The Conservation of Habitats and Species Regulations 2017

Made: 30th October 2017

Laid before Parliament: 31st October 2017

Laid before the National Assembly for Wales: 31st October 2017

Coming into force: 30th November 2017

The Secretary of State is designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to the environment, and the Welsh Ministers are designated for those purposes in relation to the conservation of natural habitats and of wild fauna and flora.

The Secretary of State and the Welsh Ministers make these Regulations in exercise of the powers conferred on them by section 2(2) of the European Communities Act 1972 and paragraph 1A of Schedule 2 to that Act , and by section 307(3) and (5) of the Criminal Justice Act 2003 .

These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972 and it appears to the Secretary of State and to the Welsh Ministers that it is expedient for any reference in these Regulations to an Annex to Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora to be construed as a reference to that Annex as amended from time to time.

PART 1 — Introductory and General Provisions

Citation and commencement

1

• (1) These Regulations may be cited as the Conservation of Habitats and Species Regulations 2017.

• (2) These Regulations come into force on 30th November 2017.

Extent

2

• (1) Except as provided in this regulation, these Regulations extend to England and Wales only.

• (2) The following provisions also extend to Scotland—

• (a) regulation 3(8) (meaning of adjacent sea);

• (b) regulations 9 and 10 (duties relating to compliance with the Directive and wild bird habitat, respectively), in so far as those regulations apply in relation to the exercise of a function which relates to a reserved matter (within the meaning of Schedule 5 to the Scotland Act 1998 (reserved matters) );

• (c) regulation 41(4) (national policy statement under Planning Act 2008 );

• (d) Chapter 1 of Part 6 (assessment of plans and projects: general provisions), in so far as that Chapter applies in relation to plans and projects—

• (i) which do not relate to a matter specified in Chapters 2 to 9 of that Part, and

• (ii) which relate to a reserved matter (within the meaning of Schedule 5 to the Scotland Act 1998);

• (e) in regulation 70 (grant of planning permission)—

• (i) paragraph (1)(e)(ii) and (iii) (deemed grant of planning permission under section 57(2) and (2A) of the Town and Country Planning (Scotland) Act 1997 and section 5(1) of the Pipe-lines Act 1962 );

• (ii) paragraph 1(f) (variation of permission deemed to be granted under section 57(2) of the Town and Country Planning (Scotland) Act 1997), in so far as that paragraph relates to a direction under section 57(2ZA) of the Town and Country Planning (Scotland) Act 1997 (development with government authorisation) ; and

• (iii) paragraph (2) in so far as that paragraph relates to sub-paragraph (1)(e)(ii) or (iii), or (1)(f) of that regulation;

• (f) in regulation 71 (planning permission: duty to review), in paragraph (4)—

• (i) sub-paragraph (b);

• (ii) sub-paragraph (d) in so far as that sub-paragraph relates to a direction under section 57(2) of the Town and Country Planning (Scotland) Act 1997;

• (iii) sub-paragraph (e) in so far as that sub-paragraph relates to a direction under section 57(2ZA) of the Town and Country Planning (Scotland) Act 1997;

and paragraph (3) in so far as it relates to directions specified in those sub-paragraphs;

• (g) regulations 84, 85 and 86(2) (development consent under Planning Act 2008);

• (h) Chapter 4 of Part 6 (electricity);

• (i) Chapter 5 of Part 6 (pipe-lines);

• (j) regulation 103 (marine works) in so far as it applies to the granting of a licence under Part 2 of the Food and Environment Protection Act 1985 ;

• (k) regulation 110 (national policy statements under Planning Act 2008), and regulations 105, 107 and 109 in so far as they apply in relation to a national policy statement by virtue of regulation 110;

• (l) regulation 112 (marine policy statement), in so far as it applies in relation to the exercise of any power by the Secretary of State, and regulations 105, 107 and 109 in so far as they apply to marine policy statements by virtue of regulation 112; and

• (m) in Part 1 of Schedule 6 (consequential amendments to primary legislation)—

• (i) sub-paragraphs (2) and (4) of paragraph 8 (amendment of section 123 of the Marine Act); and

• (ii) sub-paragraph (1) of paragraph 8 in so far as it relates to sub-paragraph (2) and (4);

and regulation 139 in so far as it relates to those provisions.

