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(16) After regulation 41 (prohibition of certain methods of taking or killing wild animals) insert the following regulations—

“Monitoring of incidental capture and killing

41A.—(1) The Secretary of State shall make arrangements to establish a system to monitor—

(a) the incidental capture of animals of the species listed in Annex IV(a) to the Habitats Directive, and

(b) the incidental killing of such animals,

which (in either case) takes place in England.

(2) The Secretary of State shall from time to time—

(a) consult the devolved administrations about the arrangements he has made under paragraph (1);

(b) provide the devolved administrations with such information as he considers appropriate derived from the monitoring arranged by him under paragraph (1); and

(c) review the arrangements he has made under paragraph (1) and, if he thinks it appropriate, revise those arrangements.

(3) The Welsh Ministers shall make arrangements to establish a system to monitor—

(a) the incidental capture of animals of the species listed in Annex IV(a) to the Habitats Directive, and

(b) the incidental killing of such animals,

which (in either case) takes place in Wales.

(4) The Welsh Ministers shall from time to time—

(a) consult the Secretary of State and the other devolved administrations about the arrangements it has made under paragraph (3);

(b) provide the Secretary of State and the other devolved administrations with such information as it considers appropriate derived from the monitoring arranged by it under paragraph (3); and

(c) review the arrangements it has made under paragraph (3) and, if it thinks it appropriate, revise those arrangements.

(5) In this regulation “the devolved administrations” means the Welsh Ministers, the Department of the Environment in Northern Ireland and the Scottish Ministers.

Protection from incidental capture and killing

41B.—(1) If the Secretary of State considers it necessary, in the light of information derived from monitoring arranged under regulation 41A or otherwise arranged for the purpose of Article 12(4) of the Habitats Directive, he shall (in England) make arrangements for further research for, or ensure that conservation measures are taken for, the purpose specified in paragraph (2).

(2) The purpose referred to in paragraph (1) is to ensure that any incidental capture or incidental killing of animals of a species listed in Annex IV(a) to the Habitats Directive which takes place in England does not have a significant negative impact on that species.

(3) If the Welsh Ministers consider it necessary, in the light of information derived from monitoring arranged under regulation 41A or otherwise arranged for the purpose of Article 12(4) of the Habitats Directive, they shall (in Wales) make arrangements for further research for, or ensure that conservation measures are taken for, the purpose specified in paragraph (4).

(4) The purpose referred to in paragraph (3) is to ensure that any incidental capture or incidental killing of animals of a species listed in Annex IV(a) to the Habitats Directive which takes place in Wales does not have a significant negative impact on that species.”.

(17) For regulation 43 (protection of wild plants of European protected species) substitute the following regulation—

“Protection of certain wild plants

43.—(1) It is an offence deliberately to pick, collect, cut, uproot or destroy a wild plant of a European protected species.

(2) It is an offence for any person—

(a) to have in his possession or control,

(b) to transport,

(c) to sell or exchange, or

(d) to offer for sale or exchange,

anything to which this paragraph applies.

(3) Paragraph (2) applies—

(a) to any live or dead plant, or part of a plant—

(i) which has been taken in the wild; and

(ii) which is of a species or subspecies listed in Annex II(b) (other than any bryophyte) or Annex IV(b) to the Habitats Directive; and

(b) to any part of, or anything derived from, such a plant or such a part of a plant.

(4) Paragraphs (1) and (2) apply regardless of the stage of the biological cycle of the plant in question.

(5) A person shall not be guilty of the offence under paragraph (1) of picking or cutting a wild plant of a European protected species if this was done solely—

(a) for the purpose of taking a sample by virtue of—

(i) section 18C, 18E or 19XA of the 1981 Act(29);

(ii) regulation 101A or 101E of these Regulations;

(iii) regulation 9(3) or (5) of the 1997 Regulations; or

(iv) regulation 56(2) of the 2007 Regulations; or

(b) for the purpose of taking a sample to be used in evidence in any criminal proceedings in respect of any of the following offences (wherever the offence was committed)—

(i) an offence under section 13 or 17 of the 1981 Act or an offence under section 18 of that Act which relates to an offence under section 13;

(ii) an offence under regulation 43 or regulation 46 of these Regulations or an offence under regulation 100 of these Regulations which relates to an offence under regulation 43(30);

(iii) an offence under the 1997 Regulations or an offence of attempting to commit such an offence; or

(iv) an offence under regulation 43 or 51 of the 2007 Regulations, an offence of attempting to commit an offence under regulation 43 of those Regulations, or an offence under regulation 64 of those Regulations which relates to an offence under regulation 43 of those Regulations.

