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

• (b) “Scottish inshore region” means the area of sea within the seaward limits of the territorial sea adjacent to Scotland.

• (5) In applying the criteria referred to in paragraphs (3)(a) and (b) in relation to any species, references in Articles 4(1) and 4(2) of the Wild Birds Directive to classifying the most suitable territories “in the geographical sea and land area where this Directive applies” are to be construed as referring to the most suitable territories in the United Kingdom’s territory, having regard to the importance of such territories for ensuring the survival and reproduction of that species in their area of distribution.

Special protection area: notification of proposal

9B

• (1) The Scottish Ministers must if they propose to classify a site as a special protection area give to the appropriate nature conservation body—

• (a) notice of that proposal, and

• (b) an accompanying statement of the reasons for that proposal.

• (2) The appropriate nature conservation body must on being given notice of a proposal, provide a copy of the proposal and the accompanying statement—

• (a) to such persons as the Scottish Ministers may direct, and

• (b) where, in their opinion, it is appropriate to do so to—

• (i) any other person (including owners or occupiers of land or premises), and

• (ii) every competent authority which exercises functions in relation to the site, or in relation to an area adjacent to the site.

• (3) The appropriate nature conservation body must when they provide a copy of a proposal and accompanying document to any such person or authority specify the period of not less than 12 weeks (the “consultation period”) during which representations may be made to them with respect to the proposal by that person or authority.

• (4) The appropriate nature conservation body must as soon as reasonably practicable after expiry of the consultation period provide to the Scottish Ministers a report (the “consultation report”)—

• (a) describing any representations made in that period, or

• (b) stating that no representations have been made.

• (5) The Scottish Ministers must consider the consultation report when determining whether to classify a site as a special protection area.

• (6) The Scottish Ministers may—

• (a) give guidance to the appropriate nature conservation body for the purpose of the exercise by them of functions under this regulation, and

• (b) vary or revoke a direction under paragraph (2)(a).

• (7) The appropriate nature conservation body must have regard to any guidance under paragraph (6)(a) in discharging a function referred to in that paragraph.

Special protection area: hearing and representations in respect of a proposal

9C

• (1) The Scottish Ministers may give any person the opportunity of—

• (a) making written representations to, or

• (b) being heard by,

a person appointed by them for the purpose of deciding whether to classify a site as a special protection area.

• (2) Any person being heard by the appointed person may—

• (a) be represented by another person,

• (b) call persons to give evidence,

• (c) make written representations before or at the hearing,

• (d) put questions to any person who gives evidence at the hearing, including any person who gives expert evidence.

• (3) The Scottish Ministers must have regard to the report of an appointed person when deciding whether to so classify a site.

Meaning of “European site” in these Regulations

Delegation of licence granting power: Scotland

44A

• (1) The Scottish Minsters may delegate their functions in relation to licences under regulation 44 to the appropriate nature conservation body.

• (2) A delegation may be, to any degree, general or specific and may in particular relate to—

• (a) a particular type of animal or plant,

• (b) a particular licence or type of licence, or

• (c) a particular area.

• (3) Unless it specifies otherwise, a delegation relating to a particular licence (or type of licence) includes the power to modify or revoke the licence (or licences of that type) where granted before the delegation.

• (4) A delegation is to be made by written direction.

• (5) The Scottish Ministers may modify or revoke a direction under paragraph (4).

• (6) The requirement on the Scottish Ministers under regulation 44(5) to take advice from the appropriate nature conservation body does not apply in the period when a direction under paragraph (4) has effect, in respect of any licence granted under the direction.

• (7) Where a direction is revoked, any existing licence granted under the direction continues to have effect (unless the revoking direction provides otherwise).

Licences: supplementary provisions

False statements made for obtaining licence

Offence of breaching licence condition

Duties in relation to wild bird habitat

3A

• (1) Without prejudice to regulation 3(1), the Scottish Ministers, the appropriate nature conservation body and, in relation to the Scottish marine area, a competent authority must take such steps in the exercise of their functions as they consider appropriate to secure the objective in paragraph (3), so far as lies within their powers.

• (2) Except in relation to the Scottish marine area, the Scottish Environment Protection Agency, ... local authorities and National Park authorities must take such steps in the exercise of their functions as they consider appropriate to contribute to the achievement of the objective in paragraph (3).

• (3) The objective is the preservation, maintenance and re-establishment of a sufficient diversity and area of habitat for wild birds in Scotland in implementation of Article 3 of the Wild Birds Directive (including by means of the upkeep, management and creation of such habitat, as appropriate), having regard to the requirements of Article 2 of that Directive.

