaks the law. It depends what you have found. What follows covers the legal framework across Scotland, who to contact and what licensing involves. NatureScot is separate from Natural England and Natural Resources Wales, so figures and processes from English or Welsh guidance don't transfer directly.

Most garden work never triggers this

Ordinary gardening, such as digging beds, cutting hedges outside the main bird nesting period (broadly March to August, though what matters legally is whether a nest is in active use, not a fixed date), clearing undergrowth and general maintenance, doesn't need a licence and rarely touches wildlife law. Licensing is for a narrower situation: a protected species or the structure it depends on (a roost, an active nest, a sett) has been found, work can't proceed without disturbing or damaging it, and there is no way to work around it. If you can shift the job, delay it or route around what you have found, you probably don't need a licence. You just need not to disturb it.

Which species come up in Scottish garden and building work

Several separate legal regimes apply, not one uniform rule. The species most likely to turn up unexpectedly in domestic work in Scotland, and the law protecting each:

Great crested newts are rare in Scotland. There are fewer than 150 known sites across the country, concentrated in Dumfries and Galloway, the Lothians, the Borders and pockets around Inverness, and the Highland population is understood to be native and genetically distinct from the rest of Britain. Elsewhere, a newt in your pond is far more likely to be a smooth or palmate newt, which don't carry this level of protection. If you are unsure which you have, get a professional identification before draining or filling anything.

Otters and water voles matter most for anyone working on a pond, burn, ditch or riverbank. A holt (an otter's den, often a hole in a bank or under tree roots) is protected as a European Protected Species resting place, including while unoccupied. Water voles are an oddity in Scots law: their burrows and other places of shelter are protected under the Wildlife and Countryside Act 1981, but in Scotland that protection currently covers the burrow, not the animal itself, and full protection has been proposed. Damaging a burrow or disturbing a vole in it is still an offence.

Reptiles turn up in log piles, compost heaps, rockeries and overgrown ground being cleared. Adders, slow-worms and common lizards are protected against intentional or reckless killing or injury, but unlike every other species in the table there is no habitat protection and no licence route that permits killing or injuring one. The only legal way to work around reptiles is to avoid harming them, usually by having someone experienced check and clear the area by hand before machinery or heavy disturbance. Pine martens are sometimes found denning in roof spaces and outbuildings, particularly in rural and Highland Scotland. Their den sites carry the same protection-when-unoccupied principle as a bat roost or otter holt, with one domestic exception: the protection doesn't apply to disturbing a pine marten inside a dwelling house, though damaging or destroying the den structure itself is a separate matter and NatureScot's presumption is against doing so in the breeding season (1 March to 31 August) unless a qualified ecologist has confirmed the den isn't being used to raise kits.

For what counts as disturbance, the "roost protected even when empty" rule, and how to contact NatureScot's Bats in Houses service, see the bat-friendly gardens guide.

The legal thresholds differ by species

These aren't interchangeable rules with different penalties; the underlying tests differ by regime:

Three further points. For bats and great crested newts, a roost or resting place is protected whether or not the animal is using it when you disturb it: the law protects the structure, not just whoever is living in it. The Scottish version of the Wildlife and Countryside Act 1981 extends the England and Wales nest-protection wording by adding "recklessly" alongside "intentionally", and protection is tied to a nest being actively in use or under construction, not to birds generally visiting your garden. For badgers, NatureScot's licensing guidance generally treats development within 30 metres of a sett entrance as capable of causing interference, with a greater distance for more disruptive work such as piling or blasting.

When you need a NatureScot licence

Once avoidance isn't an option, NatureScot decides whether to grant a licence against three tests derived from the regulations. This "three tests" structure applies specifically to European Protected Species licensing under Regulation 44 (bats and great crested newts); other species licences work on a comparable but not identical basis.

1. Purpose. The work must fall within a purpose the law recognises as licensable. For private building work this is typically preserving public health or safety, or overriding public interest reasons including social or economic benefit. An ordinary loft conversion or extension generally qualifies as legitimate development; the test isn't aimed at screening out routine home improvement.
2. No satisfactory alternative. NatureScot must be satisfied there is no other way to achieve what you need that would avoid the impact.
3. Favourable conservation status. The licensed activity must not be detrimental to maintaining the species at a favourable conservation status in its natural range.

