PART IE+W+SINTRODUCTORY PROVISIONS

Citation and commencementE+W+S

1.—(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 applicationE+W+S

2.—(1) In these Regulations–

[F1“the 2004 Act” means the Nature Conservation (Scotland) Act 2004;]

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

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

“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;

“enactment” includes a local enactment and an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978(3);

“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;

[F2“the Habitats Directive” means Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora as amended by the Act of Accession to the European Union of Austria, Finland and Sweden(5) and by Council Directive 97/62/EC(6).]

[F2“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;]

[F3“land” includes land covered by water and as respects Scotland includes salmon fishings;]

[F3“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–

“local planning authority” means–

“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;

[F4“natural feature” in relation to land means–

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

[F5“occupier”, for the purposes of Part III (protection of species), includes, in relation to any land other than the foreshore, any person having any right of hunting, shooting, fishing or taking game or fish;]

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

“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;

[F6“statutory undertaker ” has the same meaning as in the National Parks and Access to the Countryside Act 1949](6);

[F6“statutory undertaker” has the meaning given in section 58(1) of the 2004 Act;]

“the Wild Birds Directive” means Council Directive 79/409/EEC(7) on the conservation of wild birds [F7as last amended by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded].

[F8(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 used in these Regulations and in the Habitats Directive have the same meaning as in that Directive.

The following expressions, in particular, are defined in Article 1 of that Directive–

• “priority natural habitat types” and “priority species”;

• “site” and “site of Community importance”; and

• “special area of conservation”.

(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.

Implementation of DirectiveE+W+S

3.—(1) These Regulations make provision for the purpose of implementing, for Great Britain, [F9the Habitats Directive.]

(2) The Secretary of State, the Minister of Agriculture, Fisheries and Food and the nature conservation bodies shall exercise their functions under the enactments relating to nature conservation so as to secure compliance with the requirements of the Habitats Directive.

Those enactments include–

• Part III of the National Parks and Access to the Countryside Act 1949(8),

• section 49A of the Countryside (Scotland) Act 1967(9) (management agreements),

• section 15 of the Countryside Act 1968(10) (areas of special scientific interest),

• Part I and sections [F1028 to 38] [F1035 to 37] of the Wildlife and Countryside Act 1981(11),

• sections 131 to 134 of the Environmental Protection Act 1990(12),

• sections 2, 3, 5, 6, 7 and 11 of the Natural Heritage (Scotland) Act 1991(13), and these Regulations.

• [F11Part 2 of the 2004 Act]

(3) In relation to marine areas any competent authority having functions relevant to marine conservation shall exercise those functions so as to secure compliance with the requirements of the Habitats Directive.

This applies, in particular, to functions under the following enactments–

• the Sea Fisheries Acts within the meaning of section 1 of the Sea Fisheries (Wildlife Conservation) Act 1992(14),

• the Dockyard Ports Regulation Act 1865(15),

• section 2(2) of the Military Lands Act 1900(16) (provisions as to use of sea, tidal water or shore),

• the Harbours Act 1964(17),

• Part II of the Control of Pollution Act 1974(18),

• sections 36 and 37 of the Wildlife and Countryside Act 1981(19) (marine nature reserves),

• sections 120 to 122 of the Civic Government (Scotland) Act 1982(20) (control of the seashore, adjacent waters and inland waters),

• the Water Resources Act 1991(21),

• the Land Drainage Act 1991(22),

• [F12Part 1 of the Water Environment and Water Services (Scotland) Act 2003 ,the Water Environment (Controlled Activities) (Scotland) Regulations 2005], and

• these Regulations.

(4) Without prejudice to the preceding provisions, every competent authority in the exercise of any of their functions, shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions.

Nature conservation bodiesE+W+S

4.  In these Regulations “nature conservation body” means the Nature Conservancy Council for 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.

Relevant authorities in relation to marine areas and European marine sitesE+W+S

5.  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, [F13county borough 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(23);

(e)a harbour authority within the meaning of the Harbours Act 1964(24);

(f)a lighthouse authority;

(g)[F14the Scottish Environment Protection Agency] or a district salmon fishery board;

(h)a local fisheries committee constituted under the Sea Fisheries Regulation Act 1966(25) or any authority exercising the powers of such a committee;

[F15(i)a National Park authority established by order under section 6 of the National Parks (Scotland) Act 2000.]

Competent authorities generallyE+W+S

6.—(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 [F16or 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, [F17county borough,] council or community council, and

(c)in relation to Scotland, means a regional, islands or district council;

• “joint board” and “joint committee” in relation to England and Wales mean–

  (a)

  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(26), or a joint planning board within the meaning of section 2 of the Town and Country Planning Act 1990, and

  (b)

  a 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(27).

PART IIE+W+SCONSERVATION OF NATURAL HABITATS AND HABITATS OF SPECIES

European sitesE+W+S

Selection of sites eligible for identification as of Community importanceE+W+S

7.—(1) On the basis of the criteria set out in Annex III (Stage 1) to the Habitats Directive, and relevant scientific information, the Secretary of State shall propose a list of sites indicating with respect to each site–

(a)which natural habitat types in Annex I to the Directive the site hosts, and

(b)which species in Annex II to the Directive that are native to Great Britain the site hosts.

(2) For animal species ranging over wide areas these sites shall correspond to the places within the natural range of such species which present the physical or biological factors essential to their life and reproduction.

For aquatic species which range over wide areas, such sites shall be proposed only where there is a clearly identifiable area representing the physical and biological factors essential to their life and reproduction.

(3) Where appropriate the Secretary of State may propose modification of the list in the light of the results of the surveillance referred to in Article 11 of the Habitats Directive.

(4) The list shall be transmitted to the Commission on or before 5th June 1995, together with information on each site including–

(a)a map of the site,

(b)its name, location and extent, and

(c)the data resulting from application of the criteria specified in Annex III (Stage 1),

provided in a format established by the Commission.

Adoption of list of sites: designation of special areas of conservationE+W+S

8.—(1) Once a site of Community importance in Great Britain has been adopted in accordance with the procedure laid down in paragraph 2 of Article 4 of the Habitats Directive, the Secretary of State shall designate that site as a special area of conservation as soon as possible and within six years at most.

(2) The Secretary of State shall establish priorities for the designation of sites in the light of–

(a)the importance of the sites for the maintenance or restoration at a favourable conservation status of–

(i)a natural habitat type in Annex I to the Habitats Directive, or

(ii)a species in Annex II to the Directive,

and for the coherence of Natura 2000; and

(b)the threats of degradation or destruction to which those sites are exposed.

Consultation as to inclusion of site omitted from the listE+W+S

9.  If consultation is initiated by the Commission in accordance with Article 5(1) of the Habitats Directive with respect to a site in Great Britain hosting a priority natural habitat type or priority species and–

(a)the Secretary of State agrees that the site should be added to the list transmitted in accordance with regulation 7, or

(b)the Council, acting on a proposal from the Commission in pursuance of paragraph 2 of Article 5 of the Habitats Directive, so decides,

the site shall be treated as added to the list as from the date of that agreement or decision.

Meaning of “European site” in these RegulationsE+W+S

10.—(1) In these Regulations a “European site” means–

(a)a special area of conservation,

(b)a site of Community importance which has been placed on the list referred to in the third sub–paragraph of Article 4(2) of the Habitats Directive,

(c)a site hosting a priority natural habitat type or priority species in respect of which consultation has been initiated under Article 5(1) of the Habitats Directive, during the consultation period or pending a decision of the Council under Article 5(3), [F18or]

(d)an area classified pursuant to Article 4(1) or (2) of the Wild Birds Directive [F19, or

(e)a site F20... included in a list of sites proposed under regulation 7(1).]

(2) Sites which are European sites by virtue only of paragraph (1)(c) are not within [F21regulations 20(1) and (2), 24 and] [F21regulation] 48 (which [F22relate] [F22relates] to the approval of certain plans and projects); but this is without prejudice to their protection under other provisions of these Regulations.

Register of European sitesE+W+S

Duty to compile and maintain register of European sitesE+W+S

11.—(1) The Secretary of State shall compile and maintain, in such form as he thinks fit, a register of European sites in Great Britain.

(2) He shall include in the register–

(a)special areas of conservation, as soon as they are designated by him;

(b)sites of Community importance as soon as they are placed on the list referred to in the third sub–paragraph of Article 4(2) of the Habitats Directive, until they are designated as special areas of conservation;

(c)any site hosting a priority natural habitat type or priority species in respect of which consultation is initiated under Article 5(1) of the Habitats Directive, during the consultation period or pending a Council decision under Article 5(3); and

(d)areas classified by him pursuant to Article 4(1) or (2) of the Wild Birds Directive, as soon as they are so classified or, if they have been classified before the commencement of these Regulations, as soon as practicable after commencement [F23; and

(e)any site in Scotland included in a list of sites proposed under regulation 7(1).]

(3) He may, if appropriate, amend the entry in the register relating to a European site.

(4) He shall remove the relevant entry–

(a)if a special area of conservation is declassified by the Commission under Article 9 of the Habitats Directive; or

(b)if a site otherwise ceases to fall within any of the categories listed in paragraph (2) above.

(5) He shall keep a copy of the register available for public inspection at all reasonable hours and free of charge.

Notification to appropriate nature conservation bodyE+W+S

12.—(1) The Secretary of State shall notify the appropriate nature conservation body as soon as may be after including a site in the register, amending an entry in the register or removing an entry from the register.

(2) Notification of the inclusion of a site in the register shall be accompanied by a copy of the register entry.

(3) Notification of the amendment of an entry in the register shall be accompanied by a copy of the amended entry.

(4) Each nature conservation body shall keep copies of the register entries relating to European sites in their area available for public inspection at all reasonable hours and free of charge.

Notice to landowners, relevant authorities, &c.E+W+S

13.—(1) As soon as practicable after a nature conservation body receive notification under regulation 12 they shall give notice to–

(a)every owner or occupier of land within the site,

(b)every local planning authority in whose area the site, or any part of it, is situated, and

(c)such other persons or bodies as the Secretary of State may direct.

(2) Notice of the inclusion of a site in the register, or of the amendment of an entry in the register, shall be accompanied by a copy of so much of the relevant register entry as relates to land owned or occupied by or, as the case may be, to land within the area of, the person or authority to whom the notice is given.

(3) The Secretary of State may give directions as to the form and content of notices to be given under this regulation.

Local registration: England and WalesE+W+S

14.  An entry in the register relating to a European site in England and Wales is a local land charge.

Local registers: ScotlandE+W+S

15.—(1) A planning authority in Scotland shall keep available at their principal office for free public inspection a register of all the European sites of which they have been given notice under regulation 13(1)(b).

(2) A planning authority in Scotland may keep available at any other of their offices for free public inspection such part of the register referred to in paragraph (1) as appears to them to relate to that part of their area in which such office is situated.

(3) A planning authority shall supply to any person, on payment of such reasonable fee as they may determine, a copy, certified by the proper officer of the authority to be a true copy, of any entry in the register kept by them under paragraph (1).

Management agreementsE+W+S

Management agreementsE+W+S

16.—(1) The appropriate nature conservation body may enter into an agreement (a “management agreement”) with every owner, lessee and occupier of land forming part of a European site, or land adjacent to such a site, for the management, conservation, restoration or protection of the site, or any part of it.

(2) A management agreement may impose such restrictions as may be expedient for the purposes of the agreement on the exercise of rights over the land by the persons who can be bound by the agreement.

(3) A management agreement–

(a)may provide for the management of the land in such manner, the carrying out thereon of such work and the doing thereon of such other things as may be expedient for the purposes of the agreement;

(b)may provide for any of the matters mentioned in sub–paragraph (a) being carried out, or for the costs thereof being defrayed, either by the said owner or other persons or by the appropriate nature conservation body, or partly in one way and partly in another;

(c)may contain such other provisions as to the making of payments by the appropriate nature conservation body, and in particular for the payment by them of compensation for the effect of the restrictions mentioned in paragraph (2), as may be specified in the agreement.

(4) Where land in England and Wales is subject to a management agreement, the appropriate nature conservation body shall, as respects the enforcement of the agreement against persons other than the original contracting party, have the like rights as if–

(a)they had at all material times been the absolute owners in possession of ascertained land adjacent to the land subject to the agreement and capable of being benefited by the agreement, and

(b)the management agreement had been expressed to be for the benefit of that adjacent land;

and section 84 of the Law of Property Act 1925(28) (which enables the Lands Tribunal to discharge or modify restrictive covenants) shall not apply to the agreement.

(5) A management agreement affecting land in Scotland may be registered either–

(a)in a case where the land affected by the agreement is registered in that register, in the Land Register of Scotland, or

(b)in any other case, in the General Register of Sasines;

and, on being so recorded, it shall be enforceable at the instance of the appropriate nature conservation body against any person having an interest in the land and against any person deriving title from him:

• Provided that a management agreement shall not be so enforceable against a third party who has bona fide onerously acquired right (whether completed by infeftment or not) to his interest in the land prior to the agreement being recorded as aforesaid, or against any person deriving title from such third party.

Continuation in force of existing agreement, &c.E+W+S

17.—(1) [F24Any agreement previously entered into under–

(a)section 16 of the National Parks and Access to the Countryside Act 1949(29) (nature reserves),

(b)section 15 of the Countryside Act 1968(30) (areas of special scientific interest), or

(c)section 49A of the Countryside (Scotland) Act 1967(31) (management agreements),

in relation to land which on or after the commencement of these Regulations becomes land within a European site, or adjacent to such a site, shall have effect as if entered into under regulation 16 above.

• Regulation 32(1)(b) (power of compulsory acquisition in case of breach of agreement) shall apply accordingly.]

(2) [F24Any other thing done or deemed to have been done under any provision of Part III or VI of the National Parks and Access to the Countryside Act 1949, or under section 49A of the Countryside (Scotland) Act 1967, in respect of any land prior to that land becoming land within a European site, or adjacent to such a site, shall continue to have effect as if done under the corresponding provision of these Regulations.]

For the purposes of this paragraph Part III of the 1949 Act shall be deemed to include section 15 of the Countryside Act 1968 and anything done or deemed to be done under that section and to which this paragraph applies shall have effect as if done or deemed to be done under section 16 of the 1949 Act.

(3) Any reference in an outlying enactment to a nature reserve within the meaning of section 15 of the National Parks and Access to the Countryside Act 1949 shall be construed as including a European site.

For this purpose an “outlying enactment” means an enactment not contained in, or in an instrument made under, the National Parks and Access to the Countryside Act 1949 or the Wildlife and Countryside Act 1981(32).

[F25Control of potentially damaging operations]E+W+S

Notification of potentially damaging operationsE+W

18.—(1) Any notification in force in relation to a European site under section 28 of the Wildlife and Countryside Act 1981 (areas of special scientific interest) specifying–

(a)the flora, fauna, or geological or physiographical features by reason of which the land is of special interest, and

(b)any operations appearing to the appropriate nature conservation body to be likely to damage that flora or fauna or those features,

shall have effect for the purposes of these Regulations.

(2) The appropriate nature conservation body may, for the purpose of securing compliance with the requirements of the Habitats Directive, at any time amend the notification with respect to any of the matters mentioned in paragraph (1)(a) or (b).

(3) Notice of any amendment shall be given–

(a)to every owner and occupier of land within the site who in the opinion of the appropriate nature conservation body may be affected by the amendment, and

(b)to the local planning authority;

and the amendment shall come into force in relation to an owner or occupier upon such notice being given to him.

(4) The provisions of–

(a)section 28(11) of the Wildlife and Countryside Act 1981 (notification to be local land charge in England and Wales), and

(b)section 28(12) to (12B)(33) of that Act (local registration of notification in Scotland),

apply, with the necessary modifications, in relation to an amendment of a notification under this regulation as in relation to the original notification.

[F87Offence of intentional or reckless damage to a European siteS

18.—(1) Any person who intentionally or recklessly damages any natural feature by reason of which land is a European site is, subject to paragraph (2), guilty of an offence.

(2) Any person who does anything which would, but for this paragraph, amount to an offence under paragraph (1) is not guilty of the offence if it is shown that–

(a)the act was the incidental result of a lawful operation,

(b)the person who carried out the lawful operation–

(i)took reasonable precautions for the purpose of avoiding carrying out the act, or

(ii)did not foresee, and could not reasonably have foreseen, that the act would be an incidental result of the carrying out of the lawful operation, and

(c)that person took such steps as were reasonably practicable in all the circumstances to minimise the damage caused.

(3) Any person guilty of an offence under paragraph (1) is liable–

(a)on summary conviction, to a fine not exceeding level 5 on the standard scale,

(b)on conviction on indictment, to a fine.]

Restriction on carrying out operations specified in notificationE+W

19.—(1) The owner or occupier of any land within a European site shall not carry out, or cause or permit to be carried out, on that land any operation specified in a notification in force in relation to the site under regulation 18, unless–

(a)one of them has given the appropriate nature conservation body written notice of a proposal to carry out the operation, specifying its nature and the land on which it is proposed to carry it out, and

(b)one of the conditions specified in paragraph (2) is fulfilled.

(2) Those conditions are–

(a)that the operation is carried out with the written consent of the appropriate nature conservation body;

(b)that the operation is carried out in accordance with the terms of a management agreement;

(c)that four months have expired from the giving of the notice under paragraph (1)(a).

(3) A person who, without reasonable excuse, contravenes paragraph (1) commits an offence and is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(4) For the purposes of paragraph (3) it is a reasonable excuse for a person to carry out an operation–

(a)that the operation was an emergency operation particulars of which (including details of the emergency) were notified to the appropriate nature conservation body as soon as practicable after the commencement of the operation; or

(b)that the operation was authorised by a planning permission granted on an application under Part III of the Town and Country Planning Act 1990(34) or Part III of the Town and Country Planning (Scotland) Act 1972(35).

(5) The appropriate nature conservation body has power to enforce this regulation; but nothing in this paragraph shall be construed as authorising the institution of proceedings in Scotland for an offence.

(6) Proceedings in England and Wales for an offence under this regulation shall not, without the consent of the Director of Public Prosecutions, be taken by a person other than the appropriate nature conservation body.

[F87Application of Chapters 2, 3 and 4 of Part 2 of the 2004 ActS

19.—(1) Subject to paragraph (2) and regulations 20 to 22, the following provisions of Part 2 of the 2004 Act apply, for the purposes of these Regulations, in relation to European sites–

(a)Chapter 2 (nature conservation orders) and schedule 2 (nature conservation orders and related orders: procedure);

(b)Chapter 3 (land management orders) and schedule 3 (land management orders and related orders: procedure); and

(c)in Chapter 4–

(i)section 39 (acquisition of land by SNH);

(ii)section 40 (restoration orders);

(iii)section 41 (signs, etc.);

(iv)section 43 (powers of investigation etc.: police);

(v)section 44 (powers of entry: authorised persons) and schedule 4 (powers of entry of authorised persons: further provision); and

(vi)section 46 (offences: penalties and time limits);

(2) For the purposes of these Regulations, any reference in the provisions referred to in paragraph (1)(a) to (c)–

(a)to a “natural feature” shall be construed as if it was a reference to a “natural feature” within the meaning of regulation 2 of these Regulations;

(b)to a “site of special scientific interest” shall be construed as if it was a reference to a European site;

(c)to the 2004 Act or any Part thereof, shall be construed as if it was a reference to these Regulations;

(d)to a term defined in the 2004 Act shall, unless the context otherwise requires, bear the same meaning as in that Act.]

