Citation, commencement and interpretation

1.–(1) These Regulations may be cited as the Conservation (Natural Habitats, etc.) (Amendment) Regulations (Northern Ireland) 2009 and shall come into operation on 30th January 2009.

(2) The Interpretation Act (Northern Ireland) 1954(3) shall apply to these Regulations as it applies to an Act of the Northern Ireland Assembly.

Amendments to the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995

2. The Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995(4) are amended in accordance with regulations 3 to 6.

3. In regulation 9A (surveillance of conservation status of habitats and species)–

(a) in paragraph (1), after "arrangements", insert "in accordance with paragraphs (1A) and (1B)";

(b) after paragraph (1) insert–

"(1A) The Department shall–

(a) assess how and to what extent surveillance of the conservation status of each relevant habitat and species needs to be carried out, having regard to–

(i) whether a habitat or species is a priority natural habitat type or priority species; and

(ii) the conservation status of the habitat or species; and

(b) ensure that the necessary surveillance is carried out on an ongoing basis.

(1B) Surveillance for the purpose of this regulation may be carried out by–

(a) the Department; or

(b) any other person acting pursuant to, and in accordance with, an agreement with the Department.

(1C) In paragraph (1A), a "relevant" habitat or species means a habitat or species of a type referred to in paragraph (1)"; and

(c) for paragraph (5) substitute–

"(5) In this regulation, in relation to any marine area–

(a) for the words "the Department" where they occur substitute "the Secretary of State" (but see subparagraph (b));

(b) the activities referred to in paragraphs (1A)(a) and (1B)(a) shall be carried out by the Department on behalf of the Secretary of State.".

4. In regulation 34 (protection of wild animals)–

(a) for paragraph (1) substitute–

"(1) It is an offence–

(a) deliberately to capture, injure or kill a wild animal of a European protected species;

(b) deliberately to disturb such an animal while it is occupying a structure or place which it uses for shelter or protection;

(c) deliberately to disturb such an animal in such a way as to be likely to–

(i) affect the local distribution or abundance of the species to which it belongs;

(ii) impair its ability to survive, breed or reproduce, or rear or care for its young; or

(iii) impair its ability to hibernate or migrate;

(d) deliberately to take or destroy the eggs of such an animal;

(e) deliberately to obstruct access to a breeding site or resting place of such an animal; or

(f) to damage or destroy a breeding site or resting place of such an animal."; and

(b) omit paragraphs (8), (9) and (10).

5. In regulation 35 (exceptions from regulation 34)–

(a) in paragraph (1), for "regulation 34(1)(a) or (b)", substitute "regulation 34(1)(a), (b) or (c)"; and

(b) after paragraph (2) insert–

"(3) The exceptions in paragraphs (1) and (2) shall not apply where it is shown that–

(a) there was a satisfactory alternative to what was done; or

(b) what was done was detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.".

6. In regulation 36A (monitoring incidental capturing and killing)–

(a) in paragraph (1), after "arrangements", insert "in accordance with paragraphs (1A) and (1B)";

(b) after paragraph (1) insert–

"(1A) The Department shall, in relation to the species of animals listed in Annex IV(a) to the Habitats Directive which are found in Northern Ireland–

(a) identify the risks of incidental capture and incidental killing to which those species are subject, and the activities which give rise to such risks;

(b) maintain a record of instances of incidental capture or incidental killing of animals of those species;

(c) assess to what extent monitoring of incidental capture and incidental killing is needed, having regard to–

(i) the risks identified under sub-paragraph (a);

(ii) the instances of incidental capture or incidental killing recorded under sub-paragraph (b);

(iii) whether the species is a priority species; and

(iv) the conservation status of the species; and

(d) ensure that monitoring of incidental capture and incidental killing is carried out.

(1B) Monitoring for the purposes of this regulation may be carried out by–

(a) the Department;

(b) any other competent authority; or

(c) any other person acting pursuant to, and in accordance with–

(i) an agreement with the Department; or

(ii) a condition of a licence or other authorisation granted by a competent authority."; and

(c) for paragraph (4) substitute–

"(4) In this regulation, in relation to any marine area–

(a) for the words "the Department" where they occur substitute "the Secretary of State" (but see subparagraph (b));

(b) the activities referred to in paragraphs (1A)(a) to (c) and (1B)(a) shall be carried out by the Department on behalf of the Secretary of State.".

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Conservation (Natural Habitats etc.) Regulations (Northern Ireland) 1995 ("the 1995 Regulations") which make provision for implementing Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora ("the Habitats Directive") (O.J. No L206, 22.7.92, p.7).

Regulation 3 amends regulation 9A of the 1995 Regulations to specify in greater detail the arrangements to be made by the Department, or the Secretary of State as the case may be, for the surveillance of the conservation status of natural habitat types of Community interest and species of Community interest. Similarly, regulation 6 amends regulation 36A of the 1995 Regulations to specify in greater detail the arrangements to be made by the Department, or the Secretary of State as the case may be, for monitoring the incidental capture and incidental killing of animals of the species listed in Annex IV(a) to the Habitats Directive.

Regulation 4 amends regulation 34 of the 1995 Regulations by amending the terms of the offence of deliberately disturbing a European protected species of animal. It also revokes regulation 34(8), (9) and (10) which contained special provision as to the interpretation of the disturbance offence in regulation 34(1) in relation to sea fishing.

Regulation 5 amends regulation 35 of the 1995 Regulations, which contains defences to the offences contained in regulation 34 relating to European protected species of animal, by providing that those defences do not apply where it is shown that there was a satisfactory alternative to the defendant´s action or that the action was detrimental to the maintenance of the population concerned at a favourable conservations status.