(6) A person shall not be guilty of an offence under paragraph (2)(a) or (b), if he shows that the act in question was done solely for one or more of the purposes of—

(a) investigating whether any of the following offences is being or has been committed (wherever the offence was committed)—

(i) an offence under section 13 or 17 of the 1981 Act or an offence under section 18 of that Act which relates to an offence under section 13;

(ii) an offence under regulation 43 or regulation 46 of these Regulations or an offence under regulation 100 of these Regulations which relates to an offence under regulation 43;

(iii) an offence under the 1997 Regulations or an offence of attempting to commit such an offence; or

(iv) an offence under regulation 43 or 51 of the 2007 Regulations, an offence of attempting to commit an offence under regulation 43 of those Regulations, or an offence under regulation 64 of those Regulations which relates to an offence under regulation 43 of those Regulations; or

(b) bringing, conducting, or giving evidence in, any criminal proceedings in respect of any such offence; or

(c) giving effect to an order under—

(i) section 21(6) of the 1981 Act;

(ii) regulation 103 of these Regulations; or

(iii) regulation 11 of the 1997 Regulations.

(7) Subject to paragraph (8), a person shall not be guilty of an offence under paragraph (2) if he shows that the plant or part of the plant in question, or the plant or part of the plant from which the part or thing in question is derived, was lawfully taken in the wild.

(8) The defence in paragraph (7) does not apply—

(a) in the case of the offences in paragraph (2)(a) and (b), if—

(i) the plant in question is of a European protected species, or the part or thing in question is derived from such a plant; and

(ii) the plant, part or thing in question was in the defendant’s possession or control, or transported by the defendant, for the purpose of sale or exchange; or

(b) in the case of the offences in paragraph (2)(c) and (d), if the plant in question is of a European protected species, or the part or thing in question is derived from such a plant.

(9) For the purposes of paragraph (7) a plant, or part of a plant, shall be treated as having been lawfully taken in the wild if—

(a) it was taken in the wild in the European territory of a member State, being territory to which the EC Treaty applies, without contravention of the law of that member State and before the implementation date; or

(b) it was taken in the wild elsewhere.

(10) Unless the contrary is shown, in any proceedings for an offence under paragraph (1) the plant in question shall be presumed to have been a wild plant.

(11) In any proceedings for an offence under paragraph (2), where it is alleged that a plant or a part of a plant was taken in the wild, it is to be presumed, unless the contrary is shown, that that plant or part of a plant was taken in the wild.

(12) A person guilty of an offence under this regulation is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(13) In this regulation—

“the 1981 Act” means the Wildlife and Countryside Act 1981(31);

“the 1997 Regulations” means the Control of Trade in Endangered Species (Enforcement) Regulations 1997(32);

“the implementation date”—

“relevant State” means the State in whose territory the plant, or part of it, was taken in the wild.”.

(18) In regulation 44 (grant of licences for certain purposes)—

(a) after paragraph (2), insert the following paragraphs—

“(2A) Subject to paragraph (2B), the appropriate authority may grant a licence to permit the taking or the possession or control of certain specimens of any of the species or subspecies listed in Annex II(b) (other than any bryophyte) or Annex IV to the Habitats Directive notwithstanding that the licence is for a purpose not falling within paragraph (2).

(2B) The appropriate authority may only grant a licence under paragraph (2A) if it is satisfied that the grant of the licence would be consistent with the restrictions in Article 16(1)(e) of the Habitats Directive (namely “under strictly supervised conditions, on a selective basis and to a limited extent” and “in limited numbers”).

(2C) Regulations 39, 41 and 43 do not apply to anything done under and in accordance with the terms of a licence granted by the appropriate authority under paragraph (2A).”;

(b) omit “and” at the end of paragraph (4)(a);

(c) at the end of paragraph (4)(b) for the full stop substitute “; and”; and

(d) after paragraph (4)(b) add the following sub-paragraph—

“(c) in the case of a licence granted under paragraph (2A), the Secretary of State (in relation to England) or the Welsh Ministers (in relation to Wales).”.