An application that doesn't pass all three is refused. Completing the paperwork isn't the same as being granted the licence, and NatureScot treats licensing as a last resort after avoidance and mitigation. Badger licences have their own limits: they can permit interfering with a sett for development but can't permit removing or killing badgers, aren't generally issued during the breeding season (30 November to 1 July) and can't be granted retrospectively.

What happens, step by step

One shortcut first. NatureScot publishes General Licences for a small set of birds and purposes, for example for public health and safety work involving feral pigeon and Canada goose nests. Where a General Licence covers your exact situation you can rely on it without an individual application. Most garden birds aren't covered, so the full process below applies to the great majority of nest, roost and sett finds.

1. Stop work in the affected area. Not necessarily the whole site, but stop anything that would disturb, damage or destroy what you have found.
2. Get it identified by someone qualified. For bats this usually means a licensed bat surveyor carrying out a Preliminary Roost Assessment and, if that can't rule out a roost, further survey work in the species' active season, since bats can't be reliably surveyed for presence or absence in winter. Great crested newt surveys are also season-locked, generally only viable in spring and early summer when the species breeds. For badgers, an ecologist confirms whether a sett is in current use. NatureScot's species licensing pages list what a surveyor must hold to work legally with a given species, so check before engaging anyone rather than assuming a general ecologist is qualified for every species. Don't try to disturb, handle or move any of these animals yourself to "check", which risks committing the offence you are trying to avoid.
3. Get a mitigation plan drawn up, usually by the same ecologist, setting out how the work will avoid, minimise or compensate for the impact: timing works outside a sensitive period, providing replacement roosting or nesting features, and exclusion or one-way methods to let animals leave a structure safely.
4. Apply to NatureScot. Not every licence needs a long formal application; for some, an email with the required supporting information is enough, and each species' licensing guide sets out what is needed. NatureScot's Licensing Team is on 01463 725364 or [email protected]. Applications for development-related work should generally wait until the necessary planning permissions are in place.
5. NatureScot assesses the application against the relevant tests and grants the licence (often with conditions such as timing, methods, monitoring and reporting), asks for more information, or refuses it.
6. Work proceeds under the licence conditions, typically supervised by the ecologist who prepared the mitigation plan, with any required reporting completed afterwards.

On timescales, development licence applications can take up to around eight weeks to process, and other species vary by complexity and time of year. The bigger constraint is usually the survey season. Bat emergence and re-entry surveys only run in the warmer months and hibernation surveys only in winter, so a roost found outside the right window can mean waiting for the next season before an application is even possible. Find bats in a loft in October and the realistic timeline is no useful survey until the following spring or summer, then the licence turnaround on top, so the affected part of the project is on hold for much of a year, not weeks. Allow a real buffer, and start the survey and application as early as possible once a protected species is involved.

On cost, NatureScot doesn't generally charge for the licence application itself. The cost sits with the survey and mitigation work, which depends on the species, how many survey visits a season requires and site complexity. Get quotes from a licensed surveyor or ecologist once you know what you are dealing with.

What if you carry on anyway

Continuing work that disturbs, injures, kills or damages the resting place of a protected species, or interferes with a sett or an active nest, without a licence where one was required is a criminal offence. Following the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020, the most serious offences under Regulation 39 (bats and great crested newts) and under the Protection of Badgers Act 1992 can be tried either summarily or on indictment:

Scottish Government wildlife crime statistics for 2024-25 recorded 8 bat persecution offences, all involving damage, destruction or obstruction of roosts, and 20 badger persecution offences nationally, 14 of them involving digging, damage or obstruction of setts. Those figures describe recorded offences, not the outcome for someone who does the right thing. The legal exposure attaches to carrying on regardless, not to finding something in the first place. Stopping, getting a proper survey and applying for a licence is the route that keeps a project out of those statistics.

Common questions

Sources