Legislative changes

On the 1 April 2010, the new Conservation of Habitats and Species Regulations 2010 (SI 2010/490) came into force (the “2010 Regulations”).

Essentially the 2010 Regulations are consolidating regulations, so they put in one place all the many changes that have been made to the domestic law implementing the Habitats Directive over the years since the first set of Regulations in 1994.

The key points are as follows:

  • For England and Wales and territorial seas the 2010 Regulations replace the Conservation (Natural Habitats Etc) Regulations 1994 (the “1994 Regulations”)
  • In England and Wales you should no longer refer to the old 1994 Regulations in your reports and correspondence. You therefore need to change the wording you use in your template reports etc.
  • All the regulations from the 1994 Regulations which you are used to quoting e.g. Regulation 48, 49 and 53 (appropriate assessment/IROPI/compensation); Regulation 39, 44 (Protected Species (EPS) offences and EPS licensing); Regulation 3(4) (general duty on competent authorities to have regard to the Habitats Directive) etc are found in the new Regulations in a similar form. But (i) the numbering of the 2010 Regulations has all now changed; and (ii) the specific wording of the 2010 Regulations has in a number of cases changed, so you should now cite the new wording.
  • Regarding Scotland and its territorial sea, the new 2010 Regulations apply to reserved matters but the 1994 Regulations continue to apply for non-reserved matters. Therefore you need to be especially careful when advising in Scotland so you know which Regulations are the relevant ones.
  • Regarding Northern Ireland, nothing has changed and the Conservation (Natural Habitats etc) Regulations 1995 continue to apply.
  • Substantive changes have been made by the 2010 Regulations to the EPS licensing regime in England and Wales in relation to territorial sea areas.
  • A substantive change has been made to the EPS offence of “breach of EPS licence condition” to put the risk of prosecution squarely on the licence holder and reducing the risk to consultants.
  • Other changes have been made to update certain provisions (e.g. the provision implementing Art 10 Habitats Directive).
  • If you are dealing with projects in the “offshore” marine area i.e. beyond the territorial seas, then the Offshore Marine Conservation (Natural Habitats Etc) Regulations 2007 continue to apply but you need to be aware that they were also amended as of 1 April 2010 by the Offshore Marine Conservation (Natural Habitats Etc) (Amendment) Regulations 2010. The amendments however principally (though not exclusively) concern Scotland.