The Conservation (Natural Habitats, &c.) Regulations 1994

[^key-a6f4097666b0f943450f8abe1966fb80]: Pt. 4 power to disapply or modify conferred (26.12.2023) by Energy Act 2023 (c. 52), ss. 293(4)(5), 334(3)(j) (with s. 293(6))

[^key-3762b24e20ff74365bf00f8acd060c4f]: Reg. 3A power to disapply or modify conferred (26.12.2023) by Energy Act 2023 (c. 52), ss. 293(4)(5), 334(3)(j) (with s. 293(6))

[^key-645a20a8b6194cb913c65a5cea302f5f]: Words in reg. 3(2) substituted (1.11.2025) by The Environmental Authorisations (Scotland) Amendment Regulations 2025 (S.S.I. 2025/165), reg. 1(2), sch. 22 para. 11(2) (with sch. 23)

[^key-27b01c32f4df570a6e09569464d3f55b]: Words in reg. 3A(4) substituted (1.11.2025) by The Environmental Authorisations (Scotland) Amendment Regulations 2025 (S.S.I. 2025/165), reg. 1(2), sch. 22 para. 11(3) (with sch. 23)

[^key-d45bd18f1c6031773c6140125a8ffcd8]: Reg. 83 revoked in so far as not already revoked (1.11.2025) by The Environmental Authorisations (Scotland) Amendment Regulations 2025 (S.S.I. 2025/165), reg. 1(2), sch. 22 para. 11(4) (with sch. 23)

[^key-7600bfd8e27bd2693500f1f299e2c6f9]: Reg. 84 substituted (1.11.2025) by The Environmental Authorisations (Scotland) Amendment Regulations 2025 (S.S.I. 2025/165), reg. 1(2), sch. 22 para. 11(5) (with sch. 23)

Permits under the Pollution Prevention and Control (Scotland) Regulations 2012

84A

• (1) Regulations 48 and 49 (requirement to consider effect on European sites in Great Britain and European offshore marine sites) apply in relation to the granting of a permit under the Pollution Prevention and Control (Scotland) Regulations 2012.

• (2) Where in such a case the competent authority consider that any adverse effects of the plan or project on the integrity of a European site or European offshore marine site would be avoided if the permit were subject to conditions, they may grant a permit, or cause a permit to be granted, subject to those conditions.

• (3) Regulations 50 and 51 (requirement to review existing decisions and consents, &c.) apply to any such permit as is mentioned in paragraph (1).

• (4) Where on the review of such a permit the competent authority consider that any adverse effects on the integrity of a European site or European offshore marine site of the carrying out or, as the case may be, the continuation of activities authorised by it would be avoided by a variation of the permit, they may vary it, or cause it to be varied, accordingly.

• (5) Where any question arises as to agreeing to a plan or project, of affirming a permit on review, under regulation 49 (considerations of overriding public interest), the competent authority shall refer the matter to the Scottish Ministers who shall determine the matter in accordance with that regulation and give directions to the authority accordingly.

Discharge consents under water pollution legislation

Control of operations requiring consent

53A

• (1) Regulations 48 and 49 (requirement to consider effect on European sites in Great Britain and European offshore marine sites) apply in relation to the granting of any consent under–

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

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

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

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

Application of sections 19ZC and 19ZD of the Wildlife and Countryside Act 1981

101A

• (1) Subject to paragraphs (2) to (4), sections 19ZC (wildlife inspectors: Scotland) and 19ZD (power to take samples: Scotland) of the Wildlife and Countryside Act 1981 apply, for the purposes of these Regulations.

• (2) For the purposes of these Regulations, any reference in section 19ZC or 19ZD of the Wildlife and Countryside Act 1981 to that Act or any part thereof, shall be construed as a reference to these Regulations.

• (3) The provisions of section 19ZC of the Wildlife and Countryside Act 1981 apply for the purposes of these Regulations as if—

• (a) in subsection (3)—

• (i) in paragraph (a), the reference to “section 6, 9(5) 11I(1) or 13(2)” was a reference to regulation 39(3) or 43(2) of these Regulations;

• (ii) paragraphs (b) to (d) were omitted; and

• (iii) in paragraph (e)(i) and (ii), “registration or” was omitted;

• (b) in subsection (4)—

• (i) in paragraph (a), for “paragraphs (a) to (c) do” there was substituted “paragraph (a) does”;

• (ii) in paragraph (a)(i) and (ii) “registration or” was omitted; and

• (iii) paragraph (b) was omitted;

• (c) in subsection (5), for the words from “section 6” to “14K” there was substituted a reference to regulation 39(3) or 43(2) of these Regulations;

• (d) in subsection (6), “bird or other” was omitted in each place where it occurs;

• (e) for subsection (9) there was substituted–

(9) In this section– “relevant licence” means a licence under regulation 44 of the Conservation (Natural Habitats, &c.) Regulations 1994 which authorises anything which would otherwise be an offence under regulation 39(3) or 43(2) of those Regulations; “specimen” means any animal or plant or any part of, or anything derived from, an animal or plant.

