< Previous | Contents | Next >

Habitats and Bird Directives: June 2000

Annex E: DETAILS OF THE HABITATS REGULATIONS

Contents

THE CONSERVATION (NATURAL HABITATS &C) REGULATIONS 1994

NOTE: This Annex provides advice and guidance on the content of the Conservation (Natural Habitats &c) Regulations 1994 and on related matters with particular reference to the implications for local authorities, SEPA and other public bodies.

PART I (GENERAL)

Part I (Regulations 1-6) contains introductory provisions. Regulation 3(2) places a duty on Scottish Ministers and Scottish Natural Heritage (SNH) to exercise their functions under the enactments relating to nature conservation so as to secure compliance with the requirements of the Habitats Directive. These enactments include relevant provisions of the Wildlife and Countryside Act 1981, the Natural Heritage (Scotland) Act 1991 and the Habitats Regulations themselves.

Regulation 3(3) places a duty on any competent authority having functions relevant to marine conservation to exercise these functions, in relation to marine areas, so as to secure compliance with the requirements of the Habitats Directive. This key duty is the basis for securing the protection of European marine sites. The duty applies in particular to functions under certain enactments specified in Regulation 3(3).

Without prejudice to the duties specified above, Regulation 3(4) places a duty on every competent authority in the exercise of any of their functions to have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of these functions. "Competent authority" is defined in Regulation 6 as including any Minister, Scottish Executive Department, public or statutory undertaker, public body of any description or person holding a public office.

Regulation 5 specifies which are relevant authorities in relation to a marine area or a European marine site. These are, if they have functions in relation to land or waters within or adjacent to that area or site:-

SNH: local authorities; harbour authorities; lighthouse authorities; SEPA; district salmon fishery boards.

PART II (CONSERVATION OF NATURAL HABITATS AND HABITATS OF SPECIES

European Sites

Regulations 7-15 make provision for the selection, registration and notification of sites to be protected under the Directive ("European sites").

Regulations 7-9 reflect the requirements of Articles 4 and 5 of the Directive in relation to site selection.

Regulation 10 defines the meaning of "European sites" as used in the Regulations. It is not confined only to SPAs which have been classified and SACs which have been designated. It includes also:-

1. sites of Community Importance which have been adopted by the Commission pending designation as SAC (Article 4 refers); and
2. sites hosting a priority habitat or species during the period of consultation between the Commission and the UK if the Commission, in exceptional cases, considers that the UK's list ought to have included these sites (Article 5 refers).

Regulations 11-15 (which are in part modelled on the arrangements under the Wildlife and Countryside Act 1981 for maintaining a register of SSSIs) provide for the compilation and maintenance of a register of European sites in Great Britain.

SNH is required under Regulation 13(1) to give notice to all owners and occupiers of land within a European site, to the planning authorities concerned and to such other persons or bodies as the Scottish Ministers may direct, as soon as practicable after it receives notice of inclusion of a site in the register or of an amendment.

Planning authorities are required to keep available at their principal office for free public inspection a register of all the European sites of which they have been given notice by SNH (Regulation 15(1)). They may also keep available for free public inspection at any other of their offices such part of the register as appears to them to relate to that part of their area in which such office is situated. Planning authorities are also required to supply on request, on payment of such reasonable fee as they may determine, certified true copies of any entry in the register kept by them.

 

Management Agreements

Regulation 16 is based on SNH's existing power under Section 16 of the National Parks and Access to the Countryside Act 1949 in relation to nature reserves. It empowers SNH to enter into management agreements with any owner, lessee or 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.

Regulation 17 provides that any management agreements in force on or after the commencement of the Regulations which relate to land within or adjacent to a European site shall have effect as if entered into under Regulation 16. If SNH considers that an existing agreement requires amendment or replacement to secure compliance with the Directive in relation to a European site, it will seek to enter negotiations with the owner or occupier on a new or revised agreement. The agreements referred to in this Regulation are not only those entered into under Section 16 of the 1949 Act but also includes those under Section 15 of the Countryside Act 1968 and Section 49a of the Countryside (Scotland) Act 1967.

