The Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001

Made: 8th May 2001

Laid before Parliament: 8th May 2001

Coming into force: 31st May 2001

The Secretary of State, being a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to the conservation of natural habitats and of wild fauna and flora, in exercise of the powers conferred upon him by that section hereby makes the following Regulations:—

Citation and commencement

1

These Regulations may be cited as the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 and shall come into force on 31st May 2001.

Interpretation

2

• (1) In these Regulations—

• “the 1998 Act” means the Petroleum Act 1998 ;

• “the 2017 Regulations” means the Conservation of Habitats and Species Regulations 2017;

• “address”, in relation to electronic communication, includes any number or address used for the purposes of such communication;

• “appropriate nature conservation body” means such body with responsibilities for providing relevant advice on nature conservation in relation to the land or waters within or adjacent to the relevant site, which the Secretary of State considers appropriate;

• “approval” means approval of an abandonment programme pursuant to Part IV of the 1998 Act;

• “authorisation” means an authorisation granted pursuant to section 14 of the 1998 Act relating to the construction or use of a pipe-line;

• “consent” is to be construed in accordance with regulation 4(3);

• “designated area” means any area for the time being designated under section 1(7) of the Continental Shelf Act 1964;

• “the Directives” means the Habitats Directive and the Wild Birds Directive;

• “electronic communication” means the same as in the Electronic Communications Act 2000 ;

• “the Habitats Directive” means Council Directive 92/43 of May 21, 1992 on the conservation of natural habitats and of wild fauna and flora ;

• “Natura 2000” means the European network of special areas of conservation, and special protection areas under the Wild Birds Directive, provided for by Article 3(1) of the Habitats Directive;

• “offshore oil and gas activities” means oil and gas activities carried out wholly or partly in a relevant area;

• “OGA” means the Oil and Gas Authority;

• “oil and gas activities” means any activities carried out for or in connection with the exploration for or production of petroleum;

• “petroleum” includes any mineral oil or relative hydrocarbon and natural gas existing in its natural condition in strata, but does not include coal or bituminous shales or other stratified deposits from which oil can be extracted by destructive distillation;

• “Petroleum Act licence” means a licence which is granted under or has effect as if granted under the 1998 Act or a licence which is to be granted under that Act;

• “relevant area” means an area comprising any of the following— UK waters;waters in a designated area; orthe seabed and subsoil under the waters referred to in paragraphs (a) and (b) above;

• “relevant function” means any function exercisable by the Secretary of State or the OGA in relation to or in connection with offshore oil and gas activities including, without limitation, functions exercisable under the 1998 Act or any licence granted or having effect as if granted under that Act;

• “relevant power” means any power exercisable by the Secretary of State or the OGA in relation to or in connection with offshore oil and gas activities including, without limitation, powers exercisable under the 1998 Act or any licence granted or having effect as if granted under that Act;

• “relevant project” means any plan or project which relates to offshore oil and gas activities;

• “relevant site” means—a special area of conservation,a site of Community importance which has been placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive,... an area classified, as a special protection area, before exit day pursuant to Article 4(1) or (2) of the Wild Birds Directive or classified as such after exit day under any of the retained transposing regulations, or a site included in the list of sites which has been transmitted to the Commission by the United Kingdom pursuant to Article 4 of the Habitats Directive ......A site shall cease to qualify as a site under paragraph (e) above at such time as—the draft list of sites of Community importance is established under the first sub-paragraph of Article 4(2) of the Habitats Directive where in any case the site is not included in that list, orthe list of sites referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive is adopted by the Commission in accordance with that sub-paragraph....

• “the retained transposing regulations” means—the Conservation (Natural Habitats, &c.) Regulations 1994;the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995;the Conservation of Offshore Marine Habitats and Species Regulations 2017;the 2017 Regulations;

• ...

• ...

• “UK waters” means parts of the sea in or adjacent to the United Kingdom from the low water mark up to the seaward limits of territorial waters; and

• ...

• “the Wild Birds Directive” means Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds.

• (2) Subject to paragraphs (3) and (4), unless the context otherwise requires, expressions used in these Regulations and in the Habitats Directive or in the Wild Birds Directive have the same meaning as in those Directives.

