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Habitats and Bird Directives: June 2000

1. INTRODUCTION

This Circular replaces Scottish Office Circular 6/95 which provided guidance on the implementation of Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Flora and Fauna (the Habitats Directive) and Directive 79/409/EEC on the Conservation of Wild Birds (the Birds Directive), in Scotland.

Revision of the guidance in Circular 6/95 is necessary because of certain changes in policy. In particular:

• it is no longer policy that all European sites selected under the Habitats and Birds Directives must also be notified as Sites of Special Scientific Interest;
• the "conservation objectives" of European sites are broader than was thought in 1995; the European Commission has taken the clear view that all habitats and species which occur at a significant level on any Special Area of Conservation should be taken into account when the effects of plans and projects on that site are assessed;
• Devolution and other institutional changes have made revision of the 1995 circular desirable.

This circular should be read in the context of NPPG 14 on the Natural Heritage, which sets out for planning authorities overall policy on protection of the natural heritage, including European sites selected under the Birds and Habitats Directives.

Devolution

2. The Scottish Parliament took up its full legislative powers on 1 July 1999, following on the full commencement of the Scotland Act 1998. In terms of that Act, the Scottish Parliament has legislative competence, and the Scottish Ministers have ministerial competence, in relation to environmental matters such as natural heritage. Power to implement these directives now, therefore, lies with the Scottish Ministers.

3. The Conservation (Natural Habitats, &c.) Regulations 1994 (the "Habitats Regulations"), which implement the Habitats Directive in Scotland, England and Wales, remain in force.

BACKGROUND TO THE DIRECTIVES

4. Sites selected by the European Commission for designation as Special Areas of Conservation (SACs) under the Habitats Directive or classified as Special Protection Areas (SPAs) under the Wild Birds Directive are referred to collectively in the Regulations as European sites. The network of sites across the European Community is known as Natura 2000.

The Habitats Directive

5. The Habitats Directive aims to contribute to the conservation of biodiversity by requiring Member States to take measures designed to maintain or restore certain natural habitats and wild species at a favourable conservation status in the Community, giving effect to both site and species protection objectives. The Directive transposes the Bern Convention on European Wildlife and Natural Habitats into Community law. Article 7 modifies the Birds Directive in relation to the protection of SPAs. The Habitats Directive is reproduced as Annex A.

The Wild Birds Directive

6. The Birds Directive applies to birds, their eggs, nests and habitats. It provides for the protection, management and control of all species of naturally occurring wild birds in the European territory of Member States (Article 1); requires Member States to take sufficient measures to preserve a sufficient diversity of habitats for all species of wild birds naturally occurring within their territories (Articles 2 and 3) in order to maintain populations at ecologically and scientifically sound levels; and requires Member States to take special measures to conserve the habitat of certain species of conservation concern and of migratory species (Article 4). The Birds Directive is reproduced as Annex B.

Key General Duties and Obligations

7. The Habitats Regulations set out some key general duties and obligations:-

• duties are placed on the Scottish Ministers and Scottish Natural Heritage (SNH) to exercise their nature conservation functions to secure compliance with the requirements of the Habitats Directive (Regulation 3(2));
• the Scottish Ministers and all relevant public authorities are required to exercise their functions relevant to marine conservation so as to secure compliance with the requirements of the Habitats Directive (Regulation 3(3));
• the Scottish Ministers and all competent public authorities are required in the exercise of any of their functions to have regard to the requirements of the Habitats Directive (Regulation 3(4));
• public authorities are obliged not to permit developments or operations damaging to an interest to be protected within a European site, unless there are imperative reasons of overriding public interest;
• public authorities such as local authorities and the Scottish Environment Protection Agency (SEPA) are obliged to review existing planning permissions which have not yet been implemented and analogous consents, and to modify or revoke them if their effect would be damaging to the conservation interests of European sites.

Site Selection and Designation

8. SACs are selected in accordance with the scientific criteria set out in the Habitats Directive. In the absence of specific criteria in the Wild Birds Directive, however, selection guidelines for SPAs were produced by the UK Government and the statutory nature conservation agencies and published by the Joint Nature Conservation Committee (JNCC) in June 1999. These guidelines are set out at Annex C and will be followed by explanatory notes giving the rationale for each SPA and the qualifying species.

9. Following the publication of the SPA selection guidelines, a fundamental review of what sites should be selected as SPAs was carried out at UK level. 139 Scottish sites were identified as meeting the selection criteria and recognised as being the most suitable sites for listed species. A list of classified and potential SPAs is attached at Annex D I, indicating the relevant local authority (or authorities).