Control of Potentially Damaging Operations

Regulations 18-21 build on the existing provisions of Section 28 of the Wildlife and Countryside Act 1981 to ensure the protection of European sites in accordance with the requirements of the Habitats Directive. Notifications of SSSIs by SNH or its predecessors, including the list of potentially damaging operations (PDOs) which may not be carried out without consultation with SNH, remain in force (Regulation 21). Owners and occupiers are required to notify SNH of their intention to undertake a PDO and are then precluded for a period of 4 months (or longer by agreement) from carrying out the operation unless the proposal is in accordance with the terms of a management agreement between the owner/occupier and SNH or has the consent of SNH (Regulation 19). SNH is obliged not to consent to PDOs which are likely to have an adverse effect on the integrity of the site (Regulation 20(21)).

In some cases the current list of PDOs and consents given hitherto by SNH or its predecessors may not meet the Directive's requirements for the protection of a European site. Regulation 18 therefore enables SNH to amend SSSI notifications, including the PDO list: notice of any amendment must be given to every owner/occupier concerned and to the planning authority. The Scottish Ministers also expect SNH to notify them of any such amendments.

If SNH considers that there is a risk of the PDO going ahead without consent 4 months after notice of intent has been given to SNH, SNH must inform the Scottish Ministers at least one month before expiry of the consultation period (Regulation 20(4) and (5)). This is to enable the Scottish Ministers to consider whether other action (e.g. a special nature conservation order) should be taken to protect the site.

Regulation 21 requires SNH to review and, where necessary, modify or withdraw consents, including those given at the time of the original SSSI notification, unless they were given under a management agreement. Any changes must be notified to the owners/occupiers concerned. Owners/occupiers would, unless other action is taken, be able to carry out the PDO without consent 4 months after notice of withdrawal of consent. However in practice SNH is likely in such cases to offer a management agreement. If SNH considers that there is a risk of a PDO going ahead after 4 months, it is obliged to inform the Scottish Ministers at least one month before the expiry of the 4 month period.

Special Nature Conservation Orders

Regulations 22-27 build on the existing provisions of Sections 29-31 of the Wildlife and Countryside Act 1981 which enable the Scottish Ministers to intervene to protect threatened sites of national importance.

Regulation 22(1) provides that the Scottish Ministers may, after consultation with SNH, make a Special Nature Conservation Order (SNCO) specifying PDOs(s) that may damage the features by reason of which the land is a European site. (In practice a SNCO is likely to be made only if there is a risk of a PDO going ahead without consent). Carrying out of the PDO(s) is then prohibited under Regulation 23(1) and (2) unless the owner/occupier has given written notice of intent and the operation is carried out either with SNH's written consent or in accordance with a management agreement. There is provision for objections or representations to be made to the making of a SNCO and in such circumstances the Scottish Ministers are required to hold a local inquiry or a hearing and to consider the objections or representations and the report of the inquiry before reaching a final decision on the Order. In any event they must reach a decision on what action (if any) to take in relation to the Order within 9 months of its being made. The detailed procedure is set out in Schedule I to the Regulations.

Unlike land subject to Orders made under Section 29 of the 1981 Act, there is no time limit during which SNH may respond to a notice of intent to carry out a PDO on land subject to a SNCO. In practice therefore a SNCO, if confirmed, imposes an absolute obligation not to carry out without consent the operations specified in the Order. Regulation 24 provides that SNH can give consent to a PDO specified in a SNCO only if it has ascertained that the plan or project to which it relates would not adversely affect the integrity of the site. If consent is refused, SNH is obliged to give reasons for its decision; the owner or occupier of the land in question may then, within 2 months of refusal, require SNH to refer the matter to the Scottish Ministers. If the Scottish Ministers are satisfied that there being no alternative solutions, the plan or project concerned must be carried out for imperative reasons of overriding public interest, they may direct SNH to give consent to the operation. This Regulation does not apply to a site which is a European site by reason only of Regulation 10(1)(c).

Regulation 25 provides that where a SNCO is made SNH shall pay compensation to any person having an interest in an agricultural unit comprising land to which the Order relates only if the Scottish Ministers have given notice setting out both the Order and their decision either to take no action or to confirm or not to confirm the Order. This Regulation is based on the little used Section 30 of the 1981 Act. In practice SNH is likely to have offered a management agreement in response to a PDO to which it cannot give consent; and the offer of a management agreement (with recourse to arbitration if necessary) will remain on the table after a SNCO is made. The provisions relating to management agreements are not restricted to agricultural units so the Scottish Executive expects that Regulation 25 will seldom if ever be used.

