S.I. No. 477/2011 - European Communities (Birds and Natural Habitats) Regulations 2011

PART 1: PRELIMINARY AND GENERAL

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PART 2: AUTHORISED OFFICERS

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PART 3: CONSERVATION OF NATURAL HABITATS AND HABITATS OF SPECIES

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PART 4: ACTIVITIES, PLANS OR PROJECTS AFFECTING EUROPEAN SITES

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PART 5: APPROPRIATE ASSESSMENT

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PART 6: PROTECTION OF FLORA AND FAUNA

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PART 7: MISCELLANEOUS

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SCHEDULES

S.I. No. 477 of 2011

EUROPEAN COMMUNITIES (BIRDS AND NATURAL HABITATS) REGULATIONS 2011

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 27th September, 2011.

WHEREAS, I, Jimmy Deenihan, Minister for Arts, Heritage and the Gaeltacht, in exercise of the powers conferred on me by section 3 of the Act of 1972 and for the purpose of giving effect to Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 (which codifies Council Directive 79/409/EEC of 2 April 1979 (as amended)) and Council Directive 92/43/EEC of 21 May 1992 (as amended by Council Directive 97/62/EC of 27 October 1997, Regulation (EC) No. 1882/2003 of the European Parliament and of the Council of 29 September 2003, Council Directive 2006/105/EC of 20 November 2006 and as amended by Act of Accession of Austria, Sweden and Finland (adapted by Council Decision 95/1/EC, Euratom, ECSC), Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded and as amended by the Corrigendum to that Directive) hereby make the following Regulations:

PART 1 PRELIMINARY AND GENERAL

Citation

• (2) The Wildlife Act 1976 , the Wildlife (Amendment) Act 2000 , the Wildlife (Amendment) Act 2010 and these Regulations shall be construed together as one.

• (3) These Regulations shall come into operation on 21 September 2011.

Interpretation

“Act of 1972” means the European Communities Act 1972 , as inserted by section 2 of the European Communities Act 2007 and section 4 of the European Union Act 2009 ;

“Act of 2000” means the Wildlife (Amendment) Act 2000 ;

“activity” includes any operation or activity likely to impact on the physical environment or on wild flora or fauna or on the habitats of wild flora and fauna, other than—

• (a) development requiring permission under Part 111 of the Planning and Development Act 2000 as amended,

• (b) activities requiring the consent of the Minister for Agriculture, Fisheries and Food, under the European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011,

• (c) activities to which the exercise of statutory power in favour of that activity, pursuant to Regulations made under the Act of 1972 or under any of the enactments set out in the Second Schedule of these Regulations, applies, or

• (d) activities for which, under the Act of 1972, the function of giving or refusing consent for an activity, or deciding on its own behalf to carry out any activity, is assigned to a public authority and the activity is carried out with and in compliance with a consent given under the applicable regulations;

“activity requiring consent” includes any activity that has, before the commencement date of these Regulations, been notified pursuant to Regulation 4(3)(b) of the European Communities (Natural Habitats) Regulations 1997, any activity listed in Regulations made under the Act of 1972 for the purpose of designating a site as a special protection area or as a special area of conservation, and any activity in relation to which the Minister has given a Direction pursuant to Regulation 28 of these Regulations, as being an activity that requires the approval of the Minister or is covered by the consent of a public authority;

“animal” includes any vertebrate or invertebrate animal and any species, hybrid, subspecies, breed, race, strain, sport, variety, or other infraspecific taxon of such an animal, and all stages of the biological cycle and resting stages thereof;

“Appropriate Assessment” means Appropriate Assessment as referred to in Article 6(3) of the Habitats Directive;

“authorised officer” means a person standing appointed as an authorised officer under Regulation 4;

“the Birds Directive” means Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 (which codifies Council Directive 79/409/EEC of 2 April 1979 (as amended));

“the Board” means An Bord Pleanála;

“candidate site of Community importance” means—

• (a) a site—

• (i) in relation to which the Minister has given notice pursuant to Regulations under the Act of 1972 that he or she considers the site may be eligible for identification as a site of Community importance pursuant to Article 4 of the Habitats Directive, which notice may be amended in accordance with such Regulations under the Act of 1972,

• (ii) that is included in a list transmitted to the European Commission in accordance with Article 4(1) of the Habitats Directive, or

• (iii) that is added in accordance with Article 5 of the Habitats Directive, to the list transmitted to the European Commission pursuant to Article 4(1) of the Habitats Directive,

but only until the adoption in respect of the site of a decision by the European Commission in accordance with the procedure laid down in Article 21 of the Habitats Directive for the purposes of the third paragraph of Article 4(2) of that Directive, or

• (b) a site—

• (i) which is subject to a consultation procedure in accordance with Article 5(1) of the Habitats Directive, or

• (ii) in relation to which a Council decision is pending in accordance with Article 5(3) of the Habitats Directive;

“candidate special area of conservation” means a site that is a candidate site of Community importance or a site of Community importance;

“candidate special protection area” means a site selected by the Minister under Regulation 15(1) and includes a site notified for the purposes of Regulation 15(5) and 15(6) but only until notification is given pursuant to Regulation 16(7) and 16(8);

“compensatory measures” means all measures referred to in Article 6(4) of the Habitats Directive that are necessary to ensure that the overall coherence of Natura 2000 is protected in a case in which, in accordance with the said Article 6(4), a plan or project is to proceed for imperative reasons of overriding public interest and may include the provision of compensatory habitats;

“consent” includes any licence, permission, permit, derogation, dispensation, approval or other such authorisation granted by or on behalf of a public authority, relating to any activity, plan or project that may affect a European Site, and includes the process of adoption by a public authority of its own land use plans or projects;

“conservation” means the implementation of appropriate measures to maintain and optimise natural habitats and the populations of species of wild fauna and flora at a favourable conservation status or to restore natural habitats or the populations of species to a favourable conservation status;

