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European Union Wild Birds and Habitats Directives

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  • August 2008: On 29 August, Defra, on behalf of the UK Government, submitted two new terrestrial sites and five new offshore marine sites to the European Commission as candidate Special Areas of Conservation (cSAC) under the EC Habitats Directive. Further details of this submission, including existing site amendments, can be found via Information Bulletin: 286/08
  • March 2008: Defra publishes a letter inviting operators and regulators seeking, or giving, approval for maintenance dredging activities that could potentially affect European sites (also known as Natura 2000 or N2K sites) in England to adopt the Maintenance Dredging Protocol process.
  • January 2008: Defra publishes the Maintenance Dredging Protocol. The Protocol provides assistance to operators and regulators seeking, or giving, approval for maintenance dredging activities that could potentially affect sites protected by the Habitats Directive, by enabling site protection issues associated with the Habitats and Wild Birds Directives to be dealt with in a streamlined and proportionate manner.

European Union; Wild Birds and Habitats Directives

Wild Birds Directive

Council Directive 79/409/EEC on the conservation of wild birds (link to Europa), also known as the 'Wild Birds Directive', provides a framework for the conservation and management of, and human interactions with, wild birds in Europe. It sets broad objectives for a wide range of activities designed to protect wild birds, although the precise legal mechanisms for their achievement are at the discretion of each Member State. In the UK, protection mechanisms are implemented through several different statutes. Further information on the provisions and a full copy of the Directive can be found via:  http://www.jncc.gov.uk/page-1373.

In the UK, the provisions of the Birds Directive are implemented through the Wildlife & Countryside Act 1981 (as amended) The Conservation (Natural Habitats, &c.) Regulations 1994 (as amended), the Wildlife (Northern Ireland) Order 1985, the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 and The Conservation (Natural Habitats, etc) Regulations (Northern Ireland) 1995 (as amended).

Further information on the Wildlife and Countryside Act 1981 can be found via: http://www.jncc.gov.uk/page-1377.   

Habitats Directive

Council Directive 92/43/EEC on the Conservation of natural habitats and of wild fauna and flora, also known as the ‘Habitats Directive’, requires EC Member States to introduce a range of measures for the protection of habitats and species listed in its Annexes. Further information on the Directive can be found via: http://www.jncc.gov.uk/page-1374

In the UK the Directive has been transposed into national laws by means of the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended), and the Conservation (Natural Habitats, etc) Regulations (Northern Ireland) 1995 (as amended). The 1994 Regulations (known as the Habitats Regulations) came into force on 30 October 1994 and provide for the designation and protection of 'European sites', the protection of 'European protected species', and the adaptation of planning and other controls for the protection of European Sites.

Under the Regulations, competent authorities i.e. any Minister, government department, public body, or person holding public office, also have a general duty, in the exercise of any of their functions, to have regard to the EC Habitats Directive. Further information on the '1994 Regulations' can be found via: http://www.jncc.gov.uk/page-137

Natura 2000

Natura 2000 is the European Union-wide network of protected areas, recognised as ‘sites of Community importance’ under the EC Habitats Directive (Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora) - The EC Habitats Directive (on Europa website).

The Natura 2000 network includes two types of designated areas: Special Areas of Conservation (SAC) and Special Protection Areas (SPA). SACs are designated under the EC Habitats Directive and SPAs are classified under the EC Wild Birds Directive (Council Directive 79/409/EEC on the conservation of wild birds) - The EC Wild Birds Directive (on Europa website).

Natura 2000 sites are proposed for selection by the statutory nature conservation agencies and are coordinated through the JNCC. Further information on the selection process and full lists of Natura 2000 sites in the UK can be found via the JNCC website: http://www.jncc.gov.uk/page-4

Special Protection Areas (SPAs)

In the UK, 252 SPAs have been classified covering 1,559,558 hectares. There are 78 SPAs in England (including 3 cross-border sites) covering 648,683 hectares (figures correct as of September 2006). A full list of SPAs can be found on the JNCC website under protected sites at www.jncc.gov.uk.

The UK SPA review, published in September 2001, provides a comprehensive review of the UK's SPA Network, with information presented on a site by site and species by species basis. Further details can be found via: http://www.jncc.gov.uk/page-1412.

A copy of the Offshore Natura 2000 Report published by JNCC on 7 May 2002 can also be found on the JNCC website: www.jncc.gov.uk

Special Areas of Conservation (SACs)

Each Member State is required to propose a national list of sites to form a European network of sites of Community importance (SCI). These are finally designated by Member States as Special Areas of Conservation (SAC). The UK list of SACs can be found via: http://www.jncc.gov.uk/page-1458.