• (3) The following provisions also extend to Scotland in so far as they have effect in relation to the provisions specified in paragraph (2)—

• (a) regulations 1 (citation and commencement), 2 (extent), 3 (interpretation), 5 (nature conservation bodies), 7 (competent authorities) and 8 (European sites and European marine sites);

• (b) Chapter 1 of Part 6 (assessment of plans and projects); and

• (c) regulations 134, 135(3) and 138 (advisory role of the Joint Nature Conservation Committee, advisory role of Scottish Natural Heritage, notices, respectively).

• (4) The following provisions also extend to Northern Ireland—

• (a) regulations 9 and 10, in so far as those regulations apply in relation to the exercise of a function which relates to an excepted matter (within the meaning given by section 4(1) of the Northern Ireland Act 1998 );

• (b) Chapter 1 of Part 6, in so far as that Chapter applies in relation to plans and projects—

• (i) which do not relate to a matter specified in Chapters 2 to 9 of that Part; and

• (ii) which relate to an excepted matter (within the meaning given by section 4(1) of the Northern Ireland Act 1998);

• (c) regulation 103, in so far as it applies in relation to a marine licence under Part 4 of the Marine Act in respect of anything done in the course of carrying on an activity which relates to a matter which is an excepted matter by virtue of paragraph 4 of Schedule 2 to the Northern Ireland Act 1998 (defence of the realm etc.);

• (d) regulation 112, in so far as it applies in relation to the exercise of any power by the Secretary of State, and regulations 105, 107 and 109 in so far as they apply to marine policy statements by virtue of regulation 112; and

• (e) in Part 1 of Schedule 6—

• (i) sub-paragraphs (2) and (4) of paragraph 8;

• (ii) sub-paragraph (1) of paragraph 8 in so far as it relates to sub-paragraphs (2) and (4);

and regulation 139 in so far as it relates to those provisions.

• (5) This regulation and regulations 1, 3, 5, 7, 8, 134 and 138 also extend to Northern Ireland in so far as they have effect in relation to the provisions specified in paragraph (4).

• (6) Chapter 1 of Part 6 also extends to Northern Ireland in so far as it has effect for the purposes of regulation 103, to the extent that that regulation extends to Northern Ireland by virtue of paragraph (4)(c).

• (7) The amendment of any enactment by regulation 139 and Part 2 of Schedule 6 (consequential amendments to secondary legislation) has the same extent as the enactment amended.

• (8) The revocation of any enactment by regulation 140 and Schedule 7 (revocations) has the same extent as the enactment revoked.

Interpretation

3

• (1) In these Regulations—

• “the 1949 Act” means the National Parks and Access to the Countryside Act 1949 ;

• “the 2010 Regulations” means the Conservation of Habitats and Species Regulations 2010 ;

• “the Offshore Marine Conservation Regulations” means the Conservation of Offshore Marine Habitats and Species Regulations 2017 ;

• “the appropriate authority” means the Secretary of State in relation to England and the Welsh Ministers in relation to Wales (but see modifications of the meaning of that term in regulations 9(4) and 10(12)(a), and modifications of references to that term in regulations 69(1)(b), (3)(c), (5) and (8)(b), 97(6), 110(3)(b) and 112(3)(c)), and any person exercising any function of the Secretary of State or the Welsh Ministers;

• “competent authority” is to be construed in accordance with regulation 7 (competent authorities);

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

• “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” is to be construed accordingly;

• “the devolved administrations” means the Welsh Ministers, the Scottish Ministers, and, in Northern Ireland, the Department of Agriculture, Environment and Rural Affairs;

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

• “enactment” includes a local enactment and an enactment contained in subordinate legislation, and “subordinate legislation” has the same meaning as in the Interpretation Act 1978 ;

• “English inshore region” means the area of sea within the seaward limits of the territorial sea adjacent to England;

• “European marine site” has the meaning given by regulation 8(3) (European sites and European marine sites);

• “European offshore marine site” means a European offshore marine site within the meaning of regulation 18 of the Offshore Marine Conservation Regulations (meaning of European offshore marine site);

• “European site” has the meaning given by regulation 8;

• “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 ;

• “land” includes land covered by water;

• “local planning authority” means, except as otherwise provided, any authority having any function as a local planning authority or mineral planning authority under the TCPA 1990;

• “management agreement” means an agreement made, or having effect as if made, under regulation 20 (management agreements);

• “the Marine Act” means the Marine and Coastal Access Act 2009 ;

• “marine area” means (subject to regulations 9(5) and 10(12)(b)) the English inshore region and the Welsh inshore region;

• “the national 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;

