Allan Scott Scottish Executive Environment & Rural Affairs Department Nature Conservation Strategy & Protected Areas Team Landscapes & Habitats Division G-H 93 Victoria Quay Edinburgh EH6 6QQ 28 July 2006 Dear Mr Scott, THE CONSERVATION (NATURAL HABITATS, ETC) AMENDMENT (SCOTLAND) REGULATIONS 2006 - CONSULTATION Thank you for offering us the opportunity to respond to the above consultation. The RSPB very much welcomes the consultation as an essential step to implement more fully the provisions of the EU Birds and Habitats Directives, following the European Court of Justice ruling against the UK Government in October 2005 (C-6/04). The proposed amendments will bring into force some key elements of the Directives and offer long term benefits to UK biodiversity conservation by helping to ensure our most important natural assets are secured for future generations. We recognise that the Executive needs to implement these Regulations as soon as possible in order to comply with the ruling of the European Court of Justice. However, we are disappointed that in bringing forward the draft regulations, the opportunity has not been taken to adopt a more comprehensive approach to the findings of the Court. This has resulted in a missed opportunity to propose amendments that better deliver the underlying objectives of the Directives namely to maintain and, where necessary, restore species and habitats of European importance at favourable conservation status. We have set out our comments and concerns on the draft Regulations in two annexes to this letter: Annex 1 response to issues raised in consultation and RIA Annex 2 detailed observations on the draft regulations. 1
Our detailed comments in Annex 2 concentrate on three main areas: Integration with the Offshore Marine Conservation Regulations and the Offshore Petroleum Activities (Conservation of Habitats Regulations) 2001; Surveillance requirements; and Applying Articles 6(3) and 6(4) of the Habitats Directive to plans and projects. We have avoided comment on species protection provisions and refer the Executive to the view of specialist groups such as the Whale & Dolphin Conservation Society and the Bat Conservation Trust. Overall, our key concerns can be summarised as: 1. Lack of formal implementation of Article 6(2): we continue to be disappointed at the lack of formal transposition of Article 6(2) of the Habitats Directive c.f. point 24 C-6/04 which states that Member States are under a duty to ensure that national legislation intended to transpose the directive is clear and precise. Various elements are in place for a specified range of plans and projects (e.g. regulation of operations likely to damage, reviews of consents). However, there is no overarching duty on public bodies and statutory undertakers to take appropriate action, based on sound surveillance, to avoid habitat deterioration or species disturbance relating to European sites. This would help re-focus action in relation to European sites from post-hoc responses to avoidance. 2. Appropriate assessment of plans: the RSPB welcomes the provisions to apply Articles 6(3) and 6(4) to development plans. This essential step will help realise the role of the Habitats Directive in delivering more environmentally sustainable land-use planning. Unfortunately, the Executive has adopted a narrow interpretation of the ECJ ruling and applied the judgement to development plans only. This is a missed opportunity as there are clearly other land-use plans which have considerable influence on development decisions 1 and European Wildlife Sites. Examples might include: supplementary planning guidance (such as masterplans); certain bills and white papers (including the UK Aviation white paper); river basin management plans; access strategies and plans; and inshore fisheries management plans. Indeed, in England, Defra Flood Management Division and the Environment Agency have already taken the view the ECJ judgement applies to shoreline management plans and catchment flood management plans, and have issued guidance accordingly. The ECJ ruling offers a perfect opportunity for the Executive to take a comprehensive approach and formally apply Articles 6(3) and 6(4) to all relevant land-use plans. We recommend that the Executive addresses this issue, with a view to bringing forward appropriate amendment Regulations as soon as possible: we would welcome working with the Executive to this end. 1 Point 55, C-6/04 Commission vs. United Kingdom 2
3. Application of Part IV to all relevant consent regimes: the proposed amendment regulations apply the measures of Article 6(3) and 6(4) of the Directive, as transposed by regulations 48 to 53 of the 1994 regulations, to water abstraction projects. Analysis suggests that oil and gas exploration within territorial waters remains outside the ambit of the 1994 Regulations (or at least the clear and rigorous process set out by regulations 48 to 53 and required by C-6/04), as it is not explicitly covered by Part IV. Other consent regimes, including (topically) that for ship-to-ship transfers of oil, are not covered. Possible solutions might include: amending regulation 47 of the 1994 Regulations to incorporate a more inclusive definition of plan or project; amending regulation 3 of the 1994 Regulations so that competent authorities are required as part of their general duties to follow the procedure set out by regulations 48 to 53 when determining consent for plans or projects; or adding further specific consenting regimes (such as consents under the Harbours Act 1964, or by harbour authorities) to those already covered by regulations 54 to 85 (and proposed to be covered by regulations 84B and 85A to 85E). 