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

• (b) compile any other evidence including, but not limited to, scientific evidence that is required for the purposes of the Appropriate Assessment, and

• (c) submit a Natura Impact Statement together with evidence compiled under subparagraph (b) to the Minister not later than six weeks before it proposes to adopt or undertake the plan or project to which the Natura Impact Statement and evidence relates.

• (10) A public authority that has, pursuant to paragraph (9), prepared a Natura Impact Statement, shall not, without the agreement of the Minister, conclude an Appropriate Assessment of the plan or project to which that statement relates earlier than six weeks after the date on which it submitted the Natura Impact Statement to the Minister, and shall take account of any submissions made to it by the Minister.

• (11) An Appropriate Assessment carried out under this Regulation shall include a determination by the public authority under this Regulation pursuant to Article 6(3) of the Habitats Directive as to whether or not a plan or project would adversely affect the integrity of a European site and the assessment shall be carried out by the public authority before a decision is taken to approve, undertake or adopt a plan or project, as the case may be.

• (12) In carrying out an Appropriate Assessment under paragraph (11) the public authority shall take into account each of the following matters—

• (a) the Natura Impact Statement,

• (b) any other plans or projeccts that may, in combination with the plan or project under consideration, adversely affect the integrity of a European Site,

• (c) any supplemental information furnished in relation to any such report or statement,

• (d) if appropriate, any additional information sought by the authority and furnished by the applicant in relation to a Natura Impact Statement,

• (e) any information or advice obtained by the public authority,

• (f) if appropriate, any written submissions or observations made to the public authority in relation to the application for consent for proposed plan or project,

• (g) any other relevant information.

• (13) A public authority may, for the purposes of conducting an Appropriate Assessment, if it considers it appropriate, invite the opinion of the general public and, if it does so, it shall take such steps for that purpose as it considers necessary.

• (14) Where a public authority is required to make a decision in relation to giving any consent for a plan or project within a time limited by any enactment, that time period shall not, in a case in which a requirement is made by the public authority under paragraph (4), include the period beginning on the day the requirement is made and ending eight weeks after the day of receipt by the public authority concerned of the requested further information or evidence.

• (15) For the avoidance of doubt, notwithstanding subsection (10) of section 85 of the Environmental Protection Agency Act 1992 , the appropriate period referred to in that subsection shall not, in a case in which a request is made by the Environmental Protection Agency under paragraph (3), include the period beginning on the day such requirement is made and ending eight weeks after the day of receipt by the Environmental Protection Agency of the requested further information or evidence.

• (16) Notwithstanding any other provision of these Regulations, a public authority shall give consent for a plan or project, or undertake or adopt a plan or project, only after having determined that the plan or project shall not adversely affect the integrity of a European site.

• (17) Subject to any other provision of these Regulations—

• (a) Consent for a plan or project may be given where a public authority has made modifications to a plan or project or attached conditions to the consent where the authority is satisfied to do so having determined that the a plan or project would not adversely affect the integrity of the European site if it is carried out in accordance with the consent and the said modifications or conditions attaching thereto.

• (b) A public authority shall not adopt or undertake, or grant any consent for, a plan or project containing any conditions, restrictions or requirements purporting to—

• (i) permit the deferral of the collection of information required for a screening for Appropriate Assessment or for an Appropriate Assessment or the completion of a screening for Appropriate Assessment or an Appropriate Assessment until after the consent has been given,

• (ii) accept an incomplete Natura Impact Statement, or

• (iii) permit or facilitate the avoidance of compliance with the conditions set out in Article 6(4) of the Habitats Directive.

(18)(a) A public authority shall make available for inspection any determination that it makes in relation to a plan or project and provide reasons for that determination, as soon as may be after the making of the determination or giving the notice, as appropriate, by members of the public during office hours of the offices of the authority and shall also make the determination or notice available in electronic form including by placing the documents on the authority’s website.

• (b) Information that is identified by a person applying for consent for a plan or project as being of a commercially sensitive nature shall, provided and for so long as it could be withheld under European Directive 2003/4/EC on public access to environmental information be exempted by the public authority from the requirements of subparagraph (a).

• (c) Information that if made publicly available could pose a risk to the conservation of protected species or habitats may be exempted from the requirements of subparagraph (a).

• (19) Without prejudice to the duties of public authorities under this Regulation, the Minister may, giving his or her reasons for so doing, request any public authority responsible for adopting or undertaking a plan or project, or granting or issuing a decision or consent referred to in paragraph (1) under this Regulation, to conduct an Appropriate Assessment under this Regulation of any plan or project and the relevant public authority shall comply with that request.

• (20) For the avoidance of doubt, notwithstanding the fact that the making, adoption and consent procedures relating to plans and projects which fall under the Planning and Development Acts 2000 to 2011 do not come within the scope of these Regulations, a public authority shall, pursuant to Article 6(3) of the Habitats Directive, take cognisance of such plans and projects in assessing any effects that might arise when such plans or projects are considered in combination with any activities, plans or projects for which the public authority is undertaking screening for Appropriate Assessment or Appropriate Assessment.

(21)(a) Where a public authority, referred to in this paragraph as “the first authority”, has carried out a screening for Appropriate Assessment or an Appropriate Assessment in relation to a plan or project, any other public authority, referred to in this Regulation as “the second authority”, that is required to carry out a screening for Appropriate Assessment or an Appropriate Assessment of the same plan or project shall take account of the screening for Appropriate Assessment or Appropriate Assessment of the first authority in relation to that plan or project, and of any information, including a Natura Impact Statement that was prepared for consideration by the first authority or another second authority in relation to the plan or project.

