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Nature Conservation (Scotland) Act 2004

Status:

This is the original version (as it was originally enacted).

Part 1Biodiversity

1Duty to further the conservation of biodiversity

(1)It is the duty of every public body and office-holder, in exercising any functions, to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions.

(2)In complying with the duty imposed by subsection (1) a body or office-holder must have regard to—

(a)any strategy designated under section 2(1), and

(b)the United Nations Environmental Programme Convention on Biological Diversity of 5 June 1992 as amended from time to time (or any United Nations Convention replacing that Convention).

2Scottish Biodiversity Strategy

(1)The Scottish Ministers must designate as the Scottish Biodiversity Strategy one or more strategies for the conservation of biodiversity (whether prepared by them or by one or more other persons).

(2)The Scottish Ministers must publish any strategy so designated in such manner (including on the internet or by other electronic means) as they think fit.

(3)A strategy so designated may include different provision for different cases or types of case.

(4)Within one year of a strategy being so designated, the Scottish Ministers must publish, in such manner (including on the internet or by other electronic means) as they think fit, lists of—

(a)species of flora and fauna, and

(b)habitats,

considered by the Scottish Ministers to be of principal importance for the purpose mentioned in section 1(1).

(5)The Scottish Ministers may from time to time review any lists published under subsection (4).

(6)Where, following such a review, the Scottish Ministers consider that any such lists should be revised they must publish revised lists under that subsection.

(7)The Scottish Ministers must, within 3 years of the date on which—

(a)they first designate a Scottish Biodiversity Strategy, or

(b)a report was last laid under this subsection,

lay a report before the Scottish Parliament regarding the implementation of the strategy.

Part 2Conservation and enhancement of natural features

Chapter 1Sites of special scientific interest

Notification of sites of special scientific interest

3Duty to give notification of sites of special scientific interest

(1)Scottish Natural Heritage (“SNH”) must, where it considers that any land is of special interest by reason of any of its natural features, notify that fact to the persons mentioned in section 48(2) (“the interested parties”).

(2)References in this Act to a “natural feature” of land are references to any of its flora or fauna or geological or geomorphological features.

(3)In determining for the purposes of subsection (1) whether any land is of special interest SNH must have regard to—

(a)the extent to which giving notification under that subsection in relation to the land would contribute towards the development of a series of sites of special scientific interest in Scotland representative of the diversity and geographic range of—

(i)Scotland’s natural features,

(ii)the natural features of Great Britain,

(iii)the natural features of the member States, and

(b)any guidance issued or approved under subsection (1) of section 54 so far as containing information of the description referred to in subsection (2)(a) of that section.

(4)A notification under subsection (1) must be accompanied by—

(a)a document which—

(i)describes the land to which the notification relates,

(ii)specifies the natural feature by reason of which SNH considers the land to be of special interest,

(iii)specifies acts or omissions which appear to SNH to be likely to damage that natural feature, and

(iv)contains such other information as SNH thinks fit, and

(b)a map on which the land is delineated.

(5)The notification, document and map referred to in subsection (4) are in this Act together referred to, in relation to the land in question, as the “SSSI notification”.

(6)An SSSI notification has effect from the date on which it is given; and the land in question is, until the notification ceases to have effect, to be known as a “site of special scientific interest”.

(7)Each act or omission specified in an SSSI notification by virtue of subsection (4)(a)(iii) is, in relation to the site of special scientific interest, in this Act referred to as an “operation requiring consent”.

4Site management statements

(1)An SSSI notification must be accompanied by a site management statement.

(2)A site management statement is a statement prepared by SNH which—

(a)provides guidance to owners and occupiers of land within a site of special scientific interest as to how the natural feature specified in the SSSI notification should be conserved or enhanced, and

(b)contains such other information in relation to the site of special scientific interest as SNH thinks fit.

(3)That information may include information which promotes understanding and enjoyment by the public of the natural feature specified in the SSSI notification.

(4)SNH may, at any time during which an SSSI notification has effect—

(a)on the request of any owner or occupier of land within the site of special scientific interest, or

(b)of its own accord,

review and, if it thinks fit, revise the site management statement.

(5)SNH must provide a copy of any statement so revised to every owner and occupier of land within the site of special scientific interest.

5Enlargement of sites of special scientific interest

(1)Where SNH considers that if land (“extra land”) which is contiguous to or which it considers to be otherwise associated with a site of special scientific interest were combined with the site, the combined land would be of special interest by reason of any of its natural features, it may notify that fact to the persons who are the interested parties in relation to the extra land.

(2)Subsection (3) of section 3 applies for the purposes of subsection (1) of this section as it applies for the purposes of subsection (1) of that section.

(3)Sections 3(4) and 4(1) and (2) apply in relation to a notification of extra land under subsection (1) of this section as they apply to a notification under section 3(1), but as if—

(a)in section 3(4)(a)(ii), the reference to the land were a reference to the combined land,

(b)in section 4(2), the references to a site of special scientific interest were references to the combined land.

(4)Representations under schedule 1 with respect to a notification under subsection (1) are not competent so far as they relate to the original SSSI notification.

6Review of operations requiring consent

(1)SNH—

(a)must, on the request of any owner or occupier of land within a site of special scientific interest,

(b)may when it thinks fit,

review the operations requiring consent specified in an SSSI notification.

(2)SNH must not carry out—

(a)the first such review within 6 years of the date on which the SSSI notification was given,

(b)any subsequent such review within 6 years of the previous review,

except where the review is carried out under subsection (1)(b) and SNH has obtained the agreement of every owner and occupier of land within the site of special scientific interest.

(3)Such agreement is obtained if SNH gives notice of a proposed review to every owner and occupier of land within the site of special scientific interest and—

(a)every such person consents to SNH carrying out the review, or

(b)no reasonable objection by any such person to the carrying out of the review is received by SNH within 28 days of the date on which the notice was given.

(4)SNH may, in carrying out a review of operations requiring consent, also review any consents to carry out the operations given on applications under section 16(2).

(5)If, on completion of a review, SNH is of the opinion that the SSSI notification should be amended by—

(a)adding to the operations requiring consent specified in it,

(b)modifying the description of any operation requiring consent so specified, or

(c)removing any operation requiring consent so specified from it,

SNH must amend the SSSI notification by giving notification of the amendment to every owner and occupier of land within the site of special scientific interest.

7Addition or modification of operations requiring consent: urgent situations

(1)Where SNH considers that a person is carrying out, or intends to carry out, an operation (other than an operation requiring consent) which it considers is damaging or is likely to damage any natural feature specified in an SSSI notification and that the situation is one of urgency, SNH may, with the consent of the Scottish Ministers, amend the SSSI notification by—

(a)adding to the operations requiring consent specified in it,

(b)modifying the description of any operation requiring consent so specified.

(2)An application to the Scottish Ministers for their consent under subsection (1) must—

(a)set out SNH’s reasons for considering that the proposed amendment should be made and that the situation is one of urgency, and

(b)contain such other information relating to the proposed amendment as the Scottish Ministers may specify.

(3)If the Scottish Ministers give their consent under subsection (1), SNH must amend the SSSI notification by giving notification of the amendment and of the consent—

(a)to every owner and occupier of land within the site of special scientific interest, and

(b)where the person whom SNH considers is carrying out or is likely to carry out the operation is not given notice under paragraph (a), to that person.

8Variation of SSSI notifications

(1)SNH may, at any time after it has given notice under paragraph 10 of schedule 1 of a decision to confirm an SSSI notification, vary the matters included in the notification by virtue of section 3(4)(a)(i), (ii) and (iv) (whether by adding to them, changing them or removing matter from them) by giving notification to the interested parties.

(2)The area of the land to which the SSSI notification relates cannot be varied under this section.

9Denotification of sites of special scientific interest

(1)SNH may, where it considers that all or any part of a site of special scientific interest is no longer of special interest by reason of the natural feature specified in the SSSI notification, give notification to the persons set out in subsection (2) of its intention to revoke the SSSI notification or, as the case may be, modify it so as to disapply its effect to the part of the site in question.

(2)Those persons are the interested parties in relation to the site or, as the case may be, the part of the site in question.

