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Appendix 1

Extracts from the Conservation (Natural Habitats &c.) Regulations 1994 (SI 1994/2716)

Regulation 3: General duties of competent authorities

3(1)

These Regulations make provision for the purpose of implementing, for Great Britain, Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (referred to in these Regulations as “the Habitats Directive”).

3(2)  

The Secretary of State, the Minister of Agriculture, Fisheries and Food and the nature conservation bodies shall exercise their functions under the enactments relating to nature conservation so as to secure compliance with the requirements of the Habitats Directive.

Those enactments include ‑

·        Part III of the National Parks and Access to the Countryside Act 1949

·        section 49A of the Countryside (Scotland) Act 1967 (management agreements

·        section 15 of the Countryside Act 1968 (areas of special scientific interest)

·        Part I and sections 28 to 38 of the Wildlife and Countryside Act 1981

·        sections 131 to 134 of the Environmental Protection Act 1990.

·        sections 2,3,5,6,7 and 11 of the Natural Heritage
(Scotland) Act 1991 and these Regulations.

3(3)

In relation to marine areas any competent authority having functions relevant to marine conservation shall exercise those functions so as to secure compliance with the requirements of the Habitats Directive.

This applies, in particular, to functions under the following enactments ‑

·        the Sea Fisheries Acts within the meaning of section 1 of the Sea Fisheries (Wildlife Conservation) Act 1992

·        the Dockyard Ports Regulation Act 1865

·        section 2(2) of the Military Lands Act 1900 (provisions as to use
of sea, tidal water or shore)

·        the Harbours Act 1964

·        Part II of the Control of Pollution Act 1974

·        sections 36 and 37 of the Wildlife and Countryside Act 1981 (marine nature reserves)

·        sections 120 to 122 of the Civic Government (Scotland) Act 1982 (control of the seashore, adjacent waters and inland waters)

·        the Water Resources Act 1991

·        the Land Drainage Act 1991, and

·        these Regulations

3(4)

Without prejudice to the preceding provisions, every competent authority in the exercise of any of their functions, shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions.

Regulation 5: Identification of relevant authorities for marine areas

5

For the purposes of these Regulations the relevant authorities, in relation to a marine area or European marine site, are such of the following as have functions in relation to land or waters within or adjacent to that area or site ‑

(a)    a nature conservation body;

(b)   a county council, district council, London borough council or, in Scotland, a regional, islands or district council;

(c)    the National Rivers Authority, a water undertaker or sewerage undertaker, or an internal drainage board;

(d)   a navigation authority within the meaning of the Water Resources Act 1991(k);

(e)    a harbour authority within the meaning of the Harbours Act 1964(l);

(f)     a lighthouse authority;

(g)    a river purification board or a district salmon fishery board;

(h)    a local fisheries committee constituted under the Sea Fisheries Regulation Act 1966(m) or any authority exercising the powers of such a committee.

Regulation 6: Identification of competent authorities

6(1)

For the purposes of these Regulations the expression “competent authority” includes any Minister, government department, public or statutory undertaker, public body of any description or person holding a public office.

The expression also includes any person exercising any function of a competent authority in the United Kingdom.

Regulation 33: Advice by CCW for European marine sites

33(2)

As soon as possible after a site becomes a European marine site, the appropriate nature conservation body shall advise other relevant authorities as to ‑

(a)    the conservation objectives for that site, and

(b)   any operations which may cause deterioration of natural habitats or the habitats of species, or disturbance of species, for which the site has been designated.

Regulations 34 and 35: Management schemes for European marine sites

34(1)

The relevant authorities, or any of them, may establish for a European marine site a management scheme under which their functions (including any power to make bylaws) shall be exercised so as to secure in relation to that site compliance with the requirements of the Habitats Directive.

34(2)

Only one management scheme may be made for each European marine site.

34(3)

A management scheme may be amended from time to time.

34(4)

As soon as a management scheme has been established, or is amended, a copy of it shall be sent by the relevant authority or authorities concerned to the appropriate nature conservation body.

35(1)

The relevant Minister may give directions to the relevant authorities, or any of them, as to the establishment of a management scheme for a European marine site.

35(2)

Directions may, in particular ‑

(a)    require conservation measures specified in the direction to be included in the scheme;

(b)   appoint one of the relevant authorities to co‑ordinate the establishment of the scheme;

(c)    set time limits within which any steps are to be taken;

(d)   provide that the approval of the Minister is required before the scheme is established; and

(e)    require any relevant authority to supply to the Minister such information concerning the establishment of the scheme as may be specified in the direction.

35(3)

The relevant Minister may give directions to the relevant authorities, or any of them, as to the amendment of a management scheme for a European marine site, either generally or in any particular respect.

35(4)

Any direction under this regulation shall be in writing and may be carried or revoked by a further direction.

35(5)

In this regulation “the relevant Minister” means, in relation to a site in England, the Secretary of State and the Minister of Agriculture, Fisheries and Food acting jointly and in any other case the Secretary of State.

