2007 No. 1842

wildlife

The Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007

Made24th June 2007

Laid before Parliament3rd July 2007

Coming into force21st August 2007

The Secretary of State is a Minister designated1 for the purposes of making Regulations under section 2(2) of the European Communities Act 19722 in relation to measures relating to the conservation of natural habitats and of wild flora and fauna.

These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972.

It appears to the Secretary of State that it is expedient for any reference to an Annex to the Habitats Directive or to the Wild Birds Directive (as defined in these Regulations) to be construed as a reference to that Annex as amended from time to time.

In the exercise of the powers conferred by section 2(2)3 of, and paragraph 1A4 of Schedule 2 to, the European Communities Act 1972, he makes the following Regulations:

PART 1INTRODUCTORY PROVISIONS

Citation and commencement1

These Regulations may be cited as the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 and come into force on 21st August 2007.

Interpretation2

1

—In these Regulations—

a

subject to sub-paragraph (b)—

i

“the Habitats Directive” means Council Directive 92/43/EEC5 on the conservation of natural habitats and of wild fauna and flora6; and

F27ii

“the Wild Birds Directive” means Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds; and

b

references to any Annex to the Habitats Directive or any Annex to the Wild Birds Directive are references to that Annex as amended from time to time.

2

In these Regulations—

“the 1994 Regulations” means the Conservation (Natural Habitats, &c.) Regulations 19949;
F20“the 2010 Regulations” means the Conservation of Habitats and Species Regulations 2010;
“a British aircraft” means an aircraft registered in the United Kingdom;
“British fishery limits” has the meaning given by the Fishery Limits Act 197610;
“competent authority” is to be construed in accordance with regulation 5;
F22“competent authority in Scotland” means a competent authority whose functions are exercisable solely in or as regards Scotland or the Scottish offshore region;
“devolved administrations” means the Scottish Ministers, the Welsh Ministers and, in Northern Ireland, the Department of the Environment;
“the EC Treaty” means the Treaty establishing the European Community11;
F132“Energy Act licence” means a licence which is granted (or is to be granted) under Part 1 of the Energy Act 2008;
“European offshore marine site” has the meaning given by regulation 15;
“European protected species” means the species of animals listed in Schedule 1;
“European site” has the meaning given by regulation 24;
“functions” includes powers and duties;
F23“installation abandonment measures” means any measures taken in connection with the abandonment of—
1. a
  an offshore installation within the meaning of Part 4 of the Petroleum Act 1998, or submarine pipeline within the meaning of that Part, or
2. b
  a carbon storage installation, within the meaning of section 30 of the Energy Act 2008,
whether or not the measures are taken in pursuance of an abandonment programme, and for this purpose “an abandonment programme” means—
1. a
  an abandonment programme under Part 4 of the Petroleum Act 1998;
2. b
  an abandonment programme under that Part, as it applies by virtue of section 30 of the Energy Act 2008;
“management scheme” means—
1. a
  for the purposes of regulation 19(3)(c), a scheme established under regulation 34 of the 1994 RegulationsF21, regulation 29 of the Conservation (Natural Habitats, &c) Regulations (Northern Ireland) 1995 or regulation 36 of the 2010 Regulations ;
2. b
  for all other purposes, a scheme established under regulation 19(1);
“Natura 2000” means the European network of special areas of conservation, and special protection areas under the Wild Birds Directive, provided for by Article 3(1) of the Habitats Directive;
“Northern Ireland department” has the same meaning as in the Northern Ireland Act 199813;
“the offshore marine area” means—
1. a
  any part of the seabed and subsoil situated in any area designated under section 1(7) of the Continental Shelf Act 196414; and
2. b
  any part of the waters within British fishery limits (except the internal waters of, and the territorial sea adjacent to, the United Kingdom, the Channel Islands and the Isle of Man);
“offshore marine installation” means any artificial island, installation or structure (other than a ship) which is situated—
1. a
  in any part of the waters in any area designated under section 1(7) of the Continental Shelf Act 1964; or
2. b
  in any part of the waters in any area designated under section 84(4) of the Energy Act 200415;
“Petroleum Act approval” means an approval of an abandonment programme under section 32 of the Petroleum Act 199816;
“Petroleum Act authorisation” means an authorisation granted pursuant to section 14 of the Petroleum Act 1998 relating to the construction or use of a pipe-line;
F133“Petroleum or Energy Act consent” means—
1. a
  a consent granted pursuant to a Petroleum Act licence or an Energy Act licence, including any consent required pursuant to the Offshore Petroleum Productions and Pipe-lines (Assessment of Environmental Effects) Regulations 1999; or
2. b
  a consent granted pursuant to regulation 4(1) of the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001;
“Petroleum Act licence” means a licence which is granted under or has effect as if granted under the Petroleum Act 1998, or a licence which is to be granted under that Act;
“premises” includes land (including buildings), movable structures, ships and vehicles;
“the register” means the register of European offshore marine sites provided for by regulation 16;
“Scotland” has the same meaning as in the Scotland Act 199819;
F24“Scottish inshore region” means the area of sea within the seaward limits of the territorial sea adjacent to Scotland;
“Scottish offshore region” means so much of the offshore marine area as lies outside the Scottish inshore region and consists of—
1. a
  areas of sea which lie within the Scottish zone,
2. b
  areas of sea which lie outside the Scottish zone but which are nearer to any point on the baselines from which the breadth of the territorial sea adjacent to Scotland is measured than to any point on the baselines in any other part of the United Kingdom, and
3. c
  any part of the seabed and subsoil subjacent to those areas of sea;
“Scottish zone” has the same meaning as in the Scotland Act 1998;
“ship” means any vessel (including hovercraft, submersible craft and other floating craft) other than one which permanently rests on, or is permanently attached to, the seabed;
F25“territorial sea” means the territorial sea of the United Kingdom;
“third country ship” means a ship which—
1. a
  is flying the flag of, or is registered in, any State or territory (other than Gibraltar) which is not a member State; and
2. b
  is not registered in a member State;
“wild bird” means a bird which—
1. a
  is a member of a species referred to in Article 1 of the Wild Birds Directive; and
2. b
  is wild;
F26“wildlife officer” means a person authorised by—
1. a
  the Secretary of State or the Scottish Ministers under regulation 52(1);
2. b
  a competent authority under regulation 52(2); or
3. c
  a competent authority in Scotland under regulation 52(2A);
“within devolved competence” is to be construed in accordance with section 54 of the Scotland Act 1998.

3

Unless the context otherwise requires—

a

expressions used in these Regulations and in the Habitats Directive have the same meaning as in that Directive; and

b

expressions used in these Regulations and in the Wild Birds Directive (but not in the Habitats Directive) have the same meaning as in that Directive.

Application to the Crown3

1

Subject to paragraph (2), these Regulations bind the Crown.

2

No contravention by the Crown of any provision of these Regulations shall make the Crown criminally liable, but the High Court or in Scotland the Court of Session may, on the application of any person appearing to the Court to have an interest, declare unlawful any act or omission of the Crown which constitutes such a contravention.

3

Notwithstanding paragraph (2), the provisions of these Regulations apply to persons in the public service of the Crown as they apply to any other person.

Rights under international law4

1

This regulation applies in relation to—

a

an office the remuneration in respect of which is paid out of public funds.

Duty of competent authorities6

1

In relation to the offshore marine area, any competent authority having functions relevant to marine conservation must exercise those functions so as to secure compliance with the requirements of the Habitats Directive and the Wild Birds Directive.