• (b) In taking account of a screening for Appropriate Assessment or Appropriate Assessment in relation to a plan or project and of a Natura Impact Statement, the second authority shall consider the extent to which the scope of that screening for Appropriate Assessment or Appropriate Assessment or Natura Impact Statement covers the issues that would be required to be addressed by the second authority in a screening for Appropriate Assessment or Appropriate Assessment of the plan or project in view of the scope of the consent to be given by it, and shall identify any issues that have not, in that regard, been adequately addressed.

• (c) Subject to subparagraph (b) and without prejudice to its right to request all such information as it considers necessary to carry out a screening for Appropriate Assessment or Appropriate Assessment, the second authority may limit its requirement for information, including a Natura Impact Statement, to those issues that it determines have not been adequately addressed for the purposes of the second authority in the process of screening for Appropriate Assessment and Appropriate Assessment by the first authority or by another second authority.

• (d) Where a plan or project requires two or more consents, each of which would require screening for Appropriate Assessment or Appropriate Assessment, the public authorities may carry out, following joint consultation, a joint screening for Appropriate Assessment or a joint Appropriate Assessment.

• (e) Where two or more public authorities propose to carry out a joint screening for Appropriate Assessment or a joint Appropriate Assessment pursuant to subparagraph (d), the public authorities concerned shall so inform the proponent of the plan or project and provide him or her with a single contact address for correspondence, and they may agree that one public authority shall, in consultation with the others, lead the process and or co-ordinate correspondence with the proponent.

• (f) For the avoidance of doubt, this paragraph applies to consents under the Planning and Development Acts 2000 to 2011 and to screening for Appropriate Assessments and Appropriate Assessments carried out thereunder.

• (22) Notwithstanding any provision of any statute listed in the Second Schedule that provides for the consent for a plan or project to which this Regulation applies to be obtained by default on the failure of the public authority to provide a response within a specified timescale or otherwise, that provision shall not have effect in respect of any plan or project to which this Regulation applies.

• (23) For the avoidance of doubt, a plan or project referred to in this Regulation includes a plan or project that is within, partially within or outside a European Site.

• (24) For the avoidance of doubt, in relation to a plan or project that is likely to affect more than one European Site or an area that is within more than one European Site, the screening for Appropriate Assessment and Appropriate Assessment shall address the impact of the plan or project, individually or in combination with other plans and projects, on each of the sites likely to be affected.

Proposed plans or projects and imperative reasons of overriding public interest

• (a) set out the imperative reasons of overriding public interest that necessitate the carrying out of the plan or project,

• (b) propose the compensatory measures that are necessary to ensure that the overall coherence of the Natura 2000 network is protected,

• (c) prepare a statement of case that imperative reasons of overriding public interest exist and of the compensatory measures that are required, and

• (d) forward the said statement of case together with details of the proposed plan or project and Natura Impact Statement to the Minister.

• (2) A statement of case referred to in subparagraph (1)(c) shall specify—

• (a) the considerations that led to the assessment by the public authority that the plan or project would adversely affect the integrity of a European site,

• (b) the reasons for the forming of the view by the public authority that there are no alternative solutions (including the option of not proceeding with the plan or project or part thereof),

• (c) the reasons for the forming of the view by the public authority that imperative reasons of overriding public interest apply to the plan or project, and

• (d) the compensatory measures that are being proposed as necessary to ensure the overall coherence of Natura 2000, including if appropriate, the provision of compensatory habitat.

• (3) In relation to a European Site that hosts a priority natural habitat type or priority species, the only imperative reasons of overriding public interest that may be considered are those relating to—

• (a) human health,

• (b) public safety,

• (c) beneficial consequences of primary importance to the environment, or

• (d) subject to paragraph (5), and having obtained an opinion from the European Commission, other imperative reasons of overriding public interest.

• (4) In relation to a European Site that does not host a priority natural habitat type or priority species, the imperative reasons of overriding public interest may also include those of a social or economic nature.

• (5) In invoking imperative reasons of overriding public interest under subparagraph (3)(d) the public authority shall advise the Minister why he or she should be satisfied to request an opinion from the European Commission.

• (6) A public authority shall make a statement of case referred to in subparagraph (1)(c) available for inspection, as soon as may be after it is prepared and forwarded to the Minister as appropriate, by members of the public during office hours of the offices of the authority and shall also make the statement available in electronic form including by placing the documents on the authority’s website.

(7)(a) Where the Minister receives a statement of case under paragraph (1) relating to a European Site that does not host a priority habitat type or priority species, he or she shall, as soon as possible, consider whether—

• (i) imperative reasons of overriding public interest exist,

• (ii) an absence of alternative solutions has been established, and

• (iii) the compensatory measures proposed are sufficient to ensure the overall coherence of Natura 2000 is protected.

• (b) Where the Minister considers it appropriate, he or she may—

• (i) consult with such other Minister of the Government, having regard to the functions of that other Minister, and

• (ii) consider any views of a Minister of the Government consulted pursuant to subparagraph (b)(i) and which are received by the Minister before he or she issues a notice under paragraph (8) or (9).

• (8) Where the Minister forms the opinion that imperative reasons of overriding public interest exist, that an absence of alternative solutions has been established, and that the compensatory measures, or revised or modified compensatory measures, as the case may be, are sufficient to ensure that the overall coherence of the Natura 2000 network is protected, he or she shall as soon as possible issue a notice to this effect to the public authority and the public authority may decide to consent to—

• (a) the plan or project or

• (b) that part of the plan or project that would have an adverse effect on the integrity of a European Site.

• (9) Where the Minister forms the opinion that imperative reasons of overriding public interest do not exist, or that an absence of alternative solutions has not been established or that the compensatory measures, or revised or modified compensatory measures, as the case may be, are not sufficient to ensure that the overall coherence of the Natura 2000 network is protected, he or she shall as soon as possible issue a notice to this effect to the public authority and the public authority shall not consent to—

• (a) the plan or project, or

• (b) that part of the plan or project that would have an adverse effect on the integrity of a European Site.