• (4) Paragraphs (1) and (2) apply in particular to functions under the following enactments:—

• sections 23A to 24 of the Hill Farming Act 1946;

• sections 16 to 18, 20 and 21 of the National Parks and Access to the Countryside Act 1949 (agreements for management of nature reserves, powers of compulsory acquisition of land for nature reserves, and powers to make byelaws for the protection of nature reserves);

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

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

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

• sections 14D to 14P of the Wildlife and Countryside Act 1981 (species control orders);

• sections 7, 8 and 10 of the Deer (Scotland) Act 1996;

• section 1 of the National Parks (Scotland) Act 2000;

• section 22 of the Water Environment and Water Services (Scotland) Act 2003;

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

• the Marine (Scotland) Act 2010;

• the Environmental Authorisations (Scotland) Regulations 2018; and

• any function exercisable in relation to town and country planning.

• (5) In section 79(3)(a) of the Marine (Scotland) Act 2010 (creation of network of conservation sites), the reference to “the conservation or improvement of the marine environment” includes the objective in paragraph (3), and accordingly the duty in section 103 (reports to Parliament) of that Act applies in relation to that objective.

• (6) In considering which measures may be appropriate for the purpose of securing or contributing to the objective in paragraph (3), regard may be had to economic and recreational requirements.

• (7) The Scottish Ministers must take any measures they consider necessary to facilitate or co-ordinate arrangements to secure the taking of steps under paragraphs (1) and (2) by the persons mentioned in those paragraphs.

• (8) So far as lies within its powers, a competent authority must use all reasonable endeavours to avoid pollution or deterioration of habitats of wild birds in Scotland.

Review and guidance

3B

• (1) The appropriate nature conservation body must from time to time—

• (a) review the extent to which the objective in regulation 3A(3) has been met, other than in relation to the Scottish marine area;

• (b) set out the conclusions of the review in a report, including any recommendations for further action; and

• (c) send the report to the Scottish Ministers.

• (2) In carrying out the review, the appropriate nature conservation body must, so far as is reasonable, take account of any measures taken which contribute to the achievement of that objective, whether or not taken pursuant to a requirement imposed by any enactment.

• (3) After consultation with the appropriate nature conservation body, the Scottish Ministers must give guidance to the Scottish Environment Protection Agency, ... local authorities and National Park authorities—

• (a) to facilitate the determination by those bodies of the extent to which the diversity and area of wild bird habitat is sufficient; and

• (b) on the steps that it may be appropriate to take pursuant to regulation 3A(1) or (2).

• (4) In exercising a function to which regulation 3A(1) or (2) applies, a body to which guidance has been given under paragraph (3) of this regulation must have regard to that guidance.

Nature conservation bodies

Relevant authorities in relation to marine areas and European marine sites

Competent authorities generally

Research

111

• (1) The Scottish Ministers must take such steps to encourage research and scientific work as they consider necessary—

• (a) having regard to the objectives in Article 2, and the obligation in Article 11, of the Habitats Directive; and

• (b) for the purpose of the protection or management, and in relation to the use, of any population of wild bird.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) In deciding what steps to take under paragraph (1), the Scottish Ministers must have particular regard to the need for research and scientific work—

• (a) on the subjects listed in Annex V to the Wild Birds Directive; or

• (b) which may be required to implement Articles 4 and 10 of the Habitats Directive.

Duties relating to compliance with the Directives

Marine licences

Marine licences: duty to review

53B

• (1) Subject to paragraph (3), regulations 50 (review of existing decisions and consents, &c.) and 51 (consideration on review) do not apply where—

• (a) a licence was granted by the Scottish Ministers; and

• (b) the conditions in paragraph (2) are met in accordance with that licence.

• (2) The conditions mentioned in paragraph (1) are—

• (a) if the activity to which the licence relates includes an activity mentioned in items 1 or 2 of section 21(1) of the 2010 Act, that the substance or object has been fully deposited;

• (b) if the activity to which the licence relates includes an activity mentioned in items 3 to 7, 9 or 10 of section 21(1) of the 2010 Act, that the activity to which the licence relates has been completed;

• (c) if the activity to which the licence relates includes an activity mentioned in item 8 of section 21(1) of the 2010 Act, that the explosive substance or article has been fully used, or fully deposited and used.

• (3) If a licence was granted by the Scottish Ministers and the activity to which that licence relates includes the construction, alteration or improvement of a generating station, regulations 50 and 51 do not apply to that licence after the date on which that generating station is first operated.