10. The UK Government submitted a list of 340 candidate sites to the European Commission for consideration as SACs, including 131 Scottish sites plus 3 sites that straddled the border with England. Having considered the list at meetings in Kilkee, Ireland and in Paris in late 1999, in common with all the other Member States at the meeting, the Commission found the UK list insufficient for a number of habitats and species. In response to this finding, the UK and devolved administrations and the statutory nature conservation agencies are revisiting the UK list with a view to submitting further candidate SACs to the Commission. A list of sites which have been proposed to the European Commission as candidate SACs, and of sites on which Ministers have announced an intention to consult about possible proposal to the Commission as candidate SACs, is attached at Annex D II After a further "moderation" process to establish the sufficiency of Member States’ proposals, the Commission will publish a list of "Sites of Community Importance" which should be designated as SACs by 2004. These sites are protected by the Habitats Regulations as soon as they are published on the list of "Sites of Community Importance"

11. Case law in the European Court of Justice since the introduction of the Directives has indicated that the identification and designation of sites must be based only on scientific criteria.

Protection of SAC and SPA Interests

12. The Habitats Regulations place a statutory duty on planning authorities and other competent authorities to meet the requirements of the Habitats Directive. The Regulations require that, where an authority concludes that a development proposal unconnected with the nature conservation management of a Natura 2000 site is likely to have a significant effect on that site, it must undertake an appropriate assessment of the implications for the conservation interests for which the area has been designated. Further guidance is set out in Annex E Appendix A. In cases where an assessment of the proposal is also required under the Environmental Impact Assessment (Scotland) Regulations 1999, authorities should ensure that the environmental statement meets the requirements of both sets of regulations.

13. As the Directive requires the protection of the interests for which the area has been designated, the need for appropriate assessment extends to proposed developments outwith the boundary of the designated area. Authorities should consult SNH if they are in any doubt about whether a development outside the boundaries of a Natura 2000 site could have a significant effect on the site.

14. A development that would have an adverse effect on the conservation interests for which a Natura 2000 site has been designated should only be permitted where:

• there is no alternative solution; and
• there are imperative reasons of over-riding public interest, including those of a social or economic nature.

An "alternative solution" could be the identification of suitable and available sites that are reasonable alternatives for the development or finding different approaches that would have a lesser impact. Scottish Ministers expect there to be few cases where it is judged that imperative reasons of over-riding public interest will allow a development to proceed which will have an adverse effect on the integrity of the internationally important SPA or SAC designations. This applies equally to new proposals and to developments with valid existing permissions. The judgement will involve an assessment of the importance of the development and whether it is sufficient to override the nature conservation importance of that site. Developments must pass the most stringent tests. In many cases, it may be possible to negotiate a sustainable development solution that would remove or reduce apparent conflict. But where such possibilities have been explored and conflict remains, and where the local authority believes the development should proceed, the Habitats Regulations set out a procedure by which Scottish Ministers (and in certain cases affecting priority habitats or species as defined in Article 1 of the Habitats Directive), the European Commission may consider whether the over-riding public interest considerations should apply.

15. Where there is no alternative solution, each case will be judged on its merits but the following guiding principles will be relevant in deciding whether imperative reasons of overriding public interest are demonstrated:

• a need to address a serious risk to human health and public safety;
• the interests of national security and defence;
• the provision of a clear and demonstrable direct environmental benefit on a national or international scale;
• a vital contribution to strategic economic development or regeneration;
• where failure to proceed would have unacceptable social and/or economic consequences.

When considering cases against these principles, in general, projects of national importance are most likely to be judged as giving rise to imperative reasons of overriding public interest. Important regional projects might also be so judged. While projects of more local significance are not ruled out, it is less likely that their potential benefits will be considered to override the nature conservation value of the sites.

16. The relative importance of the SPA or SAC within the European network will also weigh in the balance of considerations. Some sites are designated for habitat types and species that are listed as "priority" under the Habitats Directive. These must be subject to particularly stringent scrutiny. In these cases the Directive requires considerations other than human health and public safety or overriding environmental reasons to be subject to an opinion from the European Commission.

