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

• (i) animal species listed in Annex IV(a) to the Habitats Directive in their natural range pursuant to Article 12 of the Habitats Directive,

• (ii) plant species listed in Annex IV(b) to the Habitats Directive pursuant to Article 13 of the Habitats Directive,

• (iii) species of wild fauna and flora listed in Annex V to the Habitats Directive pursuant to Article 14 of the Habitats Directive,

• (iv) naturally occurring birds in the wild state,

the Minister shall, by notice, subject to paragraph (2), where he or she considers appropriate, direct that the activity shall not be carried out, caused or permitted to be carried out or continue to be carried out by any person in the European Site or part thereof or at any other specified land or may restrict or regulate the activity in the European Site or part thereof or at any other specified land, and each such notice shall be accompanied by a statement of the Minister’s reasons for making the decision.

• (2) For the avoidance of doubt, the activities to which Directions apply may include the operation or use of any off-road or other vehicle or recreational watercraft, or the carrying out of any other activity, including activities involving trampling or walking or riding animals on damaged, sensitive or rehabilitating habitats but without prejudice to Regulation 28, shall not, unless expressly provided in the Direction, apply to the lawful use of any vehicle or machinery or watercraft in the course of agriculture 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, or by an authorised officer in the performance of his or her functions, lawful use of a state owned or operated vehicle by An Garda Síochána, the Emergency Services or the Defence Forces, or the lawful use of a vehicle for the purposes of maintaining electricity, gas, water or telecommunications utility services.

• (3) A person who contravenes a Direction given pursuant to paragraph (1) shall be guilty of an offence.

• (4) Notwithstanding a Direction given under paragraph (1), the carrying out of an activity pursuant to and in accordance with a consent given under Regulation 30 shall not be a contravention of the Direction.

• (5) Subject to paragraph (6), it shall be a defence to a charge of committing an offence under paragraph (3) to prove that the accused took all reasonable steps and exercised all due diligence to avoid committing the offence.

• (6) Where the defence provided by paragraph (5) involves an allegation that the commission of the offence was due to the act or default of another person, the person charged shall not, without leave of the court, be entitled to rely on the defence unless, within a period ending 28 days before the hearing, he or she has served on the prosecutor a notice giving such information identifying or assisting in the identification of the other person as was then in his or her possession.

• (7) Where a person fails or refuses to comply with a Direction given pursuant to paragraph (1), the Minister may apply to a court of competent jurisdiction for an order requiring the person to comply with the Direction.

• (8) For the purposes of paragraph (7) “a court of competent jurisdiction” means either the Circuit Court for the circuit in which the relevant lands or part of the relevant lands concerned are situated or the High Court.

• (9) An application to the Circuit Court or the High Court for an order under paragraph (7) shall be by motion and the court when considering the matter may make such interim or interlocutory order as it considers appropriate having regard to the requirements of the Habitats Directive and the Birds Directive including the overall requirement of safeguarding the integrity of sites and ensuring that the overall coherence of Natura 2000 is protected.

• (10) These Regulations shall not affect the validity of a notice issued prior to the commencement of these Regulations under Regulation 4(2) of the European Communities (Natural Habitats) Regulations 1997 or under the European Communities (Birds and Natural Habitats Regulations) (Control of Recreational Activities) Regulations 2010.

• (11) The Minister may provide notification of the making by him or her of a Direction under this Regulation to such persons or organisations and in such manner as he or she considers appropriate for the purposes of the Direction.

Derogation consents in relation to activities, plans or projects referred to in Regulations 28 and 29

• (2) On receiving such an application, the Minister may request such additional information, if any, from the applicant as the Minister considers necessary to make a scientifically–based assessment of the impact of the activity as proposed, which may, if the Minister so determines, include a Natura Impact Statement.

• (3) Subject to paragraph (5), having determined that Regulation 31(1) or 32(1) does not apply, and having considered the information submitted with the application, any additional information provided in response to a request under paragraph (2) and any other information that he or she considers relevant to his or her consideration, and having caused a screening for Appropriate Assessment to be carried out, of which a record shall be kept, and, if necessary, an Appropriate Assessment pursuant to Regulation 42, and determined whether he or she is satisfied that the carrying out of the activity as proposed by the applicant will not, either individually or in combination with other activities, plans and projects, have a significant effect on, or adversely affect the integrity of, a European Site or cause any of the other effects referred to in Regulation 28(1) or 29(1), he or she may, if so satisfied, give consent in writing to the carrying out of the proposed activity, or, if not so satisfied, in writing refuse such consent, but without prejudice, if applicable, to his or her power to give consent under Regulation 43.

• (4) Before giving consent under paragraph (3), the Minister may, if appropriate, invite opinions of the public under Regulation 21.

• (5) Where it appears to the Minister that an application for consent under paragraph (1) relates to an activity, plan or project for which a licence is required under Regulation 51, 52 or 53, then the Minister shall so inform the applicant in writing and such a licence shall be obtained by the applicant before an application under paragraph (1) shall be considered by the Minister.

• (6) In giving consent under paragraph (3) the Minister may impose such conditions, limitations and restrictions as he or she considers necessary to ensure that the activity, individually or in combination with other activities, plans and projects shall not cause any of the effects referred to in Regulation 28(1) or 29(1).

• (7) The Minister may vary any conditions, limitations and restrictions imposed under paragraph (6), or revoke any consent given under paragraph (3) if in his or her opinion, the conditions attached to such consent have been breached, or the continuation of such consent would be liable to destroy, or significantly alter, damage or interfere with the species and habitats for which the site may be or has been designated and the Minster shall communicate in writing his or her decision to the person concerned being the owner, occupier or user of the land concerned.

• (8) The Minister shall give reason for—

• (a) a decision to give consent under paragraph (3),

• (b) a decision to refuse to give consent under paragraph (3), and

• (c) a decision to attach conditions, vary conditions or revoke consent under paragraph (6) or (7).

• (9) A person who fails to comply with a condition referred to in paragraph (6) shall be guilty of an offence.