• (3) For the purposes of these Regulations—

• (a) the Habitats Directive is to be construed as if—

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

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

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

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

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

• (b) the Wild Birds Directive is to be construed as if—

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

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

• (4) Any reference in these Regulations to the “requirements” or “objectives” of the Directives is to be construed as if the objectives of the Directives included the objectives referred to regulation 16A(2) of the 2017 Regulations.

Application of the Directives

3

• (1) To the extent not already provided for by the 2017 Regulations, the Secretary of State and the OGA shall exercise their respective, relevant functions ... in such manner and to such extent as each shall consider necessary to secure that offshore oil and gas activities are carried out in a manner that is consistent with the requirements of the Directives.

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

Consent for geological surveys

4

• (1) In so far as they relate to oil and gas activities, the following activities or procedures shall not be carried out in a relevant area without the prior written consent of the Secretary of State—

• (a) prospecting or carrying out geological surveys by physical or chemical means;

• (b) drilling for the purpose of obtaining geological information about strata; or

• (c) testing the surveying or drilling equipment to be used in the activities or procedures falling within (a) or (b).

• (2) Paragraph (1) above shall apply notwithstanding any provision in any Petroleum Act licence.

• (3) For the purposes of regulations 5 and 7 below, “consent” means—

• (a) a consent granted pursuant to paragraph (1) above; or

• (b) a consent granted pursuant to a Petroleum Act licence, including any consent required pursuant to the Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) Regulations 1999 or the Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental Impact Assessment) Regulations 2020.

Appropriate assessments

5

• (A1) The OGA shall not grant any Petroleum Act licence, consent or authorisation without the agreement of the Secretary of State.

• (1) The Secretary of State shall, before agreeing to the grant of any Petroleum Act licence, any consent, or any authorisation, or granting any consent or approval, where he considers that anything that might be done or any activity which might be carried on pursuant to such a licence, consent, authorisation or approval is likely to have a significant effect on a relevant site, whether individually or in combination with any other plan or project, including but not limited to any other relevant project, make an appropriate assessment of the implications for the site in view of the site’s conservation objectives.

• (2) The Secretary of State 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 Secretary of State may specify and shall also, if he considers appropriate, take the opinion of the general public.

• (3) Subject to regulation 6 below, in the light of the conclusions of the assessment the Secretary of State shall agree to the grant of any such licence, consent, or authorisation or grant any such consent or approval only after having ascertained that nothing that might be done and no activity that might be carried out pursuant thereto would have an adverse effect on the integrity of a relevant site.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Projects which should be carried out for imperative reasons of overriding public interest

6

• (1) Subject to paragraph (2) below, regulation 5(3) above shall not apply to the doing of anything in connection with the carrying out of any relevant project affecting a relevant site—

• (a) to which, in the opinion of the Secretary of State, there is no satisfactory alternative; and

• (b) which the Secretary of State has certified in writing as a project which should be carried out for imperative reasons of overriding public interest, which may include reasons of a social or economic nature.

• (2) The Secretary of State shall not give a certification pursuant to paragraph (1)(b) above in respect of a project that is likely to have an adverse effect on the integrity of a site hosting a priority natural habitat type or a priority species unless—

• (a) the reason for so certifying relates to human health or public safety, or to beneficial consequences of primary importance for the environment; or

• (b) the Secretary of State has consulted, and had regard to the opinion of—

• (i) the Joint Nature Conservation Committee;

• (ii) the Scottish Ministers;

• (iii) the Department of Agriculture, Environment and Rural Affairs;

• (iv) the Welsh Ministers; and

• (v) any other person the Secretary of State considers appropriate.

• (3) Where the Secretary of State has given a certification pursuant to paragraph (1)(b) above, he shall secure that any necessary compensatory measures are taken to ensure that the overall coherence of the national site network is protected, and in determining what such necessary compensatory measures may be, he shall consult the appropriate nature conservation body.

• (4) The Secretary of State shall—

• (a) at such intervals as he shall think fit carry out or cause to be carried out such investigation as he shall consider appropriate in relation to the effects of offshore oil and gas activities on the conservation status of natural habitats and species of wild fauna and flora, with particular regard to priority habitat types and priority species; and

• (b) in the light of the results of such investigation consider whether he ought to exercise any relevant power for the purposes of protecting such a natural habitat or species.

• (5) In this regulation, “the national site network” means such sites as—

• (a) immediately before exit day formed part of Natura 2000, or

• (b) at any time on or after exit day are a relevant site.