Regulation 26 provides that an owner or occupier may be required to carry out restoration measures if convicted of carrying out a PDO without consent. Regulation 27 provides that where there is in place an order under Section 29 of the 1981 Act, this will in effect become a SNCO when the land becomes a European site. SNH is required by Regulation 27(3) to review any consent previously given under Section 29(5)(a) of the 1981 Act as regards its compatibility with the conservation objectives of the site, and it may modify or withdraw the consent. Under Regulation 27(4) SNH must give notice of any such modification or withdrawal of consent to every owner and occupier of land within the site who in SNH's opinion may be affected by it. SNH would be likely at that stage to indicate its willingness to enter into a management agreement with the owners and occupiers affected. Regulation 27(5) provides that the withdrawal or modification of a consent does not affect anything done in reliance on the consent before the modification or withdrawal takes effect.

Byelaws

Regulation 28 empowers SNH to make byelaws for the protection of a European site; and these may apply to surrounding or adjoining land. Byelaws are subject to confirmation by the Scottish Ministers. Regulation 29 provides that byelaws cannot interfere with the rights of owners and occupiers of land to which the byelaws apply; the exercise of any public right of way or the exercise of any functions of statutory undertakers or district salmon fishery board; or the running of a telecommunications code system or the right of its operator.

Regulation 31 provides that byelaws already in force on a nature reserve will have effect as if made under Regulation 28 if that reserve becomes a European site.

Powers of Compulsory Acquisition

Regulation 32 provides that SNH may initiate compulsory purchase procedures where:

3. no management agreement can be concluded between SNH and an owner or occupier on terms SNH considers reasonable; or
4. an agreement has been breached, so that satisfactory management of a European site has been prevented or impaired.

If this should become necessary, the area to be purchased will be as limited as possible. There is provision for arbitration to determine whether such a breach of a management agreement has occurred. An act or omission that can be and is remedied within reasonable time is not a breach. Where a site is threatened by a PDO the Scottish Executive expects that resort where necessary to a Special Nature Conservation Order will be sufficient to protect the site. The Scottish Executive also expects SNH to make every effort to address the neglect or inappropriate management of land by offering voluntary positive management agreements. Compulsory purchase is therefore a last resort measure which should only be necessary in extreme and exceptional circumstances.

European Marine Sites

Regulations 33-36 make special provision as to the protection of European marine sites. They need to be read with the key duties set out in Regulation 3, in particular Regulation 3(3). The general framework for the protection of European marine sites is set out in Paragraph 22 of the main Circular. This approach is consistent with the Scottish Executive's policy towards coastal zone management generally and with the objectives and targets relating to marine conservation set out in the Biodiversity Action Plan published in January 1994. The Scottish Executive favours an approach which requires all relevant authorities to co-operate with each other and with other interests in developing management schemes for European marine sites. However it has no wish to see onerous or complex arrangements put in place if these are not necessary to achieve the appropriate management of a site. Moreover, the Scottish Executive hopes that management schemes will be developed from existing working arrangements where these cover European marine sites and that "re-inventing the wheel" will be avoided. The Scottish Executive considers that, as will be the case on land, existing uses of marine sites will usually be compatible with the requirements of the Directive. In particular the Directive encourages sustainable fishing and not the exclusion of all fishing activity.

European marine sites may include inter-tidal areas (the foreshore) or sub-tidal areas (permanently covered by the sea). The SSSI system extends to inter-tidal areas but not to the sub-tidal, and there is no equivalent marine designation; hence the need for the measures in the Regulations.

Regulation 33 empowers SNH to install markers indicating the existence and extent of European marine sites. It also requires SNH, as soon as possible after a site becomes a European marine site, to advise other relevant authorities as to:-

5. the conservation objectives of the site; and
6. any operations which may cause deterioration of natural habitats or the habitats for species, or disturbance of species, for which the site has been designated.