• (10) Where the Minister issues a notice under paragraph (8) he or she shall inform the Commission of the matter, including the compensatory measures proposed.

• (11) The public authority shall make available for inspection by members of the public during office hours at the office of the authority, and may also publish on the internet a notice issued to the authority under paragraph (8) or (9).

(12)(a) Where the Minister receives a statement of case under subparagraph (1)(c) relating to a European Site that hosts a priority habitat type or priority species, he or she shall, as soon as may be, consider whether—

• (i) imperative reasons of overriding public interest exist,

• (ii) an absence of alternative solutions has been established, and

• (iii) the compensatory measures proposed are sufficient to ensure the overall coherence of Natura 2000 is protected.

• (b) Where the Minister considers it appropriate, he or she may—

• (i) consult with such other Minister of the Government, having regard to the functions of that other Minister, and

• (ii) consider any views of a Minister of the Government consulted pursuant to subparagraph (b)(i) and which are received by the Minister before he or she issues a notice under paragraph (17), (18) or (19).

• (13) Where the Minister forms the opinion that imperative reasons of overriding public interest comprising only a reason or reasons set out in subparagraphs (3)(a) to (3)(c) exist, that an absence of alternative solutions has been established, and that the compensatory measures, or revised or modified compensatory measures as the case may be, are sufficient to ensure that the overall coherence of the Natura 2000 network is protected, the Minister shall issue a notice to this effect to the public authority and the public authority may consent to—

• (a) the plan or project, or

• (b) that part of the plan or project that would have an adverse effect on the integrity of a European Site.

(14)(a) Where the Minister considers that imperative reasons of overriding public interest may exist and may comprise or include a reason or reasons other than the reasons set out in subparagraphs (3)(a) to (3)(c), that an absence of alternative solutions has been established, and that the compensatory measures proposed are sufficient to ensure the overall coherence of Natura 2000 is protected, he or she shall consider whether the opinion of the Commission should be sought in relation to the matter.

• (b) Where the Minister proposes not to seek the opinion of the Commission pursuant to subparagraph (a) he or she shall, in addition to any consultation that may have taken place under subparagraph (12)(b), as soon as possible consult with such other Minister of the Government as the Minister considers appropriate having regard to the functions of that other Minister and request that the other Minister furnish his or her views as soon as possible.

• (c) The Minister shall consider any views received from any other Minister of the Government consulted under subparagraph (b) where those views are received by the Minister before he or she decides whether to seek the opinion of the Commission under subparagraph (a).

• (15) Where the Minister—

(a)having formed an opinion in accordance with paragraph (14)(a)

• (b) having sought the opinion of the Commission in relation to the matter, and

• (c) having considered the opinion of the Commission,

he or she shall issue a notice to the public authority,

• (i) authorising the public authority to consent to the plan or project, subject to such conditions or other requirements as the Minister may specify, or

• (ii) directing the public authority not to consent to the plan or project, and

• (iii) giving his or her reasons for the decision conveyed in said notice.

• (16) A public authority, having received a notice pursuant to paragraph (15)—

• (a) shall consent to the plan or project, subject to such conditions or other requirements as the Minister has specified, where the Minister has given his or her authorisation, or

• (b) shall not consent to the plan or project, where the Minister has so directed.

• (17) Where the Minister—

• (a) forms the opinion that imperative reasons of overriding public interest do not exist, or

• (b) forms the opinion that the imperative reasons of overriding public interest comprise or include a reason or reasons other than those in subparagraphs(4)(a) to (4)(c) and he or she has decided not to seek the opinion of the Commission in relation to the matter, or

• (c) forms the opinion that the compensatory measures, or revised or modified compensatory measures as the case may be, are not sufficient to ensure that the overall coherence of the Natura 2000 network is protected,

he or she shall issue a notice to this effect to the public authority and the public authority shall not consent to—

• (i) the plan or project, or

• (ii) that part of the plan or project that would have an adverse effect on the integrity of a European Site.

• (18) Where the Minister issues a notice under paragraph (15) he or she shall inform the Commission of the matter, including the compensatory measures proposed.

• (19) The public authority shall make available for inspection by members of the public during office hours at the office of the authority, and may also publish on the internet a notice issued to the authority under paragraph (15) or (16).

• (20) The provisions of this Regulation shall not apply to a candidate special protection area.

Consent by public authorities

• (2) A public authority may, for the purposes of these Regulations, attach conditions to any consent or at any time vary such conditions as the public authority deems appropriate, or revoke such consent if, in the opinion of the public authority, 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 public authority shall communicate in writing anything determined pursuant to this paragraph to the persons concerned.

• (3) A public authority shall give reason for—

• (a) a decision to give consent,

• (b) a decision to refuse to give consent, or

• (c) a decision to attach conditions, vary conditions or revoke consent.

• (4) This Regulation shall not apply to planning authorities in the exercise of their functions under the Planning and Development Acts 2000 to 2011.

Compensatory measures

• (a) agrees to a plan or project under Regulation 43, or

• (b) affirms or modifies its decision or approval under Regulation 43,

it shall take all necessary steps to secure that any compensatory measures approved by the Minister under Regulation 43 are taken in a timely manner so as to ensure that the overall coherence of Natura 2000 is protected.