(3)In determining for the purposes of subsection (1) whether all or any part of a site of special scientific interest is no longer of special interest, SNH must have regard to—

(a)the extent to which the SSSI notification continues to contribute towards the development of a series of sites of special scientific interest in Scotland representative of the diversity and geographic range of—

(i)Scotland’s natural features,

(ii)the natural features of Great Britain,

(iii)the natural features of the member States, and

(b)any guidance issued or approved under subsection (1) of section 54 so far as containing information of the description referred to in subsection (2)(a) of that section.

(4)A notification under subsection (1) must be accompanied by—

(a)a document which—

(i)describes the site of special scientific interest or, as the case may be, the part in question, and

(ii)explains why SNH considers the site of special scientific interest or part no longer to be of special interest by reason of the natural feature specified in the SSSI notification, and

(b)a map on which the site of special scientific interest or part is delineated.

10Notifications relating to sites of special scientific interest: procedure

Schedule 1 sets out procedure relating to notifications given under sections 3(1), 5(1) and 9(1).

11Effect of SSSI notification

(1)From the date when SNH gives—

(a)notice under paragraph 10 of schedule 1 of a decision to confirm an SSSI notification with modifications,

(b)notification under section 5(1), 6(5), 7(3) or 8(1) in relation to an SSSI notification,

(c)notice under paragraph 10 of schedule 1 of a decision to confirm a notification given under section 5(1) with modifications,

(d)notice under that paragraph of a decision to confirm a notification given under section 9(1) in relation to part only of the site of special scientific interest,

the SSSI notification has effect as amended by the modifications or, as the case may be, the notification given under section 5(1), 6(5), 7(3), 8(1) or 9(1).

(2)Where SNH gives notice under paragraph 10 of schedule 1 of a decision to withdraw a notification given under section 5(1), the SSSI notification to which the withdrawn notification relates has effect, from the date on which the notice under that paragraph is given, as if the withdrawn notification had never been given.

(3)An SSSI notification ceases to have effect on SNH giving notice under paragraph 10 of schedule 1 of a decision—

(a)to withdraw the SSSI notification, or

(b)to confirm a notification given under section 9(1) of its intention to revoke the SSSI notification.

Exercise of functions in relation to sites of special scientific interest

12Exercise of functions by public bodies etc.

(1)This section applies to the exercise by a public body or office-holder of any function on, or so far as affecting, any land which is or forms part of a site of special scientific interest.

(2)The body or office-holder must—

(a)consult SNH in relation to the exercise of the function,

(b)have regard to any advice given by SNH, and

(c)in exercising the function, take reasonable steps, so far as is consistent with the proper exercise of the functions of the body or office-holder, to—

(i)further the conservation and enhancement of the natural feature specified in the SSSI notification, and

(ii)maintain or enhance the representative nature of any series of sites of special scientific interest to which the SSSI notification contributes.

(3)This section is without prejudice to sections 13 to 15.

Operations affecting sites of special scientific interest

13Operations by public bodies etc.

(1)A public body or office-holder must not carry out any operation which is likely to damage any natural feature specified in an SSSI notification except—

(a)with the written consent of SNH given on an application under subsection (3),

(b)where subsection (1) of section 14 applies, or

(c)in accordance with subsection (2) of that section.

(2)Subsection (1) of this section applies whether or not the operation would take place on land within a site of special scientific interest.

(3)An application for SNH’s consent must specify—

(a)the nature of the operation,

(b)the proposed dates of commencement and completion, and

(c)the land on which it is proposed to carry out the operation.

(4)On an application under subsection (3) SNH may—

(a)give consent to the operation being carried out, whether or not subject to conditions, or

(b)refuse such consent.

(5)The conditions referred to in subsection (4)(a) may, in particular, provide—

(a)that, despite the terms of the application under subsection (3), the operation may be carried out—

(i)only in such manner as SNH may specify,

(ii)on part only of the land on which the public body or office-holder wishes to carry out the operation,

(b)that the operation may be carried out only for, or within, such period as SNH may specify.

(6)SNH must, in giving or refusing consent, provide the public body or office-holder with written advice in relation to the operation, including advice on minimising such damage as is referred to in subsection (1).

(7)SNH must give a public body or office-holder reasons for a decision under this section—

(a)to give consent subject to conditions,

(b)to refuse consent.

(8)SNH is, if it neither gives nor refuses consent within 28 days of the date of the application under subsection (3), to be treated as having refused consent.

14Operations by public bodies etc.: authorised operations

(1)SNH’s consent under section 13 is not required in relation to the carrying out of an operation of the type described in subsection (1) of that section—

(a)in respect of which permission has been given by a relevant regulatory authority in accordance with section 15,

(b)which is authorised by a planning permission granted on an application under Part III of the Town and Country Planning (Scotland) Act 1997 (c. 8),

(c)which is an emergency operation particulars of which (including details of the emergency) are notified to SNH as soon as practicable after the necessity for the operation becomes apparent,

(d)in accordance with the terms of a management agreement between SNH and the public body or office-holder carrying out the operation, or

(e)in accordance with any plan relating to the management of land which has been prepared by the public body or office-holder and approved in writing by SNH for the purposes of this section.

(2)A public body or office-holder may, if all the conditions set out in subsection (3) are satisfied, carry out an operation of the type described in section 13(1)—

(a)in respect of which SNH has refused consent, or

(b)in a case where SNH has given consent, otherwise than in accordance with any condition to which the consent is subject.

(3)Those conditions are—

(a)that the public body or office-holder has, more than 28 days after the date of the application under section 13(3), given notice to SNH of—

(i)the date (which must be at least 28 days after the date of the notice) on which it proposes to commence the operation, and

(ii)what (if anything) the body or office-holder has done, or proposes to do, in consequence of any written advice in relation to the operation which it has received, before the date of the notice, from SNH in pursuance of section 13(6),

(b)that the body or office-holder carries out the operation in such a way as to give rise to as little damage or disturbance as is reasonably practicable in all the circumstances to any natural feature specified in an SSSI notification (having had regard, in particular, to any such advice as is referred to in paragraph (a)(ii)),

(c)that in carrying out the operation, the body or office-holder complies with section 12(2)(c).

(4)Subsection (5) applies where—

(a)a public body or office-holder carries out an operation for which it would, but for subsection (1)(a) or (c) or (2), require SNH’s consent, and

(b)the operation damages any natural feature specified in an SSSI notification.

(5)Where this subsection applies the body or office-holder must—

(a)consult SNH as to the manner in which the natural feature should be restored to its former condition, and

(b)restore it, so far as is reasonably practicable, to that condition in accordance with any advice given by SNH in pursuance of paragraph (a).

15Consent by certain regulatory authorities

(1)This section applies where the permission of a relevant regulatory authority is needed before operations may be carried out.

(2)A reference in this Act to a relevant regulatory authority is reference to any person designated as such for the purposes of this Act by order made by the Scottish Ministers.

(3)Before deciding whether to permit the carrying out of an operation which is likely to damage any natural feature specified in an SSSI notification, the authority must notify SNH of the proposal to carry out the operation specifying—

(a)the nature of the operation,

(b)the proposed dates of commencement and completion, and

(c)the land on which it is proposed to carry out the operation.

(4)Subsection (3) applies whether or not the operation would take place on land within a site of special scientific interest.

(5)The authority must not decide whether to give its permission until the expiry of the period of 28 days beginning with the date of the notification to SNH unless SNH has notified the authority that it need not wait until then.

(6)The authority must have regard to any advice received from SNH—

(a)in deciding whether to give its permission, and

(b)if it does decide to do so, in deciding what (if any) conditions are to be attached to its permission.

(7)Subsection (8) applies where the authority does not follow any such advice which—

(a)advises it against permitting an operation, or

(b)advises it to attach certain conditions to a permission.

(8)Where this subsection applies—

(a)the permission given by the authority is subject to the conditions set out in subsection (10), and

(b)the authority must give notice in accordance with subsection (9) to SNH and the applicant for permission.

(9)A notice given under subsection (8)(b) must set out the permission given and its terms and must include a statement specifying—

(a)what the authority has done, or proposes to do, in consequence of the advice given by SNH,

(b)that in giving permission or, as the case may be, attaching conditions to the permission the authority has not followed advice received from SNH under subsection (6), and

(c)the conditions set out in subsection (10).

(10)The conditions referred to in subsections (8)(a) and (9)(c) are that—

(a)the permitted operation must not be commenced before the end of the period of 28 days beginning with the date on which notice under subsection (8)(b) is given, and

(b)the operation is carried out in such a way as to give rise to as little damage or disturbance as is reasonably practicable in all the circumstances to the natural feature referred to in subsection (3).