Supplementary provisions as to consentsE+W

20.—(1) Where it appears to the appropriate nature conservation body that an application for consent under regulation 19(2)(a) relates to an operation which is or forms part of a plan or project which–

(a)is not directly connected with or necessary to the management of the site, and

(b)is likely to have a significant effect on the site (either alone or in combination with other plans or projects),

they shall make an appropriate assessment of the implications for the site in view of that site’s conservation objectives.

(2) In the light of the conclusions of the assessment, they may give consent for the operation only after having ascertained that the plan or project will not adversely affect the integrity of the site.

(3) The above provisions do not apply in relation to a site which is a European site by reason only of regulation 10(1)(c) (site protected in accordance with Article 5(4)).

(4) Where in any case, whether in pursuance of this regulation or otherwise, the appropriate nature conservation body have not given consent for an operation, but they consider that there is a risk that the operation may nevertheless be carried out, they shall notify the Secretary of State.

(5) They shall take such steps as are requisite to secure that any such notification is given at least one month before the expiry of the period mentioned in regulation 19(2)(c) (period after which operation may be carried out in absence of consent).

[F87Chapter 2 of Part 2 of the 2004 ActS

20.  The provisions of Chapter 2 of Part 2 of the 2004 Act apply for the purposes of these Regulations as if–

(a)in section 23 (nature conservation orders)–

(i)in subsection (2)(a) for “special interest,” there was substituted–

“significance in relation to the objectives of–

(i)Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora as last amended by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded; and

(ii)Council Directive 79/409/EEC on the conservation of wild birds as last amended by that Act”;

(ii)the reference to “international obligation” in subsection (2)(b) included the obligations set out in the Directives referred to in subsection (2)(a) of that section; and

(iii)in subsection (3)(b) for the words from “special interest” to “features,” there was substituted “ significance in relation to the objectives of the Directives referred to in subsection (2)(a) ”; and

(b)in section 27 (offences in relation to nature conservation orders) the reference to “£40,000” was a reference to “level 5 on the standard scale”.]

Provision as to existing notices and consentsE+W

21.—(1) Any notice or consent previously given under section 28(5)(a) or (6)(a) of the Wildlife and Countryside Act 1981 in relation to land which on or after the commencement of these Regulations becomes land within a European site shall have effect, subject as follows, as if given under regulation 19(1)(a) or (2)(a) above.

(2) The appropriate nature conservation body shall review any such consent as regards its compatibility with the conservation objectives of the site, and may modify or withdraw it.

(3) Notice of any such modification or withdrawal of consent shall be given to every owner and occupier of land within the site who in the opinion of the appropriate nature conservation body may be affected by it; and the modification or withdrawal shall come into force in relation to an owner or occupier upon such notice being given to him.

(4) The modification or withdrawal of a consent shall not affect anything done in reliance on the consent before the modification or withdrawal takes effect.

(5) Where or to the extent that an operation ceases to be covered by a consent by reason of the consent being modified or withdrawn, the period after which in accordance with regulation 19(2)(c) the operation may be carried out in the absence of consent shall be four months from the giving of notice of the modification or withdrawal under paragraph (3) above.

(6) Regulation 20(4) and (5) (provisions as to notification of Secretary of State) apply in such a case, with the following modifications–

(a)for the reference to consent not having been given substitute a reference to consent being modified or withdrawn;

(b)for the reference to the period specified in regulation 19(2)(c) substitute a reference to the period specified in paragraph (5) above.

[F87Chapter 3 of Part 2 of the 2004 ActS

21.  The provisions of Chapter 3 of Part 2 of the 2004 Act apply for the purposes of these Regulations as if–

(a)any reference to a “management agreement” included a reference to a management agreement entered into under regulation 16 of these Regulations;

(b)in section 29(2)(b) (proposals for land management orders) for “specified in an SSSI notification” there was substituted “ by reason of which land is a European site ”;

(c)in section 36(3)(a) (offences in relation to land management orders) the reference to “£40,000” was a reference to “level 5 on the standard scale”.]

[F26Special nature conservation orders]E+W+S

Power to make special nature conservation orderE+W

22.—(1) The Secretary of State may, after consultation with the appropriate nature conservation body, make in respect of any land within a European site an order (a “special nature conservation order”) specifying operations which appear to him to be likely to destroy or damage the flora, fauna, or geological or physiographical features by reason of which the land is a European site.

(2) A special nature conservation order may be amended or revoked by a further order.

(3) Schedule 1 has effect with respect to the making, confirmation and coming into operation of special nature conservation orders and amending or revoking orders.

(4) A special nature conservation order in relation to land in England and Wales is a local land charge.

(5) A special nature conservation order in relation to land in Scotland shall be registered either–

(a)in a case where the land affected by the order is registered in that Register, in the Land Register of Scotland; or

(b)in any other case, in the appropriate Division of the General Register of Sasines.

(6) A report submitted by a nature conservation body to the Secretary of State under paragraph 20 of Schedule 6 to the Environmental Protection Act 1990(36) or section 10(2) of the Natural Heritage (Scotland) Act 1991(37) shall set out particulars of any land in their area as respects which a special nature conservation order has come into operation during the year to which the report relates.

[F87Chapter 4 of Part 2 of the 2004 ActS

22.   The provisions of Chapter 4 of Part 2 of the 2004 Act referred to in regulation 19(1)(c) apply for the purposes of these Regulations as if–

(a)any reference to “protected natural feature” was a reference to a natural feature–

(i)by reason of which the land is a European site; or

(ii)by reason of which a nature conservation order has effect;

(b)in section 40 (restoration orders)–

(i)in subsection (1)(b), the reference to “19(3)” was omitted; and

(ii)in subsection (4)(a), the reference to “£40,000” was a reference to “level 5 on the standard scale”;

(c)in section 41(1) (signs etc.) for the words from “any land” to the end there was substituted “ a European site ”;

(d)in section 43 (powers of investigation etc.: police) the references to “this Part” in each place where they occur were references to regulations 18 to 22 of these Regulations; and

(e)in section 44 (powers of entry: authorised persons)–

(i)in subsection (i)–

(a)paragraphs (a) and (j) were omitted;

(b)in paragraphs (c) and (d), the reference to “management agreement” included a reference to a management agreement entered into under regulation 16 of these Regulations;

(c)in paragraph (f), for the words from “section 19(1)” to “20” there were substituted references to regulations 18 to 22 of these Regulations;

(d)in paragraph (l), the reference to “section 48(10)” was a reference to regulation 108 of these Regulations; and

(ii)in subsection (2)(c), the reference to “section 48(10)” was a reference to regulation 108 of these Regulations.]

[F27Restriction on carrying out operations specified in orderE+W

23.—(1) No person shall carry out on any land within a European site in respect of which a special nature conservation order is in force any operation specified in the order, unless the operation is carried out, or caused or permitted to be carried out, by the owner or occupier of the land and–

(a)one of them has, after the making of the order, given the appropriate nature conservation body written notice of a proposal to carry out the operation, specifying its nature and the land on which it is proposed to carry it out, and

(b)one of the conditions specified in paragraph (2) is fulfilled.

(2) Those conditions are–

(a)that the operation is carried out with the written consent of the appropriate nature conservation body;

(b)that the operation is carried out in accordance with the terms of a management agreement.

(3) A person who, without reasonable excuse, contravenes paragraph (1) commits an offence and is liable–

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

(4) For the purposes of paragraph (3) it is a reasonable excuse for a person to carry out an operation–

(a)that the operation was an emergency operation particulars of which (including details of the emergency) were notified to the appropriate nature conservation body as soon as practicable after the commencement of the operation; or

(b)that the operation was authorised by a planning permission granted on an application under Part III of the Town and Country Planning Act 1990 or Part III of the Town and Country Planning (Scotland) Act 1972.]

Supplementary provisions as to consentsE+W+S

24.—(1) Where it appears to the appropriate nature conservation body that an application for consent under regulation 23(2)(a) relates to an operation which is or forms part of a plan or project which–

(a)is not directly connected with or necessary to the management of the site, and

(b)is likely to have a significant effect on the site (either alone or in combination with other plans or projects),

they shall make an appropriate assessment of the implications for the site in view of that site’s conservation objectives.

(2) In the light of the conclusions of the assessment, they may give consent for the operation only after having ascertained that the plan or project will not adversely affect the integrity of the site.

(3) Where the appropriate nature conservation body refuse consent in accordance with paragraph (2) they shall give reasons for their decision.

(4) The owner or occupier of the land in question may–

(a)within two months of receiving notice of the refusal of consent, or

(b)if no notice of a decision is received by him within three months of an application for consent being made,

by notice in writing to the appropriate nature conversation body require them to refer the matter forthwith to the Secretary of State.

(5) If on the matter being referred to the Secretary of State he is satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (6), may be of a social or economic nature), he may direct the appropriate nature conservation body to give consent to the operation.

(6) Where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in paragraph (5) must be either–

(a)reasons relating to human health, public safety or beneficial consequences of primary importance to the environment, or

(b)other reasons which in the opinion of the European Commission are imperative reasons of overriding public interest.

(7) Where the Secretary of State directs the appropriate nature conservation body to give consent under this regulation, he shall secure that such compensatory measures are taken as are necessary to ensure that the overall coherence of Natura 2000 is protected.

(8) This regulation does not apply in relation to a site which is a European site by reason only of regulation 10(1)(c) (site protected in accordance with Article 5(4)).

Compensation for effect of orderE+W+S

25.—(1) Where a special nature conservation order is made, the appropriate nature conservation body shall pay compensation to any person having at the time of the making of the order an interest in land comprised in an agricultural unit comprising land to which the order relates who, on a claim made to the appropriate nature conservation body within the time and in the manner prescribed by regulations, shows that the value of his interest is less than it would have been if the order had not been made.

(2) For this purpose an “agricultural unit” means land which is occupied as a unit for agricultural purposes, including any dwelling–house or other building occupied by the same person for the purpose of farming the land.

(3) No claim for compensation shall be made under this regulation in respect of an order unless the Secretary of State has given notice under paragraph 6(1) or (2) of Schedule 1 of his decision in respect of the order.

Restoration where order contravenedE+W+S

26.—(1) Where a person is convicted of an offence under regulation 23, the court by which he is convicted may, in addition to dealing with him in any other way, make an order requiring him to carry out, within such period as may be specified in the order, such operations for the purpose of restoring the land to its former condition as may be so specified.

(2) An order under this regulation made on conviction on indictment shall be treated for the purposes of section 30 of the Criminal Appeal Act 1968(38) (effect of appeals on orders for the restitution of property) as an order for the restitution of property.

(3) In the case of an order under this regulation made by a magistrates' court the period specified in the order shall not begin to run–

(a)in any case until the expiration of the period for the time being prescribed by law for the giving of notice of appeal against a decision of a magistrates' court;

(b)where notice of appeal is given within the period so prescribed, until determination of the appeal.

(4) At any time before an order under this regulation has been complied with or fully complied with, the court by which it was made may, on the application of the person against whom it was made, discharge or vary the order if it appears to the court that a change in circumstances has made compliance or full compliance with the order impracticable or unneccessary.

(5) If a person fails without reasonable excuse to comply with an order under this regulation, he commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale; and if the failure continues after conviction, he may be proceeded against for a further offence from time to time until the order is complied with.

(6) If, within the period specified in an order under this regulation, any operations specified in the order have not been carried out, the appropriate nature conservation body may enter the land and carry out those operations and recover from the person against whom the order was made any expenses reasonably incurred by them in doing so.

(7) In the application of this regulation to Scotland–

(a)paragraphs (2) and (3) shall not apply, and

(b)for the purposes of any appeal or review, an order under this regulation is a sentence.

Continuation in force of existing orders, &c.E+W+S

27.—(1) Where an order is in force under section 29 of the Wildlife and Countryside Act 1981(39) (special protection for certain areas of special scientific interest) in relation to land which on or after the commencement of these Regulations becomes land within a European site, the order shall have effect as if made under regulation 22 above.

(2) Any notice previously given under section 29(4)(a)(40) (notice by owner or occupier of proposal to carry out operation) shall have effect as if given under regulation 23(1)(a) and, if the appropriate nature conservation body have neither given nor refused consent, shall be dealt with under these Regulations.

(3) Any consent previously given under section 29(5)(a) shall be reviewed by the appropriate nature conservation body as regards its compatibility with the conservation objectives of the site, and may be modified or withdrawn.

(4) Notice of any such modification or withdrawal of consent shall be given to every owner and occupier of land within the site who in the opinion of the appropriate nature conservation body may be affected by it; and the modification or withdrawal shall come into force in relation to an owner or occupier upon such notice being given to him.

(5) The modification or withdrawal of a consent shall not affect anything done in reliance on the consent before the modification or withdrawal takes effect.

(6) Section 29(5)(c), (6) and (7) shall cease to apply and the carrying out, or continuation, of any operation on land within a European site which is not otherwise authorised in accordance with these Regulations shall be subject to the prohibition in regulation 23(1).

ByelawsE+W+S

Power to make byelawsE+W+S

28.—(1) The appropriate nature conservation body may make byelaws for the protection of a European site under section 20 of the National Parks and Access to the Countryside Act 1949(41) (byelaws for protection of nature reserves).

(2) Without prejudice to the generality of paragraph (1), byelaws under that section as it applies by virtue of this regulation may make provision of any of the following kinds.

(3) They may–

(a)provide for prohibiting or restricting the entry into, or movement within, the site of persons, vehicles, boats and animals;

(b)prohibit or restrict the killing, taking, molesting or disturbance of living creatures of any description in the site, the taking, destruction or disturbance of eggs of any such creature, the taking of, or interference with, vegetation of any description in the site, or the doing of anything in the site which will interfere with the soil or damage any object in the site;

(c)contain provisions prohibiting the depositing of rubbish and the leaving of litter in the site;

(d)prohibit or restrict, or provide for prohibiting or restricting, the lighting of fires in the site or the doing of anything likely to cause a fire in the site.

(4) They may prohibit or restrict any activity referred to in paragraph (3) within such area surrounding or adjoining the site as appears to the appropriate nature conservation body requisite for the protection of the site.

(5) They may provide for the issue, on such terms and subject to such conditions as may be specified in the byelaws, of permits authorising–

(a)entry into the site or any such surrounding or adjoining area as is mentioned in paragraph (4), or

(b)the doing of anything within the site, or any such surrounding or adjoining area,

where such entry, or doing that thing, would otherwise be unlawful under the byelaws.

(6) They may be made so as to relate either to the whole or to any part of the site, or of any such surrounding or adjoining area as is mentioned in paragraph (4), and may make different provision for different parts thereof.

(7) This regulation does not apply in relation to a European marine site (but see regulation 36).

Byelaws: limitation on effectE+W+S

29.  Byelaws under section 20 of the National Parks and Access to the Countryside Act 1949 as it applies by virtue of regulation 28 shall not interfere with–

(a)the exercise by any person of a right vested in him as owner, lessee or occupier of land in the European site, or in any such surrounding or adjoining area as is mentioned in paragraph (4) of that regulation;

(b)the exercise of any public right of way;

(c)the exercise of any functions of statutory undertakers;

(d)the exercise of any functions of an internal drainage board, a district salmon fishery board or the Commissioners appointed under the Tweed Fisheries Act 1969(42); or

[F28(e)the provision of an electronic communications code network or the exercise of any right conferred by or in accordance with the electronic communications code on the provider of any such network.]

Compensation for effect of byelawsE+W+S

30.  Where the exercise of any right vested in a person, whether by reason of his being entitled to any interest in land or by virtue of a licence or agreement, is prevented or hindered by the coming into operation of byelaws under section 20 of the National Parks and Access to the Countryside Act 1949 as it applies by virtue of regulation 28, he shall be entitled to receive from the appropriate nature conservation body compensation in respect thereof.

Continuation in force of existing byelawsE+W+S

31.  Any byelaws in force under section 20 of the National Parks and Access to the Countryside Act 1949 in relation to land which on or after the commencement of these Regulations becomes land within a European site, or adjacent to such a site, shall have effect as if made under the said section 20 as it applies by virtue of regulation 28 and shall be construed as if originally so made.

Powers of compulsory acquisitionE+W+S

[F29Powers of compulsory acquisitionE+W

32.—(1) Where the appropriate nature conservation body are satisfied–

(a)that they are unable, as respects any interest in land within a European site, to conclude a management agreement on terms appearing to them to be reasonable, or

(b)where they have entered into a management agreement as respects such an interest, that a breach of the agreement has occurred which prevents or impairs the satisfactory management of the European site,

they may acquire that interest compulsorily.

(2) Such a breach as is mentioned in paragraph (1)(b) shall not be treated as having occurred by virtue of any act or omission capable of remedy unless there has been default in remedying it within a reasonable time after notice given by the appropriate nature conservation body requiring the remedying thereof.

(3) Any dispute arising whether there has been such a breach of a management agreement shall be determined–

(a)in the case of land in England and Wales, by an arbitrator appointed by the Lord Chancellor;

(b)in the case of land in Scotland, by an arbiter appointed by the Lord President of the Court of Session.]

Special provisions as to European marine sitesE+W+S

Marking of site and advice by nature conservation bodiesE+W+S

33.—(1) The appropriate nature conservation body may install markers indicating the existence and extent of a European marine site.

This power is exercisable subject to the obtaining of any necessary consent under section 34 of the Coast Protection Act 1949(43) (restriction of works detrimental to navigation).

(2) As soon as possible after a site becomes a European marine site, the appropriate nature conservation body shall advise other relevant authorities as to–

(a)the conservation objectives for that site, and

(b)any operations which may cause deterioration of natural habitats or the habitats of species, or disturbance of species, for which the site has been designated.

Management scheme for European marine siteE+W+S

34.—(1) The relevant authorities, or any of them, may establish for a European marine site a management scheme under which their functions (including any power to make byelaws) shall be exercised so as to secure in relation to that site compliance with the requirements of the Habitats Directive.

(2) Only one management scheme may be made for each European marine site.

(3) A management scheme may be amended from time to time.

(4) As soon as a management scheme has been established, or is amended, a copy of it shall be sent by the relevant authority or authorities concerned to the appropriate nature conservation body.

Direction to establish or amend management schemeE+W+S

35.—(1) The relevant Minister may give directions to the relevant authorities, or any of them, as to the establishment of a management scheme for a European marine site.

(2) Directions may, in particular–

(a)require conservation measures specified in the direction to be included in the scheme;

(b)appoint one of the relevant authorities to co–ordinate the establishment of the scheme;

(c)set time limits within which any steps are to be taken;

(d)provide that the approval of the Minister is required before the scheme is established; and

(e)require any relevant authority to supply to the Minister such information concerning the establishment of the scheme as may be specified in the direction.

(3) The relevant Minister may give directions to the relevant authorities, or any of them, as to the amendment of a management scheme for a European marine site, either generally or in any particular respect.

(4) Any direction under this regulation shall be in writing and may be varied or revoked by a further direction.

(5) In this regulation “the relevant Minister” means, in relation to a site in England, the Secretary of State and the Minister of Agriculture, Fisheries and Food acting jointly and in any other case the Secretary of State.

Byelaws for protection of European marine siteE+W+S

36.—(1) The appropriate nature conservation body may make byelaws for the protection of a European marine site under section 37 of the Wildlife and Countryside Act 1981 (byelaws for protection of marine nature reserves).