Ministerial consents and referrals to An Bord Pleanála

• (a) it would require an Appropriate Assessment under the Habitats Directive,

• (b) it would require environmental impact assessment under the EIA Directive by reason of its likely effect on a European Site or on a Natural Heritage Area,

• (c) it would be likely, individually or in combination with other plans or projects, to have a significant effect on a European Site or on a Natural Heritage Area, or

• (d) of any other relevant provision in the Planning and Development Acts 2000 to 2011 in relation to exempted development,

he or she shall, if the applicant wishes to pursue the application, refer the matter to the Board under Section 5(8) of the Planning and Development Act 2000 for a determination as to whether the application relates to development which is not exempted development.

• (2) In seeking a determination from the Board under paragraph (1), the Minister shall include a copy of the application for consent and any other relevant information submitted with the application and shall inform the Board of the reasons why he or she considers that the development may not be exempted development.

• (3) Where the Minister has sought a determination from the Board under paragraph (1), he or she shall, as soon as may be, inform the applicant of that fact and shall give the applicant a copy of the request to the Board.

• (4) The Board may seek additional information from the applicant and if this is not provided within the period specified by the Board, or any further period that may be agreed by the Board, the Board shall not make a determination in relation to the referral and both the request for a determination and the application for consent will be deemed to be withdrawn.

• (5) Where the Minister is informed by the Board that the applicant has not provided the further information requested within the time period specified and that the referral by the Minister is deemed withdrawn, the Minister shall inform the applicant of this and that the application for consent is also therefore deemed withdrawn.

• (6) The Board shall make a decision as soon as possible on a request by the Minister under paragraph (1) and shall inform the Minister of its decision and the reasons for the decision.

• (7) Where the Minister is informed by the Board that it has determined that the application for consent does not relate to development or, if it does relate to development that such development is exempted development, the Minister shall inform the applicant of that determination, and shall make a decision on the application for consent as soon as possible and shall inform the applicant of that decision and of his or her reasons for that decision.

• (8) Where the Minister is informed by the Board that it has determined that the application for consent relates to development which is not exempted development, the Minister shall not make a decision on the application for consent and shall inform the applicant of the determination of the Board and that it would not be lawful to proceed with the development in question without planning permission.

• (9) A person proposing to carry out a development to which paragraph (1) applies shall not carry out any works on the development unless the Minister has informed the applicant of his decision to grant consent under paragraph (7) or, where appropriate, the planning permission has been obtained.

• (10) A person who contravenes paragraph (9) shall be guilty of an offence.

Ministerial consents and referrals to the Minister for Agriculture, Fisheries and Food

• (a) it would be likely, individually or in combination with other plans or projects, to have a significant effect on a European Site or on a Natural Heritage Area,

• (b) it would be likely to have a significant effect on the environment, or

• (c) it would be likely to have a significant effect on a nature area as defined in those Regulations,

he or she shall, if the applicant wishes to pursue the application, refer the matter for determination by the Minister for Agriculture, Fisheries and Food.

• (2) The Minister shall notify the applicant of the referral to the Minister for Agriculture, Fisheries and Food.

(3)(a) The Minister shall notify the applicant that the Minister for Agriculture, Fisheries and Food may require further information.

• (b) Where such information is not provided within a time period to be specified by the Minister for Agriculture, Fisheries and Food the referral by the Minister and the application for consent will be deemed to be withdrawn.

• (4) If the Minister is informed by the Minister for Agriculture, Fisheries and Food that the applicant has not provided the further information requested within the time period specified and that the referral by the Minister is deemed withdrawn, the Minister shall inform the applicant of this and that the application for consent is also therefore deemed withdrawn.

• (5) If the Minister is informed by the Minister for Agriculture, Fisheries and Food of his or her determination that the application for consent does not relate to an activity that requires his or her consent—

• (a) the Minister shall inform the applicant of the determination of the Minister for Agriculture, Fisheries and Food, and

• (b) the Minister shall make a decision on the application for consent and inform the applicant of that decision.

• (6) If the Minister is informed by the Minister for Agriculture, Fisheries and Food of his or her determination that the application for consent does relate to an activity that requires his or her consent, the Minister shall not make a decision on the application for consent but shall inform the applicant of the determination of the Minister for Agriculture, Fisheries and Food and that it would not be lawful to proceed without such consent.

• (7) A person proposing to undertake an activity to which paragraph (1) applies shall not carry out such an activity unless the Minister has informed the applicant of his or her decision to grant consent under paragraph (5) or, where appropriate, the Minister for Agriculture, Fisheries and Food has given his or her consent to the activity.

• (8) A person who contravenes paragraph (7) shall be guilty of an offence.

Objections relating to Ministerial Directions

• (2) An objection within the meaning of paragraph (1) shall be accompanied by a declaration made by the person objecting which shall state that the person—

• (a) has or is entitled to an interest in or over the land comprising the site or specified land, or part thereof, or

• (b) has or is entitled to an interest in or over land outside the site or specified land whose interest may potentially be affected by the Direction given pursuant to Regulation 28(1) or 29(1),

or both, and which shall state the nature of the interest.

• (3) A public authority may, not later than three months from the date of the notice, request a review or modification of the Direction given pursuant to Regulation 28(1) or 29(1).

• (4) Where an objection pursuant to paragraph (1) or a request for a review or modification of a Direction under paragraph (3) has been received, the Minister shall—

• (a) having consulted with such other persons, if any, as he or she considers ought to be consulted, and

• (b) having considered any such objection received or any such requests for review or modification of the Direction,

decide to amend or not to amend the Direction, within a period of six months from the date on which the notice was issued under Regulation 28(1) or 29(1).

• (5) Subject to Part 5, the Minister shall decide to amend the Direction given pursuant to Regulation 28(1) or 29(1) only if he or she is satisfied that such amendment, either individually or in combination with other activities, plans or projects, will not have a significant effect on, or adversely affect the integrity of a European Site or will not lead to the deterioration of natural habitats or the habitats of species for which the site is designated.

• (6) The Minister shall notify in writing his or her decision under paragraph (5) to any person making an objection within the meaning of paragraph (1) in respect of the site or specified land concerned, or to any other person that the Minister considers may be affected by the decision, and shall give reason for the decision made pursuant to paragraph (5).

Review of Ministerial Directions

• (2) The Minister shall be required to carry out a review pursuant to a request of the kind referred to in paragraph (1) only where, in the case of the first request to review it, that request is made no earlier than the first anniversary of the giving of the Direction and in relation to any subsequent request, the period of three years has elapsed since the completion of a previous review in respect of that Direction.