16Operations by owners or occupiers of sites of special scientific interest

(1)An owner or occupier of land within a site of special scientific interest must not carry out, or cause or permit to be carried out, an operation requiring consent on the land except—

(a)with the written consent of SNH given on an application under subsection (2), or

(b)where section 17(1) applies.

(2)An application for such consent must specify—

(a)the nature of the operation,

(b)the proposed dates of commencement and completion, and

(c)the land on which it is proposed to carry out the operation.

(3)On an application under subsection (2) SNH may—

(a)give consent to the operation being carried out, whether or not subject to conditions, or

(b)refuse such consent.

(4)The conditions referred to in subsection (3)(a) may, in particular, provide—

(a)that, despite the terms of the application under subsection (2), the operation may be carried out—

(i)only in such manner as SNH may specify,

(ii)on part only of the land on which the owner or occupier wishes the operation to be carried out,

(b)that the operation may be carried out only for, or within, such period as SNH may specify.

(5)SNH may, by giving notice to the owner or occupier to whom consent to carry out an operation has been given, modify or withdraw its consent—

(a)on completion of a review of it under section 6(4), or

(b)where SNH considers that the carrying out of the operation requiring consent in accordance with the consent will damage any natural feature specified in an SSSI notification in a manner not foreseen by SNH at the time it gave consent.

(6)Consent may not be modified or withdrawn under subsection (5)(b) without the agreement of the Scottish Ministers.

(7)A modification or withdrawal under subsection (5)(a) has effect from—

(a)the expiry of the time limit for appealing against it, or

(b)where an appeal is made, its withdrawal or final determination.

(8)A modification or withdrawal under subsection (5)(b) has effect on notice of it being given.

(9)Where, under this section—

(a)SNH—

(i)refuses to consent to an operation being carried out,

(ii)makes its consent subject to conditions, or

(iii)modifies or withdraws its consent, and

(b)it considers, having had regard to any guidance issued or approved under section 54(1) so far as relating to circumstances in which it should offer to enter into a management agreement, that, despite the decision referred to in paragraph (a), it should offer to enter into such an agreement with the applicant or, as the case may be, the person to whom the consent was given,

it must offer to enter into such an agreement on such terms and conditions (including provision for payment to the applicant by SNH) as, having regard to the guidance, it thinks fit.

(10)SNH must give an applicant reasons for a decision by virtue of this section—

(a)to make its consent subject to conditions,

(b)to refuse consent,

(c)to modify or withdraw its consent,

(d)where paragraph (a) of subsection (9) applies, not to offer to enter into a management agreement in pursuance of that subsection.

17Operations by owners or occupiers of sites of special scientific interest: authorised operations

(1)SNH’s consent under section 16 is not required in relation to the carrying out of an operation requiring consent—

(a)in respect of which permission has been given by a relevant regulatory authority in accordance with section 15,

(b)which is authorised by a planning permission granted on an application under Part III of the Town and Country Planning (Scotland) Act 1997 (c. 8),

(c)which is an emergency operation particulars of which (including details of the emergency) are notified to SNH as soon as practicable after the necessity for the operation becomes apparent,

(d)in accordance with the terms of a management agreement between SNH and the person carrying out the operation or causing or permitting it to be carried out, or

(e)which is carried out as required by a land management order.

(2)Subsection (3) applies where—

(a)an owner or occupier of land within a site of special scientific interest carries out, or causes or permits to be carried out, an operation which would, but for subsection (1)(a) or (c), require SNH’s consent, and

(b)the operation damages any natural feature specified in an SSSI notification.

(3)Where this subsection applies the owner or occupier must—

(a)consult SNH as to the manner in which the natural feature should be restored to its former condition, and

(b)restore it, so far as is reasonably practicable, to that condition in accordance with any advice given by SNH in pursuance of paragraph (a).

(4)Section 16 and this section do not apply to an owner or occupier being a public body or office-holder acting in the exercise of its functions.

18Appeals in connection with operations requiring consent

(1)An owner or occupier of land within a site of special scientific interest who is aggrieved—

(a)by a condition imposed under subsection (3)(a) of section 16,

(b)by a decision under subsection (3)(b) of that section to refuse consent,

(c)by a decision under subsection (5) of that section to modify or withdraw consent,

(d)by a decision, where paragraph (a) of subsection (9) of that section applies, not to enter into a management agreement in pursuance of that subsection,

(e)by the terms and conditions (including any provision for payment by SNH) on which SNH has offered to enter into a management agreement in pursuance of that subsection,

may appeal to the Scottish Land Court.

(2)An appeal under subsection (1) must be lodged not later than 28 days after the date on which SNH notified the appellant of the decision being appealed.

(3)If, within—

(a)the period of 4 months beginning on the date on which the owner or occupier seeking the consent made an application under section 16(2), or

(b)such longer period, beginning on that date, as may be agreed in writing between SNH and the owner or occupier,

SNH neither gives nor refuses the consent sought in the application, SNH is to be treated, for the purposes of this section, as having refused consent on the day on which the period expired and an appeal may be made and determined under this section accordingly.

(4)If, within—

(a)the period of 4 months beginning on the date on which SNH—

(i)refuses consent to an operation being carried out,

(ii)makes its consent subject to conditions, or

(iii)modifies or withdraws its consent, or

(b)such longer period, beginning on that date, as may be agreed in writing between SNH and the owner or occupier,

SNH has not offered to enter into a management agreement in pursuance of section 16(9), SNH is to be treated, for the purposes of this section, as having decided not to so offer on the day on which the period expired and an appeal may be made and determined under this section accordingly.

(5)The Scottish Land Court must determine an appeal made under subsection (1) on the merits rather than by way of review and may do so by—

(a)affirming the decision appealed against,

(b)where the appeal is against a refusal of consent, directing SNH to give consent,

(c)where the appeal is as to the conditions to which a consent is subject, quashing all or any of those terms or conditions,

(d)where the appeal is against a decision not to offer to enter into a management agreement, directing SNH to so offer,

(e)where the appeal is as to the terms and conditions of a management agreement, quashing all or any of those terms or conditions,

(f)making such other order as it thinks fit.

(6)The Scottish Land Court may direct SNH—

(a)where it determines an appeal under paragraph (b) or (c) of subsection (5), as to any conditions to which its consent to the carrying out of the operation requiring consent are to be subject,

(b)where it determines an appeal under paragraph (d) or (e) of that subsection, as to terms and conditions of the management agreement (including provision for payment by SNH) which it must offer to enter into.

Offences and byelaws

19Offences in relation to sites of special scientific interest

(1)Any person who intentionally or recklessly damages any natural feature specified in an SSSI notification is, subject to subsection (2), guilty of an offence.

(2)Any person who does anything which would, but for this subsection, amount to an offence under subsection (1) is not guilty of the offence if it is shown that—

(a)the act was the incidental result of a lawful operation,

(b)the person who carried out the lawful operation—

(i)took reasonable precautions for the purpose of avoiding carrying out the act, or

(ii)did not foresee, and could not reasonably have foreseen, that the act would be an incidental result of the carrying out of the lawful operation, and

(c)that person took such steps as were reasonably practicable in all the circumstances to minimise the damage caused.

(3)Any person who, without reasonable excuse—

(a)contravenes section 13(1) or 16(1), or

(b)fails to comply with section 14(5)(b) or 17(3)(b),

is guilty of an offence.

(4)Any person guilty of an offence under subsection (1) or (3) is liable—

(a)on summary conviction, to a fine not exceeding £40,000,

(b)on conviction on indictment, to a fine.

(5)It is not a defence in proceedings for an offence under subsection (3) of contravening section 13(1) or 16(1) that the carrying out of the operation did not damage any natural feature specified in an SSSI notification.

20Byelaws

(1)SNH may make byelaws for the protection of a site of special scientific interest.

(2)The following provisions of the National Parks and Access to the Countryside Act 1949 (c. 97) apply in relation to byelaws under subsection (1) as they apply in relation to byelaws under section 20 of that Act—

(a)subsections (2) and (3) of section 20 (reading references in those subsections to nature reserves as references to sites of special scientific interest), and

(b)sections 106 and 107.

Supplementary

21Advisory Committee on sites of special scientific interest

(1)There is to continue to be a committee (“the Advisory Committee”) with the advisory function relating to sites of special scientific interest conferred on it by this section.