2

Paragraph (1) applies, in particular, to functions under the following enactments—

a

the Whaling Industry (Regulation) Act 193420;

b

section 34 of the Coast Protection Act 194921 (restriction of works detrimental to navigation);

c

the Sea Fish (Conservation) Act 196722;

d

the Prevention of Oil Pollution Act 197123;

e

the Fishery Limits Act 197624;

f

the Fisheries Act 198125;

g

Part 2 of the Food and Environment Protection Act 198526 (deposits in the sea);

h

~~F136the Radioactive Substances Act 1993~~27;

i

sections 128 and 129 of the Merchant Shipping Act 199528 (prevention of pollution from ships and further provision for prevention of pollution from ships);

j

the Pollution Prevention and Control Act 199929;

k

the Merchant Shipping (Prevention of Oil Pollution) Regulations 199630;

l

the Merchant Shipping (Oil Pollution Preparedness, Response and Co-operation Convention) Regulations 199831;

F28m

the Offshore Installations (Emergency Pollution Control) Regulations 2002;

n

the Planning Act 2008;

o

the Marine and Coastal Access Act 2009; and

p

these Regulations.

PART 2CONSERVATION OF NATURAL HABITATS AND HABITATS OF SPECIES

European offshore marine sites

List of sites eligible for identification as of Community importance7

1

The Secretary of State must transmit to the Commission a list of those sites in the offshore marine area which he regards as eligible for selection as sites of Community importance.

F291A

The Scottish Ministers must transmit to the Secretary of State a list of those sites in the Scottish offshore region which they regard as eligible for selection as sites of Community importance.

2

The Secretary of State must select the sites to be included in the list under paragraph (1) only on the basis of the criteria set out in Annex III (Stage 1) to the Habitats Directive and relevant scientific information.

F302A

The Scottish Ministers must select the sites to be included in the list under paragraph (1A) only on the basis of the criteria set out in Annex III (Stage 1) to the Habitats Directive and relevant scientific information.

3

A site may only be included in the list under paragraph (1) F32or (1A) if—

a

it hosts a natural habitat type listed in Annex I to the Habitats Directive; or

b

it hosts a species listed in Annex II to the Habitats Directive which has a natural range including any part of the offshore marine area.

4

In respect of an aquatic species which ranges over wide areas, a site is only eligible to be selected under paragraph (2) if it appears to the Secretary of State to constitute a clearly identifiable area which is distinct in providing the physical and biological features essential to that species for life and reproduction.

F314A

In respect of an aquatic species which ranges over wide areas, a site is only eligible to be selected under paragraph (2A) if it appears to the Scottish Ministers to constitute a clearly identifiable area which is distinct in providing the physical and biological features essential to that species for life and reproduction.

5

The F33list transmitted to the Secretary of State under paragraph (1A) and the list transmitted to the Commission under paragraph (1) must—

a

in respect of each site indicate which natural habitat types specified in Annex I and species specified in Annex II to the Habitats Directive the site hosts; and

b

be accompanied with information on each site including—

i

a chart of the site;

ii

its name, location and extent; and

iii

the data resulting from application of the criteria specified in Annex III (Stage 1) to the Habitats Directive.

6

The information specified in paragraph (5)(b) must be provided in such format as is established by the Commission.

The Joint Nature Conservation Committee must provide to F38the relevant administration a report describing the representations duly made, if any, that it received about the proposal, or where no such representations have been received, stating that fact.

5

F38The relevant administration must consider the report provided by the Joint Nature Conservation Committee under paragraph (4).

6

The Secretary of State may issue guidance to the Joint Nature Conservation Committee for the purposes of its functions under this regulation and the Committee must have regard to that guidance in discharging any of those functions.

F356A

The Scottish Ministers may issue guidance to the Joint Nature Conservation Committee for the purposes of its functions under this regulation in relation to a proposal under paragraph (1B), and the Committee must have regard to that guidance in discharging any of those functions.

7

The Secretary of State may vary or revoke a direction under paragraph (2)(d) F39, and the Scottish Ministers may vary or revoke a direction under paragraph (2)(e)(ii) .

F368

In this regulation—

“the relevant administration” means—
1. a
  in relation to a report concerning a proposal under paragraph (1), the Secretary of State; and
2. b
  in relation to a report concerning a proposal under paragraph (1B), the Scottish Ministers.

such other persons as the Scottish Ministers direct.

4

A notice under paragraph (3) must specify the date (being not less than 12 weeks from the date of the giving of the notice) by which representations with respect to the proposed modification may be made to the Joint Nature Conservation Committee.

5

The Joint Nature Conservation Committee must provide to F44the relevant administration a report describing the representations duly made, if any, that it received about the proposal, or where no such representations have been received, stating that fact.

6

F44The relevant administration must consider the report provided by the Joint Nature Conservation Committee under paragraph (5).

7

8

The Secretary of State may vary or revoke a direction under paragraph (3)(d) F45, and the Scottish Ministers may vary or revoke a direction under paragraph (3)(e)(ii) .

F429

In this regulation—

“the relevant administration” means—
1. a
  in relation to a report concerning a proposal under paragraph (2), the Secretary of State; and
2. b
  in relation to a report concerning a proposal under paragraph (2B), the Scottish Ministers.

Consultation as to inclusion of site omitted from the list10

1

This regulation applies where consultation is initiated by the Commission in accordance with Article 5(1) of the Habitats Directive with respect to a site in the offshore marine area hosting a priority natural habitat type or priority species, and—

a

the Secretary of State and the Commission agree, within the six-month period mentioned in Article 5(2) of the Habitats Directive, that the site should be selected as a site of Community importance, or

b

the Council, acting on a proposal from the Commission in pursuance of Article 5(2) of the Habitats Directive, decides that the site should be so selected.

2

Where this regulation applies, the site is to be treated for the purposes of these Regulations as having been placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive as from the date of the agreement referred to in paragraph (1)(a) or the decision referred to in paragraph (1)(b).

Designation of special areas of conservation11

1

Once a site located in the offshore marine area has been adopted by the Commission as a site of Community importance in accordance with the third sub-paragraph of Article 4(2) of the Habitats Directive, F47the relevant administration must designate that site as a special area of conservation as soon as possible and within six years of such adoption at the most.

2

F48The relevant administration must establish priorities for any site which it designates under paragraph (1) , in the light of—

a

the importance of the site—

i

for the maintenance or restoration at a favourable conservation status of natural habitat types specified in Annex I to the Habitats Directive or species specified in Annex II to that Directive, and

ii

for the coherence of Natura 2000; and

b

the threats of degradation or destruction to which the site is exposed.

F463

In this regulation—

“the relevant administration” means—
1. a
  in relation to a site within the Scottish offshore region, the Scottish Ministers; and
2. b
  in any other case, the Secretary of State.

Classification of sites as special protection areas12

1

The Secretary of State must classify as special protection areas such sites in the offshore marine area as he considers necessary to ensure that the objective specified in paragraph (2) is attained.

2

The objective referred to in paragraph (1) is that those sites across the United Kingdom’s territory which are most suitable in number and size for—

a

the conservation of the species listed in Annex I to the Wild Birds Directive which naturally occur in that territory, and

b

the conservation of regularly occurring migratory species of birds not listed in Annex I which naturally occur in that territory,

are classified as special protection areas.

