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The Conservation of Offshore Marine Habitats and Species Regulations 2017

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PART 2U.K.CONSERVATION OF NATURAL HABITATS AND HABITATS OF SPECIES

European offshore marine sitesU.K.

[F1Duty to designate special areas of conservationU.K.

7.—(1) The relevant administration must designate as special areas of conservation such sites in the offshore marine area it considers to be sites of national importance.

(2) Sites of national importance are sites which contribute significantly to the objective in paragraph (3)(a) or the objective in paragraph (3)(b).

(3) The objectives referred to in paragraph (2) are—

(a)the maintenance, or restoration, at favourable conservation status in their natural range, of the natural habitat types listed in Annex I to the Habitats Directive or the species listed in Annex II to that Directive; and

(b)the maintenance of biological diversity within the Atlantic biogeographic region.

(4) For aquatic species which range over wide areas, such sites are to be determined to be of national importance only where there is a clearly identifiable area which is distinct in providing the physical and biological factors essential to their life and reproduction.

(5) in determining which sites are of national importance for the purposes of paragraph (1), the relevant administration must—

(a)apply the Annex III criteria;

(b)make its determination only on the basis of relevant scientific information; and

(c)have regard to the importance of the population of a species or area of a habitat, found in the United Kingdom’s territory, in ensuring that the objectives in paragraph (3) are met .

(6) For the purposes of paragraph (5)(a), the Annex III criteria are to be construed as if—

(a)for “Community importance” there were substituted “national importance”;

(b)a reference to a “Member State” is to be taken to be a reference to the relevant administration;

(c)for “continuous ecosystem situated on both sides of one or more internal Community frontiers” there were substituted “continuous ecosystem extending beyond the borders of the United Kingdom; and

(d)for “the biogeographical regions concerned and/or for the whole of the territory referred to in Article 2” there were substituted “the Atlantic biogeographical region””.

(7) The relevant authority must have regard to the advice of the Joint Committee in relation to the application of Annex III to the Habitats Directive.

(8) In relation to a site in the Welsh offshore region which before these Regulations come into force has been the subject of a proposal under regulation 8(1) of the Offshore Marine (Natural Habitats, &c.) Regulations 2007, the relevant administration for the purposes of paragraph (1) is the Secretary of State.

(9) In this regulation, “the Annex III criteria” means the criteria set out in Annex III to the Habitats Directive]

Textual Amendments

[F2Priorities for designating special areas of conservationU.K.

7A.  The relevant administration must establish priorities for the designation of sites in the light of—

(a)the importance of the sites for the maintenance or restoration at a favourable conservation status of—

(i)a natural habitat type specified in Annex I to the Habitats Directive; or

(ii)a species specified in Annex II to the Habitats Directive;

(b)the importance of the sites for the coherence of national site network; and

(c)the threats of degradation or destruction to which the sites are exposed.]

Textual Amendments

Notification of a proposal for a site of Community importanceU.K.

8.—(1) [F3If the relevant administration proposes to designate a site as a special area of conservation, it] must give to the Joint Committee notice of that proposal and an accompanying statement of reasons.

F4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F4(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) But neither the Scottish Ministers nor the Welsh Minister may give notice of a proposal to the Joint Committee as described in paragraph [F5(1)] unless the Secretary of State has agreed to that proposal.

(5) Where, under paragraph (1) F6..., the Joint Committee is given notice of a proposal, the Joint Committee must give notice of that proposal and provide a copy of the accompanying statement of reasons for that proposal to the following—

(a)each of the devolved administrations;

(b)any of the following who in its opinion ought to be notified—

(i)competent authorities which exercise functions in relation to the site;

(ii)competent authorities which exercise functions in relation to a marine area adjacent to the site; and

(iii)persons whose activities are likely to be affected by the inclusion of the site in the list;

(c)such other persons as in its opinion ought to be notified;

(d)such other persons as the Secretary of State directs; and

(e)where the Scottish Ministers or the Welsh Ministers have given notice under paragraph [F7(1)]—

(i)the Secretary of State; and

(ii)such other persons as the Scottish Ministers or the Welsh Ministers respectively direct.

(6) A notice under paragraph (5) 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 proposal may be made to the Joint Committee.

(7) The Joint Committee must provide to the 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.

(8) The relevant administration must consider the report provided by the Joint Committee under paragraph (7).

(9) The [F8relevant administration] may issue guidance to the Joint Committee for the purposes of its functions under this regulation and the Joint Committee must have regard to that guidance in discharging any of those functions.

F9(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) The Secretary of State may vary or revoke a direction under paragraph (5)(d), and the Scottish Ministers or the Welsh Ministers may vary or revoke a direction under paragraph (5)(e)(ii).

F10(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Modification of list of sitesU.K.

F119.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Consultation as to inclusion of site omitted from the listU.K.

F1110.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Designation of special areas of conservationU.K.

F1111.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Classification of sites as special protection areasU.K.

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

(2) The objective is that there are classified as special protection areas 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.

(3) The Secretary of State must make the 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.

[F12(4) In applying the criteria referred to in sub-paragraphs (3)(a) and (b), references in Articles 4(1) and (4(2) of the Wild Birds Directive to classifying the most suitable territories “in the geographical sea and land area where this Directive applies” are to be construed as referring to the most suitable sites in the offshore marine area, having regard to the importance of such territories for ensuring the survival and reproduction of that species in their area of distribution.]

F13(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F13(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) 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—

(a)the Scottish Ministers under regulation 13(1); or

(b)the Welsh Ministers under regulation 13(2).

Textual Amendments

Classification of sites in the Scottish offshore region and the Welsh offshore region as special protection areasU.K.

13.—(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 (3) is attained.

(2) The Welsh Ministers must classify as special protection areas such sites in the Welsh offshore region as they consider necessary to ensure that the objective specified in paragraph (3) is attained.

(3) The objective 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 or Welsh offshore regions (as the case may be).

(4) 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 (3)(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 (3)(b), on the basis of the criteria set out in Article 4(2) of the Wild Birds Directive.

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

(6) The Welsh Ministers must make their decision as to the sites to be classified under paragraph (2) 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 (3)(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 (3)(b), on the basis of the criteria set out in Article 4(2) of the Wild Birds Directive.

(7) But the Welsh Ministers may only classify a site as a special protection area under paragraph (2) if the Secretary of State has agreed that they so classify the site.

(8) Where a site is classified under paragraph (1) or (2), the Scottish Ministers and the Welsh Ministers respectively 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 (2) of the Wild Birds Directive.