Regulations 48 to 53: Consideration of plans and projects

Assessment of implications for European site

48(1)

A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which ‑

(a)    is likely to have a significant effect on a European site in Great Britain (either alone or in combination with other plans or projects), and

(b)   is not directly connected with or necessary to the management of the site, shall make an appropriate assessment of the implications for the site in view of that site’s conservation objectives.

48(2)

A person applying for any such consent, permission or other authorisation shall provide such information as the competent authority may reasonably require for the purposes of the assessment.

48(3)

The competent authority shall for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority may specify.

48(4)

They shall also, if they consider it appropriate, take the opinion of the general public; and if they do so, they shall take such steps for that purpose as they consider appropriate.

48(5)

In the light of the conclusions of the assessment, and subject to regulation 49, the authority shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site.

48(6)

In considering whether a plan or project will adversely affect the integrity of the site, the authority shall have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given.

Considerations of overriding public interest

49(1)

If they are satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (2), may be of a social or economic nature), the competent authority may agree to the plan or project notwithstanding a negative assessment of the implications for the site.

49(2)

Where the site concerned hosts a priority natural habitat type or a priority habitat type or a priority species, the reasons referred to in paragraph (1) must be either ‑

(a)    reasons relating to human health, public safety or beneficial consequences of primary importance to overriding public interest, or

(b)   other reasons which in the opinion of the European Commission are imperative reasons of overriding public interest.

49(3)

Where a competent authority other than the Secretary of State desire to obtain the opinion of the European Commission as to whether reasons are to be considered imperative reasons of overriding public interest, they shall submit a written request to the Secretary of State ‑

(a)            identifying the matter on which an opinion is sought, and

(b)            accompanied by any documents or information which may be required.

49(4)

The Secretary of State may thereupon, if he thinks fit, week the opinion of the Commission; and if he does so, he shall upon receiving the Commission’s opinion transmit it to the authority.

49(5)

Where an authority other than the Secretary of State propose to agree to a plan or project under this regulation notwithstanding a negative assessment of the implications for European site, they shall notify the Secretary of State.

Having notified the Secretary of State, they shall not agree to the plan or project before the end of the period of 21 days beginning with the day notified to them by the Secretary of State as that on which their notification was received by him, unless the Secretary of State notifies them that they may do so.

49(6)

In any such case the Secretary of State may give directions to the authority prohibiting them from agreeing to the plan or project, either indefinitely or during such period as may be specified in the direction.

This power is without prejudice to any other power of the Secretary of State in relation to the decision in question.

Review of existing decisions and consents, &c.

50(1)

Where before the date on which a site becomes a European site or, of later, the commencement of these Regulations, a competent authority have decided to undertake, or have given any consent, permission or other authorisation for, a plan or project to which regulation 48(1) would apply if it were to be reconsidered as of that date, the authority shall as soon as reasonably practicable, review their decision or, as the case may be, the consent, permission or other authorisation, and shall affirm, modify or revoke it.

50(2)

They shall for that purpose make an appropriate assessment of the implications for the site in view of that site’s conservation objectives; and the provisions of regulation 48(2) to (4) shall apply, with the appropriate modifications, in relation to such a review.

50(3)

Subject to the following provisions of this Part, any review required by this regulation shall be carried out under existing statutory procedures where such procedures exist, and if none exist the Secretary of State may give directions as to the procedure to be followed.

50(4)

Nothing in this regulation shall affect anything done in pursuance of the decision, or the consent, permission or other authorisation, before the date mentioned in paragraph (1).

Consideration on review

51(1)

The following provisions apply where a decision, or a consent, permission or other authorisation, falls to be reviewed under regulation 50.

51(2)

Subject as follows, the provisions of regulation 48(5) and (6) and regulation 49 shall apply, with the appropriate modifications, in relation to the decision on the review.

51(3)

The decision, or the consent, permission or other authorisation, may be affirmed if it appears to the authority reviewing it that other action taken or to be taken by them, or by another authority, will secure that the plan or project does not adversely affect the integrity of the site.

Where that object may be attained in a number of ways, the authority or authorities concerned shall seek to secure that the action taken is the least onerous to those affected.

51(4)

The Secretary of State may issue guidance to authorities for the purposes of paragraph (3) as to the manner of determining which of different ways should be adopted for securing that the plan or project does not have any such effect, and in particular ‑

(a)    the order of application of different controls, and

(b)   the extent to which account should be taken of the possible exercise of other powers;

and the authorities concerned shall have regard to any guidance so issued in discharging their functions under that paragraph.

51(5)

Any modification or revocation effected in pursuance of this regulation shall be carried out under existing statutory procedures where such procedures exist.

If none exist, the Secretary of State may give directions as to the procedure to be followed.

Compensatory measures

53

Where in accordance with regulation 49 (considerations of overriding public interest) ‑

(a) a plan or project is agreed to, notwithstanding a negative assessment of the implications for a European site, or

(b) a decision, or a consent, permission or other authorisation, is affirmed on review, notwithstanding such an assessment,

(c) the Secretary of State shall secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 is protected.