Review of existing plans

• (a) is not yet completed at the date of the making of these Regulations and may continue or commence after the date of the making of these Regulations, or

• (b) is not yet completed at the date on which a relevant site becomes a European Site and may continue or commence after the date on which the relevant site becomes a European Site,

and the public authority has not conducted a screening for Appropriate Assessment or an Appropriate Assessment of the implications for the European Site of the plan in view of the site’s conservation objectives before deciding to undertake, or give any approval for that plan where the plan—

• (i) is likely to have a significant effect on the European Site, either individually or in combination with other plans or projects, and

• (ii) is not directly connected with or necessary to the management of the European Site,

then the public authority shall review its decision or approval for the plan, applying the provisions of Regulations 42 and 43 with the appropriate modifications, and it may thereupon affirm, modify or revoke its decision or approval.

• (2) The Minister may request a public authority to carry out a review of a plan in accordance with paragraph (1) and the public authority shall comply with such request.

• (3) For the purposes of this Regulation, a decision, including a decision to adopt or undertake, or give approval for a plan, may include those adopted, undertaken or approved pursuant to any of the enactments set out in the Second Schedule to these Regulations.

• (4) In determining whether to give consent to a proposal that would in the normal course fall to be determined under a plan that is subject to review pursuant to a request under paragraph (1) or pursuant to a requirement under paragraph (2), a public authority shall not take into account that plan in support of that proposal pending the outcome of a review under this Regulation.

Assessments relating to the same subject matter

• (a) an Appropriate Assessment pursuant to the Habitats Directive, and

• (b) an Environmental Impact Assessment pursuant to the EIA Directive or an Environmental Assessment pursuant to the SEA Directive,

relating to the same subject matter, the assessments referred to in subparagraphs (a) and (b) shall clearly be distinguished in terms of their respective scope and conclusions, although the processes in subparagraphs (a) and (b) may be carried out concurrently and draw on common data and information.

Minister’s advice and specific guidance

PART 6

PROTECTION OF FLORA AND FAUNA

Prohibition on introduction and dispersal of certain species

• (a) is not—

• (i) ordinarily resident in or is not a regular visitor to the State in a wild state, or

• (ii) of a kind that is domesticated or that is in the normal course the subject of human husbandry,

• (b) is included in Part 2A of the Third Schedule in any place specified in relation to such animal in the third column of Part 2A of the Third Schedule, or

• (c) is included in Part 2B of the Third Schedule in any place specified in relation to such animal in the third column of Part 2B of the Third Schedule,

shall be guilty of an offence.

• (2) Save in accordance with a licence granted under paragraph (7), any person who plants, disperses, allows or causes to disperse, spreads or otherwise causes to grow in any place specified in relation to such plant in the third column of Part 1 of the Third Schedule, any plant which is included in Part 1 of the Third Schedule, shall be guilty of an offence.

• (3) Subject to paragraph (4), it shall be a defence to a charge of committing an offence under paragraph (1) or (2) to prove that the accused took all reasonable steps and exercised all due diligence to avoid committing the offence.

• (4) Where the defence provided by paragraph (3) 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.

(5)(a) In this Regulation, an animal or plant listed in the Third Schedule shall mean such an animal or plant or a hybrid of any such animal or plant or any breed, strain, sport, variety, cultivar or other infraspecific taxon of such plant or animal in relation to the entire State or, where limited for such an animal or plant, the particular areas set forth in the Third Schedule for each such animal or plant.

• (b) For the avoidance of doubt, an animal or plant of a species to which the Third Schedule refers shall include specimens of such species under any scientific synonym, vernacular name or trade name by which it may be referred to.

• (6) In this Regulation, “confinement” means a place in which an animal is secure from escaping and from which its eggs, larvae, young, any life stage or resting stage, or any part from which an adult of the animal could develop are secure from being dispersed or escaping.

(7)(a) One or more persons may make an application for a licence, under this paragraph, for the purposes of complying with the requirements of paragraph (1) or (2).

• (b) The Minister may seek from the applicant any information that he or she considers necessary for consideration of the application.

• (c) The Minister may grant or refuse to grant, or revoke, such a licence, and shall give reasons for his or her decision and for any conditions imposed under subparagraph (f).

• (d) In making a decision under subparagraph (c), the Minister shall take account of the requirements of the Habitats Directive and the Birds Directive and in particular the requirements of Article 22(b) of the Habitats Directive, and he or she shall take account of such advice or information as he or she considers appropriate in relation to any animal or plant to which the licence application relates.

• (e) The Minister shall grant a licence under this paragraph only if he or she is satisfied that the grant of the licence will not pose a threat to the objectives of the Birds Directive or the Habitats Directive.

• (f) A licence granted under this paragraph shall be subject to such conditions, restrictions, limitations or requirements as the Minister considers appropriate.

• (g) Any conditions, restrictions, limitations or requirements to which a licence under this paragraph is subject shall be specified in the terms of the licence.

(h)Paragraphs (1) and (2) do not apply to anything done under and in accordance with the terms of a licence granted by the Minister under subparagraph (c).

• (8) For the purposes of this Regulation, “the State” includes the territorial waters of the State and the exclusive economic zone of the State.

• (9) For the avoidance of doubt, the Minister may develop threat response plans under Regulation 39 for the purposes of this Regulation and, generally, for the purposes of addressing the exclusion, eradication or control of species referred to in the Third Schedule and any other species that the Minister considers poses a threat to the habitats or species protected under these Regulations.

• (10) Where the Minister considers that a species poses a threat to the objectives of the Birds and Habitats Directives, including the protection of European Sites, of habitats, and of species of flora and fauna, including birds, he or she may authorise the destruction by appropriate means including, where appropriate, by shooting, of any of the animals referred to in paragraph (1)(a), or listed in Part 2 of the Second Schedule.