F14(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F14(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Notification of a proposal to classify a special protection areaU.K.

14.—(1) If the Secretary of State proposes to classify a site as a special protection area under regulation 12, the Secretary of State must give to the Joint Committee—

(a)notice of that proposal; and

(b)an accompanying statement of reasons for that proposal.

(2) Paragraph (1) does not apply in relation to any site in respect of which—

(a)the Scottish Ministers have given notice to the Joint Committee under paragraph (3); or

(b)the Welsh Ministers have given notice to the Joint Committee under paragraph (5).

(3) If the Scottish Ministers propose to classify a site as a special protection area under regulation 13, they must give to the Joint Committee—

(a)notice of that proposal; and

(b)an accompanying statement of reasons for that proposal.

(4) But the Scottish Ministers may not give notice of a proposal to the Joint Committee as described in paragraph (3) unless the Secretary of State has agreed to that proposal.

(5) If the Welsh Ministers propose to classify a site as a special protection area under regulation 13, they must give to the Joint Committee—

(a)notice of that proposal; and

(b)an accompanying statement of reasons for that proposal.

(6) But the Welsh Ministers may not give notice of a proposal to the Joint Committee as described in paragraph (5) unless the Secretary of State has agreed to that proposal.

(7) Where the Joint Committee is given notice of a proposal under paragraph (1), (3) or (5), the Joint Committee must give notice of that proposal and provide a copy of the accompanying statement of reasons for that proposal to—

(a)each of the devolved administrations;

(b)any of the following who in its opinion ought to be notified—

(i)competent authorities which exercise functions in relation to the site;

(ii)competent authorities which exercise functions in relation to a marine area adjacent to the site; and

(iii)persons whose activities are likely to be affected by the classification of the site;

(c)such other persons as in its opinion are to be notified;

(d)such other persons as the Secretary of State directs;

(e)where the Scottish Ministers have given notice under paragraph (3)—

(i)the Secretary of State; and

(ii)such other persons as the Scottish Ministers direct;

(f)where the Welsh Ministers have given notice under paragraph (5)—

(i)the Secretary of State; and

(ii)such other persons as the Welsh Ministers direct.

(8) A notice under paragraph (7) 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 proposal may be made to the Joint Committee.

(9) The Joint Committee must provide to the relevant administration a report describing the representations, if any, that it received about the proposal, or where no such representations have been received, stating that fact.

(10) The relevant administration must consider the report provided by the Joint Committee under paragraph (9).

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

(12) The Scottish Ministers may issue guidance to the Joint Committee for the purposes of its functions under this regulation in relation to site proposals under paragraph (3), and the Joint Committee must have regard to that guidance in discharging any of those functions.

(13) The Welsh Ministers may issue guidance to the Joint Committee for the purposes of its functions under this regulation in relation to site proposals under paragraph (5), and the Joint Committee must have regard to that guidance in discharging any of those functions.

(14) The Secretary of State may vary or revoke a direction under paragraph (7)(d), the Scottish Ministers may vary or revoke a direction under paragraph (7)(e)(ii), and the Welsh Ministers may vary or revoke a direction under paragraph (7)(f)(ii).

(15) In this regulation “the relevant administration” means—

(a)in relation to a report concerning a site proposal under paragraph (1), the Secretary of State;

(b)in relation to a report concerning a site proposal under paragraph (3), the Scottish Ministers; and

(c)in relation to a report concerning a site proposal under paragraph (5), the Welsh Ministers.

HearingsU.K.

15.—(1) The [F15relevant administration] may give any person the opportunity of appearing before and being heard by, or of providing representations to, a person appointed by the [F15relevant administration]—

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

F16(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 [F15relevant administration] 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 [F15relevant administration] must consider any report of a person appointed under paragraph (1).

(4) Where [F17a relevant administration] proposes to exercise any function under this regulation in relation to any matter in relation to which functions are exercisable by [F18another relevant administration] under [F19this regulation], [F17a relevant administration] must consult [F20that other administration].

F21(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Hearings conducted by the Scottish MinistersU.K.

F2216.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Hearings conducted by the Welsh MinistersU.K.

F2217.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Meaning of “European offshore marine site”U.K.

18.  In these Regulations a “European offshore marine site” means any of the following located in the offshore marine area—

(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 [F23before exit day];

F24(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)a site classified as a special protection area under regulation 12 or 13; and

[F25(e)a site which, before exit day, was proposed to the European Commission under Article 4(1) of the Habitats Directive, until such time as—

(i)the site is designated as a special area of conservation under regulation 7; or

(ii)the relevant administration gives notice to the appropriate nature conservation body of its intention not to designate the site, setting out the reasons for its decision, in accordance with regulation 86A(3)(b).]

Textual Amendments

[F26Management objectives of the national site networkU.K.

18A.—(1) The Secretary of State and the devolved administrations must, in co-operation with each other, manage, and where necessary adapt, the national site network, so far as it consists of European offshore marine sites, with a view to contributing to the achievement of the management objectives of the national site network.

(2) The management objectives of the national site network are—

(a)to maintain or, where appropriate restore to, a favourable conservation status in their natural range (so far as it lies in the United Kingdom’s territory, and so far as is proportionate)—

(i)the natural habitat types listed in Annex 1 to the Habitats Directive;

(ii)the species listed in Annex II to that Directive whose natural range includes any part of the United Kingdom’s territory;

(b)to contribute, in their area of distribution, to ensuring the survival and reproduction of—

(i)the species of birds listed in Annex I to the Wild Birds Directive which naturally occur in the United Kingdom’s territory;

(ii)regularly occurring migratory species of birds not listed in that Annex which naturally occur in the United Kingdom’s territory;

(c)to contribute to securing compliance with the requirements of Article 2 of the new Wild Birds Directive for the purposes of the duty in regulation 6(1) in relation to the species of birds in paragraph (b) within their area of distribution.

(3) In complying with the obligation in paragraph (1), the Secretary of State and the devolved administrations must have regard—

(a)in relation to sites designated under regulation 7(1) to—

(i)the importance of the sites for meeting the objective in paragraph 2(a);

(ii)the importance of the sites for the coherence of national site network;

(iii)the threats of degradation or destruction (including deterioration and disturbance of protected features) to which the sites are exposed;

(b)in relation to sites classified under regulation 12(1)—

(i)the importance of the sites for meeting the objectives in paragraph 2(b) and (c);

(ii)in the case of migratory species, the importance of their breeding, moulting and wintering areas and staging points along their migration routes;

(iii)the importance of the sites for the coherence of the national site network;

(iii)the threats of degradation or destruction (including deterioration and disturbance of protected features) to which the sites are exposed.