“conservation objectives”, in relation to a European Site, means the maintenance and restoration of the habitat and species in respect of which the site has been identified as a European Site at favourable conservation status or their restoration to such favourable status, and shall include such particular objectives as the Minister may from time to time establish for those purposes under Regulation 26;

“conservation status of a natural habitat” means the sum of the influences acting on a natural habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the long-term survival of its typical species;

“conservation status of a species” means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations;

“the Council” means the Council of the European Union;

“delegate officer” means a member of An Garda Síochána not below the rank of Superintendent authorised in writing to perform functions under these Regulations otherwise performed by the Commissioner of An Garda Síochána;

“the Department” means the Department of Arts, Heritage and the Gaeltacht;

“the EIA Directive” means Council Directive No. 85/337/EEC of 27 June 1985 (as amended by Council Directive No. 97/11/EC of 3 March 1997 and Directive No. 2003/35/EC of the European Parliament and of the Council of 26 May 2003 and any Directive amending or replacing those Directives);

“Environmental Impact Assessment” means an assessment carried out in accordance with the provisions of any enactment or Regulations made in connection with the EIA Directive;

“European Site” means—

• (a) a candidate site of Community importance,

• (b) a site of Community importance,

• (c) a candidate special area of conservation,

• (d) a special area of conservation,

• (e) a candidate special protection area, or

• (f) a special protection area;

“exclusive economic zone” has the meaning given to it by or under Section 87 of the Sea-Fisheries and Maritime Jurisdiction Act 2006 ;

“fauna” includes vertebrate and invertebrate animals;

“favourable conservation status of a natural habitat” means the conservation status of a natural habitat when—

• (a) its natural range and areas it covers within that range are stable or increasing, and

• (b) the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future, and

• (c) the conservation status of its typical species is favourable;

“favourable conservation status of a species” means the conservation status of a species when—

• (a) population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, and

• (b) the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and

• (c) there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis;

“flora” includes seed plants, ferns and fern-allies, lycophytes, bryophytes, charophytes, green algae, brown algae, red algae, fungi, slime-moulds, lichens, actinomycetes and cyanobacteria;

“foreshore” has the meaning assigned to it by the Foreshore Acts 1933 to 2011;

“functions” include powers and duties;

“habitat of a species” means an environment defined by specific abiotic and biotic factors, in which the species lives or upon which it depends at any stage of its biological cycle;

“the Habitats Directive” means Council Directive 92/43/EEC of 21 May 1992 (as amended by Council Directive 97/62/EC of 27 October 1997, Regulation (EC) No. 1882/2003 of the European Parliament and of the Council of 29 September 2003, Council Directive 2006/105/EC of 20 November 2006 and as amended by Act of Accession of Austria, Sweden and Finland (adapted by Council Decision 95/1/EC, Euratom, ECSC), Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded and as amended by the Corrigendum to that Directive);

“hunt” means stalk, pursue, chase, drive, flush, capture, course, attract, follow, search for, lie in wait for, take, trap or shoot by any means whether with or without a dog or dogs and, except in sections 28 and 29 of the Principal Act, includes killing in the course of hunting and cognate words shall be construed accordingly and for the avoidance of doubt does not include the non-intrusive observation, monitoring and recording of wildlife, or actions carried out by an authorised officer or a member of An Garda Síochána in the performance of his or her duties and functions under these Regulations and “hunting” shall be construed accordingly;

“inland waters” means any waters comprised in the internal or inland waters of the State;

“land”, where the context admits, includes—

• (a) any land,

• (b) land covered by water including inland waters,

• (c) estuarine waters, including fjords and sea-lakes,

• (d) the foreshore,

• (e) the territorial seas of the State, and the seabed and subsoil beneath those seas,

• (f) the exclusive economic zone of the State, including the waters above its seabed and the seabed and ocean floor and subsoil beneath those waters,

• (g) the seabed and ocean floor and subsoil situated in any area designated under section 2 of the Continental Shelf Act 1968 ,

• (h) caves and cliffs, and

• (i) any premises that is not a private dwelling

and in relation to the acquisition of land also includes any easement, profit à prendre or other right in, to or over land or water including any easement, profit à prendre or other right granted to or held by the Minister;

“list of candidate sites of Community importance” has the meaning assigned by Regulation 10(3);

“local authority” means a county council, a city council or a town council within the meaning of the Local Government Act 2001 and includes a sanitary authority, a water services authority, a planning authority and a road authority;

“management agreement” means an agreement entered into by the Minister or another Minister of Government with a public authority or authorities or any other person or persons for the purposes of the Habitats Directive or the Birds Directive and may include, but is not limited to, an agreement entered into under section 18 of the Principal Act or an agri-environmental scheme;

“Member State” means a Member State of the European Union;

“the Minister” means the Minister for Arts, Heritage and the Gaeltacht;

“mitigation” means a measure or a combination of measures that, in relation to Article 6(3) of the Habitats Directive, has the effect of ensuring that a plan or project, individually or in combination with other plans or projects, will not have a significant effect on, or adversely affect the integrity of, a European Site;

“NATURA 2000” means the European network of special areas of conservation under the Habitats Directive and special protection areas under the Birds Directive, provided for by Article 3(1) of the Habitats Directive and, for the purposes of these Regulations, includes European Sites;

“Natura Impact Statement” means a report comprising the scientific examination of a plan or project and the relevant European Site or European Sites, to identify and characterise any possible implications of the plan or project individually or in combination with other plans or projects in view of the conservation objectives of the site or sites, and any further information including, but not limited to, any plans, maps or drawings, scientific information or data required to enable the carrying out of an Appropriate Assessment;

“natural habitats” means terrestrial, aquatic or marine areas distinguished by geographic, geological, abiotic and biotic features, whether entirely natural or semi-natural, including habitats that have developed as a consequence of human activity;