(19) In regulation 45 (licences: supplementary provisions)—

(a) in paragraph (1) for “A licence” substitute “Subject to the provisions of this regulation, a licence”;

(b) after paragraph (1) insert the following paragraph—

“(1A) A licence under regulation 44(2A) may only be granted to such persons as are named in the licence.”; and

(c) after paragraph (4) insert the following paragraph—

“(4A) A licence granted under regulation 44(2A) shall specify—

(a) the species or subspecies of animal or plant to which the licence relates;

(b) the maximum number of specimens which the person authorised by the licence may take or have in his possession or under his control, or which particular specimens that person may take or have in his possession or under his control;

(c) the conditions subject to which the action authorised by the licence may be taken and in particular—

(i) the methods, means or arrangements by which specimens may be taken or be in the possession or control of the person authorised by the licence;

(ii) when or over what period the action authorised by the licence may be taken; and

(iii) where the licence authorises any person to take specimens, the area from which they may be taken.”.

(20) In regulation 46 (false statements made for obtaining licence), in paragraph (2),—

(a) after “summary conviction” insert “to imprisonment for a term not exceeding six months or”;

(b) for “4” substitute “5”; and

(c) after “standard scale” insert “, or to both”.

(21) After regulation 46 (false statements made for obtaining licence) insert the following regulation—

“Offence of breaching licence condition

46A.—(1) It is an offence for any person authorised by virtue of a licence to which this paragraph applies to contravene or fail to comply with any condition which the licence requires him to comply with.

(2) Paragraph (1) applies to a licence granted under regulation 44 on or after 21st August 2007.

(3) A person shall not be guilty of an offence under paragraph (1) if he shows that—

(a) he took all reasonable precautions and exercised all due diligence to avoid commission of the offence; or

(b) the commission of the offence was otherwise due to matters beyond his control.

(4) A person guilty of an offence under paragraph (1) is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.”.

(22) In regulation 47 (application of provisions of this Part)—

(a) in paragraph (1)(a), after “European sites” insert “in Great Britain and European offshore marine sites”;

(b) in paragraph (2)(b), after “European site” insert “in Great Britain or European offshore marine site”; and

(c) after paragraph (2), add—

“(3) Nothing in these Regulations requires an appropriate assessment of any plan or project to be carried out on or in any part of the waters or on or in any part of the seabed or subsoil comprising the offshore marine area, or on or in relation to an offshore marine installation.”.

(23) In regulation 48 (assessment of implications for European site)—

(a) in paragraph (1)(a), after “Great Britain” insert “or a European offshore marine site”;

(b) at the end of paragraph (2) insert—

“or to enable them to determine whether an appropriate assessment is required”;

(c) in paragraph (5), after “European site” insert “or European offshore marine site (as the case may be)”;

(d) for paragraph (7), substitute—

“(7) This regulation does not apply in relation to a site which is—

(a) a European site by reason of regulation 10(1)(c); or

(b) a European offshore marine site by reason of regulation 15(c) of the 2007 Regulations.”; and

(e) after paragraph (7), add the following paragraph−

“(8) Where a plan or project requires an appropriate assessment both under this regulation and under the 2007 Regulations, the assessment required by this regulation need not identify those effects of the plan or project that are specifically attributable to that part of it that is to be carried out in Great Britain, provided that an assessment made for the purpose of this regulation and the 2007 Regulations assesses the effects of the plan or project as a whole.”.

(24) In regulation 49 (considerations of overriding public interest)—

(a) In paragraph (2), for sub-paragraph (b) substitute the following sub-paragraph—

“(b) any other reasons which the competent authority, having due regard to the opinion of the European Commission, considers to be imperative reasons of overriding public interest”; and

(b) in paragraph (5) for “a European site” substitute “the site concerned”.

(25) In regulation 50 (review of existing decisions and consents, &c), in paragraph (1), after “European site” insert “or a European offshore marine site”.

(26) In regulation 52 (co-ordination where more than one competent authority involved), in sub-paragraphs (a) and (b) of paragraph (3), after “European site” insert “or a European offshore marine site”.

(27) In regulation 53 (compensatory measures), in paragraph (a), after “European site” insert “or European offshore marine site”.

(28) In regulation 53A(33) (control of operations requiring consent)—

(a) in paragraph (1) for “European site” substitute “European sites in Great Britain and European offshore marine sites”; and

(b) in paragraph (2), after “European site” insert “or European offshore marine site”.

(29) In regulation 54 (grant of planning permission)—

(a) in paragraph (1) for “European site” substitute “European sites in Great Britain and European offshore marine sites”;

(b) in paragraph (2) for “European site” substitute “European sites in Great Britain and European offshore marine sites”;

(c) in paragraph (3), after “European site” insert “or European offshore marine site”; and

(d) in paragraph (4), after “European site” insert “or European offshore marine site”.