4. Achieving favourable conservation status: the Regulations lack a specific duty on the relevant bodies to use the surveillance results to take appropriate steps to ensure the relevant species, habitats and sites are maintained and, where necessary, restored to favourable conservation status (FCS). This link between surveillance and management is essential if the aims of the Habitats Directive are to be met (as set out in Articles 2(2) and 3(1), and applied to sites through Article 6(2)). Such surveillance must also extend to the SPA network and related bird species as these form an integral part of the Natura 2000 network, the aim of which is to achieve FCS. Common Standards Monitoring (CSM) and other monitoring programmes will form part of the surveillance response. However, more resources are needed, first to support CSM to ensure it meets the required standards in all countries, and second to implement the systematic and permanent surveillance of UK land and sea areas required by the ECJ ruling. There should be a requirement to consult with the public on both surveillance methodology and results. Fully informed surveillance will rely on the expertise, knowledge and data of NGOs, industry, academic institutions and individuals. 5. Inconsistency with sister regulations in England, Wales and Northern Ireland: the Scottish Regulations have, in places, either omitted regulations included in the proposed Regulations for the rest of the UK or taken an inconsistent approach to the drafting of those other Regulations. In key places, we consider this approach to be unhelpful and one that could lead to an inconsistent application of the Birds and Habitats Directives in the UK. Specific examples include: Interpretation: lack of amendment to Regulation 2(1) re: - Definition of the Birds and Habitats Directives post-accession of the 10 most recent EU Member States; 3
- Definition of European Offshore Marine Site cross-referenced to the Offshore Marine Conservation Regulations 2006 see detailed comments in Annex I. Definition of European sites: the definition of European sites (regulation 10(1)) should also include: those sites transmitted to the Commission under Regulation 7 (as per England, Wales and Northern Ireland); this would also require complementary amendments to Regulation 11(2) (Duty to compile and maintain register of European sites). Surveillance consultation with other country administrations: there is no obligation for Scottish Ministers to consult with other country administrations over surveillance requirements, in contrast to a similar duty in respect of Scotland on the administrations for England, Wales and Northern Ireland. See our detailed comments in Annex 1. 6. Water abstraction projects: Some projects authorised under regulation 7 of the Water Environment (Controlled Activities)(Scotland) Regulations 2005 that comply with general binding rules could (in spite of being small-scale) conceivably affect European Wildlife Sites - but under the current proposed regulation 84B they do not appear to be subject to appropriate assessment. This appears to be a significant oversight, particularly in the event of a number of small-scale projects having a significant in combination effect. 7. Failure to adopt a comprehensive approach to the ECJ ruling: our comments above regarding the scope of the proposed amendment Regulations suggest that they do not fully take into account the underlying purpose of the Directives, nor the reasons behind the ruling; doing so could have resulted in a more rounded set of amendments. For example, there is clearly a need for a more formal gap analysis to identify consent regimes and land-use plan types that raise similar issues of compliance as those of water abstraction and development plans, and which place the Executive at continued risk of infringement proceedings. Additional work is also needed to provide the missing link between surveillance and management. We look to the Executive to make a clear commitment to use these Regulations as the first stage of a more comprehensive analysis, in partnership with the voluntary sector, to identify those steps required to improve further the legal implementation of the Directives on land and sea. Improved implementation of the Directives can benefit sustainable social and economic development, by ensuring that Europe s biodiversity is taken into full account when land-use planning and management decisions are made. Given the concerns we have raised and the limited timetable for bringing the regulations into force, the RSPB would very much welcome an early meeting with Executive officials to discuss our comments in more detail. In particular, we note that the regulations currently proposed would be the third or fourth set of regulations amending the original 1994 Regulations. In view of this, and of the numbers of consenting regimes and land-use plan 4
types to which the measures of Articles 6(3) and 6(4) of the Habitats Directive may still need to be more clearly applied in Scotland, we strongly recommend that the Executive consider the need for consolidating the regulations at an early stage. Consolidating regulations would provide a clearer and simpler regulatory framework, as well as presenting an opportunity to set out a clear process for assessing and consenting a more comprehensive range of plans and projects, in a manner clearly compliant with the Habitats Directive. We are also enclosing a copy of our response to the UK consultation on the draft Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2006. The RSPB has no objection to this response being made available to others. Yours sincerely, Richard Evans Sites Policy Officer, RSPB Scotland 5
