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Part 3E+WWildlife etc.

BiodiversityE+W

40Duty to conserve [F1and enhance] biodiversityE+W

[F2(A1)For the purposes of this section “the general biodiversity objective” is the conservation and enhancement of biodiversity in England through the exercise of functions in relation to England.

(1)A public authority which has any functions exercisable in relation to England must from time to time consider what action the authority can properly take, consistently with the proper exercise of its functions, to further the general biodiversity objective.

(1A)After that consideration the authority must (unless it concludes there is no new action it can properly take)—

(a)determine such policies and specific objectives as it considers appropriate for taking action to further the general biodiversity objective, and

(b)take such action as it considers appropriate, in the light of those policies and objectives, to further that objective.

(1B)The requirements of subsection (1A)(a) may be satisfied (to any extent) by revising any existing policies and specific objectives for taking action to further the general biodiversity objective.

(1C)The first consideration required by subsection (1) must be completed by the authority within the period of one year beginning with the day on which section 102 of the Environment Act 2021 comes into force.

(1D)Any subsequent consideration required by subsection (1) must be completed no more than five years after the completion of the authority’s previous consideration.

(1E)A determination required by subsection (1A)(a) must be made as soon as practicable after the completion of the consideration to which it relates.

(1F)Nothing in this section prevents the authority from—

(a)determining or revising policies and specific objectives at any time, or

(b)taking action to further the general biodiversity objective at any time.]

(2)In complying with [F3subsections (1) and (1A)], a Minister of the Crown [F4or government department] must in particular have regard to the United Nations Environmental Programme Convention on Biological Diversity of 1992.

[F5(2A)In complying with subsections (1) and (1A) the authority must in particular have regard to—

(a)any relevant local nature recovery strategy, and

(b)any relevant species conservation strategy or protected site strategy prepared by Natural England.

(2B)The Secretary of State must issue guidance to local planning authorities as to how they are to comply with their duty under subsection (2A)(a) when complying with subsections (1) and (1A) in their capacity as such authorities.

(2C)Guidance under subsection (2B) must be—

(a)published by the Secretary of State in such manner as the Secretary of State thinks fit,

(b)kept under review, and

(c)revised where the Secretary of State considers it appropriate.

(2D)The first guidance under subsection (2B) must be published by the Secretary of State within the period of two years beginning with the day on which section 102 of the Environment Act 2021 comes into force.]

[F6(3)The action which may be taken by the authority to further the general biodiversity objective includes, in particular, action taken for the purpose of—

(a)conserving, restoring or otherwise enhancing a population of a particular species, and

(b)conserving, restoring or otherwise enhancing a particular type of habitat.]

(4)Public authority” means any of the following—

(a)a Minister of the Crown;

F7(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)a public body (including a government department, a local authority [F8 and a local planning authority]);

(d)a person holding an office—

(i)under the Crown,

(ii)created or continued in existence by a public general Act, or

(iii)the remuneration in respect of which is paid out of money provided by Parliament;

(e)a statutory undertaker.

(5)In this section—

  • local authority” means—

    (a)

    [F9a county council in England], a district council, a parish council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly;

    (b)

    F10...

  • "local planning authority" has the same meaning as in the Town and Country Planning Act 1990 (c. 8);

  • "Minister of the Crown" has the same meaning as in the Ministers of the Crown Act 1975 (c. 26);

  • "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 Town and Country Planning Act 1990.

  • F11...

[F12(6)This section has effect in relation to Her Majesty’s Revenue and Customs with the following modifications—

(a)the omission from subsection (A1) of the words “in England” and “in relation to England”;

(b)the omission from subsection (1) of the words from “which” to “England”.

(7)In this section references to England include the territorial sea adjacent to England.]

