Naturenet: The Conservation (Natural Habitats, &c.) Regulations 1994
The Conservation (Natural Habitats, &c.) Regulations 1994
T
he main Acts for protection of biodiversity in England
and Wales are the Wildlife and Countryside Act 1981
, and the Countryside
and Rights of Way Act 2000. However, there is another layer of legislation produced at a European
level. This is an EU Directive which is produced to have effect at a national
level as regulations, and although there are many such regulations which have
an impact on environmental matters, the most important is the rather clumsily-named
Conservation (Natural Habitats, &c.) Regulations 1994. As this name is
more or less unpronouncable in normal speech these are sometimes informally
known as 'The Habitat Directive', 'The Habitat Regulations' or just 'HabsRegs'.
It is worth noting that the Directive in itself has no force in law, it is
the national regulations, made to comply with the Directive, which are the
legal vehicle for these powers.
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 (footnote 1). The Regulations came into force on 30
October 1994, and have been subsequently amended in 1997(footnote3)
and (in England only) 2000 (footnote 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.
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 UK Government have agreed that the sites submitted
are worthy of designation, they are identified as Sites of Community Importance
(SCIs). The UK Government 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 (footnote 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 (footnote 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.
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.
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.
1. Equivalent provisions for Northern
Ireland are contained within the Conservation
(Natural Habitats, etc.) Regulations 1995.
2. When
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.
3.
The Conservation
(Natural Habitats, &c.) (Amendment)
Regulations 1997 (Statutory Instrument 1997 No. 3055)
4. The
Conservation (Natural Habitats, &c.) (Amendment)
(England) Regulations 2000 (Statutory Instrument 2000 No. 192)
5. The
Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001
(Statutory Instrument 2001 No. 1754)
The text on which this page is based is Crown Copyright, used with permission,
and taken from the Joint Nature Conservation
Committee.