(2) The provisions of subsections (2) to (11) of that section apply in relation to byelaws made by virtue of this regulation with the substitution for the references to marine nature reserves of references to European marine sites.

(3) Nothing in byelaws made by virtue of this regulation shall interfere with the exercise of any functions of a relevant authority, any functions conferred by or under an enactment (whenever passed) or any right of any person (whenever vested).

MiscellaneousE+W+S

Nature conservation policy in planning contextsE+W+S

37.—(1) For the purposes of the planning enactments mentioned below, policies in respect of the conservation of the natural beauty and amenity of the land shall be taken to include policies encouraging the management of features of the landscape which are of major importance for wild flora and fauna.

Such features are those which, by virtue of their linear and continuous structure (such as rivers with their banks or the traditional systems of marking field boundaries) or their function as stepping stones (such as ponds or small woods), are essential for the migration, dispersal and genetic exchange of wild species.

(2) The enactments referred to in paragraph (1) are–

(a)in the Town and Country Planning Act 1990(44), section 12(3A) (unitary development plans), section 31(3) (structure plans) and section 36(3)(45) (local plans);

(b)in the Town and Country Planning (Scotland) Act 1972(46), section 5(3)(a) (structure plans) and section 9(3)(a) (local plans)(47).

[F30Surveillance of conservation status of habitats and speciesS

37A.—(1) The Scottish Ministers shall make arrangements for the carrying out of surveillance of the conservation status of natural habitats of Community interest and species of Community interest, and in particular priority natural habitat types and priority species.

(2) Where, in the case of any species of wild fauna and flora listed in Annex V to the Habitats Directive, the Scottish Ministers consider that the results of surveillance under paragraph (1) makes it necessary to do so, they shall make arrangements for ensuring that the taking in the wild of specimens of such species, and their exploitation, is compatible with their being maintained at favourable conservation status.

(3) The arrangements to be made under paragraph (2) shall include arrangements for the carrying out of surveillance of the conservation status of the species in question, for the purpose of establishing whether the taking in the wild of specimens of such species, and their exploitation, is compatible with their being maintained at favourable conservation status.

(4) The Scottish Ministers shall, from time to time, review the arrangements they have made under paragraphs (1), (2) or (3) and if they think it appropriate, revise those arrangements.]

PART IIIE+W+SPROTECTION OF SPECIES

Protection of animalsE+W+S

European protected species of animalsE+W+S

38.  The species of animals listed in Annex IV(a) to the Habitats Directive whose natural range includes any area in Great Britain are listed in Schedule 2 to these Regulations.

References in these Regulations to a “European protected species” of animal are to any of those species.

Protection of wild animals of European protected speciesE+W

39.—(1) It is an offence–

(a)deliberately to capture or kill a wild animal of a European protected species;

(b)deliberately to disturb any such animal;

(c)deliberately to take or destroy the eggs of such an animal; or

(d)to damage or destroy a breeding site or resting place of such an animal.

(2) It is an offence to keep, transport, sell or exchange, or offer for sale or exchange, any live or dead wild animal of a European protected species, or any part of, or anything derived from, such an animal.

(3) Paragraphs (1) and (2) apply to all stages of the life of the animals to which they apply.

(4) A person shall not be guilty of an offence under paragraph (2) if he shows–

(a)that the animal had not been taken or killed, or had been lawfully taken or killed, or

(b)that the animal or other thing in question had been lawfully sold (whether to him or any other person)

For this purpose “lawfully” means without any contravention of these Regulations or Part I of the Widlife and Countryside Act 1981(48).

(5) In any proceedings for an offence under this regulation, the animal in question shall be presumed to have been a wild animal unless the contrary is shown.

(6) A person guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

[F88Protection of wild animals of European protected speciesS

39.—(1) It is an offence–

(a)deliberately or recklessly to capture, injure or kill a wild animal of a European protected species;

(b)deliberately or recklessly–

(i)to harass a wild animal or group of wild animals of a European protected species;

(ii)to disturb such an animal while it is occupying a structure or place which it uses for shelter or protection;

(iii)to disturb such an animal while it is rearing or otherwise caring for its young;

(iv)to obstruct access to a breeding site or resting place of such an animal, or otherwise to deny the animal use of the breeding site or resting place;

(v)to disturb such an animal in a manner that is, or in circumstances which are, likely to significantly affect the local distribution or abundance of the species to which it belongs; or

(vi)to disturb such an animal in a manner that is, or in circumstances which are, likely to impair its ability to survive, breed or reproduce, or rear or otherwise care for its young;

(c)deliberately or recklessly to take or destroy the eggs of such an animal; or

(d)to damage or destroy a breeding site or resting place of such an animal.

(2) Subject to the provisions of this Part, it is an offence to deliberately or recklessly disturb any dolphin, porpoise or whale (cetacean).

(3) It is an offence for any person–

(a)on or after 1st May 2007 to possess or control;

(b)on or after 1st May 2007 to transport;

(c)to sell or exchange; or

(d)to offer for sale or exchange,

anything to which paragraph (4) applies.

(4) This paragraph applies to–

(a)any live or dead animal or part of an animal–

(i)which has been taken from the wild; and

(ii)which is of a species or subspecies listed in Annex IV(a) to the Habitats Directive; and

(b)anything derived from, such an animal or part of such an animal.

(5) The offences in paragraph (1), (2) and (3) apply to all stages of the life of the animals to which they apply.

(6) Subject to paragraph (7), a person shall not be guilty of an offence under paragraph (3) if that person shows that the animal, or part of the animal in question, or the animal or part of the animal from which the thing in question is derived, was lawfully taken from the wild.

(7) The defence under paragraph (6) does not apply–

(a)in respect of the offences in paragraph (3)(a) or (b) if–

(i)the animal in question is an animal of a European protected species, or the part or thing in question is derived from such an animal; and

(ii)the animal, part or thing in question was in the defender's possession, or transported by the defender, for the purpose of sale or exchange;

(b)in respect of the offences in paragraph (3)(c) or (d), if the animal is an animal of a European protected species, or the part or thing in question is derived from such an animal.

(8) For the purposes of paragraph (6) an animal, or part of an animal, shall be treated as having been lawfully taken from the wild if–

(a)it was taken from the wild in the European territory of a member State to which the Habitats Directive applies without contravention of the law of that member State and before the implementation date; or

(b)it was taken from the wild elsewhere without contravention of the law of the country or territory from where it was taken.

(9) A person shall not be guilty of an offence under paragraph (3) if that person shows that the animal, or the animal from which the part or thing in question is derived–

(a)is of a species listed in the second column of the table in Schedule 2A and was from a population occurring in a country or area which is specified in respect of that species in the third column of that Schedule;

(b)is of the species Capra aegagrus and was not from a naturally occurring population;

(c)is of the species Ovis gmelini musimon and was not from a naturally occurring population in Corsica or Sardinia; or

(d)is of the species Coregonus oxyrinchus and either was from Finland or was not from an anadromous population.

(10) Subject to the provisions of this Part, it is an offence to knowingly cause or permit to be done an act which is made unlawful by any of the provisions of this regulation.

(11) Unless the contrary is shown, in any proceedings–

(a)for an offence under paragraph (1) or (2), the animal in question shall be presumed to have been a wild animal; and

(b)for an offence under paragraph (3) (as the case may be)–

(i)the animal or part of the animal in question shall be presumed to have been taken from the wild; or

(ii)the part or thing in question shall be presumed to be from an animal or part of an animal taken from the wild.

(12) Subject to paragraph (13), a person guilty of an offence under this regulation is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(13) A person guilty of an offence under paragraph (3) insofar as it relates to any live or dead animal or part of an animal, or any part of, or anything derived from an animal or part of an animal, which is of a species or subspecies which was not listed in Annex IV(a) to Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora as it stood immediately before it was amended by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded is liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 5 on the standard scale, or to both.

(14) In this regulation–

“the implementation date” means–

“relevant State” means the State in whose territory the animal, or part of it, was taken from the wild.]

Exceptions from regulation 39E+W

40.—(1) Nothing in regulation 39 shall make unlawful–

(a)anything done in pursuance of a requirement by the agriculture Minister under section 98 of the Agriculture Act 1947(49) or section 39 of the Agriculture (Scotland) Act 1948(50) (prevention of damage by pests); or

(b)anything done under, or in pursuance of an order made under, the Animal Health Act 1981(51).

(2) Nothing in regulation 39(1)(b) or (d) shall make unlawful anything done within a dwelling–house.

(3) Notwithstanding anything in regulation 39, a person shall not be guilty of an offence by reason of–

(a)the taking of a wild animal of a European protected species if he shows that the animal had been disabled otherwise than by his unlawful act and was taken solely for the purpose of tending it and releasing it when no longer disabled;

(b)the killing of such an animal if he shows that the animal has been so seriously disabled otherwise than by his unlawful act that there was no reasonable chance of its recovering; or

(c)any act made unlawful by that regulation if he shows that the act was the incidental result of a lawful operation and could not reasonably have been avoided.

(4) A person shall not be entitled to rely on the defence provided by paragraph (2) or (3)(c) as respects anything done in relation to a bat otherwise than in the living area of a dwelling–house unless he had notified the appropriate nature conservation body of the proposed action or operation and allowed them a reasonable time to advise him as to whether it should be carried out and, if so, the method to be used.

(5) Notwithstanding anything in regulation 39 a person–

(a)being the owner or occupier, or any person authorised by the owner or occupier, of the land on which the action authorised is taken, or

(b)authorised by the local authority for the area within which the action authorised is taken,

shall not be guilty of an offence by reason of the killing or disturbing of an animal of a European protected species if he shows that his action was necessary for the purpose of preventing serious damage to livestock, foodstuffs, crops, vegetables, fruit, growing timber or any other form of property or fisheries.

(6) A person may not rely on the defence provided by paragraph (5) as respects action taken at any time if it had become apparent before that time that the action would prove necessary for the purpose mentioned in that paragraph and either–

(a)a licence under regulation 44 authorising that action had not been applied for as soon as reasonably practicable after that fact had become apparent, or

(b)an application for such a licence had been determined.

(7) In paragraph (5) “local authority” means–

(a)in relation to England and Wales, a county, [F31county borough,] district or London borough council and includes the Common Council of the City of London, and

(b)in Scotland, a regional, islands or district council.

[F89Exceptions from regulation 39S

40.—(1) A person shall not be guilty of an offence under regulation 39(1)(a) or (b), (2), or (3)(a) or (b), if that person shows that what was done–

(a)was in relation to an animal that had been seriously disabled otherwise than by that person's unlawful act and there was no reasonable chance of its recovering; and

(b)was done solely for one or more of the purposes of–

(i)ending the animal's life in a humane manner; or

(ii)where the animal's life had been so ended, disposing of it (otherwise than by sale or exchange) as soon as practicable after it was dead.

(2) A person shall not be guilty of the offence under regulation 39(1)(a) of deliberately or recklessly capturing a wild animal of a European protected species, or an offence under regulation 39(3)(a) or (b), if that person shows that what was done–

(a)was in relation to an animal that had been disabled otherwise than by that person's unlawful act; and

(b)was done solely for one or more of the purposes of–

(i)tending it and releasing it when no longer disabled; or

(ii)releasing it after it had been tended,

and was done in a manner or in circumstances unlikely to cause the animal unnecessary suffering.

(3) A person shall not be guilty of an offence by reason of any act made unlawful by regulation 39 if that person shows that the act was carried out in relation to an animal bred and, at the time the act was carried out, lawfully held in captivity.]

Prohibition of certain methods of taking or killing wild animalsE+W+S

41.—(1) This regulation applies in relation to the taking or killing of a wild animal–

(a)of any of the species listed in Schedule 3 to these Regulations (which shows the species listed in Annex V(a) to the Habitats Directive, and to which Article 15 applies, whose natural range includes any area of Great Britain), or

(b)of a European protected species, where the taking or killing of such animals is permitted in accordance with these Regulations.

(2) It is an offence to use for the purpose of taking or killing any such wild animal–

(a)any of the means listed in paragraph (3) or (4) below, [F32or]

(b)any form of taking or killing from the modes of transport listed in paragraph (5) below [F33, or

(c)any other means of taking or killing which is indiscriminate and capable of causing the local disappearance of, or serious disturbance to, a population of any species of animal listed in Schedule 3 to these Regulations or any European protected species of animal.]

(3) The prohibited means of taking or killing of mammals are–

(a)blind or mutilated animals used 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;

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

(4) The prohibited means of taking or killing fish are–

(a)poison;

(b)explosives.

(5) The prohibited modes of transport are–

(a)aircraft;

(b)moving motor vehicles.

(6) A person guilty of an offence under this regulation is liable on summary conviction [F34to imprisonment for a term not exceeding six months or] to a fine not exceeding level 5 on the standard scale [F35, or to both].

[F36Monitoring incidental capture and killingS

41A.—(1) The Scottish Ministers shall make arrangements for monitoring the incidental capture and killing of animals of the species listed in Annex IV(a) to the Habitats Directive.

(2) In light of the information gathered from monitoring under paragraph (1), the Scottish Ministers shall make arrangements for the carrying out of such research or the taking of such conservation measures as are necessary for ensuring that such incidental capture and killing does not have a significant negative impact on the species in question.

(3) The Scottish Ministers shall, from time to time, review the arrangements they have made under paragraph (1) or (2) and, if they think it appropriate, revise those arrangements.]

Protection of plantsE+W+S

European protected species of plantsE+W+S

42.  The species of plants listed in Annex IV(b) to the Habitats Directive whose natural range includes any area in Great Britain are listed in Schedule 4 to these Regulations.

References in these Regulations to a “European protected species” of plant are to any of those species.

Protection of wild plants of European protected speciesE+W

43.—(1) It is an offence deliberately to pick, collect, cut, uproot or destroy a wild plant of a European protected species.

(2) It is an offence to keep, transport, sell or exchange, or offer for sale or exchange, any live or dead wild plant of a European protected species, or any part of, or anything derived from, such a plant.

(3) Paragraphs (1) and (2) apply to all stages of the biological cycle of the plants to which they apply.

(4) A person shall not be guilty of an offence under paragraph (1), by reason of any act made unlawful by that paragraph if he shows that the act was an incidental result of a lawful operation and could not reasonably have been avoided.

(5) A person shall not be guilty of an offence under paragraph (2) if he shows that the plant or other thing in question had been lawfully sold (whether to him or any other person).

For this purpose “lawfully” means without any contravention of these Regulations or Part I of the Wildlife and Countryside Act 1981.

(6) In any proceedings for an offence under this regulation, the plant in question shall be presumed to have been a wild plant unless the contrary is shown.

(7) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

[F90Protection of certain wild plantsS

43.—(1) It is an offence deliberately or recklessly to pick, collect, cut, uproot or destroy a wild plant of a European protected species.

(2) It is an offence for any person–

(a)on or after 1st May 2007 to possess or control;

(b)on or after 1st May 2007 to transport;

(c)to sell or exchange; or

(d)to offer for sale or exchange,

anything to which paragraph (3) applies.

(3) This paragraph applies to–

(a)any live or dead plant, or part of a plant–

(i)which has been taken in the wild; and

(ii)which is of a species or subspecies listed in Annex II(b) (other than any bryophyte) or IV(b) to the Habitats Directive; and

(b)anything derived from such a plant or part of such a plant.

(4) The offences in paragraphs (1) and (2) apply to all stages of the biological cycle of the plants to which they apply.

(5) Subject to paragraph (6), a person shall not be guilty of an offence under paragraph (2) if that person shows that the plant or part of the plant in question, or the plant or part of the plant from which the thing in question is derived, was lawfully taken in the wild.

(6) The defence under paragraph (5) does not apply–

(a)in the case of the offences in paragraph (2)(a) or (b) if–

(i)the plant in question is a plant of a European protected species, or the part or thing in question is derived from such a plant; and

(ii)the plant, part or thing in question was in the defender's possession or control, or transported by the defender, for the purpose of sale or exchange;

(b)in the case of the offences in paragraph (2)(c) or (d) if the plant in question is a plant of a European protected species, or the part or thing in question is derived from such a plant.

(7) For the purposes of paragraph (5) a plant, or part of a plant, shall be treated as having been lawfully taken in the wild if–

(a)it was taken in the wild in the European territory of a member State to which the Habitats Directive applies without contravention of the law of that member State and before the implementation date; or

(b)it was taken in the wild elsewhere without contravention of the law of the country or territory in which it was taken.

(8) 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 provisions of this regulation shall be guilty of an offence.

(9) Unless the contrary is shown, in any proceedings–

(a)for an offence under paragraph (1), the plant in question shall be presumed to have been a wild plant; and

(b)for an offence under paragraph (2) (as the case may be)–

(i)the plant or part of the plant in question shall be presumed to have been taken in the wild; or

(ii)the part or thing in question shall be presumed to be from a plant or part of a plant taken in the wild.

(10) A person guilty of an offence under this regulation is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(11) In this regulation–

“the implementation date” means–

“relevant State” means the State in whose territory the plant, or part of it, was taken in the wild.]

Power to grant licencesE+W+S

Grant of licences for certain purposesE+W+S

44.—(1) Regulations 39, 41 and 43 do not apply to anything done for any of the following purposes under and in accordance with the terms of a licence granted by the appropriate authority.

(2) The purposes referred to in paragraph (1) are–

(a)scientific [F37, research] or educational purposes;

(b)ringing or marking, or examining any ring or mark on, wild animals;

(c)conserving wild animals [F38, including wild birds,] or wild plants or introducing them to particular areas;

[F39(ca)conserving natural habitats;]

(d)protecting any zoological or botanical collection;

(e)preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment;

(f)preventing the spread of disease; or

(g)preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber or any other form of property or to fisheries.

[F40(2A) Subject to paragraph (2B), the appropriate authority may grant a licence to permit the taking or the possession or control of certain specimens of any of the species listed in Annex IV to the Habitats Directive notwithstanding that the licence is for a purpose not falling within paragraph (2).

(2B) The appropriate authority shall only grant a licence under paragraph (2A) where it is satisfied that the grant of the licence would be compatible with the restrictions in Article 16(1)(e) of the Habitats Directive.

(2C) Regulations 39, 41 and 43 do not apply to anything done under and in accordance with the terms of a licence granted by the appropriate authority under paragraph (2A).]

(3) The appropriate authority shall not grant a licence under this regulation unless they are satisfied–

(a)that there is no satisfactory alternative, and

(b)that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.

(4) For the purposes of this regulation “the appropriate authority” means–

(a)in the case of a licence under any of sub–paragraphs (a) to (d) of paragraph (2), the appropriate nature conservation body; and

[F41(b)in the case of a licence under any of sub–paragraphs (e) to (g) of that paragraph, the agriculture Minister.]

[F41(b)in the case of any other licence granted under this regulation, the Scottish Ministers.]

[F42(5) The agriculture Minister shall from time to time consult with the nature conservation bodies as to the exercise of his functions under this regulation; and he shall not grant a licence of any description unless he has been advised by the appropriate nature conservation body as to the circumstances in which, in their opinion, licences of that description should be granted.]

[F42(5) The Scottish Ministers shall from time to time consult with the nature conservation bodies as to the exercise of the Scottish Ministers' functions under this regulation; and they shall not grant a licence of any description unless they have been advised by the appropriate nature conservation body as to the circumstances in which, in the opinion of the appropriate nature conservation body, licences of that description should be granted.]