The Habitats Directive introduces for the first time for protected areas, the precautionary principle, i.e. that projects can only be permitted to proceed, having ascertained that there will be no adverse effect on the integrity of the site. Projects may still be permitted, but only if it is shown that there are no alternatives, and that there are imperative reasons of overriding public interest. In such cases compensation measures must be taken to ensure the overall integrity of the Natura 2000 network. As a consequence of amendments to the Birds Directive, these measures also apply to SPAs.

There are currently 611 designated SACs in the UK covering over 2,504,016 hectares. Further details of these sites, including summaries of sites in England, Scotland, Wales and Northern Ireland can be found on the JNCC website via: http://www.jncc.gov.uk/page-1456.

On 8 December 2004 the European Commission (EC) announced the adoption of the list of sites of Community importance (SCI) for the Atlantic and Continental regions which, for the Atlantic region, included the list of 608 candidate Special Areas of Conservation (cSAC) submitted by the UK.

On April 2005, the Secretary of State designated these sites as SACs in England. The Defra press notice for this can be found on our website via: http://www.defra.gov.uk/news/2005/050401d.htm

Following the designation of SACs in Wales, Scotland, England and Northern Ireland, Defra released another press notice on 18 July: http://www.defra.gov.uk/news/2005/050718a.htm

Subsequently, all owners, occupiers and relevant stakeholders in England were notified by Natural England of the new designation and provided with new maps, citations and guidance leaflets.

On 31 March 2006, five further cSACs were submitted to the EC, contributing towards completing the list of UK sites in the Atlantic biogeographic region.

Amendments to the Habitats Regulations

On 6th August 2003 Defra carried out a consultation in England on proposed amendments to the Habitats Regulations. The amendments were principally to address a number of gaps and inconsistencies in the transposition of the Habitats Directive and to provide greater legal certainty in a number of areas. A similar consultation was carried out in Wales by the National Assembly for Wales.

Following this consultation the transposition of the Habitats Directive in the United Kingdom was subject to two European Court of Justice judgments (Case C-6/04, Commission v United Kingdom and Case C-131/05, Commission v United Kingdom). 

Two Defra consultations announced on 8 May 2006 and concluded on 30 June 2006 looked at amending the Habitats Regulations in England and Wales and the transposition of the Wild Birds Directive and Habitats Directive beyond UK territorial waters in light of the above judgments and the results of the previous consultations.

The consultation document covering the amendments to the Habitats Regulations and summary of the responses received can be viewed below.

The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (SI 2007/1843) make the appropriate amendments to the Habitats Regulations. The Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 (SI 2007/1842) transpose the Habitats Directive beyond the UK’s territorial waters (beyond 12 nautical miles). Copies of these regulations can be found on the Office of Public Sector Information website.

The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 provide combined amendments for England and Wales (although a few provisions extend to Scotland as well or extend to Scotland only). Scotland, Northern Ireland and Gibraltar have drafted similar provisions which have come into force in their territories following a similar timetable.

The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 entered into force on 21 August 2007, except paragraph 21 of regulation 5, which comes into force on 21 November 2007.

The amendments:

  • simplify the species protection regime to better reflect the Habitats Directive;
  • provide a clear legal basis for surveillance and monitoring of European protected species (EPS);
  • toughen the regime on trading EPS that are not native to the UK;
  • ensure that the requirement to carry out appropriate assessments on water abstraction consents and land use plans is explicit.

Further Information

For more information see the Offshore Marine Conservation Regulations pages and our latest press release.

Defra has prepared guidance on the implications of the Habitats Regulations Amendments for stakeholders:

Questions and Answers relating to the Amendment Regulations

For species

For species in woodland

For Natural England licence application forms and guidance on licensing

For plans and projects

The Environment Agency and DCLG have published guidance for those who need to consider impacts on European sites with regards to land use and water abstraction plans and projects.

This guidance can be found at:
www.communities.gov.uk/index.asp?id=1502244 and;
www.communities.gov.uk/index.asp?id=1165623 and
http://www.environment-agency.gov.uk/subjects/waterres/564321/?version=1&lang=_e

For specific sectors

For further guidance on woodland issues please see the Forestry Commission web site

Maintenance Dredging Protocol for England

This Protocol provides assistance to operators and regulators seeking, or giving, approval for maintenance dredging activities that could potentially affect European sites (also known as Natura 2000 or N2K sites) around the coast of England.

