the habitats regulations anthony porten qc. eec directive 1992/43 council directive of 21 may 1992...

THE HABITATS REGULATIONS

ANTHONY PORTEN QC

EEC Directive 1992/43

Council Directive of 21 May 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora.

Article 16(1).

S.I.1994 No. 2716

The Conservation (Natural Habitats etc) Regulations 1994

Part III: Protection of Species

European Protected Species

EUROPEAN PROTECTED SPECIES

EPS include:

- Bats: Horseshoe and Typical

- Great Crested Newt

- Dormouse

- Common Otter

S.I. 2007 No. 1843

New, expanded Regs. 39 and 40

Changes to Reg. 44

DEFENCES

Defences no longer available:

1. No exception for acts done in dwelling houses.

2. No defence of ‘lawful operations’.

S.I. 2008 No. 2172

Three new species added.

Conflict with WCA 1981 removed – offences in respect of EPS fall under Habitats Regulations only.

Lesser Whirlpool Ram’s Horn Snail

S.I. 2009 No. 6

More detailed provisions for the surveillance of species of Community interest.

Specific requirements for CCW to assess needs for surveillance and monitoring, and to advise Welsh Ministers.

Welsh Ministers to ensure surveillance and monitoring and indicate who is to carry it out.

2009 Amendments ctd

Modifications to wording of Reg.39

Powers to publish guidance on the application of certain EPS offences.

Defences made subject to satisfying the Art. 16(1) conditions.

LICENCES

Reg. 44(2): permitted purposes:

(c) Conserving wild animals .. Or introducing them to particular areas

(e) Preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment.

LICENCES ctd

Reg. 44(3) – no licence to be granted unless the appropriate authority is satisfied:

(a) No satisfactory alternative, and

(b) No detriment to the maintenance of the species population at a favourable status in their natural range

GCN

NEWSUM

Newsum v. Welsh Assembly Government

Court of Appeal:

The protection of the EPS cannot of itself constitute ‘overriding public interest’.

[2005] 1 PLR 107

Mouflon