2 European Sites
13.64 In order to comply with the requirements of the European Union’s Wild Birds Directive141 and the Habitats Directive142 provision is made by the Conservation of Habitats and Species Regulations 2010 for the designation and protection of ‘European Sites’.
These sites comprise:143•Special Areas of Conservation (‘SACs’) designated under the Habitats Directive;
•Any site adopted by the European Commission as a ‘site of Community Importance’. This is the second stage of the designation process, following the submission of national lists of candidate sites to the Commission;
•Candidate SACs submitted to the Commission, pending their full adoption as SACs by the Commission;144
•‘Special Protection Areas’ (‘SPAs’) designated under the European Union’s Wild Birds Directives of 1979 and 2009.
13.65 These will form part of the Natura 2000 programme of protected wildlife sites under the Europe-wide conservation scheme instituted by the Habitats Directive. Article 3 of the Habitats Directive requires member states to contribute to a European ecological network of special areas of conservation (to be known as Natura 2000) by designating ‘European Sites’ in accordance with criteria set out in Art 4 and Annexes 1 and 2 to the Directive. Candidate sites are to be identified by reference to their importance in hosting natural habitat types listed in Annex 1 to the Directive, or habitats of the species listed in Annex 2. Each member state is required to contribute to the creation of the Natura 2000 network in proportion to the representation within its territory of the natural habitats and habitats of species specified in the Directive. When selecting sites for designation the overall objective of the Directive and Natura 2000 must be the guiding criterion viz. ‘to enable the natural habitat types and the species habitats concerned to be maintained or, where appropriate restored at a favourable conservation status in their natural range’.145
13.66 In the United Kingdom, all European Sites are also notified as SIs under the Wildlife and Countryside Act 1981.
They therefore enjoy the same protection as other SIs, as outlined above.146 The 2010 Regulations apply additional measures to protect those sites that are also of European level significance, in order to deliver the higher level of protection required by the Habitats Directive. A list of candidate sites was originally sent to the European Commission in 1995. Once the identity of sites to be designated has been agreed with the Commission, they are recognised as ‘Sites of Community Importance’ and the Secretary of State is under an obligation to designate the site as a special area of conservation as soon as possible, and within six years at most.14713.67 The chosen approach to implementation of the Habitats Directive has been to designate sites as SIs, and to apply additional controls on land use and development targeted to delivering the protection required by the Directive by:
(i)amending the consultation procedures for agricultural operations set out in the 1981 Act (above), and
(ii)imposing stricter planning controls on development within European Sites.
13.68 Article 6.2 of the Habitats Directive requires member states to ‘take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, inso far as such disturbance could be significant in relation to the objectives of the Directive’. Further, any plan or project not necessary to the management of the site must be subjected to an environmental assessment of its implications for the conservation objectives of the site designation. A project can only be allowed to proceed if the competent national authorities have ascertained that it will not adversely affect the integrity of the site concerned, or if there are ‘imperative reasons of overriding public interest’. The latter can include public interest considerations of an economic or social nature (provided, of course, that they are of overriding importance), but if the site hosts a priority species or habitat type identified by the Directive the development can only be permitted if there are overriding considerations connected with human health or public safety, or what the Directive terms ‘ beneficial consequences of primary importance for the environment’.148
13.69 The relevant provisions implementing these requirements in UK law are contained in Part IV of the Conservation of Habitats and Species Regulations 2010,149 and the National Planning Policy Framework (2012), as amplified and explained in planning guidance to local planning bodies.150 The transposition of the European legislation has had troubled history culminating in the European Court of Justice ruling in 2005 that in material respects the UK had failed to fully implement its requirements.151 A number of amendments to the implementing regulations were subsequently made,152 and these have now been consolidated into the 2010 Regulations.
(a)Restrictions on Potentially Damaging Operations.
13.70 The Conservation of Habitats and Species Regulations 2010153 impose restrictions on land use which mirror those in s 28 of the Wildlife and Countryside Act 1981, but with significant additional restrictions intended to guarantee the higher level of protection afforded to European Sites under the Directive. As with SIs, the administration of conservation in these sites is overseen by the statutory Conservation Bodies, who enjoy a range of statutory powers and duties in relation to European Sites that are similar to those in SIs. The 2010 regulations provide that the Conservation Bodies and the secretary of state must exercise their functions under the enactments relating to nature conservation so as to secure compliance with the Habitats Directive.154
13.71 The 2010 regulations make detailed provision for the regulation of land use in European sites as follows:
•Any notification already in force under the 1981 Act has effect for the purpose of the 2010 regulations, but the Conservation Body can amend the existing notification at any time. Notice of amendment must be given to the owner or occupier of the SI, and only takes effect when notice has been given.155 All European sites will already have been notified under the 1981 Act, and this provision allows for redesignation with additional proscriptions on land use where this in necessary to comply with the conservation objectives of the Directive. The provisions for registration of a local land charge apply, as for ordinary SI’s.