; and

• (f) after subsection (9) there was inserted–

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

• (4) the provisions of section 19ZD of the Wildlife and Countryside Act 1981 apply for the purposes of these Regulations as if–

• (a) in subsection (1)–

• (i) the reference to “section 19” was a reference to regulation 101 of these Regulations; and

• (ii) the reference to “this Part” was a reference to Part III of these Regulations;

• (b) in subsection (2), the reference to “this Part” was a reference to Part III of these Regulations;

• (c) in subsection (3)–

• (i) for the words from “section 6” to “14K” there was substituted a reference to regulation 39(3) or 43(2) of these Regulations; and

• (ii) “to (d)” was omitted;

• (d) in subsection (4), for the words from “section 6” to “14K” there was substituted a reference to regulation 39(3) or 43(2) of these Regulations;

• (e) in subsection (5), “bird, other” was omitted;

• (f) in subsections (6) and (7), “bird or other” was omitted;

• (g) in subsection (8), the reference to “section 19(2)” was a reference to regulation 101(2) of these Regulations;

• (h) in subsection (10)(b)–

• (i) for “a bird, other” there was substituted “ an ”; and

• (ii) “bird, other” was omitted; and

• (i) after subsection (10) there was inserted–

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

Proceedings for offences: venue, time limits

Power of court to order forfeiture

Saving for other protective provisions

Surveillance of conservation status of habitats and species

37A

• (1) The Scottish Ministers shall make arrangements in accordance with paragraphs (5) to (7) for the carrying out of surveillance of the conservation status of natural habitats of national interest and species of national interest, and in particular priority natural habitat types and priority species.

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

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

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

• (5) The arrangements made by the Scottish Ministers under paragraph (1) shall ensure that Scottish Natural Heritage implements a strategy for the surveillance of the conservation status of relevant habitats and species in Scotland.

• (6) In implementing that strategy Scottish Natural Heritage shall–

• (a) assess how and to what extent surveillance of the conservation status of relevant habitats and species needs to be carried out, having regard to–

• (i) whether a habitat or species is a priority natural habitat type or a priority species; and

• (ii) the conservation status of the habitat or species; and

• (b) ensure that surveillance is carried out on an ongoing basis.

• (7) Surveillance for the purposes of this regulation may be carried out by–

• (a) Scottish Natural Heritage; or

• (b) any other body or person pursuant to an agreement with Scottish Natural Heritage, provided that Scottish Natural Heritage is satisfied as to the standards and methods of surveillance used by that body or person.

• (8) In paragraphs (5) and (6) a relevant habitat or species means a habitat or species of a type referred to in paragraph (1).

• (9) In this regulation—

• “natural habitats of national interest” means natural habitat types listed in Annex I to the Habitats Directive;

• “species of national interest” means species of wild fauna and flora listed in Annex II, IV or V to the Habitats Directive.

Monitoring incidental capture and killing

41A

• (1) Scottish Natural Heritage must make arrangements in accordance with paragraphs (2) to (5) for monitoring the incidental capture or killing (a “monitoring system”) of animals of the species listed in Annex IV(a) to the Habitats Directive.

• (2) Scottish Natural Heritage must, from time to time, review the monitoring system and, if they think it appropriate, revise it.

• (3) In light of the information gathered from the monitoring system, Scottish Natural Heritage must—

• (a) make arrangements for the carrying out of such research, or

• (b) where appropriate, advise the Scottish Ministers on such conservation measures

as appears or appear to Scottish Natural Heritage to be necessary to ensure that such incidental capture or killing does not have a significant negative impact on the species in question.

• (4) In implementing that monitoring system Scottish Natural Heritage must, in relation to the species of animal listed in Annex IV(a) to the Habitats Directive which are found in Scotland–

• (a) identify the risks of incidental capture or killing to which those species are subject, and the activities which give rise to such risks;

• (b) maintain a record of instances of incidental capture or killing of animals of those species of which Scottish Natural Heritage is aware as a result of the surveillance carried out under regulation 37A, the monitoring carried out under this regulation, or otherwise;

• (c) assess to what extent monitoring of incidental capture or killing is needed, having regard to–

• (i) the risks identified under sub-paragraph (a);

• (ii) the instances of incidental capture or killing recorded under sub-paragraph (b);

• (iii) whether the species is a priority species; and

• (iv) the conservation status of the species; and

• (d) ensure that monitoring of incidental capture or killing is carried out.

• (5) Monitoring for the purposes of this regulation may be carried out by—

• (a) Scottish Natural Heritage; or

• (b) any other body or person–

• (i) pursuant to an agreement with Scottish Natural Heritage, provided that Scottish Natural Heritage is satisfied as to the standards and methods of monitoring used by that body or person; or

• (ii) as a condition of a licence or other authorisation granted by a competent authority.

• (6) The Scottish Ministers may, from time to time, give directions to Scottish Natural Heritage as to the exercise of its functions under paragraphs (1) to (5).

Offence of breaching licence condition

46A

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

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

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

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

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

Abstraction and works authorised under water legislation

84B

• (1) Regulations 48 and 49 apply in relation to—

• (a) the grant of an authorisation under regulation 8 (registration) or 9 (water use licence);

• (b) the variation under regulation 19 (variation of authorisation) in accordance with either regulation 20 (procedure for variation) or regulation 21 (request for variation), as the case may be, or the partial variation under regulation 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), (ee) or (g),

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

• (2) In a case referred to in paragraph (1), where the competent authority considers that any adverse effects of the plan or project on the integrity of a European site or European offshore marine site would be avoided if the grant or variation of the authorisation were subject to conditions or, as the case may be, further conditions, it may grant or vary the authorisation subject to those conditions.