Regulation 34 provides that the relevant authorities, or any of them, may establish for a European marine site a management scheme under which their functions shall be exercised so as to secure compliance with the requirements of the Directive in relation to that site. As soon as a scheme has been established, or is amended, the relevant authority or authorities must send a copy to SNH.

Regulation 35 gives Scottish Ministers 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.

Regulation 36 extends to European marine sites SNH's existing power under the Wildlife and Countryside Act 1981 to make byelaws for the protection of marine nature reserves. Such byelaws, which are subject to confirmation by the Scottish Ministers, cannot interfere with any functions of a relevant authority, functions conferred under an enactment or any private rights.

Nature Conservation Policy in Planning Contexts

Paragraphs 23-36 of the main Circular provide advice on the Directives' implications for development plans both in relation to European sites and to the wider countryside and marine environment outside these designated areas. These paragraphs include advice on Regulation 37, which transposes Article 10 of the Habitats Directive.

NPPG 14 on Natural Heritage, referred to in paragraph 36 of the main Circular, and the Circular on Indicative Forestry Strategies offer detailed advice on planning issues relating to the natural heritage in a consolidated form.

PART III (PROTECTION OF SPECIES)

Regulations 38-46 make provision for protection of species and habitats - see paragraph 24 of main Circular.

PART IV (ADAPTATION OF PLANNING AND OTHER CONTROLS)

Introduction/General Provisions for Production of European Sites

Regulations 47-51 are core provisions that are of fundamental importance in understanding the other provisions of this Part of the Regulations. In particular, Regulation 47 provides that the requirements of:-

(a) Regulations 48 and 49, which specify the requirement on competent authorities to undertake appropriate assessments to consider the effect of plans or projects on European sites; and

(b) Regulations 50 and 51, which specify the requirement on competent authorities to review certain existing decisions and consents in relation to their effect on European sites

apply to the matters specified in Regulations 54-85. Thus the detailed provisions in those Regulations should be read with the general requirements of Regulations 48-51.

NB: By virtue of Regulation 48(7), this Part of the Regulations, does not apply to sites that are European sites only by reason of Regulation 10(1)(c). For general ease of understanding, however, the guidance below refers generally to European sites or to SPAs and SACs.

Regulations 52 and 53 make provision which is supplementary to the general purpose and effect of this Part. Regulation 52 applies in situations where more than one competent authority is involved in a plan or project. Regulation 53 transposes Article 6(4) of the Habitats Directive. Where a plan or project is agreed to, notwithstanding an assessment which indicates that it would be likely to have an adverse effect on the integrity of a European site, the Scottish Ministers must secure that any necessary compensatory measures are taken to protect the overall coherence of the Natura 2000 network. Such measures could include the designation of another area as a European site.

Duty to Review Extant Permissions

Regulations 50, 51, 55 and 56 of the Regulations require the planning authority to review extant planning permissions which are likely to have a significant effect on a site, either individually or in combination with other development, and to take any appropriate action. This requirement applies to:

Existing SPAs when the Regulations came into force and those classified since then, (listed in Annex C to the main Circular);

Future SPAs when they are classified; and

Candidate SACs when they are listed as Sites of Community Importance by the European Commission. (Planning authorities will be notified when sites are listed).

Planning authorities are required by Regulation 50(1) to review permissions as soon as is reasonably practicable. They should have identified any relevant permissions during the consultations referred to in paragraph 18 of the main Circular. The review will need to ascertain whether implementation of any permission which is likely to have a significant effect on the site, and is not directly connected with or necessary to its management, would adversely affect its integrity (see Appendix A). The planning authority must consult SNH and have regard to any representations made by it within such reasonable time as the authority may specify (Regulations 48(3) and 50(2)). If the integrity of the site would be adversely affected, and if the permission does not fulfil the conditions under which a new development proposal affecting the site would be approved, then the authority must take appropriate action to remove the potential for harm, unless there is no likelihood of the development being carried out or continued (see Regulation 56(3)).

