PART 2 SRESTRICTIONS ON DREDGING

Restrictions on dredging S

4.  It shall be an offence for any person to carry out dredging except where the dredging–

(a) falls within one of the cases described in regulation 5 (when these Regulations shall apply in relation to the dredging only to the extent specified in that regulation in relation to the particular case); or

(b) is carried out in accordance with a permission granted under Part 4 of these Regulations.

Partial application of the Regulations in particular cases S

5.—(1) The cases mentioned in regulation 4(a) are those described in paragraphs (2), (6) and (7) of this regulation.

(2) The first case is where the Scottish Ministers receive from the Secretary of State a determination in writing–

(a) that the dredging constitutes or forms part of a project serving national defence purposes; and

(b) that in the opinion of the Secretary of State the application of these Regulations, except to the extent specified in paragraph (4), (5), (6) or (7) of this regulation, as the case may be, would have an adverse effect on those purposes.

(3) Where paragraph (2) applies, the Scottish Ministers shall determine whether the dredging would constitute a habitats project.

(4) Where paragraph (2) applies and the Scottish Ministers determine under paragraph (3) that the project would constitute a habitats project, then only the following provisions of these Regulations shall apply–

(a) Parts 1 and 2;

(b) regulation 9;

(c) regulations 12 and 13;

(d) regulations 15 to 23 and Schedule 3; and

(e) regulations 25 to 28.

(5) Where paragraph (2) applies and the Scottish Ministers determine under paragraph (3) that the project would not constitute a habitats project, only the following provisions of these Regulations shall apply–

(a) Parts 1 and 2;

(b) regulation 25; and

(c) regulation 28.

(6) The second case is where the Scottish Ministers have determined under regulation 6–

(a) that the dredging does not constitute a relevant project; and

(b) that the dredging does not constitute a habitats project;

and in such a case only the following provisions of these Regulations shall apply–

(i) Parts 1 and 2;

(ii) regulation 25; and

(iii) regulation 28.

(7) Subject to paragraph (8), the third case is where the dredging continues to be carried out in accordance with a written agreement entered into by the owner before commencement, and in such a case only the following provisions of these Regulations shall apply–

(a) Parts 1 and 2;

(b) regulation 23 and Schedule 3;

(c) regulation 25;

(d) regulation 27; and

(e) regulation 28.

(8) Where a written agreement entered into by the owner before commencement is varied on or after commencement, the dredging shall fall within the third case only where the Scottish Ministers have determined, having regard to such of the selection criteria as are relevant, that dredging under the agreement as so varied does not constitute a relevant project (and Schedule 2 shall have effect to specify the selection criteria for the purposes of these Regulations).