• (11) Where an animal that is of a species referred to in Part 2B of the Third Schedule, or that is a hybrid of such a species, is one of a herd that is being farmed for slaughter for commercial meat production, it shall not be an offence under this Regulation to transport the animal from one place of enclosure to another for farming purposes or to transport the animal for sale or for slaughter for commercial meat production.

• (12) For the purposes of paragraph (11), “slaughter” does not include the killing of an animal during or following hunting.

Prohibition on dealing in and keeping certain species

• (a) an animal or plant listed in Part 1 or Part 2 of the Third Schedule,

• (b) anything from which an animal or plant referred to in subparagraph (a) can be reproduced or propagated, or

• (c) a vector material listed in Part 3 of the Third Schedule,

in any place in the State specified in the third column of the Third Schedule in relation to such an animal, plant or vector material.

• (2) Save in accordance with a licence granted under paragraph (7), a person shall be guilty of an offence if he or she imports or transports—

• (a) an animal or plant listed in Part 1 or Part 2 of the Third Schedule,

• (b) anything from which an animal or plant referred to in Part 2 of the Third Schedule can be reproduced or propagated, or

• (c) a vector material listed in Part 3 of the Third Schedule,

into or in or to any place in the State specified in relation to such an animal or plant or vector material in relation to that animal or plant or vector material in the third column of the Third Schedule.

• (3) Save in accordance with a licence granted under paragraph (7), a person shall be guilty of an offence if he or she publishes or causes to be published by any means, including on the internet, any advertisement, catalogue, circular or price list likely to be understood as conveying that such person imports into the State, buys, sells, distributes or provides for the introduction or release, or intends to buy or sell or distribute or introduce or release, in any place in the State as specified in the third column of the Third Schedule,—

• (a) an animal or plant listed in Part 1 or Part 2 of the Third Schedule,

• (b) anything from which such an animal or plant can be reproduced or propagated, or

• (c) a vector material listed in Part 3 of the Third Schedule.

• (4) Subject to paragraph (5), it shall be a defence to a charge of committing an offence under paragraph (1), (2) or (3) to prove that the accused took all reasonable steps and exercised all due diligence to avoid committing the offence.

• (5) Where the defence provided by paragraph (4) 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.

(6)(a) This Regulation applies to an animal or plant listed in the Third Schedule.

• (b) For the avoidance of doubt, an animal or plant listed or referred to in the Third Schedule shall apply to that animal or plant under any synonym or vernacular or trade name by which that animal or plant may be referred to.

(7)(a) One or more persons may make an application for a licence, under this paragraph, for the purposes of complying with the requirements of paragraph (1), (2) or (3).

• (b) The Minister may seek from the applicant any information that he or she considers necessary for consideration of the application.

• (c) The Minister may grant or refuse to grant, or revoke, such a licence, and shall give reasons for his or her decision and for any conditions imposed under subparagraph (e).

• (d) In making a decision under subparagraph (c), the Minister shall take account of the requirements of the Habitats Directive and the Birds Directive and in particular the requirements of Article 22(b) of the Habitats Directive, and he or she shall take account of such advice or information as he or she considers appropriate in relation to any species to which the licence application relates.

• (e) A licence granted under subparagraph (c) shall be subject to such conditions, restrictions, limitations or requirements as the Minister considers appropriate.

• (f) Any conditions, restrictions, limitations or requirements to which a licence under this subparagraph is subject shall be specified in the licence.

(g)Paragraph (1), (2) or (3) do not apply to anything done under and in accordance with the terms of a licence granted by the Minister under subparagraph (c).

• (8) For the purposes of this Regulation, “the State” includes the territorial waters of the State and the exclusive economic zone of the State.

• (9) For the avoidance of doubt, the Minister may develop threat response plans under Regulation 39 for the purposes of this Regulation and, generally, for the purposes of addressing the exclusion, eradication or control of species referred to in the Third Schedule and any other species that the Minister considers poses a threat to the habitats or species protected under these Regulations.

• (10) Where an animal that is of a species referred to in Part 2B of the Third Schedule, or that is a hybrid of such a species, is one of a herd that is being farmed for slaughter for commercial meat production, it shall not be an offence for a person to have such an animal in his or her possession for sale or transportation in the course of the business of farming such animals, including providing for their slaughter or, for the purposes of farming, to import or transport such an animal, and paragraph (3) shall not apply to the publication of any advertisement, catalogue, circular or price list regarding the purchase or sale of such an animal for slaughter for commercial meat production or to be farmed for that purpose.

• (11) For the purposes of paragraph (10), “slaughter” does not include the killing of an animal during or following hunting.

Protection of fauna referred to in the First Schedule

• (2) Notwithstanding any consent, statutory or otherwise, given to a person by a public authority or held by a person, except in accordance with a licence granted by the Minister under Regulation 54, a person who in respect of the species referred to in Part 1 of the First Schedule—

• (a) deliberately captures or kills any specimen of these species in the wild,

• (b) deliberately disturbs these species particularly during the period of breeding, rearing, hibernation and migration,

• (c) deliberately takes or destroys eggs of those species from the wild,

• (d) damages or destroys a breeding site or resting place of such an animal, or

• (e) keeps, transports, sells, exchanges, offers for sale or offers for exchange any specimen of these species taken in the wild, other than those taken legally as referred to in Article 12(2) of the Habitats Directive,

shall be guilty of an offence.

• (3) The prohibitions referred to in paragraph (2) shall apply to all stages of life of the biological cycle of fauna to which this Regulation applies.

• (4) The Minister shall establish a system to monitor the incidental capture and killing of fauna consisting of the animal species referred to in Part 1 of the First Schedule and, having regard to the information gathered, he or she shall conduct further research or take such conservation measures as required to ensure that incidental capture and killing does not have a significant negative impact on the species concerned.