Textual Amendments

F2S. 40(A1)-(1F) substituted for s. 40(A1)(1) (1.1.2023) by Environment Act 2021 (c. 30), ss. 102(3), 147(3) (with s. 144); S.I. 2022/1266, reg. 2(a)

F4Words in s. 40(2) substituted (21.5.2016) by Environment (Wales) Act 2016 (anaw 3), s. 88(2)(a), Sch. 2 para. 9(2)(c)

F7S. 40(4)(b) omitted (21.5.2016) by virtue of Environment (Wales) Act 2016 (anaw 3), s. 88(2)(a), Sch. 2 para. 9(2)(d)(i)

F8Words in s. 40(4)(c) substituted (21.5.2016) by Environment (Wales) Act 2016 (anaw 3), s. 88(2)(a), Sch. 2 para. 9(2)(d)(ii)

F9Words in s. 40(5)(a) substituted (21.5.2016) by Environment (Wales) Act 2016 (anaw 3), s. 88(2)(a), Sch. 2 para. 9(2)(e)(i)

F10Words in s. 40(5) omitted (21.5.2016) by virtue of Environment (Wales) Act 2016 (anaw 3), s. 88(2)(a), Sch. 2 para. 9(2)(e)(ii)

F11Words in s. 40(5) omitted (21.5.2016) by virtue of Environment (Wales) Act 2016 (anaw 3), s. 88(2)(a), Sch. 2 para. 9(2)(f)

Commencement Information

I1S. 40 in force at 1.10.2006 by S.I. 2006/2541, art. 2 (with Sch.)

[F1340ABiodiversity reportsE+W

(1)This section applies to—

(a)a local authority in England other than a parish council,

(b)a local planning authority in England, and

(c)a designated authority (see subsection (8)(a)).

(2)A public authority to which this section applies (“the authority”) must publish biodiversity reports in accordance with this section.

(3)A biodiversity report so published must contain—

(a)a summary of the action which the authority has taken over the period covered by the report for the purpose of complying with its duties under section 40(1) and (1A),

(b)a summary of the authority’s plans for complying with those duties over the period of five years following the period covered by the report,

(c)any quantitative data required to be included in the report by regulations under subsection (8)(b), and

(d)any other information that the authority considers it appropriate to include in the report.

(4)If the authority is a local planning authority, its biodiversity report must also contain—

(a)a summary of the action taken by the authority in carrying out its functions under Schedule 7A to the Town and Country Planning Act 1990 (biodiversity gain as condition of planning permission) over the period covered by the report,

(b)information about any biodiversity gains resulting or expected to result from biodiversity gain plans approved by the authority during that period, and

(c)a summary of the authority’s plans for carrying out those functions over the five year period following the period covered by the report.

(5)A biodiversity report—

(a)must specify the period covered by the report, and

(b)must be published within the period of 12 weeks following the last day of that period.

(6)The authority’s first biodiversity report must cover a period chosen by the authority which—

(a)is no longer than three years, and

(b)begins with the day on which the authority first becomes subject to the duty under subsection (2).

(7)A subsequent biodiversity report made by the authority must cover a period chosen by the authority which—

(a)is no longer than five years, and

(b)begins with the day after the last day of the period covered by its most recent biodiversity report.

(8)The Secretary of State may by regulations—

(a)provide for specified public authorities, or public authorities of a specified description, to be designated authorities for the purposes of this section;

(b)require biodiversity reports to include specified quantitative data relating to biodiversity in any area of land in England in relation to which the authority exercises any functions.

In this subsection “specified” means specified in the regulations.

(9)Public authorities with no functions exercisable in relation to England may not be designated under subsection (8)(a).

(10)The power to make regulations under subsection (8) is exercisable by statutory instrument.

(11)A statutory instrument containing regulations under subsection (8) is subject to annulment in pursuance of a resolution of either House of Parliament.

(12)Terms used in this section and section 40 have the same meaning as in that section.]

Textual Amendments

41Biodiversity lists and action (England)E+W

(1)The Secretary of State must, as respects England, publish a list of the living organisms and types of habitat which in the Secretary of State's opinion are of principal importance for the purpose of conserving [F14or enhancing] biodiversity.

(2)Before publishing any list the Secretary of State must consult Natural England as to the living organisms or types of habitat to be included in the list.