17. Where the importance of the development is judged to outweigh the nature conservation importance of the site, compensatory habitat measures must be taken to maintain the coherence of the Natura 2000 network. If the habitat types or species affected are relatively abundant and only part of the national resource has been designated or proposed for designation, it may be possible for an area of similar quality and character to be identified for designation which could, at least in part, replace the loss to the network. This will become increasingly difficult with rarer habitat types and species; in the cases of the most rare especially, all suitable sites are likely to already be designated or proposed for designation. In these cases the possibilities for restoration of damaged habitat or creation of replacement habitat will need to be considered. This may be costly and often technically difficult or ecologically untried. In certain cases the habitat affected may be irreplaceable. Wherever possible, Scottish Ministers would expect the developer, under ‘polluter pays’ principles, to bear the cost of compensatory measures. If re-creation or restoration is specified as compensatory measures, Scottish Ministers would expect the area concerned to become, within a clear timescale, of sufficient quality to ensure that the coherence of the Natura 2000 network is protected.

18. It is important to recognise that the Habitats Directive does not impose a general prohibition on development in or adjacent to Natura 2000 sites. Many wildlife species and habitats readily co-exist with human activity, and they may well rely upon it. Thus, for the most part, uses that have continued sustainably over many years, and may have contributed to the high conservation value for which the area is recognised, will accord with the aims of the Directive and may continue unchanged. Moreover, proposals for new development need to be assessed for their impact on the protected interests. Assessment may indicate that there would be no adverse effects on these interests.

19. The majority of land-based candidate SACs and classified SPAs are also notified as Sites of Special Scientific Interest (SSSI) under the nature conservation legislation contained in the Wildlife and Countryside Act 1981, and related provisions in the Countryside Act 1968. However, in line with evolving policy on the development of the SSSI system in Scotland some European sites may instead be protected by positive management schemes (the contractual measures provided for in Article 6.1 of the Habitats Directive) or may be afforded European protection in advance of SSSI notification.

Potential SPAs and SACs

20. Some sites have been identified as potentially qualifying for SPA classification but are currently subject to further survey or consultation work before decisions can be taken about their classification. Similarly, Ministers have identified further sites that they will consult about before deciding whether they should be proposed to the European Commission as candidate SACs. For the purpose of considering development proposals or other consent regimes affecting them, potential SPAs and potential SACs should be treated in the same way as classified SPAs. Sites which the Commission, the UK Government and the Scottish Ministers have agreed as Sites of Community Importance (within the meaning of Article 4(2) of the Habitats Directive) and which are to be designated as SACs, attract the same legal protection as designated sites.

21. When consultations take place about possible SPA or SAC designations, planning authorities will be asked to consider all extant planning permissions and analogous consents that may affect the proposed area (i.e. those permissions that have not been implemented at all, and those that have not been completely implemented). They should consider for each whether that consent or the implementation of that permission would have a significant effect on the ecological value of the site. If so, they should say so in their response to the consultation.

THE EFFECTS OF THE HABITATS REGULATIONS

22. Detailed advice and guidance on the provisions of the Habitats Regulations is attached as Annex E.

The Effects of Nature Conservation Provisions

23. All European sites, including those that are not SSSIs, are protected by the duties placed on competent authorities not to consent to plans or projects that would damage the conservation interest of the site. They may be protected by contractual measures (including management agreements with the proprietors or tenants). In addition:

• Ministers may introduce on any European site a Special Nature Conservation Order prohibiting any operation which would be likely to damage the conservation interest of the site, and
• SNH may make byelaws to protect European sites from damage by parties other than the owner/occupier, and these byelaws may also apply to adjacent land.

24. European sites underpinned by SSSI notifications are subject to the following provisions which strengthen the SSSI protection regime:

• SNH are given the power to amend the lists of Potential Damaging Operations (PDO) which form part of an SSSI notification when this is necessary to bring them into line with the ecological objectives of a European site;
• this may lead to SNH on occasion having to modify or revoke PDO consents granted on an SSSI before it had become a European site;
• the existing time limit under the Wildlife and Countryside Act 1981 after which a PDO notified to SNH may be carried out without SNH's consent does not apply to a Special Nature Conservation Order protecting a European site. In many such cases SNH will in practice already have offered a management agreement, and affected owners/occupiers may seek arbitration if they disagree with the financial terms of the management agreement offered;
• if no management agreement can be concluded, or if an agreement has been breached so that the satisfactory management of the site has been prevented or impaired, SNH will in extreme circumstances be obliged to initiate compulsory purchase procedures. If this should become necessary, the area or interest to be purchased would be as limited as possible. The Scottish Executive expects SNH to make every effort to address the neglect or inappropriate management of land by offering voluntary management agreements;

Species Protection

25. The Habitats Directive gives effect to the aspects of the Bern Convention that do not relate to birds. The species protection provisions of the Wildlife and Countryside Act 1981 - which are described in detail in Annex 2 to Circular Env 13/1991 - were in most respects consistent with the requirements of the Directive though some changes were necessary. The Habitats Regulations implement the requirements of the Directive for those species which are covered by the Directive through provisions which broadly parallel certain sections of the 1981 Act. In particular, Regulations 38-46 and Schedules 2-4 make provision to the following effect:

• addition of "disturbance" to the list of offences affecting protected animal species (for species not covered by the Directive still found in Section 9 of the 1981 Act) and the replacement of "intentionally" by "deliberately";
• the deletion of "intentionally" from the offence of damage or destruction of places of shelter or protection (breeding sites or resting places);
• the addition of "cutting" and "collecting" to the list of offences concerning protected plant species (otherwise found in Section 13 of the 1981 Act);
• the addition of all stages of the biological cycle to plant protection provision;
• the addition of a new proviso for the issue of licences under the present Section 16(3) to ensure that they cannot be issued unless there is no satisfactory alternative and the action authorised will not be detrimental to the maintenance of the species population at a favourable conservation status;
• to provide that, subject to the above proviso, licences can be issued for imperative reasons of overriding public interest;
• the addition of certain species to the Regulations' equivalent of Schedule 6 of the 1981 Act to ensure that all British native Annex IV and V mammals and fish are subject to Article 15 of the Directive (which prohibits particular means of taking or killing wild animals, and any form of taking or killing a wild animal from an aircraft or moving motor vehicle).

26. The requirements of the Birds Directive to protect, manage and control all species of naturally occurring wild birds are met by the relevant sections of the Wildlife and Countryside Act 1981.

The Effects of Provisions Relating to Planning Permissions, Permitted Development Rights and Analogous Consents

27. The Habitats Regulations set out measures to ensure that the Habitats Directive is implemented in the domain of planning law and other consent regimes operated by competent authorities (e.g. discharge consents, waste management licensing, integrated pollution control, construction of roads and pipelines, construction of electricity lines, and extraction of minerals by marine dredging). Competent authorities are obliged not to consent to operations or developments damaging to European sites. In outline:

• Authorities are obliged not to permit developments or operations damaging to the integrity of European sites unless there are imperative reasons of overriding public interest for the development to be undertaken;
• Authorities are obliged to review existing permissions which have not yet been implemented, and to modify or revoke them if their implementation would be damaging to the conservation interests of European sites (further guidance on this is given below);
• Provision already exists under the Town and Country Planning (Scotland) Act 1997 for developers to be compensated when a planning permission is modified or revoked;
• The Scottish Ministers must be notified if an authority proposes to permit a damaging development or operation to go ahead for the reasons of overriding public interest set out in the Directive;
• The General Permitted Development Order (GPDO) does not have effect to grant permission for developments damaging to the integrity of European sites. If a development permitted under that Order is likely to have a significant effect on the site and is not directly connected with or necessary to its management, specific approval for the development must be sought from the planning authority. Similar provision is made with regard to development in Simplified Planning Zones and Enterprise Zones. If a developer is in doubt about whether a proposed development permitted under the GPDO may affect a European site, he may consult SNH.

Review of extant permissions

28. The obligation to review existing permissions arises once SPAs have been classified and when candidate SACs are adopted by the European Commission as Sites of Community Importance (SCIs). It may be appropriate, however, to commence an initial review once the site becomes a candidate SAC, i.e. when it is sent to the Commission.

29. Under the Regulations, where such a review takes place, the relevant planning authority must consult Scottish Natural Heritage (SNH). The following possibilities arise:

Effects in the Marine Environment

30. In summary the Regulations provide that:

• all relevant authorities (such as harbour authorities, local authorities, and SEPA) having functions relevant to marine conservation are obliged to exercise those functions to protect the integrity of European marine sites. This means, for instance, that authorities will be obliged not to authorise discharges where this would damage the conservation interests of such sites (unless there are imperative reasons of overriding public interest);
• Ministers are also obliged to use their powers to protect the conservation interest of European marine sites (with the particular implication in Scotland that Ministers will use their powers under the Inshore Fishing (Scotland) Act 1984 to regulate fishing activities where this is necessary to protect European marine sites);
• SNH will inform relevant authorities of the conservation objectives of marine sites. It will be for the relevant authorities to decide how to use their powers to protect the integrity of European marine sites;
• where there is a complex interaction of different management issues, the relevant authorities may co-operate in developing a management scheme for the site, which will be sent to SNH (although SNH has no authority over these other authorities). Co-operation with the users of the marine environment, such as fishermen, is essential;
• Scottish Ministers have reserve powers to direct that a management scheme should be established under a lead agency, to require prior Ministerial approval of the scheme, or to direct what should be in the scheme;
• byelaws may be made by SNH to protect marine sites but, as with the existing provisions for marine nature reserves, the byelaws must not interfere with private rights. However, SNH may enter into voluntary management agreements with the holders of private salmon fishing rights in the marine environment if it is desirable to restrict the exercise of those rights to protect the integrity of a European marine site.