(2)The convener and other members of the Advisory Committee are to be appointed by the Scottish Ministers, on such terms and conditions as they may determine, from among persons appearing to them to have scientific qualifications and experience in relation to flora or fauna or the geological or geomorphological features of land.

(3)Those terms and conditions must include arrangements for the payment by SNH of remuneration and allowances.

(4)A member of SNH, or of any committee appointed by it, may not be appointed to the Advisory Committee.

(5)The Scottish Ministers may, from time to time, give directions to the Advisory Committee as to its procedure.

(6)Subsection (8) applies where—

(a)any person with an interest in land which is a site of special scientific interest makes a representation to SNH in relation to—

(i)any reason specified in an SSSI notification, or notification under section 5(1), in pursuance of section 3(4)(a)(ii), or

(ii)any reason specified in a notification under subsection (1) of section 9 in pursuance of subsection (4)(a)(ii) of that section,

(b)that person does not agree to withdraw the representation, and

(c)the condition set out in subsection (7) is met.

(7)That condition is that the representation is made—

(a)before the expiry of the time limit for making representations in pursuance of paragraph 3(c) of schedule 1 with respect to the notification in question, or

(b)if that time limit has expired, not less than 10 years have elapsed from the date—

(i)on which the last such representation was made, or

(ii)where no such representation has been made previously, on which the notification in question was given.

(8)Where this subsection applies SNH must—

(a)refer the matter to the Advisory Committee,

(b)consider any advice given by the Advisory Committee on the matter, and

(c)take such action as it thinks fit in consequence of any such advice.

22SSSI register

(1)The Keeper of the Registers of Scotland (“the Keeper”) must keep a register containing—

(a)such information relating to SSSI notifications as may be required by regulations under subsection (3), and

(b)such information relating to—

(i)notifications given under section 5(1), 6(5), 7(3), 8(1) or 9(1),

(ii)notices given under paragraph 10 or 15 of schedule 1,

as may be so required.

(2)The Keeper must ensure that the register is, at all reasonable times, available for public inspection.

(3)The Scottish Ministers may by regulations make provision—

(a)as to the form and manner in which the register is to be kept,

(b)as to the information which the register is to contain,

(c)as to amendment of the register,

(d)requiring SNH to send to the Keeper for registration in the register, in such form and manner as the regulations may specify, copies of the notifications and notices specified in subsection (1)(a) and (b) and such other documents and information as the regulations may specify,

(e)as to the provision, on payment of such fee (if any) as may be so specified, of reports in relation to the register and copies and extracts of information in the register and as to the evidential value of such copies and extracts.

Chapter 2Nature conservation orders

23Nature conservation orders

(1)Where the Scottish Ministers consider that, for either or both of the purposes specified in subsection (2), the carrying out of an operation on land of a description specified in subsection (3) should be wholly or partly prohibited, they may make an order (a “nature conservation order”)—

(a)specifying the operation,

(b)specifying the circumstances (if any) in which the carrying out of the operation is not prohibited, and

(c)prohibiting any person from carrying it out on such land other than in those circumstances.

(2)The purposes referred to in subsection (1) are—

(a)the conservation of any natural feature by reason of which land (whether or not the land in question) is a site of special scientific interest or, as the case may be, is otherwise considered by the Scottish Ministers to be of special interest,

(b)compliance with an international obligation.

(3)The land referred to in subsection (1) is—

(a)land which is, or forms part of, a site of special scientific interest,

(b)land which is not, or does not form part of, a site of special scientific interest but is, in the opinion of the Scottish Ministers, of special interest by reason of any of its natural features,

(c)land which is contiguous to, or which the Scottish Ministers consider to be otherwise associated with, land of the type described in paragraph (a) or (b), or

(d)any combination of land of the types described in paragraphs (a) to (c).

(4)The circumstances which may be specified in a nature conservation order by virtue of subsection (1)(b) include, for example, the carrying out of an operation—

(a)at a particular time,

(b)in a particular manner, or

(c)in accordance with particular conditions.

(5)Each operation specified in a nature conservation order is, so far as prohibited by the order in relation to the land to which the order relates, referred to in this Act as a “prohibited operation”.

(6)A nature conservation order has effect on being made.

(7)A nature conservation order ceases to have effect—

(a)on the date on which a decision not to confirm it is made under paragraph 5 of schedule 2,

(b)if no decision is made under that paragraph within the period mentioned in sub-paragraph (a) of that paragraph or that period as extended under paragraph 12 of that schedule, at the end of that period, or

(c)on the date on which an order under section 24(1) revoking it is made.

24Amendment or revocation of nature conservation orders

(1)The Scottish Ministers may by order amend or revoke a nature conservation order (and an order under this subsection is, in this Act, referred to as an amending order or, as the case may be, a revoking order).

(2)An amending order may—

(a)add to the prohibited operations specified in a nature conservation order, modify the description of any prohibited operation so specified or remove any prohibited operation so specified from the order,

(b)amend any circumstances specified in a nature conservation order in relation to an operation by virtue of section 23(1)(b),

(c)extend or restrict the area of land to which a nature conservation order relates.

(3)An amending order has effect on being made.

(4)A nature conservation order which is amended by an amending order has effect, for so long as the amending order has effect, as amended.

(5)A revoking order may revoke a nature conservation order in relation to part only of the land to which the nature conservation order relates.

(6)A revoking order has effect on being made.

25Nature conservation orders and related orders: procedure

Schedule 2 sets out procedure relating to nature conservation orders, amending orders and revoking orders.

26Review of nature conservation orders

(1)The Scottish Ministers may, when they think fit, review a nature conservation order for the purposes of determining whether they should make an amending order or a revoking order in relation to it.

(2)The Scottish Ministers must carry out—

(a)the first such review within 6 years of the date on which the nature conservation order was made,

(b)any subsequent such review within 6 years of the previous review.

27Offences in relation to nature conservation orders

(1)Any person who carries out, or causes or permits to be carried out, a prohibited operation on any land to which a nature conservation order relates is guilty of an offence and liable—

(a)on summary conviction, to a fine not exceeding £40,000,

(b)on conviction on indictment, to a fine.

(2)It is not a defence in proceedings for an offence under subsection (1) that the carrying out of the prohibited operation did not damage any natural feature of the land to which the nature conservation order relates.

28Reports

A report submitted by SNH under section 10(2) (annual report) of the Natural Heritage (Scotland) Act 1991 (c. 28) for any year must set out particulars of any land in relation to which a nature conservation order, amending order or revoking order has come into effect during that year.

Chapter 3Land management orders

29Proposals for land management orders

(1)This section applies to—

(a)land which is, or forms part of, a site of special scientific interest,

(b)land which is contiguous to, or which SNH considers to be otherwise associated with, a site of special scientific interest,

(c)any combination of land of the type described in paragraphs (a) and (b).

(2)Where—

(a)any of subsections (3) to (5) applies, and

(b)SNH considers that an order under section 30(1) (a “land management order”) in relation to the land is necessary or expedient for the purpose of conserving, restoring or otherwise enhancing any natural feature specified in an SSSI notification,

SNH may propose to the Scottish Ministers that they make a land management order.

(3)This subsection applies where—

(a)SNH has offered to enter into a management agreement in relation to land to which this section applies for the purpose specified in subsection (2)(b), and

(b)the offeree has refused or failed to enter into the agreement.

(4)This subsection applies where a person fails to comply with a management agreement entered into with SNH, for the purpose specified in subsection (2)(b), in relation to land to which this section applies.

(5)This subsection applies where SNH has not, by reason of not being aware of the name or address of any owner or occupier of land to which this section applies, been able to offer to enter into a management agreement in relation to the land.

(6)Subsection (5) does not apply unless—

(a)SNH has given notice in accordance with section 48(10) stating that it wishes to offer to enter into a management agreement in relation to the land, and

(b)28 days have passed since the notice was given.

