Wildlife and Natural Environment Act (Northern Ireland) 2011

Biodiversity

Duty to conserve biodiversity

1

• (1) It is the duty of every public body, in exercising any functions, to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions.

• (2) In complying with subsection (1), a public body must in particular have regard to any strategy designated under section 2(1).

• (3) Conserving biodiversity includes—

• (a) in relation to any species of flora or fauna, restoring or enhancing a population of that species;

• (b) in relation to any type of habitat, restoring or enhancing the habitat.

• (4) The Department must issue guidance containing recommendations, advice and information for the assistance of public bodies in complying with the duty under subsection (1).

• (5) In this section “public body” means—

• (a) a Northern Ireland department;

• (b) a district council;

• (c) a statutory undertaker within the meaning of the Planning (Northern Ireland) Order 1991 (NI 11);

• (d) any other body established or constituted under a statutory provision.

The biodiversity strategy

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• (1) The Department must designate one or more strategies for the conservation of biodiversity (whether prepared by the Department or by one or more other persons).

• (2) The Department must publish any strategy so designated.

• (3) A strategy so designated may include different provision for different cases or types of case.

• (4) The Department must—

• (a) not later than 5 years after the coming into operation of subsection (1), and

• (b) at least once in every period of 5 years thereafter,

publish a report regarding the implementation of any strategy designated under that subsection.

Biodiversity lists

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• (1) The Department must publish a list of the species of flora and fauna and types of habitat which in the Department's opinion are of principal importance for the purpose of conserving biodiversity.

• (2) The Department must—

• (a) keep under review any list published under this section;

• (b) make such revisions of any such list as appear to the Department appropriate; and

• (c) publish any list so revised as soon as reasonably practicable after revising it.

• (3) Without prejudice to section 1(1) and (2), a public body must—

• (a) take such steps as appear to the body to be reasonably practicable to further the conservation of the species of flora and fauna and types of habitat included in any list published under this section; or

• (b) promote the taking by others of such steps.

• (4) In this section “public body” has the same meaning as in section 1.

Amendments to the Wildlife Order

Protection of nests of certain birds

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• (1) The Wildlife Order is amended as follows.

• (2) In Article 4(1) (protection of wild birds, their nests and eggs) after sub-paragraph (b) insert—

(ba) at any other time takes, damages or destroys the nest of any wild bird included in Schedule A1; or (bb) obstructs or prevents any wild bird from using its nest; or

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• (3) Before Schedule 1 insert—

SCHEDULE A1

NOTE: The first column of this Schedule, which gives the common name or names, is included by way of guidance only; in the event of any dispute or proceedings, only the second column is to be taken into account.	NOTE: The first column of this Schedule, which gives the common name or names, is included by way of guidance only; in the event of any dispute or proceedings, only the second column is to be taken into account.
Common name	Scientific name
Eagle, Golden	Aquila chrysaetos
Eagle, White-tailed	Haliaetus albicilla
Osprey	Pandion haliaetus
Owl, Barn	Tyto alba
Peregrine	Falco peregrinus
Kite, Red	Milvus milvus

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Offences: recklessness

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• (1) In each of the provisions of the Wildlife Order mentioned in subsection (2) (which create offences which require an intentional act) after “intentionally” insert “ or recklessly ”.

• (2) The provisions are—

• (a) Article 4(1) and (6) (protection of wild birds, their nests and eggs);

• (b) Article 10(1) and (4) (protection of certain wild animals);

• (c) Article 14(1)(a) and (b) (protection of wild plants); and

• (d) Article 16(1)(a) (wildlife refuges).

Offences: causing or permitting unlawful acts

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• (1) The Wildlife Order is amended as follows.

• (2) In Article 4 (protection of wild birds, their nests and eggs) after paragraph (6) insert—

(6A) Subject to the provisions of this Part, any person who knowingly causes or permits to be done an act which is made unlawful by any of the foregoing provisions of this Article shall be guilty of an offence.

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• (3) In Article 7 (sale of birds, eggs, etc.) after paragraph (2) insert—

(2A) Subject to the provisions of this Part, any person who knowingly causes or permits to be done an act which is made unlawful by paragraph (1)(a) or (2)(a) shall be guilty of an offence.

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• (4) In Article 10 (protection of certain wild animals) after paragraph (4A) (inserted by section 9) insert—

(4B) Subject to the provisions of this Part, any person who knowingly causes or permits to be done an act which is made unlawful by any of the foregoing provisions of this Article shall be guilty of an offence.

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• (5) In Article 13 (sale of wild animals) after paragraph (2) insert—

(2A) Subject to the provisions of this Part, any person who knowingly causes or permits to be done an act which is made unlawful by paragraph (1)(a) or (2)(a) shall be guilty of an offence.

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• (6) In Article 14 (protection of wild plants) after paragraph (3) insert—

(3A) Subject to the provisions of this Part, any person who knowingly causes or permits to be done an act which is made unlawful by paragraph (1) or (2)(a) shall be guilty of an offence.