“natural heritage area” means an area which has been designated as such by way of a Natural Heritage Order under Section 18 of the Wildlife (Amendment) Act 2000 , or that, pending a decision by the Minister under section 17 or 18 of that Act, is subject of a notice under section 16 of that Act;

“object” includes any item, machine, vehicle, device, tool, material, matter, substance, aggregate, spoil, waste, container, compound or mixture, whether natural or man-made, or any part or portion thereof;

“off-road vehicle” means—

• (a) a mechanically propelled vehicle within the meaning of section 3 of the Road Traffic Act 1961 ,

• (b) a mechanically propelled vehicle that—

• (i) has been designed and constructed for off-road use,

• (ii) is intended or adapted for propulsion by a mechanical means, or by an electrical means or by a partly mechanical and a partly electrical means, and

• (iii) is capable of achieving vehicle propulsion, including a bicycle, tricycle, or quadricycle or continuous-track vehicle propelled by an engine or motor or with an attachment for propelling it by mechanical power, whether or not the attachment is being used, or

• (c) a vehicle, cart, caravan, trap, sled or trailer of any type drawn by a horse or horses or other animal or animals, or

• (d) a trailer of any type, sidecar, caravan, trailer tent or mobile home,

and, without limiting the generality of the foregoing paragraphs (a) and (b), includes, when designed or adapted or used for off-road use—

• (i) a motorised quad bike,

• (ii) a motorised trike,

• (iii) a scrambler, pit-bike, dirt-bike, trail-bike, motorcycle or related two wheel vehicle,

• (iv) an all-terrain vehicle,

• (v) a four-wheel drive vehicle,

• (vi) a low-pressure tyre vehicle,

• (vii) an off-road go-cart or a buggy,

• (viii) a hovercraft, or

• (ix) a snowmobile or powered sled,

where such vehicle, as referred to in paragraphs (a), (b), (c) or (d), is being used off the public road, but does not include—

• (I) a tramcar or other vehicle running on permanent rails,

• (II) a vehicle including a cycle with an attachment for propelling it by mechanical power not exceeding 400 kilogrammes in weight unladen adapted and used for invalids,

• (III) a lawn tractor, lawn truck or lawn mower,

• (IV) a motorised golf car,

• (V) a vehicle or machinery or equipment being lawfully used in the course of agriculture or any other occupational land use activity by the owner or occupier of the land or his or her servants or agents or co-workers,

• (VI) a state owned vehicle, being used for official purposes, or a vehicle being operated by An Garda Síochána, the Emergency Services or the Defence Forces,

• (VII) a vehicle being lawfully used for the purposes of maintaining electricity, gas, water or telecommunications utility services, or

• (VIII) a vehicle being used by an authorised officer in the performance of his or her duties or functions;

“owner” in respect of an off-road vehicle means—

• (a) in relation to a mechanically-propelled vehicle within the meaning of section 3 of the Road Traffic Act 1961 , the registered owner of the vehicle,

• (b) in relation to a vehicle that—

• (i) is a mechanically-propelled vehicle within the meaning of section 3 of the Road Traffic Act 1961 , or

• (ii) is not a mechanically-propelled vehicle within the meaning of section 3 of the Road Traffic Act 1961

and which is the subject of a hire-purchase agreement or a lease, the person in possession of the off-road vehicle under the agreement or lease, or

• (c) in relation to a vehicle that is neither a mechanically-propelled vehicle within the meaning of section 3 of the Road Traffic Act 1961 nor the subject of a hire-purchase agreement or a lease, the legal owner of the vehicle or, if the legal owner of the vehicle cannot be ascertained after reasonable enquiry, the person by whom the off-road vehicle is kept;

“particulars of the candidate special protection areas” has the meaning assigned by Regulation 15(2);

“particulars of the special protection areas” has the meaning assigned by Regulation 16(5);

“person” has the meaning assigned to it by the Interpretation Act 2005 and for the avoidance of doubt includes any public authority;

“plan”, subject to the exclusion, except where the contrary intention appears, of any plan that is a land use plan within the meaning of the Planning Acts 2000 to 2011, includes—

• (a) any plan, programme or scheme, statutory or non-statutory, that establishes public policy in relation to land use and infrastructural development in one or more specified locations or regions, including any development of land or on land, the extraction or exploitation of mineral resources or of renewable energy resources and the carrying out of land use activities, that is to be considered for adoption or authorisation or approval or for the grant of a licence, consent, permission, permit, derogation or other authorisation by a public authority, or

• (b) a proposal to amend or extend a plan or scheme referred to in subparagraph (a);

“planning authority” has the meaning assigned by the Planning and Development Acts 2000 to 2011;

“plant”, except in the expression “plant and equipment”, includes any seed plant, fern or fern-ally, lycophyte, bryophyte, charophyte, green alga, brown alga, red alga, fungus, slime-mould, lichen, actinomycete or cyanobacterium and any hybrid, subspecies, race, breed, strain, sport, variety, cultivar or other infraspecific taxon of such a plant or any living part thereof and all stages of the biological cycle, seeds, spores, resting stages, cuttings and propagules thereof;

“plant and equipment” includes any workshop, works, factory or installation, the devices, equipment and machinery used for the purposes of such a facility, and any mobile or portable machinery and equipment;

“premises” means any lands and includes any building or structure thereon;

“Principal Act” means the Wildlife Act 1976 ;

“priority natural habitat types” means those natural habitat types in danger of disappearance, which are present on the territory referred to in Article 2 of the Habitats Directive and for the conservation of which the Community has particular responsibility in view of the proportion of their natural range which falls within the territory referred to in the said Article 2 and which are indicated in each case by an asterisk in Annex I to the Habitats Directive;

“priority species” means those species referred to in Article 1(g)(i) of the Habitats Directive for the conservation of which the Community has particular responsibility in view of the proportion of their natural range which falls within the territory referred to in Article 2 of the Habitats Directive and which are indicated in each case by an asterisk in Annex II to the Habitats Directive;

