The Conservation of Offshore Marine Habitats and Species Regulations 2017

PART 1 U.K. INTRODUCTORY PROVISIONS

Citation and commencement U.K.

1.  These Regulations may be cited as the Conservation of Offshore Marine Habitats and Species Regulations 2017 and come into force on 30th November 2017.

Interpretation U.K.

2.—(1) In these Regulations—

“the 1994 Regulations” means the Conservation (Natural Habitats, &c.) Regulations 1994 M1 ;

“the 2017 Regulations” means the Conservation of Habitats and Species Regulations 2017 M2 ;

[F1 “the United Kingdom territory” means “the United Kingdom (including its internal waters), the territorial sea adjacent and the offshore marine area;]

“a British aircraft” means an aircraft registered in the United Kingdom;

“British fishery limits” has the meaning given by the Fishery Limits Act 1976 M3 ;

“competent authority” has the meaning given in regulation 5;

“competent authority in Scotland” means a competent authority whose functions are exercisable solely in or as regards Scotland or the Scottish offshore region;

“competent authority in Wales” means a competent authority whose functions are exercisable solely in relation to Wales or the Welsh offshore region;

“DAERA” means Department of Agriculture, Environment and Rural Affairs;

“devolved administrations” means the Scottish Ministers, the Welsh Ministers and, in Northern Ireland, the DAERA;

“Energy Act licence” means a licence which is granted (or is to be granted) under Part 1 of the Energy Act 2008 M4 ;

“European offshore marine site” has the meaning given by regulation 18;

“European protected species” means the species of animals listed in Schedule 1;

“European site” has the meaning given by regulation 27;

“functions” includes powers and duties;

“the Habitats Directive” means Council Directive 92/43/EEC M5 on the conservation of natural habitats and of wild fauna and flora, and any reference to an Annex to that Directive is a reference to that Annex as amended from time to time [F2 under regulation 144 of the 2017 Regulations];

“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 M6 , 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 M7 ;

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; and

(b)

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

“the Joint Committee” means the Joint Nature Conservation Committee M8 ;

“management scheme” means—

(a)

for the purposes of regulation 22(3)(c), a scheme established under regulation 34 of the 1994 Regulations, regulation 29 of the Conservation (Natural Habitats, &c.) Regulations (Northern Ireland) 1995 M9 or regulation 38 of the 2017 Regulations; and

(b)

for all other purposes, a scheme established under regulation 22(1);

[F3 “the national site network” means the network of sites in the United Kingdom’s territory consisting of such sites as—

(a)

immediately before exit day formed part of Natura 2000; or

(b)

at any time on or after exit day are European sites or European marine sites for the purposes of any of the retained transposing regulations;]

“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 [F4 (but see paragraphs (3) and (4))];

“Northern Ireland department” has the same meaning as in the Northern Ireland Act 1998 M10 ;

“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 M11 ; 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 M12 ;

“Petroleum Act approval” means an approval of an abandonment programme under section 32 of the Petroleum Act 1998 M13 ;

“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;

“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;

“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 M14 [F5 or the Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental Impact Assessment) Regulations 2020]; or

(b)

a consent granted pursuant to regulation 4(1) of the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 M15 ;

“premises” includes land, buildings, movable structures, ships and vehicles;

“the register” means the register of European offshore marine sites provided for by regulation 19;

[F6 “the relevant administration”, except where otherwise specified, means—

(a)

in relation to a site within the Scottish offshore region, the Scottish Ministers;

(b)

in relation to a site within the Welsh offshore region, the Welsh Ministers; and

(c)

in relation to any other site, the Secretary of State;]

[F6 “the retained transposing regulations”, means—

(a)

the Conservation (Natural Habitats, &c.) Regulations 1994;

(b)

the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995;

(c)

the 2017 Regulations; and

(d)

these Regulations;]

“Scotland” has the same meaning as in the Scotland Act 1998 M16 ;