(4) In paragraph (2)(a), “proportionate” means proportionate to the relative importance of—

(a)the part of the natural range lying in the United Kingdom’s territory, and

(b)the part of the natural range lying outside the United Kingdom’s territory,

for achieving a favourable conservation status.]

Textual Amendments

Register of European offshore marine sitesU.K.

19.—(1) The Secretary of State must compile and maintain, in such form as the Secretary of State considers appropriate, a register of European offshore marine sites.

(2) The Secretary of State must include European offshore marine sites in the register as follows—

(a)special areas of conservation, as soon as they are designated;

(b)sites of Community importance, [F27which before exit day were] placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive, until such time as they are designated as special areas of conservation;

F28(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)special protection areas as soon as they are classified as such; and

(e)any site which [F29, before exit day,] 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 is mentioned in regulation 18(e).

(3) The register must—

(a)in relation to each site included in it, provide the site's co-ordinates and a chart delineating its boundaries;

(b)in relation to a site which is a special area of conservation, specify the natural habitat types listed in Annex I to the Habitats Directive and the species listed in Annex II to that Directive for which the site was designated as a special area of conservation;

(c)in relation to a site which has been placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive, specify the natural habitat types listed in Annex I to the Habitats Directive and the species listed in Annex II to that Directive for which the site was placed on that list;

F30(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)in relation to a site which is a special protection area, specify the bird species for which the site was so classified; and

(f)in relation to a site which is of the type mentioned in paragraph (2)(e), specify the natural habitat types listed in Annex I to the Habitats Directive and the species listed in Annex II to that Directive for which the site was proposed by the Secretary of State to the Commission.

(4) The Secretary of State may amend any entry in the register.

[F31(5) Where a site ceases to fall within any of the categories in paragraph (2) for which it is listed in the register the relevant administration must amend the relevant entry in the register in respect of that site.]

(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.

Textual Amendments

Notification of changes to the registerU.K.

20.—(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 Committee;

(b)the devolved administrations;

(c)any competent authorities which exercise functions in relation to the site which is affected or a marine area adjacent to the site which is affected, and which in the Secretary of State's opinion it would be appropriate to notify;

(d)any international organisations which in the Secretary of State's opinion it would be appropriate to notify; and

(e)such other persons as in the Secretary of State's opinion it would be appropriate to notify.

(2) Where a site adjoins the territory of [F32a] 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 the Secretary of State 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.

Textual Amendments

Site protection and managementU.K.

Establishment of nature conservation objectivesU.K.

21.  As soon as is reasonably practicable after a European offshore marine site has been included in the register, the Joint 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.

Management schemes for European offshore marine sitesU.K.

22.—(1) Any competent authority which exercises functions in relation to a European offshore marine site may establish a management scheme for that site.

(2) A management scheme—

(a)must set out how a competent authority establishing the scheme proposes to exercise its functions so as to secure in relation to that site compliance with the requirements of the Habitats Directive or the Wild Birds Directive; and

(b)where it relates to a site which has been designated as a special area of conservation, must set out how, for the purposes of securing compliance with the requirements of Article 6(1) of the Habitats Directive, the competent authority establishing it proposes to exercise its functions in order to maintain or restore to a favourable conservation status—

(i)the natural habitat types listed in Annex I to the Habitats Directive which are found at the site; and

(ii)the species listed in Annex II to that Directive which are found at the site.

(3) Before establishing a management scheme, the competent authorities concerned must consult—

(a)the Joint Committee;

(b)such other competent authorities having functions in relation to the site as they consider appropriate; and

(c)where the site adjoins a European marine site, such other persons who are parties to a management scheme for that European marine site as they consider appropriate.

(4) Any competent authority consulted under paragraph (3)(b) must be given the opportunity of participating in the establishment of the scheme.

(5) A competent authority may establish a single management scheme for two or more European offshore marine sites.

(6) Only one management scheme may be established for each European offshore marine site.

(7) A competent authority which has established a management scheme must review the scheme periodically, initially by the fifth anniversary of the date of the scheme's establishment and thereafter by each fifth anniversary of that date.

(8) A management scheme may be amended at any time, but before amending a scheme the competent authority which established it must—

(a)consult the Joint Committee; and

(b)consult such other persons as it considers appropriate.

(9) Before establishing or amending a management scheme for a site, the competent authorities concerned must have regard to—

(a)any conservation objectives established for the site under regulation 21(a); and

(b)any advice provided under regulation 21(b) relating to that site.

(10) As soon as a management scheme has been established or is amended, the competent authorities concerned must ensure that a copy of the scheme, or the amended scheme (as the case may be) is provided to—

(a)the Secretary of State;

(b)the devolved administrations;

(c)those consulted under paragraph (3);

(d)such other persons as the Secretary of State may direct;

(e)in the case of a management scheme entered into by a competent authority in Scotland in relation to a site in the Scottish offshore region, such other persons as the Scottish Ministers may direct; and

(f)in the case of a management scheme entered into by a competent authority in Wales in relation to a site in the Welsh offshore region, such other persons as the Welsh Ministers may direct.

(11) The Secretary of State may vary or revoke a direction under paragraph (10)(d), the Scottish Ministers may vary or revoke a direction under paragraph (10)(e) and the Welsh Ministers may vary or revoke a direction under paragraph (10)(f).

(12) In paragraph (3)(c), “European marine site” means any site which is a European marine site for the purposes of the 1994 Regulations, the Conservation (Natural Habitats, &c.) Regulations (Northern Ireland) 1995 M1 or the 2017 Regulations.

Marginal Citations

M1S.R. (N.I.) 1995 No. 380.

Duty in relation to management schemesU.K.

23.  Where a management scheme has been established, any competent authority which established that scheme must take reasonable steps to exercise its functions in accordance with that scheme.

Co-ordinated management of sitesU.K.

24.—(1) Where a European offshore marine site, other than any such site in the Scottish offshore region or the Welsh offshore region, adjoins a special area of conservation or a special protection area which has been (respectively) designated or classified by [F33a] 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 [F33a] 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) Where a European offshore marine site in the Welsh offshore region adjoins a special area of conservation or a special protection area which has been (respectively) designated or classified by [F33a] member State, the Welsh 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.

(4) 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.