3

The Secretary of State must make his decision as to the sites to be classified under paragraph (1) only on the basis of relevant scientific information and—

a

in the case of a site to be classified for the purpose mentioned in paragraph (2)(a), on the basis of the criteria set out in Article 4(1) of the Wild Birds Directive; and

b

in the case of a site to be classified for the purpose mentioned in paragraph (2)(b), on the basis of the criteria set out in Article 4(2) of the Wild Birds Directive.

4

Where a site is classified under paragraph (1)F50or under regulation 12A, the Secretary of State must provide information on that site to the Commission including—

a

a chart of the site;

b

its name, location and extent; and

c

the data resulting from application of the criteria set out in Article 4(1) or Article 4(2) of the Wild Birds Directive.

5

The information specified in paragraph (4) must be provided in such format as is established by the Commission.

6

In this regulation “the United Kingdom’s territory” means the United Kingdom (including its internal waters), the territorial sea adjacent to the United Kingdom, and the offshore marine area.

F497

Nothing in this regulation requires the Secretary of State to classify as, or as part of, a special protection area any site which is or forms part of a site classified as a special protection area by the Scottish Ministers under regulation 12A.

F17Classification of sites in the Scottish offshore region as special protection areas12A

1

The Scottish Ministers must classify as special protection areas such sites in the Scottish offshore region as they consider necessary to ensure that the objective specified in paragraph (2) is attained.

2

The objective referred to in paragraph (1) is that those sites across the United Kingdom’s territory which are most suitable in number and size for—

a

the conservation of the species listed in Annex I to the Wild Birds Directive which naturally occur in that territory, and

b

the conservation of regularly occurring migratory species of birds not listed in Annex I which naturally occur in that territory,

are classified as special protection areas, in so far as they consist of sites in the Scottish offshore region.

3

The Scottish Ministers must make their decision as to the sites to be classified under paragraph (1) only on the basis of relevant scientific information and—

a

in the case of a site to be classified for the purpose mentioned in paragraph (2)(a), on the basis of the criteria set out in Article 4(1) of the Wild Birds Directive; and

b

in the case of a site to be classified for the purpose mentioned in paragraph (2)(b), on the basis of the criteria set out in Article 4(2) of the Wild Birds Directive.

4

But the Scottish Ministers may only classify a site as a special protected area under paragraph (1) if the Secretary of State has agreed that they so classify the site.

5

Where a site is classified under paragraph (1), the Scottish Minsters must provide information on that site to the Secretary of State including—

a

a chart of the site;

b

its name, location and extent; and

c

the data resulting from application of the criteria set out in Article 4(1) or Article 4(2) of the Wild Birds Directive.

6

The information specified in paragraph (5) must be provided in the format applicable for the purposes of regulation 12(5).

7

In this regulation “the United Kingdom’s territory” means the United Kingdom (including its internal waters), the territorial sea adjacent to the United Kingdom, and the offshore marine area.

the Secretary of State; and

ii

such other persons as the Scottish Ministers direct.

3

4

The Joint Nature Conservation Committee must provide to F58the relevant administration a report describing the representations duly made, if any, that it received about the proposal, or where no such representations have been received, stating that fact.

5

F58The relevant administration must consider the report provided by the Joint Nature Conservation Committee under paragraph (4).

6 F526A

The Scottish Ministers may issue guidance to the Joint Nature Conservation Committee for the purposes of its functions under this regulation in relation to site proposals under paragraph (1B), and the Committee must have regard to that guidance in discharging any of those functions.

7

The Secretary of State may vary or revoke a direction under paragraph (2)(d) F59, and the Scottish Ministers may vary or revoke a direction under paragraph (2)(e)(ii) .

F538

In this regulation—

“the relevant administration” means—
1. a
  in relation to a report concerning a site proposal under paragraph (1), the Secretary of State; and
2. b
  in relation to a report concerning a site proposal under paragraph (1B), the Scottish Ministers.

Hearings14

1

The Secretary of State may give any person the opportunity of appearing before and being heard by, or of providing written representations to, a person appointed by him—

a

for the purpose of deciding whether to include a site in the list to be transmitted under F61regulation (7)(1) ;

b

for the purpose of deciding whether to propose to the Commission a modification under regulation 9 to the list of sites transmitted under regulation 7; or

c

for the purpose of deciding whether to classify a site as a special protection area under regulation 12.

2

Any person given the opportunity under paragraph (1) of appearing before and being heard by a person appointed by the Secretary of State may—

a

be represented by another person;

b

call persons to give evidence; and

c

put questions to any person who gives evidence at the hearing, including any person who gives expert evidence.

3

The Secretary of State must consider any report of a person appointed by him under paragraph (1).

F604

Where the Secretary of State proposes to exercise any function under this regulation in relation to any matter in relation to which functions are exercisable by the Scottish Ministers under regulation 14A, the Secretary of State must consult the Scottish Ministers.

a site which has been proposed to the Commission by the Secretary of State as a site eligible for designation as a special area of conservation for the purposes of meeting the United Kingdom’s obligations under Article 4(1) of the Habitats Directive until such time as—

i

the site is placed on the list of sites of Community importance referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive; or

ii

agreement is reached or a decision is taken pursuant to Article 4(2) of that Directive that the site is not to be placed on that list.

if a site otherwise ceases to fall within any of the categories listed in paragraph (2).

6

The Secretary of State must keep a copy of the register entries available for public inspection at all reasonable hours and free of charge.

Notification of changes to the register17

1

After including a site in the register, amending an entry in the register or removing an entry from the register, the Secretary of State must give notice of having done so to—

a

the Joint Nature Conservation Committee;

b

the devolved administrations;

c

any of the following which in his opinion ought to be notified—

i

competent authorities which exercise functions in relation to the site which is affected; and

ii

competent authorities which exercise functions in relation to a marine area adjacent to the site which is affected;

d

any international organisations who in his opinion ought to be notified; and

e

such other persons as in his opinion ought to be notified.

2

Where a site adjoins the territory of another member State, the Secretary of State must, after including such a site in the register, amending an entry relating to such a site in the register, or removing an entry relating to such a site from the register, give notice of having done so to such authorities of that State as he considers appropriate.

3

Where the Secretary of State gives notice under paragraph (1) or (2) in respect of the inclusion of a site in the register or the amendment of an entry in the register, the notice must be accompanied by a copy of—

a

in the case of a notice of the inclusion of a site in the register, the register entry;

b

in the case of a notice of the amendment of an entry in the register, the amended entry.

Site protection and management

Establishment of nature conservation objectives18

As soon as is reasonably practicable after a European offshore marine site has been included in the register, the Joint Nature Conservation Committee must—

a

establish conservation objectives for the site and notify those objectives to such competent authorities as it considers appropriate; and

b

advise such competent authorities as it considers appropriate of any operations which in its opinion may adversely affect the integrity of the site.

1

Where a European offshore marine site, other than any such site in the Scottish offshore region, adjoins a special area of conservation or a special protection area which has been (respectively) designated or classified by another member State, the Secretary of State must consult that State in relation to the co-ordinated management of the site and the area in question.

2

Where a European offshore marine site in the Scottish offshore region adjoins a special area of conservation or a special protection area which has been (respectively) designated or classified by another member State, the Scottish Ministers must, and the Secretary of State may, consult that State in relation to the co-ordinated management of the site and the area in question.