(3)Without prejudice to section 40(1) [F15and (1A)], the Secretary of State must—

(a)take such steps as appear to the Secretary of State to be reasonably practicable to further the conservation of the living organisms and types of habitat included in any list published under this section, or

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

(4)The Secretary of State must, in consultation with Natural England—

(a)keep under review any list published under this section,

(b)make such revisions of any such list as appear to the Secretary of State appropriate, and

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

Textual Amendments

Commencement Information

I2S. 41 in force at 1.10.2006 by S.I. 2006/2541, art. 2 (with Sch.)

F1642Biodiversity lists and action (Wales)E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Pesticides harmful to wildlifeE+W

43Possession of pesticides harmful to wildlifeE+W

(1)A person is guilty of an offence if he has in his possession a pesticide containing an ingredient that is prescribed for the purposes of this section by an order made by the Secretary of State.

(2)The Secretary of State may not make an order under subsection (1) unless he is satisfied that it is necessary or expedient to do so in the interests of protecting wild birds or wild animals from harm.

(3)It is a defence for a person charged with an offence under this section to prove that his possession of the pesticide was for the purposes of doing anything in accordance with—

(a)provision made by or under the Poisons Act 1972 (c. 66);

(b)regulations made under section 16(2) of the Food and Environment Protection Act 1985 (c. 48);

[F17(c)Regulation (EU) No 528/2012 of the European Parliament and of the Council [F18, as last corrected by a corrigendum (OJ No L 280, 28.10.2017, p 57)];]

[F19(d)Regulation (EC) No 1107/2009 of the European Parliament and of the Council [F20, as last amended by [F21Regulation (EU) 2019/1009 of the European Parliament and of the Council]].]

(4)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding level 5 on the standard scale (or both).

(5)The court by which a person is convicted of an offence under this section may order the forfeiture of the pesticide in respect of which the offence was committed.

(6)The power to make an order under subsection (1) is exercisable by statutory instrument.

(7)A statutory instrument containing an order under subsection (1) is subject to annulment in pursuance of a resolution of either House of Parliament.

(8)The Secretary of State must take such steps as are reasonably practicable to bring information about the effect of an order under subsection (1) to the attention of persons likely to be affected by the order.

(9)In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003 (c. 44), the reference in subsection (4) to 51 weeks is to be read as a reference to 6 months.

44Enforcement powers in connection with pesticidesE+W

(1)An inspector may—

(a)enter any premises if he has reasonable grounds to suspect that he may find there evidence that an offence is being committed under section 43,

(b)require any person whom he reasonably believes has information about the formulation, effects or use of any substance found on the premises to give him that information, and

(c)seize any substance found on the premises, if he has reasonable grounds for believing that it is evidence of an offence under section 43.

(2)Inspector” means—

(a)a person authorised in writing by the Secretary of State to exercise the powers under this section in relation to England;

(b)a person authorised in writing by the National Assembly for Wales to exercise the powers under this section in relation to Wales.

(3)An authorisation under subsection (2) is subject to any conditions or limitations specified in it.

(4)Schedule 2 to the Food and Environment Protection Act 1985 (officers and their powers), other than paragraph 2A(1)(b) of that Schedule, has effect with respect to inspectors as it has effect with respect to persons authorised to enforce Part 3 of that Act.

(5)Subsections (6) and (7) apply where an inspector seizes a substance under subsection (1)(c).

(6)The inspector must give to a person on the premises, or affix conspicuously to some object on the premises, a notice stating—

(a)what he has seized and the ground for seizing it, and

(b)the address for service for any claim for the return of the substance.

(7)The inspector—

(a)may retain the substance for so long as is reasonably necessary for the purposes of any investigation or proceedings in respect of an offence under section 43;

(b)subject to any order for forfeiture under section 43(5) or any claim made within the relevant period by a person entitled to the return of the substance, may retain the substance or, after the relevant period, destroy or otherwise dispose of it.

(8)The relevant period” means the period ending 28 days after—

(a)any proceedings in respect of an offence under section 43 are finally determined, or

(b)if no such proceedings are brought, the time for bringing such proceedings expires.

Commencement Information

I4S. 44 in force at 1.10.2006 by S.I. 2006/2541, art. 2 (with Sch.)

45Codes of practiceE+W

(1)The Secretary of State may—

(a)issue a code of practice in connection with any of the provisions of section 44 or Schedule 2 to the Food and Environment Protection Act 1985 (c. 48) as applied by section 44(4), and

(b)revise or replace such a code.