“project”, subject to the exclusion, except where the contrary intention appears, of any project that is a development requiring development consent within the meaning of the Planning and Development Acts 2000 to 2011, includes—

• (a) land use or infrastructural developments, including any development of land or on land,

• (b) the extraction or exploitation of mineral resources, prospecting for mineral resources, turf cutting, or the exploitation of renewable energy resources, and

• (c) any other land use activities,

that are to be considered for adoption, execution, authorisation or approval, including the revision, review, renewal or extension of the expiry date of previous approvals, by a public authority and, notwithstanding the generality of the preceding, includes any project referred to at subparagraphs (a), (b) or (c) to which the exercise of statutory power in favour of that project or any approval sought for that project under any of the enactments set out in the Second Schedule of these Regulations applies;

“public authority” means—

• (a) a Minister of Government,

• (b) a local authority,

• (c) An Bord Pleanála,

• (d) Environmental Protection Agency,

• (e) the Commissioners of Public Works in Ireland,

• (f) a harbour authority or a harbour company within the meaning of the Harbours Acts 1946 to 2009,

• (g) Fáilte Ireland,

• (h) Health Service Executive,

• (i) a regional authority,

• (j) Inland Fisheries Ireland,

• (k) Geological Survey of Ireland,

• (l) Teagasc,

• (m) National Roads Authority,

• (n) Radiological Protection Institute of Ireland,

• (o) Electricity Supply Board,

• (p) Commission for Energy Regulation,

• (q) Port and Harbour Authorities including Port companies established under the Harbours Act 1996 ,

• (r) Dublin Docklands Development Authority,

• (s) Waterways Ireland,

• (t) Bord Na Móna,

• (u) Coillte,

• (v) Health and Safety Authority,

• (w) Bord Gáis,

• (x) Marine Institute,

• (y) Bord Iascaigh Mhara,

• (z) Eirgrid,

• (aa) a Board or other Body (but not including a company under the Companies Acts) established by or under statute,

• (bb) a company under the Companies Acts, in which all the shares are held—

• (i) by or on behalf of or jointly with a Minister of Government,

• (ii) by directors appointed by a Minister of Government, or

• (iii) by a board, company or other body referred to in paragraph (f) or subparagraph (bb)(i) or (bb)(ii),

• (cc) a planning authority;

“public notice” means any notice issued by way of national newspapers or other such publications, broadcast media or internet or otherwise displayed openly in the public domain;

“recreational watercraft” means any boat or craft of any type intended for sports and leisure purposes and includes a hovercraft and any vessel which uses an internal combustion engine having a water jet pump as its primary source of propulsion, but does not include any watercraft being used for rescue or emergency purposes or for law enforcement purposes or by an authorised officer in the performance of his or her duties or functions or a watercraft being lawfully used in the course of agriculture or the management of fisheries or any other lawful occupational land use activity by the owner or occupier of the land or his or her servants or agents or co-workers;

“road authority” has the meaning assigned by the Roads Act 1993 (apart from Part V of that Act);

“sanitary authority” has the meaning assigned by the Local Government (Water Pollution) Act 1977 ;

“the SEA Directive” means Directive 2001/42/EC of the European Parliament and Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment;

“site of Community importance” means a site which has been adopted by the European Commission as a site of Community importance pursuant to the third subparagraph of Article 4(2) of the Habitats Directive in accordance with the procedure laid down in Article 21 of that Directive, or has been selected as a site of Community importance pursuant to a decision of the Council made in accordance with Article 5(3) of the Habitats Directive;

“special area of conservation” means a site of Community importance designated by a Member State pursuant to Article 4(4) of the Habitats Directive through a statutory, administrative or contractual act, or any combination thereof, where the necessary conservation measures are applied for the maintenance or restoration, at a favourable conservation status, of either or both the natural habitats and the populations of the species for which the site is designated;

“special protection area” means an area classified pursuant to Article 4(1) or 4(2) of the Birds Directive as a special protection area;

“statutory declaration” means a statutory declaration within the meaning of the Statutory Declarations Act 1938 ;

“territorial seas” has the meaning given to it by section 82 of the Sea-Fisheries and Maritime Jurisdiction Act 2006 ;

“vehicle” means any conveyance in or by which any person or thing, or both, is transported which is designed for use on land, or in water or in the air, or in more than one of those ways, and includes—

• (a) part of a vehicle,

• (b) an article designed as a vehicle but not capable of functioning as a vehicle,

• (c) a skip or other container designed for use or used for carriage on a vehicle, or

• (d) a trailer or caravan designed for use or used with a vehicle;

“water services authority” has the meaning assigned by the Water Services Act 2007 ;

“works” includes any intervention impacting on the physical environment.

• (2) A word or expression that is used in these Regulations and is also used in the Birds Directive or in the Habitats Directive shall, unless the contrary intention is expressed, have in these Regulations the meaning that it has in the Birds Directive or in the Habitats Directive.

• (3) In these Regulations—

• (a) a reference to a Part, Regulation or Schedule is to a Part or Regulation of, or Schedule to, these Regulations, unless it is indicated that reference to some other enactment is intended, and

• (b) a reference to a paragraph or subparagraph is to the paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

• (4) In these Regulations, save where the context otherwise requires, a reference to any enactment shall be construed as a reference to that enactment as amended or adapted by any subsequent enactment including these Regulations.

Service of notices

• (a) by addressing it to the person by name and delivering it to him or her,

• (b) by leaving it at the address at which the person ordinarily resides or carries on business,

• (c) by sending it in a letter by prepaid post addressed to him or her at the address at which he or she ordinarily resides or carries on business,

• (d) if an address for the service of notices has been furnished by the person, by leaving it at, or sending it by prepaid post addressed to him or her to that address, or

• (e) by serving it on a person who is carrying out, supervising or directing works to which the notice relates.

