The Conservation (Natural Habitats, &c.) (Amendment) (No. 2) Regulations 2009

Amendments to Part 2 of the 1994 Regulations E+W

10.—(1) In regulation 22 (power to make special nature conservation order)—

(a) for paragraph (1) substitute—

“(1) The Secretary of State may, after consultation with the appropriate nature conservation body, make in respect of any land within a European site an order (a “special nature conservation order”) specifying operations (whether on land specified in that order or elsewhere and whether or not within the European site) which appear to the Secretary of State to be of a kind which, if carried out in certain circumstances or in a particular manner, would be likely to destroy or damage the flora, fauna, or geological or physiographical features by reason of which the land is a European site.”;

(b) in paragraph (4), for “in relation to land” substitute “ specifying operations on land ”; and

(c) after paragraph (6), insert—

“(7) If an order under paragraph (1) specifies any operation of a kind not carried out, or proposed to be carried out, on land within a European site, the order shall specify the operation by reference to the place where it is being, or is proposed to be, carried out.”.

(2) In regulation 23 (restriction on carrying out operations specified in order)—

(a) for paragraph (1) substitute—

“(1) No person to whom notice is given in accordance with this regulation shall carry out on any land within a European site in respect of which a special nature conservation order is in force, or in the place by reference to which the operation is specified, any operation specified in the order, unless the notice condition specified in paragraph (1A) and the consent condition specified in paragraph (2) are fulfilled.

(1A) The notice condition is—

(a) where the operation is carried out on land, that—

(i) the operation is carried out, or caused or permitted to be carried out, by the owner or occupier of the land; and

(ii) after notice is given, one of them has given the appropriate nature conservation body written notice of a proposal to carry out the operation, specifying its nature and where it is proposed to carry it out; and

(b) in any other case, that, after notice is given, the person proposing to carry out the operation has given the appropriate nature conservation body written notice of a proposal to carry out the operation, specifying its nature and where it is proposed to carry it out.”.

(b) in paragraph (2)—

(i) for “Those conditions are” substitute “ The consent condition is ”; and

(ii) after “body;” insert “ or ”; and

(c) after paragraph (2), insert—

“(2A) A consent under paragraph (2)(a) may be given—

(a) subject to conditions, and

(b) for a limited period,

specified in the consent.

(2B) In respect of any land within a European site in respect of which a special nature conservation order is made, the Secretary of State may serve a notice on any person carrying out, or proposing to carry out, any operation of a kind specified in that order which appears to the Secretary of State to be likely to destroy or damage the flora, fauna, or geological or physiographical features by reason of which the land is a European site.

(2C) The notice served under paragraph (2B) shall specify—

(a) details of the operation;

(b) details of the European site to which the notice relates; and

(c) the date on which the notice takes effect.

(2D) Where the identity of a person carrying out, or proposing to carry out, the operation is not reasonably ascertainable, the Secretary of State may, instead of serving a notice under paragraph (2B), publish a notice in one local newspaper circulating in the area in which the land to which the notice relates is situated, and affix a copy or copies of the notice to some conspicuous object or objects on the land to which the notice relates.”.

(3) In regulation 24(4) (supplementary provisions as to consents), for “The owner or occupier of the land in question” substitute “ A person to whom notice is given ”.

(4) For regulation 25 (compensation for effect of order) substitute—

“Compensation for effect of notice

25.— (1)  Where the Secretary of State has given notice to any person under regulation 23, the appropriate nature conservation body shall pay compensation to any person having at the time at which notice is given an interest in land comprised in an agricultural unit comprising land to which the notice relates who, on a claim made to the appropriate nature conservation body within the time and in the manner required prescribed by regulations M1 , shows that the value of that person's interest is less than it would have been if notice had not been given.

(2) For this purpose an “agricultural unit” means land which is occupied as a unit for agricultural purposes, including any dwelling-house or other building occupied by the same person for the purpose of farming the land.

(3) No claim for compensation shall be made under this regulation in respect of an order unless the Secretary of State has given notice under paragraph 6(1) or (2) of Schedule 1 of the giving of notice under regulation 23.”.

(5) After regulation 27 (continuation in force of existing orders, &c) insert—

“Interpretation

27A.— (1)  In regulations 23 to 25 and 91, references to the giving of notice by the Secretary of State to a person under regulation 23 are to the service of a notice on a person under regulation 23(2B) or the publication and affixing of a notice under regulation 23(2D), and where a notice is published and affixed under regulation 23(2D) any person carrying out an operation specified in the notice shall be taken to be a person to whom notice is given under regulation 23(1).

(2) In regulations 22 to 25, 89 and Schedule 1, references to the Secretary of State shall be taken to be, in relation to Wales, references to the Welsh Ministers.”.

Marginal Citations

M1 Regulation 93(2) provides that the reference to matters being “prescribed by regulations” is to their being prescribed in exercise of the power to make regulations under section 30 of the Wildlife and Countryside Act 1981 (c.69) (“the 1981 Act”). That section is applied by regulation 93(1) so as to enable provision to be made for the purposes of these Regulations corresponding to those for which provision may be made under section 30. Section 30 of the 1981 Act was repealed in England and Wales by paragraph 2 of Schedule 9 to the Countryside and Rights of Way Act 2000 (c.37) (“the 2000 Act”), but by virtue of paragraph 19(1) of Schedule 11 to the 2000 Act continues to apply in connection with an order made under section 29 of the 1981 Act before the coming into force of paragraph 2 of Schedule 9 to the 2000 Act. As a consequence the operation of regulation 93(2) is not affected by the repeal in England and Wales of section 30 of the 1981 Act.