• (3) Regulations 50 and 51 apply to authorisations under regulation 8 or 9 of the 2005 Regulations.

• (4) Where on the review of an authorisation under regulation 8 or 9 of the 2005 Regulations, the competent authority considers that any adverse effects on the integrity of a European site or European offshore marine site of the carrying out or, as the case may be, the continuation of the activity authorised would be avoided by a variation of the authorisation, it may vary the authorisation, or cause it to be varied, accordingly.

Discharge consents under water pollution legislation

PART IVA — APPROPRIATE ASSESSMENTS FOR LAND USE PLANS

Interpretation

85A

• (1) In this Part—

• “the 1997 Planning Act” means the Town and Country Planning (Scotland) Act 1997;

• “land use plan” means a strategic development plan or local development plan or supplementary guidance as provided for in Part 2 of the 1997 Planning Act;

• “plan making authority” means—a planning authority;the Loch Lomond and the Trossachs National Park Authority and the Cairngorms National Park Authority;the Scottish Ministers when exercising powers under section 13 (approval or rejection of strategic development plans), 20 (constitution of local development plans) or section 23B (default powers of the Scottish Ministers) of the 1997 Planning Act;

• “planning authority” has the meaning given in section 1 of the 1997 Planning Act.

• (2) References in this Part to giving effect to a land use plan are to—

• (a) the adoption by a planning authority, the Loch Lomond and the Trossachs National Park Authority or the Cairngorms National Park Authority of a local development plan under section 20 of the 1997 Planning Act;

• (aa) the adoption of supplementary guidance under section 22 of the 1997 Planning Act;

• (b) the approval by the Scottish Ministers of a strategic development plan under section 13 or a local development plan under section 20 of the 1997 Planning Act.

Assessment of implications for European site

85B

• (1) Where a land use plan—

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

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

the plan-making authority for that land use plan shall, before the plan is given effect, make an appropriate assessment of the implications for the site in view of that site's conservation objectives.

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

• (3) The plan-making authority shall, if it considers it appropriate, take the opinion of the general public, and in doing so, shall take such steps for that purpose as it considers appropriate.

• (4) In the light of the conclusions of the assessment, and subject to regulation 85C (considerations of overriding public interest), the plan-making authority shall give effect to the land use plan only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).

• (5) A plan-making authority other than the Scottish Ministers shall provide such information as the Scottish Ministers may reasonably require—

• (a) to enable the Scottish Ministers to determine whether an assessment under paragraph (1) is required; or

• (b) for the purposes of an assessment under paragraph (1).

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Considerations of overriding public interest

85C

• (1) If the plan making authority is satisfied that, there being no alternative solutions, the land use plan must be given effect for imperative reasons of overriding public interest (which subject to paragraph (2), may be of a social or economic nature), it may give effect to the land use plan notwithstanding a negative assessment of the implications for the European site or the European offshore marine site (as the case may be).

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

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

• (b) any other reasons of overriding public interest provided the competent authority has had regard to the opinion of the Scottish Ministers in satisfying themselves that there are such reasons.

• (3) Where a plan-making authority, other than the Scottish Ministers, desires to obtain the opinion of the Scottish Ministers as to whether reasons are to be considered imperative reasons of overriding public interest, it shall submit a written request to the Scottish Ministers—

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

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

• (4) In giving their opinion as to whether the reasons are imperative reasons of overriding public interest, the Scottish Ministers must have regard to the national interest, and provide their opinion to the plan-making authority.

• (4A) Before giving their opinion as to whether the reasons are imperative reasons of overriding public interest, the Scottish Ministers must consult the following, and have regard to their opinion—

• (a) the Joint Nature Conservation Committee;

• (b) the Secretary of State;

• (c) the Department of Agriculture, Environment and Rural Affairs in Northern Ireland;

• (d) the Welsh Ministers; and

• (e) any other person the Scottish Ministers consider appropriate.

• (5) Where a plan-making authority other than the Scottish Ministers proposes to give effect to a land use plan under this regulation notwithstanding a negative assessment of the implications for the site concerned, it shall notify the Scottish Ministers.

• (6) Having notified the Scottish Ministers under paragraph (5), the authority in question shall not give effect to the land use plan before the end of the period of 21 days beginning with the day notified to it by the Scottish Ministers as that on which the notification was received by them, unless the Scottish Ministers notify the authority that it may do so.

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

Co-ordination for land use plan prepared by more than one planning authority

85D

• (1) This regulation applies where two or more planning authorities prepare a strategic development plan under section 4 or a joint local development plan under section 16 of the 1997 Planning Act.

• (2) Nothing in regulation 85B(1) requires a planning authority to assess any implications of a strategic development plan or a joint local development plan which would be more appropriately assessed under that provision by another planning authority.

• (3) The Scottish Ministers may issue guidance to planning authorities for the purposes of regulation 85B(1) as to the circumstances in which a planning authority may or should adopt the reasoning or conclusions of another planning authority as to whether a strategic development plan or a joint local development plan—

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

• (b) will adversely affect the integrity of a European site or a European offshore marine site.

• (4) The planning authorities involved shall have regard to any guidance issued under paragraph (3) in discharging their functions under regulation 85B(1).