None of the provisions affect international rights of innocent passage.

31. There has been considerable progress made towards developing draft marine management schemes, ahead of formal designation of marine SACs. The successful collaboration of relevant organisations and bodies with an interest in individual candidate marine SACs has already provided useful experience for extension to other areas.

32. Following a recent decision of the English High Court, it has been established that the Habitats Directive should be applied beyond the 12 mile limit of the territorial sea. Implementation beyond the 12 mile limit is a reserved matter for the UK Government.

Marine SPAs

33. Having completed the guidelines for terrestrial sites, the JNCC has been asked to co-ordinate and produce advice in relation to Special Protection Areas below the low water mark.

European Sites: Development Plans

34. Development plans must clearly refer to European sites and structure plans must indicate their broad locations and local plans will identify the sites in detail. The accompanying texts should emphasise the very strict protection that must be afforded to the interests for which European sites are designated and the implications this has for development proposals which would adversely affect those interests. This will be particularly useful in local plans, which are a key reference source for the public and developers in making an early assessment of development proposals.

Conservation Outside European Sites

35. Article 10 of the Habitats Directive requires Member States to endeavour, where they consider it necessary, in their land use planning and development policies to encourage the management of features of the landscape which are of major importance for wild flora and fauna. These features are those which, because of their linear and continuous structure or their function as "stepping stones" are essential for migration, dispersal and genetic exchange. Examples given in the Directive are rivers with their banks, traditional field boundary systems, ponds and small woods. The requirements of Article 10 are transposed by Regulation 37 of the Habitats Regulations.

36. Structure plans, local plans and Indicative Forestry Strategies prepared in accordance with the advice contained in SODD Circular 9/1999 should include policies that respect the need to conserve and enhance our natural heritage, in accordance with current national policy and the UK's international obligations. In particular, these policies should seek to improve the ecological coherence of the Natura 2000 network in accordance with the requirements of Article 10. Regulation 37 requires that such policies shall include policies encouraging the management of features of the landscape which are of major importance for wild flora and fauna. Suitable planning conditions and obligations may serve to promote such management.

37. NPPG 14 sets out for planning authorities overall policy for the protection of the natural heritage in designated areas and the wider countryside.

38. The protection of SSSIs that do not qualify as European sites will also have an important contribution to make in meeting the requirements of Article 10 of the Directive and Regulation 37 of the Habitats Regulations. Scottish Ministers are considering what improvements may be made to the SSSI system.

FURTHER LEGISLATION

39. Consideration is also being given to the Habitats Regulations and the amendments necessary both to reflect the effects of devolution and to clarify some aspects in the light of experience since 1994.

RAMSAR SITES

40. The UK is a contracting party to the Ramsar Convention on Wetlands of International Importance, especially as waterfowl habitat. The full text of the Convention is set out in Cmnd 6465 (May 1976). The Convention requires contracting parties to designate suitable wetlands ("Ramsar sites") for inclusion in a list of wetlands of international importance and to formulate and implement their planning so as to promote the conservation of the wetlands included in the list, and as far as possible the wise use of wetlands in their territory. The Convention also requires that where a contracting party in its urgent national interest deletes or restricts the boundaries of a wetland included in the list it shall as far as possible compensate for this by designating and protecting alternative wetland areas of similar habitat.

41. Ramsar sites, like SPAs and SACs, are approved by Scottish Ministers and are normally underpinned by SSSI notification. The procedure for listing Ramsar sites is the same as that for the classification of SPAs, and where, as in the great majority of cases so far, such sites are also considered for classification as SPAs, joint consultation and consideration is undertaken. Further criteria are under consideration to extend the Ramsar site designation to some wetland habitats listed in the Habitats Directive, potentially resulting in future joint SAC/Ramsar site designation for some areas.

42. For those sites which qualify for designation only under the Ramsar Convention (and not as SAC or SPA) the Scottish Executive has chosen as a matter of policy to apply the same considerations to their protection as if they were classified as SPAs. SNH will be able to advise planning authorities on the conservation of Ramsar sites.

ENQUIRIES

43. Any enquiries about this circular should be addressed to Kathryn Farrell (0131 244 6549)
JANE DALGLEISH
Wildlife and Habitats Unit

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