Protection of flora referred to in the First Schedule**

• (2) Notwithstanding any consent, statutory or otherwise, given to a person by a public authority or held by a person, except in accordance with a licence granted by the Minister under Regulation 54, a person who in respect of the plant species referred to in Part 1 of the First Schedule—

• (a) deliberately picks, collects, cuts, uproots or destroys any specimen of these species in the wild, or

• (b) keeps, transports, sells, exchanges, offers for sale or offers for exchange any specimen of these species taken in the wild, other than those taken legally as referred to in Article 13(1)(b) of the Habitats Directive,

shall be guilty of an offence.

• (3) The prohibitions referred to in paragraph (2) shall apply to all stages of the biological cycle of the flora to which this Regulation applies.

Measures to control the taking of fauna and flora referred to in Part 2 of the First Schedule**

• (a) the Minister, in the case of any flora or fauna referred to in Part 2 of the First Schedule, and

• (b) the Minister or Ministers of Government with responsibilities in respect of the fish species referred to in Part 2 of the First Schedule,

may each, by Direction, take measures to ensure that the taking of specimens of species of fauna, including those fish species to the extent so specified, if any, and flora referred to in that Part as well as their exploitation is compatible with their being maintained at a favourable conservation status.

• (2) Without prejudice to the generality of paragraph (1), the measures to which that paragraph relate may include—

• (a) Directions regarding the temporary or local prohibition of the taking of specimens and exploitation of certain populations,

• (b) the regulation by Direction of the periods or methods of taking of specimens, or both,

• (c) the application, when specimens are taken, of any other statutory provision relating to either or both hunting and fishing which take account of the conservation of such populations,

• (d) the establishment of a system of licences for taking specimens or quotas,

• (e) Directions regarding the purchase, sale, offering for sale, keeping for sale or transport for sale of specimens,

• (f) Directions regarding breeding in captivity of animal species as well as artificial propagation of plant species, under strictly controlled conditions, with a view to reducing the taking of specimens,

• (g) such other Directions as the Minister, or the Minister or Ministers of Government with responsibilities, in respect of the species referred to in Part 2 of the First Schedule, consider appropriate, and

• (h) assessment of the effect of the measures adopted.

• (3) In respect of the capture or killing of individuals of species of fauna referred to in Part 2 of the First Schedule and in cases where, in accordance with a licence granted under Regulation 54, derogations are applied to the taking, capture or killing of individuals of species referred to in Part 1 of the First Schedule, a person shall not use any indiscriminate means capable of causing local disappearance of, or serious disturbance to, populations of such species and, in particular—

• (a) any of the following means of capture and killing in respect of mammals—

• (i) blind or mutilated animals used as live decoys,

• (ii) tape recorders,

• (iii) electrical and electronic devices capable of killing or stunning,

• (iv) artificial light sources,

• (v) mirrors and other dazzling devices,

• (vi) devices for illuminating targets,

• (vii) sighting devices for night shooting comprising an electronic image magnifier or image converter,

• (viii) explosives,

• (ix) nets which are non-selective according to their principle or their conditions of use,

• (x) traps which are non-selective according to their principle or their conditions of use,

• (xi) crossbows,

• (xii) poisons and poisoned or anaesthetic bait,

• (xiii) gassing or smoking out,

• (xiv) semi-automatic or automatic weapons with a magazine capable of holding more than two rounds of ammunition,

• (b) any of the following means of capture and killing in respect of fish—

• (i) poison,

• (ii) explosives,

• (c) any means of capture and killing from the following modes of transport—

• (i) aircraft,

• (ii) moving motor vehicles.

(4)(a) In respect of the hunting, capture or killing of birds, a person shall not use any means, arrangements or methods for the large scale or non-selective capture or killing of birds, or that are capable of causing the local disappearance of any species of bird, including—

• (i) snares, limes or hooks,

• (ii) live birds which are blind or mutilated used as decoys,

• (iii) tape recorders,

• (iv) electrocuting devices,

• (v) artificial light sources,

• (vi) mirrors,

• (vii) devices for illuminating targets,

• (viii) sighting devices for night shooting comprising an electronic image magnifier or image converter,

• (ix) explosives,

• (x) nets which are non-selective according to their principle or their conditions of use,

• (xi) traps which are non-selective according to their principle or their conditions of use,

• (xii) poisoned or anaesthetic bait,

• (xiii) semi-automatic or automatic weapons with a magazine capable of holding more than two rounds of ammunition,

• (b) A person shall not use any means of capture or killing from the following modes of transport—

• (i) aircraft,

• (ii) motor vehicles,

• (iii) Boats driven at a speed exceeding 5km per hour.

• (c) Notwithstanding subparagraph (b)(iii), the Minister may, as a condition of a licence issued under Regulation 54, authorise the use, for safety reasons, on the open sea, of motor boats at a maximum speed of 18km per hour, and he or she shall inform the European Commission of such authorisation.

• (5) A person who contravenes paragraph (3) or (4) shall be guilty of an offence.

• (6) The Minister, and the responsible Minister of Government in respect of the fish species stipulated in Part 2 of the First Schedule, shall publish or cause to be published in Iris Oifigiúil a copy of every Direction under this Regulation.

• (7) Except in accordance with a licence granted by the Minister under Regulation 54 a person who contravenes a Direction under paragraph (1), or who contravenes paragraph (3) or (4), shall be guilty of an offence.

Derogations — flora, fauna and habitats

54.(1) Any person may apply to the Minister, or the Minister or Ministers of Government with responsibilities for fish species referred to in Part 2 of the First Schedule, for a derogation licence from complying with the requirements of the provisions of Regulations 51, 52 and 53.

