The bottom line is for any surveyors out there to claim in a report that there is x on site even where there are other surveyors out there who dispute this and say Y is on site, SNH will always without question follow the advice of the paid contractor for the site and will not investigate any contradoctory claims nor accept any reposnibility if Y is in fact correct. This is bad practice and goes against all current practices regarding badgers and development and sets a precedent for any uscrupulous developers who will always follow their own paid surveyors rather than wait until the matter is resolved.
WS
Down here in SW England from what you have said would suggest two main setts, but with the social patterns disrupted by the disturbance to the setts. I would suspect it will be difficullt to really know what is going on here, and on the face of it, I would have erred on the side of caution.
Its a difficult one however, at the end of the day its the developer who is taking the risk, of disturbing/injuring/killing a badger(s). Assuming its the same in Scotland as England and Wales, its the developer who technically makes the decision as to whether a license is required and the licensing body that decides whether to grant it.
If you have a time, how about asking to be present on site when they remove the sett. Have you contacted the developer directly and aired your concern that you consider this to be an active sett (ie used within the last 12 months).
Unfortunately, nearly all of the time this sort of issue is simply objectors trying to make life as difficult as possible for the developer, which is why, on the occasions, when there is a real issue to be dealt with, developers tend to be a bit dismissive. It is also why a well written and reasoned letter to the developer, should get a proper response.
Even now, assuming no signs of current occupation, the developer should be able to get a license for the sett to undergo a safe exclusion. and not seriously delay the program. Which may be the best compromise in the circumstances. Of course if there is good evidence fo occupation, then that is a different matter.
It doesn't help with the best practice issue, but at least if you are there, you should be satisfied that no badgers were "directly" disturbed. Although a slightly different situation, I have over the years regulary, while working as an ecological consultant for developers, invited locally concerned people (badger group, bat group, RSPB etc) to accompany me on my survey, or watch a sett exclusion etc.
As regards best practice, its a difficult one. SNH may in fact personally know the developers surveyor and be confident in their abilities. But I would still be happier to have been given proper reasons as to why it was fox and not badger, and based on what you have said and the pics, I would have reported it as a "badger" sett, currently being used by foxes (assuming i was happy about the evidence of foxes).
The developer will always take the advice of their consultants, that is why they pay them. Its up to the consultants to decide how they respond to an issue where there is a dispute over their assessment. They can dig their heels in, and leave the developer to run the risk of breaking the law by destroying an active badger sett without a license, OR they can advise their clients that to be on the safe side we should go and have another look.
If I was the developers consultant then you and I would be meeting on site, preferably with someone from SNH to resolve what should be done. I have had to do this a few times, and it has to said that on none of those occasions was the "badger" sett, a badger sett. They were holes in the ground, but either rabbit or indisputably fox, with no evidence of badger use.
Of course, the developer doesn't always pass these things on to their ecological consultant, who may be blissfully unaware of the issue. You don't work as a badger consultant, unless you are also a badger enthusiast, hence the normal practice of erring on the side of the badger.
So another couple of questions - you have obviously been in contact with SNH, but have you been in contact with either the people who did the survey, or the developer directly.
edit : I have just reread your posts and have changed tact a bit, given the immenent devloper activity.
You found evidence of badger on the site (footprints being the most important as the feeding signs can be open to interpretation)
The holes are of the shape and form indicitaive of them being dug by badgers.
Do you have evidence of badger activity in the sett (fresh digging, pad marks going into an entrance etc)
Do not dispute the orginal surveyors findings (which may have been correct at the time), but suggest they need updated because of the more up to date, and conclusive evidence of badgers on site.
Tell the developer in writing, and copy to SNH and Wildlife liaison Officer. If you can find out who the ecological consultants were, copy them in as well, as they can often be the driver to getting something done.
This is massively increasing the risks to the developer if they go ahead regardless of your warnings
Graham