(5) Before the Secretary of State consults under paragraph (3) in relation to a site, or a part of a site, in relation to which the Welsh Ministers must consult under that paragraph, the Secretary of State must consult the Welsh Ministers.

Textual Amendments

Conservation measures relating to special areas of conservationU.K.

25.—(1) In relation to any site designated as a special area of conservation under regulation 11, competent authorities must, in so far as their functions may be so exercised, exercise such of their functions as they consider appropriate for the purpose of giving effect to Article 6(1) of the Habitats Directive by taking conservation measures corresponding to the ecological requirements of—

(a)the natural habitat types listed in Annex I to that Directive present on the site; and

(b)the species listed in Annex II to that Directive which are present on the site.

(2) In considering what conservation measures may be necessary for the purposes of paragraph (1) in relation to a site, competent authorities must have regard to—

(a)the need to maintain at, or restore to, favourable conservation status the natural habitat types and species mentioned in paragraph (1) which are present on the site;

(b)the matters referred to in Article 2(3) of the Habitats Directive; and

(c)any management scheme which has been established for the site.

(3) In so far as the duty in paragraph (1) has been met in respect of a site by any competent authority in Scotland or competent authority in Wales, that paragraph does not apply to any other competent authority in respect of that site.

(4) Before a competent authority (other than a competent authority in Scotland or Wales) exercises any relevant function for the purposes of complying with paragraph (1), it must first consult the Scottish Ministers and the Welsh Ministers.

(5) Where, in relation to any site designated as a special area of conservation under regulation 11, paragraph (1) imposes a duty on more than one competent authority—

(a)where the competent authorities do not include a competent authority in Scotland or Wales, the Secretary of State may give a direction that, in respect of any measure that may be necessary, the duty of the competent authorities in question is to be satisfied by the taking of that measure by such competent authority or authorities as the Secretary of State may specify in the direction, and any such direction has effect in the terms stated in the direction; and

(b)where the competent authorities include one or more competent authorities in Scotland or Wales, the relevant administration may give a direction that, in respect of any measure that may be necessary, the duty of the competent authorities in question is to be satisfied by the taking of that measure by such competent authority or authorities as the relevant administration may specify in the direction, and any such direction has effect in the terms stated in the direction.

(6) A direction under paragraph (5)(b) may not be given unless the Scottish Ministers or the Welsh Ministers (as the case may be) and the Secretary of State have agreed that it may.

(7) In this regulation—

“the relevant administration” means—

(a)

in relation to a competent authority in Scotland, the Scottish Ministers;

(b)

in relation to a competent authority in Wales, the Welsh Ministers; and

(c)

in relation to a competent authority other than a competent authority in Scotland or in Wales, 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 either the Scottish Ministers or the Welsh Ministers.

Prevention of deterioration of habitats and disturbance of speciesU.K.

26.—(1) In so far as their functions may be exercised to secure that appropriate steps are taken for the purpose mentioned in paragraph (2), competent authorities must exercise their functions to secure that such steps are taken.

(2) The purpose referred to in paragraph (1) is the avoidance of—

(a)the disturbance of species specified in paragraph (3); and

(b)the deterioration of habitat or habitat types specified in paragraph (4).

(3) The disturbance of species referred to in paragraph (2)(a) is—

(a)in any site designated as a special area of conservation under regulation 11, the disturbance of any of the species listed in Annex II to the Habitats Directive for which the site was so designated, in so far as such disturbance could be significant in relation to the objectives of that Directive;

(b)in any site in the offshore marine area which has been placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive, the disturbance of any of the species listed in Annex II to the Habitats Directive for which the site was placed on that list, in so far as such disturbance could be significant in relation to the objectives of that Directive; [F34and]

F35(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)in any site classified as a special protection area under regulation 12 or 13, the disturbance of any of the species of bird for which the site was so classified, in so far as such disturbance could be significant in relation to the objectives of the Habitats Directive or the Wild Birds Directive.

(4) The deterioration of habitat or habitat types referred to in paragraph (2)(b) is—

(a)in any site designated as a special area of conservation under regulation 11—

(i)the deterioration of the habitat of any of the species listed in Annex II to the Habitats Directive for which the site was so designated; and

(ii)the deterioration of any of the natural habitat types listed in Annex I to the Habitats Directive for which the site was so designated;

(b)in any site in the offshore marine area which has been placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive—

(i)the deterioration of the habitat of any of the species listed in Annex II to the Habitats Directive for which the site was placed on that list; and

(ii)the deterioration of any of the natural habitat types listed in Annex I to the Habitats Directive for which the site was placed on that list; [F36and]

F37(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)in any site classified as a special protection area under regulation 12 or 13, the deterioration of the habitats of any of the species of bird for which the site was so classified.

F38(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) In considering the steps (if any) to be taken under paragraph (1), competent authorities must have regard to—

(a)the need to maintain at, or restore to, favourable conservation status the natural habitat types and species specified in paragraphs (3) and (4), and the habitats of those species, which are present on the site concerned;

(b)the matters referred to in Article 2(3) of the Habitats Directive;

(c)any management scheme which has been established for the site concerned; and

(d)the objectives of the Habitats Directive and, where appropriate, the Wild Birds Directive.

(7) In so far as the duty in paragraph (1) has been met in respect of a site by any competent authority in Scotland or competent authority in Wales, that paragraph does not apply to any other competent authority in respect of that site.

(8) Before a competent authority (other than a competent authority in Scotland or competent authority in Wales) exercises any relevant function for the purposes of complying with paragraph (1), it must first consult the Scottish Ministers or the Welsh Ministers (as the case may be), and for this purpose, a “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 or the Welsh Ministers.

(9) Where, in respect of any site mentioned in paragraph (3) or (4), paragraph (1) imposes a duty on more than one competent authority—

(a)where the competent authorities do not include a competent authority in Scotland or in Wales, the Secretary of State may give a direction that, in respect of any step that may be necessary, the duty of the competent authorities in question is to be satisfied by the taking of that step by such competent authority or authorities as the Secretary of State may specify in the direction, and any such direction has effect in the terms stated in the direction; and

(b)where the competent authorities include one or more competent authorities in Scotland or in Wales, the relevant administration may give a direction that, in respect of any step that may be necessary, the duty of the competent authorities in question is to be satisfied by the taking of that step by such competent authority or authorities as the relevant administration may specify in the direction, and any such direction has effect in the terms stated in the direction.

(10) A direction under paragraph (9)(b) may not be given unless the Scottish Ministers or the Welsh Ministers (as the case may be) and the Secretary of State have agreed that it may.