“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—

(a)

consists of waters within the Scottish zone and the sea bed and subsoil subjacent to those waters;

(b)

areas 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;

“Scottish zone” has the same meaning as in the Scotland Act 1998 M17 ;

“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;

“statutory undertaker” means a person who is, or is deemed to be, a statutory undertaker for the purposes of any provision of Part 11 of the Town and Country Planning Act 1990 M18 , Part 10 of the Town and Country Planning (Scotland) Act 1997 M19 or the Planning Act (Northern Ireland) 2011 M20 ;

“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 [F7 other than the United Kingdom]; and

(b)

is not registered in [F8 the United Kingdom];

“Wales” has the same meaning as in the Government of Wales Act 2006 M21 ;

“the Welsh inshore region” means the area of sea within the seaward limits of the territorial sea adjacent to Wales;

“the Welsh offshore region” means so much of the offshore marine area as consists of waters within the Welsh Zone and the sea bed and subsoil subjacent to those waters;

“the Welsh Zone” has the same meaning as in the Government of Wales Act 2006 M22 ;

“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;

“the Wild Birds Directive” means Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds M23 and any reference to an Annex to that Directive is a reference to the Annex as amended from time to time [F9 under regulation 144 of the 2017 Regulations for the purposes specified in paragraph (1) of that regulation];

“wildlife officer” means a person authorised under regulation 58;

“within devolved competence”—

(a)

in relation to Scotland is to be construed in accordance with section 54 of the Scotland Act 1998; and

(b)

in relation to Wales is to be construed in accordance with section 108 of the Government of Wales Act 2006, or (upon its coming into force) section 108A of that Act M24 .

(2) Unless the context suggests otherwise,—

(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 the Wild Birds Directive.

[F10 (3) For the purposes of these Regulations, and any guidance issued by the Secretary of State, the devolved administrations or the Joint Committee relating to the application of these Regulations, on or after exit day, references to “Natura 2000” (other than in this regulation) are to be construed as references to the national site network.

(4) Paragraph (3) does not affect the interpretation of these Regulations as they had effect, or any guidance as it applied, before exit day.

(5) The Habitats Directive is to be construed for the purposes of these Regulations as if—

(a) any reference to “the European territory of Member States to which the Treaty applies” included a reference to the United Kingdom;

(b) any reference to “Member State” or “Member States” included a reference to the United Kingdom;

(c) any reference to “of Community interest”, included, in relation to the United Kingdom, a reference to “of national interest”;

(d) in Article 1(d) and (h), the reference to “the Community” were a reference to “the European Union or the United Kingdom”; and

(e) in Article 1(1), the reference to “a site of Community importance designated by the Member States” included, in relation to the United Kingdom, a reference to a site of national importance designated under any of the retained transposing regulations.

(6) The Wild Birds Directive is to be construed for the purposes of these Regulations as if any reference to “the European territory of the Member States to which the Treaty applies” included a reference to the United Kingdom.]

Textual Amendments

F1 Words in reg. 2(1) inserted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 33(2)(a); 2020 c. 1, Sch. 5 para. 1(1)

F2 Words in reg. 2(1) inserted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 33(2)(b); 2020 c. 1, Sch. 5 para. 1(1)

F3 Words in reg. 2(1) inserted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 33(2)(c); 2020 c. 1, Sch. 5 para. 1(1)

F4 Words in reg. 2(1) inserted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 33(2)(d); 2020 c. 1, Sch. 5 para. 1(1)

F5 Words in reg. 2 inserted (31.12.2020 immediately before 11 p.m.) by The Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental Impact Assessment) Regulations 2020 (S.I. 2020/1497), reg. 1(1), Sch. 7 para. 6(2) (with reg. 1(2)-(6), 20)

F6 Words in reg. 2(1) inserted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 33(2)(e); 2020 c. 1, Sch. 5 para. 1(1)