If planning authorities consider that agreements made under Section 75 of the Town and Country Planning (Scotland) Act 1997 would safeguard the integrity of the site Regulation 56(2) requires them to invite those concerned to enter into them. Otherwise they must modify or revoke the permission, or make a discontinuance order. They should also take such action if a developer proceeds with damaging development while they are endeavouring to secure a Section 75 agreement. Regulation 58 provides that modification, revocation or discontinuance orders take effect when served. The Scottish Ministers must however, confirm them in order to have continuing effect. Where compensation is payable in the event of the order not being confirmed, the authority must refer the amount to the Lands Tribunal for Scotland unless the Scottish Ministers indicates otherwise (see Regulation 59).

The Scottish Executive advise that planning authorities should not seek to duplicate controls which are the statutory responsibility of other bodies (including planning authorities in their non-planning functions). Regulations 83, 84 and 85 require the review of authorisations under the Environmental Protection Act 1990 granted by SEPA for integrated pollution control and by local authorities for air pollution control; of waste management licences under the 1990 Act granted by local authorities (district or islands councils until April 1995); and of effluent discharge consents under the Control of Pollution Act 1974 granted by the river purification authority. As a matter of policy, if in reviewing a planning permission planning authorities consider that action calls to be taken under Regulations 83, 84 and 85 they should inform the relevant authority. Further they should exercise planning powers under Regulation 56 only if powers under the other regimes are not available or if they exercise could not achieve what is required. In carrying out reviews and in exercising their own powers planning authorities must have regard to the provision in Regulation 51 that the action to be taken to secure that the integrity of the site is not adversely affected should be the least onerous to those affected.

Advice on amendments to the General Permitted Development Order (GPDO) and General Development Procedure Order (GDPO) is at paragraphs 47-55 below. Regulations 64, 65 and 66 provide that existing Special Development Orders, Simplified Planning Zone schemes and Enterprise Zone schemes cease to have effect to grant planning permission for development which is likely to have a significant effect on a classified SPA or a site agreed by the Commission and the Scottish Executive as a Site of Community Importance to be designed as an SAC. The Regulations also prevent the SPZ and EZ schemes from granting planning permission for development which is likely significantly to affect a site classified as SPA or agreed as SAC. [check whether need to mention CADs]

Development Affecting SPAs and SACs

Regulations 48, 49 and 54 restrict the granting of planning permission for development which is likely significantly to affect an SPA or SAC, and which is not directly connected with or necessary to the management of the site. They apply to planning decisions taken on or after the date the Regulations came into force, regardless of when the application was submitted. They apply to sites of one of the types listed in paragraph 37 above. They do not apply to candidate SACs before they have been published on the European Commission’s list of Sites of Community Importance or to potential SPAs, but as a matter of policy the Scottish Executive wishes development proposals affecting them to be considered in the same way as if they had already been classified. The Scottish Executive has chosen to apply the same considerations to listed Ramsar sites. (See also paragraphs 14 and 30 of main Circular).

SPAs and in future terrestrial SACs will usually have been notified to authorities as SSSIs. An authority is required under the GDPO to consult SNH before granting planning permission for development affecting an SSSI; Regulation 48 incorporates a similar requirement for development affecting a SPA or SAC. Planning authorities should ensure that SNH is consulted about development affecting all SPAs and SACs (regardless of whether they are also notified as SSSI). In responding, SNH will advise on issues of particular significance in terms of the Birds or Habitats Directives. It will also advise whether in its opinion the proposed development would significantly affect the ecological value for which the site is identified, and if appropriate will suggest what measures might be taken in advance of permission being granted to avoid such effects.

Before issuing a decision on the planning application Regulation 49(5) requires an authority proposing to allow a development which would adversely affect a SPA or SAC, to notify the Scottish Ministers and to delay agreeing to the development for a period of 21 days following receipt of the notification by the Scottish Ministers unless permitted in writing by the Scottish Ministers. Planning authorities should explain the reasons for their decision particularly if they do not decide the case in accordance with the recommendations of SNH. The Scottish Ministers will normally call-in for their own decision planning applications which are likely to have a significant effect on sites of international importance; they will have regard to the advice of SNH on applications which are likely to affect such a site is not called-in [something garbled here], the Scottish Executive expects the planning authority to demonstrate in the decision-making process that the relevant factors have been fully addressed; this requirement applies whether or not the authority is minded to approve the application.

The approach to be taken in considering a development proposal that would affect a SPA or SAC is set out in Appendix A, whether the decision-taker is the Scottish Ministers or the planning authority.