(7)A proposal under subsection (2) must—

(a)describe the land to which it relates in a manner which would be sufficient to enable a document relating to the land to be recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland,

(b)be accompanied by a map on which the land is delineated,

(c)describe the natural feature in question,

(d)explain why SNH offered to, or wishes to offer to, enter into a management agreement in relation to the land or, as the case may be, specify the failure to comply with a management agreement which has been entered into,

(e)specify—

(i)any operations (including any operations requiring consent) which should be carried out on the land for the purpose of conserving, restoring or otherwise enhancing that natural feature,

(ii)the persons who should carry out the operations, and

(iii)how and when the operations should be carried out,

(f)state—

(i)the costs which the persons referred to in paragraph (e)(ii) are likely to incur by so doing, and

(ii)the amounts which SNH should pay to those persons in respect of those costs, and

(g)specify any operations which should not be carried out on the land.

30Power to make land management orders

(1)The Scottish Ministers must, within 3 months of the expiry of the period during which representations on a proposal for a land management order may be made in pursuance of paragraph 3(c) of schedule 3, after considering the matters specified in subsection (2)—

(a)make a land management order in the manner which has been proposed,

(b)make such other land management order as the Scottish Ministers think fit in relation to the land, or any part of the land, to which the proposal relates, or

(c)refuse to make a land management order in relation to that land or any part of it.

(2)Those matters are—

(a)the proposal under section 29(2) and the accompanying map,

(b)any representations made to them in pursuance of paragraph 3(c) of schedule 3, and

(c)any information provided to them in pursuance of paragraph 6 of that schedule in relation to the proposal.

31Content of land management orders

(1)A land management order must—

(a)describe the land to which the order relates in a manner which would be sufficient to enable the order to be recorded in the General Register of Sasines or, as the case may be, registered in the Land Register of Scotland,

(b)be accompanied by a map on which the land is delineated,

(c)describe the natural feature which is to be conserved, restored or otherwise enhanced in pursuance of the order,

(d)specify—

(i)the operations which are to be carried out on the land for the purpose of conserving, restoring or otherwise enhancing that natural feature,

(ii)the persons who are to carry out those operations, and

(iii)how and when those operations are to be carried out,

(e)specify any operations which must not be carried out on the land,

(f)specify the date on which the order is to come into effect and the period for which it is to have effect, and

(g)set out the circumstances in which an appeal may be made under section 34(1) against the decision to make the order.

(2)Any operation specified in a land management order by virtue of subsection (1)(e) is, in relation to the land to which the order relates, referred to in this Act as an “excluded operation”.

(3)A land management order may provide for the making of payments by SNH to any person in respect of reasonable costs incurred by the person in carrying out an operation specified in the order by virtue of subsection (1)(d)(i).

32Review of land management orders

(1)The Scottish Ministers may, when they think fit, review a land management order for the purposes of determining whether they should make an order amending or revoking it.

(2)The Scottish Ministers must carry out—

(a)the first such review within 6 years of the date on which the land management order was made,

(b)any subsequent such review within 6 years of the previous review.

(3)If, on completion of a review, the Scottish Ministers decide that the land management order should be amended or revoked they may make an order to that effect.

33Land management orders and related orders: procedure

Schedule 3 sets out procedure relating to land management orders and orders under section 32(3).

34Appeals in connection with land management orders and related orders

(1)Any owner or occupier of land to which a land management order relates who is aggrieved by—

(a)a decision of the Scottish Ministers to make a land management order or an order under section 32(3), or

(b)the terms or conditions of such an order,

may appeal to the Scottish Land Court.

(2)An appeal under subsection (1) must be lodged not later than 28 days after the date on which the Scottish Ministers gave notice to the appellant of the decision being appealed.

(3)The Scottish Land Court must determine an appeal under subsection (1) on the merits rather than by way of review and may do so by—

(a)affirming the order in question,

(b)directing the Scottish Ministers to amend the order in such manner as the Court may specify,

(c)directing the Scottish Ministers to revoke the order,

(d)making such other order as it thinks fit.

35Effect of land management orders

(1)A land management order has effect from—

(a)the expiry of the time limit for appealing against the decision to make the land management order, or

(b)where such an appeal is made, its withdrawal or final determination.

(2)A land management order ceases to have effect—

(a)on the expiry of the time limit for appealing against the decision to make an order under section 32(3) revoking the land management order, or

(b)where such an appeal is made, on its withdrawal or final determination.

(3)A land management order has effect as amended by an order under section 32(3)—

(a)from the expiry of the time limit for appealing against the decision to make the order under that section, or

(b)where such an appeal is made, from its withdrawal or final determination.

36Offences in relation to land management orders

(1)Any person who, without reasonable excuse, fails to carry out, in the manner required by a land management order, an operation which the person is required by the order to carry out is guilty of an offence.

(2)Any person who, without reasonable excuse, carries out, or causes or permits to be carried out, an excluded operation is guilty of an offence.

(3)Any person guilty of an offence under subsection (1) or (2) is liable—

(a)on summary conviction, to a fine not exceeding £40,000,

(b)on conviction on indictment, to a fine.

37Enforcement of land management orders

(1)Subsection (2) applies where SNH considers—

(a)that any operation required to be carried out by a land management order has not been carried out within the period or by the date specified in it, or

(b)that any such operation has been carried out otherwise than in the manner so specified.

(2)Where this subsection applies SNH—

(a)is not required to make any payment (and may recover any payments made) in pursuance of the land management order in relation to the operation in question, and

(b)may—

(i)carry out the operation, or carry out such further work as is necessary to ensure that it is carried out, in the manner so specified, and

(ii)recover from the person whom the land management order required to carry out the operation any additional expenses reasonably incurred by it in doing so.

(3)The reference in subsection (2) to additional expenses incurred by SNH in carrying out an operation or further works is a reference to expenses incurred by SNH in so doing less the amount which SNH would, if that subsection had not applied, be required to pay in relation to the carrying out of the operation.

Chapter 4General and supplementary

38Ramsar sites

(1)Where a wetland situated in Scotland is designated under paragraph 1 of article 2 of the Ramsar Convention for inclusion in the list of wetlands of international importance referred to in that article, the Scottish Ministers must give SNH notice of the designation.

(2)SNH must, on receipt of such a notice, give notice of the designation to—

(a)every owner and occupier of the wetland or any part of it,

(b)the planning authority for the district in which the wetland, or any part of it, is situated,

(c)where the wetland, or any part of it, is situated in a National Park and the National Park authority for the National Park is not notified under paragraph (b), the National Park authority,

(d)every statutory undertaker which SNH considers may carry out operations which may affect the wetland or any part of it, and

(e)every relevant regulatory authority which SNH considers likely to have functions which relate to the wetland or any part of it.

(3)The Ramsar Convention is the Convention on Wetlands of International Importance especially as Waterfowl Habitat signed at Ramsar on 2nd February 1971, as amended by—

(a)the Protocol known as the Paris Protocol done at Paris on 3rd December 1982,

(b)the amendments known as the Regina Amendments adopted at the Extraordinary Conference of the Contracting Parties held at Regina, Saskatchewan, Canada, between 28th May and 3rd June 1987, and

(c)any further amendments coming into force from time to time,

and the reference in subsection (1) to paragraph 1 of article 2 is, if necessary in consequence of any such further amendment or the coming into force of any instrument replacing that Convention, to be taken as referring to the appropriate successor provision.

39Acquisition of land by SNH

(1)SNH may—

(a)acquire by agreement,

(b)with the authorisation of the Scottish Ministers, acquire compulsorily,

all or any part of land of a description specified in subsection (2).

(2)The land referred to in subsection (1) is—

(a)land which is a site of special scientific interest,

(b)any other land to which a nature conservation order or land management order applies,

(c)any other land which is contiguous to, or which SNH considers to be otherwise associated with, land of the type described in paragraph (a) or (b).

(3)SNH may acquire land under subsection (1)(b) only where it is necessary to do so for the purpose of securing the conservation, restoration or other enhancement of any protected natural feature.

(4)The power to acquire land under this section includes power to acquire a servitude or other right in or over land by the creation of a new right.

(5)The Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (c. 42) applies in relation to an acquisition under subsection (1)(b) as if—

(a)this section were contained in an Act in force immediately before the commencement of that Act,

(b)references in that Act to a local authority were references to SNH.

(6)SNH may manage land acquired under this section.

(7)If SNH disposes of land acquired under subsection (1)(b), or of any interest in it, it must do so on terms designed to achieve the purpose for which the land was acquired.

40Restoration orders

(1)Where—

(a)a person is convicted of an offence under section 19(1), or

(b)the operation in respect of which a person is convicted of an offence under section 19(3), 27(1) or 36(2) has damaged any protected natural feature,

the court by which the person is convicted may, in addition to dealing with the person in any other way, by order require the person to carry out, within such period as may be specified in the order, such operations for the purpose of restoring, so far as is reasonably practicable, the protected natural feature to its former condition as may be so specified.

