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Annex A - The Draft Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2006

Draft Regulations laid before the Scottish Parliament under paragraph 2(2) of Schedule 2 to the European Communities Act 1972, for approval by resolution of the Scottish Parliament.

Scottish Statutory Instruments

2006 No.

Wildlife

Countryside

The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2006

Made - - - - 2006

Coming into force - - 2006

The Scottish Ministers, in exercise of the powers conferred by section 2(2) of the European Communities Act 1972( ¹) and of all other powers enabling them in that behalf, hereby make the following Regulations, a draft of which has, in accordance with paragraph 2(2) of Schedule 2 to that Act, been laid before and approved by resolution of the Scottish Parliament:

Citation, commencement and extent

-a) These Regulations may be cited as the Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2006 and shall come into force on [ ] 2006.

These Regulations extend to Scotland only.

Amendments to the Conservation (Natural Habitats, &c.) Regulations 1994

1. The Conservation (Natural Habitats &c.) Regulations 1994( ²) are amended as follows.

2. In regulation 3 (implementation of Directive)( ³) in paragraph (3), after "the Land Drainage Act 1991," insert "Part 1 of the Water Environment and Water Services (Scotland) Act 2003,".

3. In regulation 5 (relevant authorities in relation to marine areas and European marine sites)( ⁴) after "committee" insert ";" followed by the following sub-paragraph-

"(i) a National Park authority.".

4. After regulation 37 (nature conservation policy in planning contexts) insert the following regulation-

" Surveillance of conservation status of habitats and species

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

(2) Where pursuant to such surveillance, Scottish Ministers take any measures referred to in Article 14(2) of the Habitats Directive, whether in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 or by any other means, the effect of those measures on the favourable conservation status of the Annex V species concerned shall be the subject of further surveillance.

(3) Arrangements made under paragraphs (1) and (2) shall be reviewed from time to time.".

5. In regulation 39 (protection of wild animals of European protected species)-

in paragraph (2) for "European protected species" substitute "species or subspecies listed in Annex IV(a) to the Habitats Directive";

for paragraph (4) substitute the following paragraph-

"(4) A person shall not be guilty of an offence under paragraph (2) if he shows that the animal, or the animal from which the part or the thing in question has been derived was lawfully taken from the wild."; and

for paragraph (4A) substitute the following paragraphs-

"(4A) For the purposes of paragraph (4) 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 of the European Economic Community (including the United Kingdom) before 10th June 1994, without contravention of the law of that member State; or
(b) it was taken from the wild elsewhere.

(4AA) A person shall not be guilty of an offence under paragraph (2) if he shows that the animal, or the animal from which the part or thing in question is derived-

(a) is of a species listed in Schedule 2A and was taken from a population occurring in a country or area which appears next to the name of that species in Schedule 2A;
(b) is of the species Capra aegagrus and was not from a naturally occurring population; or
(c) is of the species Ovis gmelini musimon and was not from a naturally occurring population in Corsica or Sardinia.".

6. In regulation 40 (exceptions from regulation 39)( ⁵) omit paragraphs (2) to (7).

7. In regulation 41 (prohibition of certain methods of taking or killing wild animals)-

in paragraph (2)(b) after "below" insert "or";

(a) after paragraph (2)(b) insert the following subparagraph-

"(c) any other indiscriminate means of taking or killing capable of causing the local disappearance of, or serious disturbance to, any species of animal listed in Schedule 3 or any European protected species of animal.".

8. After regulation 41 insert the following regulation-

" Monitoring incidental capture and killing

41A.-(1) The Scottish Ministers shall make arrangements for the monitoring of the incidental capture and killing of European protected species of animal.

(2) Arrangements made under paragraph (1) shall be reviewed from time to time.".