ANNEX 1 THE CONSERVATION (NATURAL HABITATS, ETC) AMENDMENT (SCOTLAND) REGULATIONS 2006 RESPONSE TO ISSUES RAISED IN CONSULTATION AND RIA Gap Interpretation definition of Birds Directive and Habitats Directive We note that the Regulations are proposing amendments that will have effect only in Scotland. However, we consider it important that the resulting Regulations should be consistent with those elsewhere in the United Kingdom. Therefore they should include an updated definition of the Birds and Habitats Directives to reflect those amendments to the Directives arising from the accession of the 10 most recent Member States. Appropriate amendments should be made to Regulation 2(1). Gap Interpretation definition of European Offshore Marine Site We are concerned that the Regulations adopt a different approach to that of England, Wales and Northern Ireland in respect of their application to European Offshore Marine Sites. We note the implicit application of Regulations 48 et seq. to European Offshore Marine Sites through amendments to Regulation 48(1) and insertion of new Regulation 48(7). This approach raises a number of concerns: (i) (ii) (iii) (iv) it lacks explicit cross-reference to the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2006 and explicit reference to European offshore marine sites; it is inconsistent with the approach adopted in the rest of the UK; there remains ambiguity over the definition of European sites within territorial waters, in particular whether the definition applies to Regs 16-32 and Regs 48 et seq. (including the newly proposed Part 4A). Therefore we strongly recommend amendments be made to the definitions in Regulation 2(1) to make it clear that European site refers to all those categories of site listed in Regulation 9(1) within the UK, including territorial waters. This definition would be consistent with that proposed in Regulation 21(2) of the Offshore Marine Conservation Regulations 2006; and The application of Part 4A to marine areas, both within territorial waters and the offshore marine area requires clarification. The amendment we recommend above in respect of the definition of 1
European site would ensure sites within territorial waters were captured. However, the Regulations would still fail to cater for the potential effects of plans on EOMS. As currently drafted, EOMS are not captured by Part 4A. We consider this to be in breach of the Directive s requirements. While it may be unlikely for development plans to have a likely significant effect on an EOMS, such an effect cannot be ruled out. Therefore, we strongly recommend that the proposed amendment to Regulation 10(3) is amended to read: (3) In Parts IV and 4A European site includes a European offshore marine site and a reference to a site which is a European site by reason only of regulation 10(1)( c) includes a reference to a site which is a European offshore marine site by reason only of regulation 13(c) of the Offshore Marine Conservation Regulations 2006. Para 49 Regulation 4 surveillance and requirement for consultation between country administrations Given that the surveillance duties under the Habitats Directive apply at member state level, it is essential that these be complied with adequately. This will require full co-ordination and co-operation between the country administrations. An explicit legal requirement will provide the necessary clarity to ensure this takes place. However, as drafted the Regulations lack reference to the (limited) coordination and co-operation present in the Regulations for England, Wales and Northern Ireland. This leads to the anomalous situation where the administrations for the rest of the UK are required to consult with Scottish Minister but not vice-versa. We strongly recommend that this be rectified and made consistent with the obligations on the other country administrations, subject to our further comments below and those made on the Regulations for those countries. In addition to the above, we strongly recommend that the requirement for the country administrations to consult with each other in respect of Annex V species be extended to include consultation over the arrangement for monitoring under 37A(1) itself. Given that this is the primary surveillance requirement, it is essential that there be co-ordination of methodology, resources and analysis to ensure that there is a consistent approach of a high standard at a UK level. It is already apparent from the divergent approaches to implementation of Common Standards Monitoring work in the UK countries, that there is a need for closer co-ordination of monitoring work and increased resources to ensure 2
monitoring is carried out to the required standard. Therefore, consultation should be enshrined in law to ensure closer co-operation between the country administrations so that a clear and reliable picture of the conservation status of species, habitats and sites of European importance can be obtained. There should be a requirement to consult with the public on both surveillance methodology and results. Fully informed surveillance will rely on the expertise, knowledge and data of NGOs, industry, academic institutions and individuals. We also note that Regulation 37A(2) refers only to those measures referred to in Article 14(2). While we welcome this, it risks being inconsistent with the terms of Article 14(2). The list of measures contained in Article 14(2) is not exhaustive i.e. it states that such measures may also include in particular [emphasis added]. We consider it would be more accurate to refer to measures taken pursuant to Article 14(2). Para 32 Possible amendments to the WCA re European Protected Species We note the possibility of proposals to amend the WCA in relation to licensing for European Protected Species. We would expect to be consulted separately on any formal proposals and resulting draft legislation. Gap Amendments to Regulation 49 (overriding public interest) We have no problems with the amendment (Regulation 13) which clarifies that it is the competent authority, rather than the European Commission, that will decide whether there are other imperative reasons of overriding public interest in projects affecting European sites with priority habitats. However, we consider it essential that the reasons for the competent authority s decision must be clearly set out, especially where this goes against the Commission s opinion. Therefore, we strongly recommend the competent authority be required to publish its reasons for granting consent where this goes against the opinion of the European Commission. This is in line with the Commission s guidance in Managing Natura 2000 (section 5.5.3). Para 38-41 Regulation 14/Schedule 1 application of Articles 6(3) & 6(4) to development plans The RSPB welcomes the provisions to apply Articles 6(3) and 6(4) to development plans. This essential step will help in realising the role of the Habitats Directive in delivering more environmentally sustainable land-use 3