(11) So far as lies within its powers, a competent authority in exercising any function in or in relation to the offshore marine area must use all reasonable endeavours to avoid any pollution or deterioration of habitats of wild birds (except habitats beyond the outer limits of the area to which the Wild Birds Directive applies).

(12) Paragraph (1) does not apply where—

(a)the cause of the disturbance of species or deterioration of habitat or habitat types specified in paragraph (3) or (4) is a plan or project that has been agreed to under regulation 28; or

(b)the disturbance of species specified in paragraph (3) is not a criminal offence under regulation 38 or Part 3.

(13) In this regulation—

“the relevant administration” means—

(a)

in relation to a competent authority in Scotland, the Scottish Ministers;

(b)

in relation to a competent authority in Wales, the Welsh Ministers; and

(c)

in relation to any other competent authority, the Secretary of State.

Textual Amendments

Plans and projectsU.K.

Meaning of “European site”U.K.

27.—(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 [F39before exit day];

F40(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)a site classified [F41before exit day] as a special protection area pursuant to Article 4(1) or (2) of the Wild Birds Directive [F41or classified after exit day under the retained transposing legislation]; and

[F42(e)a site which before exit day was proposed to the European Commission under Article 4(1) of the Habitats Directive, until such time as—

(i)the site is designated as a special area of conservation under regulation 7; or

(ii)the relevant administration gives notice to the appropriate nature conservation body of its intention not to designate the site, setting out the reasons for its decision, in accordance with regulation 86A(3)(b).]

F43(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F43(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

Textual Amendments

Modifications etc. (not altering text)

C1Reg. 27 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))

Protection of European offshore marine sites and European sitesU.K.

28.—(1) Before deciding to undertake, or give any consent, permission or other authorisation for, a relevant plan or project, a competent authority must make an appropriate assessment of the implications of the plan or project for the site in view of that site's conservation objectives.

(2) In paragraph (1), a “relevant plan or project” is 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.

(3) 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)to enable it to determine whether an assessment under paragraph (1) is required; or

(b)for the purposes of an assessment under paragraph (1).

(4) The competent authority must for the purposes of the assessment—

(a)where it relates to a European offshore marine site, consult the Joint Committee;

(b)where it relates to a European site in England, consult Natural England;

(c)where it relates to a European site in Wales, consult the Natural Resources Body for Wales;

(d)where it relates to a European site in Scotland, consult Scottish Natural Heritage;

(e)where it relates to a European site in Northern Ireland, consult the DAERA; and

(f)if it considers it appropriate, take the opinion of the general public and if it does so, take such steps for that purpose as it considers appropriate.

(5) In the light of the conclusions of the assessment, and subject to regulation 29, the competent authority may agree to the plan or project only if it has ascertained that it will not adversely affect the integrity of the European offshore marine site or European site (as the case may be).

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

(7) This regulation does not apply in relation to—

F44(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F45(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)the granting by the Secretary of State [F46or the agreement to the grant] of any Petroleum Act approval, Petroleum Act authorisation, Petroleum or Energy Act consent, Petroleum Act licence, or Energy Act licence.

(8) Where a plan or project requires an appropriate assessment both under this regulation and under the Conservation Regulations, the assessment so far as relating to that part of it that is to be carried out in the offshore marine area need not identify the extent to which the effects of the plan or project are specifically attributable to that part, provided that an assessment made for the purposes of this regulation and the Conservation Regulations assesses the effects of the plan or project as a whole.

(9) In paragraph (8) “the Conservation Regulations” means the 1994 Regulations or the 2017 Regulations (as the case may be).

(10) In this regulation—

“England” includes so much of the internal waters and territorial sea of the United Kingdom as are not part of Northern Ireland, Scotland or Wales; and

“Northern Ireland” has the same meaning as in the Northern Ireland Act 1998 M2.

Textual Amendments

Modifications etc. (not altering text)

C2Reg. 28 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

Considerations of overriding public interestU.K.

29.—(1) If it is satisfied that, there being no alternative solutions, the plan or project referred to in regulation 28(1) must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (2), may be of a social or economic nature), the competent authority may agree to the plan or project notwithstanding a negative assessment of the implications for the site.

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

(a)reasons relating to human health, public safety or beneficial consequences of primary importance to the environment; or

(b)any other imperative reasons of overriding public interest.

(3) A competent authority [F47other than the relevant administration] may not agree to a plan or project under paragraph (1) for any reason referred to in paragraph (2)(b) unless it has had due regard to the opinion of the [F48relevant administration] in satisfying itself that there are such reasons.

(4) Where a competent authority other than the [F49relevant administration] desires to obtain the opinion of the [F49relevant administration] as to whether reasons are to be considered imperative reasons of overriding public interest, it must submit a request to the [F49relevant administration]—

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

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

[F50(5) In giving its opinion as to whether the reasons are imperative reasons of overriding public interest, the relevant administration must have regard to the national interest, and provide its opinion to the competent authority.

(6) Before giving its opinion as to whether the reasons are imperative reasons of overriding public interest, the relevant administration must consult the following, and have regard to their opinion—

(a)the Joint Nature Conservation Committee;

(b)where the relevant administration is the Secretary of State, the devolved administrations;

(c)where the relevant administration is a devolved administration, the Secretary of State and the other devolved administrations; and

(d)any other person the relevant administration considers appropriate.

(7) In this regulation, “the relevant administration” means—

(a)in relation to a plan or project relating to an activity other than one specified in regulation 55(16)—

(i)where the plan or project is to be carried out in the Scottish offshore region, the Scottish Ministers; and

(ii)where the plan or project is to be carried out in the Welsh offshore region, the Welsh Ministers; and

(b)in relation to a plan or project relating to an activity specified in regulation 55(16), or in any case not falling within sub-paragraph (a)(i) or (ii), the Secretary of State.]

Textual Amendments

Agreement to plan or project: England and Northern IrelandU.K.

30.—(1) Where a competent authority in England or in Northern Ireland proposes to agree to a plan or project under regulation 29 notwithstanding a negative assessment of the implications for a European offshore marine site or a European site—

(a)it must notify the Secretary of State; and

(b)it must not agree to the plan or project before the end of the period of 21 days beginning with the day notified to it by the Secretary of State as that on which the authority's notification was received by the Secretary of State, unless the Secretary of State authorises the authority to do so under paragraph (2)(b).

