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