• (5) In determining whether a strategic development plan or a joint local development plan should be adopted under regulation 85C(1) a planning authority shall seek and have regard to the views of other planning authorities involved.

Compensatory measures

85E

Where in accordance with regulation 85C a land use plan is given effect, notwithstanding a negative assessment of the implications for a European site or a European offshore marine site, the Scottish Ministers shall secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 is protected.

Application of criminal offences to the Crown

104A

• (1) No contravention by the Crown of any provision of these Regulations makes the Crown criminally liable; but the Court of Session may, on the application of any public body or office holder having responsibility for enforcing that provision, declare unlawful any act or omission of the Crown which constitutes such a contravention.

• (2) Despite paragraph (1), the provisions of these Regulations apply to persons in the public service of the Crown as they apply to other persons.

SCHEDULE 2A — EXCLUDED POPULATIONS OF CERTAIN SPECIES

NOTE: The common name or names given in the first column of this table are included by way of guidance only; in the event of dispute or proceedings, the common name or names must not be taken into account.

Directions as regards plans and projects

48A

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

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

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

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

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

• (3) Where the Scottish Ministers are satisfied that–

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

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

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

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

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

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

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

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

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

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

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

Considerations of overriding public interest

Review of existing decisions and consents, &c.

Consideration on review

Co–ordination where more than one competent authority involved

Compensatory measures

Control of operations requiring consent

Protection of certain animals and plants from exploitation

37B

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Introduction of new species from ships

37C

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Licensing the introduction of new species

37D

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

False statements made for obtaining a licence under regulation 37D

37E

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Protection of certain wild animals

Further defence to the offences in regulation 39

Protection from incidental capture and killing

41B

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Protection of certain wild plants

Local development orders

64A

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Simplified planning zones

Simplified planning zones and European offshore marine sites

65A

The adoption or approval of a simplified planning zone scheme on or after 21st August 2007 shall not have effect to grant planning permission for development which is likely to have a significant effect on a European offshore marine site (either alone or in combination with other plans or projects).

Enterprise zones

Enterprise zones and European offshore marine sites

66A

An order designating an enterprise zone, or the approval of a modified scheme, if made or given on or after 21st August 2007, shall not have effect to grant planning permission for development which is likely to have a significant effect on a European offshore marine site (either alone or in combination with other plans or projects).

Simplified planning zones and enterprise zones: supplementary provisions as to compensation

Construction as one with planning legislation

Core and other paths

69A

• (1) Regulations 48 and 49 (requirement to consider effect on European sites in Great Britain and European offshore marine sites) apply in relation to a local authority’s proposal—

• (a) to draw up or change a plan for core paths under section 17 of the Land Reform (Scotland) Act 2003 (asp 2);

• (b) to enter a path agreement under section 21 of that Act;

• (c) to create or maintain a path delineated under such an agreement;

• (d) as to how any such path is to be created or maintained;

• (e) to make a path order under section 22 of that Act;

• (f) as to how any path delineated under such an order is to be created or maintained.

• (2) Regulations 50 and 51 (requirement to review certain decisions) apply to any decision by a local authority in relation to any of the things mentioned in paragraph (1).

Cycle tracks and other ancillary works

Constables’ powers in connection with samples

Offences in connection with constables’ powers to take samples

101B

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Wildlife inspectors

101C

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Powers of wildlife inspectors to enter premises

101D

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Wildlife inspectors’ powers for examining specimens and taking samples

101E

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Offences in connection with wildlife inspectors’ enforcement powers

101F

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Restrictions on taking samples from live specimens

101G

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Codes of practice

101H

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Advice and assistance from nature conservation bodies

101I

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Proceedings for offences: venue, time limits

Power of court to order forfeiture

Saving for other protective provisions

Application of criminal offences to the Crown

Application of criminal offences to the Crown

106A

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Local inquiries

Service of notices

Advisory role of the JNCC

109

• (1) The Joint Nature Conservation Committee may provide advice or make representations to any competent authority in relation to—

• (a) any question as to whether that authority is obliged to carry out an appropriate assessment in relation to a European offshore marine site under these Regulations;

• (b) any appropriate assessment on which that authority is obliged to consult the Committee under these Regulations;

• (c) any application made pursuant to regulation 62 of these Regulations and sent to the Committee by that authority pursuant to regulation 62(4); and

• (d) any decision of the Secretary of State in respect of which notice has been served on it by him under regulation 72(2)(b), 76(2)(b) or 80(2)(b) of these Regulations.

• (2) The Joint Nature Conservation Committee may undertake, commission or support (whether by financial means or otherwise) such research and scientific work as it considers is required for the purposes of providing advice or making representations under this regulation.

• (3) In this regulation and regulation 110 of these Regulations, “research” includes inquiries and investigations.

Advisory role of Natural England, the Countryside Council for Wales and Scottish Natural Heritage

110

• (1) Natural England may—

• (a) provide advice and assistance, or make representations, to any competent authority on any matter which relates to England and is connected with the discharge of the competent authority’s functions under these Regulations; and

• (b) undertake, commission or support (whether by financial means or otherwise) such research and scientific work as it considers is required for the purposes of providing advice or assistance or making representations under sub-paragraph (a).