• “Natura 2000” means the European network of special areas of conservation, and special protection areas under the old Wild Birds Directive or the new Wild Birds Directive, provided for by Article 3(1) of the Habitats Directive (network of special areas of conservation: Natura 2000) (but see paragraphs (10) and (11));

• “natural habitats” has the meaning given by Article 1(b) of the Habitats Directive;

• “nature conservation body” and “appropriate nature conservation body” have the meaning given by regulation 5 (nature conservation bodies);

• “the new Wild Birds Directive” means Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds ;

• “Northern Ireland inshore region” means the area of sea within the seaward limits of the territorial sea adjacent to Northern Ireland;

• “officer”—in relation to a body corporate, means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, andin relation to an unincorporated body, means any member of its governing body or a chief executive, manager or other similar officer of the body;

• “offshore marine area” has the meaning given by regulation 4(2) (Plans or projects relating to offshore marine area or offshore marine installations)

• “the old Wild Birds Directive” means Council Directive 79/409/EEC on the conservation of wild birds ;

• “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;

• “relevant authorities”, in relation to marine areas and European marine sites, is to be construed in accordance with regulation 6 (relevant authorities in relation to marine areas and European marine sites);

• “relevant licensing body” has the meaning given by regulation 58 (relevant licensing body);

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

• “research” includes inquiries and investigations;

• “the retained transposing regulations”, means—the Offshore Marine Conservation Regulations 2017 ;the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995;the Conservation (Natural Habitats, &c.) Regulations 1994; andthese Regulations;and “the other retained transposing regulations” means the retained transposing regulations other than these Regulations;

• “sample” means a sample of blood, tissue or other biological material;

• “Scottish inshore region” means the area of sea within the seaward limits of the territorial sea adjacent to Scotland;

• “sea” includes—any area submerged at mean high water spring tide, andthe waters of every estuary, river or channel, so far as the tide flows at mean high water spring tide,and any reference to an area of sea includes the bed and subsoil of the sea within that area;

• “ship” means any vessel (including hovercraft, submersible craft and other floating craft) other than one which permanently rests on, or is permanently attached to, the seabed;

• “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;

• “specimen”—for the purposes of Part 7 (enforcement), means any animal or plant, or any part of, or anything derived from, an animal or plant; andfor all other purposes has the meaning given by Article 1(m) of the Habitats Directive;

• “statutory undertaker” means a person who is, or is deemed to be, a statutory undertaker for the purposes of any provision of Part 11 of the TCPA 1990 (statutory undertakers);

• “the TCPA 1990” means the Town and Country Planning Act 1990 ;

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

• “the WCA 1981” means the Wildlife and Countryside Act 1981 ;

• “Welsh inshore region” means the area of sea within the seaward limits of the territorial sea adjacent to Wales;

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

• (2) The area of sea referred to in sub-paragraph (a) of the definition of “sea” in paragraph (1) includes waters in any area—

• (a) which is closed, whether permanently or intermittently, by a lock or other artificial means against the regular action of the tide, but

• (b) into and from which seawater is caused or permitted to flow, whether continuously or from time to time.

• (3) Terms not defined in paragraph (1) which are used in these Regulations and also in the Habitats Directive have the meaning they bear in that Directive.

• (4) In these Regulations, any reference to an Annex to the Habitats Directive is a reference to that Annex to that Directive as it had effect immediately before exit day, or as subsequently amended under regulation 144.

• (5) Subject to regulation 86(1) (which relates to the construction of provisions of Chapter 2 of Part 6 as one with the TCPA 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.

• (6) Except as provided by paragraph (7), for the purposes of these Regulations—

• (a) any reference to England includes the English inshore region;

• (b) any reference to Wales includes the Welsh inshore region;

• (c) any reference to Scotland includes the Scottish inshore region;

• (d) any reference to Great Britain includes the English inshore region, the Welsh inshore region and the Scottish inshore region;

• (e) any reference to Northern Ireland includes the Northern Ireland inshore region; and

• (f) any reference to the United Kingdom includes its internal waters and the English inshore region, the Welsh inshore region, the Scottish inshore region and the Northern Ireland inshore region.

• (7) Paragraph (6) does not apply for the purposes of—

• (a) in paragraph (1), the definitions of “English inshore region”, “Welsh inshore region”, “Scottish inshore region” and “Northern Ireland inshore region”;

• (b) paragraph (8); or

• (c) sub-paragraph (b) of the definition of “offshore marine area” in regulation 4(2).

• (8) For the purposes of these Regulations—