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

PART 1 U.K. INTRODUCTORY PROVISIONS

Citation and commencement U.K.

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

Interpretation U.K.

2.—(1) —In these Regulations—

(a) subject to sub-paragraph (b)—

(i) “the Habitats Directive” means Council Directive 92/43/EEC(1) on the conservation of natural habitats and of wild fauna and flora(2); and

[F1 (ii) “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 1994(3);

[F2 “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 1976(4);

“competent authority” is to be construed in accordance with regulation 5;

[F3 “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 Community(5);

[F4 “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;

[F5 “installation abandonment measures” means any measures taken in connection with the abandonment of—

(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

(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—

(a)

an abandonment programme under Part 4 of the Petroleum Act 1998;

(b)

an abandonment programme under that Part, as it applies by virtue of section 30 of the Energy Act 2008;]

“management scheme” means—

(a)

for the purposes of regulation 19(3)(c), a scheme established under regulation 34 of the 1994 Regulations [F6 , regulation 29 of the Conservation (Natural Habitats, &c) Regulations (Northern Ireland) 1995 or regulation 36 of the 2010 Regulations] ;

(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 1998(6);

“the offshore marine area” means—

(a)

any part of the seabed and subsoil situated in any area designated under section 1(7) of the Continental Shelf Act 1964(7); and

(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—

(a)

in any part of the waters in any area designated under section 1(7) of the Continental Shelf Act 1964; or

(b)

in any part of the waters in any area designated under section 84(4) of the Energy Act 2004(8);

“Petroleum Act approval” means an approval of an abandonment programme under section 32 of the Petroleum Act 1998(9);

“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;

[F7 “Petroleum or Energy Act consent” means—

(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

(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 1998(10);

[F8 “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—

(a)

areas of sea which lie within the Scottish zone,

(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

(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;

[F9 “territorial sea” means the territorial sea of the United Kingdom;]

“third country ship” means a ship which—

(a)

is flying the flag of, or is registered in, any State or territory (other than Gibraltar) which is not a member State; and

(b)

is not registered in a member State;

“wild bird” means a bird which—

(a)

is a member of a species referred to in Article 1 of the Wild Birds Directive; and

(b)

is wild;

[F10 “wildlife officer” means a person authorised by—

(a)

the Secretary of State or the Scottish Ministers under regulation 52(1);

(b)

a competent authority under regulation 52(2); or

(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.

Textual Amendments

F1 Reg. 2(1)(a)(ii) substituted (1.4.2010) by The Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2010 (S.I. 2010/491), regs. 1, 3(a)

F2 Words in reg. 2(2) inserted (1.4.2010) by The Conservation of Habitats and Species Regulations 2010 (S.I. 2010/490), reg. 1(2), Sch. 6 para. 7(2)(a) (with reg. 125)

F3 Words in reg. 2(2) inserted (1.4.2010) by The Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2010 (S.I. 2010/491), regs. 1, 3(b)(i)

F4 Words in reg. 2(2) inserted (1.7.2010) by The Energy Act 2008 (Consequential Modifications) (Offshore Environmental Protection) Order 2010 (S.I. 2010/1513), arts. 1(1), 4(1)(a)

F5 Words in reg. 2(2) inserted (1.4.2010) by The Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2010 (S.I. 2010/491), regs. 1, 3(b)(ii)

F6 Words in reg. 2(2) substituted (1.4.2010) by The Conservation of Habitats and Species Regulations 2010 (S.I. 2010/490), reg. 1(2), Sch. 6 para. 7(2)(b) (with reg. 125)

F7 Words in reg. 2(2) substituted (1.7.2010) by The Energy Act 2008 (Consequential Modifications) (Offshore Environmental Protection) Order 2010 (S.I. 2010/1513), arts. 1(1), 4(1)(b)

F8 Words in reg. 2(2) inserted (1.4.2010) by The Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2010 (S.I. 2010/491), regs. 1, 3(b)(iii)

F9 Words in reg. 2(2) inserted (1.4.2010) by The Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2010 (S.I. 2010/491), regs. 1, 3(b)(iv)

F10 Words in reg. 2(2) substituted (1.4.2010) by The Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2010 (S.I. 2010/491), regs. 1, 3(b)(v)

Application to the Crown U.K.