• (2) Where the name of any of the persons concerned has not been ascertained after reasonable inquiry, or where it is not certain that the names of all such persons have been ascertained after such enquiry, or where it has not proved possible to deliver a notice to any such person, a notice under these Regulations may, where probable addresses are known, be addressed to—

• (a) the owner,

• (b) the occupier,

• (c) the person in charge,

• (d) the manager,

• (e) the works manager or contractor,

• (f) the owner or holder of turbary rights, mineral exploration rights, fishery rights, sporting rights or such other rights, as appropriate,

or to all or any of such addressees at any address where the Minister believes such a person may ordinarily reside or carry out his business or that he or she may be using as an office or place of business for the time being.

• (3) Upon serving or giving a notice in accordance with paragraph (1) or (2) of these Regulations, appropriate public notice may be given, and where such public notice has been given, that public notice shall constitute due notice to any person concerned who has not received or claims not to have received a notice pursuant to paragraph (1) or (2), and to all other persons, and the date of the first publication of such public notice shall be the date of such notice.

• (4) Following the giving of public notice pursuant to paragraph (3), it shall not be a defence in prosecutions arising under these Regulations for a person to claim that he or she did not receive due notice pursuant to paragraph (1) or (2), or was not informed of such notice.

• (5) For the purpose of this Regulation a company registered under the Companies Acts shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.

• (6) The validity of a notice served on a person under these Regulations is not affected by the failure to serve it on every person to whom the notice under these Regulations is to be directed.

• (7) The provisions of Section 3 of the Principal Act shall not apply in a case to which these Regulations apply.

PART 2

AUTHORISED OFFICERS

Appointment of Authorised Officers

(2)(a) A certificate of appointment as an authorised officer shall be issued to every person appointed under paragraph (1).

• (b) Whenever a person is exercising any function conferred on him or her as an authorised officer such person shall, if requested by a person affected, produce evidence of his or her appointment as an authorised officer to the person so requesting.

• (3) The appointment of a person as an authorised officer may at any time be terminated by the Minister or such other Minister, as described in paragraph (1), whichever of them appointed the person, whether or not the appointment was for a fixed period.

• (4) An appointment as an authorised officer shall cease—

• (a) where the Minister or such other Minister, as described in paragraph (1), terminates it pursuant to paragraph (3), or

• (b) where it is for a fixed period, on the expiry of that period, or

• (c) where the person appointed is an officer of the Minister or such other Minister, as described in paragraph (1), or of a public authority, upon he or she ceasing to be such an officer.

• (5) Nothing in paragraph (4) shall be construed so as to prevent the Minister, or such other Minister, in accordance with paragraph (1), from re-appointing, with the Minister’s consent, as an authorised officer a person to whom that paragraph relates.

• (6) An appointment of an authorised officer pursuant to Regulation 7 of the European Communities (Natural Habitats) Regulations 1997 that was in force immediately prior to the commencement of these Regulations is deemed to be an appointment under this Regulation, and paragraphs (2)(b), (3), (4) and (5) shall apply to such an appointment.

• (7) Failure by a Minister of Government to notify the Minister of an appointment pursuant to paragraph (1) shall not invalidate that appointment or anything done, for the purposes of these Regulations, by that authorised officer following his or her appointment.

(8)A certificate of appointment as described in paragraph (2)(a) shall, for the purposes of these Regulations, constitute any consent required to be given by the Minister or any other Minister of Government under these Regulations or the Principal Act, to enable the authorised officer lawfully to carry out his or her functions under these Regulations.

Functions of Authorised Officers

• (a) undertake surveillance of the natural habitats referred to in Article 2 of the Habitats Directive or of the species referred to in Article 1 of the Birds Directive or in Article 2 of the Habitats Directive or of the habitats of those species, or of the conservation status of the habitats and species referred to in this subparagraph,

• (b) undertake surveillance for the purpose of the preparation of a list of candidate sites of Community importance by virtue of Regulation 10(1) or of any proposed modification of any such list by virtue of Regulation 10(4) or of any proposed addition to any such list by virtue of Regulation 19,

• (c) undertake surveillance for the purpose of the preparation of the particulars of the candidate special protection areas or special protection areas by virtue of Regulation 15 or of any proposed modification of any such particulars,

• (d) undertake surveillance for the purpose of establishing whether or not these Regulations are being, and have been, complied with,

• (e) undertake surveillance generally for the purposes of giving effect to the Habitats Directive and the Birds Directive,

• (f) enter and inspect any land or premises for the purposes of performing any of his or her functions under these Regulations or of obtaining any information which he or she may require for such purposes,

• (g) enter on to any land to gain access to or entry to any other land or to any premises for the purposes of performing any of his or her functions under these Regulations or of obtaining any information which he or she may require for such purposes,

• (h) at all reasonable times, or at any time if he or she has reasonable grounds for believing that there is or may be a risk to the conservation status of the natural habitats or species referred to in Article 2 of the Habitats Directive or Article 1 of the Birds Directive, or that an offence under these Regulations has been, is being or is about to be committed at any lands or premises, or that evidence of any such offence is to be found at any lands or premises, enter any such lands or premises and bring onto those lands or premises such other persons, including a member of An Garda Síochána, or equipment or materials, as he or she may consider necessary,

• (i) at any time if he or she has reasonable grounds for suspecting there may be a risk to the conservation status of the natural habitats or species referred to in Article 2 of the Habitats Directive or Article 1 of the Birds Directive or the integrity of a European Site, or that an offence under these Regulations has been, is being or is about to be committed, involving the use of any vehicle,

• (i) halt and or board that vehicle or the vehicle by which that vehicle is transported, and

• (ii) require the driver of the vehicle or the vehicle by which that vehicle is transported to take the vehicle or vehicles to a place specified by the authorised officer, and such vehicle or vehicles may be detained at that place by the authorised officer for such period as he or she may consider necessary,

or

• (j) at any time if he or she has reasonable grounds for suspecting that a person’s activities may be a risk to the conservation status of the natural habitats or species referred to in Article 2 of the Habitats Directive or Article 1 of the Birds Directive, or that an offence under these Regulations has been, is being or is about to be committed by a person—

• (i) inform the person of any offence the authorised officer considers might arise from the aforesaid activities,

• (ii) inform the person of any of the requirements of these Regulations, the Birds Directive or the Habitats Directive, or

• (iii) request information from the person in relation to the aforesaid activities.