3

Before the Secretary of State consults under paragraph (2) in relation to a site, or a part of a site, in relation to which the Scottish Ministers must consult under that paragraph, the Secretary of State must consult the Scottish Ministers.

Conservation measures relating to special areas of conservation22

1

the disturbance of species specified in paragraph (3) is not unlawful under regulation 32 or Part 3 of these Regulations.

12

In this regulation—

F69...
“the relevant administration” means—
1. a
  in relation to a competent authority in Scotland, the Scottish Ministers; and
2. b
  in relation to a competent authority other than a competent authority in Scotland, the Secretary of State; and
“relevant function” means any function exercisable for the purpose of securing any result which may instead be secured by the exercise of any function of the Scottish Ministers.

Plans and projects

Meaning of “European site” in these Regulations24

1

— In these Regulations a “European site” means any of the following located in the United Kingdom—

a

a special area of conservation;

b

a site of Community importance which has been placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive;

c

a site hosting a priority natural habitat type or priority species in respect of which consultation has been initiated under Article 5(1) of the Habitats Directive, during the consultation period mentioned in Article 5(2) or pending a decision of the Council under Article 5(3);

d

a site classified as a special protection area pursuant to Article 4(1) or (2) of the Wild Birds Directive; and

e

a site which has been proposed to the Commission by the Secretary of State or any of the devolved administrations as a site eligible for designation as a special area of conservation for the purposes of meeting the United Kingdom’s obligations under Article 4(1) of the Habitats Directive, until such time as—

i

it is placed on the list of sites of Community importance referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive, or

ii

agreement is reached or a decision is taken pursuant to Article 4(2) of that Directive that the site is not to be placed on that list.

2

For the purposes of paragraph (1), where consultation is initiated by the Commission in accordance with Article 5(1) of the Habitats Directive with respect to a site in the United Kingdom hosting a priority natural habitat type or priority species, and—

a

it is agreed between the Commission and the Secretary of State, within the six-month period mentioned in Article 5(2) of the Habitats Directive, that the site should be selected as a site of Community importance; or

b

the Council, acting on a proposal from the Commission in pursuance of Article 5(2) of the Habitats Directive, decides that the site should be so selected,

the site is to be treated as having been placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive as from the date of the agreement referred to in sub-paragraph (a) or the decision referred to in sub-paragraph (b).

3

In this regulation “the United Kingdom” means the United Kingdom (including its internal waters) and the territorial sea adjacent to the United Kingdom.

Protection of European offshore marine sites and European sites25

1

Before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which—

a

is to be carried out on or in any part of the waters or on or in any part of the seabed or subsoil comprising the offshore marine area, or on or in relation to an offshore marine installation,

b

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

c

is not directly connected with or necessary to the management of the site,

a competent authority must make an appropriate assessment of the implications for the site in view of that site’s conservation objectives.

2

A person applying to a competent authority for any consent, permission or other authorisation for a plan or project in the offshore marine area must provide such information as the competent authority may reasonably require—

a

In this regulation—

F75...
“the relevant administration” means—
1. a
  in relation to a competent authority in Scotland, the Scottish Ministers; and
2. b
  in relation to any other competent authority, the Secretary of State.

Review of existing decisions and consents27

1

Where, before the date on which a site becomes a European offshore marine site, a competent authority has decided to undertake, or has given any consent, permission or other authorisation for, a plan or project to which regulation 25(1) would apply if it were to be considered at that date, the authority must as soon as reasonably practicable after that date review its decision, or as the case may be, consent, permission or other authorisation.

2

Where, before the date on which a site becomes a European site or, if later, the commencement of these Regulations, a competent authority has decided to undertake, or has given any consent, permission or other authorisation for, a plan or project to which regulation 25(1) would apply if it were to be considered at that date, the authority must as soon as reasonably practicable after that date review its decision, or as the case may be, consent, permission or other authorisation.

3

A competent authority must for the purpose of reviewing a decision, consent, permission or other authorisation under paragraph (1) or (2) make an appropriate assessment of the implications for the site in view of that site’s conservation objectives, and the provisions of regulation 25(2), (3) and (7) apply, with the appropriate modifications, in relation to such a review.

4

Where a competent authority reviews a decision, consent, permission or other authorisation under this regulation it must affirm, modify or revoke it.

5

Subject to the following provisions of this Part, any review required by this regulation must be carried out under existing statutory procedures where such procedures exist, and if none exists the competent authority must determine the procedure to be followed, having regard to any guidance issued by the Secretary of State F77or, in relation to the Scottish offshore region, by the Scottish Ministers .

6

Nothing in this regulation—

a

requires a review where a site is a European offshore marine site by reason of regulation 15(c);

b

requires a review where a site is a European site by reason of regulation 24(1)(c);

F135c

requires a review by the Secretary of State of a Petroleum Act approval, Petroleum Act authorisation, Petroleum or Energy Act consent, Petroleum Act licence or Energy Act licence;

d

requires a review of any project or agreement that falls to be similarly reviewed under the Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (England and Northern Ireland) Regulations 2007; ~~F2or~~

e

affects anything done in pursuance of the decision, or the consent, permission or other authorisation, before the date mentioned in paragraph (1) or (2) (as the case may be).F3;

for “86(3), (5) or (6)” substitute “86(3) or (5)”, and

ii

omit “or a direction deeming planning permission to be granted”; and

b

in paragraphs (2) and (3), omit “or direction” (in all places).

Consideration on review28

1

The following provisions apply where a decision, or a consent, permission or other authorisation falls to be reviewed under regulation 27.

2

Subject as follows, the provisions of regulation 25(4) and (5) and regulation 26 apply, with the appropriate modifications, in relation to the decision on the review.

3

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

4

Where the avoidance of an adverse effect on the integrity of a site may be secured in a number of ways, the competent authority or authorities concerned must seek to ensure that the action taken is the least onerous to those affected.

5

The Secretary of State may issue guidance to competent authorities for the purposes of paragraphs (3) and (4) as to the manner of determining which of different ways should be adopted for securing that a plan or project does not adversely effect the integrity of a site, and in particular as to—

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.

F795A

The Scottish Ministers may issue guidance to competent authorities in Scotland for the purposes of paragraphs (3) and (4) as to the manner of determining which of different ways should be adopted for securing that a plan or project does not adversely affect the integrity of a site, and in particular as to—

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.

6

A competent authority must have regard to any guidance issued by the Secretary of State under paragraph (5) in discharging its functions under paragraph (3) or (4).

F806A

A competent authority in Scotland must have regard to any guidance issued by the Scottish Ministers under paragraph (5A) in discharging its functions under paragraph (3) or (4).

7

Any modification or revocation under regulation 27(4) must be carried out under existing statutory procedures where such procedures exist, or if none exists, the competent authority must determine the procedure to be followed, having regard to any guidance given by the Secretary of State F81, or, in relation to a competent authority in Scotland, the Scottish Ministers .

8

The Secretary of State may not issue guidance under paragraph (5) which relates to a function within devolved competence without the consent of the Scottish Ministers.

Co-ordination where more than one competent authority is involved29

Compensatory measures30

1

This regulation applies where, in accordance with regulation 26, notwithstanding a negative assessment of the implications for a European offshore marine site or European site—

a

a plan or project is agreed to; or

b

a decision, or a consent, permission or other authorisation, is affirmed on review.

2

The appropriate authority must secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 is protected.