• (4) In this regulation—

• “the 2010 Act” means the Marine (Scotland) Act 2010;

• “activity” means a licensable marine activity and is to be construed in accordance with section 21 of the 2010 Act;

• “generating station” has the meaning given by section 64(1) of the Electricity Act 1989;

• “licence” means a marine licence granted under Part 4 of the 2010 Act.

Interpretation: the Directives

2A

• (1) The Habitats Directive is to be construed for the purposes of these Regulations as if—

• (a) any reference to “the European territory of the Member States to which the Treaty applies” included a reference to the United Kingdom;

• (b) any reference to “Member State” or “Member States” included a reference to the United Kingdom;

• (c) any reference to “of Community interest” included, in relation to the United Kingdom, a reference to “of national interest”;

• (d) in Article 1(d) and (h), references to “the Community” were references to “the European Union or the United Kingdom”; and

• (e) in Article 1(l), the reference to “a site of Community importance designated by the Member States” included, in relation to the United Kingdom, a reference to a site of national importance designated under any of the retained transposing regulations.

• (2) The Wild Birds Directive is to be construed for the purposes of these Regulations as if—

• (a) any reference to “the European territory of the Member States to which the Treaty applies” included a reference to the United Kingdom; and

• (b) any reference to “Member State” or “Member States” included a reference to the United Kingdom.

• (3) Any reference in these Regulations to “the requirements of the Directives” is to be construed as if the objectives of the Directives included the objectives referred to in regulation 9D(2).

• (4) The Scottish Ministers may, after consultation with the appropriate nature conservation body and such other bodies or persons as they consider appropriate, issue guidance as to the interpretation of the requirements of the Directives.

• (5) Any guidance issued under paragraph (4) must be published by the Scottish Ministers in such manner as they consider appropriate.

Duties relating to compliance with the Directives

Reports

3ZA

• (1) Within six years from exit day, and at least every six years thereafter, the Scottish Ministers must publish, in such form as they see fit, a report on the implementation of the measures taken for the purpose of giving effect to the provisions of the Directives, and the achievement of the objectives set out in Article 2 of the Habitats Directive and Articles 2 and 3 of the Wild Birds Directive.

• (2) The report under paragraph (1) must include in particular—

• (a) information concerning conservation measures taken under Article 6(1) of the Habitats Directive;

• (b) information on provisions mentioned in Article 12 of the Wild Birds Directive;

• (c) an evaluation of the impact of those conservation measures on the conservation status of—

• (i) the natural habitat types listed in Annex I of the Habitats Directive, and

• (ii) the species listed in Annex II of that Directive; and

• (d) the main results of the surveillance and monitoring undertaken under regulations 37A and 41A.

Duties in relation to wild bird habitat

Review and guidance

Nature conservation bodies

Relevant authorities in relation to marine areas and European marine sites

Competent authorities generally

Duty to designate special areas of conservation

Priorities for designating special areas of conservation

Management objectives of the UK site network

9D

• (1) The Scottish Ministers must, in co-operation with any other authority having a corresponding responsibility, manage, and where necessary adapt, the UK site network, so far as it consists of European sites in Scotland, with a view to contributing to the achievement of the management objectives of the UK site network.

• (2) The management objectives of the UK site network are—

• (a) to maintain at or, where appropriate, restore to a favourable conservation status in their natural range (so far as it lies in the United Kingdom’s territory, and so far as is proportionate)—

• (i) the natural habitat types listed in Annex I to the Habitats Directive; and

• (ii) the species listed in Annex II to that Directive whose natural range includes any part of the United Kingdom’s territory; and

• (b) to contribute, in their area of distribution, to ensuring the survival and reproduction, and securing compliance with the requirements of Article 2 of the Wild Birds Directive for the purposes of the duty in regulation 3(1), of—

• (i) species of birds listed in Annex I to the Wild Birds Directive which naturally occur in the United Kingdom’s territory; and

• (ii) regularly occurring migratory species of birds not listed in that Annex which naturally occur in the United Kingdom’s territory.

• (3) In complying with the obligation in paragraph (1), the Scottish Ministers must have regard —

• (a) in relation to any European site which is not of a kind mentioned in regulation 10(1)(d), to the considerations mentioned in paragraph (4); and

• (b) in relation to European sites of a kind mentioned in regulation 10(1)(d), to the considerations mentioned in paragraph (5).