F7 Words in reg. 2(1) substituted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 33(2)(f)(i); 2020 c. 1, Sch. 5 para. 1(1)

F8 Words in reg. 2(1) substituted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 33(2)(f)(ii); 2020 c. 1, Sch. 5 para. 1(1)

F9 Words in reg. 2(1) inserted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 33(2)(g); 2020 c. 1, Sch. 5 para. 1(1)

F10 Reg. 2(3)-(6) inserted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 33(3); 2020 c. 1, Sch. 5 para. 1(1)

Marginal Citations

M1 S.I. 1994/2716, to which relevant amendments have been made by the Environment Act 1995 (c. 25), paragraph 233 of Schedule 22, the Land Reform (Scotland) Act 2003 (asp 2), paragraphs 14 and 16 of Schedule 2; and by 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.

M2 S.I. 2017/1012.

M3 1976 c. 86.

M4 2008 c. 32.

M5 OJ No. L206, 22.7.92, p.7, as last amended by Council Directive 2013/17/EU (OJ No. L 158, 10.6.2013, p.193), and see OJ No. L 80, 21.3.2007, p.15, for the corrigendum amending the original title.

M6 1998 c. 17.

M7 The definition of “carbon storage installation” in section 30(5) was amended by S.I. 2011/2453.

M8 The Joint Committee was continued in existence by section 31 of the Natural Environment and Rural Communities Act 2006 (c. 16) and reconstituted in accordance with Schedule 4 to that Act.

M9 S.R. (N.I.) 1995 No. 380.

M10 1998 c. 47.

M11 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.

M12 2004 c. 20. Section 84(4) was substituted by the Marine and Coastal Access Act 2009 (c. 23), Schedule 4, paragraph 4. An area has been designated under section 84(4) by S.I. 2004/2668.

M13 1998 c. 17. Section 32 was amended by the Energy Act 2016 (c. 20), Schedule 2, paragraphs 1 and 4.

M14 S.I. 1999/360, amended by S.I. 2007/933, 2011/1043 and 2016/912.

M15 S.I. 2001/1754, amended by S.I. 2007/77.

M16 1998 c. 46.

M17 1998 c. 46. See sections 126(1) and (2) of that Act.

M18 1990 c. 8. Section 262, which defines “statutory undertakers”, was amended by the Planning and Compensation Act 1991 (c. 34), Schedule 6, paragraph 22; the Utilities Act 2000 (c. 27), section 76; and the Transport Act 2000 (c. 38), Schedule 5, paragraph 6; and by S.I. 2001/1149 and 2013/755.

M19 1997 c. 8. Section 214, which defines “statutory undertakers”, was amended by the Utilities Act 2000 (c. 27), section 76; and the Transport Act 2000 (c. 38), Schedule 5, paragraph 10; and by S.I. 2001/1149.

M20 2011 c. 25.

M21 2006 c. 32. See section 158(1).

M22 See section 158(1). The definition of “the Welsh zone” was inserted by the Marine and Coastal Access Act 2009 (c. 23), section 43(1) and (2).

M23 OJ No. L 20, 26.1.10, p.7, last amended by Council Directive 2013/17/EU (OJ No. L158, 10.6.2013, p.193).

M24 2006 c. 32. Section 108A is substituted for section 108 by the Wales Act 2017 (c. 4), section 3(1), as from a date to be appointed.

Application to the Crown U.K.

3.—(1) These Regulations bind the Crown.