(2) In any case within paragraph (1), the Secretary of State may—

(a)at any time before the competent authority has agreed to the plan or project in question, give a direction to the competent authority prohibiting it from agreeing to the plan or project, either indefinitely or during such period as may be specified in the direction; or

(b)authorise the competent authority to agree to the plan or project subject to such conditions or restrictions as may be specified in the authorisation.

(3) The Secretary of State may amend or revoke a direction or authorisation under paragraph (2) at any time before the competent authority has agreed to the plan or project in question.

Modifications etc. (not altering text)

C3Regs. 30-37 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))

Agreement to plan or project: ScotlandU.K.

31.—(1) Where a competent authority in Scotland other than the Scottish Ministers proposes to agree to a plan or project under regulation 29 notwithstanding a negative assessment of the implications for a European site in Scotland or for a European offshore marine site in the Scottish offshore region—

(a)it must notify the Scottish Ministers; and

(b)it must not agree to the plan or project before the end of the period of 21 days beginning with the day notified to it by the Scottish Ministers as that on which the authority's notification was received by them, unless the Scottish Ministers authorise the authority to do so under paragraph (2)(b).

(2) In any case within paragraph (1), the Scottish Ministers may—

(a)at any time before the competent authority has agreed to the plan or project in question, give a direction to the competent authority prohibiting it from agreeing to the plan or project, either indefinitely or during such period as may be specified in the direction; or

(b)authorise the competent authority to agree to the plan or project subject to such conditions or restrictions as may be specified in the authorisation.

(3) The Scottish Ministers may amend or revoke a direction or authorisation under paragraph (2) at any time before the competent authority has agreed to the plan or project in question.

(4) Where a competent authority in Scotland agrees to a plan or project under regulation 29 notwithstanding a negative assessment of the implications for a European site in Scotland or for a European offshore marine site in the Scottish offshore region, it must notify the Secretary of State as soon as practicable following that agreement.

(5) Where the Scottish Ministers propose to agree to a plan or project under regulation 29 notwithstanding a negative assessment of the implications for a European site outside Scotland or a European offshore marine site outside the Scottish offshore region—

(a)they must notify the Secretary of State; and

(b)they may agree to the plan or project only after having been notified of the Secretary of State's agreement, which may be given subject to such conditions or restrictions as the Secretary of State may specify.

(6) Where a competent authority in Scotland other than the Scottish Ministers proposes to agree to a plan or project under regulation 29 notwithstanding a negative assessment of the implications for a European site outside Scotland or a European offshore marine site outside the Scottish offshore region—

(a)it must notify the Scottish Ministers and the Secretary of State; and

(b)it may agree to the plan or project only after having received notification from the Scottish Ministers that the Scottish Ministers and the Secretary of State have agreed that it may do so.

(7) In any case within paragraph (6), the Scottish Ministers may give a direction to the competent authority prohibiting it from agreeing to the plan or project, either indefinitely or during such period as may be specified in the direction, and may amend or revoke any such direction at any time before the competent authority has agreed to the plan or project in question.

(8) Any agreement between the Scottish Ministers and the Secretary of State that is the subject of a notification under paragraph (6)(b) may be subject to such conditions or restrictions as may be specified in the notification, and where the Scottish Ministers and the Secretary of State so agree, the Scottish Ministers may, at any time before the competent authority has agreed to the plan or project in question, amend or revoke a notification under paragraph (6)(b).

Modifications etc. (not altering text)

C3Regs. 30-37 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))

Agreement to plan or project: WalesU.K.

32.—(1) Where a competent authority in Wales other than the Welsh Ministers proposes to agree to a plan or project under regulation 29 notwithstanding a negative assessment of the implications for a European site in Wales or for a European offshore marine site in the Welsh offshore region—

(a)it must notify the Welsh Ministers; and

(b)it must not agree to the plan or project before the end of the period of 21 days beginning with the day notified to it by the Welsh Ministers as that on which the authority's notification was received by them, unless the Welsh Ministers authorise the authority to do so under paragraph (2)(b).

(2) In any case within paragraph (1), the Welsh Ministers may—

(a)at any time before the competent authority has agreed to the plan or project in question, give a direction to the competent authority prohibiting it from agreeing to the plan or project, either indefinitely or during such period as may be specified in the direction; or

(b)authorise the competent authority to agree to the plan or project subject to such conditions or restrictions as may be specified in the authorisation.

(3) The Welsh Ministers may amend or revoke a direction or authorisation under paragraph (2) at any time before the competent authority has agreed to the plan or project in question.

(4) Where a competent authority in Wales agrees to a plan or project under regulation 29 notwithstanding a negative assessment of the implications for a European site in Wales or for a European offshore marine site in the Welsh offshore region, it must notify the Secretary of State as soon as practicable following that agreement.

(5) Where the Welsh Ministers propose to agree to a plan or project under regulation 29 notwithstanding a negative assessment of the implications for a European site outside Wales or a European offshore marine site outside the Welsh offshore region—

(a)they must notify the Secretary of State; and

(b)they may agree to the plan or project only after having been notified of the Secretary of State's agreement, which may be given subject to such conditions or restrictions as the Secretary of State may specify.

(6) Where a competent authority in Wales other than the Welsh Ministers proposes to agree to a plan or project under regulation 29 notwithstanding a negative assessment of the implications for a European site outside Wales or a European offshore marine site outside the Welsh offshore region—

(a)it must notify the Welsh Ministers and the Secretary of State; and

(b)it may agree to the plan or project only after having received notification from the Welsh Ministers that the Welsh Ministers and the Secretary of State have agreed that it may do so.

(7) In any case within paragraph (6), the Welsh Ministers may give a direction to the competent authority prohibiting it from agreeing to the plan or project, either indefinitely or during such period as may be specified in the direction, and may amend or revoke any such direction at any time before the competent authority has agreed to the plan or project in question.

(8) Any agreement between the Welsh Ministers and the Secretary of State that is the subject of a notification under paragraph (6)(b) may be subject to such conditions or restrictions as may be specified in the notification, and where the Welsh Ministers and the Secretary of State so agree, the Welsh Ministers may, at any time before the competent authority has agreed to the plan or project in question, amend or revoke a notification under paragraph (6)(b).

Modifications etc. (not altering text)

C3Regs. 30-37 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))

Review of existing decisions and consentsU.K.

33.—(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 28(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 28(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 28(3), (4) and (8) 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 or, in relation to the Scottish offshore region, by the Scottish Ministers, or in relation to the Welsh offshore region, by the Welsh Ministers.

(6) Nothing in this regulation—

F51(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F52(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)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 plan or project in relation to which a review has been carried out under regulation 27 of the Offshore Marine Conservation (Natural Habitats, &c. Regulations 2007 M3;

(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).