The Government considers that the EC Habitats Directive (92/43/EC) requires maintenance dredging proposals, which could potentially affect European sites, to be assessed in accordance with Article 6(3) of the Directive.

Whilst not endorsing this interpretation of the law, representatives of the ports and marine leisure industries agreed to work in co-operation with Defra, DfT and Natural England (NE) to develop an approach which allows the effect of maintenance dredging on European sites to be assessed without placing a disproportionate burden on those who commission or approve maintenance dredging operations. The Protocol sets out the process by which this is achieved.

Defra has now published a letter to relevant operators and regulators inviting their adoption of the Protocol. This explains the Protocol process in more detail and sets out how and when the Protocol will be rolled out. Defra would be pleased to have a decision as to whether to adopt or not by 1 August 2008.

LIFE/Nature

Established under Regulation (EEC) No 1973/92, as modified by Regulation (EC) 165/2000 of 29 June 2000. LIFE is administered by the European Commission DGXI. It aims at co-financing actions in nature conservation and other fields of the environment.

LIFE/Nature must contribute to the implementation of the EC Wild Birds Directive and the EC Habitats Directive and in particular to the establishment of the European network of protected areas, Natura 2000. Information on project applications for 2002 is obtainable from http://europa.eu.int/comm/environment/life/home.htm.

The Birds and Habitats Directives: Outline Government Position (May 1998)

  • The Government is fully committed to carrying out its legal obligations to implement the EC Habitats and Wild Birds Directives and, as part of that process, to contribute to the Natura 2000 network by designating Special Areas of Conservation (SACs) and Special Protection Areas (SPAs). The provisions of the Habitats Directive were transposed into UK law by the Conservation (Natural Habitats &c) Regulations 1994 (the Habitats Regulations) and the Conservation (Natural Habitats etc.) Regulations (Northern Ireland) 1995.
  • The Government has made good progress in classifying SPAs and to date 202 sites have been classified covering approximately 937,000 hectares. In selecting sites and considering developments which might affect them, the Government takes the position as set out below. This statement should be read together with Planning Policy Guidance: Nature Conservation (PPG9), Scottish Office circular 6/1995 (Habitats and Birds Directives), Technical Advice Note (Wales) 5: Nature Conservation and Planning and Planning and Nature Conservation (NI -PPS2).

Site selection

  • Following the judgment of the European Court of Justice in the Lappel Bank case, it is clear that Member States may only take account of scientific matters in selecting SPAs under the Wild Birds Directive and identifying their boundaries. The Government considers that the Habitats Directive also requires the selection of SACs and determination of their boundaries to be undertaken on the basis of scientific criteria.
  • In every case, the Government, through its agencies, conducts a detailed public consultation on possible SACs and potential SPAs and allows consideration and, if possible, resolution of any concerns raised before the site is classified as an SPA or submitted to the European Commission as a candidate SAC as appropriate. However, during that consultation it sometimes becomes clear that a few sites which qualify for selection on scientific grounds contain areas which may be subject to development pressures, and some include areas for which there are valid planning permissions, the implementation of which would have a significant effect on the nature conservation interests for which the sites have been selected. The valid permissions are mainly, but not exclusively, for mineral extraction.

Review of extant permissions

  • Once a SPA has been classified the obligation arises under the Habitats Regulations for the local planning authority to review any extant permissions likely to have a significant effect on the site.
  • Under the Regulations, where such review takes place, the relevant planning authority must consult the appropriate nature conservation agency. The Government encourages the agencies to engage in discussions with the local planning authority (which may be a minerals planning authority) and developers in order to assist the authority in carrying out its functions under Article 6(3) and (4) of the Habitats Directive, as transposed by the Habitats Regulations. The following possibilities arise:

The conclusion may be reached on the advice of the nature conservation agency that the permission is not likely to have a significant effect on the site or, following an assessment, that the permission will not have an adverse effect on site integrity. In such cases the permission may be implemented as planned.

Alternative approaches through agreed conditions or adaptation to the means of working might be adopted so that the risk of an adverse effect on site integrity is removed.

An alternative to the existing permission might be agreed by identifying a different area for which planning permission could be given (subject to the normal planning processes and considerations) which would not be damaging to that or any other nature conservation site.