• (3) Where, having carried out a review of a Direction pursuant to paragraph (1) above, the Minister is satisfied that the Direction is no longer appropriate, he or she shall modify or revoke it.

• (4) The Minister shall give notice in writing to the applicant of any decision made under this Regulation, together with the reason for that decision.

General provisions for the prevention of damage to European Sites

• (a) carries out, on land within or outside a European Site, any plan or project or activity that may have a significant effect on, or adversely affect the integrity of, a European Site, or

• (b) enters or occupies any European Site, or brings onto or places or uses or releases in any European Site any animal or object, including but not limited to—

• (i) any off-road vehicle, recreational watercraft, plant and equipment, tractor or engine,

• (ii) machinery for the extraction or mining of natural resources including, but not limited to trees, vegetation, minerals, rock, soil, gravel, sand, turf or peat,

where such action or the use or presence on the European Site of such an animal or object is likely to have a significant effect on, or adversely affect the integrity of, a European Site, shall be guilty of an offence.

(2)(a) Subject to subparagraph (b), it shall be a defence to a charge of committing an offence under this Regulation to prove that the accused took all reasonable steps and exercised all due diligence to avoid committing the offence.

• (b) Where the defence provided by this paragraph involves an allegation that the commission of the offence was due to the act or default of another person, including the allegation that the other person committed an offence under Regulation 65, the person charged shall not, without leave of the court, be entitled to rely on the defence unless, within a period ending 28 days before the hearing, he or she has served on the prosecutor a notice giving such information identifying or assisting in the identification of the other person as was then in his or her possession.

(3)(a) Where an authorised officer appointed under Regulation 4 or a member of An Garda Síochána finds on a European Site any animal or object referred to in paragraph (1)(b), or where a person has failed to comply with an instruction under paragraph (4)(a)(ii) or (iii) the authorised officer or member of An Garda Síochána may remove or cause to be removed, by whatever means he or she considers appropriate, from the land any such animal or object and bring or cause it to be brought to such place as he or she may determine for storage or impoundment as appropriate and, having done so, may, as he or she considers necessary or appropriate, transfer or cause it to be transferred from any place to any other place.

• (b) An animal or object may be detained in accordance with paragraph (a) by the authorised officer or member of the Garda Síochána—

• (i) for such period as he or she may consider necessary where he or she has reasonable cause to believe that the animal or object is likely to be used in committing an offence under these Regulations,

• (ii) for the purposes of—

• (I) further examination including forensic examination,

• (II) for use as evidence in proceedings, or

• (III) for establishing the ownership of the animal or object, or

• (iii) for any combination of the reasons referred to in (i) and (ii) of this subparagraph.

(4)(a) Without prejudice to paragraph (3), where an authorised officer appointed under Regulation 4 or a member of An Garda Síochána has reason to believe that a person is committing or has committed an offence under paragraph (1), the member or authorised officer—

• (i) may demand of the person his or her name and address,

• (ii) may instruct the person to desist from carrying out any plan or project or activity on the land,

• (iii) may instruct the person to remove from the land any object or animal that belongs to the person or that is under his or her control,

• (iv) may, subject to subparagraph (b), instruct the person to leave the land concerned, and

• (v) 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 demand or instruction under this subparagraph.

• (b) An instruction under subparagraph (a)(iv) shall not apply to a person who makes it known to the person giving the instruction that he or she is the lawful owner or occupier of the land concerned or a member of his or her immediate family and entitled to be present, or his or her servant, agent or co-worker.

• (c) A person who falsely claims, for the purpose of subparagraph (b), to be the lawful owner or occupier of the land concerned or a member of his or her immediate family and entitled to be present, or his or her servant, agent or co-worker, shall be guilty of an offence.

• (d) Where a person—

• (i) refuses or fails to give his or her name and address to an authorised officer or a member of An Garda Síochána when demanded under subparagraph (a)(i), or gives to an authorised officer or a member of An Garda Síochána a name or address that is false or misleading,

• (ii) refuses or fails to comply with an instruction given under subparagraph (a)(ii) or (a)(iii),

• (iii) not being the legal owner or legal occupier of the land concerned or a member of his or her immediate family and entitled to be present, or his or her servant or agent or co-worker, refuses or fails to comply with an instruction under subparagraph (a)(iv),

he or she shall be guilty of an offence.

• (5) A member of the Garda Síochána may arrest without a warrant a person—

• (a) whom the member finds committing an offence under paragraph (1).

• (b) who fails or refuses to give his or her name and address when demanded under subparagraph (4)(a)(i) or gives a name or address which the member has reasonable grounds for believing is false or misleading,

• (c) who fails to comply with an instruction given under subparagraph (4)(a)(ii) or (4)(a)(iii),

• (d) who, not being the legal owner or legal occupier of the land or a member of his or her immediate family and entitled to be present, or his or her servant or agent or co-worker, refuses or fails to comply with an instruction under subparagraph (4)(a)(iv), or

• (e) who the member has reasonable grounds for believing has falsely claimed, pursuant to subparagraph (4)(b), to be the lawful owner or occupier of the land concerned or a member of his or her immediate family and entitled to be present, or his or her servant, agent or co-worker.

(6)(a) Where an object or animal has been removed under paragraph (3) of this Regulation, the Minister, the Garda Commissioner or delegate officer shall serve or cause to be served upon the owner or user of the animal or object or the person under whose control the animal or object was at the time of its removal, whose name and address can be ascertained by reasonable enquiry, a notice informing the person of how, pursuant to this paragraph, the owner or person otherwise entitled to its possession may apply to take possession of it and inviting such a person to make such application, in the case of an object, within one month of the date of service of the notice, and in the case of an animal, within ten days 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.

• (b) An application referred to in subparagraph (a) shall be made by registered post addressed to the Minister or to the Garda Commissioner, as the case may be, and such an application shall be accompanied by—

• (i) a statutory declaration that the applicant is the lawful owner of the animal or object or is otherwise lawfully entitled to its possession,

• (ii) a signed and witnessed statement by the applicant that the animal or object will not be used for purposes contrary to paragraph (1) of this Regulation, and

• (iii) where the person claiming possession of the animal or object is not its lawful owner, material establishing the person’s lawful entitlement to its possession.