3.—(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 law U.K.

4.—(1) This regulation applies in relation to—

(a) a third country ship;

(b) a warship which is being used by the government of a State other than the United Kingdom (whether or not it is a third country ship); and

(c) any other ship which is being used by the government of a State other than the United Kingdom for any non-commercial purpose.

(2) Nothing in these Regulations shall be taken to interfere or require interference with the right of freedom of navigation or other rights under rules of international law.

(3) A wildlife officer must not exercise any of the powers set out in regulations 53 and 58 in relation to a ship to which this regulation applies unless—

(a) in the case of a third country ship (other than a ship which is being used as mentioned in paragraph (1)(b) or (c)), the United Kingdom is entitled under international law to exercise those powers without the consent of the flag state; or

(b) the Commissioners have given authority to exercise the powers.

(4) The Commissioners must not give their authority under paragraph (3)(b) unless the flag state has consented to the United Kingdom exercising those powers (whether generally or in relation to the ship in question).

(5) In giving their authority under paragraph (3)(b), the Commissioners must impose such conditions or limitations on the exercise of the powers as are necessary to give effect to any conditions or limitations imposed by the flag state.

(6) In this regulation—

“the Commissioners” means the Commissioners for Her Majesty’s Revenue and Customs;

“flag state”, in relation to a ship, means the State whose flag that ship is flying or entitled to fly.

Meaning of “competent authority” U.K.

5.—(1) For the purposes of these Regulations the expression “competent authority” means—

(a) any Minister of the Crown, government department, public or statutory undertaker, or public body of any description or person holding a public office;

(b) the Scottish Ministers;

(c) the Welsh Ministers;

(d) any Northern Ireland department; and

(e) any person exercising any function of a person or body referred to in sub-paragraphs (a) to (d).

(2) In paragraph (1) “public office” means—

(a) an office under Her Majesty;

(b) an office created or continued in existence by a public general Act of Parliament; or

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

Duty of competent authorities U.K.

6.—(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 1934(11);

(b) section 34 of the Coast Protection Act 1949(12) (restriction of works detrimental to navigation);

(c) the Sea Fish (Conservation) Act 1967(13);

(d) the Prevention of Oil Pollution Act 1971(14);

(e) the Fishery Limits Act 1976(15);

(f) the Fisheries Act 1981(16);

(g) Part 2 of the Food and Environment Protection Act 1985(17) (deposits in the sea);

(h) [F11 the Radioactive Substances Act 1993(18);]

(i) sections 128 and 129 of the Merchant Shipping Act 1995(19) (prevention of pollution from ships and further provision for prevention of pollution from ships);

(j) the Pollution Prevention and Control Act 1999(20);

(k) the Merchant Shipping (Prevention of Oil Pollution) Regulations 1996(21);

(l) the Merchant Shipping (Oil Pollution Preparedness, Response and Co-operation Convention) Regulations 1998(22);

[F12 (m) the Offshore Installations (Emergency Pollution Control) Regulations 2002;

(n) the Planning Act 2008;

(o) [F13 the Marine Act, in particular any functions under Parts 3, 4, 5 and 6 of that Act (marine planning, marine licensing, nature conservation and management of inshore fisheries, respectively); and]

(p) these Regulations.]

[F14 (3) Without prejudice to the generality of paragraph (1), in relation to the offshore marine area a competent authority must take such steps in the exercise of its functions as it considers appropriate to secure the objective in paragraph (4), so far as lies within its powers.

(4) The objective is the preservation, maintenance and re-establishment of a sufficient diversity and area of habitat for wild birds in the United Kingdom, including by means of the upkeep, management and creation of such habitat, as appropriate, having regard to the requirements of Article 2 of the Wild Birds Directive.

(5) In paragraph (4), “the United Kingdom” includes the offshore marine area.