(2)Before making an order under subsection (1), the court must have regard to any representations by SNH as to the manner in which the aspect should be restored.

(3)At any time before an order under subsection (1) has been complied with, the court by which it was made may, on the application of the person against whom it was made, discharge or modify the order if it appears to the court that a change in circumstances has made compliance or full compliance with the order impracticable or unnecessary.

(4)If, within the period specified in an order under subsection (1), the person against whom the order was made fails, without reasonable excuse, to comply with it, the person is guilty of an offence and liable—

(a)on summary conviction, to a fine not exceeding £40,000,

(b)on conviction on indictment, to a fine.

(5)If, within the period specified in an order under subsection (1), any operations specified in the order have not been carried out in accordance with the order, SNH may—

(a)carry out those operations, and

(b)recover from the person against whom the order was made any expenses reasonably incurred by it in doing so.

(6)An order under subsection (1) is, for the purposes of any appeal or review, to be treated as a sentence.

41Signs etc.

(1)SNH may—

(a)put up, maintain or remove signs on any land, or

(b)take such other action as it considers appropriate,

for the purpose of providing information to the public in relation to any land to which an SSSI notification, nature conservation order or land management order relates or in respect of which byelaws have been made under section 20(1).

(2)Any person who damages or destroys—

(a)any sign put up by SNH in pursuance of subsection (1),

(b)any notice affixed by SNH or the Scottish Ministers to an object on land for the purposes of giving notification under or by virtue of this Part,

is guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.

42Change of owner or occupier

(1)This section applies where a person with an interest in land within a site of special scientific interest or to which a nature conservation order or land management order relates—

(a)disposes of the interest, or

(b)where the person is the owner of the land, becomes aware that it is occupied by an additional or a different occupier.

(2)The person with an interest in the land must, within the period of 28 days beginning with the date on which the person disposed of the interest or became aware of the change in occupation, send notices to SNH and—

(a)in the case of a disposal, to the person to whom the interest is disposed, or

(b)in the case of a change in occupation, to the additional or different occupier.

(3)A notice given under subsection (2) to SNH must specify the land concerned and—

(a)in the case of a disposal, specify the date on which the person disposed of the interest in the land and the name and address of the person to whom the person disposed of the interest,

(b)in the case of a change in occupation, the date, to the best of the owner’s knowledge, on which the change took place and, as far as the owner knows them, the name and address of the additional or different occupier.

(4)A notice given under subsection (2) to a person to whom the interest is disposed of or to an additional or different occupier must—

(a)specify the land concerned and state that an SSSI notification, nature conservation order or, as the case may be, land management order has effect in relation to the land, and

(b)where reasonably practicable, be accompanied by a copy of the relevant—

(i)SSSI notification (and any notification under section 5(1), 6(5), 7(3), 8(1) or 9(1), or notice under paragraph 10 of schedule 1, which amends the SSSI notification),

(ii)nature conservation order (and any amending order or revoking order which amends or partly revokes the nature conservation order), or

(iii)land management order (and any order under section 32(3) which amends or partly revokes the land management order),

as the case may be.

(5)For the purposes of this section, a person is treated as disposing of an interest in land if the person disposes of it by way of sale, exchange or lease, or by way of the creation of any servitude, right or privilege over that interest or by any other way except the grant of a standard security.

43Powers of investigation etc.: police

(1)A constable who suspects with reasonable cause that any person is committing or has committed an offence under this Part may, without warrant—

(a)stop and search that person if the constable suspects with reasonable cause that evidence of the commission of the offence is to be found on that person,

(b)search for, search or examine any thing which that person may then be using or may have used, or may have or have had in the person’s possession, if the constable suspects with reasonable cause that evidence of the commission of the offence is to be found in or on that thing,

(c)seize and detain for the purposes of proceedings under this Part any thing which may be evidence of the commission of the offence.

(2)A constable who suspects with reasonable cause that any person is committing or has committed an offence under this Part may, for the purpose of exercising the powers conferred by subsection (1), enter any land other than a dwelling or lockfast premises.

(3)If a sheriff or justice of the peace is satisfied, by evidence on oath, that there are reasonable grounds for suspecting that an offence under this Part has been committed and that evidence of the offence may be found on any premises, the sheriff or justice may grant a warrant authorising a constable to enter those premises, if necessary using reasonable force, and search them for the purposes of obtaining that evidence.

(4)A warrant under subsection (3) continues in force until the purpose for which the entry is required has been satisfied or, if earlier, the expiry of such period as the warrant may specify.

(5)A constable authorised by virtue of this section to enter any land must, if required to do so by the occupier or anyone acting on the occupier’s behalf, produce evidence of the constable’s authority.

(6)A constable who enters any land in the exercise of a power conferred by this section—

(a)may—

(i)be accompanied by any other persons, and

(ii)take any machinery, other equipment or materials on to the land,

for the purpose of assisting the constable in the exercise of that power,

(b)may take samples of any articles or substances found there and remove the samples from the land.

(7)A power specified in subsection (6)(a) or (b) which is exercisable under a warrant is subject to the terms of the warrant.

(8)A constable leaving any land which has been entered in exercise of a power conferred by subsection (2) or by a warrant under subsection (3), being either unoccupied land or land from which the occupier is temporarily absent, must leave it as effectively secured against unauthorised entry as the constable found it.

44Powers of entry: authorised persons

(1)Any person authorised in writing by SNH may, at any reasonable time, enter any land for any of the following purposes—

(a)to determine whether to give or confirm an SSSI notification or a notification under section 5(1), 6(5), 7(3), 8(1) or 9(1) in relation to the land,

(b)to assess the condition of any protected natural feature of the land,

(c)to determine whether or not to offer to enter into a management agreement in relation to the land or to ascertain the terms on which it should offer to enter into such an agreement,

(d)to ascertain whether a management agreement is being, or has been, complied with,

(e)to determine whether or not to formulate a proposal under section 29(2) for a land management order,

(f)to ascertain whether an offence under section 19(1) or (3), 27(1) or 36(1) or (2) or under byelaws made by virtue of section 20 is being, or has been, committed on or in relation to the land,

(g)to ascertain whether an operation required to be carried out by a land management order or an order under section 40(1) has been carried out in accordance with the order,

(h)to carry out operations in pursuance of section 37 or 40(5),

(i)to determine any question in relation to the acquisition of the land by agreement or compulsorily,

(j)to determine any question in relation to compensation under section 20(3) of the National Parks and Access to the Countryside Act 1949 (c. 97) as it applies in relation to byelaws made under section 20 of this Act,

(k)to put up, maintain or remove signs, or to do anything else, for the purposes of section 41,

(l)where SNH is not aware of the name or address of an owner or occupier of the land, to affix a notice to a conspicuous object on the land for the purposes of section 48(10).

(2)Any person authorised in writing by the Scottish Ministers may, at any reasonable time, enter any land for any of the following purposes—

(a)to determine whether a nature conservation order, or an amending order or revoking order, should be made in relation to the land,

(b)to determine whether a land management order, or an order under section 32(3) amending or revoking such an order, should be made in relation to the land,

(c)where the Scottish Ministers are not aware of the name or address of an owner or occupier of the land, to affix a notice to a conspicuous object on the land for the purposes of section 48(10).

(3)The powers conferred by subsections (1) and (2) to enter land for any purpose mentioned in those subsections include power to enter for the same purpose any land other than that referred to in the subsection in question.

(4)Nothing in this section authorises any person to enter a dwelling or lockfast premises.

(5)Any person who intentionally obstructs a person acting in the exercise of any power conferred by this section is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(6)Schedule 4 makes further provision about the exercise of the powers conferred by this section; and references in this section and that schedule to a power conferred by this section include references to such a power exercisable by virtue of a warrant under that schedule.

45SNH: power to enforce

(1)Compliance with sections 12(2) and 15 is enforceable by civil proceedings brought by SNH for interdict or for any other appropriate remedy.

(2)Where, on an application by SNH, the court is satisfied that any operation being, or proposed to be, carried out is damaging or is likely to damage—

(a)any protected natural feature, or

(b)any other natural feature of Scotland which is of national importance,

the court may make such order (whether for interdict or otherwise) as it considers appropriate.