(30) In regulation 56(3) (planning permission: consideration on review), after “European site” insert “or European offshore marine site”.

(31) In regulation 57(6) (effect of orders made on review: England and Wales), after “European site” insert “or European offshore marine site”.

(32) In regulation 58(6) (effect of orders made on review: Scotland), after “European site” insert “or European offshore marine site”.

(33) In regulation 60 (general development orders), in paragraph (1)(a), after “Great Britain” insert “or a European offshore marine site”.

(34) In regulation 62 (general development orders: approval of local planning authority), in paragraph (6)—

(a) after “In any other case” insert “in which the application has been sent to the appropriate nature conservation body,”; and

(b) after “European site” insert “or European offshore marine site”.

(35) In regulation 64 (special development orders)—

(a) in paragraph (2), for “this regulation” substitute “paragraph (1)”; and

(b) after paragraph (2) insert the following paragraph—

“(3) A special development order made on or after 21st August 2007 may not grant planning permission for development which is likely to have a significant effect on a European offshore marine site (either alone or in combination with other plans or projects).”.

(36) After regulation 64 (special development orders) insert the following regulation—

“Local development orders

64A.  A local development order made on or after 21st August 2007 may not grant planning permission for development which—

(a) is likely to have a significant effect on a European site in Great Britain or a European offshore marine site (either alone or in combination with other plans or projects), and

(b) is not directly connected with or necessary to the management of the site.”.

(37) After regulation 65 (simplified planning zones) insert the following regulation—

“Simplified planning zones and European offshore marine sites

65A.  The adoption or approval of a simplified planning zone scheme on or after 21st August 2007 shall not have effect to grant planning permission for development which is likely to have a significant effect on a European offshore marine site (either alone or in combination with other plans or projects).”.

(38) After regulation 66 (enterprise zones) insert the following regulation—

“Enterprise zones and European offshore marine sites

66A.  An order designating an enterprise zone, or the approval of a modified scheme, if made or given on or after 21st August 2007, shall not have effect to grant planning permission for development which is likely to have a significant effect on a European offshore marine site (either alone or in combination with other plans or projects).”.

(39) In regulation 69 (construction or improvement of highways or roads)—

(a) in paragraph (1) for “European site” substitute “European sites in Great Britain and European offshore marine sites”; and

(b) in paragraph (2) after “European site” insert “or European offshore marine site”.

(40) In regulation 69A(1)(34) (core and other paths) for “European site” substitute “European sites in Great Britain and European offshore marine sites”.

(41) In regulation 71 (consents under Electricity Act 1989: application of general requirements)—

(a) in paragraph (1)—

(i) for “European site” substitute “European sites in Great Britain and European offshore marine sites”;

(ii) in sub-paragraph (a), after “generating station” insert “in Great Britain”;

(b) in paragraph (2), after “European site” insert “or European offshore marine site”;

(c) in paragraph (3)(a)—

(i) after “European site” insert “in Great Britain”; and

(ii) omit “or” where it occurs for the second time;

(d) in paragraph (3)(b), omit “or”;

(e) at the end of paragraph (3)(c), for the full stop substitute “, or”;

(f) after paragraph (3)(c), add the following sub-paragraph—

“(d) the works to which the consent relates have been completed before the site became a European offshore marine site.”;

(g) in paragraph (4), after “European site” insert “or European offshore marine site”; and

(h) after paragraph (5), add the following paragraph—

“(6) In this regulation and in regulations 72, 73 and 74, references to the Electricity Act 1989(35) are to that Act as it had effect on 1st April 2006.”.

(42) In regulation 75 (authorisations under the Pipe-lines Act 1962: application of general requirements)—

(a) in paragraph (1) for “European site” substitute “European sites in Great Britain and European offshore marine sites”;

(b) in paragraph (2) after “European site” insert “or European offshore marine site”;

(c) in paragraph (3)(a)—

(i) after “European site” insert “in Great Britain”; and

(ii) omit “or” where it occurs for the second time;

(d) in paragraph (3)(b), omit “or”;

(e) at the end of paragraph (3)(c), for the full stop substitute “, or”;

(f) after paragraph (3)(c), add the following sub-paragraph—

“(d) the works to which the consent relates have been completed before the site became a European offshore marine site.”; and

(g) in paragraph (4) after “European site” insert “or European offshore marine site”.