• (2) Where there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species to which the Habitats Directive relates at a favourable conservation status in their natural range, the Minister, or the Minister or Ministers of Government with responsibilities for fish species referred to in the Fourth Schedule, may grant such a derogation licence to one or more persons, where it is—

• (a) in the interests of protecting wild fauna and flora and conserving natural habitats,

• (b) to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property,

• (c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment,

• (d) for the purpose of research and education, of repopulating and re-introducing these species and for the breeding operations necessary for these purposes, including the artificial propagation of plants, or

• (e) to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species to the extent specified therein, which are referred to in the First Schedule.

• (3) A derogation licence granted under paragraph (2) shall be subject to such conditions, restrictions, limitations or requirements as the Minister considers appropriate.

• (4) Any conditions, restrictions, limitations or requirements to which a derogation licence under paragraph (2) is subject shall be specified therein.

• (5) Without prejudice to any conditions, restrictions, limitations or requirements specified therein, a derogation licence granted under this Regulation is subject to the provisions of subsections (2) to (5) of section 14 of the Protection of Animals (Amendment) Act 1965 .

• (6) The Minister shall forward to the European Commission every two years a report, in accordance with a format established by the European Commission, on the derogation licences to which paragraph (2) relates.

• (7) The report referred to in paragraph (6) shall specify—

• (a) the species which are subject to the derogation licences and the reason for the derogation, including the nature of the risk with, if appropriate, a reference to alternatives rejected and scientific data used,

• (b) the means, devices or methods authorised for the capture or killing of animal species and the reasons for their use,

• (c) the circumstances of when and where such derogation licences are granted,

• (d) the authority empowered to declare and check that the required conditions apply, and to decide what means, devices or methods may be used, within what limits and by what agencies, and which persons are to carry out the task, and

• (e) the supervisory measures used and the results obtained.

Derogations — birds

55.(1) Any person may apply to the Minister for a derogation licence from complying with the requirements of the provisions of Regulation 53.

• (2) Where there is no other satisfactory solution, the Minister may, following consultation with any other Minister or Ministers of the Government having relevant responsibilities or functions where appropriate, in respect of any species of naturally occurring bird in the wild state referred to in Article 1 of the Birds Directive, grant a derogation licence to one or more persons, where it is—

• (a) in the interests of public health and safety,

• (b) in the interests of air safety,

• (c) to prevent serious damage to crops, livestock, forests, fisheries or water,

• (d) for the protection of flora or fauna,

• (e) for the purposes of research or teaching, of re-population, of re-introduction or for the breeding necessary for these purposes, or

• (f) to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers.

• (3) A derogation licence granted under paragraph (2) shall be subject to such conditions, restrictions, limitations or requirements as the Minister considers appropriate.

• (4) Any conditions, restrictions, limitations or requirements to which a derogation licence under paragraph (2) is subject shall be specified therein.

• (5) Without prejudice to any conditions, restrictions, limitations or requirements specified therein, a derogation licence granted under this Regulation is subject to the provisions of subsections (2) to (5) of section 14 of the Protection of Animals (Amendment) Act 1965 .

• (6) The derogation licence granted under paragraph (2) must specify—

• (a) the species which are subject to the derogation licence,

• (b) the means, arrangements or methods authorized for capture or killing,

• (c) the conditions of risk and the circumstances of time and place under which such derogation licence is granted,

• (d) the authority empowered to declare that the required conditions obtain and to decide what means, arrangements or methods may be used, within what limits and by whom, and

• (e) the controls which will be carried out.

• (7) The Minister shall forward to the European Commission each year a report on the derogations to which paragraph (2) relates.

PART 7

MISCELLANEOUS

Miscellaneous amendments

• (a) by substituting the following subparagraph for subparagraph (i) of paragraph (b) of subsection (2A),

• “(i) a European Site, meaning

  • (I) a candidate site of Community importance,

  • (II) a site of Community importance,

  • (III) a candidate special area of conservation,

  • (IV) a special area of conservation,

  • (V) a candidate special protection area, or

  • (VI) a special protection area”,

and

• (b) by the repeal of subparagraphs (ii), (iii) and (iv) of paragraph (b) of subsection (2A).

• (2) Section 62 of the Forestry Act 1946 (as amended by Section 72 of the Wildlife (Amendment) Act 2000 ) is amended by substituting the following subsection for subsection (1A)—

• “(1A) Where either or both the wood and land to which subsection (1) of this section relates is or forms part of a European Site (within the meaning of Regulation 2 of the European Communities (Birds and Natural Habitats) Regulations 2011), or is or forms part of either or both wood and land to which Regulations 28, 29, 38 or 39 of the European Communities (Birds and Natural Habitats) Regulations 2011, apply, then the Minister may serve a notice under subsection (1) of this section only where there has been relevant compliance with Regulations 42 and 43 of the European Communities (Birds and Natural Habitats) Regulations 2011.”

• (3) Section 13A of the Petroleum and Other Minerals Development Act 1960 (as inserted by Regulation 19 of the European Communities (Environmental Impact Assessment) Regulations 1989 and amended by Regulation 12 of the European Communities (Environmental Impact Assessment) (Amendment) Regulations 1999) is amended—

• (a) by substituting the following clause for clause (I) of subparagraph (ii) of paragraph (c) of subsection (1),

• “(I) a European Site, meaning

• (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”,

and

• (b) by the repeal of clauses (II), (III) and (IV) of subparagraph (ii) of paragraph (c) of subsection (1)

• (4) Section 40A of the Gas Act 1976 (as inserted by Regulation 20 of the European Communities (Environmental Impact Assessment) Regulations 1989 and amended by Regulation 13 of the European Communities (Environmental Impact Assessment) (Amendment) Regulations 1999) is amended—

• (a) by substituting the following clause for clause (I) of subparagraph (ii) of paragraph (c) of subsection (1),

• “(I) a European Site, meaning

• (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”,

and

• (b) by the repeal of clauses (II), (III) and (IV) of subparagraph (ii) of paragraph (c) of subsection (1).