• (2) The Countryside Council for Wales may—

• (a) provide advice and assistance, or make representations, to any competent authority on any matter which relates to Wales and is connected with the discharge of the competent authority’s functions under these Regulations; and

• (b) undertake, commission or support (whether by financial means or otherwise) such research and scientific work as it considers is required for the purposes of providing advice or assistance or making representations under sub-paragraph (a).

• (3) Scottish Natural Heritage may—

• (a) provide advice and assistance, or make representations, to any competent authority on any matter which relates to Scotland and is connected with the discharge of the competent authority’s functions under these Regulations; and

• (b) undertake, commission or support (whether by financial means or otherwise) such research and scientific work as it considers is required for the purposes of providing advice or assistance or making representations under sub-paragraph (a).

Environmental permits under the Environmental Permitting (England and Wales) Regulations 2007

Compensation for effect of notice

Interpretation

27A

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Grant of development consent

67A

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Development consent: review

67B

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Interpretation

Marine works

84C

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Discharge consents under water pollution legislation

National Policy Statements

85F

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Derogations under the Nitrate Pollution Prevention Regulations 2008

84D

• (1) Regulations 48 (assessment of implications for European site) and 49 (considerations of overriding public interest) apply in relation to the granting of a derogation under Part 3A of the Nitrate Pollution Prevention Regulations 2008.

• (2) Where regulations 48 and 49 apply, the competent authority may, if they consider any adverse effects of the plan or project on the integrity of a European site or European offshore marine site would be avoided if the derogation were subject to conditions, grant the derogation, subject to those conditions.

Discharge consents under water pollution legislation

Derogations under the Nitrate Pollution Prevention (Wales) Regulations 2008

84E

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Discharge consents under water pollution legislation

Application of Chapters 2, 3 and 4 of Part 2 of the 2004 Act

Chapter 2 of Part 2 of the 2004 Act

Chapter 3 of Part 2 of the 2004 Act

Chapter 4 of Part 2 of the 2004 Act

Special protection area: classification of sites

9A

• (1) The Scottish Ministers must classify as special protection areas such sites (including sites in the Scottish inshore region) as they consider necessary to ensure that the objective specified in paragraph (2) is attained.

• (2) The objective referred to in paragraph (1) is that those sites across the United Kingdom’s territory which are most suitable in number and size for—

• (a) the conservation of species listed in Annex 1 to the Wild Birds Directive which naturally occur in that territory, and

• (b) the conservation of naturally occurring migratory species of birds not listed in Annex 1 which naturally occur in that territory,

are classified as special protection areas, in so far as they consist of sites in Scotland.

• (3) The Scottish Ministers must make their decision as to the sites to be classified under paragraph (1) only on the basis of relevant scientific information and—

• (a) in the case of a site to be classified for the purpose mentioned in paragraph (2)(a), on the basis of criteria set out in Article 4(1) of the Wild Birds Directive, and

• (b) in the case of a site to be classified for the purpose mentioned in paragraph (2)(b), on the basis of criteria set out in Article 4(2) of that Directive.

• (4) In this regulation—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) “Scottish inshore region” means the area of sea within the seaward limits of the territorial sea adjacent to Scotland.

• (5) In applying the criteria referred to in paragraphs (3)(a) and (b) in relation to any species, references in Articles 4(1) and 4(2) of the Wild Birds Directive to classifying the most suitable territories “in the geographical sea and land area where this Directive applies” are to be construed as referring to the most suitable territories in the United Kingdom’s territory, having regard to the importance of such territories for ensuring the survival and reproduction of that species in their area of distribution.

Special protection area: notification of proposal

9B

• (1) The Scottish Ministers must if they propose to classify a site as a special protection area give to the appropriate nature conservation body—

• (a) notice of that proposal, and

• (b) an accompanying statement of the reasons for that proposal.

• (2) The appropriate nature conservation body must on being given notice of a proposal, provide a copy of the proposal and the accompanying statement—

• (a) to such persons as the Scottish Ministers may direct, and

• (b) where, in their opinion, it is appropriate to do so to—

• (i) any other person (including owners or occupiers of land or premises), and

• (ii) every competent authority which exercises functions in relation to the site, or in relation to an area adjacent to the site.

• (3) The appropriate nature conservation body must when they provide a copy of a proposal and accompanying document to any such person or authority specify the period of not less than 12 weeks (the “consultation period”) during which representations may be made to them with respect to the proposal by that person or authority.

• (4) The appropriate nature conservation body must as soon as reasonably practicable after expiry of the consultation period provide to the Scottish Ministers a report (the “consultation report”)—

• (a) describing any representations made in that period, or

• (b) stating that no representations have been made.

• (5) The Scottish Ministers must consider the consultation report when determining whether to classify a site as a special protection area.

• (6) The Scottish Ministers may—

• (a) give guidance to the appropriate nature conservation body for the purpose of the exercise by them of functions under this regulation, and

• (b) vary or revoke a direction under paragraph (2)(a).

• (7) The appropriate nature conservation body must have regard to any guidance under paragraph (6)(a) in discharging a function referred to in that paragraph.

Special protection area: hearing and representations in respect of a proposal

9C

• (1) The Scottish Ministers may give any person the opportunity of—

• (a) making written representations to, or

• (b) being heard by,

a person appointed by them for the purpose of deciding whether to classify a site as a special protection area.

