« Previous | Contents | Next »
Listen
Annex B - Regulatory Impact Assessment
The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2006
Introduction
1. A Regulatory Impact Assessment ( RIA) must accompany all regulatory proposals and new legislation in the UK. The RIA is a document which describes an issue that has given rise to a need for regulation and compares various possible options for dealing with that issue. The RIA will be updated following completion of the consultation and a final RIA will be produced when policy decisions have been finalised. The final version of the RIA will accompany the regulations when they are laid in Parliament.
2. This RIA relates to Scotland only and sets out the impacts of amending the Conservation (Natural Habitats, & c.) Regulations 1994 ( SI 1994/2716) ("the Habitats Regulations") and the Conservation of Seals Act 1970 as well as the possible impacts of amending the Wildlife and Countryside Act 1981. The Habitats Regulations transpose Council Directive 92/43/ EC on the conservation of natural habitats and of wild fauna and flora ("the Habitats Directive").
3. A Small Business Test is included in every RIA in the UK. In addition to this, and in recognition of the preponderance of very small businesses in Scotland, RIAs relating to all proposed regulations in Scotland which could impact on business must give particular attention to potential impacts on micro businesses.
4. The RIA is open to comments, improvements and corrections by any interested party. Comments are welcomed on the possible costs arising from the proposals (section 5 "Costs and benefits").
It would be helpful in analysing the responses if respondents could, as far as possible, cross-reference their comments to
i. the relevant draft regulation or
ii. the relevant paragraph of the RIA
iii. the relevant paragraph of the consultation document
Purpose and Intended Effect
Objective
5. The Conservation (Natural Habitats, &c.) (Amendment) (Scotland) Regulations 2006 will amend the Habitats Regulations, the Wildlife and Countryside Act 1981 and the Conservation of Seals Act 1970. The amendments will provide further clarity in the way in which the Habitats Directive is transposed in Scotland in a number of respects.
Background
6. The Habitats Directive was adopted in 1992 with the purpose of establishing common levels of conservation throughout the European Community for habitats and species perceived to be under threat. Central to the Directive's objectives is the establishment of an ecologically coherent network of sites known as Natura 2000. The principal instrument for transposing the Habitats Directive in Great Britain and adjacent territorial waters is the Habitats Regulations.
7. In January 2004 the European Commission made an application to the European Court of Justice ( ECJ) alleging a number of failings in the UK's transposition of the Habitats Directive. The ECJ subsequently ruled that the United Kingdom had not correctly transposed the Habitats Directive in a number of areas (Case C-6/04, Commission v United Kingdom). The ruling for Case C-6/04 can be viewed at:
http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:62004J0006:EN:HTML
8. In a later case (Case C-131/05 , Commission v United Kingdom) the ECJ ruled that Articles 12(2) and 13(1)(b) of the Habitats Directive were not correctly transposed since the Habitats Regulations only prohibited the keeping, transportation and sale etc of Annex IV species native to Great Britain, as opposed to all Annex IV species. These Regulations would make changes to the Habitats Regulations, the Wildlife and Countryside Act 1981 and the Conservation of Seals Act 1970 in response to these ECJ judgments and other changes to the Habitats Regulations considered desirable to improve the UK's transposition of the Habitats Directive.
9. Consultation on earlier draft amendments to the 1994 Regulations in Scotland took place in 2003. The amending legislation now being considered is being drafted to reflect the terms of the two ECJ judgments.
In summary the 2006 Habitats Regulations will:
- Protect non-native species of animals and plants from trade and make it unlawful to possess and trade in (subject to certain exceptions) specimens of Annex IV species taken or killed on or after 10th June 1994.
- Remove all but one of the defences in regulations 40 and 43.
- Extend the current prohibitions on the use of indiscriminate means of capture and killing in regulation 41 to include any yet unknown forms.
- Impose a specific statutory duty to make arrangements for surveillance and monitoring.
- Ensure that the requirement to carry out appropriate assessments on water abstraction consents and land use plans is more explicit.
- Make technical amendments to the Conservation of Seals Act 1970 to remove a perceived element of legal uncertainty
Rationale for government intervention
10. Failure to take this necessary action could result in a further referral of the case to the ECJ. Ultimately, if the deficiencies identified by the ECJ are not remedied within the timeframe there is a risk that the UK will be subject to substantial financial penalties.
Consultation
11. There will be public consultation on the proposals for amended regulations and the draft regulatory appraisal.
Options
12. Two options have been identified.
- Option 1: Continue to rely on existing legislation along with general duties on competent authorities (any Minister, government department, public or statutory undertaker, public body of any description or person holding a public office) to give effect to the Habitats Directive and administrative procedures currently being practised.
- Option 2: Make regulations to improve the transposition of the Habitats Directive in Scotland.
13. Option 1 is the 'do nothing' option. The ECJ found that the UK has not sufficiently transposed the Habitats Directive into national legislation. If the UK does not amend the legislation the European Commission may undertake further infraction proceedings which will likely result in substantial financial penalties being imposed on the UK Government.
14. Option 2 will improve the clarity and understanding of the transposition of the Habitats Directive in the UK. Although many of the changes reflect what is already being done in practice, the UK is required to transpose the Directive clearly and precisely into domestic legislation. It is intended that the amendments will come into force by November 2006.
Costs and Benefits
i) Sectors and groups affected
a. Powers to prevent, discourage and rectify damage to protected species
15. Some business sectors (principally taxidermists, other animal traders, zoos and other animal collections) may be affected by the proposed stricter possession and sale controls concerning species listed in Annex IV to the Habitats Directive. We welcome representations on this matter to assist with completion of the RIA.