9. In regulation 43 (protection of wild plants of European protected species)-

in paragraph (2) for "European protected species" substitute "species or subspecies listed in Annex IV(b) to the Habitats Directive";

for paragraph (4) substitute the following paragraph-

"(4) A person shall not be guilty of an offence under paragraph (2) if he shows that the plant, or the plant or part of the plant from which the part of thing in question is derived, had been lawfully taken in the wild."; and

for paragraph (5) substitute the following paragraph-

"(5) For the purposes of paragraph (4) 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 of the European Economic Community (including the United Kingdom) before 10th June 1994, without contravention of the law of that member State; or
(b) it was taken in the wild elsewhere.".

10. In regulation 44 (grant of licences for certain purposes)-

insert after paragraph (2) the following paragraph-

"(2A) 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-

(a) for a purpose not falling within paragraph (2); and
(b) to permit under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of European protected species of wild animals or wild plants in limited numbers."; and

in paragraph (4)(b) after "that paragraph" insert "or under paragraph (2A)".

11. In regulation 45 (licences: supplementary provisions)-

in paragraph (1) for "A licence under regulation 44" substitute "Subject to the provisions of this regulation, a licence under regulation 44";

after paragraph (4) insert the following paragraph-

"(4A) A licence granted under regulation 44(2A) must specify-

(a) the methods by which the wild animals or wild plants may be taken or kept;
(b) the maximum number of wild animals or wild plants of a European protected species which may be taken or kept;
(c) the period during which the wild animals or wild plants may be taken or for how long they may be kept; and
(d) the area within which the wild animals or wild plants may be taken or where they may be kept."; and

after paragraph (6) insert the following paragraphs-

"(7) It is an offence for any person authorised by a licence under regulation 44 to contravene or fail to comply with any condition imposed on the grant of the licence.

(8) A person guilty of an offence under paragraph (7) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.".

12. In regulation 48 (assessment of implications for European site)-

in paragraph (1), for sub-paragraph (a), substitute the following sub-paragraph-

"(a) is likely to have a significant effect on a European site in Great Britain or an equivalent site in the offshore marine area (either alone or in combination with other plans and projects); and";

after paragraph (2) insert the following paragraph-

"(2A) Information which may be required under paragraph (2) includes such information as the competent authority may reasonably require to enable them to determine whether an appropriate assessment is required."; and

after paragraph (7) insert the following paragraph-

"(8) In this regulation, "offshore marine area" means-

(a) any part of the seabed and subsoil situated in the UK sector of the continental shelf;
(b) any part of the waters within British fishery limits (except any area comprised within the territorial sea).".

13. In regulation 49(2) (considerations of overriding public interest) for sub-paragraph (b) substitute the following sub-paragraph-

"(b) any other imperative 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.".

14. After regulation 84A (permits under the Pollution Prevention and Control (Scotland) Regulations 2000)( ⁶) insert-

"Abstraction and works authorised under water legislation

84B.-(1) Regulations 48 and 49 (requirement to consider effect on European site) apply in relation to the making of an order under section 17(2) of the Water (Scotland) Act 1980 (acquisition of water rights)( ⁷).

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

(a) the grant of an authorisation under regulations 8 (registration) or 9 (water use licence);
(b) the variation under regulations 19 (variation of authorisation), 21 (request for variation) or 25(4) (determination of application for surrender) of an authorisation; and
(c) the determination of an appeal under regulation 47 (determination of appeals) against a decision of the Scottish Environment Protection Agency referred to in regulation 46(a), (b), (c), (d), (e) or (g),

of the Water Environment (Controlled Activities) (Scotland) Regulations 2005( ⁸).

(3) In a case referred in paragraphs (1) or (2), where 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 making of any order, or the giving or variation of any authorisation were subject to conditions, or (as the case may be) further conditions, they may make the order or give or vary the authorisation subject to those conditions.

(4) Regulations 50 and 51 (requirement to review certain existing conditions and consents, &c.) apply to the cases referred to in paragraphs (1) and (2)(a).

(5) Where on the review of a case referred to in paragraphs (1) or (2)(a), the competent authority consider that any adverse effects on the integrity of a European site would be avoided by a variation of the order or authorisation, they may vary the order or authorisation, or cause it to be varied, accordingly.".

Omit regulation 85.

After Part 4 insert Part 4A as set out in Schedule 1 to these Regulations.