(6) In subsection (3)(a) of section 123 of the Marine Act (creation of network of conservation sites), as it applies in relation to the offshore marine area, the reference to “the conservation or improvement of the marine environment” includes the objective in paragraph (4), and accordingly the duty in section 124 of the Marine Act (report) applies in relation to that objective.

(7) In considering which measures may be appropriate for the purpose of securing or contributing to the objective in paragraph (4), appropriate account must be taken of economic and recreational requirements.

(8) In this regulation “the Marine Act” means the Marine and Coastal Access Act 2009.]

Textual Amendments

F11 Reg. 6(2)(h) omitted (E.W.) (1.10.2011) by virtue of The Environmental Permitting (England and Wales) (Amendment) Regulations 2011 (S.I. 2011/2043), reg. 1(b), Sch. 2 para. 5

F12 Reg. 6(2)(m)(n)(o)(p) substituted for reg. 6(2)(m)(n) (1.4.2010) by The Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2010 (S.I. 2010/491), regs. 1, 4

F13 Reg. 6(2)(o) substituted (16.8.2012) by The Offshore Marine Conservation (Natural Habitats, c.) (Amendment) Regulations 2012 (S.I. 2012/1928), regs. 1, 3(a)

F14 Reg. 6(3)-(8) inserted (16.8.2012) by The Offshore Marine Conservation (Natural Habitats, c.) (Amendment) Regulations 2012 (S.I. 2012/1928), regs. 1, 3(b)

(1)

O.J. No. L206, 22.7.92, p 7.

(2)

The Habitats Directive was last amended by Council Directive 2006/105/EC of 20 November 2006 adapting Directives 79/409/EEC, 92/43/EEC, 97/68/EC, 2001/80/EC and 2001/81/EC in the field of environment, by reason of the accession of Bulgaria and Romania (O.J. No. L363, 20.12.2006, p. 368; and see O.J. L80, 21.3.2007, p. 15, for the Corrigendum amending the original title).

(3)

S.I. 1994/2716, to which relevant amendments have been made by the Environment Act 1995 (c.25), the Countryside and Rights of Way Act 2000 (c.37), the Land Reform (Scotland) Act 2003 (asp 2), S.I. 1996/525, 1996/973, 1997/3055, 1999/1820, 2000/192, 2000/1973 and 2007/1843 and S.S.I. 2000/323, and 2004/475.

(4)

1976 c.86.

(5)

A consolidated version can be found at O.J. No. C321E, 29.12.06.

(6)

1998 c.47.

(7)

1964 c.29. Section 1(7) was amended by the Oil and Gas (Enterprise) Act 1982 (c.23) section 37 and Schedule 3, paragraph 1. Areas have been designated under section 1(7) by S.I. 1987/1265, 2000/3062 and 2001/3670.

(8)

2004 c.20. An area has been designated under section 84(4) by S.I. 2004/2668.

(9)

1998 c.17.

(10)

1998 c.46.

(11)

1934 c.49.

(12)

1949 c.74. Section 34 was amended by section 36(1) and (2) of the Merchant Shipping Act 1998 (c.12).

(13)

1967 c.84.

(14)

1971 c.60.

(15)

1976 c.86.

(16)

1981 c.29.

(17)

1985 c.48.

(18)

1993 c.12. An Order in Council under section 11 of the Petroleum Act 1998 (c.17) may make provision for applying the 1993 Act to offshore installations in areas designated under section 1(7) of the Continental Shelf Act 1964 (c.29).

(19)

1995 c.21. Section 128 was amended by sections 12 and 29 of, and paragraph 3(2) of Schedule 6 and paragraph 3(3) of Schedule 7 to, the Merchant Shipping and Maritime Security Act 1997 (c.28), and by section 2 of the Merchant Shipping (Pollution) Act 2006 (c.8).

(20)

1999 c.24.

(21)

S.I. 1996/2154, amended by S.I. 1997/1910, 1999/1957, 2000/483, 2004/303 and 2005/1916.

(22)

S.I. 1998/1056.