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• (7) In Article 15 (introduction of new species) after paragraph (2) insert—

(2A) Subject to the provisions of this Part, any person who knowingly causes or permits to be done an act which is made unlawful by paragraph (1) or (2) shall be guilty of an offence.

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Defences in relation to offences under Article 4

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• (1) In Article 4 of the Wildlife Order (protection of wild birds, their nests and eggs) for paragraph (4) substitute—

(4) In paragraph (3) “the relevant provisions” means the provisions of— (a) this Part and of orders made under it, (b) the Wild Birds Protection Acts (Northern Ireland) 1931 to 1968 and of orders made under those Acts, (c) any other legislation which implements either of the Wild Birds Directives and extends to any part of the United Kingdom, to any area designated in accordance with section 1(7) of the Continental Shelf Act 1964, or to any area to which British fishery limits extend in accordance with section 1 of the Fishery Limits Act 1976, and (d) the law of any member State (other than the United Kingdom) implementing either of the Wild Birds Directives. (4A) For the purposes of paragraph (4) “the Wild Birds Directives” are— (a) Council Directive 79/409/EEC on the conservation of wild birds; and (b) Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds.

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• (2) In Article 5 of the Wildlife Order (exceptions to Article 4) at the end add—

(7) An authorised person shall not be regarded as showing that any action of his was necessary for a purpose mentioned in paragraph (6) unless he shows that, as regards that purpose, there was no other satisfactory solution. (8) An authorised person shall not be entitled to rely on the defence provided by paragraph (6) as respects any action taken at any time if it had become apparent, before that time, that that action would prove necessary for the purpose mentioned in that paragraph and either— (a) a licence under Article 18 authorising that action had not been applied for as soon as reasonably practicable after that fact had become apparent; or (b) an application by him for such a licence had been determined.

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Disqualification for registration

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In Article 7(5) of the Wildlife Order (sale of wild birds, eggs, etc.) after sub-paragraph (a) insert—

(aa) within 5 years of his having been convicted of an offence under the Control of Trade in Endangered Species (Enforcement) Regulations 1997 (other than an offence under Regulation 9 of those Regulations); or (ab) within 5 years of his having been convicted of an offence under Regulation 34 of the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995; or

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Protection of certain wild animals from disturbance

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In Article 10 of the Wildlife Order (protection of certain wild animals) after paragraph (4) insert—

(4A) Subject to the provisions of this Part, if any person intentionally or recklessly disturbs any wild animal included in Schedule 5 as— (a) a common seal (phoca vitulina), (b) a grey seal (halichoerus grypus), or (c) a basking shark (cetorhinus maximus), he shall be guilty of an offence.

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Snares

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• (1) Article 12 of the Wildlife Order (prohibition of certain methods of killing or taking wild animals) is amended as follows.

• (2) In paragraph (1)(a) after “position” insert “ or otherwise uses ”.

• (3) In paragraph (1) after sub-paragraph (a) insert—

(aa) sets in position or otherwise uses any other type of snare which is either of such a nature or so placed (or both) as to be calculated to cause unnecessary suffering to any wild animal coming into contact with it;

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• (4) After paragraph (2) insert—

(2A) Any person who sets a snare in position or who knowingly causes or permits a snare to be so set must, while it remains in position, inspect it or cause it to be inspected at least once every day at intervals of no more than 24 hours. (2B) Any person who, while carrying out such an inspection, finds an animal caught by the snare being inspected must, during the course of the inspection, release or remove the animal (whether live or dead). (2C) Any person who— (a) without reasonable excuse, contravenes paragraph (2A), or (b) contravenes paragraph (2B), shall be guilty of an offence. (2D) Any person who, without reasonable excuse, is in possession of a snare which is capable of operating as a self-locking snare shall be guilty of an offence. (2E) Any person who, without reasonable excuse— (a) while on any land, has in his possession any snare without the authorisation of the owner or occupier of the land, or (b) sets any snare in position on any land without the authorisation of the owner or occupier of the land, shall be guilty of an offence. (2F) Any person who— (a) uses a snare otherwise than in accordance with such requirements as may be specified in an order made by the Department, or (b) knowingly causes or permits any other person to do so, shall be guilty of an offence.

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Spring traps

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• (1) After Article 12 of the Wildlife Order insert—

(12A) (1) Subject to the provisions of this Part, any person who— (a) for the purpose of killing or taking any wild animal other than one included in Schedule 6, uses or permits the use of any spring trap other than an approved trap or uses or permits the use of an approved trap in circumstances or for wild animals for which it is not approved, or (b) sells, or exposes or offers for sale, any spring trap other than an approved trap with a view to its being used for a purpose which is unlawful under sub-paragraph (a), or (c) has in his possession any spring trap for a purpose which is unlawful under this paragraph, shall be guilty of an offence. (2) Paragraph (1) does not apply to traps of any description specified by order of the Department as being adapted solely for the destruction of rats, mice or other small ground vermin. (3) In paragraph (1) any reference to an approved trap is a reference to a trap of a type and make for the time being specified by an order of the Department, either generally or subject to conditions as to the circumstances in which or the wild animals for which it may be used, and any reference to the circumstances or wild animals for which a trap is approved shall be construed accordingly.