• (2) An authorised officer shall not enter into a private dwelling under this Regulation unless one of the following conditions applies—

• (a) the entry is effected with the consent of the occupier, or

• (b) the entry is authorised by a warrant issued under Regulation 6.

• (3) For the purposes of these Regulations, an authorised officer may, subject to paragraph (2), enter any premises or enter on to any lands.

• (4) Whenever an authorised officer enters on to any lands or any premises or boards any vehicle pursuant to these Regulations, he or she may do all things reasonably necessary for the purpose for which the entry is made and including, but not limited to, any of the following—

• (a) carry out an inspection,

• (b) carry out surveillance and examinations of the relevant natural habitats or species,

• (c) take photographs, record information on data loggers, make tape, electrical, digital, video or other recordings,

• (d) carry out tests and make copies of documents, including records kept in electronic form, found therein and take samples,

• (e) monitor any emission or effluent, including trade effluent or emissions or other matter, which is emitted, contained in or discharged from the lands or premises,

• (f) monitor noise and light emission and vibration,

• (g) monitor air quality,

• (h) carry out surveys, take samples, take levels, make excavations and carry out examinations of depth and nature of soil, subsoil or waters,

• (i) examine any plant and equipment or other object on the lands or premises,

• (j) examine any plant, animal or habitat on the lands or premises,

• (k) monitor, examine or inspect preventive or remedial works being carried out on the lands or premises,

• (l) require that the lands, premises or vehicle or any part of the lands or premises or anything in or on the lands or premises or vehicle shall be left undisturbed for a specified period,

• (m) request information from an occupier of the lands or premises, of any occupant of the vehicle or any person employed on the lands or premises or any other person on the lands or premises,

• (n) request the production of, or inspect, documents or records, including documents or records held in electronic form, or take copies of or extracts from any documents or records,

• (o) remove and retain documents and records, including documents and records held in electronic form, for such period as may be reasonable for further examination, which the authorised officer, having regard to all the circumstances, considers necessary for the purposes of exercising any of his or her functions under these Regulations,

• (p) remove and retain any object or plant or animal for such period as may be reasonable for further examination or for use in proceedings, or both, which the authorised officer, having regard to all the circumstances, considers necessary for the purposes of exercising any of his or her functions under these Regulations,

• (q) as appropriate, take, remove or destroy specimens or populations of plants or animals or vectors listed in the Third Schedule, and

• (r) do anything that any of these Regulations provide that an authorised officer shall do or may do, and do anything incidental to doing such a thing or things.

• (5) Any certificate or other evidence given, or to be given, in respect of any test, examination or analysis of any sample under this Regulation shall, in relation to that sample, be evidence, without further proof, of the result of the test, examination or analysis unless the contrary is shown.

• (6) A person shall not—

• (a) subject to paragraph (2), refuse to allow an authorised officer to enter any lands or premises or board any vehicle or to bring any person or equipment with him or her in the exercise of his or her functions,

• (b) obstruct or impede an authorised officer in the exercise of any of his or her functions,

• (c) give to an authorised officer information which is to his or her knowledge false or misleading in a material respect, or

• (d) without reasonable excuse, fail or refuse to comply with any requirement or instruction of an authorised officer.

(7)(a) A person who fails to comply with subparagraph (6)(a) or (6)(d) shall be guilty of an offence.

• (b) A person who fails to comply with subparagraph (6)(b) or (6)(c) shall be guilty of an offence.

(8)(a) An authorised officer may, in the exercise of any function conferred on him or her by these Regulations involving the removal of any vehicle or any other object or animal or plant or the bringing of any such thing to any place, or where he or she anticipates any obstruction in the exercise of any other function conferred on him or her by these Regulations, request An Garda Síochána to assist him or her in the exercise of such a function.

• (b) The Minister may request the assistance of An Garda Síochána in relation to any matter arising from these Regulations as he or she considers appropriate.

• (9) Where an authorised officer or member of An Garda Síochána has reasonable cause to suspect that a person has committed an offence under these Regulations he or she may require that person to provide him or her with his or her name and the address at which he or she ordinarily resides.

• (10) Where a person refuses or fails to give his or her name and address to an authorised officer or a member of An Garda Síochána when required under paragraph (9), or gives to the member or authorised officer a name or address that is false or misleading, that person shall be guilty of an offence.

• (11) A member of An Garda Síochána may arrest without a warrant a person who fails or refuses to give his or her name and address when demanded under paragraph (9) or gives a name or address which the member has reasonable grounds for believing is false or misleading.

• (12) Where a member of An Garda Síochána has reasonable cause to suspect that a person has committed an offence under these Regulations the member may without warrant arrest the person.

• (13) Nothing in this Regulation shall be taken to compel the production by any person of a record which he or she would be exempt from producing in proceedings in a court on the ground of legal professional privilege.

• (14) In the performance of his or her duties under these Regulations, an authorised officer shall have due regard to all reasonable health and safety considerations.

• (15) An authorised officer shall not be personally liable in any civil or criminal proceedings for anything done in the purported exercise of his or her functions under these Regulations if the court is satisfied that the act was reasonable and was done in good faith.