Licences: supplementary provisionsE+W+S

45.—(1) [F43Subject to the provisions of this regulation,] A licence under regulation 44–

(a)may be, to any degree, general or specific;

(b)may be granted either to persons of a class or to a particular person; and

(c)may be subject to compliance with any specified conditions.

(2) For the purposes of a licence under regulation 44 the definition of a class of persons may be framed by reference to any circumstances whatever including, in particular, their being authorised by any other person.

(3) A licence under regulation 44 may be modified or revoked at any time by the appropriate authority; but otherwise shall be valid for the period stated in the licence.

(4) A licence under regulation 44 which authorises any person to kill wild animals shall specify the area within which and the methods by which the wild animals may be killed and shall not be granted for a period of more than two years.

[F44(4A) A licence granted under regulation 44(2A) shall specify–

(a)the species of animal or plant the specimens of which the person authorised by the licence may take or possess or control;

(b)the maximum number of specimens which the person authorised by the licence may take or possess or control, or which particular specimens that person may take or possess or control; and

(c)the conditions subject to which the action authorised by the licence may be taken and in particular–

(i)the methods, means or arrangements by which specimens may be taken or be in the possession or control of the person authorised by the licence;

(ii)when or over what period the action authorised by the licence may be taken; and

(iii)where it authorises any person to take specimens, the area from which they may be taken.]

(5) It shall be a defence in proceedings for an offence under section 8(b) of the Protection of Animals Act 1911(52) or section 7(b) of the Protection of Animals (Scotland) Act 1912(53) (which restrict the placing on land of poison and poisonous substances) to show that–

(a)the act alleged to constitute the offence was done under and in accordance with the terms of a licence under regulation 44, and

(b)any conditions specified in the licence were complied with.

(6) The appropriate authority may charge for a licence under regulation 44 such reasonable sum (if any) as they may determine.

False statements made for obtaining licenceE+W+S

46.—(1) A person commits an offence who, for the purposes of obtaining, whether for himself or another, the grant of a licence under regulation 44–

(a)makes a statement or representation, or furnishes a document or information, which he knows to be false in a material particular, or

(b)recklessly makes a statement or representation, or furnishes a document or information, which is false in a material particular.

(2) A person guilty of an offence under this regulation is liable on summary conviction [F45to imprisonment for a term not exceeding six months or] to a fine not exceeding level [F464] [F465 ] on the standard scale [F47 , or to both].

[F48Offence of breaching licence conditionS

46A.—(1) It is an offence for any person authorised by virtue of a licence granted under regulation 44 on or after 15th May 2007 to contravene, or fail to comply with, any condition imposed on the grant of a licence.

(2) A person shall not be guilty of an offence under paragraph (1) if that person shows that–

(a)that person took all reasonable precautions and exercised all due diligence to avoid commission of the offence; or

(b)the commission of the offence was otherwise due to matters beyond that person's control.

(3) A person guilty of an offence under paragraph (1) is liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 5 on the standard scale, or to both.]

PART IVE+W+SADAPTATION OF PLANNING AND OTHER CONTROLS

IntroductoryE+W+S

Application of provisions of this PartE+W

47.—(1) The requirements of–

(a)regulations 48 and 49 (requirement to consider effect on European sites), and

(b)regulations 50 and 51 (requirement to review certain existing decisions and consents, &c.),

apply, subject to and in accordance with the provisions of regulations 54 to 85, in relation to the matters specified in those provisions.

(2) Supplementary provision is made by–

(a)regulation 52 (co–ordination where more than one competent authority involved), and

(b)regulation 53 (compensatory measures where plan or project is agreed to notwithstanding a negative assessment of the implications for a European site).

Application of provisions of this PartS

47.—(1) The requirements of F91... regulations 48 [F92, 48A] and 49 (requirement to consider effect on European sites), and F93... regulations 50 and 51 (requirement to review certain existing decisions and consents, [F94&c.) apply–]

[F95(a)]subject to and in accordance with the provisions of regulations [F9653A] to 85, in relation to the matters specified in those provisions [F97, and

(b)in relation to all other plans and projects.]

(2) Supplementary provision is made by–

(a)regulation 52 (co–ordination where more than one competent authority involved), and

(b)regulation 53 (compensatory measures where plan or project is agreed to notwithstanding a negative assessment of the implications for a European site).

General provisions for protection of European sitesE+W+S

Assessment of implications for European siteE+W+S

48.—(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which–

(a)is likely to have a significant effect on a European site in Great Britain (either alone or in combination with other plans or projects), and

(b)is not directly connected with or necessary to the management of the site,

shall make an appropriate assessment of the implications for the site in view of that site’s conservation objectives.

(2) A person applying for any such consent, permission or other authorisation shall provide such information as the competent authority may reasonably require for the purposes of the assessment [F49or to enable the competent authority to determine whether an appropriate assessment is required].

(3) The competent authority shall for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority may specify.

(4) They shall also, if they consider it appropriate, take the opinion of the general public; and if they do so, they shall take such steps for that purpose as they consider appropriate.

(5) In the light of the conclusions of the assessment, and subject to regulation 49, the authority shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site.

(6) In considering whether a plan or project will adversely affect the integrity of the site, the authority shall have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given.

(7) This regulation does not apply in relation to a site which is a European site by reason only of regulation 10(1)(c) (site protected in accordance with Article 5(4)).

[F50Directions as regards plans and projectsS

48A.—(1) The Scottish Ministers may at any time direct a competent authority (other than the Scottish Ministers or the Secretary of State) to send to them a copy of a plan or project–

(a)which is being prepared by the competent authority, or which is to be or has been undertaken by the competent authority; or

(b)which is to be or has been consented to, permitted or otherwise authorised by the competent authority,

and which in the opinion of the Scottish Ministers may have a significant effect on a European site in Great Britain.

(2) The Scottish Ministers shall consider any plan or project in respect of which they have issued a direction under paragraph (1), together with such information in relation to it as they may reasonably require the competent authority to provide.

(3) Where the Scottish Ministers are satisfied that–

(a)the plan or project falls within regulation 48(1) and no appropriate assessment has been carried out; or

(b)an appropriate assessment has been carried out which does not comply with the Habitats Directive and these Regulations,

they may direct the competent authority to carry out an appropriate assessment in accordance with the Habitats Directive and these Regulations.

(4) A direction under paragraph (3) shall be issued as soon as reasonably practicable, and may, in particular, specify–

(a)the manner in which an appropriate assessment must be carried out; and

(b)the matters to be covered by the appropriate assessment.

(5) Where a direction is issued under paragraph (3), the plan or project and any operation or activity carried out under it is suspended until such time as the Scottish Ministers direct that they are satisfied that an appropriate assessment has been carried out in accordance with the Habitats Directive and these Regulations.

(6) The Scottish Ministers shall issue a direction under paragraph (5) as soon as reasonably practicable after they are satisfied that an appropriate assessment has been carried out in accordance with the Habitats Directive and these Regulations.

(7) The Scottish Ministers shall consult with the appropriate nature conservation body as to the exercise of the Scottish Ministers' functions under paragraphs (1) to (6) of this regulation.

(8) Where a direction is issued under paragraph (3), the Scottish Ministers shall send to the competent authority a summary in writing of their reasons.

(9) A competent authority shall comply with any direction given to it under paragraph (1) or (3).]

Considerations of overriding public interestE+W+S

49.—(1) If they are satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (2), may be of a social or economic nature), the competent authority may agree [F51, subject to paragraph (1A),] to the plan or project notwithstanding a negative assessment of the implications for the site.

[F52(1A) A competent authority other than the Scottish Ministers or the Secretary of State shall consult the Scottish Ministers for the purpose of satisfying itself under paragraph (1), and shall have regard to the opinion of the Scottish Ministers.]

(2) Where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in paragraph (1) must be either–

(a)reasons relating to human health, public safety or beneficial consequences of primary importance to the environment, or

[F53(b)other reasons which in the opinion of the European Commission are imperative reasons of overriding public interest.]

[F53(b)any other imperative reasons of overriding public interest, provided that the competent authority has had regard to the opinion of the European Commission in satisfying itself that there are such reasons.]

(3) Where a competent authority other than the Secretary of State desire to obtain the opinion of the European Commission as to whether reasons are to be considered imperative reasons of overriding public interest, they shall submit a written request to the Secretary of State–

(a)identifying the matter on which an opinion is sought, and

(b)accompanied by any documents or information which may be required.

(4) The Secretary of State may thereupon, if he thinks fit, seek the opinion of the Commission; and if he does so, he shall upon receiving the Commission’s opinion transmit it to the authority.

(5) Where an authority other than the Secretary of State propose to agree to a plan or project under this regulation notwithstanding a negative assessment of the implications for a European site, they shall notify the Secretary of State.

Having notified the Secretary of State, they shall not agree to the plan or project before the end of the period of 21 days beginning with the day notified to them by the Secretary of State as that on which their notification was received by him, unless the Secretary of State notifies them that they may do so.

(6) In any such case the Secretary of State may give directions to the authority prohibiting them from agreeing to the plan or project, either indefinitely or during such period as may be specified in the direction.

This power is without prejudice to any other power of the Secretary of State in relation to the decision in question.

[F54(7) A competent authority shall comply with any direction given to it under paragraph (6).]

Review of existing decisions and consents, &c.E+W+S

50.—(1) Where before the date on which a site becomes a European site or, if later, the commencement of these Regulations, a competent authority have decided to undertake, or have given any consent, permission or other authorisation for, a plan or project to which regulation 48(1) would apply if it were to be reconsidered as of that date, the authority shall as soon as reasonably practicable, review their decision or, as the case may be, the consent, permission or other authorisation, and shall affirm, modify or revoke it.

(2) They shall for that purpose make an appropriate assessment of the implications for the site in view of that site’s conservation objectives; and the provisions of regulation 48(2) to (4) [F55and regulation 48A] shall apply, with the appropriate modifications, in relation to such a review.

(3) Subject to the following provisions of this Part, any review required by this regulation shall be carried out under existing statutory procedures where such procedures exist, and if none exist the Secretary of State may give directions as to the procedure to be followed.

(4) Nothing in this regulation shall affect anything done in pursuance of the decision, or the consent, permission or other authorisation, before the date mentioned in paragraph (1).

Consideration on reviewE+W+S

51.—(1) The following provisions apply where a decision, or a consent, permission or other authorisation, falls to be reviewed under regulation 50.

(2) Subject as follows, the provisions of regulation 48(5) and (6) and regulation 49 shall apply, with the appropriate modifications, in relation to the decision on the review.

(3) The decision, or the consent, permission or other authorisation, may be affirmed if it appears to the authority reviewing it that other action taken or to be taken by them, or by another authority, will secure that the plan or project does not adversely affect the integrity of the site.

Where that object may be attained in a number of ways, the authority or authorities concerned shall seek to secure that the action taken is the least onerous to those affected.

(4) The Secretary of State may issue guidance to authorities for the purposes of paragraph (3) as to the manner of determining which of different ways should be adopted for securing that the plan or project does not have any such effect, and in particular–

(a)the order of application of different controls, and

(b)the extent to which account should be taken of the possible exercise of other powers;

and the authorities concerned shall have regard to any guidance so issued in discharging their functions under that paragraph.

(5) Any modification or revocation effected in pursuance of this regulation shall be carried out under existing statutory procedures where such procedures exist.

If none exist, the Secretary of State may give directions as to the procedure to be followed.

Co–ordination where more than one competent authority involvedE+W+S

52.—(1) The following provisions apply where a plan or project–

(a)is undertaken by more than one competent authority,

(b)requires the consent, permission or other authorisation of more than one competent authority, or

(c)is undertaken by one or more competent authorities and requires the consent, permission or other authorisation of one or more other competent authorities.

(2) [F56Subject to regulation 48A,] Nothing in regulation 48(1) or 50(2) requires a competent authority to assess any implications of a plan or project which would be more appropriately assessed under that provision by another competent authority.

(3) The Secretary of State may issue guidance to authorities for the purposes of regulations 48 to 51 as to the circumstances in which an authority may or should adopt the reasoning or conclusions of another competent authority as to whether a plan or project–

(a)is likely to have a significant effect on a European site, or

(b)will adversely affect the integrity of a European site;

and the authorities involved shall have regard to any guidance so issued in discharging their functions under those regulations.

(4) In determining whether a plan or project should be agreed to under regulation 49(1) (considerations of overriding public interest) a competent authority other than the Secretary of State shall seek and have regard to the views of the other competent authority or authorities involved.

Compensatory measuresE+W+S

53.  Where in accordance with regulation 49 (considerations of overriding public interest)–

(a)a plan or project is agreed to, notwithstanding a negative assessment of the implications for a European site, or

(b)a decision, or a consent, permission or other authorisation, is affirmed on review, notwithstanding such an assessment,

the Secretary of State shall secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 is protected.

[F57Control of operations requiring consentS

53A.—(1) Regulations 48 and 49 (requirement to consider effect on European site) apply in relation to the granting of any consent under–

(a)section 13(4) of the 2004 Act to permit a public body to carry out an operation; or

(b)section 16(3) of the 2004 Act to permit an owner or occupier of land within a site of special scientific interest to carry out an operation requiring consent on the land.

(2) Where in such a case SNH considers that any adverse effects of the plan or project on the integrity of a European site would be avoided if the consent were subject to conditions, it may grant consent subject to those conditions.

(3) Where, in any case, whether in pursuance of sections 13(4) or 16(3) of the 2004 Act or otherwise, in light of the conclusions of an appropriate assessment made under regulation 48(1), SNH has not given consent for an operation, but it considers that there is a risk that the operation may nevertheless be carried out, it shall notify Scottish Ministers.]

PlanningE+W+S

Grant of planning permissionE+W+S

54.—(1) Regulations 48 and 49 (requirement to consider effect on European site) apply, in England and Wales, in relation to–

(a)granting planning permission on an application under Part III of the Town and Country Planning Act 1990(54);

(b)granting planning permission, or upholding a decision of the local planning authority to grant planning permission (whether or not subject to the same conditions and limitations as those imposed by the local planning authority), on determining an appeal under section 78(55) of that Act in respect of such an application;

(c)granting planning permission under–

(i)section 141(2)(a) of that Act (action by Secretary of State in relation to purchase notice),

(ii)section 177(1)(a)(56) of that Act (powers of Secretary of State on appeal against enforcement notice), or

(iii)section 196(5)(57) of that Act as originally enacted (powers of Secretary of State on reference or appeal as to established use certificate);

(d)directing under section 90(1), (2) or (2A)(58) of that Act (development with government authorisation), or under section 5(1) of the Pipe–lines Act 1962(59), that planning permission shall be deemed to be granted;

(e)making–

(i)an order under section 102(60) of that Act (order requiring discontinuance of use or removal of buildings or works), including an order made under that section by virtue of section 104 (powers of Secretary of State), which grants planning permission, or

(ii)an order under paragraph 1 of Schedule 9(61) to that Act (order requiring discontinuance of mineral working), including an order made under that paragraph by virtue of paragraph 11 of that Schedule (default powers of Secretary of State), which grants planning permission,

or confirming any such order under section 103 of that Act;

(f)directing under–

(i)section 141(3) of that Act (action by Secretary of State in relation to purchase notice), or

(ii)section 35(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990(62) (action by Secretary of State in relation to listed building purchase notice),

that if an application is made for planning permission it shall be granted.

(2) Regulations 48 and 49 (requirement to consider effect on European site) apply, in Scotland, in relation to–

(a)granting planning permission on an application under Part III of the Town and Country Planning (Scotland) Act 1972(63);

(b)granting planning permission, or upholding a decision of the planning authority to grant planning permission (whether or not subject to the same conditions and limitations as those imposed by the local planning authority), on determining an appeal under section 33 (appeals) of that Act in respect of such an application;

(c)granting planning permission under–

(i)section 172(2) of that Act (action by Secretary of State in relation to purchase notice),

(ii)section 85(5)(64) of that Act (powers of Secretary of State on appeal against enforcement notice), or

(iii)section 91(3)(65) of that Act as originally enacted (powers of Secretary of State on reference or appeal as to established use certificate);

(d)directing under section 37(1)(66) (development with government authorisation) of that Act, or under section 5(1) of the Pipe–lines Act 1962 or paragraph 7 of Schedule 8 to the Electricity Act 1989(67), that planning permission shall be deemed to be granted;

(e)making an order under section 49(68) of that Act (order requiring discontinuance of use or removal of buildings or works), including an order made under that section by virtue of section 260 (default powers of Secretary of State), which grants planning permission, or confirming any such order;

(f)directing under–

(i)section 172(3) of that Act (powers of Secretary of State in relation to purchase notice), or

(ii)paragraph 2(6) of Schedule 17 to that Act (powers of Secretary of State in relation to listed building purchase notice),

that if an application is made for planning permission it shall be granted.

(3) Where regulations 48 and 49 apply, the competent authority may, if they consider that any adverse effects of the plan or project on the integrity of a European site would be avoided if the planning permission were subject to conditions or limitations, grant planning permission or, as the case may be, take action which results in planning permission being granted or deemed to be granted subject to those conditions or limitations.

(4) Where regulations 48 and 49 apply, outline planning permission shall not be granted unless the competent authority are satisfied (whether by reason of the conditions and limitations to which the outline planning permission is to be made subject, or otherwise) that no development likely adversely to affect the integrity of a European site could be carried out under the permission, whether before or after obtaining approval of any reserved matters.

In this paragraph “outline planning permission” and “reserved matters” have the same meaning as in section 92 of the Town and Country Planning Act 1990 or section 39 of the Town and Country Planning (Scotland) Act 1972.

Planning permission: duty to reviewE+W+S

55.—(1) Subject to the following provisions of this regulation, regulations 50 and 51 (requirement to review certain decisions and consents, &c.) apply to any planning permission or deemed planning permission, unless–

(a)the development to which it related has been completed, or

(b)it was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having been begun, or

(c)it was granted for a limited period and that period has expired.

(2) Regulations 50 and 51 do not apply to planning permission granted or deemed to have been granted–

(a)by a development order (but see regulations 60 to 64 below);

(b)by virtue of the adoption of a simplified planning zone scheme or of alterations to such a scheme (but see regulation 65 below);

(c)by virtue of the taking effect of an order designating an enterprise zone under Schedule 32 to the Local Government, Planning and Land Act 1980(69), or by virtue of the approval of a modified enterprise zone scheme (but see regulation 66 below).

(3) Planning permission deemed to be granted by virtue of–

(a)a direction under section 90(1) of the Town and Country Planning Act 1990 or section 37(1) of the Town and Country Planning (Scotland) Act 1972 in respect of development for which an authorisation has been granted under section 1 or 3 of the Pipe–lines Act 1962(70),

(b)a direction under section 5(1) of the Pipe–lines Act 1962,

(c)a direction under section 90(1) of the Town and Country Planning Act 1990 or section 37(1) of the Town and Country Planning (Scotland) Act 1972 in respect of development for which a consent has been given under section 36 or 37 of the Electricity Act 1989,

(d)a direction under section 90(2) of the Town and Country Planning Act 1990 or paragraph 7 of Schedule 8 to the Electricty Act 1989, or

(e)a direction under section 90(2A) of the Town and Country Planning Act 1990 (which relates to development in pursuance of an order under section 1 or 3 of the Transport and Works Act 1992(71)),

shall be reviewed in accordance with the following provisions of this Part in conjunction with the review of the underlying authorisation, consent or order.

