The Conservation of Habitats and Species Regulations 2017
The
Conservation of Habitats and Species Regulations
2017 consolidate the Conservation of Habitats and
Species Regulations 2010 with subsequent amendments. The
Regulations transpose Council Directive 92/43/EEC, on the
conservation of natural habitats and of wild fauna and flora (EC
Habitats Directive), into national law. They also transpose
elements of the EU Wild Birds Directive in England and Wales. The
Regulations came into force on 30th November 2017, and extend to
England and Wales (including the adjacent territorial sea) and to a
limited extent in Scotland (reserved matters) and Northern Ireland
(excepted matters). In Scotland, the Habitats Directive is
transposed through a combination of the Habitats Regulations 2010
(in relation to reserved matters) and the and the Conservation
(Natural Habitats &c.) Regulations 1994. The
Conservation
(Natural Habitats, &c) Regulations (Northern Ireland) 1995 (as
amended) transpose the Habitats Directive in relation to
Northern Ireland.
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 and Wild
Birds Directive.
Certain
provisions implement aspects of the
Marine and Coastal Access Act
2009 (the “Marine Act”), such as the transfer of certain
licensing functions from Natural England (NE) to the Marine
Management Organisation (MMO); and for Marine Enforcement Officers
to use powers under the Marine Act to enforce certain offences
under the Habitats Regulations.
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 States must 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. When considering potentially damaging operations,
the country 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.
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 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).
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 5. 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.
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.
January 2018