3

The appropriate authority is—

a

where the plan or project is agreed to in the exercise of a function within devolved competence or by Scottish Ministers, or the decision, consent, permission or other authorisation is affirmed in the exercise of a function within devolved competence or by Scottish Ministers, the Scottish Ministers;

b

where the plan or project is agreed to by a Northern Ireland department, that Northern Ireland department;

c

where the decision, consent, permission or other authorisation is affirmed by a Northern Ireland department, that Northern Ireland department; and

d

in any other case, the Secretary of State.

Notification of compensatory measures31

in the case of a bird, egg or other thing killed, taken or sold in Gibraltar or a member State (other than the United Kingdom), without contravention (as the case may be) of the law of Gibraltar or the law of that State implementing the Wild Birds Directive.

Prohibition of certain methods of capturing or killing wild birds36

1

Subject to regulation 49, a person is guilty of an offence if he uses for the purpose of capturing or killing any wild bird—

a

any of the means listed in paragraph (2) below;

b

any other means of capturing or killing which is indiscriminate or capable of causing the local disappearance of any species of wild bird; or

c

any means of capturing or killing from any mechanically propelled vehicle, including any ship or any aircraft, while in immediate pursuit of a wild bird with a view to capturing or killing that bird.

2

The prohibited means of capturing or killing wild birds are—

a

snares, limes or hooks;

b

using blind or mutilated birds as live decoys;

c

sound recordings;

d

electrical or electronic devices capable of killing or stunning;

e

artificial light sources;

f

mirrors or other dazzling devices;

g

devices for illuminating targets;

h

sighting devices for night shooting comprising an electronic image magnifier or image converter;

i

explosives;

j

nets or traps;

k

poisoned or anaesthetic bait; and

l

automatic or semi-automatic weapons with a magazine capable of holding more than two rounds of ammunition.

Sale etc of live or dead wild birds, eggs etc37

In any proceedings for an offence under this regulation—

a

the bird in question is to be presumed to have been wild unless the contrary is shown; and

b

if the prosecution prove—

i

that the part of a bird in question, or the egg in question, is of a bird which is a member of a species referred to in Article 1 of the Wild Birds Directive, or

ii

that the thing is question is derived from such a bird,

it is to be presumed that the bird was a wild bird unless the contrary is shown.

5

In this regulation—

a

“egg” includes part of an egg; and

b

“sale” includes hire, barter and exchange and cognate expressions shall be construed accordingly.

14

Regulation 32 shall not apply in relation to anything done by any person which is an offence under this regulation.

“the implementation date”—
1. a
  where the relevant State became a member State before 10th June 1994, means 10th June 1994; and
2. b
  in any other case, means the date on which the relevant State became a member State; and
“relevant State” means the State in whose territory the plant, or part of it, was taken in the wild.

PART 4ADDITIONAL PROTECTION OF HABITATS AND WILD ANIMALS AND PLANTS

i

in relation to surveillance under paragraph (1), the Secretary of State;

ii

in relation to surveillance under paragraph (1A), the Scottish Ministers.

Protection of certain animals and plants from exploitation45

F121

The Secretary of State must, as required in the light of information derived from surveillance carried out under regulation 44 or otherwise arranged for the purposes of Article 11 of the Habitats Directive, ensure that measures are taken for the purpose in paragraph (2).

2

The purpose referred to in paragraph (1) is to ensure that—

a

the taking in the wild of specimens of a species listed in Annex V to the Habitats Directive, and

b

the exploitation of any such specimens in the waters comprised in the offshore marine area,

are compatible with that species being maintained at a favourable conservation status.

3

F13Where measures are required under paragraph (1), the Secretary of State must make arrangements for surveillance for the purpose of establishing whether the taking in the wild of specimens of the species concerned, and the exploitation of specimens of that species, are compatible with the maintenance of the species at a favourable conservation status.

4

In so far as the Scottish Ministers have any function which may be exercised for the purpose mentioned in paragraph (2), paragraph (1) applies to the Scottish Ministers as it applies to the Secretary of State.

5

The obligation of the Secretary of State under paragraph (1) shall be treated as satisfied in so far as it has been met by the Scottish Ministers.

6

In so far as any Northern Ireland department has any function which may be exercised for the purpose mentioned in paragraph (2), paragraph (1) applies to that department as it applies to the Secretary of State.

7

The obligation of the Secretary of State under paragraph (1) shall be treated as satisfied in so far as it has been met by any Northern Ireland department.

8

Before the Secretary of State exercises any relevant function for the purpose of complying with paragraph (1), he must first consult—

a

the Scottish Ministers, in the case of a relevant function exercisable for the purpose referred to in paragraph (9)(a); or

b

the Department of the Environment in Northern Ireland, in the case of a relevant function exercisable for the purpose referred to in paragraph (9)(b).

9

In this regulation, “relevant function” means any function of the Secretary of State exercisable for the purpose of—

“the relevant administration” means—

i

in relation to the monitoring of activity taking place in the offshore marine area, the Secretary of State; and

ii

in relation to the monitoring of activity taking place in the Scottish offshore region, the Scottish Ministers;

Protection from incidental capture and killing47

if it is done under and in accordance with the terms of a licence granted by F112the relevant administration under this paragraph.

2

F112The relevant administration must not grant a licence for any purpose mentioned in paragraph (1) unless F106... satisfied that, as regards that purpose, there is no other satisfactory solution.

3

F112The relevant administration may grant a licence to permit the capture, keeping or other judicious use of certain wild birds notwithstanding that the licence is not for a purpose within paragraph (1).

4

F112The relevant administration must not grant a licence under paragraph (3) unlessF107... satisfied that—

a

there is no other satisfactory solution than granting the licence; and

b

the grant of the licence would be consistent with the restrictions in Article 9(1)(c) of the Wild Birds Directive (namely “under strictly supervised conditions and on a selective basis” and in respect of a small number of birds).

5

Regulations 34, 36 and 37 do not apply to anything done under and in accordance with the terms of a licence granted by F112the relevant administration under paragraph (3).

6

Regulations 39, 41 and 43 do not apply to anything done—

a

in the interests of public health or public safety or for other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment,

b

for the purpose of preventing serious damage to fisheries,

c

for the purpose of preventing serious damage to property,

d

in the interest of protecting wild flora or fauna or conserving natural habitats,

e

for the purpose of preventing the spread of disease,

f

for scientific or educational purposes, or

g

for the purposes of the re-population of an area with, or the re-introduction into an area of, wild animals or wild plants (including any breeding or artificial propagation necessary for those purposes),

if it is done under and in accordance with the terms of a licence granted by F112the relevant administration under this paragraph.

7

F112The relevant administration must not grant a licence under paragraph (6) unless F108... satisfied—

a

that there is no satisfactory alternative; and

b

that the action authorised will not be detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range.

8

F112The relevant administration may grant a licence to permit the taking or keeping of certain specimens of any of the species or subspecies listed in Annex II(b) (other than any bryophyte) or Annex IV to the Habitats Directive notwithstanding that the licence is not for a purpose within paragraph (6).

9

F112The relevant administration must not grant a licence under paragraph (8) unless F109... satisfied—

a

that the grant of the licence would be consistent with the restrictions in Article 16(1)(e) of the Habitats Directive (namely “under strictly supervised conditions, on a selective basis and to a limited extent” and “in limited numbers”);

b

that there is no satisfactory alternative; and

c

that the action authorised will not be detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range.

