The Conservation (Natural Habitats, &c.) Regulations 1994

The Secretary of State for the Environment, as respects England, the Secretary of State for Wales, as respects Wales, and the Secretary of State for Scotland, as respects Scotland, being designated[^f00001] Ministers for the purposes of section 2(2) of the European Communities Act 1972[^f00002] in relation to measures relating to the conservation of natural habitats and of wild fauna and flora, in exercise of the powers conferred upon them by the said section 2 and of all other powers enabling them in that behalf, hereby make the following Regulations, a draft of which has been laid before and approved by a resolution of each House of Parliament:–

PART I — INTRODUCTORY PROVISIONS

Citation and commencement

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• (1) These Regulations may be cited as the Conservation (Natural Habitats, &c.) Regulations 1994.

• (2) These Regulations shall come into force on the tenth day after that on which they are made.

Interpretation and application

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• (1) In these Regulations–

• “the 2004 Act” means the Nature Conservation (Scotland) Act 2004;

• “the 2007 Regulations” means the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007;

• “agriculture Minister” means the Minister of Agriculture, Fisheries and Food or the Secretary of State;

• “British fishery limits” has the meaning given by the Fishery Limits Act 1976;

• “competent authority” shall be construed in accordance with regulation 6;

• “conservation” has the meaning given by Article 1(a) of the Habitats Directive;

• “conservation status” and “favourable conservation status” have the meanings given by paragraphs (e) (in relation to habitats) and (i) (in relation to species) of Article 1 of the Habitats Directive;

• “destroy”, in relation to an egg, includes doing anything to the egg which is calculated to prevent it from hatching, and “destruction” shall be construed accordingly;

• “the Directives” means the Habitats Directive and the Wild Birds Directive;

• ...

• “enactment” includes a local enactment and an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978[^f00003];

• “European offshore marine site” means a European offshore marine site within the meaning of regulation 15 (meaning of European offshore marine site) of the 2007 Regulations;

• “European site” has the meaning given by regulation 10 and “European marine site” means a European site which consists of, or so far as it consists of, marine areas;

• “functions” includes powers and duties;

• “the Habitats Directive” means Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora as amended from time to time , but subject to paragraph (2A);

• “land” includes buildings and other structures, land covered with water, and any right or interest in or over land;

• “livestock” includes any animal which is kept–for the provision of food, skins or fur,for the purpose of its use in the carrying on of any agricultural activity, orfor the provision or improvement of shooting or fishing;

• “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;

• “local planning authority” means–in England and Wales, except as otherwise provided, any authority having any function as a local planning authority or mineral planning authority under the Town and Country Planning Act 1990[^f00004], andin Scotland, a planning authority within the meaning of section 172(1) of the Local Government (Scotland) Act 1973[^f00005];

• “management agreement” means an agreement entered into, or having effect as if entered into, under regulation 16;

• “marine area” means any land covered (continuously or intermittently) by tidal waters or any part of the sea in or adjacent to Great Britain up to the seaward limit of territorial waters;

• “Natura 2000” means the European network of special areas of conservation, and special protection areas under the Wild Birds Directive, provided for by Article 3(1) of the Habitats Directive (but see paragraphs (6) and (7));

• “natural feature” in relation to land means– any of its flora or fauna, orany natural habitat existing on that land;

• “nature conservation body”, and “appropriate nature conservation body” in relation to England, Wales or Scotland, have the meaning given by regulation 4;

• “the offshore marine area” means—any part of the seabed and subsoil situated in any area designated under section 1(7) of the Continental Shelf Act 1964; andany part of the waters within British fishery limits (except the internal waters of, and the territorial sea adjacent to, the United Kingdom, the Channel Islands and the Isle of Man);

• “offshore marine installation” means any artificial island, installation or structure (other than a ship) which is situated—in any part of the waters in any area designated under section 1(7) of the Continental Shelf Act 1964; orin any part of the waters in any area designated under section 84(4) of the Energy Act 2004;

• “planning authority”, in Scotland, means a planning authority within the meaning of section 172(1) of the Local Government (Scotland) Act 1973;

• “priority natural habitat types” has the meaning given by Article 1(d) of the Habitats Directive;

• “priority species” has the meaning given by Article 1(h) of the Habitats Directive;

• “the register” means the register of European sites in Great Britain provided for by regulation 11;

• “relevant authorities”, in relation to marine areas and European marine sites, shall be construed in accordance with regulation 5;

• “the requirements of the Directives” is to be interpreted in accordance with regulation 2A(3) and (4);

• “the retained transposing regulations” means—the Conservation of Habitats and Species Regulations 2017;the Conservation of Offshore Marine Habitats and Species Regulations 2017;the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995; andthese Regulations,