• (2) Any person being heard by the appointed person may—

• (a) be represented by another person,

• (b) call persons to give evidence,

• (c) make written representations before or at the hearing,

• (d) put questions to any person who gives evidence at the hearing, including any person who gives expert evidence.

• (3) The Scottish Ministers must have regard to the report of an appointed person when deciding whether to so classify a site.

Meaning of “European site” in these Regulations

Delegation of licence granting power: Scotland

44A

• (1) The Scottish Minsters may delegate their functions in relation to licences under regulation 44 to the appropriate nature conservation body.

• (2) A delegation may be, to any degree, general or specific and may in particular relate to—

• (a) a particular type of animal or plant,

• (b) a particular licence or type of licence, or

• (c) a particular area.

• (3) Unless it specifies otherwise, a delegation relating to a particular licence (or type of licence) includes the power to modify or revoke the licence (or licences of that type) where granted before the delegation.

• (4) A delegation is to be made by written direction.

• (5) The Scottish Ministers may modify or revoke a direction under paragraph (4).

• (6) The requirement on the Scottish Ministers under regulation 44(5) to take advice from the appropriate nature conservation body does not apply in the period when a direction under paragraph (4) has effect, in respect of any licence granted under the direction.

• (7) Where a direction is revoked, any existing licence granted under the direction continues to have effect (unless the revoking direction provides otherwise).

Licences: supplementary provisions

False statements made for obtaining licence

Offence of breaching licence condition

Duties in relation to wild bird habitat

3A

• (1) Without prejudice to regulation 3(1), the Scottish Ministers, the appropriate nature conservation body and, in relation to the Scottish marine area, a competent authority must take such steps in the exercise of their functions as they consider appropriate to secure the objective in paragraph (3), so far as lies within their powers.

• (2) Except in relation to the Scottish marine area, the Scottish Environment Protection Agency, ... local authorities and National Park authorities must take such steps in the exercise of their functions as they consider appropriate to contribute to the achievement of the objective in paragraph (3).

• (3) The objective is the preservation, maintenance and re-establishment of a sufficient diversity and area of habitat for wild birds in Scotland in implementation of Article 3 of the Wild Birds Directive (including by means of the upkeep, management and creation of such habitat, as appropriate), having regard to the requirements of Article 2 of that Directive.

• (4) Paragraphs (1) and (2) apply in particular to functions under the following enactments:—

• sections 23A to 24 of the Hill Farming Act 1946;

• sections 16 to 18, 20 and 21 of the National Parks and Access to the Countryside Act 1949 (agreements for management of nature reserves, powers of compulsory acquisition of land for nature reserves, and powers to make byelaws for the protection of nature reserves);

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

• the Forestry and Land Management (Scotland) Act 2018;

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

• sections 14D to 14P of the Wildlife and Countryside Act 1981 (species control orders);

• sections 7, 8 and 10 of the Deer (Scotland) Act 1996;

• section 1 of the National Parks (Scotland) Act 2000;

• section 22 of the Water Environment and Water Services (Scotland) Act 2003;

• Part 2 of the Nature Conservation (Scotland) Act 2004 (conservation and enhancement of natural features);

• the Marine (Scotland) Act 2010;

• the Environmental Authorisations (Scotland) Regulations 2018; and

• any function exercisable in relation to town and country planning.

• (5) In section 79(3)(a) of the Marine (Scotland) Act 2010 (creation of network of conservation sites), the reference to “the conservation or improvement of the marine environment” includes the objective in paragraph (3), and accordingly the duty in section 103 (reports to Parliament) of that Act applies in relation to that objective.

• (6) In considering which measures may be appropriate for the purpose of securing or contributing to the objective in paragraph (3), regard may be had to economic and recreational requirements.

• (7) The Scottish Ministers must take any measures they consider necessary to facilitate or co-ordinate arrangements to secure the taking of steps under paragraphs (1) and (2) by the persons mentioned in those paragraphs.

• (8) So far as lies within its powers, a competent authority must use all reasonable endeavours to avoid pollution or deterioration of habitats of wild birds in Scotland.

Review and guidance

3B

• (1) The appropriate nature conservation body must from time to time—

• (a) review the extent to which the objective in regulation 3A(3) has been met, other than in relation to the Scottish marine area;

• (b) set out the conclusions of the review in a report, including any recommendations for further action; and

• (c) send the report to the Scottish Ministers.

• (2) In carrying out the review, the appropriate nature conservation body must, so far as is reasonable, take account of any measures taken which contribute to the achievement of that objective, whether or not taken pursuant to a requirement imposed by any enactment.

• (3) After consultation with the appropriate nature conservation body, the Scottish Ministers must give guidance to the Scottish Environment Protection Agency, ... local authorities and National Park authorities—

• (a) to facilitate the determination by those bodies of the extent to which the diversity and area of wild bird habitat is sufficient; and

• (b) on the steps that it may be appropriate to take pursuant to regulation 3A(1) or (2).

• (4) In exercising a function to which regulation 3A(1) or (2) applies, a body to which guidance has been given under paragraph (3) of this regulation must have regard to that guidance.