Planning Authority and Crown Development Affecting SPAs and SACs

Applications made by planning authorities for the development of their land are subject to the planning procedures set out in the Town and Country Planning (Development by Planning Authorities)(Scotland) Regulation 1981. The Scottish Executive has announced its intention to end Crown exemption from planning laws, with certain exceptions including trunk road and motorway development which is subject to separate procedures designed to produce the same effect as planning legislation. Regulation 69 achieves the same result as regards road construction or improvement projects carried out by the Scottish Ministers under the Roads (Scotland) Act 1984 as the Regulations do for development requiring planning permission. Pending legislation altering Crown exemption, planning authorities will continue to be consulted about proposals for Crown development under the procedures in SDD Circular No 21/1984. Where such proposals are likely to affect a site or a type listed in paragraph 37 above, authorities should apply the same tests in framing their advice as under the Habitats Regulations. The Scottish Ministers will do likewise in deciding whether planning clearance should be given for proposals which are the subject of unresolved objections from a planning authority.

Permitted Development Rights: SPAs and SACs

Article 3 of the Town and Country Planning (General Permitted Development)(Scotland) Order 1992 (GPDO) grants a general planning permission (subject to specified conditions and limitations) for the types of development set out in Schedule 1 to the GPDO. These permitted development rights largely apply to developments which are uncontentious, and which, they required individual consideration, would place an unnecessary burden on householders or other developers and on planning authorities. Other permitted development rights relate to developments that are controlled through other approval procedures, and to developments by statutory undertakers and local authorities in the performance of their statutory duties.

Regulations 60-63 ensure that any permission grant under the GPDO is not in breach of the terms of the Habitats Directive. They prevent any development which is likely significantly to affect a European site from benefiting from permitted development rights unless the planning authority have decided, after consulting SNH, that it would not adversely affect the integrity of the site.

Appendix C explains the process developers should follow to find out whether the particular development they propose would benefit from a permitted development right. It identifies the role of the planning authority and SNH.

Permitted Development Rights and the Developer

Developers should bear in mind that if they proceed with a development in or near a European site on the assumption that it benefits from a permitted development right, without first checking whether it is likely to have a significant effect on the site, they run the risk of undertaking the project without the benefit of planning permission and being liable to enforcement proceedings.

If developers are uncertain whether their proposal is likely to have a significant effect on the site, they may seek an opinion from SNH (Regulation 61(1)). There is no charge for this. An application for SNH's opinion must give details of the proposed development and, in the Department's view, this should include the following information:-

7. A short description of the proposed development or works showing:

• Their broad purpose;
• Their physical extent, including the area of land or water likely to be covered;
• Any residues likely to be produced and proposals for disposal, and any emissions to air, water, soil, and by noise, vibration, heat, light or radiation;
• The timetable for the proposed development.

1. A map (or maps) showing the location of the proposed development in relation to the SPA/SAC boundary and the position of all proposed buildings, service access routes and works (whether permanent or temporary).
2. A description of possible direct or indirect effects (including disturbance) on the wildlife, water quality, hydrology, geological or landform features of the site.
3. Information about any measures the developer proposes to incorporate into the project to prevent, reduce, ameliorate or offset any landtake, residues or emissions.

To inform their initial consideration about whether to consult SNH, developers may obtain a copy of the citation giving the reasons for classification of the site from the appropriate local office of SNH. A copy of the citation is provided to relevant planning authorities and to owners and occupiers of a site during the pre-classification process.

The planning authority would enter the process at the point where either the developer or SNH decided that the proposal would be likely to have a significant effect on the site. If the developer wished to pursue the proposal further, the planning authority would undertake an assessment of the implications of the proposal for the site's conservation objectives. After consulting SNH, the planning authority would decide whether or not the proposal would adversely affect the integrity of the site. If the authority concluded that it would have such an effect and the developer wished to proceed an application for the authority's approval would be required. Regulation 63(2) provides for a fee to be paid to the planning authority in connection with the application for approval. Advice on significant effect, appropriate assessment and site integrity is contained in Appendix A.