(2)An inspector must have regard to any relevant provision of a code when discharging any function under any provision mentioned in subsection (1)(a).

(3)But an inspector's failure to have regard to any provision of a code does not make him liable to criminal or civil proceedings.

(4)A code—

(a)is admissible in evidence in any proceedings, and

(b)must be taken into account by a court in any case in which it appears to the court to be relevant.

Commencement Information

I5S. 45 in force at 1.10.2006 by S.I. 2006/2541, art. 2 (with Sch.)

46InterpretationE+W

(1)This section has effect for the interpretation of sections 43 and 44.

(2)Pesticide” means—

(a)a pesticide as defined by section 16(15) of the Food and Environment Protection Act 1985;

(b)anything to which Part 3 of the 1985 Act applies (by virtue of section 16(16) of the Act) as if it were a pesticide.

(3)Wild bird” and “wild animal” have the same meaning as in Part 1 of the Wildlife and Countryside Act 1981 (c. 69).

(4)Premises” includes land (including buildings), movable structures, vehicles, vessels, aircraft and other means of transport.

Commencement Information

I6S. 46 in force at 1.10.2006 by S.I. 2006/2541, art. 2 (with Sch.)

Protection of birdsE+W

47Protection for nests of certain birds which re-use their nestsE+W

(1)Amend the Wildlife and Countryside Act 1981 (c. 69) as follows.

(2)In section 1 (protection of wild birds, their nests and eggs), in subsection (1), after paragraph (a) insert—

(aa)takes, damages or destroys the nest of a wild bird included in Schedule ZA1;.

(3)At the beginning of the Schedules insert—

SCHEDULE ZA1E+WBirds which re-use their nests

NOTE: The common name or names given in the first column of this Schedule are included by way of guidance only; in the event of any dispute or proceedings, the common name or names shall not be taken into account.

Common nameScientific name
Eagle, GoldenAquila chrysaetos
Eagle, White-tailedHaliaetus albicilla
OspreyPandion haliaetus

(4)In—

(a)section 4 (exceptions to sections 1 and 3), in subsection (1)(c), and

(b)section 7 (registration etc. of certain captive birds), in subsection (3A)(a)(i) and (c)(i),

after “Schedule” insert “ ZA1 or ”.

(5)In section 22 (power to vary Schedules), in subsection (1), for “Schedules 1 to 4” substitute “ Schedules ZA1 to 4 ”.

Commencement Information

I7S. 47 in force at 31.5.2006 by S.I. 2006/1382, art. 2

48Birds released into the wild as part of re-population programmeE+W

(1)In section 1 of the 1981 Act (protection of wild birds, their nests and eggs), for subsection (6) substitute—

(6)For the purposes of this section the definition of “wild bird” in section 27(1) is to be read as not including any bird which is shown to have been bred in captivity unless it has been lawfully released into the wild as part of a re-population or re-introduction programme.

(6A)Re-population” and “re-introduction” have the same meaning as in the Directive of the Council of the European Communities dated 2nd April 1979 (No 1979/409/EEC) on the conservation of wild birds.

(2)In section 6 of the 1981 Act (sale etc. of live or dead wild birds, eggs etc.), for subsection (5) substitute—

(5)Any reference in this section to any bird included in Part 1 of Schedule 3 is a reference to any bird included in that Part which—

(a)was bred in captivity,

(b)has been ringed or marked in accordance with regulations made by the Secretary of State, and

(c)has not been lawfully released into the wild as part of a re-population or re-introduction programme.

(5A)Re-population” and “re-introduction” have the same meaning as in the Directive of the Council of the European Communities dated 2nd April 1979 (No 1979/409/EEC) on the conservation of wild birds.

(5B)Regulations made for the purposes of subsection (5)(b) may make different provision for different birds or different provisions of this section.

Commencement Information

I8S. 48 in force at 1.10.2006 by S.I. 2006/2541, art. 2 (with Sch.)

49Registration etc. of certain captive birdsE+W

In section 7 of the 1981 Act (registration etc. of certain captive birds), in subsection (3A), after paragraph (c) insert—

(ca)any offence under subsection (1);.