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• (2) In Article 18 of the Wildlife Order (power to grant licences) after paragraph (4) insert—

(4A) Article 12A(1)(a) does not apply to anything done for the purpose of enabling a spring trap to be developed or tested with a view to its being approved under Article 12A(3) if it is done under and in accordance with a licence granted by the Department.

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Protection of wild plants

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• (1) The Wildlife Order is amended as follows.

• (2) In Article 14(1)(a) (protection of wild plants) after “Schedule 8” insert “ or any seed or spore attached to any such wild plant ”.

• (3) In Article 2(2) (general interpretation), in the definition of “wild plant”, after “any plant” insert “ (including fungi) ”.

• (4) In Article 3 (interpretation of Part 2) at the end add—

(3) Any reference in this Part to a plant which is growing— (a) includes a reference to a bulb, corm or rhizome; (b) does not include a reference to a seed or spore.

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Introduction of new species

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• (1) Article 15 of the Wildlife Order (introduction of new species) is amended as follows.

• (2) In paragraph (1)—

• (a) in sub-paragraph (a) after “wild state” insert “ or is a hybrid of any animal of that kind ”;

• (b) in sub-paragraph (b) after “Schedule 9” insert “ or is a hybrid of any animal included in that Part ”.

• (3) In paragraph (2) after “Schedule 9” insert “ or is a hybrid of any plant included in that Part ”.

• (4) At the end add—

(7) The Department may issue guidance (or approve guidance issued by others) for the purpose of providing persons with recommendations, advice and information regarding— (a) any animal mentioned in paragraph (1), (b) any plant mentioned in paragraph (2), and may issue revisions of any guidance issued by it (or approve revisions of guidance issued by others). (8) A person who fails to comply with any guidance issued or approved under paragraph (7) is not by reason of that failure liable in any criminal or civil proceedings. (9) But any such guidance is admissible in evidence in such proceedings and a court may take account of any failure to comply with it in determining any questions in the proceedings.

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Prohibition on sale, etc. of invasive, non-native species

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After Article 15 of the Wildlife Order insert—

(15A) (1) This Article applies to— (a) any animal mentioned in Article 15(1)(a) or (b) which is specified in an order made by the Department for the purposes of this Article; (b) any plant included in Part 2 of Schedule 9 which is specified in such an order; (c) any hybrid of an animal or plant specified as mentioned in sub-paragraph (a) or (b). (2) Subject to the provisions of this Part, any person who— (a) sells, offers or exposes for sale or has in his possession or transports for the purpose of sale any animal or plant to which this Article applies, or (b) publishes, or causes to be published, any advertisement likely to be understood as conveying that the person buys or sells, or intends to buy or sell, any such animal or plant, is guilty of an offence. (3) Paragraphs (3) and (4) of Article 15 (defence of due diligence, etc.) apply to an offence under paragraph (2) as they apply to an offence under paragraph (1) or (2) of that Article. (4) Subject to the provisions of this Part, any person who knowingly causes or permits to be done an act which is made unlawful by paragraph (2)(a) shall be guilty of an offence. (5) An order under paragraph (1) may be made in relation to a particular area or a particular time of year.

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Possession of pesticides harmful to wildlife

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After Article 15A of the Wildlife Order (inserted by section 14) insert—

(15B) (1) A person who is in possession of a pesticide containing a prescribed ingredient shall be guilty of an offence. (2) A prescribed ingredient is one which is prescribed for the purposes of this Article by an order made by the Department; but the Department may not make an order under this Article unless it is satisfied that it is necessary or expedient to do so in the interests of protecting wild birds or wild animals from harm. (3) A person shall not be guilty of an offence under this Article if the person shows that the possession of the pesticide was for the purposes of doing anything in accordance with— (a) regulations made under section 16(2) of the Food and Environment Protection Act 1985; (b) provision made by or under the Poisons (Northern Ireland) Order 1976; (c) the Biocidal Products Regulations (Northern Ireland) 2001 or any regulations amending or replacing those regulations; or (d) the Plant Protection Products Regulations (Northern Ireland) 2005 or any regulations amending or replacing those regulations. (4) In this Article “pesticide” means— (a) a pesticide as defined by section 16(15) of the Food and Environment Protection Act 1985; and (b) anything to which Part 3 of that Act applies, by virtue of section 16(16) of that Act, as if it were a pesticide.

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Licences under Article 18

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• (1) Article 18 of the Wildlife Order (licences) is amended as follows.

• (2) In paragraph (1)(a) after “scientific” insert “ , research ”.

• (3) After paragraph (2)(a) insert—