(3)An application under subsection (2) may be made whether or not civil proceedings under subsection (1) would be competent.

(4)Subsections (1) and (2) do not prevent any other person who has a right to bring proceedings for compliance with the provisions specified in subsection (1) or, as the case may be, in relation to the matters referred to in subsection (2), from doing so.

(5)In this section “the court” means the Court of Session or the sheriff.

46Offences: penalties and time limits

(1)The court must, in determining the amount of any fine to be imposed on a person convicted of an offence under this Part, have regard in particular to any financial benefit which has accrued or is likely to accrue to the person in consequence of the offence.

(2)Summary proceedings for an offence under this Part may, subject to subsection (3), be brought within a period of 6 months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to the prosecutor’s knowledge.

(3)No such proceedings may be brought more than 3 years—

(a)after the commission of the offence, or

(b)in the case of a continuous contravention, after the last date on which the offence was committed.

(4)A certificate signed by or on behalf of the prosecutor and stating the date on which such evidence came to the prosecutor’s knowledge is conclusive evidence of that fact; and a certificate stating that matter and purporting to be so signed is to be treated as being so signed unless the contrary is proved.

47Offences by bodies corporate etc.

(1)Where an offence under this Part committed—

(a)by a body corporate, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—

(i)is a director, manager or secretary of the body corporate, or

(ii)purports to act in any such capacity,

(b)by a Scottish partnership, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—

(i)is a partner, or

(ii)purports to act in that capacity,

(c)by an unincorporated association other than a Scottish partnership, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—

(i)is concerned in the management or control of the association, or

(ii)purports to act in the capacity of a person so concerned,

the individual (as well as the body corporate, Scottish partnership or, as the case may be, unincorporated association) is guilty of the offence and is liable to be proceeded against and punished accordingly.

(2)Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with the member’s functions of management as if the member were a director of the body corporate.

(3)Any penalty imposed on a body corporate, Scottish partnership or, as the case may be, unincorporated association on conviction of an offence under this Part is to be recovered by civil diligence in accordance with section 221 of the Criminal Procedure (Scotland) Act 1995 (c. 46).

48Notices, applications etc.

(1)Any—

(a)notice, notification or consent given, or

(b)request for review, proposal or application (other than an application to a court) made,

under or for the purposes of this Part must be in writing.

(2)A reference in this Part to SNH or the Scottish Ministers giving notice or notification to the interested parties is a reference to giving notice or notification to—

(a)every owner and occupier of the land, or any part of it, to which the notice or notification relates,

(b)the Scottish Ministers or, as the case may be, SNH,

(c)every local authority in whose area the land, or any part of it, is situated,

(d)where the land, or any part of it, is situated in a National Park, the National Park authority for the National Park,

(e)where a planning authority for the district in which the land, or any part of it, is situated is not notified under paragraph (c) or (d), that planning authority,

(f)every community council (within the meaning of Part IV of the Local Government (Scotland) Act 1973 (c. 65)) in whose area the land, or any part of it, is situated,

(g)every statutory undertaker which the person giving the notice or notification considers may carry out operations which may affect the land or any part of it,

(h)every relevant regulatory authority which the person giving the notice or notification considers likely to have functions which relate to the land or any part of it,

(i)every community body which has registered an interest in the land, or in any part of it, under Part 2 of the Land Reform (Scotland) Act 2003 (asp 2),

(j)every other person appearing to the person giving the notice or notification to have an interest in the land or any part of it, and

(k)such other persons as the person giving the notice or notification thinks fit,

and the date on which the Scottish Ministers or, as the case may be, SNH receive a notice or notification given to the interested parties is to be treated as the date on which the notice or notification is given.

(3)The validity of a notice or notification given to the interested parties is not affected by failure to give the notice or notification to any of the persons specified in paragraphs (a) and (f) to (k) of subsection (2).

(4)But subsection (3) does not apply in relation to a failure to give notice or notification to an owner or occupier of land specified in subsection (2)(a) unless SNH has or, as the case may be, the Scottish Ministers have—

(a)taken all reasonable steps to identify the owners and occupiers of the land, or any part of it, to which the notice or notification relates, and

(b)given the notice or notification to each owner and occupier so identified.

(5)The Scottish Ministers may by order modify subsection (2) so as to—

(a)add or remove a type of person to or, as the case may be, from those referred to in that subsection, or

(b)amend any description of a type of person so referred to.

(6)Any reference in this Part to a notice or notification being given to a person is, unless subsection (10) applies, to be construed as a reference to its being—

(a)delivered to the person to whom it is to be given, or

(b)sent in a prepaid registered letter, or by the recorded delivery service, addressed—

(i)where that person is an incorporated company or body, to the secretary, clerk or chief executive of the company or body at its registered or principal office,

(ii)where that person is a public office-holder, to the office-holder at the office-holder’s principal office,

(iii)in any other case, to the person at that person’s usual or last known place of abode.

(7)Any reference in this Part to a request for review, a proposal or an application (other than an application to a court) being made, or a consent being given, is to be construed as a reference to its being—

(a)delivered or sent in the manner described in subsection (6), or

(b)transmitted to the person to whom it is being made or given in some other reasonable manner (including by electronic means).

(8)A request for review, proposal, application or consent which is transmitted by electronic means is to be treated as being in writing if it is received in a form which is legible and capable of being used for subsequent reference.

(9)Subsection (10) applies where—

(a)SNH is to give notice to the owners and occupiers of land in pursuance of section 29(6),

(b)any other notice or notification is to be given under this Part to the owners and occupiers of land and SNH is or, as the case may be, the Scottish Ministers are not aware of the name or address of any owner or occupier of the land.

(10)Where this subsection applies a copy of the notice or notification must be addressed to “The owners and any occupiers” of the land (describing it) and a copy of it must be affixed to some conspicuous object on the land (and so doing is to be treated as sufficient for the purposes of providing notice or notification to each owner or occupier whose name and address is unknown).

(11)Subsection (12) applies where, in giving to the interested parties—

(a)a notification under section 3(1), 5(1) or 9(1), or

(b)a notice under paragraph 3(a) of schedule 2,

SNH fails or, as the case may be, the Scottish Ministers fail to give the notification or notice to any interested party specified in subsection (2)(a).

(12)Where this subsection applies SNH or, as the case may be, the Scottish Ministers—

(a)must, if it or they become aware of the identity of, or are requested to do so by, any such interested party, provide—

(i)a copy of the notification or notice in question, and

(ii)such further information in relation to the notification or notice in question as it or they consider appropriate,

to the interested party, and

(b)must take such action as it or they think fit in consequence of any representation made by the interested party.

49Transitional arrangements

(1)Schedule 5 contains transitional and transitory provisions and savings consequential on this Part.

(2)This section and that schedule are without prejudice to sections 53(2)(a) and 56.

Part 3Protection of wildlife

50Protection of wildlife

Schedule 6 sets out amendments and repeals to the 1981 Act and to the Protection of Badgers Act 1992 (c. 51).

51Scottish Marine Wildlife Watching Code

(1)SNH must prepare and issue a code, to be known as the Scottish Marine Wildlife Watching Code, setting out recommendations, advice and information relating to commercial and leisure activities involving the watching of marine wildlife.

(2)The Code may, in particular, contain information on—

(a)activities which are likely to disturb marine wildlife,

(b)circumstances in which marine wildlife may be approached, and

(c)the manner in which marine wildlife may best be viewed with minimum disturbance.

(3)SNH must review the Code from time to time and may, following such a review, revise it.

(4)SNH must—

(a)before preparing the Code, and

(b)when reviewing it,

consult such persons appearing to them to have an interest in marine wildlife watching and such other persons as it thinks fit.

(5)SNH must—

(a)publish the Code and any revisions to it in such manner (including on the internet or by other electronic means) as it thinks fit, and

(b)promote awareness and understanding of the Code and any revisions to it.

Part 4Scottish Fossil Code

52Scottish Fossil Code

(1)SNH must prepare and issue a code, to be known as the Scottish Fossil Code, setting out recommendations, advice and information relating to fossils.

(2)The Code may, in particular, contain information on—

(a)activities which are likely to damage fossils,

(b)circumstances in which fossils should not be removed from land,

(c)the manner in which fossils removed from land should be kept or otherwise treated.

(3)SNH must review the Code from time to time and may, following such a review, revise it.