10

Regulations 39, 41 and 43 do not apply to anything done under and in accordance with the terms of a licence granted byF112the relevant administration under paragraph (8).

11

Regulation 48 does not apply to anything done under and in accordance with the terms of a licence granted by F112the relevant administration under this paragraph.

12

F112The relevant administration must not grant a licence under paragraph (11) unless F110... satisfied that the action authorised by the licence will not prejudice natural habitats within their natural range or wild native fauna or flora.

13

F112The relevant administration must not grant a licence for any purpose under this regulation F111unless it has been advised by the Joint Nature Conservation Committee as to the circumstances in which, in the Committee’s opinion , licences should be granted for the purpose in question.

14

F112The relevant administration may charge for a licence under this regulation such reasonable sum as F105it may determine.

F10415

In this regulation—

“the relevant administration” means—
1. a
  in relation to the licensing of anything done—
  1. i
    in any part of the waters comprised in the offshore marine area outside the Scottish offshore region, or
  2. ii
    in the course of carrying on any activity specified in paragraph (16) in any part of the offshore marine area,
the Secretary of State; and
1. a
  in relation to the licensing of anything done in the course of carrying out any activity in the Scottish offshore region, other than one specified in paragraph (16), the Scottish Ministers.

16

The activities referred to in paragraph (15)(a)(ii) are—

a

carrying on any activity for which a licence under section 3 of the Petroleum Act 1998 or section 2 of the Petroleum (Production) Act 1934 (licences to search for and get petroleum) is required;

b

constructing or maintaining a pipeline in respect of any part of which an authorisation (within the meaning of Part 3 of the Petroleum Act 1998) is in force;

c

establishing or maintaining an offshore installation (within the meaning of Part 4 of the Petroleum Act 1998);

d

taking any installation abandonment measures;

e

carrying on any activity for which a licence under section 4 or 18 of the Energy Act 2008 is required (gas unloading, storage and recovery, and carbon dioxide storage);

f

any activity other than those specified in paragraphs (a) to (e), relating to a matter which is a reserved matter by virtue of section D2 (oil and gas) in Part 2 of Schedule 5 to the Scotland Act 1998;

g

any activity relating to a matter which is a reserved matter by virtue of paragraph 9 of Part 1 of that Schedule (defence); and

h

any activity relating to a matter which is a reserved matter by virtue of section E3 (marine transport) in Part 2 of that Schedule.

17

For the purposes of paragraph (15)(a)(i), a thing is to be treated as done in a part of the waters referred to in paragraph (i) if it is done on any ship in any such part, any British aircraft over any such part, or any aircraft over an offshore marine installation in any such part, or on or under any such offshore marine installation.

A licence under regulation 49 may be modified or revoked at any time by F114the relevant administration , but otherwise it is valid for the period stated in the licence.

F1138

In paragraph (7), “the relevant administration” is to be construed in accordance with regulation 49(15) and (16).

False statements made for obtaining licence51

1

A person is guilty of an offence if, for the purposes of obtaining (whether for himself or another) the grant of a licence under regulation 49—

a

he makes a statement or representation, or furnishes a document or information, which he knows to be false in a material particular; or

b

he recklessly makes a statement or representation, or furnishes a document or information, which is false in a material particular.

2

A person guilty of an offence under this regulation is liable—

a

on summary conviction, to a fine not exceeding the statutory maximum; or

b

on conviction on indictment, to a fine.

PART 6ENFORCEMENT AND SUPPLEMENTARY PROVISION RELATING TO CRIMINAL OFFENCES

Enforcement

Wildlife officers52

1

The Secretary of State F117or the Scottish Ministers may authorise any person to be a wildlife officer.

2

A competent authority F118other than a competent authority in Scotland may authorise any person to be a wildlife officer, subject to and in accordance with the agreement of the Secretary of State.

F1152A

A competent authority in Scotland may authorise any person to be a wildlife officer, subject to and in accordance with the agreement of the Scottish Ministers.

3

An authorisation under F119paragraph (1), (2) or (2A) must be in writing and may be subject to any conditions or limitations specified in it.

4

Payments may be made by way of remuneration, allowances, expenses or otherwise—

a

by the Secretary of State to any person authorised under paragraph (1);

F120aa

by the Scottish Ministers to any person authorised by them under paragraph (1);

b

by a competent authority to any person authorised by it under paragraph (2) F122; and

F121c

by a competent authority in Scotland to any person authorised by it under paragraph (2A).

5

An agreement under paragraph (2)F123or paragraph (2A) may be subject to conditions or limitations and may make provision for payment by F124the relevant administration to reimburse the competent authority for the expenses it incurs in connection with and for the purposes of the agreement.

F1166

In this regulation, “the relevant administration” means—

a

in relation to an agreement under paragraph (2), the Secretary of State; and

b

in relation to an agreement under paragraph (2A), the Scottish Ministers.

F19Enforcement functions of wildlife officers appointed by the Scottish Ministers and competent authorities in Scotland52A

1

A wildlife officer appointed by the Scottish Ministers under regulation 52(1) or by a competent authority in Scotland under regulation 52(2A)—

a

may only exercise any function under regulations 53 to 60 for the purposes of ascertaining whether an offence under these Regulations is being or has been committed in the Scottish offshore region; and

b

in relation to anything done in the course of carrying on an activity falling within paragraph (2), may only exercise any such function subject to and in accordance with the agreement of the Secretary of State.

2

The activities referred to in paragraph (1) are—

a

carrying on any activity for which a licence under section 3 of the Petroleum Act 1998 or section 2 of the Petroleum (Production) Act 1934 (licences to search for and get petroleum) is required;

b

constructing or maintaining a pipeline in respect of any part of which an authorisation (within the meaning of Part 3 of the Petroleum Act 1998) is in force;

c

establishing or maintaining an offshore installation (within the meaning of Part 4 of the Petroleum Act 1998);

d

taking any installation abandonment measures;

e

carrying on any activity for which a licence under section 4 or 18 of the Energy Act 2008 is required (gas unloading, storage and recovery, and carbon dioxide storage);

f

g

any activity relating to a matter which is a reserved matter by virtue of paragraph 9 of Part 1 of that Schedule (defence); and

h

any activity relating to a matter which is a reserved matter by virtue of section E3 (marine transport) in Part 2 of that Schedule.

in relation to Scotland, a sheriff, stipendiary magistrate or justice of the peace.

8

In this regulation “the United Kingdom” means the United Kingdom (including its internal waters) and the territorial sea adjacent to the United Kingdom.

Additional powers54

Regulations 55 to 57 apply where a wildlife officer has boarded any ship or offshore marine installation or entered any premises by virtue of regulation 53.

Powers to make inquiries and examine things55

1

A wildlife officer may, for the purposes of ascertaining whether an offence has been or is being committed under these Regulations—

a

make any inquiry of any person on board the ship or offshore marine installation or at the premises; or

b

examine anything there.

2

A wildlife officer may require any person on board the ship or offshore marine installation, or an occupier of the premises, to do anything which appears to him to be necessary for facilitating his examination of anything.

Powers relating to specimens56

1

A wildlife officer may, for the purpose of ascertaining whether an offence has been or is being committed under these Regulations, require any person on board the ship or offshore marine installation, or at the premises, who has a specimen in his possession or control to make it available for inspection by him.

2

A wildlife officer may, subject to paragraph (3), take a sample from any specimen he finds on the ship or offshore marine installation or at the premises or which is made available to him under paragraph (1).