• (c) The Minister, the Garda Commissioner or the delegate officer, as the case may be, shall respond to an application under subparagraph (a) within 14 days of his or her receiving it and he or she may, having consulted with and taken reasonable steps to determine a time or times suitable to the applicant, appoint a time or times upon which the applicant may, having complied with subparagraph (k), take possession of the animal or object.

• (d) Should the Minister or the Garda Commissioner or the delegate officer, as the case may be, determine that, while a valid application has been made and the ownership or other claim to the animal or object has been established, the animal or object should continue to be detained for any of the reasons referred to in paragraph (3), he or she shall inform the applicant accordingly, setting out the reasons for the continuing detention and indicating that he or she will contact the applicant again to inform him or her of when the animal or object has become available for the claimant to take possession of it in accordance with subparagraph (c).

• (e) Should the Minister or the Garda Commissioner or the delegate officer have reason to believe that a person who has made an application under subparagraph (a) is not, or has not established that he or she is, entitled to claim possession of the animal or object claimed, or that the ownership of the animal or object is in dispute or has not been established to his or her satisfaction, he or she may respond to the applicant—

• (i) requiring the applicant to provide additional information in support of his or her application, or

• (ii) refusing the application for stated reasons which shall set out why the Minister, the Garda Commissioner or the delegate officer has failed to be satisfied that the applicant is entitled to claim possession of the animal or object.

• (f) A person whose application has been refused under subparagraph (e)(ii) may reapply.

• (g) Any person who falsely claims ownership or entitlement to claim possession of an animal or object under this Regulation shall be guilty of an offence.

• (h) A person receiving possession of an animal or object under this paragraph shall—

• (i) before he or she is given possession of the animal or object, pay to the Minister or the Garda Commissioner or the delegate officer, as the case may be, the amount of any expenditure reasonably incurred in removing, transporting, impounding and keeping or storing the animal or object, which payment shall be receipted, and the money so received shall be applied for the purpose of meeting that expenditure.

• (ii) before he or she removes the animal or object, sign a receipt in respect of the animal or object.

• (i) The Minister, the Garda Commissioner or delegate officer may dispose of, or cause to be disposed of, an object or animal removed and stored or impounded under this Regulation, if—

• (i) the owner of the animal or object or other person claiming that he or she can establish that he or she is, for a specified reason, otherwise entitled to its possession, fails to make application pursuant to subparagraph (a) within, in the case of an object, one month and in the case of an animal, ten days of the date on which a notice under subparagraph (a) was served on him or her, or

• (ii) the name and address of the owner of the animal or object has not been ascertained following reasonable enquiry within, in the case of an object, one month and in the case of an animal, ten days of the date on which the Minister or the Garda Commissioner or the delegate officer took or received custody of the animal or object

• (iii) the owner or person entitled to possession of the animal or object fails to take possession of it pursuant to subparagraph (c) at a time or times appointed by the Minister or the Garda Commissioner or the delegate officer in accordance with that subparagraph, the Minister, the Garda Commissioner or the delegate officer, as the case may be, having taken reasonable steps to facilitate its transfer, at the place where it is held, to such owner or person

• (iv) the owner or person entitled to possession of the animal or object refuses or fails to comply with subparagraph (k), or

• (v) the applicant fails to provide information requested under subparagraph (e)(i) within 14 days of the request.

• (j) Where the Minister, the Garda Commissioner or delegate officer becomes entitled to dispose of or cause to be disposed of an animal or object under subparagraph (i) and the animal or object is, in his or her opinion, capable of being sold, the Minister, the Garda Commissioner or delegate officer shall, if he or she considers it appropriate, be entitled to sell or cause to be sold the object 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 object or animal at the time of its removal, where the identity and address of that person is subsequently established, a sum equal to the proceeds of such sale after deducting therefrom any expenditure reasonably incurred in its removal, storage or impoundment, and sale.

• (k) Where an animal or an object is sold pursuant to subparagraph (j), and the identity of the owner has not been ascertained within six months of the date on which the Minister, the Garda Commissioner or the delegate officer took or received custody of it, the Minister, the Garda Commissioner or the delegate officer as the case may be, having deducted the sum of any expenditure reasonably incurred in the removal of the animal or object, its impoundment, keeping, storage and sale, may retain the deducted sum and the remainder shall be forfeited to the State.

(7)(a) Without prejudice to subparagraph (b), on the advice of a qualified veterinary practitioner, the Minister, the Garda Commissioner or delegate officer may cause an animal removed or impounded under this Regulation to be humanely destroyed by that practitioner, where the practitioner advises such destruction on grounds that the animal—

• (i) poses a threat to human or animal safety or health,

• (ii) is vicious or dangerous, or

• (iii) is suffering and should be euthanised.

• (b) The Minister, the Garda Commissioner or delegate officer may at any time cause an animal removed or impounded under this Regulation that is of a species or kind listed in Part 2 of the Third Schedule—

• (i) if it is a vertebrate, to be humanely destroyed,

• (ii) if it is an invertebrate, to be destroyed in accordance with good practice for the destruction of that species as an invasive species.

• (c) No liability shall attach to, nor any compensation be payable by, the Minister, the Garda Commissioner, delegate officer or the State to any person in respect of an animal destroyed pursuant to this paragraph.

• (8) No liability shall attach to the Minister, or an authorised officer, or to the Garda Commissioner, or a delegate officer, or a member of An Garda Síochána, or to the State in respect of any damage done to an object or injury incurred or illness contracted by an animal in the course of or as a consequence of actions carried out by such persons pursuant to this Regulation.

• (9) Where the Minister forms the opinion that there is a substantial and imminent risk to a European Site or its protected habitats or species and that action is required so that the risk may be reduced, mitigated or prevented, he or she may authorise a person or persons to access and enter on any land, together with such other persons under his or her direction, vehicles, equipment and materials as may be appropriate for that purpose, whether within or outside that European Site, and take such actions as the Minister considers necessary.

• (10) A person who obstructs, impedes or otherwise interferes with such action referred to in paragraph (9) shall be guilty of an offence.

(11)(a) Subject to subparagraph (b), the Minister or any person referred to in paragraph (9) shall not enter on any land without giving at least 24 hours prior notice of their intention to do so to any owner or occupier of the land whose identity and whereabouts can be ascertained by the Minister by reasonable enquiry.