(4)SNH must—

(a)before preparing the Code, and

(b)when reviewing it,

consult such persons appearing to them to have an interest in the geological features of land and such other persons as it thinks fit.

(5)SNH must—

(a)publish the Code and any revisions to it in such manner (including on the internet or by other electronic means) as it thinks fit, and

(b)promote awareness and understanding of the Code and any revisions to it.

Part 5General

53Orders and regulations: general

(1)Any power of the Scottish Ministers under this Act to make orders (except nature conservation orders, amending orders, revoking orders, land management orders and orders under section 32(3) and paragraph 11(3) of schedule 5) or regulations is exercisable by statutory instrument.

(2)Any such power includes power to make—

(a)such incidental, supplemental, consequential, transitional, transitory or saving provision as the Scottish Ministers think necessary or expedient,

(b)different provision for different purposes and different areas.

(3)An order under section 56 may modify any enactment, instrument or document.

(4)A statutory instrument containing an order or regulations under this Act (except sections 56 (where subsection (5) applies) and 59) is subject to annulment in pursuance of a resolution of the Scottish Parliament.

(5)No order under section 56 containing provisions which add to, replace or omit any part of the text of an Act is to be made unless a draft of the statutory instrument containing the order has been laid before, and approved by resolution of, the Parliament.

54Guidance

(1)The Scottish Ministers may issue guidance (or approve guidance issued by others) containing recommendations, advice and information for the assistance of—

(a)public bodies and office-holders in complying with the duty under section 1(1) to further the conservation of biodiversity,

(b)SNH in exercising its functions under Part 2, and

(c)persons affected or likely to be affected by the exercise by SNH of any of those functions,

and may issue revisions of any guidance issued by them (or approve revisions of guidance issued by others).

(2)Guidance issued or approved under subsection (1)(b) may, in particular, contain information—

(a)as to the circumstances in which SNH should, for the purposes of section 3(1), 5(1) or 9(1), consider land to be of special interest or, as the case may be, no longer to be of special interest,

(b)as to circumstances in which, and the terms and conditions on which, SNH should offer to enter into a management agreement,

(c)as to the amounts which SNH should pay to persons carrying out operations specified in land management orders.

(3)Before issuing or approving guidance under subsection (1), the Scottish Ministers must consult SNH and such persons appearing to them to represent other interests concerned as they think fit.

(4)The Scottish Ministers must publish any guidance issued by them under subsection (1) in such manner (including on the internet or by other electronic means) as they think fit.

55Crown application

(1)Parts 1 and 2 and this Part bind the Crown.

(2)The amendments and repeals of enactments made by schedule 7 bind the Crown to the same extent as the enactments amended or repealed.

(3)Part 2 applies to Crown land with the following modifications.

(4)Byelaws made by virtue of section 20 may apply to Crown land only if the appropriate authority consents.

(5)No order may be made under section 23 or 30 in relation to Crown land unless the appropriate authority has consented to the making of the order.

(6)An interest in Crown land, other than one held by or on behalf of the Crown, may be acquired under section 39, but only with the consent of the appropriate authority.

(7)No contravention by the Crown of any provision made by or under Part 2 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.

(8)Despite subsection (7), any provision made by or under Part 2 applies to persons in the public service of the Crown as it applies to other persons.

(9)In this section “Crown land” means land an interest in which belongs to Her Majesty in right of the Crown, to an office-holder in the Scottish Administration or to a government department, or which is held in trust for Her Majesty for the purposes of the Scottish Administration or a government department.

(10)In this section “the appropriate authority”, in relation to any land—

(a)in the case of land belonging to Her Majesty in right of the Crown and forming part of the Crown Estate, means the Crown Estate Commissioners,

(b)in the case of any other land belonging to Her Majesty in right of the Crown, means the office-holder in the Scottish Administration or, as the case may be, government department having the management of the land,

(c)in the case of land belonging to an office-holder in the Scottish Administration or to a government department or held in trust for Her Majesty for the purposes of the Scottish Administration or a government department, means that office-holder or government department.

(11)It is for the Scottish Ministers to determine any question which arises as to who is the appropriate authority in relation to any land, and their decision is final.

56Ancillary provision

The Scottish Ministers may by order make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes or in consequence of this Act.

57Minor and consequential amendments and repeals

Schedule 7 sets out minor amendments and amendments and repeals consequential upon the provisions of this Act.

58Interpretation

(1)In this Act—

  • “the 1981 Act” means the Wildlife and Countryside Act 1981 (c. 69),

  • “Advisory Committee” has the meaning given in section 21(1),

  • “amending order” has the meaning given in section 24(1),

  • “biodiversity” has the same meaning as has “biological diversity” in the United Nations Environmental Programme Convention on Biological Diversity of 5 June 1992 as amended from time to time (or in any United Nations Convention replacing that Convention),

  • “excluded operation” has the meaning given in section 31(2),

  • “interest”, in relation to land, means any right in or over land exercisable by virtue of the ownership of an interest in land, by virtue of a licence or agreement or by virtue of any other entitlement to occupy the land, and in particular includes sporting rights,

  • “interested parties” is to be construed in accordance with section 48(2),

  • “land management order” has the meaning given in section 29(2),

  • “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39),

  • “management agreement” means an agreement under—

    (a)

    section 16 (agreements for establishment of nature reserves) of the National Parks and Access to the Countryside Act 1949 (c. 97),

    (b)

    section 49A (agreements to secure the conservation and enhancement, or to foster the understanding and enjoyment, of natural heritage) of the Countryside (Scotland) Act 1967 (c. 86), or

    (c)

    section 15 (agreements for the purpose of conserving the natural features of areas of special scientific interest) of the Countryside Act 1968 (c. 41),

  • “natural feature” has the meaning given in section 3(2),

  • “nature conservation order” means an order under section 23(1),

  • “operations” includes works and other activities,

  • “operation requiring consent” has the meaning given in section 3(7),

  • “permission” includes authorisation, consent and any other type of permission (and “permit”, “permitted” and “permitting” are to be construed accordingly),

  • “prohibited operation” has the meaning given in section 23(5),

  • “protected natural feature” means a natural feature—

    (a)

    which is specified in an SSSI notification, or

    (b)

    by reason of which a nature conservation order has effect,

  • “public body or office-holder” includes a statutory undertaker and any person exercising functions of a public nature, but does not include any court or any tribunal or body exercising the judicial power of the State,

  • “relevant regulatory authority” has the meaning given in section 15(2),

  • “revoking order” has the meaning given in section 24(1),

  • “site management statement” has the meaning given in section 4(2),

  • “site of special scientific interest” has the meaning given in section 3(6),

  • “SNH” means Scottish Natural Heritage,

  • “SSSI notification” has the meaning given in section 3(5),

  • “statutory undertaker” means—

    (a)

    a person authorised by any enactment to carry on any railway, light railway, tramway, road transport, water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking or any undertaking for the supply of water or hydraulic power,

    (b)

    the operator of a telecommunications code system (within the meaning of the Telecommunications Act 1984 (c. 12)),

    (c)

    an airport operator (within the meaning of the Airports Act 1986 (c. 31)) operating an airport to which Part V of that Act applies,

    (d)

    a gas transporter, within the meaning of Part I of the Gas Act 1986 (c. 44),

    (e)

    a holder of a licence under section 6(1) of the Electricity Act 1989 (c. 29),

    (f)

    Scottish Water,

    (g)

    the Civil Aviation Authority or a holder of a licence under Chapter I of Part I of the Transport Act 2000 (c. 38) (to the extent that the person holding the licence is carrying out activities authorised by it), or

    (h)

    a universal postal service provider within the meaning of the Postal Services Act 2000 (c. 26).

(2)A reference in this Act to damaging a protected natural feature includes a reference to causing that natural feature to deteriorate.

(3)A protected natural feature consisting of fauna is, for the purposes of this Act, to be treated as being damaged if it is disturbed or harassed to the extent that SNH or, if the land is not a site of special scientific interest, the Scottish Ministers—

(a)no longer consider the land to which it relates to be of special interest by reason of that feature, or

(b)consider the degree to which the land is of special interest by reason of that feature to have decreased significantly.

59Short title and commencement

(1)This Act may be cited as the Nature Conservation (Scotland) Act 2004.

(2)This Act (except sections 53 and 56 and this section) comes into force on such day as the Scottish Ministers may by order appoint.

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