Nature conservation bodies

Relevant authorities in relation to marine areas and European marine sites

Competent authorities generally

Research

111

• (1) The Scottish Ministers must take such steps to encourage research and scientific work as they consider necessary—

• (a) having regard to the objectives in Article 2, and the obligation in Article 11, of the Habitats Directive; and

• (b) for the purpose of the protection or management, and in relation to the use, of any population of wild bird.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) In deciding what steps to take under paragraph (1), the Scottish Ministers must have particular regard to the need for research and scientific work—

• (a) on the subjects listed in Annex V to the Wild Birds Directive; or

• (b) which may be required to implement Articles 4 and 10 of the Habitats Directive.

Duties relating to compliance with the Directives

Marine licences

Marine licences: duty to review

53B

• (1) Subject to paragraph (3), regulations 50 (review of existing decisions and consents, &c.) and 51 (consideration on review) do not apply where—

• (a) a licence was granted by the Scottish Ministers; and

• (b) the conditions in paragraph (2) are met in accordance with that licence.

• (2) The conditions mentioned in paragraph (1) are—

• (a) if the activity to which the licence relates includes an activity mentioned in items 1 or 2 of section 21(1) of the 2010 Act, that the substance or object has been fully deposited;

• (b) if the activity to which the licence relates includes an activity mentioned in items 3 to 7, 9 or 10 of section 21(1) of the 2010 Act, that the activity to which the licence relates has been completed;

• (c) if the activity to which the licence relates includes an activity mentioned in item 8 of section 21(1) of the 2010 Act, that the explosive substance or article has been fully used, or fully deposited and used.

• (3) If a licence was granted by the Scottish Ministers and the activity to which that licence relates includes the construction, alteration or improvement of a generating station, regulations 50 and 51 do not apply to that licence after the date on which that generating station is first operated.

• (4) In this regulation—

• “the 2010 Act” means the Marine (Scotland) Act 2010;

• “activity” means a licensable marine activity and is to be construed in accordance with section 21 of the 2010 Act;

• “generating station” has the meaning given by section 64(1) of the Electricity Act 1989;

• “licence” means a marine licence granted under Part 4 of the 2010 Act.

Interpretation: the Directives

2A

• (1) The Habitats Directive is to be construed for the purposes of these Regulations as if—

• (a) any reference to “the European territory of the Member States to which the Treaty applies” included a reference to the United Kingdom;

• (b) any reference to “Member State” or “Member States” included a reference to the United Kingdom;

• (c) any reference to “of Community interest” included, in relation to the United Kingdom, a reference to “of national interest”;

• (d) in Article 1(d) and (h), references to “the Community” were references to “the European Union or the United Kingdom”; and

• (e) in Article 1(l), the reference to “a site of Community importance designated by the Member States” included, in relation to the United Kingdom, a reference to a site of national importance designated under any of the retained transposing regulations.

• (2) The Wild Birds Directive is to be construed for the purposes of these Regulations as if—

• (a) any reference to “the European territory of the Member States to which the Treaty applies” included a reference to the United Kingdom; and

• (b) any reference to “Member State” or “Member States” included a reference to the United Kingdom.

• (3) Any reference in these Regulations to “the requirements of the Directives” is to be construed as if the objectives of the Directives included the objectives referred to in regulation 9D(2).

• (4) The Scottish Ministers may, after consultation with the appropriate nature conservation body and such other bodies or persons as they consider appropriate, issue guidance as to the interpretation of the requirements of the Directives.

• (5) Any guidance issued under paragraph (4) must be published by the Scottish Ministers in such manner as they consider appropriate.

Duties relating to compliance with the Directives

Reports

3ZA

• (1) Within six years from exit day, and at least every six years thereafter, the Scottish Ministers must publish, in such form as they see fit, a report on the implementation of the measures taken for the purpose of giving effect to the provisions of the Directives, and the achievement of the objectives set out in Article 2 of the Habitats Directive and Articles 2 and 3 of the Wild Birds Directive.

• (2) The report under paragraph (1) must include in particular—

• (a) information concerning conservation measures taken under Article 6(1) of the Habitats Directive;

• (b) information on provisions mentioned in Article 12 of the Wild Birds Directive;

• (c) an evaluation of the impact of those conservation measures on the conservation status of—

• (i) the natural habitat types listed in Annex I of the Habitats Directive, and

• (ii) the species listed in Annex II of that Directive; and

• (d) the main results of the surveillance and monitoring undertaken under regulations 37A and 41A.

Duties in relation to wild bird habitat

Review and guidance

Nature conservation bodies

Relevant authorities in relation to marine areas and European marine sites

Competent authorities generally

Duty to designate special areas of conservation

Priorities for designating special areas of conservation

Management objectives of the UK site network

9D

• (1) The Scottish Ministers must, in co-operation with any other authority having a corresponding responsibility, manage, and where necessary adapt, the UK site network, so far as it consists of European sites in Scotland, with a view to contributing to the achievement of the management objectives of the UK site network.

• (2) The management objectives of the UK site network are—

• (a) to maintain at or, where appropriate, restore to a favourable conservation status in their natural range (so far as it lies in the United Kingdom’s territory, and so far as is proportionate)—

• (i) the natural habitat types listed in Annex I to the Habitats Directive; and

• (ii) the species listed in Annex II to that Directive whose natural range includes any part of the United Kingdom’s territory; and

• (b) to contribute, in their area of distribution, to ensuring the survival and reproduction, and securing compliance with the requirements of Article 2 of the Wild Birds Directive for the purposes of the duty in regulation 3(1), of—

• (i) species of birds listed in Annex I to the Wild Birds Directive which naturally occur in the United Kingdom’s territory; and

• (ii) regularly occurring migratory species of birds not listed in that Annex which naturally occur in the United Kingdom’s territory.