(7) 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 or the Welsh Ministers, as the case may be.

(8) The Scottish Ministers may only issue guidance under paragraph (5)—

(a)to a competent authority in Scotland; or

(b)where guidance is issued to a competent authority other than a competent authority in Scotland, subject to and in accordance with the agreement of the Secretary of State.

(9) The Welsh Ministers may only issue guidance under paragraph (5)—

(a)to a competent authority in Wales; or

(b)where guidance is issued to a competent authority other than a competent authority in Wales, subject to and in accordance with the agreement of the Secretary of State.

(10) Regulations 90 and 91 of the 2017 Regulations (consents under Electricity Act 1989 M4: procedure on review and effect of review) apply in relation to any decision under paragraph (4) revoking or modifying a consent granted under section 36 M5 or 37 M6 of the Electricity Act 1989 as they apply in relation to a decision pursuant to regulation 90 of the 2017 Regulations revoking or varying any such consent, but with the modifications specified in paragraphs (11) and (12).

(11) The modifications to regulation 90 referred to in paragraph (10) are—

(a)in paragraph (1)—

(i)for “89(3), (5) or (6)” substitute “ 89(3) or (5) ”; and

(ii)omit “or a direction deeming planning permission to be granted”;

(b)in paragraph (2)—

(i)in sub-paragraph (a), omit “or, as the case may be, in whose favour the direction was made”; and

(ii)in sub-paragraph (b), omit “in the case of a consent under section 36 of the Electricity Act 1989,”;

(c)omit paragraph (3)(a); and

(d)in paragraph (5)—

(i)omit “, or the relevant planning authority,”; and

(ii)in the words before sub-paragraph (a), omit “or the relevant planning authority (as the case may be)”.

(12) The modifications to regulation 91 referred to in paragraph (10) are—

(a)in paragraph (1)—

(i)for “89(3), (5) or (6)” substitute “ 89(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 each place where it occurs).

Textual Amendments

Modifications etc. (not altering text)

C3Regs. 30-37 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

M3S.I. 2007/1842, amended by S.I. 2009/7, 2010/491 and 2012/1928, and revoked by these Regulations.

M5Section 36 was amended by the Energy Act 2004 (c. 20), section 93(1) and (3); the Planning Act 2008 (c. 29), paragraphs 31 and 32 of Schedule 2; the Marine and Coastal Access Act 2009 (c. 23), section 12(7)(a) and (8); the Energy Act 2016, section 78; the Wales Act 2017 (c. 4) section 39; and, in relation to Scotland, by S.I. 2006/1054, paragraph 1(1) and (2) of Schedule 1.

M6Section 37 was amended by the Planning Act 2008 (c. 29), paragraphs 31 and 33 of Schedule 2; and the Wales Act 2017 (c. 4), section 42.

Consideration on reviewU.K.

34.—(1) The following provisions apply where a decision, or a consent, permission or other authorisation falls to be reviewed under regulation 33.

(2) Subject as follows, the provisions of regulation 28(4) and (5) and regulations 29 to 32 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 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) The Scottish Ministers and the Welsh Ministers may issue guidance to competent authorities in Scotland and competent authorities in Wales, respectively, 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.

(7) 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).

(8) A competent authority in Scotland must have regard to any guidance issued by the Scottish Ministers under paragraph (6) in discharging its functions under paragraph (3) or (4).

(9) A competent authority in Wales must have regard to any guidance issued by the Welsh Ministers under paragraph (6) in discharging its functions under paragraph (3) or (4).

(10) Any modification or revocation under regulation 33(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, or, in relation to a competent authority in Scotland, the Scottish Ministers, or in relation to a competent authority in Wales, the Welsh Ministers.

(11) 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 or the Welsh Ministers (as the case may be).

Modifications etc. (not altering text)

C3Regs. 30-37 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))

Co-ordination where more than one competent authority is involvedU.K.

35.—(1) The following provisions apply where a plan or project—

(a)is undertaken by more than one competent authority;

(b)requires the consent, permission or other authorisation of more than one competent authority; or

(c)is undertaken by one or more competent authorities and requires the consent, permission or other authorisation of one or more other competent authorities.

(2) Nothing in regulation 28(1) or 33(3) requires a competent authority to assess any implication of a plan or project which would be more appropriately assessed under that provision by another competent authority.

(3) The Secretary of State may issue guidance to competent authorities for the purposes of regulations 28 to 34 as to the circumstances in which an authority may or should adopt the reasoning or conclusions of another competent authority as to whether a plan or project—

(a)is likely to have a significant effect on a European offshore marine site or European site; or

(b)may adversely affect the integrity of a European offshore marine site or European site.

(4) The Scottish Ministers may issue guidance to competent authorities in Scotland for the purposes of regulations 28, 29, 31, 33 and 34 as to the circumstances in which a competent authority in Scotland may or must adopt the reasoning or conclusions of another competent authority as to whether a plan or project—

(a)is likely to have a significant effect on a European offshore marine site or European site; or

(b)may adversely affect the integrity of a European offshore marine site or European site.

(5) The Welsh Ministers may issue guidance to competent authorities in Wales for the purposes of regulations 28, 29, and 32 to 34 as to the circumstances in which a competent authority in Wales may or must adopt the reasoning or conclusions of another competent authority as to whether a plan or project—

(a)is likely to have a significant effect on a European offshore marine site or European site; or

(b)may adversely affect the integrity of a European offshore marine site or European site.

(6) A competent authority must have regard to any guidance issued by the Secretary of State under paragraph (3) in discharging any of its functions under regulations 28 to 34.

(7) A competent authority in Scotland must have regard to any guidance issued by the Scottish Ministers under paragraph (4) in discharging any of its functions under regulations 28, 29, 31, 33 and 34.

(8) A competent authority in Wales must have regard to any guidance issued by the Welsh Ministers under paragraph (5) in discharging any of its functions under regulations 28, 29, and 32 to 34.

(9) In determining whether a plan or project should be agreed to under regulation 29(1), a competent authority other than the Secretary of State must seek and have regard to the views of any other competent authority or authorities involved.

(10) The Secretary of State may not issue any guidance under paragraph (3) which relates to a function within devolved competence without the consent of the Scottish Ministers or the Welsh Ministers (as the case may be).

Modifications etc. (not altering text)

C3Regs. 30-37 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))

Compensatory measuresU.K.

