The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2004

Explanatory Note

(This note is not part of the Regulations)

These Regulations amend the Conservation (Natural Habitats, &c.) Regulations 1994(1) (“the 1994 Regulations”). The provisions in these Regulations relating to site protection bring European sites into line with the protection regime set out in Part 2 of the Nature Conservation (Scotland) Act 2004(2) (“the 2004 Act”). Further protection is given to European protected species through amendments to Part III of the 1994 Regulations which reflect the provisions relating to species protection contained in Part I of the Wildlife and Countryside Act 1981(3).

Regulations 4 and 5 amend Part I of the 1994 Regulations (introductory provisions). Regulation 4 updates existing definitions in regulation 2 of the 1994 Regulations and regulation 5, inter alia, includes references to Part 2 of the 2004 Act in regulation 3(2) of the 1994 Regulations so as to impose the general duties in that Regulation on the Scottish Ministers and SNH in respect of their functions under the 2004 Act.

Regulations 6 to 9 amend Part II of the 1994 Regulations (conservation of natural habitats and habitats of species). Regulations 6 and 7 amend regulations 10 and 11 of the 1994 Regulations which deal with the meaning and registration of a European site. Regulation 6 extends the category of European sites to include candidate special areas of conservation.

Regulation 8 revokes regulation 17(1) and (2) of the 1994 Regulations which deal with management agreements and things done under certain enactments.

Regulation 9 inserts new regulations 18 to 22 into the 1994 Regulations.

The inserted regulation 18 creates an offence of reckless or intentional damage to a natural feature by reason of which land is a European site.

The inserted regulation 19 applies certain provisions of Part 2 of the 2004 Act to European sites for the purposes of the 1994 Regulations, subject to regulations 20 to 22. The provisions from the 2004 Act which are applied to European sites create, inter alia, new powers in relation to European sites to enable Scottish Ministers to make nature conservation orders, land management orders and for SNH to acquire land compulsorily or by agreement. Powers are also created to enable a court to make restoration orders, SNH to erect signs on any land for the purpose of providing information to the public in relation to a European site, the police to investigate and for authorised persons to have a power of entry.

The inserted regulations 20 to 22 set out the changes to the provisions in Chapters 2, 3 and 4 of Part 2 of the 2004 Act which are necessary in order to apply those provisions for the purposes of these Regulations.

Part III of the 1994 Regulations (protection of species) contains provisions to ensure the protection of European protected species of animals and plants. The amendments to Part III, which are made by regulations 10 to 15 of these Regulations, bring the protection regime for European protected species into line with the protection regime for animals and plants set out in Part I of the Wildlife and Countryside Act 1981.

Regulation 16 makes amendments to Part IV of the 1994 Regulations (adaptation of planning and other controls) which are required in consequence of the revocation of regulation 20 of the 1994 Regulations in circumstances where an appropriate assessment needs to be undertaken in relation to the granting of a consent under section 13(4) or 16(3) of the 2004 Act.

Regulations 17 to 19 contain amendments to Part V of the 1994 Regulations (supplementary provisions). Regulation 17 amends regulation 101 of the 1994 Regulations which deals with enforcement for offences committed under Part III of the 1994 Regulations to bring it into line with the enforcement regime set out in the Wildlife and Countryside Act 1981 for offences committed under Part I of that Act.

Regulation 18 inserts a new regulation 101A into the 1994 Regulations. That inserted regulation applies sections 19ZC and 19ZD of the Wildlife and Countryside Act 1981(4) for the purposes of the 1994 Regulations, to give powers of entry, and powers to take samples, to wildlife inspectors and constables in connection with various suspected offences under Part III of the 1994 Regulations.

Regulations 20 and 21 set out the transitional arrangements which are necessary in light of these Regulations and regulation 22 revokes certain provisions of the 1994 Regulations.

(1)

S.I. 1994/2716.

(2)

2004 asp 6.

(3)

1981 (c. 68). Part I of that Act was amended by section 50, of and schedule 6 to, the 2004 Act.

(4)

Sections 19ZC and 19ZD were inserted into Part I of that Act by paragraph 17 of schedule 6 to the Nature Conservation (Scotland) Act 2004.