planning. However we have a number of concerns over how the requirement has been implemented: Consultation with the public should no longer be restricted to circumstances where it is considered appropriate. The development plan system has clear duties to consult the public for their views on the proposals for their area. It is the RSPB s view that a similar duty should be applied in respect of the appropriate assessment of those plans, reflecting the principles of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, to which the UK and EU are signatories. There is a need for improved clarity in regulations 85B/85C on the definitions of authority, plan-making authority and competent authority. The key issue to resolve is who acts as the competent authority without sufficient clarity, we envisage practical difficulties in understanding and implementing the regulations. We have suggested a possible solution. It is now stated Government policy elsewhere in the UK (see ODPM Circular 06/2005, para 30) that where new habitats are created as compensatory measures, they should be in place in time to provide fully the ecological functions that they are intended to compensate for. This is in line with the European Commission s own guidance that compensation should be operational at the time of damage. We recommend that the regulation 85E be so amended. Regulation 85A will need to take into account progress of the Planning (Scotland) Bill, and vice versa. We welcome clarification in the consultation that the ECJ ruling has been binding on planning authorities since the judgement was handed down. Para 42, 43 Water abstraction Regulation 84B does not apply regulations 48 and 49 of the 1994 Regulations to controlled activities ( projects ) authorised under regulation 7 of the Water Environment (controlled Activities) (Scotland) Regulations 2005 (subject to compliance with the general binding rules set out in Schedule 3 of those regulations). Since the general binding rules do not require compliance with the 1994 Regulations or the Habitats Directive, the proposed regulation 84B as currently drafted would result in projects abstracting less than 10m 3 per day of water or less than 150m 3 per year not being subject to appropriate assessment, either alone or in combination with other plans and projects. (This appears to be analogous to a consenting regime for water abstraction in Germany, which was found to be in breach of the Habitats Directive by the European Court of Justice in case C-98/03). 4
Regulatory Impact Assessment Para 12: Option 2 As stated in our covering letter, the RSPB very much supports the amending Regulations. However, we are disappointed that the Executive has not looked at the underlying purpose of the Directives and reasons behind the C- 6/04 ruling in order to bring forward a more rounded set of amendments. In particular, there is a need for a more formal gap analysis to identify consent regimes and land-use plan types that raise similar issues of compliance as those of water abstraction and development plans (such as: various ports consents, including oil transfers; access strategies), and which may leave the UK authorities at continued risk of infringement proceedings. Additional work is also needed to provide the missing link between surveillance and management. Paras 21-22 2 : Costs and benefits (ii) Benefits By implementing Option 2, the Regulations will ensure that from now on development plans at regional and local levels must avoid damage to European sites. If they cannot, they will have to demonstrate that there are no other solutions and the damage is justified in the overriding public interest. These rigorous tests can ensure that development plan frameworks have the conservation of the UK s most important biodiversity areas at their heart. They will also ensure there is greater certainty over the fate of planning applications that are likely to affect European sites. In this way, planning authorities, developers and nature conservation bodies will benefit from a more robust and certain planning framework. It should minimise the need for costly public inquiries into poorly located development proposals. By providing the necessary safeguards to ensure that Europe s wildlife is taken into better account when land-use planning decisions are made, it should ensure the most sustainable option for current and future generations is chosen. Para 23: Costs and benefits (iii) Costs We consider that there will be some necessary additional costs arising out of Option 2: 2 Consultation has two paragraph 16, including one that should be paragraph 21. 5
Increased resources to the Government to ensure that they can meet their surveillance requirements under Regulation 37A on land and at sea. Further work is required to identify current gaps in monitoring needs and ensure these are plugged in a cost-effective way. Improved surveillance will greatly improve our knowledge of the conservation status of species, habitats and sites, which in turn will improve the quality of land-use and management decisions relating to European sites and species. This will act to offset any additional costs for improved surveillance. Small additional costs in terms of development plan preparation are possible. However, with clear guidance and careful work planning to integrate with sustainability appraisal and strategic environmental assessment, most of these costs can be avoided. They will almost certainly be offset by the costs saved by avoiding unnecessary planning applications and public inquiries. RSPB SCOTLAND 28 JULY 2006 6