Habitat Regulations

The Conservation of Habitats and Species Regulations 2010

The Conservation (Habitats &c) Regulations 1994 implemented the Habitats Directive in England, Wales and Scotland. The Regulations identified the species and habitats that should be protected across Europe and set out the measures that should be undertaken to protect them. These included the designation of Special Areas of Conservation and the carrying out of appropriate assessments whenever Special Areas of Conservation and Special Protection Areas could be affected by development or other projects. The Regulations also set out how licensing for European protected species should work.

The Regulations have been amended several times, including the following:

The Conservation (Natural Habitats, &c.) (Amendment) (England) Regulations 2000
The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007
The Conservation (Natural Habitats, &c.) (Amendment) (England and Wales) Regulations 2009
The Conservation (Natural Habitats, &c.) (Amendment) (No. 2) Regulations 2009

The changes that have occurred as a result of these amendments are many, but include the following:

Creation of the offence of breaching a licence condition (in 2007), which means that a criminal prosecution could apply to anybody to whom a licence is issued under the Regulations if they fail to follow the method statement or other document which is attached to the licence.

Removal of certain defences in the legislation with regard to protected species (in 2007). The defences were basically exemptions from the legislation which meant that actions that would normally be an offence, such as killing a protected species, would not be regarded as an offence if the conditions of the defence are met. One of the defences was that an offence would not have been committed if it could be shown that the killing, injuring, etc was an incidental result of a lawful operation that could not reasonably have been avoided. This defence, among others, has now been removed from the Regulations.

Refinements (in 2007 and then again in 2009) to what is meant by disturbance of protected species that is sufficient to constitute an offence under the Habitats Regulations. This is now defined as disturbance which is likely a) to impair their ability (i) to survive, to breed or reproduce, or to rear or nurture their young; or (ii) in the case of animals of a hibernating or migratory species, to hibernate or migrate; or b) to affect significantly the local distribution or abundance of the species to which they belong.

As a result of the numerous amendments, the Habitats Regulations were becoming difficult to work with and interpret. Therefore the Conservation of Habitats and Species Regulations 2010 were drafted to replace the 1994 Regulations and all the subsequent amendments. They consolidate all the previous legislation into one document but do not change the previous legal obligations and processes. The 1994 Regulations, as amended, have therefore been revoked, except (generally) as they extend to Scotland.