If the authority decides, after consulting SNH, that there would be no adverse effect on the integrity of the site, the developer can go ahead. If the authority decides that there would be, the developer will have to make a full planning application. As with any other change in the law which has the effect of withdrawing PDRs, compensation may be payable. The possible right to compensation arises only where a planning application is:-

4. Submitted within 12 months of the date when the removal of PDRs come into effect (in this case 30 October 1994);
5. Refused or granted subject to conditions other than those attached to the PDRs; and
6. For a development which would have benefited from those PDRs if they had not been revoked.

SNH will endeavour to respond within 21 days from the receipt of all information necessary to enable it to form an opinion, both to:

7. Requests from a developer for his opinion as to whether a development is likely to have a significant effect on a site (Regulation 61(1)); and
8. Applications from a planning authority under Regulation 62(4) on the issue of whether a development will adversely affect the integrity of a site.

If the information provided under Regulation 61(1) is inadequate or incomplete, SNH will advise what additional information they need Regulation 61(4). Planning authorities must, by virtue of Regulation 62(4), take account of any representations made by SNH.

Unauthorised Developments Affecting SPAs and SACs

Planning authorities will need to implement specific administrative procedures to prevent, or remedy quickly, any alleged breach of planning control that has, or is likely to have, a significant effect on a SPA or SAC. If a continuing breach of planning control is likely to result in serious long-term harm to a site, the authority should consider the simultaneous service of a stop notice with the related enforcement notice, to prohibit environmentally harmful activity which would otherwise continue for the duration of an enforcement appeal. Where the significant effect on a SPA or SAC appears to result from an alleged breach of a planning condition, it may be more effective to issue an enforcement notice, reinforced by a stop notice, rather than serve a breach of condition notice. This is because a minimum period of 28 days must be allowed for compliance with a breach of condition notice, during which period irremediable harm to the natural habitat may occur. Alternatively, or additionally, the authority may consider submitting an immediate application to the Court of Session or the Sheriff Court for interdict while they prepare to take other action to enforce against a breach of control which is having a significant effect on an SPA or SAC. Advice on enforcement is given in National Planning Policy Guideline 1 (NPPG1) (The Planning System, paragraphs 62 and 63) and in SODD Circular 4/1999 on Planning Enforcement.

OTHER CONTROLS

56. Regulations 69-85 achieve broadly the same result as the preceding Regulations in this Part do for activities requiring permission or consent. Under Regulation 48, competent authorities must consider the effect on SPAs and SACs of any consents or permissions issued by them and this Part amplifies the requirements for some specified activities.

PART V (SUPPLEMENTARY PROVISIONS)

Regulations 6-108 contain supplementary provisions that are not described in detail here. Regulation 87 is modelled on Sections 28(6A), (6B) and (6C) of the Wildlife and Countryside Act 1981 (as inserted by the Wildlife and Countryside (Amendment) Act 1985). Regulation 88 is modelled on Section 32 of the 1981 Act. This Regulation requires the Scottish Ministers, where an application for a farm capital grant relates to activities on land within a European site, to exercise their functions so far as is consistent with the purposes of the grant provisions to further the conservation of the features by reason of which the land is a European site. SNH may object to the making of a grant where this may damage or destroy these features: and the Scottish Ministers must consider any such objections. If grant is refused, SNH must offer to enter into a management agreement with the applicant within 3 months. Imposing restrictions on these activities and providing for payments to the applicant, Regulation 89 is modelled on Section 50 of the Act.

Powers of entry to land exist for:

9. Persons authorised by SNH to ascertain whether a special nature conservation order should be made in relation to that land, an offence has been committed on the land or the award of compensation payable under Regulation 25 (by virtue of Regulation 90(1);
10. Persons authorised by the Valuation Office to survey land or estimate its value in consideration of a claim for compensation under Regulation 30 Regulation 95(1); or
11. Persons authorised to survey land in the exercise of any power under the Regulations prior to the acquisition of an interest in the land by the prospective acquirer Regulation 99(1).

In the first case, 24 hours notice to the occupier is required prior to entry unless it s believed an offence is being or has been committed Regulation 90(2). Otherwise, 14 days notice is required Regulations 95(3) and 99(3) respectively.

Regulations 100-104 contain provisions supplementary to Part III of the Regulations relating to the protection of species.

< Previous | Contents | Next >