3

No sample may be taken under paragraph (2) from a live bird, other animal or plant except for the purpose of establishing its identity or ancestry.

4

A wildlife officer may take and remove from the ship, offshore marine installation or premises any specimen which is not a live bird, other animal or plant, if there are reasonable grounds for believing it is evidence of an offence under these Regulations.

5

In this regulation—

“sample” means a sample of blood, tissue or other biological material; and
“specimen” means—
1. a
  any bird, other animal or plant; or
2. b
  any part of, or anything derived from, a bird, other animal or plant.

Powers relating to documents and recording evidence of offences57

1

A wildlife officer may, for the purposes of ascertaining whether an offence has been or is being committed under these Regulations, require any person on board the ship or offshore marine installation, or at the premises, to produce any document which is in his possession or control, and may take copies of any such document.

2

A wildlife officer may take and remove any document from the ship, offshore marine installation or premises, if there are reasonable grounds for believing it is evidence of an offence under these Regulations.

3

Nothing in paragraph (2) permits any document to be taken or removed from a ship, offshore marine installation or premises which is required by law to be carried on the ship or offshore marine installation or to be kept at the premises.

4

A wildlife officer may use any device for the purpose of taking visual images or sound recordings of anything which he believes is evidence of an offence under these Regulations.

Further powers in relation to ships58

1

In order to ascertain whether an offence is being or has been committed under these Regulations by a person on board a ship, a wildlife officer may require the ship to stop and do anything which will facilitate the boarding of the ship.

2

Where a wildlife officer has reasonable grounds for believing that an offence is being or has been committed under these Regulations by a person on board a ship, he may—

a

require the master, or other person for the time being in charge of the ship, to take it and its crew to the port which appears to the officer to be the nearest convenient port; and

b

detain the ship in port, or require the master, or other person for the time being in charge of the ship, to do so.

3

If a wildlife officer detains any ship, he must serve on the person in charge notice in writing stating that it is to be detained until the notice is withdrawn by service of a further notice in writing signed by a wildlife officer.

Assistance for wildlife officers59

1

A wildlife officer may take with him, to assist him in performing his functions—

a

any other person; and

b

any equipment or materials.

2

A person assisting a wildlife officer may perform any of that officer’s functions but only under his supervision.

Power to use reasonable force60

A wildlife officer, or a person assisting him by virtue of regulation 59, may use reasonable force, if necessary, in the performance of his functions.

Liability of wildlife officers61

A wildlife officer, or a person assisting him by virtue of regulation 59, is not to be personally liable in any civil or criminal proceedings for anything done in the purported exercise of his functions under these Regulations if the court is satisfied that the act was done in good faith and there were reasonable grounds for doing it.

Offences in relation to wildlife officers62

1

A person is guilty of an offence if he—

a

intentionally obstructs a wildlife officer, or a person assisting him by virtue of regulation 59, in the exercise of his functions conferred under these Regulations;

b

assaults a wildlife officer, or a person assisting him by virtue of regulation 59, in the exercise of his functions conferred under these Regulations;

c

fails without reasonable excuse to comply with a requirement under regulation 55(2), 56(1), 57(1) or 58 reasonably made by a wildlife officer or by a person assisting him by virtue of regulation 59;

d

prevents any other person from complying with any such requirement; or

e

in purporting to give information requested by a wildlife officer, or by a person assisting him by virtue of regulation 59, makes a statement which he knows to be false in a material particular.

2

A person guilty of an offence under this regulation is liable—

a

on summary conviction, to a fine not exceeding the statutory maximum; or

b

on conviction on indictment, to a fine.

Supplementary provision relating to criminal offences

Jurisdiction of courts63

Proceedings for prosecuting an offence under these Regulations may be taken, and the offence may for all incidental purposes be treated as having been committed, in any part of the United Kingdom.

Possession of means of committing offence64

1

Subject to paragraph (2), a person who, for the purpose of committing an offence under Part 3, has in his possession anything capable of being used for committing the offence is guilty of an offence and punishable in like manner as for that offence.

2

b

to be attributable to any neglect of his part,

the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

4

In this regulation—

a

“officer”, in relation to a body corporate, means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity; and

b

“partner” includes a person purporting to act as a partner.

Territorial Waters Jurisdiction Act 187866

Section 3 of the Territorial Waters Jurisdiction Act 187848 (consents to prosecutions of offences committed on the open sea by persons who are not British citizens) does not apply to any proceedings for an offence under these Regulations.

PART 7MISCELLANEOUS

Research67

1

The Secretary of State must take such steps to encourage research and scientific work relating to the offshore marine area as he considers necessary, having regard to the objectives in Article 2, and the obligation in Article 11, of the Habitats Directive.

2

The Secretary of State must supply such information relating to the offshore marine area as he considers appropriate to member States and to the Commission to further the proper co-ordination of research carried out by member States or by any Community institution for the purposes of the Habitats Directive.

3

In deciding what steps to take under paragraph (1), the Secretary of State must have particular regard to the need for research and other scientific work in order to implement Article 4 of the Habitats Directive.

F1254

This regulation applies to the Scottish Ministers as it applies to the Secretary of State, but as if, in paragraphs (1) and (2), the reference to the offshore marine area were to the Scottish offshore region.

5

Before the Secretary of State takes any steps in relation to the Scottish offshore region under this regulation, the Secretary of State must consult the Scottish Ministers.

Nature conservation education68

The Joint Nature Conservation Committee must such take steps as it considers appropriate to promote public awareness of, and to disseminate information on—

a

the need to protect species of wild flora and fauna found in the offshore marine area; and

b

the need to conserve the habitats of such flora and fauna and natural habitats found in the offshore marine area.

in relation to the re-introduction of species in any part of the waters comprised in the Scottish offshore region, the Scottish Ministers.

Advisory role of the JNCC70

1

The Joint Nature Conservation Committee may—

a

provide advice and assistance, or make representations, to any competent authority on any nature conservation matter which is connected with the discharge of the competent authority’s functions under these Regulations; and

b

undertake, commission or support (whether by financial means or otherwise) such research and scientific work as the Committee considers is required for the purposes of providing advice or assistance or making representations under sub-paragraph (a).

2

In this regulation and regulation 71 “research” includes inquiries and investigations.

any appropriate assessment upon which that authority must consult Scottish Natural Heritage under these Regulations.

4

Natural England, the Countryside Council for Wales and Scottish Natural Heritage may each undertake, commission or support (whether by financial means or otherwise) such research and scientific work as they think is required for the purposes of providing advice or making representations under this regulation.

Reports to the Commission72

1

In relation to the offshore marine area, the functions of sending to the Commission—

a

a report pursuant to Article 16(2) of the Habitats Directive (reports on derogations applied under Article 16(1) of the Habitats Directive), and

b

a report pursuant to Article 17(1) of the Habitats Directive (reports on the implementation of measures taken under the Habitats Directive),

are functions of the Secretary of State.

2

A report of the kind mentioned in paragraph (1)(a) must be prepared—

a

for the period beginning with the date of the commencement of these Regulations and ending on 31st December 2008; and

b

for every two-year period thereafter.

3

A report of the kind mentioned in paragraph (1)(b) must be prepared—

a

for the period beginning with the date of the commencement of these Regulations and ending on 31^st December 2012; and

b

for every six-year period thereafter.