(4) In the case of planning permission deemed to have been granted in any other case by a direction under section 90(1) of the Town and Country Planning Act 1990 or section 37(1) of the Town and Country Planning (Scotland) Act 1972, the local planning authority shall–

(a)identify any such permission which they consider falls to be reviewed under regulations 50 and 51, and

(b)refer the matter to the government department which made the direction;

and the department shall, if it aggrees that the planning permission does fall to be so reviewed, thereupon review the direction in accordance with those regulations.

(5) Save as otherwise expressly provided, regulations 50 and 51 do not apply to planning permission granted or deemed to be granted by a public general Act of Parliament.

(6) Subject to paragraphs (3) and (4), where planning permission granted by the Secretary of State falls to be reviewed under regulations 50 and 51–

(a)it shall be reviewed by the local planning authority, and

(b)the power conferred by section 97 of the Town and Country Planning Act 1990 or section 42 of the Town and Country Planning (Scotland) Act 1972 (revocation or modification of planning permission) shall be exercisable by that authority as in relation to planning permission granted on an application under Part III of that Act.

In a non–metropolitan county in England F58... the function of reviewing any such planning permission shall be exercised by the district planning authority unless it relates to a county matter (within the meaning of Schedule 1 to the Town and Country Planning Act 1990) in which case it shall be exercised by the county planning authority.

Planning permission: consideration on reviewE+W+S

56.—(1) In reviewing any planning permission or deemed planning permission in pursuance of regulations 50 and 51, the competent authority shall, in England and Wales–

(a)consider whether any adverse effects could be overcome by planning obligations under section 106(72) of the Town and Country Planning Act 1990 being entered into, and

(b)if they consider that those effects could be so overcome, invite those concerned to enter into such obligations;

and so far as the adverse effects are not thus overcome the authority shall make such order under section 97 of that Act (power to revoke or modify planning permission), or under section 102 of or paragraph 1 of Schedule 9 to that Act (order requiring discontinuance of use, &c.), as may be required.

(2) In reviewing any planning permission or deemed planning permission in pursuance of regulations 50 and 51, the competent authority shall, in Scotland–

(a)consider whether any adverse effects could be overcome by an agreement under section 50 (agreements regulating development or use of land) of the Town and Country Planning (Scotland) Act 1972 being entered into, and

(b)if they consider that those effects could be so overcome, invite those concerned to enter into such an agreement;

and so far as the adverse effects are not thus overcome, the authority shall make such order under section 42 of that Act(73) (power to revoke or modify planning permission), or under section 49 of that Act(74) (orders requiring discontinuance of use, &c.) as may be required.

(3) Where the authority ascertain that the carrying out or, as the case may be, the continuation of the development would adversely affect the integrity of a European site, they nevertheless need not proceed under regulations 50 and 51 if and so long as they consider that there is no likelihood of the development being carried out or continued.

Effect of orders made on review: England and WalesE+W+S

57.—(1) An order under section 97 of the Town and Country Planning Act 1990(75) (power to revoke or modify planning permission) made pursuant to regulation 55 shall take effect upon service of the notices required by section 98(2) of that Act or, where there is more than one such notice and those notices are served at different times, upon the service of the last such notice to be served.

(2) Where the Secretary of State determines not to confirm such an order, the order shall cease to have effect from the time of that determination, and the permission revoked or modified by the order shall thereafter have effect as if the order had never been made, and–

(a)any period specified in the permission for the taking of any action, being a period which had not expired prior to the date upon which the order took effect under paragraph (1) above, shall be extended by a period equal to that during which the order had effect; and

(b)there shall be substituted for any date specified in the permission as being a date by which any action should be taken, not being a date falling prior to the date upon which the order took effect under paragraph (1) above, such date as post– dates the specified date by a period equal to that during which the order had effect.

(3) An order under section 102 of, or under paragraph 1 of Schedule 9 to, the Town and Country Planning Act 1990 (order requiring discontinuance of use, &c.) made pursuant to regulation 55 shall insofar as it requires the discontinuance of a use of land or imposes conditions upon the continuance of a use of land, take effect upon service of the notices required by section 103(3) or, where there is more than one such notice and those notices are served at different times, upon service of the last such notice to be served.

(4) Where the Secretary of State determines not to confirm any such order, the order shall cease to have effect from the time of that determination and the use which by the order was discontinued or upon whose continuance conditions were imposed–

(a)may thereafter be continued as if the order had never been made, and

(b)shall be treated for the purposes of the Town and Country Planning Act 1990 as if it had continued without interruption or modification throughout the period during which the order had effect.

(5) An order under section 97 of that Act (power to revoke or modify planning permission) made in pursuance of regulation 55 shall not affect so much of the development authorised by the permission as was carried out prior to the order taking effect.

(6) An order under section 102 of, or under paragraph 1 of Schedule 9 to, that Act (order requiring discontinuance of use, &c.) made in pursuance of regulation 55 shall not affect anything done prior to the site becoming a European site or, if later, the commencement of these Regulations.

Effect of orders made on review: ScotlandE+W+S

58.—(1) An order under section 42 of the Town and Country Planning (Scotland) Act 1972 (power to revoke or modify planning permission) made pursuant to regulation 55 shall take effect upon service of the notices required by subsection (3) of that section or, where there is more than one such notice and those notices are served at different times, upon the service of the last such notice to be served.

(2) Where the Secretary of State determines not to confirm such an order, the order shall cease to have effect from the time of that determination, and the permission revoked or modified by the order shall thereafter have effect as if the order had never been made, and–

(a)any period specified in the permission for the taking of any action, being a period which had not expired prior to the date upon which the order took effect under paragraph (1) above, shall be extended by a period equal to that during which the order had effect; and

(b)there shall be substituted for any date specified in the permission as being a date by which any action should be taken, not being a date falling prior to that date upon which the order took effect under paragraph (1) above, such date as post– dates the specified date by a period equal to that during which the order had effect.

(3) An order under section 49 of the Town and Country Planning (Scotland) Act 1972 (order requiring discontinuance of use, &c.) made pursuant to regulation 55 shall, insofar as it requires the discontinuance of a use of land or imposes conditions upon the continuance of a use of land, take effect upon service of the notices required by subsection (5) of that section or, where there is more than one such notice and those notices are served at different times, upon service of the last such notice to be served.

(4) Where the Secretary of State determines not to confirm any such order, the order shall cease to have effect from the time of that determination and the use which by the order was discontinued or upon whose continuance conditions were imposed–

(a)may thereafter be continued as if the order had never been made, and

(b)shall be treated for the purposes of the Town and Country Planning (Scotland) Act 1972 as if it had continued without interruption throughout the period during which the order had effect.

(5) An order under section 42 of that Act (power to modify or revoke planning permission) made in pursuance of regulation 55 shall not affect so much of the development authorised by the permission as was carried out prior to the site becoming a European site or, if later, the commencement of these Regulations.

(6) An order under section 49 of that Act (order requiring discontinuance of use, &c.) made in pursuance of regulation 55 above shall not affect any use made of the land prior to the site becoming a European site or, if later, the commencement of these Regulations.

Planning permission: supplementary provisions as to compensationE+W+S

59.  –

(1) Where the Secretary of State determines not to confirm–

(a)an order under section 97 of the Town and Country Planning Act 1990 (revocation or modification of planning permission) which has taken effect under regulation 57(1), or

(b)an order under section 42 of the Town and Country Planning (Scotland) Act 1972 (revocation or modification of planning permission) which has taken effect under regulation 58(1),

and claim for compensation under section 107 of the Act of 1990 or section 153 of the Act of 1972 shall be limited to any loss or damage directly attributable to the permission being suspended or temporarily modified for the duration of the period between the order so taking effect and the Secretary of State determining not to confirm the order.

(2) Where the Secretary of State determines not to confirm–

(a)an order under section 102 of the Town and Country Planning Act 1990 (order requiring discontinuance of use, &c.) which has taken effect under regulation 57(3) above, or

(b)an order under section 49 of the Town and Country Planning (Scotland) Act 1972 (order requiring discontinuance of use, &c.) which has taken effect under regulation 58(3) above,

any claim for compensation under section 115 of the Act of 1990 or section 159 of the Act of 1972 shall be limited to any loss or damage directly attributable to any right to continue a use of the land being, by virtue of the order, suspended or subject to conditions for the duration of the period between the order so taking effect and the Secretary of State determining not to confirm the order.

(3) Where compensation is payable in respect of–

(a)an order under section 97 of the Town and Country Planning Act 1990, or

(b)any order mentioned in section 115(1) of that Act (compensation in respect of orders under s.102, &c.), or to which that section applies by virtue of section 115(5),

and the order has been made pursuant to regulation 50, the question as to the amount of the compensation shall be referred, by the authority liable to pay the compensation, to and be determined by the Lands Tribunal unless and to the extent that in any particular case the Secretary of State has indicated in writing that such a reference and determination may be dispensed with.

(4) Where compensation is payable in respect of–

(a)an order under section 42 of the Town and Country Planning (Scotland) Act 1972 (revocation or modification of planning permission), or

(b)any order mentioned in section 153(1) of that Act (compensation in respect of orders under s.49),

and the order has been made pursuant to regulation 50, the question as to the amount of the compensation shall be referred, by the authority liable to pay the compensation, to and be determined by the Lands Tribunal for Scotland unless and to the extent that in any particular case the Secretary of State has indicated in writing that such a reference and determination may be dispensed with.

General development ordersE+W+S

60.—(1) It shall be a condition of any planning permission granted by a general development order, whether made before or after the commencement of these Regulations, that development which–

(a)is likely to have a significant effect on a European site in Great Britian (either alone or in combination with other plans or projects), and

(b)is not directly connected with or necessary to the management of the site,

shall not be begun until the developer has received written notification of the approval of the local planning authority under regulation 62.

(2) It shall be a condition of any planning permission granted by a general development order made before the commencement of these Regulations that development which–

(a)is likely to have a significant effect on a European site in Great Britain (either alone or in combination with other plans or projects), and

(b)is not directly connected with or necessary to the management of the site,

and which was begun but not completed before the commencement of these Regulations, shall not be continued until the developer has received written notification of the approval of the local planning authority under regulation 62.

(3) Nothing in this regulation shall affect anything done before the commencement of these Regulations.

General development orders: opinion of appropriate nature conservation bodyE+W+S

61.—(1) Where it is intended to carry out development in reliance on the permission granted by a general development order, application may be made in writing to the appropriate nature conservation body for their opinion whether the development is likely to have such an effect as is mentioned in regulation 60(1)(a) or (2)(a).

The application shall give details of the development which is intended to be carried out.

(2) On receiving such an application, the appropriate nature conservation body shall consider whether the development is likely to have such an effect.

(3) Where they consider that they have sufficient information to conclude that the development will, or will not, have such an effect, they shall in writing notify the applicant and the local planning authority of their opinion.

(4) If they consider that they have insufficient information to reach either of those conclusions, they shall notify the applicant in writing indicating in what respects they consider the information insufficient; and the applicant may supply further information with a view to enabling them to reach a decision on the application.

(5) The opinion of the appropriate nature conservation body, notified in accordance with paragraph (3), that the development is not likely to have such an effect as is mentioned in regulation 60(1)(a) or (2)(a) shall be conclusive of that question for the purpose of reliance on the planning permission granted by a general development order.

General development orders: approval of local planning authorityE+W+S

62.—(1) Where it is intended to carry out development in reliance upon the permission granted by a general development order, application may be made in writing to the local planning authority for their approval.

(2) The application shall–

(a)give details of the development which is intended to be carried out; and

(b)be accompanied by–

(i)a copy of any relevant notification by the appropriate nature conservation body under regulation 61, and

(ii)any fee required to be paid.

(3) For the purposes of their consideration of the application the local planning authority shall assume that the development is likely to have such an effect as is mentioned in regulation 60(1)(a) or (2)(a).

(4) The authority shall send a copy of the application to the appropriate nature conservation body and shall take account of any representations made by them.

(5) If in their representations the appropriate nature conservation body state their opinion that the development is not likely to have such an effect as is mentioned in regulation 60(1)(a) or (2)(a), the local planning authority shall send a copy of the representations to the applicant; and the sending of that copy shall have the same effect as a notification by the appropriate nature conservation body of its opinion under regulation 61(3).

(6) In any other case the local planning authority shall, taking account of any representations made by the appropriate nature conservation body, make an appropriate assessment of the implications of the development for the European site in view of that site’s conservation objectives.

In the light of the conclusions of the assessment the authority shall approve the development only after having ascertained that it will not adversely affect the integrity of the site.

General development orders: supplementaryE+W+S

63.—(1) The local planning authority for the purposes of regulations 60 to 62 shall be the authority to whom an application for approval under regulation 62 would fall to be made if it were an application for planning permission.

(2) The fee payable in connection with an application for such approval is–

(a)£25 in the case of applications made before 3rd January 1995, and

(b)£30 in the case of applications made on or after that date.

(3) Approval required by regulation 60 shall be treated–

(a)for the purposes of the provisions of the Town and Country Planning Act 1990(76), or the Town and Country Planning (Scotland) Act 1972(77), relating to appeals, as approval required by a condition imposed on a grant of planning permission; and

(b)for the purposes of the provisions of any general development order relating to the time within which notice of a decision should be made, as approval required by a condition attached to a grant of planning permission.

Special development ordersE+W+S

64.—(1) A special development order made after the commencement of these Regulations may not grant planning permission for development which–

(a)is likely to have a significant effect on a European site in Great Britain (either alone or in combination with other plans or projects), and

(b)is not directly connected with or necessary to the management of the site;

and any such order made before the commencement of these Regulations shall, on and after that date, cease to have effect to grant such permission, whether or not the development authorised by the permission has been begun.

(2) Nothing in this regulation shall affect anything done before the commencement of these Regulations.

Simplified planning zonesE+W+S

65.  The adoption or approval of a simplified planning zone scheme after the commencement of these Regulations shall not have effect to grant planning permission for development which–

(a)is likely to have a significant effect on a European site in Great Britain (either alone or in combination with other plans or projects), and

(b)is not directly connected with or necessary to the management of the site;

and every simplified planning zone scheme already in force shall cease to have effect to grant such permission, whether or not the development authorised by the permission has been begun.

Enterprise zonesE+W+S

66.  An order designating an enterprise zone, or the approval of a modified scheme, if made or given after the commencement of these Regulations, shall not have effect to grant planning permission for development which–

(a)is likely to have a significant effect on a European site in Great Britain (either alone or in combination with other plans or projects), and

(b)is not directly connected with or necessary to the management of the site;

and where the order or approval was made or given before that date, the permission granted by virtue of the taking effect of the order or the modifications shall, from that date, cease to have effect to grant planning permission for such development, whether or not the development authorised by the permission has been begun.

Simplified planning zones and enterprise zones: supplementary provisions as to compensationE+W+S

67.—(1) Where in England and Wales–

(a)planning permission is withdrawn by regulation 65 or 66, and

(b)development authorised by the permission had been begun but not completed before the commencement of these Regulations, and

(c)on an application made under Part III of the Town and Country Planning Act 1990 before the end of the period of 12 months beginning with the date of commencement of these Regulations, planning permission for the development is refused or is granted subject to conditions other than those imposed by the scheme,

section 107(1)(a) of that Act (compensation in repsect of abortive expenditure) shall apply as if the permission granted by the scheme had been granted by the local planning authority under Part III of that Act and had been revoked or modified by an order under section 97 of that Act.

(2) Where in Scotland–

(a)planning permission is withdrawn by regulation 65 or 66, and

(b)development authorised by the permission had been begun but not completed before the commencement of these Regulations, and

(c)on an application made under Part III of the Town and Country Planning (Scotland) Act 1972 before the end of the period of 12 months beginning with the date of commencement of these Regulations, planning permission for the development is refused or is granted subject to conditions other than those imposed by the scheme,

section 153(1)(a) of that Act (compensation in respect of abortive expenditure) shall apply as if the permission granted by the scheme had been granted by the local planning authority under Part III of that Act and had been revoked or modified by an order under section 42 of that Act.

(3) Paragraphs (1) and (2) above do not apply in relation to planning permission for the development of operational land by statutory undertakers.

Construction as one with planning legislationE+W+S

68.  Regulations 54 to 67 shall be construed as one–

(a)in England and Wales, with the Town and Country Planning Act 1990; and

(b)in Scotland, with the Town and Country Planning (Scotland) Act 1972.

Highways and roadsE+W+S

Construction or improvement of highways or roadsE+W+S

69.—(1) Regulations 48 and 49 (requirement to consider effect on European site) apply in relation to any plan or project–

(a)by the Secretary of State–

(i)to construct a new highway or to improve, within the meaning of the Highways Act 1980(78), an existing highway, or

(ii)to contruct a new road or to improve, within the meaning of the Roads (Scotland) Act 1984(79), an existing road; or

(b)by a local highway authority or local roads authority, to carry out within the boundaries of a road any works required for the improvement of the road.

(2) Regulations 50 and 51 (requirement to review certain decisions and consents, &c.) apply to any such plan or project as is mentioned in paragraph (1) unless the works have been completed before the site became a European site or, if later, the commencement of these Regulations.

Cycle tracks and other ancillary worksE+W+S

70.  As from the commencement of these Regulations, section 3(10) of the Cycle Tracks Act 1984(80) and section 152(4) of the Roads (Scotland) Act 1984 shall cease to have effect to deem planning permission to be granted for development which–

(a)is likely to have a significant effect on a European site in Great Britain (either alone or in combination with other plans or projects), and

(b)is not directly connected with or necessary to the management of the site,

whether or not the development authorised by the permission has been begun.

ElectricityE+W+S

Consents under Electricity Act 1989: application of general requirementsE+W+S

71.—(1) Regulations 48 and 49 (requirement to consider effect on European site) apply in relation to the granting of–

(a)consent under section 36 of the Electricity Act 1989(81) to construct, extend or operate a generating station, or

(b)consent under section 37 of that Act to install an electric line above ground.

(2) Where in such a case the Secretary of State considers that any adverse effects of the plan or project on the integrity of a European site would be avoided if the consent were subject to conditions, he may grant consent subject to those conditions.

(3) Regulations 50 and 51 (requirement to review existing decisions and consents, &c.) apply to such a consent as is mentioned in paragraph (1) unless–

(a)the works to which the consent relates have been completed before the site became a European site or, if later, the commencement of these Regulations, or

(b)the consent was granted subject to a condition as to the time within which the works to which it relates were to be begun and that time has expired without them having been begun, or

(c)it was granted for a limited period and that period has expired.

Where the consent is for, or includes, the operation of a generating station, the works shall be treated as completed when, in reliance on the consent, the generating station is first operated.

(4) Where on the review of such a consent the Secretary of State considers that any adverse effects on the integrity of a European site of the carrying out or, as the case may be, the continuation of the plan or project would be avoided by a variation of the consent, he may vary the consent accordingly.

(5) In conjunction with the review of any such consent the Secretary of State shall review any direction deeming planning permission to be granted for the plan or project and may vary or revoke it.

Consents under the Electricity Act 1989: procedure on reviewE+W+S

72.—(1) Where the Secretary of State decides in pursuance of regulation 71 to revoke or vary a consent under the Electricity Act 1989, or a direction deeming planning permission to be granted, he shall serve notice on–

(a)the person to whom the consent was granted or, as the case may be, in whose favour the direction was made,

(b)in the case of a consent under section 36 of the Electricity Act 1989, any other person proposing to operate the generating station in question, and

(c)any other person who in his opinion will be affected by the revocation or variation,

informing them of the decision and specifying a period of not less than 28 days within which any person on whom the notice is served may make representations to him.