• (16) In this Regulation—

“record” includes, in addition to a record in writing—

• (a) a disc, tape, sound-track or other device, including an electronic device, in which information, sounds or signals are embodied so as to be capable, with or without the aid of some other instrument, of being reproduced in legible or audible form,

• (b) a film, tape or other device, including an electronic device, in which visual images are embodied so as to be capable, with or without the aid of some other instrument, of being reproduced in visual or audio-visual form, and

• (c) a photograph,

and any reference to a copy of a record includes—

• (i) in the case of a record to which subparagraph (a) applies, a transcript of the sounds or signals embodied in it,

• (ii) in the case of a record to which subparagraph (b) applies, a reproduction of the images embodied in it, and

• (iii) in the case of a record to which subparagraphs (a) and (b) apply, such a transcript together with such a reproduction.

Search warrant

• (a) the conservation status of the natural habitats or species referred to in Article 2 of the Habitats Directive,

• (b) the conservation status of the natural habitats or species referred to in Article 1 of the Birds Directive, or

• (c) the integrity of a European Site,

the authorised officer or the Minister by whom he or she was appointed may apply to the District Court for a warrant under this Regulation authorising the entry by the authorised officer onto or into the lands or premises.

• (2) Where an application pursuant to paragraph (1) is made, the authorised officer or the Minister by whom he or she was appointed shall, in applying for the warrant, give notice of such application to An Garda Síochána where he or she believes that the assistance of a member of An Garda Síochána may be required in the execution of said warrant.

• (3) If, on application being made to the District Court under this Regulation, the District Court is satisfied on the sworn information of the authorised officer that he or she has been prevented from entering lands or premises, the court may issue a warrant authorising that person, accompanied, if the court deems it appropriate, by another authorised officer or a member of An Garda Síochána as may be specified in the warrant, at any time or times within one month from the date of the issue of the warrant, on production of the warrant, if so requested, to enter the lands or premises concerned and exercise the functions referred to in Regulation 5.

Functions relating to off-road vehicles and recreational watercraft

• (a) may require of the person his or her name and address,

• (b) may instruct the person to leave the land or water concerned,

• (c) may instruct the person to remove from the land or water any off-road vehicle or recreational watercraft that belongs to the person or that is under his or her control, and

• (d) shall inform the person of the nature of the offence in respect of which it is suspected that person has been involved and the statutory consequences of failing to comply with a requirement or instruction under this paragraph.

• (2) Where a person—

• (a) refuses or fails to give his or her name and address to an authorised officer or a member of An Garda Síochána when required under paragraph (1),

• (b) gives to the authorised officer or the member of An Garda Síochána a name or address that is false or misleading, or

• (c) fails to comply with a instruction under paragraph (1),

he or she shall be guilty of an offence.

• (3) A member of An Garda Síochána may arrest without warrant a person—

• (a) who fails or refuses to give his or her name and address when required under paragraph (1) or gives a name or address which the member has reasonable grounds for believing is false or misleading,

• (b) who fails to comply with an instruction given under paragraph (1), or

• (c) whom the member has reason to believe has been committing an offence under Regulation 29 relating to the operation or use of any off-road vehicle or recreational watercraft, or under paragraph (4)(b) or (4)(e).

(4)(a) Where a person fails to comply with an instruction under paragraph (1), an authorised officer or a member of An Garda Síochána may remove or cause to be removed any off-road vehicle or recreational watercraft which the authorised officer or the member of An Garda Síochána has reason to believe was brought onto or placed on the land or brought onto or placed in or on water in contravention of Regulation 29 and may store or cause to be stored such off-road vehicle or recreational watercraft so removed.

• (b) Any person who obstructs, impedes or assists a person to obstruct or impede an authorised officer or a member of An Garda Síochána in the performance of his or her duty under this Regulation shall be guilty of an offence.

• (c) Where an off-road vehicle or recreational watercraft has been removed under this Regulation any person claiming to own, occupy, control or otherwise retain it, or any person the Minister or the Garda Commissioner or delegate officer has reason to believe may own it, the Minister or the Garda Commissioner or delegate officer shall serve or cause to be served upon each such person whose name and address can be ascertained by reasonable enquiry, a notice informing the person where the off-road vehicle or recreational watercraft may be claimed and recovered, requiring the person to claim and recover it within one month of the date of service of the notice and informing him or her of the statutory consequences of his or her failure to do so.

• (d) An off-road vehicle or recreational watercraft removed and stored under this Regulation shall be given to a person claiming possession of the off-road vehicle or recreational watercraft if, but only if, he or she makes a declaration in writing that he or she is the owner of the off-road vehicle or recreational watercraft or is authorised by its owner to claim it or is, for a specified reason, otherwise entitled to possession of it and gives an undertaking that the off-road vehicle or recreational watercraft will not subsequently be used in contravention of these Regulations and, at the discretion of the Minister or the Garda Commissioner or delegate officer, the person pays the amount of any expenditure reasonably incurred in removing and storing the off-road vehicle or recreational watercraft.

• (e) Any person who makes a declaration under subparagraph (d) knowing or believing that declaration to be false shall be guilty of an offence.

• (f) The Minister or the Garda Commissioner or delegate officer may dispose of, or cause to be disposed of, an off-road vehicle or recreational watercraft removed and stored under this Regulation if—

• (i) the owner of the off-road vehicle or recreational watercraft fails to claim it and remove it from the place where it is stored within one month of the date on which a notice under subparagraph (c) was served on him or her, or

• (ii) the name and address of the owner of the off-road vehicle or recreational watercraft cannot be ascertained by reasonable enquiry.

• (g) Where the Minister or the Garda Commissioner or delegate officer becomes entitled to dispose of, or cause to be disposed of, an off-road vehicle or recreational watercraft under subparagraph (f) and the off-road vehicle or recreational watercraft is, in his or her opinion, capable of being sold, the Minister or the Garda Commissioner or delegate officer shall be entitled to sell or cause to be sold the off-road vehicle or recreational watercraft for the best price reasonably obtainable and upon doing so shall pay or cause to be paid to the person who was the owner of the off-road vehicle or recreational watercraft at the time of its removal, where the name and address of the owner can be ascertained by reasonable enquiry, a sum equal to the proceeds of such sale after deducting therefrom any expenditure reasonably incurred in its removal, storage and sale.