16. Other business sectors (principally forestry and agriculture), may also be affected by the removal of the 'incidental result' defence as currently provided for in regulations 40(3)(c) and 43(4) of the Habitats Regulations. Any prohibited action would now require a licence under regulation 44. We welcome representations on this matter to assist with completion of the RIA.
17. Similarly, householders and developers may be affected by the removal of the 'bats in dwelling house' defence, which is set out in regulation 40(2) and (4). Any prohibited action would now require a licence under regulation 44. This is instead of the less onerous responsibility of notifying the appropriate nature conservation body of the proposed action and giving them an opportunity to advise, where the bat in question is located outside the living areas in a dwelling house. We welcome representations on this matter to assist with completion of the RIA.
18. The proposed technical amendments to the Conservation of Seals Act 1970 is expected to have no impact on current practice.
b. Appropriate Assessment of Development Plans
19. The ECJ ruling clarified the duty of planning authorities to undertake an appropriate assessment of development plans to determine the implications for a European site where these are likely to have a significant effect for local and structure plans. The Scottish Executive has already engaged directly with local authorities on this matter and has also prepared interim guidance. In addition to this, we welcome representations on this matter to assist with completion of the RIA.
c. Transposition of Article 6(3) and (4) of the Habitats Directive with regard to water abstraction plans and projects
20. This will clarify the responsibility of SEPA which already existed under regulation 3(4) of the Habitats Regulations when considering new applications under the Controlled Activities Regulations ( CAR) and when reviewing existing consents which might have a significant effect on a European Site. This has particular relevance for the hydro-generation sector but in practice is not expected to impose additional regulatory burden beyond the controls currently imposed by CAR. We welcome representations on this matter to assist with completion of the RIA.
d. Surveillance and Monitoring
16. Transposition of this aspect of the ECJ ruling is not expected to have a significant financial impact on any sector.
(ii) Benefits
Option 1: No additional benefits would arise from following existing legislation. Defences would remain in place but these have been deemed incompatible with the Habitats Directive and keeping them would risk infraction proceedings being continued in the ECJ.
Option 2: Although the Habitats Regulations are already protecting habitats and species in the UK, a more transparent transposition of the Habitats Directive in Scotland will ensure clarity and better understanding of the legislation.
21. Amending regulations will clearly inform responsible planning authorities of their duty to undertake an appropriate assessment for land use plans. This will ensure that the land use planning system takes full account of the existence of protected sites.
22. The Regulations will make improvements to the species protection regime, by protecting certain species which are not native to Great Britain through a prohibition on keeping, transporting and selling them. The amendments will also ensure that specimens of species protected under the Directive are effectively protected from the adverse affects of development and other operations while not severely restricting the business sectors involved.
(iii) Costs
Option 1: No additional costs would arise from the continuing use of existing legislation. However, there would be a strong possibility of ECJ action which could result in fines for the UK.
Option 2: It is acknowledged that clarifying the species protection regime's defences to ensure they are applied appropriately may potentially lead to an increased demand for licences. Currently there are no charges for these licences and there are no plans to introduce charging. However, an increase in licence applications is acceptable as the changes reinforce and clarify existing policy and are essential to ensure the species protection regime operates within the Habitats Directive's requirements.
23. Many of the amendments being proposed concern areas where actions should already be taking place in accordance with the correct application of the Directive and therefore the impact should be minimal. We believe that overall there will be no significant additional costs over and above those already incurred.
iv) Overview of costs
24. In line with the comments against option 2 above, it is thought unlikely that there will be significant additional costs arising from these proposed legislative measures. We welcome your views on our assessment.
Equity and Fairness
25. It may be considered that limiting the possession of legally obtained specimens is unfair. In broad terms, changes made by the regulations will make it unlawful to possess specimens of Annex IV(a) and (b) species which had been taken etc or picked etc on or after 10 June 1994, unless they were taken or picked outside the EEC. We are considering whether it will be appropriate to licence continued possession of specimens which have already been taken from the wild. Because of the nature of the proposed amendments to the Regulations, there will be no other questions of equity and fairness.
Direct Costs to the Scottish Executive and its agencies
26. The proposed changes should not result in any significant additional cost to Government or its Agencies. The proposals formalise current arrangements concerning surveillance and monitoring.
27. It is acknowledged that removing the species protection regime's defences may potentially lead to an increased demand for EPS licences. We estimate that a licence costs £95.00 to administer. In 2005 57 EPS licences were issued which cost an estimated £5,415 to administer. The majority of licences are obtained for development purposes affecting great crested newts and bats. We do not envisage that demand will substantially rise following the removal of defences in Regulation 40. We welcome your views.
Small Firms' Impact Test
28. No additional impacts are foreseen on small business. As a consequence no small firms impact test questionnaire is attached to this RIA.
Competition Assessment
29. No economic sector will be affected by the proposals more than at present.
Enforcement, sanctions and monitoring
30. The Habitats Regulations require two types of enforcement;
i) for plans and projects,
ii) for the offences relating to habitats and species.
31. For the former, as is the situation at present, the enforcement and monitoring activity will take place through the consenting regimes currently operated by competent authorities. Habitats and species offences will continue to be primarily enforced by the police. Scottish Natural Heritage will continue to monitor activities, including those licensed, to ensure compliance with the amended regulations. They will continue to work in partnership with the UK's enforcement agencies to take forward prosecutions. We welcome your views.
« Previous | Contents | Next »