• “the other retained transposing regulations” means the retained transposing regulations other than these Regulations;

• “Scottish marine area” means the area of sea within the seaward limits of the territorial sea of the United Kingdom adjacent to Scotland;

• “site” has the meaning given by Article 1(j) of the Habitats Directive;

• “site of Community importance” has the meaning given by Article 1(k) of the Habitats Directive;

• “special area of conservation” has the meaning given by Article 1(l) of the Habitats Directive and includes any such site designated after exit day under the retained transposing regulations;

• “statutory undertaker” has the meaning given in section 58(1) of the 2004 Act;

• “the UK site network” means the network of sites in the United Kingdom’s territory consisting of such sites as—immediately before exit day formed part of Natura 2000; orat any time on or after exit day are European sites, European marine sites and European offshore marine sites for the purposes of any of the retained transposing regulations;

• “the United Kingdom’s territory” means the United Kingdom and the offshore marine area;

• “wild bird” means a bird which is—a member of a species referred to in Article 1 of the Wild Birds Directive; andwild; and

• “the Wild Birds Directive” means Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds, as amended from time to time , but subject to paragraph (2A).

• (1A) An animal shall not be treated as bred in captivity for the purposes of Part III of these Regulations unless its parents were lawfully held in captivity–

• (a) where the animal is of a viviparous species, when it was born;

• (b) where the animal is of an oviparous species, when the egg was laid.

• (1B) The reference in paragraph (1A) to “lawfully” means without any contravention of these Regulations or Part I of the Wildlife and Countryside Act 1981.

• (2) Unless the context otherwise requires, expressions not defined in paragraph (1) which are used in these Regulations and also in the Habitats Directive have the same meaning as in that Directive.

• (2ZA) Unless the context otherwise requires, expressions not defined in paragraph (1) which are used in the Wild Birds Directive and in these Regulations have the same meaning as in that Directive.

• (2A) In these Regulations references to any Annex to the Habitats Directive or, as the case may be, any Annex to the Wild Birds Directive, are references to that Annex as it had effect immediately before exit day, or as subsequently amended under regulation 114.

• (2B) Any reference to a numbered provision of these Regulations is—

• (a) in relation to England and Wales, to the provision of that number which has effect in England and Wales; and

• (b) in relation to Scotland, to the provision of that number which has effect in Scotland.

• (3) In these Regulations, unless otherwise indicated–

• (a) any reference to a numbered regulation or Schedule is to the regulation or Schedule in these Regulations which bears that number, and

• (b) any reference in a regulation or Schedule to a numbered paragraph is to the paragraph of that regulation or Schedule which bears that number.

• (4) Subject to regulation 68 (which provides for Part IV to be construed as one with the Town and Country Planning Act 1990), these Regulations apply to the Isles of Scilly as if the Isles were a county and the Council of the Isles were a county council.

• (5) For the purposes of these Regulations the territorial waters of the United Kingdom adjacent to Great Britain shall be treated as part of Great Britain and references to England, Wales and Scotland shall be construed as including the adjacent territorial waters.

For the purposes of this paragraph–

• (a) territorial waters include any waters landward of the baselines from which the breadth of the territorial sea is measured; and

• (b) any question as to whether territorial waters are to be treated as adjacent to England, Wales or Scotland shall be determined by the Secretary of State or, for any purpose in relation to which the Minister of Agriculture, Fisheries and Food has responsibility, by the Secretary of State and that Minister acting jointly.

• (6) For the purposes of—

• (a) these Regulations; and

• (b) any guidance issued before exit day by the Scottish Ministers or the appropriate nature conservation body relating to the application of these Regulations,

on or after exit day references to “Natura 2000” (other than in this regulation) are to be construed as references to the UK site network.

• (7) Paragraph (6) does not affect the interpretation of these Regulations as they had effect, or any guidance as it applied, before exit day.

Implementation of Directive

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• (1) The Scottish Ministers, the appropriate nature conservation body and, in relation to the Scottish marine area, a competent authority must exercise their functions which are relevant to nature conservation, including marine conservation, so as to secure compliance with the requirements of the Directives.