Control of activities under licence

7

• (1) Where the Secretary of State is satisfied that anything done, being done or proposed to be done pursuant to a Petroleum Act licence, consent, authorisation or approval—

• (a) has had, is having, or is likely to have an adverse effect on the integrity of a relevant site; or

• (b) has caused, is causing, or is likely to cause deterioriation of natural habitats or the habitats of species in such a site or disturbance of species for which that site may be or has been designated or classified pursuant to either of the Directives, in so far as such disturbance could be significant in relation to the objectives of the Habitats Directive; and

• (c) steps can be taken to avoid, reverse, reduce or eliminate that effect, deterioration or disturbance,

he shall, subject to paragraphs (3), (4), (5) and (6) below, give a direction in writing requiring the person to whom it is addressed to take such steps or refrain from taking such steps as may be specified in the direction.

• (2) Without prejudice to the generality of paragraph (1) above, a direction given pursuant to this regulation may require within such period as may be specified in the direction—

• (a) the submission to the Secretary of State for his approval of a plan of the steps to be taken;

• (b) the carrying out of a plan of the kind referred to in sub-paragraph (a) above which has been approved by the Secretary of State;

• (c) the installation on a fixed or floating structure used in connection with offshore oil and gas activities of such equipment as may be specified in the direction; or

• (d) the carrying out of a modification of such a structure or the manner in which it is operated.

• (3) Prior to any direction being given pursuant to this regulation the Secretary of State shall consult the appropriate nature conservation body as to the steps to be specified in the direction.

• (4) Any direction given pursuant to this regulation may revoke or modify the terms and conditions of a consent, authorisation or approval.

• (5) Any direction given pursuant to this regulation shall be in writing and shall not have effect unless it has been served on the person to whom it is addressed.

• (6) Subject to paragraph (7) below, the Secretary of State shall not give a direction to any person pursuant to this regulation unless—

• (a) he has served on that person a copy of a draft of the direction that he is proposing to give;

• (b) that person has been afforded a reasonable opportunity of making representations regarding the content of the proposed direction; and

• (c) the Secretary of State has taken into account any representations made by that person.

• (7) Paragraph (6) above shall not apply in a case of urgency where the Secretary of State is of the opinion that the giving of a direction is necessary for the purposes set out in paragraph (1) above or (9) below.

• (8) A direction given pursuant to this regulation may be modified or revoked by a further direction given by the Secretary of State.

• (9) A direction shall be given under this regulation in respect of an area which is not a relevant site, but as to which the Secretary of State, having consulted the appropriate nature conservation body, is of the opinion that it would be likely to be classified as a special protection area under any of the retained transposing regulations where the Secretary of State is satisfied that anything done, being done or proposed to be done pursuant to a Petroleum Act licence, consent, authorisation or approval—

• (a) has had, is having, or is likely to have an adverse effect on the integrity of that area; or

• (b) has caused, is causing, or is likely to cause pollution or deterioration of natural habitats or disturbance of species for which that site is likely to be classified in so far as such disturbance could be significant in relation to the objectives of Article 4 of the Wild Birds Directive; and

• (c) steps can be taken to avoid, reverse, reduce or eliminate that effect, pollution, deterioration or disturbance.

Review of directions given by the Secretary of State

8

• (1) Subject to paragraph (2) below, where a direction pursuant to regulation 7 above has been served on a person by the Secretary of State, the Secretary of State shall review the appropriateness of the direction if requested to do so by that person.

• (2) The Secretary of State shall only be bound to carry out a review pursuant to a request of the kind referred to in paragraph (1) above, where, in the case of the first request to review it, that request is made no earlier than the first anniversary of the giving of the direction and in relation to any subsequent request, the period of one year has elapsed since a request was last made.

• (3) Where, having carried out a review of a direction pursuant to paragraph (1) above, the Secretary of State is satisfied that the direction is no longer appropriate, he shall modify or revoke it.

• (4) The Secretary of State shall give notice in writing to the applicant of any decision made under this regulation.

Appeal to High Court, High Court of Northern Ireland or Court of Session

9

• (1) Subject to paragraph (6) below, any person aggrieved by a direction given to him pursuant to regulation 7 above (or by any decision in relation to that direction) may appeal to the court.

• (2) Subject to paragraph (4) below, the expression “the court” means—

• (a) in respect of a direction or decision relating to the English area, the High Court;