• (h) Where the identity of the owner has not been ascertained after reasonable enquiry and the off-road vehicle or recreational watercraft is sold pursuant to subparagraph (g) the Minister or the Garda Commissioner or delegate officer, having deducted the sum of any expenditure reasonably incurred in the removal of the off-road vehicle or recreational watercraft, its storage and sale, may retain the deducted sum and the remainder shall be forfeited to the State.

• (i) No liability shall attach to the State, the Minister or to An Garda Síochána, or to an authorised officer or a member of An Garda Síochána, in relation to any damage caused to a vehicle or watercraft in the course of its removal, storage or disposal under this Regulation.

• (5) For the purposes of paragraph (4), where a member of An Garda Síochána has removed or caused to be removed any off-road vehicle or recreational watercraft, a member of An Garda Síochána may make arrangement for the transfer of that vehicle or watercraft to an authorised officer for storage and, following such transfer, the Minister shall, in consultation where appropriate with the Garda Commissioner or delegate officer or other member of An Garda Siochána, carry out, as appropriate, the functions in relation to the off-road vehicle or recreational watercraft set out in that paragraph.

• (6) The provisions of this Regulation are without prejudice to the exercise of the powers conferred by Regulation 35 in damage to European Sites.

PART 3

CONSERVATION OF NATURAL HABITATS AND HABITATS OF SPECIES

Priorities for designation

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

• (i) a natural habitat type or types in Annex I to the Habitats Directive,

• (ii) a species in Annex II to the Habitats Directive,

• (b) the conservation status of natural habitat types and or priority species,

• (c) the coherence of Natura 2000, and

• (d) the threats of degradation or destruction to which those sites are exposed.

Surveillance and monitoring

• (2) Any Minister of Government having responsibilities in respect of the fish species specified in any of the annexes of the Habitats Directive, and to the extent, if any, specified therein, shall undertake or cause to be undertaken surveillance and monitoring of the conservation status of the said fish species and their natural habitats referred to in Article 2 of the Habitats Directive with particular regard to priority natural habitat types and priority species.

• (3) The Minister shall undertake, or cause to be undertaken, surveillance and monitoring of European Sites.

• (4) The Minister shall take account of the surveillance and monitoring referred to in paragraphs (1), (2) and (3) in any modification of the list transmitted to the European Commission under Regulation 13(5).

• (5) The Minister shall undertake or cause to be undertaken surveillance and monitoring of the conservation status of the habitats and species referred to in Article 1 of the Birds Directive.

• (6) The Minister shall identify threats to—

• (a) the conservation status of the natural habitats and species referred to in Article 2 of the Habitats Directive,

• (b) bird species referred to in Article 1 of the Birds Directive, and

• (c) the integrity of the European Site or Sites,

for the purpose of developing such measures as he or she considers necessary including, where appropriate, threat response plans under Regulation 39.

• (7) Except in cases in which the Minister determines that the publication of such a report would pose a risk to a European Site or to species or habitats, any reports that are prepared by or on behalf of the Minister that reach conclusions regarding the conservation status of species, habitats or European Sites based on surveillance undertaken as referred to in paragraphs (1) and (2), shall be made publicly available as soon as possible on the Department’s website.

• (8) Subject to Regulation 53(3), the Minister may by licence authorise a person to disturb, take, trap, sample, tag or take samples from birds or animals or to take samples or specimens of plants or to carry out investigations on European Sites where he or she considers it to be necessary or appropriate for the purpose of meeting his or her responsibilities or those of another Minister of Government or public authority under Article 10 of the Birds Directive or Articles 11 and 18 of the Habitats Directive and he or she is fully satisfied—

• (a) that there is no satisfactory alternative and such authorisation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range,

• (b) that it is in the interest of protecting wild fauna and flora and conserving natural habitats or for the purposes of research and education, of re-populating and re-introducing these species and for the breeding operations necessary for these purposes, including the artificial propagation of plants, and

• (c) that he or she is satisfied that it will not affect the integrity of a European Site.

• (9) A licence given by the Minister under paragraph (8) shall be subject to such conditions, restrictions and limitations as the Minister shall consider appropriate and specifies in the licence.

• (10) A person may lawfully do anything authorised by a licence under this Regulation notwithstanding any provision of the Wildlife Acts 1976 to 2010 and for the avoidance of doubt shall not require a licence under those Acts to do anything so authorised.

• (11) A licence under this Regulation shall be called a “research and monitoring licence”.

• (12) The Minister may at any time amend or revoke a licence given under this Regulation or amend or add to its conditions, restrictions and limitations.

• (13) A person who contravenes any of the conditions, restrictions or limitations specified in a licence given under this Regulation, if applicable, as amended or added to under paragraph (12), shall be guilty of an offence.

Identification of sites for consideration as sites of Community importance

• (a) the natural habitat type or types in Annex I to the Habitats Directive which the site hosts, and

• (b) the species in Annex II to the Habitats Directive that are native to the State which the site hosts.

(2)(a) For animal species ranging over wide areas, these sites shall correspond to the places within the natural range of such species which present the physical or biological factors essential to their life and reproduction.

• (b) For aquatic species which range over wide areas the Minister shall propose such sites only where there is a clearly identifiable area representing the physical and biological factors essential to their life and reproduction.

• (3) A list of sites referred to in paragraph (1) which, for the avoidance of doubt, includes the indication referred to in subparagraphs (1)(a) and (1)(b), is in these Regulations referred to as a “list of candidate sites of Community importance”.

• (4) Where appropriate, the Minister may modify the list of candidate sites of Community importance having regard to the surveillance carried out pursuant to Regulation 9 or if he or she receives a request that a site be included in the list.

• (5) A list of candidate sites of Community importance which is modified under paragraph (4) is in these Regulations referred to as a “modified list of candidate sites of Community importance”.