• (b) The requirements of subparagraph (a) shall not apply in any case where the Minister is of opinion that, by reason of the particular circumstances of the case, it is necessary to enter immediately on the land concerned and take such actions as are referred to in paragraph (9).

• (12) Where an action referred to in paragraph (9) has been necessitated as a consequence of any unlawful action, the Minister may recover as a simple contract debt in any court of competent jurisdiction from the person or persons who carried out such unlawful action any expenses reasonably incurred by the Minister in that behalf.

• (13) Where a person, not being a person referred to in paragraph (12), suffers loss or damage in consequence of the exercise by the Minister of a power conferred on him or her by this Regulation, the Minister shall pay to the person compensation in respect of the loss or damage.

• (14) The amount of any compensation payable pursuant to paragraph (13) shall, in the absence of an agreement on same, be determined under the provisions of Regulation 41(3).

• (15) For the purposes of paragraph (3), where a member of An Garda Síochána has removed or caused to be removed any animal or object, a member of An Garda Síochána may make arrangements for the transfer of that animal or object to an authorised officer for storage or impoundment and, following such transfer, the Minister shall, in consultation, where appropriate, with the Garda Commissioner or delegate officer or other member of An Garda Síochána, carry out, as appropriate, the functions in relation to the animal or object set out in paragraphs (5) and (6).

• (16) Any person who obstructs or 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 duties under this Regulation shall be guilty of an offence.

• (17) A statutory declaration of ownership or a warrant made pursuant to this Regulation may be presented as evidence in court.

Restoration of land in a European Site following damage

• (a) it is in contravention of the requirements of these Regulations, or of the Planning and Development Acts 2000 to 2011,

• (b) it required any statutory consent for the carrying out of such an activity, plan or project but was undertaken without such consent,

• (c) it is in contravention of any of the terms or conditions of a consent referred to in subparagraph (a) or (b), or

• (d) it is otherwise unlawful,

the Minister may, by Direction issued in writing, require the owner, occupier or user of the land or the person who carried out the activity, plan or project, or such of those persons as he or she considers appropriate, to restore the land in accordance with the Direction.

• (2) Where an activity, plan or project referred to in paragraph (1) has been carried out, and has resulted in the production of mineral or other resources, including but not limited to soil, gravel, timber or the product of turf-cutting or peat extraction, any person who removes, or places in or on a vehicle for removal, any such resources, save in accordance with paragraph (5), shall be guilty of an offence.

(3)(a) Every Direction referred to in paragraph (1) shall specify the restoration works to be undertaken and the period within which the works specified are to be completed.

• (b) Any person who fails to comply with a Direction under paragraph (1) shall be guilty of an offence.

• (4) If, within the period specified in a Direction or within such extended period as the Minister may allow having regard to the nature of the restoration works to be carried out, any steps required by the Direction to be taken have not been taken, the Minister may take such action as he or she considers necessary, including authorising a person or persons to access and enter on the land to take those steps, together with such other persons under his or her direction, vehicles, equipment and materials as may be appropriate for that purpose, and the Minister may recover any expenses reasonably incurred by him or her in that behalf as a simple contract debt, in any court of competent jurisdiction, from the person or persons to whom the Direction was made.

(5)(a) Where the Minister forms the view that the restoration of a site would be best achieved following the removal from the site of any resource to which paragraph (2) applies,

• (i) he or she may remove or cause to be removed any such resource, including authorising a person or persons to access and enter on the land for that purpose, together with such other persons under his or her direction, vehicles, equipment and materials as may be appropriate for that purpose,

• (ii) the Minister may cause the resource to be stored or retained in a place specified by him or by her, and

• (iii) the Minister may dispose of or cause to be disposed of any such resource and, if that resource is, in his or her opinion, capable of being sold, the Minister shall be entitled to sell or cause to be sold that resource for the best price reasonably obtainable.

• (b) If a resource is sold pursuant to subparagraph (a)(iii), the proceeds of the sale shall, following deduction by the Minister of the sum of any expenditure reasonably incurred in the removal and sale of the resource, be forfeited to the State.

• (6) Having regard to the need to restore the site and, in the light of progress towards restoration and any problems or obstacles that may emerge in relation to restoration, the Minister may, by Direction under paragraph (1), amend or revoke a previous Direction given under that paragraph, including the specification of any additional restoration works required to achieve restoration.

• (7) Any person who, by act or omission, impedes or obstructs a person authorised under paragraph (4) or (5) from accessing or entering on land together with such other persons under his or her direction, vehicles, equipment and materials as may be appropriate for the purposes of removing a resource or carrying out any required works under this Regulation, shall be guilty of an offence.

• (8) If the Minister has reason to believe—

• (a) that an activity, plan or project that has been carried out within or outside a European Site pursuant to a consent has caused damage to that site or to species or habitat types for which the site was selected as a European Site, and

• (b) that such consent was obtained by a person or persons knowingly supplying false information or knowingly failing to divulge information or data that could be relevant to the determination by a public authority of whether, pursuant to Article 6(3) of the Habitats Directive, it could agree to the plan or project, having ascertained that the plan or project, individually or in combination with other plans or projects, would not have a significant effect on, or adversely affect the integrity of, a European Site,

the Minister may make application to a court of competent jurisdiction for a restoration warrant, and the court, having investigated the matter, may give the Minister a restoration warrant, and, if it does so, it may also give an order quashing the consent referred to in subparagraph (b).

• (9) A restoration warrant given by a court on foot of an application by the Minister under paragraph (8), shall specify that the Minister may, by Direction issued in writing, and accompanied by the order of the court, require the owner, occupier or user of the land or the person who carried out the activity, plan or project, or such of those persons as the court considers appropriate, to restore the land in accordance with the Direction, and paragraphs (3), (4), (5), (6) and (7) shall apply in relation to that Direction.

• (10) Before deciding to issue a Direction under paragraph (1) or to seek a restoration warrant under paragraph (8), the Minister shall consult with the Environmental Protection Agency regarding liabilities that may arise under the Environmental Liability Directive.

Appeals to Appeals Officer

• (a) may appeal against a Direction given pursuant to Regulation 28(1) or 29(1) by giving notice in writing to the Minister not later than 28 days after notice of the Direction or the decision was given, and

• (b) may appeal against a decision on any objections received under Regulation 33(1) by giving notice in writing to the Minister not later than 28 days after notice of the decision was given.