• (2) Paragraph (1) applies in particular to functions under the following enactments:—

• the Dockyard Ports Regulation Act 1865;

• the Hill Farming Act 1946;

• Part III of the National Parks and Access to the Countryside Act 1949;

• the Land Drainage (Scotland) Act 1958;

• the Harbours Act 1964;

• the Forestry and Land Management (Scotland) Act 2018;

• section 49A of the Countryside (Scotland) Act 1967 (management agreements);

• section 15 of the Countryside Act 1968 (areas of special scientific interest);

• Part II of the Control of Pollution Act 1974 (pollution of water);

• Part I and section 35 of the Wildlife and Countryside Act 1981;

• sections 120 to 122 of the Civic Government (Scotland) Act 1982 (control of the seashore, adjacent waters and inland waters);

• sections 2, 3, 5, 7 and 11 of the Natural Heritage (Scotland) Act 1991;

• the Sea Fisheries Acts within the meaning of section 1 of the Sea Fisheries (Wildlife Conservation) Act 1992 (conservation in the exercise of sea fisheries functions);

• the Environment Act 1995;

• the Deer (Scotland) Act 1996;

• the Town and Country Planning (Scotland) Act 1997;

• the National Parks (Scotland) Act 2000;

• Part 1 of the Land Reform (Scotland) Act 2003 (access rights);

• Part 1 of the Water Environment and Water Services (Scotland) Act 2003[^f00025] (protection of the water environment);

• Part 2 of the Nature Conservation (Scotland) Act 2004 (conservation and enhancement of natural features);

• the Natural Environment and Rural Communities Act 2006;

• the Flood Risk Management (Scotland) Act 2009;

• the Marine (Scotland) Act 2010;

• the Environmental Authorisations (Scotland) Regulations 2018; and

• these Regulations.

• (3) Without prejudice to the preceding provisions, a competent authority, in exercising their functions, must have regard to the requirements of the Directives so far as they may be affected by the exercise of those functions.

• (4) In complying with their duties under paragraphs (1) and (3), the Scottish Ministers, the appropriate nature conservation body and a competent authority must have regard to any guidance issued under regulation 2A(4).

Nature conservation bodies

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• (1) Subject to paragraph (2), in these Regulations “nature conservation body” means Natural England, the Countryside Council for Wales or Scottish Natural Heritage; and references to “the appropriate nature conservation body”, in relation to England, Wales or Scotland shall be construed accordingly.

• (2) In Parts IV and IVA of these Regulations, “nature conservation body” also includes the Joint Nature Conservation Committee, and references to “the appropriate nature conservation body” in relation to a European offshore marine site shall be construed as meaning the Joint Nature Conservation Committee.

Relevant authorities in relation to marine areas and European marine sites

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For the purposes of these Regulations the relevant authorities, in relation to a marine area or European marine site, are such of the following as have functions in relation to land or waters within or adjacent to that area or site–

• (a) a nature conservation body;

• (b) a county council, district council, London borough council or, in Scotland, a regional, islands or district council;

• (c) the National Rivers Authority, a water undertaker or sewerage undertaker, or an internal drainage board;

• (d) a navigation authority within the meaning of the Water Resources Act 1991[^f00024];

• (e) a harbour authority within the meaning of the Harbours Act 1964[^f00025];

• (f) a lighthouse authority;

• (g) the Scottish Environment Protection Agency or a district salmon fishery board;

• (h) a local fisheries committee constituted under the Sea Fisheries Regulation Act 1966[^f00026] or any authority exercising the powers of such a committee;

• (i) a National Park authority established by order under section 6 of the National Parks (Scotland) Act 2000.

Competent authorities generally

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• (1) For the purposes of these Regulations the expression “competent authority” includes any Minister, government department, public or statutory undertaker, public body of any description or person holding a public office.

The expression also includes any person exercising any function of a competent authority in the United Kingdom.

• (2) In paragraph (1)—

• (a) “public body” includes any local authority, joint board or joint committee; and

• (b) “public office” means–

• (a) an office under Her Majesty,

• (b) an office created or continued in existence by a public general Act of Parliament, or

• (c) an office the remuneration in respect of which is paid out of money provided by Parliament or money paid out of the Scottish Consolidated Fund.

• (3) In paragraph (2)(a)—

“local authority”–

• (a) in relation to England, means a county council, district council or London borough council, the Common Council of the City of London, the sub–treasurer of the Inner Temple, the under treasurer of the Middle Temple or a parish council,

• (b) in relation to Wales, means a county council, county borough, council or community council, and

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “joint board” and “joint committee” in relation to England and Wales mean–a joint or special planning board constituted for a National Park by order under paragraph 1 or 3 of Schedule 17 to the Local Government Act 1972[^f00027], or a joint planning board within the meaning of section 2 of the Town and Country Planning Act 1990, anda joint committee appointed under section 102(1)(b) of the Local Government Act 1972,and in relation to Scotland have the same meaning as in the Local Government (Scotland) Act 1973[^f00028].

PART II — CONSERVATION OF NATURAL HABITATS AND HABITATS OF SPECIES

European sites

Selection of sites eligible for identification as of Community importance

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• (1) The Scottish Ministers must, having regard to the priorities established under regulation 8, designate as special areas of conservation such sites in Scotland as they consider to be of national importance.

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

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