(2) The Secretary of State shall also serve notice on–

(a)the relevant planning authority within the meaning of paragraph 2(6) of Schedule 8 to the Electricity Act 1989, and

(b)the appropriate nature conservation body,

informing them of the decision and inviting their representations within the specified period.

(3) The Secretary of State shall consider whether to proceed with the revocation or variation, and shall have regard to any representations made to him in accordance with paragraph (1) or (2).

(4) If within the specified period a person on whom notice was served under paragraph (1), or the relevant planning authority, so requires, the Secretary of State shall before deciding whether to proceed with the revocation or variation give–

(a)to them, and

(b)to any other person on whom notice under paragraph (1) or (2) was required to be served,

an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.

Consents under Electricity Act 1989: effect of reviewE+W+S

73.—(1) The revocation or variation pursuant to regulation 71 of a consent under section 36 or 37 of the Electricity Act 1989, or a direction deeming planning permission to be granted, shall take effect upon service of the notices required by regulation 72(1) or, where there is more than one such notice and those notices are served at different times, from the date on which the last of them was served.

(2) Where the Secretary of State decides not to proceed with the revocation or variation, the consent or direction shall have effect again from the time of that decision, and shall thereafter have effect as if–

(a)any period specified in the consent or direction for the taking of any action, being a period which had not expired prior to the date mentioned in paragraph (1), were extended by a period equal to that during which the revocation or variation had effect; and

(b)there were substituted for any date specified in the consent or direction as being a date by which any action should be taken, not being a date falling prior to that date mentioned in paragraph (1), such date as post–dates the specified date by a period equal to that during which the revocation or variation had effect;

(3) The revocation or variation pursuant to regulation 71 of a consent under section 36 or 37 of the Electricity Act 1989, or a direction deeming planning permission to be granted, shall not affect anything done under the consent or direction prior to the revocation or variation taking effect.

Consents under Electricity Act 1989: compensation for revocation or variationE+W+S

74.—(1) Where a direction deeming planning permission to be granted is revoked or varied pursuant to regulation 71, that permission shall be treated–

(a)for the purposes of Part IV of the Town and Country Planning Act 1990 (compensation) as having been revoked or modified by order under section 97 of that Act, or

(b)for the purposes of Part VIII of the Town and Country Planning (Scotland) Act 1972 (compensation) as having been revoked or modified by order under section 42 of that Act.

(2) Where a consent under section 36 or 37 of the Electricity Act 1989 is revoked or varied pursuant to regulation 71, Part IV of the Town and Country Planning Act 1990 or Part VIII of the Town and Country Planning (Scotland) Act 1972 (compensation) shall apply as if–

(a)the consent had been planning permission granted on an application under that Act and had been revoked or modified by order under section 97 of the 1990 Act or section 42 of the 1972 Act; and

(b)each of those Parts provided that the Secretary of State was the person liable to pay any compensation provided for by that Part.

This paragraph shall not have effect to confer any right to compensation for any expenditure, loss or damage for which compensation is payable by virtue of paragraph (1) above.

(3) Where the Secretary of State decides not to proceed with the revocation or variation of a consent under section 36 or 37 of the Electricity Act 1989, or a direction deeming planning permission to be granted, any claim for compensation by virtue of this regulation shall be limited to any loss or damage directly attributable to the consent or direction ceasing to have effect or being varied for the duration of the period between the revocation or variation taking effect under regulation 73(1) and the Secretary of State deciding not to proceed with it.

(4) Where compensation is payable by virtue of this regulation, the question as to the amount of the compensation shall be referred to and determined by the Lands Tribunal, or the Lands Tribunal for Scotland, unless and to the extent that in any particular case the Secretary of State has indicated in writing that such a reference and determination may be dispensed with.

Pipe–linesE+W+S

Authorisations under the Pipe–lines Act 1962: application of general requirementsE+W+S

75.—(1) Regulations 48 and 49 (requirement to consider effect on European site) apply in relation to the granting of a pipe–line construction or diversion authorisation under the Pipe–lines Act 1962(82).

(2) Where in such a case the Secretary of State considers that any adverse effects of the plan or project on the integrity of a European site would be avoided by granting an authorisation for the execution of works for the placing of the proposed pipe–line or, as the case may be, the portion of the pipe–line to be diverted, along a midified route, he may, subject to the provisions of Schedule 1 to the Pipe–lines Act 1962, grant such an authorisation.

(3) Regulation 50 and 51 (requirement to review existing decisions and consents, &c.) apply to a pipe–line construction or diversion authorisation under the Pipe–lines Act 1962 unless–

(a)the works to which the authorisation relates have been completed before the site became a European site or, if later, the commencement of these Regulations, or

(b)the authorisation was granted subject to a condition as to the time within which the works to which it relates were to be begun and that time has expired without them having been begun, or

(c)it was granted for a limited period and that period has expired.

(4) Where on the review of such an authorisation the Secretary of State considers that any adverse effects on the integrity of a European site of the carrying out or, as the case may be, the continuation of the plan or project weould be avoided by a variation of the authorisation, he may vary it accordingly.

(5) In conjunction with the review of any such authorisation the Secretary of State shall review any direction deeming planning permission to be granted for the plan or project and may vary or revoke it.

Authorisations under the Pipe–lines Act 1962: procedure on reviewE+W+S

76.—(1) Where the Secretary of State decides in pursuance of regulation 75 to revoke or vary an authorisation under the Pipe–lines Act 1962, or a direction deeming planning permission to be granted, he shall serve notice on–

(a)the person to whom the authorisation was granted or, as the case may be, in whose favour the direction was made, and

(b)any other person who in his opinion will be affected by the revocation or variation,

informing them of the decision and specifying a period of not less than 28 days within which any person on whom the notice is serviced may make representations to him.

(2) The Secretary of State shall also serve notice on–

(a)the local planning authority, and

(b)the appropriate nature conservation body,

informing them of the decision and inviting their representations within the specified period.

(3) The Secretary of State shall consider whether to proceed with the revocation or variation, and shall have regard to any representations made to him in accordance with paragraph (1) or (2).

(4) If within the specified period a person on whom notice was served under paragraph (1), or the local planning authority, so requires, the Secretary of State shall before deciding whether to proceed with the revocation or variation give–

(a)to them, and

(b)to any other person on whom notice under paragraph (1) or (2) was required to be served,

an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.

Authorisations under the Pipe–lines Act 1962: effect of reviewE+W+S

77.—(1) The revocation or variation pursuant to regulation 75 of an authorisation under the Pipe–lines Act 1962, or of a direction deeming planning permission to be granted, shall take effect upon service of the notices required by regulation 76(1) or, where there is more than one such notice and those notices are served at different times, upon the service of the last such notice to be served.

(2) Where the Secretary of State decides not to proceed with the revocation or variation, the authorisation or direction shall have effect again from the time of that decision, and shall thereafter have effect as if–

(a)any period specified in the authorisation or direction for the taking of any action, being a period which had not expired prior to the date mentioned in paragraph (1), were extended by a period equal to that during which the revocation or variation had effect; and

(b)there were substituted for any date specified in the authorisation or direction as being a date by which any action should be taken, not being a date falling prior to that date mentioned in paragraph (1), such date as post–dates the specified date by a period equal to that during which the revocation or variation had effect.

(3) The revocation or variation pursuant to regulation 75 of an authorisation under the Pipe–lines Act 1962, or a direction deeming planning permission to be granted, shall not affect anything done under the authorisation or direction prior to the revocation or variation taking effect.

Authorisations under the Pipe–lines Act 1962: compensation for revocation or variationE+W+S

78.—(1) Where a direction deeming planning permission to be granted is revoked or varied pursuant to regulation 75, that permission shall be treated–

(a)for the purposes of Part IV of the Town and Country Planning Act 1990(83) (compensation) as having been revoked or modified by order under section 97 of that Act, or

(b)for the purposes of Part VIII of the Town and Country Planning (Scotland) Act 1972(84)(Compensation) as having been revoked or modified by order under section 42 of that Act.

(2) Where an authorisation under the Pipe–lines Act 1962 is revoked or varied pursuant to regulation 75, Part IV of the Town and Country Planning Act 1990 or Part VIII of the Town and Country Planning (Scotland) Act 1972 (compensation) shall apply as if–

(a)the authorisation had been planning permission granted on an appplication under that Act and had been revoked or modified by order under section 97 of the 1990 Act or section 42 of the 1972 Act; and

(b)each of those Parts provided that the Secretary of State was the person liable to pay any compensation provided for by that Part.

This paragraph shall not have effect to confer any right to compensation for any expenditure, loss or damage for which compensation is payable by virtue of paragraph (1) above.

(3) Where the Secretary of State decides not to proceed with the revocation or variation of an authorisation under the Pipe–lines Act 1962, or a direction deeming planning permission to be granted, any claim for compensation by virtue of this regulation shall be limited to any loss or damage directly attributable to the authorisation or direction ceasing to have effect or being varied for the duration of the period between the revocation or variation taking effect under regulation 77(1) and the Secretary of State deciding not to proceed with it.

(4) Where compensation is payable by virtue of this regulation, the question as to the amount of the compensation shall be referred to and determined by the Lands Tribunal, or the Lands Tribunal for Scotland, unless and to the extent that in any particular case the Secretary of State has indicated in writing that such a reference and determination may be dispensed with.

Transport and worksE+W+S

Orders under the Transport and Works Act 1992: application of general requirementsE+W+S

79.—(1) Regulations 48 and 49 (requirement to consider effect on Europeamn site) apply in relation to the making of an order under section 1 or 3 of the Transport and Works Act 1992(85).

(2) Where in such a case the Secretary of State considers that any adverse effects of the plan or project on the integrity of a European site would be avoided by making modifications to the proposals, he may make an order subject to those modifications.

(3) Regulations 50 and 51 (requirement to review existing decisions and consents, &c.) apply to an order under section 1 or 3 of the Transport and Works Act 1992 unless the works to which the order relates have been completed before the site became a European site.

(4) Where on the review of such an order the Secretary of State considers that any adverse effects on the integrity of a European site of the carrying out or, as the case may be, the continuation of the plan or project would be avoided by a variation of the order, he may vary it accordingly.

(5) In conjunction with the review of any such order the Secretary of State shall review any direction deeming planning permission to be granted for the plan or project and may vary or revoke it.

Orders under the Transport and Works Act 1992: procedure on reviewE+W+S

80.—(1) Where the Secretary of State decides in pursuance of regulation 79 to revoke or vary an order the Transport and Works Act 1992, or a direction deeming planning permission to be granted, he shall serve notice on–

(a)the person (if any) on whose application the order was made or, as the case may be, in whose favour the direction was made, and

(b)any other person who in his opinion will be affected by the revocation or variation,

informing them of the decision and specifying a period of not less than 28 days within which any person on whom the notice is served may make representations to him.

(2) The Secretary of State shall also serve notice on–

(a)the local planning authority, and

(b)the appropriate nature conservation body,

informing them of the decision and inviting their representations within the specified period.

(3) The Secretary of State shall consider whether to proceed with the revocation or variation, and shall have regard to any representations made to him in accordance with paragraph (1) or (2).

(4) If within the specified period a person on whom notice was served under paragraph (1), or the local planning authority, so requires, the Secretary of State shall before deciding whether to proceed with the revocation or variation of the order or direction give—

(a)to them,

(b)to any other person on whom notice under paragraph (1) and (2) was required to be served,

an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.

Order under the Transport and Works Act 1992: effect of reviewE+W+S

81.—(1) The revocation or variation pursuant to regulation 79 of an order under the Transport and Works Act 1992, or of a direction deeming planning permission to be granted, shall take effect upon service of the notices required by regulation 80(1) or, where there is more than one such notice and those notices are served at different times, upon the service of the last notice to be served.

(2) Where the Secretary of State decides not to proceed with the revocation or variation, the order or direction shall have effect again from the time of that decision, and shall thereafter have effect as if–

(a)any period specified in the order or direction for the taking of any action, being a period which had not expired prior to the date mentioned in paragraph (1), were extended by a period equal to that during which the revocation or variation had effect; and

(b)there were substituted for any date specified in the order or direction as being a date by which any action should be taken, not being a date falling prior to that date mentioned in paragraph (1), such date as post–dates the specified date by a period equal to that during which the revocation or variation had effect.

(3) The revocation or variation pursuant to regulation 79 of an order under section 1 or 3 of the Transport and Works Act 1992, or of a direction deeming planning permission to be granted, shall not affect anything done under the order or direction prior to the revocation or variation taking effect.

Orders under the Transport and Works Act 1992: compensation for revocation or variationE+W+S

82.—(1) Where a direction deeming planning permission to be granted is revoked or varied pursuant to regulation 79, that permission shall be treated for the purposes of Part IV of the Town and Country Planning Act 1990 (compensation) as having been revoked or modified by order under section 97 of that Act.

(2) Where an order under section 1 or 3 of the Transport and Works Act 1992 is revoked or varied pursuant to regulation 79, Part IV of the Town and Country Planning Act 1990 shall apply as if–

(a)the order had been planning permission granted on an application under that Act and had been revoked or modified by order under section 97 of that Act; and

(b)that Part provided that the Secretary of State was the person liable to pay any compensation provided for by that Part.

This paragraph shall not have effect to confer any right to compensation for any expenditure, loss or damage for which compensation is payable by virtue of paragraph (1) above.

(3) Where the Secretary of State decides not to proceed with the revocation or variation of an order under section 1 or 3 of the Transport and Works Act 1992, or a direction deeming planning permission to be granted, any claim for compensation by virtue of this regulation shall be limited to any loss or damage directly attributable to the order or direction ceasing to have effect or being varied for the duration of the period between the revocation or variation taking effect under regulation 81(1) and the Secretary of State deciding not to proceed with it.

(4) Where compensation is payable by virtue of this regulation, the question as to the amount of the compensation shall be referred to and determined by the Lands Tribunal unless and to the extent that in any particular case the Secretary of State has indicated in writing that such a reference and determination may be dispensed with.

Environmental controlsE+W+S

Authorisations under Part I of the Environmental Protection Act 1990E+W+S

83.—(1) Regulations 48 and 49 (requirement to consider effect on European site) apply in relation to the granting of an authorisation under Part I of the Environmental Protection Act 1990 (integrated pollution control and local authority air pollution control).

(2) Where in such a case the comptetent authority consider that any adverse effects of the plan or project on the integrity of a European site would be avoided if the authorisation were subject to conditions, they may grant an authorisation, or cause an authorisation to be granted, subject to those conditions.

(3) Regulations 50 and 51 (requirement to review existing decisions and consents, &c.) apply to any such authorisation as is mentioned in paragraph (1).

(4) Where on the review of such an authorisation the competent authority consider that any adverse effects on the integrity of a European site of the carrying out or, as the case may be, the continuation of activities authorised by it would be avoided by a variation of the authorisation, they may vary it, or cause it to be varied, accordingly.

(5) Where any question arises as to agreeing to a plan or project, or affirming an authorisation on review, under regulation 49 (considerations of overriding public interest), the competent authority shall refer the matter to the Secretary of State who shall determine the matter in accordance with that regulation and give directions to the authority accordingly.

Licences under Part II of the Environmental Protection Act 1990E+W+S

84.—(1) Regulations 48 and 49 (requirement to consider effect on European site) apply in relation to–

(a)the granting of a waste management licence under Part II of the Environmental Protection Act 1990,

(b)the passing of a resolution under section 54 of that Act (provisions as to land occupied by disposal authorities themselves), and

(c)the granting of a disposal licence under Part I of the Control of Pollution Act 1974(86) and the passing of a resolution under section 11 of that Act(87).

(2) Where in such a case the competent authority consider that any adverse effects of the plan or project on the integrity of a European site would be avoided by making any licence subject to conditions, they may grant a licence, or cause a licence to be granted, or, as the case may be, pass a resolution, subject to those conditions.

(3) Regulations 50 and 51 (requirement to review existing decisions and consents, &c.) apply to any such licence or resolution as is mentioned in paragraph (1).

(4) Where on the review of such a licence or resolution the competent authority consider that any adverse effects on the integrity of a European site of the carrying out or, as the case may be, the continuation of the activities authorised by it would be avoided by a variation of the licence or resolution, they may vary it, or cause it to be varied, accordingly.

[F59Permits under the Pollution Prevention and Control (England and Wales) Regulations 2000E+W

84A.—(1) Regulations 48 and 49 (requirement to consider effect on European site) apply in relation to the granting of a permit under the Pollution Prevention and Control (England and Wales) Regulations 2000.

(2) Where in such a case the competent authority consider that any adverse effects of the plan or project on the integrity of a European site would be avoided if the permit were subject to conditions, they may grant a permit, or cause a permit to be granted, subject to those conditions.

(3) Regulations 50 and 51 (requirement to review existing decisions and consents, etc.) apply to any such permit as is mentioned in paragraph (1).

(4) Where on the review of such a permit the competent authority consider that any adverse effects on the integrity of a European site of the carrying out or, as the case may be, the continuation of activities authorised by it would be avoided by a variation of the permit, they may vary it, or cause it to be varied, accordingly.

(5) Where any question arises as to agreeing to a plan or project, or affirming a permit on review, under regulation 49 (considerations of overriding public interest), the competent authority shall refer the matter to the Secretary of State who shall determine the matter in accordance with that regulation and give directions to the authority accordingly.]

[F98Permits under the Pollution Prevention and Control (Scotland) Regulations 2000S

84A.—(1) Regulations 48 and 49 (requirement to consider effect on European site) apply in relation to the granting of a permit under the Pollution Prevention and Control (Scotland) Regulations 2000.

(2) Where in such a case the competent authority consider that any adverse effects of the plan or project on the integrity of a European site would be avoided if the permit were subject to conditions, they may grant a permit, or cause a permit to be granted, subject to those conditions.

(3) Regulations 50 and 51 (requirement to review existing decisions and consents, &c.) apply to any such permit as is mentioned in paragraph (1).

(4) Where on the review of such a permit the competent authority consider that any adverse effects on the integrity of a European site of the carrying out or, as the case may be, the continuation of activities authorised by it would be avoided by a variation of the permit, they may vary it, or cause it to be varied, accordingly.

(5) Where any question arises as to agreeing to a plan or project, of affirming a permit on review, under regulation 49 (considerations of overriding public interest), the competent authority shall refer the matter to the Scottish Ministers who shall determine the matter in accordance with that regulation and give directions to the authority accordingly.]

Discharge consents under water pollution legislationE+W+S

85.—(1) Regulations 48 and 49 (requirement to consider effect on European site) apply in relation to the giving of consent under—

(a)Chapter II of Part III to the Water Resources Act 1991(88) (control of pollution of water resources), F61...

F61(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Where in such a case the competent authority consider that any adverse effects of the plan or project on the integrity of a European site would be avoided by making any consent subject to conditions, they may give consent, or cause it to be given, subject to those conditions.

(3) Regulations 50 and 51 (requirement to review existing decisions and consents, &c.) apply to any such consent as is mentioned in paragraph (1).

(4) Where on the review of such a consent the competent authority consider that any adverse effects on the integrity of a European site of the carrying out or, as the case may be, the continuation of the activities authorised by it would be avoided by a variation of the consent, they may vary it, or cause it to be varied, accordingly.