• (2) An appeal under paragraph (1) shall state the reasons for the appeal, and shall be accompanied by a declaration made by the person appealing which shall state that the person—

• (a) has or is entitled to an interest in or over the land comprising the site or specified land, or part thereof, or

• (b) has or is entitled to an interest in or over land outside the site or specified land, which interest may be affected by the Direction given pursuant to Regulation 28(1) or 29(1) or the decision on any objections received under Regulation 33(1),

or both, and which shall state the nature of the interest.

• (3) A person on whom a notice is served under Regulation 28 or any other person having or being entitled to an interest in or over the land comprising the site or specified land to which such notice refers, or part thereof, or any other person having or being entitled to an interest in or over land outside the site or specified land, which interest may be affected by—

• (a) a decision to refuse to give consent under Regulation 30, or

• (b) a decision to attach conditions, vary conditions or revoke consent under Regulation 30,

may, not later than 28 days after the day on which that decision is given, serve notice of appeal on the Minister against that decision.

• (4) An appeal within the meaning of paragraph (3) shall be accompanied by a declaration made by the person appealing which shall state that the person—

• (a) has or is entitled to an interest in or over the land comprising the site or specified land, or part thereof, or

• (b) has or is entitled to an interest in or over land outside the site or specified land, which interest may be affected by the Direction given pursuant to Regulation 28(1) or the decision on any objections received under Regulation 33(1),

or both, and which shall state the nature of the interest.

• (5) The Minister shall appoint in writing, on such terms and conditions, subject to the prior approval of the Minister for Finance, as are specified in the appointment, a person or persons with appropriate knowledge and experience and such other qualifications as the Minister considers appropriate to enable such person or persons to properly consider appeals under paragraph (1).

• (6) The Minister shall provide a person appointed pursuant to paragraph (5) to consider an appeal under paragraph (1) with such assistance and information as may reasonably be required in order to assist the person to determine the appeal.

• (7) A person appointed pursuant to paragraph (5) to consider an appeal under paragraph (1) shall—

• (a) be independent in the performance of his or her functions under these Regulations as a person so appointed,

• (b) subject to subparagraph (a), comply with guidelines prepared and issued by the Minister in respect of the procedure to be followed with respect to the consideration of any appeal under paragraph (1),

• (c) consider any written or oral submissions made by or on behalf of the appellant and by or on behalf of the Minister,

• (d) make a decision in writing determining the appeal as soon as is practicable in all the circumstances of the case, and

• (e) send a copy of the decision to the appellant and the Minister together with the person’s reasons for the decision.

(8)(a) Any decision of an appeals officer under subparagraph (7)(d) relating to an appeal to which paragraph (1) or paragraph (3) relates shall have regard to the criteria set out in Regulations 28(1) and 29(1).

• (b) Any decision of an appeals officer under subparagraph (7)(d) shall be in accordance with the Habitats Directive and the Birds Directive.

• (9) A person affected by a decision under subparagraph (7)(d) or the Minister may appeal to the High Court—

• (a) on a point of law from the decision, and

• (b) not later than 28 days after the appellant under this paragraph received a copy of the decision and the reasons for the decision pursuant to subparagraph (7)(e).

• (10) A decision of the High Court following an appeal under paragraph (9) shall, where appropriate, specify the period within which effect shall be given to the decision.

• (11) The Minister shall—

• (a) if applicable, give effect to a decision under subparagraph (7)(d) as soon as is practicable after the period referred to in subparagraph (9)(b) has elapsed without any appeal under paragraph (9) having been made in respect of the decision, and

• (b) if applicable, give effect to a decision of the High Court on an appeal under paragraph (10)—

• (i) within the period, if any, specified in the decision,

• (ii) if subparagraph (b)(i) is not applicable, as soon as is practicable.

• (12) A person appointed pursuant to paragraph (5)—

• (a) shall be paid such remuneration and allowances as the Minister, with the consent of the Minister for Finance, determines,

• (b) may be provided with such assistance and administrative support as the Minister, with the consent of the Minister for Finance, determines as reasonably necessary to enable the person to perform the functions under these Regulations as a person so appointed, and

• (c) may resign from the appointment by submitting his or her resignation in writing given to the Minister.

• (13) The Minister may revoke the appointment of a person appointed pursuant to paragraph (5) for stated reasons.

• (14) Pending the outcome of an appeal under subparagraph (1)(b) and, if applicable, an appeal to the High Court under paragraph (9), a Direction given pursuant to Regulation 28(1) or 29(1), or a decision on any objections received under Regulation 33(1) shall, unless withdrawn by the Minister, continue in force.

Injunctions

• (a) have a significant effect on a European Site,

• (b) have an adverse effect on the integrity of a European Site,

• (c) cause the deterioration of natural habitats or the habitats of species or the disturbance of the species for which the European Site may be or has been designated pursuant to the Habitats Directive, or has been classified or may be classified, pursuant to the Birds Directive, insofar as such disturbance could be significant in relation to the objectives of the Birds Directive or the Habitats Directive,

• (d) cause pollution or deterioration of habitats or any disturbance affecting birds within the meaning of Article 4 of the Birds Directive, or

• (e) have an adverse effect on the conservation status of—

• (i) animal species listed in Annex IV(a) to the Habitats Directive in their natural range pursuant to Article 12 of the Habitats Directive,

• (ii) plant species listed in Annex IV(b) to the Habitats Directive pursuant to Article 13 of the Habitats Directive, or

• (iii) species of wild fauna and flora listed in Annex V to the Habitats Directive pursuant to Article 14 of the Habitats Directive, or

• (iv) birds referred to in Article 1 of the Birds Directive,

the Minister may make an application under this Regulation to a court of competent jurisdiction for an order to require the taking of action or the refraining from taking action as the court considers necessary, for the purposes of ensuring compliance with the Habitats Directive or the Birds Directive, to cease, avoid, reverse, reduce or eliminate the adverse effect, pollution, deterioration or disturbance.

• (2) For the purposes of this Regulation “a court of competent jurisdiction” means either the Circuit Court for the circuit in which the relevant lands or part of the relevant lands concerned are situated or the High Court.