• (3) In complying with the obligation in paragraph (1), the Scottish Ministers must have regard —

• (a) in relation to any European site which is not of a kind mentioned in regulation 10(1)(d), to the considerations mentioned in paragraph (4); and

• (b) in relation to European sites of a kind mentioned in regulation 10(1)(d), to the considerations mentioned in paragraph (5).

• (4) The considerations referred to in paragraph (3)(a) are—

• (a) the importance of the sites for the maintenance at, or restoration to, a favourable conservation status, throughout their natural range, of the natural habitat types and species mentioned in paragraph (2)(a);

• (b) the importance of the sites for the coherence of the UK site network; and

• (c) the threats of degradation or destruction (including deterioration and disturbance of protected features) to which the sites are exposed.

• (5) The considerations referred to in paragraph (3)(b) are—

• (a) the importance of the sites for ensuring the survival and reproduction of, and securing compliance with the requirements of Article 2 of the Wild Birds Directive for the purposes of the duty in regulation 3(1) in relation to, the species of birds mentioned in paragraph (2)(b), in their area of distribution;

• (b) in the case of migratory species, the importance of their breeding, moulting and wintering areas and staging points along their migration routes;

• (c) the importance of the sites for the coherence of UK site network; and

• (d) the threats of degradation or destruction (including deterioration and disturbance of protected features) to which the sites are exposed.

• (6) In paragraph (2)(a), “proportionate” means proportionate to the relative importance of—

• (a) the part of the natural range lying in the United Kingdom’s territory; and

• (b) the part of the natural range lying outside the United Kingdom’s territory,

for achieving a favourable conservation status.

Meaning of “European site” in these Regulations

Transitional provisions: EU exit

112

• (1) Where before exit day a site in Scotland has been adopted in accordance with the procedure set out in Article 4(2) of the Habitats Directive (list of sites of Community importance), the Scottish Ministers must designate that site as a special area of conservation as soon as possible and no later than six years from the date of adoption of that site.

• (2) Paragraph (3) applies where a site in Scotland—

• (a) has before exit day been proposed, in a list of sites transmitted to the European Commission, as eligible for identification as of Community importance in accordance with the procedure laid out in Article 4(2) of the Habitats Directive (list of sites of Community importance); and

• (b) has not yet been so identified as being of Community importance.

• (3) Where this paragraph applies, the Scottish Ministers must within six years of exit day designate the site as a special area of conservation or give notice of their intention not to designate the site as such and in that case must publish, in such form as they see fit, their reasons for not designating it.

Amendment of Schedules

113

• (1) The Scottish Ministers may by regulations amend schedule 2 or 4 for the purpose of adding, to schedule 2 or 4, any species listed in Annex IV(a) or (b) to the Habitats Directive, where they are satisfied that the natural range of that species includes any area in Scotland.

• (2) The Scottish Ministers may by regulations make such other amendments as they consider necessary for adapting schedules 2 to 4 to technical and scientific progress.

• (3) Regulation 115 applies in relation to any amendment made under paragraph (1) or (2).

Amendment of the Annexes to the Directives

114

• (1) Paragraph (2) applies for the purposes of the application of the Annexes so far as they are relevant to any reference in these Regulations to—

• (a) the Directives;

• (b) the Annexes; or

• (c) any provisions of the Directives to which the Annexes relate.

• (2) The Scottish Ministers may by regulations make such amendments to the Annexes as they consider necessary for the purpose of adapting them to technical and scientific progress.

• (3) Regulation 115 applies in relation to any amendment made under paragraph (2).

• (4) In this regulation, “the Annexes” means—

• (a) Annexes I to IV to the Habitats Directive; and

• (b) Annexes I to V to the Wild Birds Directive.

Regulations

115

• (1) Regulations made under regulation 113(2) amending schedule 2, or under regulation 114 amending Annex IV to the Habitats Directive, are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010).

• (2) Regulations made in any other case are subject to the negative procedure.

SCHEDULE 3A — PROHIBITED METHODS OF TAKING OR KILLING WILD ANIMALS

1

The prohibited means of taking or killing mammals are—

• (a) the use of blind or mutilated animals as live decoys;

• (b) tape recorders;

• (c) electrical and electronic devices capable of killing or stunning;

• (d) artificial light sources;

• (e) mirrors and other dazzling devices;

• (f) devices for illuminating targets;

• (g) sighting devices for night shooting comprising an electronic image magnifier or image converter;

• (h) explosives;

• (i) nets which are non-selective according to their principle or their conditions of use;

• (j) traps which are non-selective according to their principle or their conditions of use;

• (k) crossbows;

• (l) poisons and poisoned or anaesthetic bait;

• (m) gassing or smoking out; and

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

2

The prohibited methods of capturing or killing fish are—

• (a) poison; and

• (b) explosives.

3

The prohibited modes of transport are—

• (a) aircraft; and

• (b) moving motor vehicles.

Permits or registrations under the Environmental Authorisations (Scotland) Regulations 2018