[F62PART IVASAPPROPRIATE ASSESSMENTS FOR LAND USE PLANS

InterpretationS

85A.—(1) In this Part–

“the 1997 Planning Act” means the Town and Country Planning (Scotland) Act 1997;

“land use plan” means an alteration or replacement of a structure plan or local plan as provided for in Part II of the 1997 Planning Act;

“plan making authority” means–

“planning authority” has the meaning given in section 1 of the 1997 Planning Act.

(2) References in this Part to giving effect to a land use plan are to–

(a)the adoption by a planning authority, the Loch Lomond and the Trossachs National Park Authority or the Cairngorms National Park Authority of a local plan under section 17 of the 1997 Planning Act;

(b)the approval by the Scottish Ministers of a structure plan under section 10 or a local plan under section 19 of the 1997 Planning Act.

Assessment of implications for European siteS

85B.—(1) Where a land use plan–

(a)is likely to have a significant effect on a European site in Great Britain (either alone or in combination with other plans or projects); and

(b)is not directly connected with or necessary to the management of the site,

the plan-making authority for that land use plan shall, before the plan is given effect, make an appropriate assessment of the implications for the site in view of that site's conservation objectives.

(2) The plan-making authority shall for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority may specify.

(3) The plan-making authority shall, if it considers it appropriate, take the opinion of the general public, and in doing so, shall take such steps for that purpose as it considers appropriate.

(4) In the light of the conclusions of the assessment, and subject to regulation 85C (considerations of overriding public interest), the plan-making authority shall give effect to the land use plan only after having ascertained that it will not adversely affect the integrity of the European site.

(5) A plan-making authority other than the Scottish Ministers shall provide such information as the Scottish Ministers may reasonably require–

(a)to enable the Scottish Ministers to determine whether an assessment under paragraph (1) is required; or

(b)for the purposes of an assessment under paragraph (1).

(6) This regulation does not apply in relation to a site which is a European site by reason only of regulation 10(1)(c).

Considerations of overriding public interestS

85C.—(1) If the plan making authority is satisfied that, there being no alternative solutions, the land use plan must be given effect for imperative reasons of overriding public interest (which subject to paragraph (2), may be of a social or economic nature), it may give effect to the land use plan notwithstanding a negative assessment of the implications for the European site.

(2) Where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in paragraph (1) must be either–

(a)reasons relating to human health, public safety or beneficial consequences of primary importance to the environment; or

(b)any other reasons of overriding public interest provided the competent authority has had regard to the opinion of the European Commission in satisfying themselves that there are such reasons.

(3) Where a plan-making authority, other than the Scottish Ministers, desires to obtain the opinion of the European Commission as to whether reasons are to be considered imperative reasons of overriding public interest, it shall submit a written request to the Scottish Ministers–

(a)identifying the matter on which an opinion is sought; and

(b)accompanied by any documents or information which may be required.

(4) The Scottish Ministers may seek the opinion of the European Commission and shall transmit the opinion to the plan-making authority.

(5) Where a plan-making authority other than the Scottish Ministers proposes to give effect to a land use plan under this regulation notwithstanding a negative assessment of the implications for a European site, it shall notify the Scottish Ministers.

(6) Having notified the Scottish Ministers under paragraph (5), the authority in question shall not give effect to the land use plan before the end of the period of 21 days beginning with the day notified to it by the Scottish Ministers as that on which the notification was received by them, unless the Scottish Ministers notify the authority that it may do so.

(7) Without prejudice to any other power, the Scottish Ministers may give directions to the plan making authority prohibiting it from giving effect to the land use plan, either indefinitely or during such period as may be specified in the direction.

Co-ordination for land use plan prepared by more than one planning authorityS

85D.—(1) This regulation applies where two or more planning authorities prepare a joint structure plan under section 5 or joint local plan under section 11 of the 1997 Planning Act.

(2) Nothing in regulation 85B(1) requires a planning authority to assess any implications of a joint structure plan or joint local plan which would be more appropriately assessed under that provision by another planning authority.

(3) The Scottish Ministers may issue guidance to planning authorities for the purposes of regulation 85B(1) as to the circumstances in which a planning authority may or should adopt the reasoning or conclusions of another planning authority as to whether a joint structure plan or a joint local plan–

(a)is likely to have a significant effect on a European site, or

(b)will adversely affect the integrity of a European site.

(4) The planning authorities involved shall have regard to any guidance issued under paragraph (3) in discharging their functions under regulation 85B(1).

(5) In determining whether a joint structure or local plan should be adopted under regulation 85C(1) a planning authority shall seek and have regard to the views of other planning authorities involved.

Compensatory measuresS

85E.  Where in accordance with regulation 85C a land use plan is given effect, notwithstanding a negative assessment of the implications for a European site, the Scottish Ministers shall secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 is protected.]

PART VE+W+SSUPPLEMENTARY PROVISIONS

Supplementary provisions as to management agreementsE+W+S

Powers of limited owners, &c. to enter into management agreementsE+W+S

86.—(1) In the case of settled land in England and Wales–

(a)the tenant for life may enter into a management agreement relating to the land, or any part of it, either for consideration or gratuitously;

(b)the Settled Land Act 1925(89) shall apply as if the power conferred by sub– paragraph (a) had been conferred by that Act; and

(c)for the purposes of section 72 of that Act (which relates to the mode of giving effect to a disposition by a tenant for life and to the operation thereof), and of any other relevant statutory provision, entering into a management agreement shall be treated as a disposition.

The above provisions of this paragraph shall be construed as one with the Settled Land Act 1925.

(2) Section 28 of the Law of Property Act 1925(90) (which confers the powers of a tenant for life on trustees for sale) shall apply as if the power of a tenant for life under paragraph (1)(a) above had been conferred by the Settled Land Act 1925.

(3) A university or college to which the Universities and College Estates Act 1925(91) applies may enter into a management agreement relating to any land belonging to it in England and Wales either for consideration or gratuitously.

That Act shall apply as if the power conferred by this paragraph had been conferred by that Act.

(4) In the case of glebe land or other land belonging to an ecclesiastical benefice–

(a)the incumbent of the benefice, and

(b)in the case of land which is part of the endowment of any other ecclesiastical corporation, the corporation,

may with the consent of the Church Commissioners enter into a management agreement either for consideration or gratuitously.

• The Ecclesiastical Leasing Acts shall apply as if the power conferred by this paragraph had been conferred by those Acts, except that the consent of the patron of an ecclesiastical benefice shall not be requisite.

(5) In the case of any land in Scotland, any person being–

(a)the liferenter, or

(b)the heir of entail,

in possession of the land shall have power to enter into a management agreement relating to the land or any part of it.

(6) The Trusts (Scotland) Act 1921(92) shall have effect as if among the powers conferred on trustees by section 4 of that Act (which relates to the general powers of trustees) there were included a power to enter into management agreements relating to the trust estate or any part of it.

Supplementary provisions as to potentially damaging operationsE+W+S

[F63Carrying out of operation after expiry of periodE+W

87.—(1) If before the expiry of the period of four months referred to in regulation 19(2)(c) the relevant person agrees in writing with the appropriate nature conservation body that, subject as follows, the condition specified in that provision shall not apply in relation to the operation in question, then, subject as follows, regulation 19(2) shall as from the date of the agreement have effect in relation to the operation (as regards both the owner or the occupier of the land in question) as if sub–paragraph (c) were omitted.

(2) If after such an agreement has been made the relevant person (whether a party to the agreement or not) gives written notice to the appropriate nature conservation body that he wishes to terminate the agreement, then as from the giving of the notice regulation 19(2) shall have effect in relation to the operation in question (as regards both the owner and the occupier of the land in question) as if paragraph (c) specified the condition that one month, or any longer period specified in the notice, has expired from the giving of the notice under this paragraph.

(3) In paragraphs (1) and (2) above “the relevant person”–

(a)in a case where the notice under regulation 19(1)(a) was given by the owner of the land in question, means the owner of that land;

(b)in a case where that notice was given by the occupier of that land, means the occupier of that land.

Duties of agriculture Ministers with respect to European sitesE+W

88.—(1) Where an application for a farm capital grant is made as respects expenditure incurred or to be incurred for the purpose of activities on land within a European site, the Minister responsible for determining the application–

(a)shall, so far as may be consistent with the purposes of the grant provisions, so exercise his functions thereunder as to further the conservation of the flora, fauna, or geological or physiographical features by reason of which the land is a European site; and

(b)where the appropriate nature conservation body have objected to the making of the grant on the ground that the activities in question have destroyed or damaged or will destroy or damage that flora or fauna or those features, shall not make the grant except after considering the objection and, in the case of land in England, after consulting with the Secretary of State.

(2) Where in consequence of an objection by the appropriate nature conservation body, an application for a grant as respects expenditure to be incurred is refused on the ground that the activities in question will have such an effect as is mentioned in paragraph (1)(b), the appropriate nature conservation body shall, within three months of their receiving notice of the Minister’s decision, offer to enter into, in the terms of a draft submitted to the applicant, a management agreement–

(a)imposing restrictions as respects those activities, and

(b)providing for the making by them of payments to the applicant.

(3) In this regulation–

“farm capital grant” means–

(a)a grant under a scheme made under section 29 of the Agriculture Act 1970(93), or

(b)a grant under regulations made under section 2(2) of the European Communities Act 1972(94) to a person carrying on an agricultural business within the meaning of those regulations in respect of expenditure incurred or to be incurred for the purposes of or in connection with that business, being expenditure of a capital nature or incurred in connection with expenditure of a capital nature; and

“grant provisions”means–

(i)in the case of such a grant as is mentioned in paragraph (a) above, the scheme under which the grant is made and section 29 of the Agriculture Act 1970, and

(ii)in the case of such a grant as is mentioned in paragraph (b) above, the regulations under which the grant is made and the Community instrument in pursuance of which the regulations were made.

Payments under certain agreements offered by authoritiesE+W

89.—(1) This regulation applies where the appropriate nature conservation body offers to enter into a management agreement providing for the making of payments by them to–

(a)a person who has given notice under regulation 19(1)(a) or 23(1)(a), or

(b)a person whose application for a farm capital grant within the meaning of regulation 88 has been refused in consequence of an objection by that body.

(2) Subject to paragraph (3), the said payments shall be of such amounts as may be determined by the offeror in accordance with guidance given–

(a)in England, by the Minister of Agriculture, Fisheries and Food and the Secretary of State, or

(b)in Wales or Scotland, by the Secretary of State.

(3) If the offeree so requires within one month of receiving the offer, the determination of those amounts shall be referred to an arbitrator to be appointed, in default of agreement, by the Secretary of State.

(4) Where the amounts determined by the arbitrator exceed those determined by the offeror, the offeror shall–

(a)amend the offer so as to give effect to the arbitrator’s determination, or

(b)except in the case of an offer made to a person whose application for a farm capital grant has been refused in consequence of an objection by the offeror, withdraw the offer.

(5) In the application of this regulation in Scotland references to an arbitrator shall be construed as references to an arbiter.

Powers of entryE+W

90.—(1) A person authorised in writing by the appropriate nature conservation body may, at any reasonable time and (if required to do so) upon producing evidence that he is so authorised, enter any land–

(a)to ascertain whether a special nature conservation order should be made in relation to that land, or if an offence under regulation 23 is being, or has been, committed on that land; or

(b)to ascertain the amount of any compensation payable under regulation 25 in respect of an interest in that land.

But nothing in this paragraph shall authorise any person to enter a dwelling.

(2) A person shall not demand admission as of right to any land which is occupied unless either–

(a)24 hours' notice of the intended entry has been given to the occupier, or

(b)the purpose of the entry is to ascertain if an offence under regulation 23 is being, or has been, committed on that land.

(3) A person who intentionally obstructs a person in the exercise of his powers under this regulation commits an offence and is liable on summary conviction to a fine not exceeing level 3 on the standard scale.

Compensation: amount and assessmentE+W

91.—(1) The following provisions have effect as to compensation under regulation 25(1) (effect of special nature conservation order: decrease in value of agricultural unit).

(2) The amount of the compensation shall be the difference between the value of the interest in question and what it would have been had the order not been made.

(3) For this purpose–

(a)an interest in land shall be valued as at the time when the order is made; and

(b)where a person, by reason of his having more than one interest in land, makes more than one claim in respect of the same order, his various interests shall be valued together.

(4) Section 10 of the Land Compensation Act 1973(95) (mortgages, trusts for sale and settlements) or section 10 of the Land Compensation (Scotland) Act 1973(96) apply in relation to compensation under regulation 25(1) as in relation to compensation under Part I of that Act.

(5) For the purposes of assessing compensation under regulation 25(1), the rules set out in section 5 of the Land Compensation Act 1961(97) or section 12 of the Land Compensation (Scotland) Act 1963(98) have effect, so far as applicable and subject to any necessary modifications, as they have effect for the purpose of assessing compensation for the compulsory acquisition of an interest in land.

Compensation: other supplementary provisionsE+W

92.—(1) The following provisions have effect in relation to compensation under regulation 25 (compensation for effect of special nature conservation order).

(2) The compensation shall carry interest, at the rate for the time being prescribed under section 32 of the Land Compensation Act 1961 or section 40 of the Land Compensation (Scotland) Act 1963(99), from the date of the claim until payment.

(3) Except in so far as may be provided by regulations, any question of disputed compensation shall be referred to and determined by the Lands Tribunal or the Lands Tribunal for Scotland.

(4) In relation to the determination of any such question, the provisions of sections 2 and 4 of the Land Compensation Act 1961 or sections 9 and 11 of the Land Compensation (Scotland) Act 1963 (procedure and costs) shall apply, subject to any necessary modifications and to the provisions of any regulations.

Compensation: procedural provisionsE+W

93.—(1) The power to make regulations under section 30 of the Wildlife and Countryside Act 1981(100) (provisions as to compensation where order made under section 29 of that Act) shall be exercisable so as to make provision for the purposes of these Regulations corresponding to those for which provision may be made under that section.

(2) The references in regulation 25 to matters being prescribed by regulations, and in regulation 92(3) and (4) to matters being provided by regulations, are to their being so prescribed or provided.

(3) Any regulations in force under section 30 on the commencement of these Regulations shall have effect for the purposes of these Regulations as if made under that section as applied by this regulation.]

Supplementary provisions as to byelawsE+W+S

Procedure for making byelaws, penalties, &c.E+W+S

94.—(1) Sections 236 to 238 of the Local Government Act 1972(101) or sections 201 to 204 of the Local Government (Scotland) Act 1973(102) (procedure, &c. for byelaws; offences against byelaws; evidence of byelaws) apply to all byelaws made under section 20 of the National Parks and Access to the Countryside Act 1949(103) as it applies by virtue of regulation 28 as if the appropriate nature conservation body were a local authority within the meaning of that Act.

(2) In relation to byelaws so made the confirming authority for the purposes of the said section 236 or section 201 shall be the Secretary of State.

(3) The appropriate nature conservation body shall have power to enforce byelaws made by them:

Provided that nothing in this paragraph shall be construed as authorising the institution of proceedings in Scotland for an offence.

Powers of entryE+W+S

95.—(1) For the purpose of surveying land, or of estimating its value, in connection with any claim for compensation payable under regulation 30 in respect of that or any other land, an officer of the Valuation Office or person duly authorised in writing by the authority from whom the compensation is claimed may enter upon the land.

(2) A person authorised under this regulation to enter upon any land shall, if so required, produce evidence of his authority before entering.

(3) A person shall not under this regulation demand admission as of right to any land which is occupied unless at least 14 days' notice in writing of the intended entry has been given to the occupier.

(4) A person who intentionally obstructs a person in the exercise of his powers under this regulation commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Compensation: England and WalesE+W+S

96.—(1) The following provisions have effect as to compensation under regulation 30 (compensation for effect of byelaws) in respect of land in England and Wales.

(2) Any dispute arising on a claim for any such compensation shall be determined by the Lands Tribunal.

(3) For the purposes of any such reference to the Lands Tribunal, section 4 of the Land Compensation Act 1961 (which relates to costs) has effect with the substitution for references to the acquiring authority of references to the authority from whom the compensation in question is claimed.

(4) Rules (2) to (4) of the Rules set out in section 5 of that Act (which provides rules for valuation on a compulsory acquisition) apply to the calculation of any such compensation, in so far as it is calculated by reference to the depreciation of the value of an interest in land.

(5) In the case of an interest in land subject to a mortgage–

(a)any such compensation in respect of the depreciation of that interest shall be calculated as if the interest were not subject to the mortgage;

(b)a claim or application for the payment of any such compensation may be made by any person who when the byelaws giving rise to the compensation were made was the mortgagee of the interest, or by any person claiming under such a person, but without prejudice to the making of a claim or application by any other person;

(c)a mortgagee shall not be entitled to any such compensation in respect of his interest as such; and

(d)any compensation payable in respect of the interest subject to the mortgage shall be paid to the mortgagee or, where there is more than one mortgagee, to the first mortgagee, and shall in either case be applied by him as if it were proceeds of sale.

Compensation: ScotlandE+W+S

97.—(1) The following provisions have effect as to compensation under regulation 30 (compensation for effect of byelaws) in respect of land in Scotland.

(2) Any dispute arising on a claim for any such compensation shall be determined by the Lands Tribunal for Scotland.

(3) For the purposes of any such reference to the Lands Tribunal for Scotland section 8 of the Land Compensation (Scotland) Act 1963 (which relates to expenses) has effect with the substitution for references to the acquiring authority, of references to the authority from whom the compensation in question is claimed.

(4) Rules (2) to (4) of the Rules set out in section 12 of that Act (which provides rules for valuation on a compulsory acquisition) apply to the calculation of any such compensation, in so far as it is calculated by reference to the depreciation of the value of an interest in land.

(5) In the case of an interest in land subject to a heritable security–

(a)any such compensation in respect of the depreciation of that interest shall be calculated as if the interest were not subject to the heritable security;

(b)a claim or application for the payment of any such compensation may be made by any person who when the byelaws giving rise to the compensation were made was the creditor in a heritable security of the interest, or by any person claiming under such a person, but without prejudice to the making of a claim or application by any other person;

(c)a creditor in a heritable security shall not be entitled to any such compensation in respect of his interest as such; and

(d)any compensation payable in respect of the interest subject to the heritable security shall be paid to the creditor or, where there is more than one creditor in a heritable security, to the creditor whose heritable security has priority over any other heritable securities secured on the land, and shall in either case be applied by him as if it were proceeds of sale.

Supplementary provisions as to compulsory acquisitionE+W+S

[F64Supplementary provisions as to acquisition of landE+W+S

98.—(1) The powers of compulsory acquisition conferred on the appropriate nature conservation body by regulation 32 are exercisable in any particular case on their being authorised so to do by the Secretary of State.

(2) In that regulation and in this regulation “land” includes any interest in land.

For this purpose “interest”, in relation to land, includes any estate in land and any right over land, whether the right is exercisable by virtue of the ownership of an interest in land or by virtue of a licence or agreement, and in particular includes sporting rights.

(3) The Acquisition of Land Act 1981(104) applies in relation to any acquisition under these Regulations of land in England and Wales, and the Compulsory Purchase Act 1965(105) applies with any necessary modifications in relation to the acquisition of any interest in land in England and Wales.

(4) In relation to the compulsory acquisition of land in Scotland, the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947(106) shall apply as if these Regulations had been in force immediately before the commencement of that Act and as if in paragraph (a) of subsection (1) of section 1 thereof, in Part I of the First Schedule thereto and in the Second Schedule thereto references to a local authority included Scottish Natural Heritage:

Provided that section 2 of the said Act (which confers temporary powers for the speedy acquisition of land in urgent cases) shall not apply to any such compulsory acquisition as is mentioned in this paragraph.