Commencement Information

I9S. 49 in force at 1.10.2006 by S.I. 2006/2541, art. 2 (with Sch.)

Invasive non-native speciesE+W

50Sale etc. of invasive non-native speciesE+W

After section 14 of the 1981 Act insert—

14ZASale etc. of invasive non-native species

(1)Subject to the provisions of this Part, a person is guilty of an offence if he sells, offers or exposes for sale, or has in his possession or transports for the purposes of sale—

(a)an animal or plant to which this section applies, or

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

(2)Subject to the provisions of this Part, a person is guilty of an offence if he publishes or causes to be published any advertisement likely to be understood as conveying that he buys or sells, or intends to buy or sell—

(a)an animal or plant to which this section applies, or

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

(3)This section applies to an animal or plant which—

(a)is within section 14(1) or (2) (animals and plants which must not be released etc. into the wild),

(b)is of a description prescribed for the purposes of this section by an order made by the Secretary of State, and

(c)is a live animal or live plant.

(4)An order under subsection (3) may be made in relation to a particular area or a particular time of the year.

(5)Subsections (3) and (4) of section 14 (defence of due diligence etc.) apply to an offence under this section as they apply to an offence under that section.

Commencement Information

I10S. 50 in force at 1.10.2006 by S.I. 2006/2541, art. 2 (with Sch.)

51Codes of practice in connection with invasive non-native speciesE+W

After section 14ZA of the 1981 Act insert—

14ZBCodes of practice in connection with invasive non-native species

(1)The Secretary of State may issue or approve a code of practice relating to—

(a)animals which are not ordinarily resident in and are not regular visitors to Great Britain in a wild state,

(b)animals or plants included in Schedule 9, or

(c)any description of animals or plants mentioned in paragraph (a) or (b).

(2)The Secretary of State may revise or replace a code or approve its revision or replacement.

(3)The Secretary of State must ensure that a code is published in a way that is appropriate for bringing it to the attention of persons likely to be affected by it.

(4)A person's failure to comply with a provision of a code does not make him liable to criminal or civil proceedings.

(5)A code—

(a)is admissible in evidence in any proceedings, and

(b)must be taken into account by a court in any case in which it appears to the court to be relevant.

Commencement Information

I11S. 51 in force at 1.10.2006 by S.I. 2006/2541, art. 2 (with Sch.)

Enforcement etc. of provisions relating to wildlifeE+W

52Enforcement powers in connection with wildlifeE+W

Schedule 5 contains amendments relating to enforcement powers in connection with wildlife.

Commencement Information

I12S. 52 in force at 31.5.2006 by S.I. 2006/1382, art. 2

53Wildlife offences: time limits for proceedingsE+W

Schedule 6 contains provisions extending the time limit for summary proceedings for certain offences relating to wildlife.

Commencement Information

I13S. 53 in force at 31.5.2006 by S.I. 2006/1382, art. 2

54Application of Part 1 of 1981 Act to CrownE+W

(1)In the 1981 Act, before section 67 insert—

66AApplication of Part 1 to Crown

(1)Subject to subsections (2) to (5), Part 1 and regulations and orders made under it bind the Crown.

(2)No contravention by the Crown of any provision of Part 1 makes the Crown criminally liable; but the High Court may, on the application of any person appearing to the Court to have an interest, declare unlawful an act or omission of the Crown which constitutes such a contravention.

(3)Despite subsection (2), Part 1 applies to persons in the public service of the Crown as it applies to other persons.

(4)But the powers conferred by sections 18A to 19XA are not exercisable in relation to premises occupied by the Crown.

(5)Nothing in this Part affects Her Majesty in her private capacity.

(6)Subsection (5) is to be read as if section 38(3) of the Crown Proceedings Act 1947 (c. 44) (meaning of Her Majesty in her private capacity) were contained in this Act.

(2)For the heading to section 67, substitute “ Application of Parts 2 and 3 to Crown land ”.

Commencement Information

I14S. 54 in force at 1.10.2006 by S.I. 2006/2541, art. 2 (with Sch.)

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