• (3) An application to the Circuit Court or the High Court for an order under this Regulation shall be by motion and the court when considering the matter may make such interim or interlocutory order, if any, as it considers necessary in the light of the requirements of the Habitats Directive and the Birds Directive including the overall requirement of safeguarding the integrity of sites and ensuring that the overall coherence of Natura 2000 is protected.

Threat response plans

• (a) have a significant effect on a European Site,

• (b) have an adverse effect on the integrity of a European Site,

• (c) cause the deterioration of natural habitats or the habitats of species or the disturbance of the species for which the European Site may be or has been designated pursuant to the Habitats Directive or has been classified, or may be classified, pursuant to the Birds Directive, insofar as such disturbance could be significant in relation to the objectives of the Birds Directive or the Habitats Directive,

• (d) cause pollution or deterioration of habitats or any disturbance affecting birds within the meaning of Article 4 of the Birds Directive,

• (e) have an adverse effect on the conservation status of—

• (i) animal species listed in Annex IV(a) to the Habitats Directive in their natural range pursuant to Article 12 of the Habitats Directive,

• (ii) plant species listed in Annex IV(b) to the Habitats Directive pursuant to Article 13 of the Habitats Directive,

• (iii) specimens of wild fauna and flora listed in Annex V to the Habitats Directive pursuant to Article 14 of the Habitats Directive, or

• (iv) the species of birds referred to in Article 1 of the Birds Directive, their eggs, nests and habitats, or

• (f) involve the introduction, establishment, dispersal or continuing presence of a plant or animal including, but not limited to, a plant or animal referred to in the Third Schedule,

or that a threat, pressure or hazard, or a combination of threats, pressures or hazards, referred to in this paragraph may develop in the absence of co-ordinated targeted preventive measures to prevent it, the Minister shall, where he or she considers it necessary or appropriate for the purposes of meeting the objectives of the Habitats Directive or the Birds Directive, develop and implement an appropriate threat response plan to cease, avoid, reverse, reduce, eliminate or prevent the threat, pressure, hazard, combination of threats, pressures or hazards, adverse effect, pollution, deterioration or disturbance.

• (2) The Minister shall, where he or she considers it necessary for the purposes of meeting the objectives of the Birds Directive—

• (a) pursuant to Article 2 of the Birds Directive, develop and implement a threat response plan or plans incorporating the requisite measures to maintain the population of one or more species of naturally occurring birds in the wild state at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level,

• (b) pursuant to Article 3 of the Birds Directive, develop and implement a threat response plan or plans incorporating the requisite measures to preserve, maintain or re-establish a sufficient diversity and area of habitats for one or more species of naturally occurring birds in the wild state including the creation of protected areas, as appropriate, the upkeep and management in accordance with the ecological needs of habitats inside and outside the protected zones, the re-establishment of destroyed biotopes and the creation of biotopes, and

• (c) in developing a threat response plan under subparagraphs (a) or (b), consult with any public authority that he or she considers likely to have a role in the development or implementation of such a plan.

• (3) Public authorities shall, at the Minister’s request—

• (a) engage in consultations regarding the development and implementation of a threat response plan,

• (b) provide such information as is relevant to the development and implementation of the threat response plan,

• (c) exercise their functions relating to the development and implementation of the threat response plan insofar as the requirements of the Habitats Directive and Birds Directive apply to those functions, and

• (d) co-ordinate their functions referred to in subparagraph (c) with other public authorities.

• (4) The Minister may invite such persons or organisations as he considers appropriate to contribute to the development and or implementation of a threat response plan.

• (5) Where appropriate, a threat response plan may be supported by sectoral incentive measures.

• (6) A draft threat response plan shall be made available for public comment under Regulation 21 and, upon adoption, a threat response plan shall be made available to the public.

• (7) For the purposes of this Regulation, a threat response plan shall—

• (a) identify the actions required of public authorities for its implementation,

• (b) specify timelines for the achievement of its objectives,

• (c) specify a date for the publication of a review of the plan, and

• (d) be published by the Minister on the Department’s website in a readily accessible format.

• (8) Notwithstanding Section 40 of the Principal Act, the Minister may, as part of a threat response plan, authorise the destruction of vegetation on uncultivated land at any time and Section 40(1) of that Act shall not apply in relation to any destruction of vegetation on uncultivated land so authorised.

• (9) The Minister may establish a group of persons for the monitoring, co-ordination, implementation and review of a threat response plan.

Administrative agreements

• (2) Before concluding an administrative agreement with a public authority under paragraph (1) or, if a public authority is to be a party to such an agreement, the Minister shall, where another Minister of Government has statutory responsibility for that public authority, consult with that Minister.

• (3) An administrative agreement concluded under this Regulation shall be made available to the public on the website of the Minister’s Department, and if the agreement has been concluded with a public authority or a public authority is a party to the agreement, on the website of that public authority also.

• (4) For the avoidance of doubt, an administrative agreement may form an element of a threat response plan.

Compensation

• (b) Where a public authority modifies, varies the conditions of, or revokes a consent by virtue of Regulation 44(3), the public authority shall, subject to paragraphs (5) and (6), pay to the holder of such consent, by way of compensation, an amount determined in the manner described in paragraph (2)(a).

(2)(a) Subject to subparagraph (b), the amount of compensation payable under paragraph (1) shall be determined by reference to the difference between the antecedent and subsequent value of the land or of an interest in the land consequent on the refusal, modification, variation, or revocation of consent, Direction or Order which amount shall be offset by the value of any amounts which the owner, occupier or user is receiving under any environmental grant scheme operated by the State including the Rural Environment Protection Scheme, the Agri-Environmental Options Scheme, the National Parks and Wildlife Service Farm Plan Scheme or any other publicly-funded agri-environmental scheme.

• (b) Any amounts which the proposed activity would have attracted by way of grant aid or other payment from any Minister of Government or the European Union or any public authority, or jointly from any of these, if consent had been given under Regulation 30, shall not be taken into account in assessing the difference between the antecedent and subsequent value of the land.

• (3) Any claims for payment of compensation under this Regulation shall, in default of agreement, be determined by arbitration under the Acquisition of Land (Assessment of Compensation) Act 1919, and sections 69 to 83 of the Lands Clauses Consolidation Act 1845, in all respects as if the claims arose in relation to compulsory acquisition of land.