The provisions of the Lands Clauses Acts incorporated with these Regulations by virtue of paragraph 1 of the Second Schedule to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947, as applied by this paragraph, shall apply with the necessary modifications in relation to the compulsory acquisition of any interest in land, being an interest not falling within the definition of “lands” contained in the Lands Clauses Acts.]

[F64Powers of entryE+W

99.—(1) For the purpose of surveying land in connection with the acquisition thereof or of any interest therein, whether by agreement or compulsorily, in the exercise of any power conferred by these Regulations, a person duly authorised in writing by the authority having power so to acquire the land or interest may enter upon the land.

(2) A person authorised under this regulation to enter upon any land shall, if so required, produce evidence of his authority before entering.

(3) A person shall not under this regulation demand admission as of right to any land which is occupied unless at least 14 days' notice in writing of the intended entry has been given to the occupier.

(4) A person who intentionally obstructs a person in the exercise of his powers under this regulation commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.]

Supplementary provisions as to protection of speciesE+W+S

Attempts and possession of means of committing offenceE+W+S

100.—(1) A person who attempts to commit an offence under Part III of these Regulations is guilty of an offence and punishable in like manner as for that offence.

(2) A person who, for the purposes of committing an offence under Part III of these Regulations, has in his possession anything capable of being used for committing the offence is guilty of an offence and punishable in like manner as for that offence.

(3) References below to an offence under Part III include an offence under this regulation.

EnforcementE+W+S

101.—(1) If a constable suspects with reasonable cause that any person is committing or has committed an offence under Part III of these Regulations, the constable may without warrant–

(a)stop and search that person if the constable suspects with reasonable cause that evidence of the commission of the offence is to be found on that person;

(b)[F65search for,] search or examine any thing which that person may then be using or [F66have in his possession] [F66may have used, or may have or have had in his possession,] if the constable suspects with reasonable cause that evidence of the commission of the offence is to be[F67 found] [F67in or] on that thing;

[F68(ba)arrest that person;]

(c)seize and detain for the purposes of proceedings under that Part any thing which may be evidence of the commission of the offence or may be liable to be forfeited under regulation 103.

(2) If a constable suspects with reasonable cause that any person is committing [F69or has committed] an offence under Part III of these Regulations, he may, for the purposes of exercising the powers conferred by paragraph (1) or arresting a person in accordance with [F70section 25] [F70section 24] of the Police and Criminal Evidence Act 1984(107) for such an offence, enter any land other than a [F71dwelling–house] [F71dwelling or lockfast premises].

(3) If a justice of the peace is satisfied by [F72information] [F72evidence ] on oath that there are reasonable grounds for suspecting that an offence under regulation 39, 41 or 43 has been committed and that evidence of the offence may be found on any premises, he may grant a warrant to any constable [F73(with or without other persons) to enter upon and search those premises] [F73to enter those premises, if necessary using reasonable force, and search them] for the purpose of obtaining that evidence.

In the application of this paragraph to Scotland, the reference to a justice of the peace includes a sheriff.

[F74(4) A warrant under paragraph (3) continues in force until the purpose for which the entry is required has been satisfied or, if earlier, the expiry of such period as the warrant may specify.

(5) A constable authorised by virtue of this regulation to enter any land must, if required to do so by the occupier or anyone acting on the occupier’s behalf, produce evidence of the constable’s authority.

(6) A constable who enters any land in the exercise of a power conferred by this regulation–

(a)may–

(i)be accompanied by any other persons; and

(ii)take any machinery, other equipment or materials on to the land,

for the purpose of assisting the constable in the exercise of that power;

(b)may take samples of any articles or substances found there and remove the samples from the land.

(7) A power specified in paragraph (6)(a) or (b) which is exercisable under a warrant is subject to the terms of the warrant.

(8) A constable leaving any land which has been entered in exercise of a power conferred by paragraph (2) or by a warrant under paragraph (3), being either unoccupied land or land from which the occupier is temporarily absent, must leave it as effectively secured against unauthorised entry as the constable found it.]

[F75Application of sections 19ZC and 19ZD of the Wildlife and Countryside Act 1981S

101A.—(1) Subject to paragraphs (2) to (4), sections 19ZC (wildlife inspectors: Scotland) and 19ZD (power to take samples: Scotland) of the Wildlife and Countryside Act 1981 apply, for the purposes of these Regulations.

(2) For the purposes of these Regulations, any reference in section 19ZC or 19ZD of the Wildlife and Countryside Act 1981 to that Act or any part thereof, shall be construed as a reference to these Regulations.

(3) The provisions of section 19ZC of the Wildlife and Countryside Act 1981 apply for the purposes of these Regulations as if–

(a)in subsection (3)–

(i)in paragraph (a), the reference to “section 6, 9(5) or 13(2)” was a reference to regulation [F7639(3)] or 43(2) of these Regulations;

(ii)paragraphs (b) to (d) were omitted; and

(iii)in paragraph (e)(i) and (ii), “registration or” was omitted;

(b)in subsection (4)–

(i)in paragraph (a), for “paragraphs (a) to (c) do” there was substituted “ paragraph (a) does ”;

(ii)in paragraph (a)(i) and (ii) “registration or” was omitted; and

(iii)paragraph (b) was omitted;

(c)in subsection (5), for the words from “section 6” to “14A” there was substituted a reference to regulation [F7739(3)] or 43(2) of these Regulations;

(d)in subsection (6), “bird or other” was omitted in each place where it occurs;

(e)for subsection (9) there was substituted–

“(9) In this section–

“relevant licence” means a licence under regulation 44 of the Conservation (Natural Habitats, &c.) Regulations 1994 which authorises anything which would otherwise be an offence under regulation [F7839(3)] or 43(2) of those Regulations;

“specimen” means any animal or plant or any part of, or anything derived from, an animal or plant.”; and

(f)after subsection (9) there was inserted–

“(10) A person guilty of an offence under this section is liable on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.”.

(4) the provisions of section 19ZD of the Wildlife and Countryside Act 1981 apply for the purposes of these Regulations as if–

(a)in subsection (1)–

(i)the reference to “section 19” was a reference to regulation 101 of these Regulations; and

(ii)the reference to “this Part” was a reference to Part III of these Regulations;

(b)in subsection (2), the reference to “this Part” was a reference to Part III of these Regulations;

(c)in subsection (3)–

(i)for the words from “section 6” to “14A” there was substituted a reference to regulation [F7939(3)] or 43(2) of these Regulations; and

(ii)“to (d)” was omitted;

(d)in subsection (4), for the words from “section 6” to “14A” there was substituted a reference to regulation [F8039(3)] or 43(2) of these Regulations;

(e)in subsection (5), “bird, other” was omitted;

(f)in subsections (6) and (7), “bird or other” was omitted;

(g)in subsection (8), the reference to “section 19(2)” was a reference to regulation 101(2) of these Regulations;

(h)in subsection (10)(b)–

(i)for “a bird, other” there was substituted “ an ”; and

(ii)“bird, other” was omitted; and

(i)after subsection (10) there was inserted–

“(11) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.”.]

Proceedings for offences: venue, time limitsE+W+S

102.—(1) An offence under Part III of these Regulations shall, for the purposes of conferring jurisdiction, be deemed to have been committed in any place where the offender is found or to which he is first brought after the commission of the offence.

(2) Summary proceedings [F81 for–

(a)any offence under regulation 39(1) involving the taking or killing of a wild animal, and

(b)any offence under regulation 43(1),]

[F81for any such offence] may be brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge.

• But no such proceedings shall be brought by virtue of this paragraph more than [F82 two] [F82three] years after the commission of the offence [F83or, in the case of a continuous contravention, after the last date on which the offence was committed].

(3) For the purposes of paragraph (2) a certificate signed by or on behalf of the prosecutor and stating the date on which such evidence as aforesaid came to his knowledge shall be conclusive evidence of that fact; and a certificate stating that matter and purporting to be so signed shall be deemed to be so signed unless the contrary is proved.

Power of court to order forfeitureE+W+S

103.—(1) The court by which a person is convicted of an offence under Part III of these Regulations–

(a)shall order the forfeiture of any animal, plant or other thing in respect of which the offence was committed; and

(b)may order the forfeiture of any vehicle, animal, weapon or other thing which was used to commit the offence.

(2) In paragraph (1)(b) “vehicle” includes aircraft, hovercraft and boat.

Saving for other protective provisionsE+W+S

104.  Nothing in these Regulations shall be construed as excluding the application of the provisions of Part I of the Wildlife and Countryside Act 1981(108) (protection of wildlife) in relation to animals or plants also protected under Part III of these Regulations.

[F84Application of criminal offences to the CrownS

104A.—(1) No contravention by the Crown of any provision of these Regulations makes the Crown criminally liable; but the Court of Session may, on the application of any public body or office holder having responsibility for enforcing that provision, declare unlawful any act or omission of the Crown which constitutes such a contravention.

(2) Despite paragraph (1), the provisions of these Regulations apply to persons in the public service of the Crown as they apply to other persons.]

General supplementary provisionsE+W+S

Powers of drainage authoritiesE+W+S

105.—(1) Where the appropriate nature conservation body or any other person enter into an agreement with a drainage authority for the doing by that authority of any work on land in a European site, no limitation imposed by law on the capacity of the drainage authority by virtue of its constitution shall operate so as to prevent the authority carrying out the agreement.

(2) In paragraph (1) “drainage authority” means the National Rivers Authority or an internal drainage board.

Offences by bodies corporate, &c.E+W+S

106.—(1) Where an offence under these Regulations committed by a body corporate is proved to have committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

For this purpose “director”, in relation to a body corporate whose affairs are managed by its members, means any member of the body.

(2) Where an offence under these Regulations committed by a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, a partner, he (as well as the partnership) is guilty of the offence and liable to be proceeded against and punished accordingly.

Local inquiriesE+W+S

107.—(1) The Secretary of State may cause a local inquiry to be held for the purposes of the exercise of any of his functions under these Regulations.

(2) The provisions of section 250(2) to (5) of the Local Government Act 1972(109) or section 210(4) to (8) of the Local Government (Scotland) Act 1973(110) (local inquiries: evidence and costs) apply in relation to an inquiry held under this regulation.

Service of noticesE+W+S

108.—(1) Section 329 of the Town and Country Planning Act 1990(111) or section 269 of the Town and Country Planning (Scotland) Act 1972(112) (service of notices) apply to notices and other documents required or authorised to be served under these Regulations.

(2) Paragraph (1) does not apply to the service of any notice required or authorised to be served under the Acquisition of Land Act 1981(113) or the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947(114), as applied by these Regulations.

Regulation 22(3)

[F85SCHEDULE 1E+WPROCEDURE IN CONNECTION WITH ORDERS UNDER REGULATION 22

Coming into operationE+W+S

1.—(1) An original order or a restrictive amending order takes effect on its being made.E+W+S

(2) The Secretary of State shall consider every such order, and the order shall cease to have effect nine months after it is made unless he has previously given notice under paragraph 6 that he has considered it and does not propose to amend or revoke it, or has revoked it.

(3) Subject to paragraphs 3(1) and 4(4), a revoking order, or an amending order which is not restrictive, does not take effect until confirmed by the Secretary of State.

(4) An amending or revoking order requiring confirmation shall stand revoked if the Secretary of State gives notice under paragraph 6 below that it is not to be confirmed.

Publicity for ordersE+W+S

2.—(1) The Secretary of State shall, where an order has been made, give notice setting out the order (or describing its general effect) and stating that it has taken effect or, as the case may be, that it has been made and requires confirmation.E+W+S

(2) The notice shall–

(a)name a place in the area in which the land to which the order relates is situated where a copy of the order may be inspected free of charge at all reasonable hours; and

(b)specify the time (not being less than 28 days from the date of the first publication of the notice) within which, and the manner in which, representations or objections with respect to the order may be made.

(3) The notice shall be given–

(a)by publication in the Gazette and also at least one local newspaper circulating in the area in which the land to which the order relates is situated;

(b)by serving a like notice–

(i)on every owner and occupier of that land (subject to sub–paragraph (4) below); and

(ii)on the local planning authority within whose area the land is situated.

(4) The Secretary of State may, in any particular case, direct that it shall not be necessary to comply with sub–paragraph (3)(b)(i); but if he so directs in the case of any land, then in addition to publication the notice shall be addressed to “The owners and any occupiers” of the land (describing it) and a copy or copies of the notice shall be affixed to some conspicuous object or objects on the land.

Unopposed ordersE+W+S

3.—(1) Where an order has taken effect immediately and no representations or objections are duly made in respect of it or any so made are withdrawn, the Secretary of State shall, as soon as practicable after considering the order, decide either to take no action on it or to make an order amending or revoking it.E+W+S

An amending or revoking order under this sub–paragraph takes effect immediately and does not require confirmation nor shall any representation or objection with respect to it be entertained.

(2) Where an order requiring confirmation is made and no representations or objections are duly made in respect of it, or any so made are withdrawn, the Secretary of State may confirm the order (with or without modification).

Opposed ordersE+W+S

4.—(1) If any representation or objection duly made with respect to an order is not withdrawn, then, as soon as practicable in the case of an order having immediate effect and before confirming an order requiring confirmation, the Secretary of State shall either–E+W+S

(a)cause a local inquiry to be held; or

(b)afford any person by whom a representation or objection has been duly made and not withdrawn an opportunity of being heard by a person appointed by the Secretary of State for the purpose.

(2) On considering any representations or objections duly made and the report of any person appointed to hold the inquiry or to hear representations or objections, the Secretary of State–

(a)if the order has already taken effect, shall decide either to take no action on the order, or to make an order amending or revoking it as he thinks appropriate in the light of the report, representations or objections; and

(b)if the order requires confirmation, may confirm it (with or without modifications).

(3) The provisions of section 250(2) to (5) of the Local Government Act 1972(115)or section 210(4) to (8) of the Local Government (Scotland) Act 1973(116)(local inquiries: evidence and costs) apply in relation to an inquiry held under this paragraph.

(4) An amending or revoking order made by virtue of sub–paragraph (2) above takes effect immediately and does not require confirmation nor shall any representation or objection with respect to it be entertained.

Restriction on power to amend orders or confirm them with modificationsE+W+S

5.  The Secretary of State shall not by virtue of paragraphs 3(1) or 4(2) amend an order which has taken effect, or confirm any other order with modifications, so as to extend the area to which the order applies.E+W+S

Notice of final decision on orderE+W+S

6.—(1) The Secretary of State shall as soon as practicable after making an order by virtue of paragraphs 3(1) or 4(2) give notice–E+W+S

(a)setting out the order (or describing its effect) and stating that it has taken effect; and

(b)naming a place in the area in which the land to which the order relates is situated where a copy of the order may be inspected free of charge at all reasonable hours.

(2) The Secretary of State shall give notice of any of the following decisions of his as soon as practicable after making the decision–

(a)a decision under paragraph 3(1) or 4(2) to take no action on an order which has already taken effect;

(b)a decision to confirm or not to confirm an order requiring confirmation under this Schedule.

(3) A notice under this paragraph of a decision to confirm an order shall–

(a)set out the order as confirmed (or describe its general effect) and state the day on which the order took effect; and

(b)name a place in the area in which the land to which the order relates is situated where a copy of the order as confirmed may be inspected free of charge at all reasonable hours.

(4) Notice under this paragraph shall be given by publishing it in accordance with paragraph 2(3) and serving a copy of it on any person on whom a notice was required to be served under paragraph 2(3) or (4).

Proceedings for questioning validity of ordersE+W+S

7.—(1) This paragraph applies to any order which has taken effect and as to which the Secretary of State has given notice under paragraph 6 of a decision of his to take no action or to amend the order in accordance with paragraph 4; and in this paragraph “the relevant notice” means that notice.E+W+S

(2) If any person is aggrieved by an order to which this paragraph applies and desires to question its validity on the ground that it is not within the powers of regulation 22, or that any of the requirements of this Schedule have not been complied with in relation to it, he may within six weeks from the date of the relevant notice make an application to the court under this paragraph.

(3) On any such application the court may, if satisfied that the order is not within those powers or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of those requirements–

(a)in England and Wales, quash the order, or any provision of the order, either generally or in so far as it affects the interests of the applicant; or

(b)in Scotland, make such declarator as seems to the court to be appropriate.

(4) Except as provided by this paragraph, the validity of an order shall not be questioned in any legal proceedings whatsoever.

(5) In this paragraph “the court” means the High Court in relation to England and Wales and the Court of Session in relation to Scotland.

InterpretationE+W+S

8.  In this Schedule–E+W+S

“amending order” and “revoking order” mean an order which amends or, as the case may be, revokes a previous order;

“the Gazette” means–

“order” means an order under regulation 22;

“original order” means an order other than an amending or revoking order; and

“restrictive amending order” means an amending order which extends the area to which a previous order applies.]

Regulation 38

SCHEDULE 2E+W+SEUROPEAN PROTECTED SPECIES OF ANIMALS

Regulation 39(9)

[F86SCHEDULE 2ASEXCLUDED POPULATIONS OF CERTAIN SPECIES

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

Regulation 41(1)(a)

SCHEDULE 3SANIMALS WHICH MAY NOT BE TAKEN OR KILLED IN CERTAIN WAYS

Regulation 42

SCHEDULE 4E+W+SEUROPEAN PROTECTED SPECIES OF PLANTS

Explanatory Note

(This note is not part of the Regulations)

These Regulations make provision for implementing Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora.

Part I contains introductory provisions.

Part II provides for the conservation of natural habitats and habitats of species, and in particular–

• regulations 7 to 15 make provision for the selection, registration and notification of sites to be protected under the Directive (“European sites”);

• regulations 16 and 17 make provision for management agreements for European sites;

• regulations 18 to 27 make provision in respect of European sites for the control of damaging operations and for special nature conservation orders;

• regulations 28 to 32 make provision for byelaws and compulsory purchase orders as respects European sites; and

• regulations 33 to 36 make special provision for the protection of European marine sites.

Part III provides for the protection of certain wild animals and plants and in particular–

• regulation 39 makes it an offence, subject to certain exceptions, deliberately to capture, kill or disturb those animals or to trade in them; and

• regulation 43 makes it an offence, subject to certain exceptions, to pick, collect, cut, uproot or destroy those plants or to trade in them.

Part IV makes provision for the adaptation of planning and certain other controls for the protection of European sites; in particular–

• regulations 48, 49 and 54 require the effect on a European site to be considered before a grant of planning permission and, subject to certain exceptions, restrict the grant of planning permission where the integrity of the European site would be adversely affected;

• regulations 50 and 51 and 55 to 58 require planning permissions granted before the date on which a site becomes a European site (or if later, the commencement of these Regulations) to be reviewed and in certain circumstances revoked where the integrity of the site would be adversely affected.

Equivalent provision for the requirement to consider the effect on a European site and for review is made as respects the construction or improvement of highways, roads or cycle tracks (regulations 69 and 70), consents under the Electricity Act 1989 (regulations 71 to 74), authorisations under the Pipe–lines Act 1962 (regulations 75 to 78), orders under the Transport and Works Act 1992 (regulations 79 to 82), authorisations and licences under the Environmental Protection Act 1990 (regulations 83 and 84) and discharge consents under water pollution legislation (regulation 85). Regulations 60 to 67 make special provision as respects general and special development orders, simplified planning zones and enterprise zones.