• (5) Section 9 of the Wildlife Act 1976 (as amended by Section 8 of the Wildlife (Amendment) Act 2000 and Regulation 2 of the European Communities (Natural Habitats) (Amendment) Regulations 2005) is amended in subsection (5) by substituting the following for “the European Communities (Natural Habitats) Regulations 1997, as amended by the European Communities (Natural Habitats)(Amendment) Regulations 1998 and by the European Communities (Natural Habitats) (Amendment) Regulations 2005”—

“the European Communities (Birds and Natural Habitats) Regulations 2011”.

• (6) Section 45 of the Wildlife Act 1976 (as amended by the European Communities ( Wildlife Act 1976 ) (Amendment) Regulations 1985 and Section 51 of the Wildlife (Amendment) Act 2000 and Regulation 2 of the European Communities (Natural Habitats) (Amendment) Regulations 2005 is amended in subsection (1) by substituting the following for “Part 1 or 2 of the First Schedule to the European Communities (Natural Habitats) Regulations 1997, as amended by the European Communities (Natural Habitats) (Amendment) Regulations 1998 and by the European Communities (Natural Habitats) (Amendment) Regulations 2005”—

“Part 1 or 2 of the First Schedule to the European Communities (Birds and Natural Habitats) Regulations 2011”.

• (7) Section 50 of the Roads Act 1993 (as inserted by Regulation 20 of the European Communities (Environmental Impact Assessment) Regulations 1989 and amended by Regulation 14 of the European Communities (Environmental Impact Assessment) (Amendment) Regulations 1999) is amended—

• (a) by substituting the following subparagraph for subparagraph (i) of paragraph (d) of subsection (1),

• “(i) a European Site, meaning

  • (I) a candidate site of Community importance,

  • (II) a site of Community importance,

  • (III) a candidate special area of conservation,

  • (IV) a special area of conservation,

  • (V) a candidate special protection area, or

  • (VI) a special protection area”,

and

• (b) by the repeal of subparagraph (ii), (iii) and (iv) of paragraph (d) of subsection (1).

• (8) Section 372AW of the Taxes Consolidation Act 1997 (as inserted by Section 29 of the Finance Act 2007 ) is amended by substituting the following subparagraph for subparagraph (i) of paragraph (c) of subsection (3)—

• “(a) a European Site (within the meaning of Regulation 2 of the European Communities (Birds and Natural Habitats) Regulations 2011), or”.

• (9) Section 26 of the Dublin Docklands Development Authority Act 1997 (as amended by Regulation 16 of the European Communities (Environmental Impact Assessment) (Amendment) Regulations 1999) is amended—

• (a) by substituting the following clause for clause (I) of subparagraph (ii) of paragraph (b) of subsection (1),

• “(I) a European Site, meaning

• (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”,

and

• (b) by the repeal of clauses (II), (III) and (IV) of subparagraph (ii) of paragraph (b) of subsection (1).

• (10) Section 5 of the Maritime Safety Act 2005 is amended by substituting the following paragraph for paragraph (a) of the definition of “natural heritage area”—

• “(a) a European Site (within the meaning of Regulation 2 of the European Communities (Birds and Natural Habitats) Regulations 2011),”.

• (11) Regulation 3 of the European Communities (Environmental Impact Assessment) (Amendment) Regulations 1999 is amended by substituting the following definition for the definition of “special area of conservation”—

““special area of conservation” has the meaning assigned to it in Regulation 2 of the European Communities (Birds and Natural Habitats) Regulations 2011”.

• (12) Regulation 7 of the European Communities (Environmental Impact Assessment) (Amendment) Regulations 2001) is amended by substituting the following definition for the definition of “European Site”—

““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”.

• (13) Schedule 3 of the Planning and Development Regulations 2001 (as amended by Regulation 42 of the Planning and Development Regulations 2006) is amended in Form No. 2 (Planning Application Form) by substituting the following for “a European Site (under S.I. No. 94 of 1997 )”—

“a European Site, meaning

• (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”.

• (14) Schedule 2 of the Planning and Development Regulations 2001 (as amended by Regulation 4 of the Planning and Development Regulations 2005) is amended in Class 17 of Part 3 by substituting the following for “the European Communities (Natural Habitats) Regulations 1997, or any Regulations or enactment amending or replacing those Regulations”—

“the European Communities (Birds and Natural Habitats) Regulations 2011 or any Regulations or enactment amending or replacing those Regulations”.

• (15) Regulation 2 of the European Communities (Environmental Assessment of Certain Plans and Programmes) Regulations 2004 is amended by substituting the following definition for the definition of “European Site”—

““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”.

• (16) Regulation 2 of the European Communities (Aerial Fertilisation) (Forestry) Regulations 2006 is amended by substituting the following definition for the definition of “European Site”—

““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”.

• (17) Regulation 3 of the Waste Water Discharge (Authorisation) Regulations 2007 is amended—

• (a) by substituting the following definition for the definition of “European Site”,

““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”,

and

• (b) by substituting the following definition for the definition of “Natural Habitats Regulations”,

““Natural Habitats Regulations” means the European Communities (Birds and Natural Habitats) Regulations 2011”.

• (18) Regulation 5 of the Waste Management (Facility Permit and Registration) Regulations 2007 is amended by substituting the following definition for the definition of “European Site”—

““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”.

• (19) Regulation 2 of the European Communities (Control of Dangerous Substances in Aquaculture) Regulations 2008 is amended—

• (a) by substituting the following definition for the definition of “European Site”,