Habitats Regulatory Assessment

Key Legislation

Habitats Regulatory Assessment is the formal assessment by the Competent Authority of the impacts of a plan or project on the integrity of (a) Natura 2000 site(s).

• EC Directive 92/43/EC (Habitats Directive)

The Habitats Directive aims to "contribute towards ensuring biodiversity through the conservation of natural habitats and of the wild fauna and flora".  The central component of the Habitats Directive is the creation of the Natura 2000 network of Special Areas of Conservation (SACs) (also see Birds Directive below).  Once an SAC is established member states should ensure the protection and restoration of the sites in accordance with Article 6 outlining the minimum conservation measures to be ensured.

• EC Directive 2009/147/EC (Birds Directive)

EC Directive 2009/147/EC repeals and replaces Directive 79/409/EEC and consolidates the large number of amendments. The new Directive came into force on 15 February 2010. The replacement Directive also introduces requirements for specific actions on biodiversity as described in Decision No 1600/2002/EC.

The Directive produces a framework for the conservation and management of human interactions with wild birds in Europe.  The Directive sets out a broad spectrum of objectives for each although the precise legal mechanisms are at the discretion of the Member States. The Birds Directive also sets up a system of conservation designations for Special Protection Areas (SPAs) along the lines of SACs under the Habitats Directive. Together SPAs and SACs form the Natura 2000 network.

• The Conservation of Habitats and Species Regulations (2010)

These Regulations replace the Conservation (Natural Habitats & c.) Regulations 1994 and all subsequent amendments as the principal means by which the Habitats Directive is transposed in England and Wales.  These regulations apply in the terrestrial environment and the territorial waters out to 12nm limit.

• The Conservation (Natural Habitats, &c.) Amendment (No.2) (Scotland) Regulations 2008

These Regulations came into force January 2009 amending the Conservation (Natural Habitats, &c.) Regulations 1994. Scottish Natural Heritage introduces a strategy for surveillance of the conservation status of relevant habitats and species in Scotland. SNH also introduces a scheme to monitor incidental capture or killing of certain species.

These pieces of key legislation provide for the protection of animal and plant species of European importance and the habitats which support them, particularly through the establishment of a network of protected sites, comprising Special Areas for Conservation (SAC) and Special Protection Areas (SPA) Together, SPAs and SACs make up the Natura 2000 network.

• The Offshore Petroleum Activities (Conservation of Habitats) (Amendment) Regulations 2007 amending

The 2001 regulations of the same name applies the Habitats Directive and the Wild Birds Directive in relation to oil and gas plans and projects wholly or partially on the UK continental shelf and adjacent waters outside territorial waters (UKCS). Any plan or project which that would be likely to have a significant effect on a designated site must be subject to Habitats Regulatory Assessment of its implications for the site’s conservation objectives.

A range of guidance documents have been produced in support of the delivery of 'Habitats Regulatory Assessment'. Some key publications are set out below:

• European Commission (2000) MANAGING NATURA 2000 SITES: The provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC
• European Commission (2002) Assessment of plans and projects significantly affecting Natura 2000 sites.
• Department for Communities and Local Government (2006): Planning for the Protection of European Protected Sites: Habitats Regulatory Assessment
• Scottish Natural Heritage (2009) Natura sites and the Habitats Regulations: How to consider proposals affecting SACs and SPAs in Scotland: The essential quick guide
  

Habitats Regulatory Assessment is the formal assessment by the Competent Authority of the impacts of a plan or project on the integrity of (a )natura 2000 site(s). Habitats Regulatory Assessment is a process separate from the EIA requirements, but which should run alongside and concurrently with the EIA requirements. Neither procedure overrides the other; both must be followed where both sets of Regulations apply. In many cases, plans or projects that will be subject to a Habitats Regulatory Assessment will also require an Environmental Statement.

A project must first be screened to establish whether Habitats Regulatory Assessment is likely to be required. The screening stage will determine if the potential impacts of plan or project can be ‘screened out’ from the need for further assessment work (i.e. it will not have a significant negative impact on the Natura sites).

‘Habitats Regulatory Assessment’ must be appropriate to its purpose under the Habitats Directive and Regulations however neither the directive, or the regulations specify how the stages of AA should be undertaken. Various guidance documents have been drafted to assist in the implementation of the process. See guidance section below for further details.

A ‘competent authority’ (CA) is the authority with the power or duty to determine whether or not a proposal can proceed.

For land use planning applications the competent authority in England and Wales is usually the Local Authority. For other forms of onshore application including waste management licensing, IPPC applications and Flood Risk Management in England the CA is the Environment Agency.

In Scotland CA is usually the Local Authority or the Scottish Government: Rural and Environment Directorate
The Scottish Government
Area 1-D North
Victoria Quay
Edinburgh
EH6 6QQ

Tel: 0131 244-6952
Fax: 0131 244-4071

email:- naturalresources@scotland.gsi.gov.uk

Offshore the CA is usually the Department for Energy and Climate Change (DECC):

Environmental Management Team
Email: emt@decc.gsi.gov.uk
Tel: 01224 254045/254050

When to apply

The operator can apply to the competent authority at any time for a screening decision on the need for Habitats Regulatory Assessment. It is most usual for the AA process to be conducted in parallel with the EIA process for any given project.

Conditions of Consent

Project approval and achievement of the relevant development consents / planning permissions will be dependent on the findings of the Habitats Regulatory Assessment (amongst other factors) in particular the expectation that commitments made in terms of mitigation and management of potential impacts on protected species and habitats will be adhered to.

Monitoring and surveillance of Natura sites and species is undertaken by JNCC as an ongoing process.

AA sets conditions which must be adhered to as part of a permissions/consent. Specific monitoring requirements may be set through the conditions of consent

Not directly applicable.

The planning/consenting authority is obliged to take proper account of the obligations stemming from the Birds and Habitats Directives to protect and conserve the marine and terrestrial environments.

Natural England has powers to enforce the obligations set out under the conditions of licence. Enforcement will be applied following Natural England Enforcement Policy Complaints or reports of an alleged offence with be investigated. Enforcement powers can range from a simple caution to prosecution under the relevant legislation.

Scottish Natural Heritage cannot instigate proceedings in Scotland. The law is enforced by the police and each force in Scotland has its own Wildlife Crime Officer

Not directly applicable.

Habitats Regulatory Assessment (or appropriate assessment)

There may be a need in future for any Habitats Regulatory Assessments to go to public consultation (adding a further 28 days to the approval period).

Key Organisations:

Key organisations involved in protection and enhancement of biodiversity include

• Natural England:
• Scottish Natural Heritage:
• Joint Nature Conservancy Council:

JNCC Guidelines: Impacts from Underwater noise.

Statutory nature conservation agency protocol for minimising the risk of injury to marine mammals from piling noise:  August 2010.

This guidance outlines a protocol for the mitigation of potential underwater noise impacts arising from pile driving. The protocol is aimed at the offshore wind farm construction however also has relevance to other industries in the marine environment which use pile driving, including the oil and gas industry.

JNCC guidelines for minimising the risk of injury to marine mammals from using explosives

These guidelines have been written for activities on the United Kingdom Continental Shelf (UKCS), and are aimed at reducing the risk of injury to negligible levels and potentially reduce the risk of disturbance from explosive activities to marine mammals including seals, whales, dolphins and porpoises.