The Conservation (Natural Habitats, &c.)
Regulations 1994
The
Conservation
(Natural Habitats, &c.) Regulations 1994 transpose Council
Directive 92/43/EEC on the conservation of natural habitats and of
wild fauna and flora (EC Habitats Directive) into national
law
1 . The Regulations
came into force on 30 October 1994, and have been subsequently
amended in 1997
3 and (in
England only)2000
4 .
Containing five Parts and four Schedules, the Regulations provide
for the designation and protection of 'European sites', the
protection of 'European protected species', and the adaptation of
planning and other controls for the protection of European
Sites.
Under the Regulations, competent authorities i.e. any
Minister, government department, public body, or person holding
public office, have a general duty, in the exercise of any of their
functions, to have regard to the EC Habitats Directive.
Conservation of Natural Habitats and Habitats of Species
The Regulations place a duty on the Secretary of State to
propose a list of sites which are important for either habitats or
species (listed in Annexes I and II of the Habitats Directive
respectively) to the European Commission. Once the Commission and
EU Member States have agreed that the sites submitted are worthy of
designation, they are identified as Sites of Community Importance
(SCIs). The EU Member Statesmust then designate these sites as
Special Areas of Conservation (SACs) within six years. The
Regulations also require the compilation and maintenance of a
register of European sites, to include SACs and Special Protection
Areas (SPAs) classified under Council Directive 79/409/EEC on the
Conservation of Wild Birds (the Birds Directive). These sites form
a network termed Natura 2000.
The Regulations enable the country agencies to enter into
management agreements on land within or adjacent to a European
site, in order to secure its conservation. If the agency is unable
to conclude such an agreement, or if an agreement is breached, it
may acquire the interest in the land compulsorily. The agency may
also use its powers to make byelaws to protect European sites. The
Regulations also provide for the control of potentially damaging
operations, whereby consent from the country agency may only be
granted once it has been shown through appropriate assessment that
the proposed operation will not adversely affect the integrity of
the site
2 . In instances
where damage could occur, the appropriate Minister may, if
necessary, make special nature conservation orders, prohibiting any
person from carrying out the operation. However, an operation may
proceed where it is or forms part of a plan or project with no
alternative solutions, which must be carried out for reasons of
overriding public interest. In such instances the Secretary of
State must secure compensation to ensure the overall integrity of
the Natura 2000 system. The country agencies are required to review
consents previously granted under the Wildlife and Countryside Act
1981 for land within a European site, and may modify or withdraw
those that are incompatible with the conservation objectives of the
site.
The Regulations make special provisions for the protection of
European marine sites, requiring the country agencies to advise
other authorities of the conservation objectives for a site, and
also of the operations which may affect its integrity. The
Regulations also enable the establishment of management schemes and
byelaws by the relevant authorities and country agencies
respectively, for the management and protection of European marine
sites.
The Habitats Regulations apply only as far as the limit of
territorial waters (12 nautical miles from baseline). The Offshore
Petroleum Activities (Conservation of Habitats) Regulations
2001
5 apply the Habitats
Directive and the Birds Directive in relation to oil and gas plans
or projects wholly or partly on the United Kingdom's Continental
Shelf and superjacent waters outside territorial waters (the UKCS).
The Department for Environment, Food and Rural Affairs (Defra) will
present separate regulations to deal with the overall management of
sites and species to be protected in offshore areas. An initial
consultation on these was carried out in 2003.
Protection of Species
The Regulations make it an offence (subject to exceptions) to
deliberately capture, kill, disturb, or trade in the animals listed
in Schedule 2, or pick, collect, cut, uproot, destroy, or trade in
the plants listed in Schedule 4. However, these actions can be made
lawful through the granting of licenses by the appropriate
authorities. Licenses may be granted for a number of purposes (such
as science and education, conservation, preserving public health
and safety), but only after the appropriate authority is satisfied
that there are no satisfactory alternatives and that such actions
will have no detrimental effect on wild population of the species
concerned.
Amendments to the Habitats Regulations for England and Wales
and the new Offshore Marine Conservation (Natural Habitats,
&c.) Regulations 2007 came into force on the 21st August 2007.
Both Regulations revised the definition of deliberate disturbance
of European Protected Species (cetaceans, turtles and the Atlantic
sturgeon). In the document “
The deliberate disturbance of marine European
Protected Species - Interim guidance for English and Welsh
territorial waters and the UK offshore marine area”, the
JNCC provides initial guidance in interpreting the law from the
point of view of nature conservation, so that developers in the
marine environment can assess the likelihood of committing an
offence and how offences can be avoided, and if a wildlife licence
is required.
Adaptation of Planning and Other Controls
The Regulations require competent authorities to consider or
review planning permission, applied for or granted, affecting a
European site, and, subject to certain exceptions, restrict or
revoke permission where the integrity of the site would be
adversely affected. Equivalent consideration and review provisions
are made with respects to highways and roads, electricity,
pipe-lines, transport and works, and environmental controls
(including discharge consents under water pollution legislation).
Special provisions are also made as respects general development
orders, special development orders, simplified planning zones and
enterprise zones.
1Equivalent provisions for Northern
Ireland are contained within the
Conservation
(Natural Habitats, etc.) Regulations 1995(as amended).
2When
considering potentially damaging operations, the conservation
agencies apply the precautionary principle' i.e. consent cannot be
given unless it is ascertained that there will be no adverse effect
on the integrity of the site.