4

The Secretary of State must make such arrangements as he considers appropriate for a copy of any report provided to the Commission under paragraph (1)(b) to be made available for inspection by members of the public.

Form of communications73

1

Subject to paragraph (2), where—

a

a person is required to give notice to any person of any matter,

b

a person may make representations on a matter to the Secretary of State, or

c

a request must be submitted to the Secretary of State,

the notice, representations or request (together with any accompanying information or documents) must be in writing.

2

A notice, representations or a request (and any accompanying information or documents) may be given or sent by means of an electronic communication if the intended recipient consents.

3

In this regulation and in regulation 74, “electronic communication” has the meaning given in section 15(1) of the Electronic Communications Act 200049.

in regulation 6(1), for “regulation 5” substitute “regulation 5(3)”;

d

omit regulations 10 to 18; and

e

in regulation 19 (offences)—

i

for paragraph (1) substitute the following paragraph—

1
A person is guilty of an offence if, without reasonable excuse, he fails to comply with a direction given in accordance with regulation 7 above.

ii

in paragraph (2) for “paragraph (1)(a)” substitute “paragraph (1)”; and

iii

omit paragraph (3).

Ben BradshawMinister of StateDepartment for Environment, Food and Rural Affairs

SCHEDULE 1EUROPEAN PROTECTED SPECIES

Regulation 2(1)

Common name	Scientific Name
Dolphins, porpoises and whales (all species)	Cetacea
Sturgeon, Common	Acipenser sturio
Turtles, Marine	Caretta caretta Chelonia mydas Dermochelys coriacea Eretmochelys imbricata Lepidochelys kempii



NOTE. Common names are given in the first column of this Schedule by way of guidance only; in the event of any dispute or proceedings, the common name shall not be taken into account.

SCHEDULE 2EXCLUDED POPULATIONS OF CERTAIN SPECIES

Regulation 40(5)(a)

Common Name	Scientific Name	Excluded countries and areas
Beaver, Eurasian	Castor fiber	Estonia, Finland, Latvia, Lithuania, Poland, and Sweden
Hamster, European (or Black bellied)	Cricetus cricetus	Hungary
Wolf, Grey	Canis lupus	Bulgaria, Estonia, Greece north of the 39th parallel, Latvia, Lithuania, Poland, Slovakia, Spain north of the River Duero, and the reindeer management area in Finland as defined in paragraph 2 of Finnish Act No. 848/90 of 14th September 1990 on reindeer management53
Lynx, Eurasian	Lynx lynx	Estonia
Viper, Seoane’s	Vipera seoanni	Spain


NOTE. Common names are given in the first column of this Schedule by way of guidance only; in the event of any dispute or proceedings, the common name shall not be taken into account.

SCHEDULE 3ANIMALS WHICH MAY NOT BE TAKEN OR KILLED IN CERTAIN WAYS

Regulation 41(1)

Common name	Scientific name
Seals (all species)	Phocidae
Shad, Alis Shad, Twaite	Alosa alosa Alosa fallax
Sturgeon (all species except the common sturgeon)	Acipenseridae (except Acipenser sturio)
NOTE. Common names are given in the first column of this Schedule by way of guidance only; in the event of any dispute or proceedings, the common name shall not be taken into account.

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision for implementing Council Directive 79/409/EEC on the conservation of wild birds (O.J. No. L103, 25.4.79, p.1.) and Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (O.J. No. L206, 22.7.92, p.7) in relation to marine areas where the United Kingdom has jurisdiction beyond its territorial sea. That is to say, the Regulations make provision in relation to the offshore marine area, offshore marine installations and certain ships and aircraft. The “offshore marine area” is defined in regulation 2(1).

Part 1 contains introductory provisions. Regulation 6 imposes a duty on competent authorities exercising functions relevant to marine conservation to do so in such a way as to secure compliance with the requirements of the Directives.

Part 2 makes provision for the conservation of natural habitats and habitats of species. Regulation 5 identifies the competent authorities for the purposes of these Regulations. Regulations 7-17 make provision for the selection, registration and notification of sites in the offshore marine area to be protected under the Habitats and Wild Birds Directives (“European offshore marine sites”, which term is defined in regulation 15). Regulations 18-21 make provision about the management of European offshore marine sites, including provision enabling management schemes to be made for these sites. Regulation 22 makes provision requiring competent authorities to establish conservation measures in respect of special areas of conservation in the offshore marine area that have been designated under regulation 11. Regulation 23 makes provision requiring competent authorities to exercise their functions to secure that steps are taken to avoid the disturbance of species and deterioration of habitat in respect of the offshore marine sites specified in regulation 23(3) and (4). Regulations 25-30 require (amongst other things) the effect of plans and projects in the offshore marine area (or on offshore marine installations) that are likely to have a significant effect on a European offshore marine site or a European site (as defined in regulation 24) to be considered before the plan or project is authorised. Subject to certain exceptions, the authorisation of such plans and projects is prevented where the integrity of the site would be adversely affected. Regulations 27 and 28 also require certain authorisations granted before a site became a European offshore marine site or European site to be reviewed and in certain circumstances revoked where the integrity of the site would be adversely affected. Regulation 32 creates new offences in relation to offshore marine sites, as regards the intentional disturbance of animals for the protection of which the site has been designated or listed; the intentional disturbance of wild birds in a classified site; and the intentional or reckless damage or destruction of habitats.

Part 3 creates offences for the protection of wild birds, animals and plants, which in some instances are subject to defences. In particular, regulations 34 and 39 make it an offence deliberately to kill or take, respectively, wild birds or their eggs, and animals belonging to the species listed in Schedule 1. Protection is also afforded to birds’ nests, and to the breeding sites and resting places of the species of animals specified in Schedule 1. Regulations 36 and 41 create offences prohibiting the use of certain methods of killing and taking wild birds and animals (respectively). Regulations 37, 39(2) and 43 make it an offence, subject to certain exceptions, to trade in or keep wild birds and certain species of wild animals and plants.

Part 4 requires the Secretary of State to make arrangements for surveillance and monitoring of species and habitats in the offshore marine area and to take further action for the protection of species, in the light of that surveillance or monitoring. In certain cases Scottish Ministers and Northern Ireland departments must also take measures to protect species under this Part. Regulation 48 makes it an offence deliberately to introduce a non-native animal or plant.

Part 5 makes provision for the licensing of activities which would otherwise be offences under Part 3 and regulation 48 (in Part 4).

Part 6 gives to the Secretary of State and competent authorities power to appoint or make arrangements for the appointment of persons (“wildlife officers”) to investigate offences under the Regulations. Powers to search and enter and gather evidence are provided to wildlife officers. Part 6 also makes supplementary provision relating to offences under the Regulations.

Part 7 deals with a number of miscellaneous matters including education, research and reporting to the European Commission on the implementation of the Habitats Directive. Under Articles 16 and 17 of the Habitats Directive respectively, member States must provide reports to the Commission on derogations granted under the Directive and on its implementation. Regulation 72 of these Regulations ensures that there is an authority responsible for sending those reports, namely the Secretary of State. Regulation 75 makes amendments to the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001.

A transposition note setting out how the Regulations transpose the two Directives mentioned above has been prepared. A full regulatory impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector has also been prepared. Both of these documents are available from the Wildlife Habitats and Biodiversity Division, Defra, Temple Quay, Bristol, BS1 6EB. In addition, copies of both of these documents have been placed in the libraries of both Houses of Parliament.