Permissions might lapse through time expiry or, for minerals permissions, under the provisions of Schedule 13 to the Environment Act 1995(in Scotland, Schedule 9 of the Town and Country Planning (Scotland) Act 1997). Minerals planning authorities (planning authorities in Scotland) are encouraged to exercise their powers under Schedule 9 to the Town and Country Planning Act 1990 (in Scotland, Schedule 8 part I of the Town and Country Planning (Scotland) Act 1997) to make orders prohibiting the resumption of mineral working in appropriate cases.

The developer might voluntarily relinquish all or part of the planning consent in recognition of the value of the site for nature conservation.

If there are no alternatives and if the threat of damage to the site cannot be removed by any of the above means, in accordance with the Habitats Regulations the permission may still be implemented if there are imperative reasons of overriding public interest. (This may in certain cases require an opinion from the European Commission). All compensatory measures must be taken which are necessary to ensure that the coherence of the Natura 2000 network of SACs and SPAs is protected.

  • The Government stated in a written Parliamentary answer on 6 July 1994 that in cases where such compensation is payable, it would consider reimbursing the local authority where costs were high and where the action taken was no more than necessary to remove the risk to the site. That remains the position. (In Scotland the position is as set out in paragraph 20 of circular 6/1995.) However the Government would need to be satisfied in such cases that discussion and negotiation had explored all the possibilities set out in I)-v) above before agreeing to such reimbursement in order to minimise the cost to the public purse.

Imperative reasons of overriding public interest

  • The Regulations require authorities to establish that there are no alternative solutions before a plan or project can be approved for imperative reasons of overriding public interest. As stated in PPG9, authorities should consider whether there are likely to be suitable and available sites which are reasonable alternatives for the development or different practicable approaches which would have a lesser impact. The Government expects there to be few cases where it is judged that imperative reasons of overriding public interest will allow a development to proceed which will have an adverse effect on the integrity of the internationally important SPA or SAC designations. This applies equally to new proposals and to developments with valid existing permissions. The judgment will involve an assessment of the importance of the development and whether it is sufficient to override the nature conservation importance of that site. Developments must pass the most stringent tests. In many cases, it may be possible to negotiate a sustainable development solution which would remove or reduce an apparent conflict. But where such possibilities have been explored and conflict remains and where the local authority believes the development should proceed, the Habitats Regulations set out a procedure by which, in addition to the local authority, the Government (and in certain cases affecting priority habitats or species, the European Commission) may consider whether the overriding public interest considerations should apply.
  • Where there are no alternative solutions, each case will be judged on its merits but the Government considers that the following guiding principles will be relevant to deciding whether imperative reasons of overriding public interest are demonstrated:

A need to address a serious risk to human health and public safety;

The interests of national security and defence;

The provision of a clear and demonstrable direct environmental benefit on a national or international scale;

A vital contribution to strategic economic development or regeneration;

Where failure to proceed would have unacceptable social and/or economic consequences.

When considering cases against these principles, in general, projects of national importance are most likely to be judged as giving rise to imperative reasons of overriding public interest. Important regional projects might also be so judged. Whilst projects of more local significance are not ruled out it is less likely that their potential benefits will be considered to override the nature conservation value of the sites.

  • The relative importance of the SPA or SAC within the European network will also weigh in the balance of considerations. Some sites are designated for habitat types and species which are listed as priority under the Habitats Directive. These must be subject to particularly stringent scrutiny. In these cases the Directive requires considerations other than human health and public safety or overriding environmental reasons to be subject to an opinion from the European Commission.

Where the importance of the development is judged to outweigh the nature conservation importance of the site, compensatory habitat measures must be taken to maintain the coherence of the Natura 2000 network. In cases where the habitat types or species affected are relatively abundant and the Government has designated or is proposing to designate only part of the national resource, it may be possible for an area of similar quality and character to be identified for designation which could, at least in part, replace the loss to the network. This will become increasingly difficult with the rarer habitat types and species; in the cases of the most rare especially, all suitable sites are already likely to be designated or proposed for designation. In these cases the possibilities for restoration of damaged habitat or creation of replacement habitat will need to be considered. This may be costly and often technically difficult or ecologically untried. In certain cases the habitat affected may be irreplaceable. Wherever possible, the Government would expect the developer, under 'polluter pays' principles, to bear the cost of compensatory measures. If re-creation or restoration is specified as compensatory measures, the Government would expect the area concerned to become, within a clear timescale, of sufficient quality to ensure that the coherence of the Natura 2000 network is protected.

Page last modified: 29 August 2008

Department for Environment, Food and Rural Affairs