36.—(1) This regulation applies where, notwithstanding a negative assessment of the implications for a European offshore marine site or European site—

(a)a plan or project is agreed to in accordance with regulation 29; or

(b)a decision, or a consent, permission or other authorisation, is affirmed on review in accordance with regulations 29 and 34(3).

(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, or the decision, consent, permission or other authorisation is affirmed, in the exercise of a function within devolved competence in respect of Scotland or by the Scottish Ministers, the Scottish Ministers;

(b)where the plan or project is agreed to, or the decision, consent, permission or other authorisation is affirmed, in the exercise of a function within devolved competence in respect of Wales or by the Welsh Ministers, the Welsh Ministers;

(c)where the plan or project is agreed to, or 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.

Modifications etc. (not altering text)

C3Regs. 30-37 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))

Notification of compensatory measuresU.K.

37.—[F53(1) The appropriate authority must ensure that the compensatory measures taken pursuant to regulation 36(2) are notified to each of the following (other than the appropriate authority itself)—

(a)the Secretary of State;

(b)the devolved administrations.]

(2) In this regulation “appropriate authority” is to be construed in accordance with regulation 36(3).

Textual Amendments

Modifications etc. (not altering text)

C3Regs. 30-37 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))

OffencesU.K.

Offences relating to European offshore marine sitesU.K.

38.—(1) Subject to paragraphs (2) and (3), paragraphs (4) to (8) apply to any person—

(a)in any part of the waters within British fishery limits;

(b)on any ship in any part of the waters within British fishery limits;

(c)on a British aircraft over any part of the waters within British fishery limits;

(d)on or under an offshore marine installation; or

(e)on any aircraft above an offshore marine installation, in so far as the presence of the aircraft above that installation is for purposes connected with the use of the installation.

(2) Paragraphs (4) to (8) do not apply to—

(a)a competent authority acting in the exercise of its functions; or

(b)any other person exercising such functions on behalf of a competent authority.

(3) Paragraphs (6) to (8) do not apply to any person on a third country ship [F54unless the United Kingdom is entitled under international law to exercise those powers without the consent of the flag state].

(4) A person is guilty of an offence if—

(a)without reasonable excuse, that person intentionally disturbs animals of any of the species specified in paragraph (9) whilst the animals are in a site which has been designated as a special area of conservation under regulation 11; and

(b)the disturbance is likely significantly to affect—

(i)their ability to survive, breed, or rear or nurture their young; or

(ii)the local distribution or abundance of that species.

(5) A person is guilty of an offence if—

(a)without reasonable excuse, that person intentionally disturbs animals of any of the species specified in paragraph (10) whilst the animals are in a site in the offshore marine area which has been placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive; and

(b)the disturbance is likely significantly to affect—

(i)their ability to survive, breed, or rear or nurture their young; or

(ii)the local distribution or abundance of that species.

(6) A person is guilty of an offence if—

(a)without reasonable excuse, that person intentionally disturbs any wild bird whilst it is in a site which has been classified as a special protection area under regulation 12 or 13 and which is of a species of bird for which the site was so classified; and

(b)the disturbance—

(i)is such as is likely to impair the bird's ability to survive, breed, or rear or nurture its young; or

(ii)significantly affects the local distribution or abundance of the species to which the bird belongs.

(7) A person is guilty of an offence if, without reasonable excuse, that person intentionally or recklessly damages or destroys a natural habitat type listed in Annex I to the Habitats Directive—

(a)in any site—

(i)in the offshore marine area which has been placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive; or

(ii)which has been designated as a special area of conservation under regulation 11; and

(b)by reason of which—

(i)in the case of a site placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive, the site in question was placed on that list; or

(ii)in the case of a site designated as a special area of conservation under regulation 11, the site in question was so designated.

(8) A person is guilty of an offence if, without reasonable excuse, that person intentionally or recklessly damages or destroys—

(a)the habitat in any site which has been designated as a special area of conservation under regulation 11 and which supports any animals of the species specified in paragraph (9);

(b)the habitat in any site in the offshore marine area which has been placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive and which supports any animals of the species specified in paragraph (10); and

(c)the habitat in any site which has been classified as a special protection area under regulation 12 or 13 which supports any birds of the species for which the site was so classified.

(9) The species referred to in paragraphs (4)(a) and (8)(a) are the species listed in Annex II to the Habitats Directive for which the site in question was designated as a special area of conservation under regulation 11.

(10) The species referred to in paragraphs (5)(a) and (8)(b) are the species listed in Annex II to the Habitats Directive for which the site in question was placed on the list mentioned in those paragraphs.

(11) For the purpose of paragraphs (4) to (8) (and without prejudice to any other reasonable excuse) it is a reasonable excuse that the action causing the disturbance, damage or destruction in question was carried out pursuant to, and in accordance with the terms of, a consent, permission or other authorisation granted by a competent authority.

(12) In proceedings for an offence under paragraph (7) or (8), where this paragraph applies the defendant (“D”) is not to be taken recklessly to have done anything prohibited by that paragraph merely because—

(a)D's actions had the result that D did the thing in question; and

(b)D intended those actions and knew that they might have that result.

(13) Paragraph (12) applies where the defendant (“D”) shows that—

(a)the actions in question were for the purpose, and in the course, of sea fishing; and

(b)D had taken any steps that could reasonably be taken to ensure compliance with the requirements or conditions of any [F55relevant retained EU law].

(14) In paragraph (13), “any [F56relevant retained EU law]” means any instrument relating to sea fishing which—

(a)regulates such fishing for the purpose (whether or not the sole purpose) of minimising the extent to which it has a result of the kind referred to in paragraph (12) or the risk that it may have a result of that kind; and

(b)is adopted by any EU instrument under—

(i)Article 43 of the Treaty on the Functioning of the European Union; or

(ii)Council Regulation (EU) No. 1380/2013 on the Common Fisheries Policy, as amended from time to time M7 or any instrument adopted thereunder.

(15) A person guilty of an offence under this regulation is liable, either on summary conviction or on conviction on indictment, to a fine.

(16) In determining the amount of any fine to be imposed on a person convicted of an offence under this regulation, the court must in particular have regard to any financial benefit which has accrued or appears likely to accrue to that person in consequence of the offence.

Textual Amendments

Marginal Citations

M7OJ No. L 354, 28.12.2013, p.22, as amended by Council Regulation (EU) No 1385/2013 (OJ No. L 354, 28.12.2013, p.86) and Regulation (EU) 2015/812 (OJ No. L 133, 29.5.2015, p.1).

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