• (4) A claim for compensation under this Regulation shall be made not later than six months from—

• (a) the date of issue of the decision by the Minister under Regulation 30(3), or

• (b) the date of the conclusion of negotiation or proceedings under paragraph (5), whichever is the later.

• (5) Compensation under this Regulation shall not be payable for any loss arising from a refusal of consent for an activity for as long as—

• (a) the Minister is in negotiation with the owner or occupier, as the case may be, for the purchase by agreement of the land,

• (b) the Minister is in negotiation with the owner or occupier, as the case may be, to enter into a management agreement,

• (c) proceedings for the compulsory purchase of the lands are in train, or

• (d) any appeal or appeal proceedings are in train in relation to—

• (i) a refusal of consent to an activity under Regulation 30, or

• (ii) a Direction under Regulation 28 or 29.

• (6) Save where the refusal of consent or the modification or revocation of a decision or consent or the Direction or the order results in the discontinuance of a use to which the land has been lawfully put or in the curtailment of such use of land by the person concerned in the period of five years immediately preceding such refusal, modification, or revocation or in the curtailment of such use of land, compensation will not be payable where the proposed activity would adversely affect—

• (a) one or more specific natural habitat types listed in Annex I to the Habitats Directive,

• (b) one or more species or the habitats of those species listed in Annex II to the Habitats Directive,

• (c) one or more species of bird or their habitat or other habitat specified in Article 4 of the Birds Directive, or

• (d) the integrity of a European Site.

• (7) Compensation will not be payable in relation to an activity—

• (a) for which consent is sought under Regulation 30, and the activity is unlawfully carried out by the owner, occupier, or user at any time prior to the refusal of consent to an activity under Regulation 30,

• (b) to which a Direction to a person is made under Regulation 28 or 29, and the activity is unlawfully carried out by the owner, occupier, or user at any time prior to the making of a Direction to a person under Regulation 28 or 29,

• (c) to which an order against a person is granted under Regulation 38, and the activity is unlawfully carried out by the owner, occupier or user at any time prior to the granting of an order against a person under Regulation 38, or

• (d) for which a consent pursuant to Regulation 30 is given subject to conditions, limitations, restrictions or requirements and the activity is carried out by the owner, occupier or user in breach of any such conditions, limitations, restrictions or requirements.

• (8) Notwithstanding paragraphs (1), (2) and (3), compensation will not be payable in respect of any prohibition or restriction of sea-fishing in accordance with the European Communities (Natural Habitats and Birds) (Sea-fisheries) Regulations 2009.

• (9) Where—

(a)the Minister refuses consent to an activity under Regulation 30,

• (b) the Minister makes a Direction to a person under Regulation 28 or 29, or

• (c) the Minister is granted an order against a person under Regulation 38,

the Minister may make an order declaring that it would not be just and reasonable in the particular circumstances that payment of compensation should be prevented by the provisions of paragraph (6).

• (10) The Minister may, with the consent of the Minister for Finance, establish a scheme or schemes of compensation, for the purposes of these Regulations, for particular categories of activity.

• (11) A person may be compensated financially or by such other arrangements including, but not limited to, relocation, substitution or such other accommodation as may be agreed between the Minister and that person.

• (12) Any financial compensation payable under this Regulation may be made by the Minister either by way of a single payment or by way of a payment of an annual sum to a person having, or claiming to be entitled to, an interest in or over the land on which the compensation is payable.

PART 5

APPROPRIATE ASSESSMENT

Screening for Appropriate Assessment and Appropriate Assessment of implications for European Sites

• (2) A public authority shall carry out a screening for Appropriate Assessment under paragraph (1) before consent for a plan or project is given, or a decision to undertake or adopt a plan or project is taken.

• (3) At any time following an application for consent for a plan or project, a public authority may give a notice in writing to the applicant, directing him or her to—

• (a) furnish a Natura Impact Statement and the applicant shall furnish the statement within the period specified in the notice, and

• (b) furnish any additional information that the public authority considers necessary for the purposes of this Regulation.

• (4) Unless the public authority otherwise directs, where an applicant for consent for a plan or project who, having been directed in accordance with paragraph (3), fails to furnish a Natura Impact Statement within the period specified in the notice under that paragraph, or any additional period that may be agreed by the public authority, the application shall be deemed to be withdrawn.

(5)(a) A Natura Impact Statement shall, in addition to addressing the issues referred to in the interpretation contained in Regulation 2(1), include such information or data as the public authority considers necessary, and specifies in a notice given under paragraph (3), to enable it to ascertain if the plan or project will affect the integrity of the site.

• (b) Where appropriate, a Natura Impact Statement shall include, in addition—

• (i) the alternative solutions that have been considered and the reasons why they have not been adopted,

• (ii) the imperative reasons of overriding public interest that are being relied upon to indicate that the plan or project should proceed notwithstanding that it may adversely affect the integrity of a European site,

• (iii) the compensatory measures that are being proposed.

• (6) The public authority shall determine that an Appropriate Assessment of a plan or project is required where the plan or project is not directly connected with or necessary to the management of the site as a European Site and if it cannot be excluded, on the basis of objective scientific information following screening under this Regulation, that the plan or project, individually or in combination with other plans or projects, will have a significant effect on a European site.

• (7) The public authority shall determine that an Appropriate Assessment of a plan or project is not required where the plan or project is not directly connected with or necessary to the management of the site as a European Site and if it can be excluded on the basis of objective scientific information following screening under this Regulation, that the plan or project, individually or in combination with other plans or projects, will have a significant effect on a European site.

(8)(a) Where, in relation to a plan or project for which an application for consent has been received, a public authority makes a determination that an Appropriate Assessment is required, the public authority shall give notice of the determination, including reasons for the determination of the public authority, to the following—

• (i) the applicant,

• (ii) if appropriate, any person who made submissions or observations in relation to the application to the public authority, or

• (iii) if appropriate, any party to an appeal or referral.

• (b) Where a public authority has determined that an Appropriate Assessment is required in respect of a proposed development it may direct in the notice issued under subparagraph (a) that a Natura Impact Statement is required.

• (9) Where a public authority is required to conduct an Appropriate Assessment pursuant to paragraph (6) in relation to a plan or project that it proposes to undertake or adopt, it shall—

• (a) prepare a Natura Impact Statement,