(2) No contravention by the Crown of any provision of these Regulations makes the Crown criminally liable, but the High Court or in Scotland the Court of Session may, on the application of any person appearing to either 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 is to 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 60 and 65 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) In these Regulations, “ competent authority” means—

(a) a 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)(a), “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 M25 ;

(b) section 34 of the Coast Protection Act 1949 M26 (restriction of works detrimental to navigation);

(c) the Sea Fish (Conservation) Act 1967 M27 ;

(d) the Prevention of Oil Pollution Act 1971 M28 ;

(e) the Fishery Limits Act 1976 M29 ;

(f) the Fisheries Act 1981 M30 ;

(g) Part 2 of the Food and Environment Protection Act 1985 M31 (deposits in the sea);

(h) sections 128 and 129 of the Merchant Shipping Act 1995 M32 (prevention of pollution from ships and further provision for prevention of pollution from ships);

(i) the Pollution Prevention and Control Act 1999 M33 ;

[F11 (j) the Merchant Shipping (Prevention of Oil Pollution) Regulations 2019];

(k) the Merchant Shipping (Oil Pollution Preparedness, Response and Co-operation Convention) Regulations 1998 M34 ;

(l) the Offshore Installations (Emergency Pollution Control) Regulations 2002 M35 ;

(m) the Planning Act 2008 M36 ;

(n) 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

(o) these Regulations.

(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 M37 , 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 M38 .

Textual Amendments

F11 Words in reg. 6(2)(j) substituted (1.3.2019) by The Merchant Shipping (Prevention of Oil Pollution) Regulations 2019 (S.I. 2019/42), reg. 1(1), Sch. para. 6 (with regs. 2, 5)

Modifications etc. (not altering text)

C1 Reg. 6 power to disapply or modify conferred (26.12.2023) by Energy Act 2023 (c. 52), ss. 293(4)(5), 334(3)(j) (with s. 293(6))

Marginal Citations

M25 1934 c. 49.

M26 1949 c. 74. Section 34 was amended by section 36(1) and (2) of the Merchant Shipping Act 1998 (c. 12), and repealed, subject to transitional provisions by the Marine and Coastal Access Act (c. 23), Part 1, paragraph 1 of Schedule 8; section 34 was repealed in relation to Scotland by the Marine (Scotland) Act 2010 (2010 asp 5), Part 1, paragraph 1 of Schedule 4. For transitional provisions in relation to England and Wales, see the 2009 Act, Part 2, paragraph 2, and Part 4, paragraph 9, of Schedule 9.

M27 1967 c. 84.

M28 1971 c. 60.

M29 1976 c. 86.

M30 1981 c. 29.

M31 1985 c. 48.

M32 1995 c. 21. Section 128 was amended by the Merchant Shipping and Maritime Security Act 1997 (c. 28), sections 12 and 29, and paragraph 3(2) of Schedule 6, and paragraph 3(3) of Schedule 7; and the Merchant Shipping (Pollution) Act 2006 (c. 8), section 2.

M33 1999 c. 24.

M34 S.I. 1998/1056, amended by S.I. 2015/386 and 2016/992.

M35 S.I. 2002/1861, amended by S.I. 2010/1513 and 2015/664.

M36 2008 c. 29.

M37 Section 123(3)(a) applies in relation to the “UK marine area”, defined in section 42 of the Marine Act in terms which include the area comprised in the offshore marine area.

M38 2009 c. 23.

[F12 6A.— (1) The Secretary of State must publish, at least every six years from exit day, a report on the implementation of the measures for the conservation of the natural habitat types listed in Annex I to the Habitats Directive and species listed in Annex II to that Directive.

(2) The report must include in particular—

(a) information concerning conservation measures taken under Article 6(1) of the Habitats Directive;

(b) information on provisions mentioned in Article 12 of the new Wild Birds Directive;

(c) an evaluation of the impact of those conservation measures on the conservation status of the natural habitat types listed in Annex I to the Habitats Directive and of the species listed in Annex II to that Directive;

(d) the main results of the surveillance undertaken under Part 4 of these Regulations.

(3) The report must be published in such form as the Secretary of State sees fit.

(4) The report, must be submitted in draft to the devolved administrations for verification.]

Textual Amendments

F12 Reg. 6A inserted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 34; 2020 c. 1, Sch. 5 para. 1(1)