• (4) The considerations referred to in paragraph (3)(a) are—

• (a) the importance of the sites for the maintenance at, or restoration to, a favourable conservation status, throughout their natural range, of the natural habitat types and species mentioned in paragraph (2)(a);

• (b) the importance of the sites for the coherence of the UK site network; and

• (c) the threats of degradation or destruction (including deterioration and disturbance of protected features) to which the sites are exposed.

• (5) The considerations referred to in paragraph (3)(b) are—

• (a) the importance of the sites for ensuring the survival and reproduction of, and securing compliance with the requirements of Article 2 of the Wild Birds Directive for the purposes of the duty in regulation 3(1) in relation to, the species of birds mentioned in paragraph (2)(b), in their area of distribution;

• (b) in the case of migratory species, the importance of their breeding, moulting and wintering areas and staging points along their migration routes;

• (c) the importance of the sites for the coherence of UK site network; and

• (d) the threats of degradation or destruction (including deterioration and disturbance of protected features) to which the sites are exposed.

• (6) In paragraph (2)(a), “proportionate” means proportionate to the relative importance of—

• (a) the part of the natural range lying in the United Kingdom’s territory; and

• (b) the part of the natural range lying outside the United Kingdom’s territory,

for achieving a favourable conservation status.

Meaning of “European site” in these Regulations

Transitional provisions: EU exit

112

• (1) Where before exit day a site in Scotland has been adopted in accordance with the procedure set out in Article 4(2) of the Habitats Directive (list of sites of Community importance), the Scottish Ministers must designate that site as a special area of conservation as soon as possible and no later than six years from the date of adoption of that site.

• (2) Paragraph (3) applies where a site in Scotland—

• (a) has before exit day been proposed, in a list of sites transmitted to the European Commission, as eligible for identification as of Community importance in accordance with the procedure laid out in Article 4(2) of the Habitats Directive (list of sites of Community importance); and

• (b) has not yet been so identified as being of Community importance.

• (3) Where this paragraph applies, the Scottish Ministers must within six years of exit day designate the site as a special area of conservation or give notice of their intention not to designate the site as such and in that case must publish, in such form as they see fit, their reasons for not designating it.

Amendment of Schedules

113

• (1) The Scottish Ministers may by regulations amend schedule 2 or 4 for the purpose of adding, to schedule 2 or 4, any species listed in Annex IV(a) or (b) to the Habitats Directive, where they are satisfied that the natural range of that species includes any area in Scotland.

• (2) The Scottish Ministers may by regulations make such other amendments as they consider necessary for adapting schedules 2 to 4 to technical and scientific progress.

• (3) Regulation 115 applies in relation to any amendment made under paragraph (1) or (2).

Amendment of the Annexes to the Directives

114

• (1) Paragraph (2) applies for the purposes of the application of the Annexes so far as they are relevant to any reference in these Regulations to—

• (a) the Directives;

• (b) the Annexes; or

• (c) any provisions of the Directives to which the Annexes relate.

• (2) The Scottish Ministers may by regulations make such amendments to the Annexes as they consider necessary for the purpose of adapting them to technical and scientific progress.

• (3) Regulation 115 applies in relation to any amendment made under paragraph (2).

• (4) In this regulation, “the Annexes” means—

• (a) Annexes I to IV to the Habitats Directive; and

• (b) Annexes I to V to the Wild Birds Directive.

Regulations

115

• (1) Regulations made under regulation 113(2) amending schedule 2, or under regulation 114 amending Annex IV to the Habitats Directive, are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010).

• (2) Regulations made in any other case are subject to the negative procedure.

SCHEDULE 3A — PROHIBITED METHODS OF TAKING OR KILLING WILD ANIMALS

1

The prohibited means of taking or killing mammals are—

• (a) the use of blind or mutilated animals as live decoys;

• (b) tape recorders;

• (c) electrical and electronic devices capable of killing or stunning;

• (d) artificial light sources;

• (e) mirrors and other dazzling devices;

• (f) devices for illuminating targets;

• (g) sighting devices for night shooting comprising an electronic image magnifier or image converter;

• (h) explosives;

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

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

• (k) crossbows;

• (l) poisons and poisoned or anaesthetic bait;

• (m) gassing or smoking out; and

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

2

The prohibited methods of capturing or killing fish are—

• (a) poison; and

• (b) explosives.

3

The prohibited modes of transport are—

• (a) aircraft; and

• (b) moving motor vehicles.

Permits or registrations under the Environmental Authorisations (Scotland) Regulations 2018