After Schedule 2 insert Schedule 2A as set out in Schedule 2 to these Regulations.

Amendment of the Conservation of Seals Act 1970

The Conservation of Seals Act 1970( ⁹) is amended as follows-

After section 1(2) insert-

"(3) This section does not authorise the use of any means of killing or taking seals prohibited by or under regulation 41 of the Conservation (Natural Habitats, &c.) Regulations 1994 or any other enactment made for the purpose of giving effect to Article 15 of the Directive of the Council of the European Communities dated 21st May 1992 (No. 92/43/ EEC) on the conservation of natural habitats and of wild flora and fauna.".

After section 10(4) insert-

"(4A) A licence under this section shall not authorise the use of any method of killing or taking seals which is inconsistent with regulation 41 of the Conservation (Natural Habitats, &c.) Regulations 1994 or any other enactment made for the purpose of giving effect to Article 15 of the Directive of the Council of the European Communities dated 21st May 1992 (No. 92/43/ EEC) on the conservation of natural habitats and of wild flora and fauna (as read subject to any derogation permitted by Article 16 of that Directive).".

Authorised to sign by the Scottish Ministers

St Andrew's House,
Edinburgh
2006

SCHEDULE 1
Regulation 17

"Part 4A

APPROPRIATE ASSESSMENTS FOR LAND USE PLANS

Application and interpretation

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-

a planning authority under section 1(1) of the 1997 Planning Act;

The Loch Lomond and the Trossachs National Park Authority( ¹⁰) and The Cairngorms National Park Authority( ¹¹);

the Scottish Ministers when exercising powers under section 10 (approval or rejection of structure plans) , section 19 (approval of plans or proposals) and section 22 (default powers of the Scottish Ministers) of the 1997 Planning Act.

References in this Part to giving effect to a land use plan are to-

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;

the approval by the Scottish Ministers of a structure plan under section 10 or a local plan under section 17 of the 1997 Planning Act.

Assessment of implications for European site

85B.-(1) Before a land use plan is given effect, the plan-making authority for such a plan 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

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) 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) They shall also, if they consider it appropriate, take the opinion of the general public, and in doing so, shall take such steps for that purpose as they consider 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 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

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) (site protected in accordance with Article 5(4)).

Considerations of overriding public interest

85C.-(1) If the plan-making authority are 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), they 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

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, 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 Scottish Ministers-

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

accompanied by any documents or information which may be required.

(4) The Scottish Ministers may seek the opinion of the Commission and shall transmit the opinion to the plan-making authority.

(5) Where a plan-making authority propose to give effect to a land use plan under this regulation notwithstanding a negative assessment of the implications for a European site, they shall notify the Scottish Ministers.

(6) Having notified the Scottish Ministers, the authority shall not give effect to the land use plan before the end of 28 days beginning with the day notified to them by the Scottish Ministers as that on which their notification was received by them, unless the Scottish Ministers notifies them that they may do so.

(7) Without prejudice to any other power, the Scottish Ministers may give directions to the authority prohibiting them from giving effect to the land use plan, either indefinitely or during such period as may be specified in the direction.

Co-ordination when a land use plan is prepared by more than one planning authority

85D.-(1) The following provisions apply 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) (assessment of implications for European site) 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 an authority may or should adopt the reasoning or conclusions of another 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

will adversely affect the integrity of a European site.

(4) The planning authorities involved shall have regard to any such guidance issued in discharging their functions under regulation 85B(1).

(5) In determining whether a land use plan should be adopted under regulation 85C(1) (considerations of overriding public interest) a planning authority shall seek and have regard to the views of other planning authorities involved.

Compensatory measures

85E. Where in accordance with regulation 85C (considerations of overriding public interest) 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.

SCHEDULE 2
Regulation 18

"SCHEDULE 2A Regulation 39 (4AA)

EXCLUDED POPULATIONS OF CERTAIN SPECIES

Note: The common names or names given in Column 1 of this Schedule 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.".

EXPLANATORY NOTE

(This note is not part of the Regulations)

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