•The owner or occupier156 of the site must not carry out any potentially damaging operation proscribed in the site notification, unless he has given written notice of his intention to do so.157 It will then be lawful to proceed only if a period of four months has elapsed following the giving of notice, or if the operation is carried out with the written consent of the conservation body or under the terms of a management agreement158.
This provides a statutory consultation mechanism similar to (and modelled on) that for operations likely to damage the conservation interest (OLDSIs) in an SI, which are discussed in detail above.159 The 2010 regulations impose a number of additional restrictions on land use, however, that are intended to achieve the level of site protection required by the Habitats Directive. These are the following:•If the conservation body, having been notified of a potentially damaging operation, consider there to be a risk that it will nevertheless be carried out before the expiry of the four month ‘consultation’ period, they must take appropriate steps to notify the Secretary of State. This must be done at least one month before the end of the four months for which the operations are legally proscribed under the regulations.160 This is intended to enable the latter to make a special nature conservation order protecting the site.
•when the conservation body receive an application for consent to an operation, and it forms part of a plan or project which is likely to have a significant effect on a European site (either alone or in combination with other plans or projects), they must carry out an ‘appropriate assessment’ of the implications for the site in view of the sites conservation objectives. They can only give consent to the operation after having ascertained that the plan or project will not adversely affect the integrity of the site.161
•The owner or occupier of the land can require a reference to the secretary of state in two situations – within two months of receiving the Conservation Body’s notice of refusal of consent to the operation (ie if he wishes to challenge the decision), or within three months of an application being made if no notice of decision has been received within that time. The secretary of state can grant consent if: (i) s/he is satisfied that there is no alternative solution; and (ii) that the plan or project must be carried out for ‘imperative reasons of overriding public interest’ notwithstanding a negative assessment of the implications for the European Site.162 Where the site does not host a priority habitat or species type, identified in the Directive and designation, the public interest consideration dictating consent can include reasons of an economic or social nature.
Where, however, the site hosts a priority habitat or species type, the overriding reasons of public interest justifying consent are restricted to reasons relating to public health, public safety or ‘beneficial consequences of primary importance to the environment’.163 If a damaging operation is given operational consent on appeal to the secretary of state, then s/he is under a duty to ensure that compensatory measures are taken to ensure the overall coherence of the Natura 2000 programme. The scope of this duty is not specified, but it could, clearly, encompass designating an alternative site with similar habitat characteristics to replace that whose conservation status has been compromised as a consequence of the consent.(b)Special Nature Conservation Orders.
13.72 The 2010 Regulations make provision for the secretary of state to make a Special Nature Conservation Order to protect a European Site where there is a risk of an operation being carried out while operational consent form the conservation body is pending or under consideration.164 These provisions mirror those that formerly applied in SIs under s 29 of the 1981 Act, with significant modifications to confer extra protection on European sites. In particular, where a special nature conservation order has been made, the secretary of state can serve a ‘stop notice’ on any person carrying out or proposing to carry out any operation specified in the order.165 This power can be used to serve stop notices on not only the owner or occupier of the land but also third parties eg contractors. Operations proscribed by a stop notice can only be carried out lawfully with the written consent of the Conservation Body, or pursuant to a management agreement with the latter.166 It remains a defence, however if an operation is carried out with planning consent or is an ‘emergency’ operation.167
13.73 Compensation is payable by the Conservation Body if the value of the owner’s interest in the land affected is diminished by virtue of the making of a special nature conservation order.168
13.74 Provision is made for the making of a restoration order where damage has been caused by the carrying out of a proscribed operation.
The magistrates can make an order where a defendant has been found guilty of carrying out an operation in contravention of the regulations, and in so doing can require the carrying out (within a fixed period) of remedial work for restoring the land to its former condition. If a person fails to comply with a stop order made under the regulations s/he will be liable on summary conviction to a fine not exceeding the statutory maximum, or on indictment to an unlimited fine.169(c)Bylaws
13.75 The 2010 regulations confer power on the Conservation Bodies to make bylaws for the protection of a European Site.170 Bylaws may prohibit or restrict entry onto the site by persons, vehicles, boats or animals (eg pets), and may prohibit or restrict the killing or disturbance of any creature or its eggs, or interference with the vegetation, soil or any other objects within the site. The dumping of rubbish and lighting of fires can also be prohibited. These restrictions can also be applied, by bylaw, to an area adjoining or surrounding the site if this appears requisite to the nature conservation body for protection of the site.171