(43) In regulation 79 (orders under the Transport and Works Act 1992: application of general requirements)—

(a) in paragraph (1), for “European site” substitute “European sites in Great Britain and European offshore marine sites”;

(b) in paragraph (2), after “European site” insert “or European offshore marine site”;

(c) in paragraph (3), after “European site” insert “or a European offshore marine site”; and

(d) in paragraph (4), after “European site” insert “or European offshore marine site”.

(44) In regulation 83 (authorisations under Part I of the Environmental Protection Act 1990)—

(a) omit paragraphs (1) and (2);

(b) in paragraph (3), for “such authorisation as is mentioned in paragraph (1)” substitute “authorisation under Part I of the Environmental Protection Act 1990”; and

(c) in paragraph (5) omit “agreeing to a plan or project, or”.

(45) In regulation 84 (licences under Part II of the Environmental Protection Act 1990)—

(a) in paragraph (1)—

(i) for “European site” substitute “European sites in Great Britain and European offshore marine sites”,

(ii) at the end of sub-paragraph (a) add “, and”,

(iii) at the end of sub-paragraph (b) omit “, and”, and

(iv) omit sub-paragraph (c);

(b) in paragraph (2) after “European site” insert “or European offshore marine site”; and

(c) in paragraph (4) after “European site” insert “or European offshore marine site”.

(46) In regulation 84A(36) (permits under the Pollution Prevention and Control (England and Wales) Regulations 2000) as it has effect in England and Wales—

(a) in paragraph (1), for “European site” substitute “European sites in Great Britain and European offshore marine sites”;

(b) in paragraph (2), after “European site” insert “or European offshore marine site”; and

(c) in paragraph (4), after “European site” insert “or European offshore marine site”.

(47) In regulation 84A(37) (permits under the Pollution Prevention and Control (Scotland) Regulations 2000) as it has effect in Scotland—

(a) in paragraph (1), for “European site” substitute “European sites in Great Britain and European offshore marine sites”;

(b) in paragraph (2), after “European site” insert “or European offshore marine site”; and

(c) in paragraph (4), after “European site” insert “or European offshore marine site”.

(48) After regulation 84A (permits under the Pollution Prevention and Control (England and Wales) Regulations 2000) insert the following regulation—

“Abstraction and works authorised under water legislation

84B.—(1) Regulations 48 and 49 (requirement to consider effect on European sites in Great Britain and European offshore marine sites) apply in relation to the granting of an authorisation by virtue of—

(a) the granting of a licence under Chapter 2 of Part 2 of the WRA (abstraction and impounding);

(b) the making of an order under section 27A(38) of the WRA (variation of small quantity threshold);

(c) the making of regulations under section 33A(39) of the WRA (power to provide for further exemptions), where those regulations relate to—

(i) a prescribed geographical area;

(ii) a prescribed source of supply (in the case of an exemption from the restriction on abstraction or the other restrictions imposed by section 24(40) of the WRA); or

(iii) prescribed inland waters (in the case of an exemption from the restriction on impounding works);

(d) any consent given under paragraph (2);

(e) the making of an order under section 73(41) of the WRA (power to make ordinary and emergency drought orders) which has the effect of authorising—

(i) an abstraction or additional abstraction; or

(ii) a discharge or additional discharge;

(f) the granting of a permit under section 79A(42) of that Act (drought permits);

(g) any consent given under section 166(43) of the WIA (consents for certain discharges under section 165) or section 164(44) of the WRA (consents for certain discharges under section 163); or

(h) the making of an order under section 167 of the WIA (compulsory works orders) or section 168(45) of the WRA (compulsory works orders).

(2) An exemption conferred by regulations under section 33A of the WRA, other than regulations referred to in paragraph (1)(c), shall not apply in relation to any particular abstraction or impounding works unless the Agency has given consent in writing to the abstraction or impounding works being carried out.

(3) Where, in relation to any plan or project authorised by any means referred to in sub-paragraphs (a) to (h) of paragraph (1), the competent authority consider that any adverse effects of the plan or project on the integrity of a European site or European offshore marine site would be avoided if the authorisation were subject to conditions, they may grant the authorisation, or cause it to be granted, subject to those conditions.

(4) Where, by virtue of paragraph (1)(g), regulations 48 and 49 apply in relation to the granting of an authorisation by virtue of a consent under section 166 of the WIA or section 164 of the WRA, the section in question shall have effect as if in each case—

(a) in subsection (3), the words “and, subject to that subsection, where an application for any consent is required to be determined within the period specified in paragraph (a) above and is not so determined, the consent applied for shall be deemed to have been given unconditionally.” were omitted; and

(b) in paragraph (a) of that subsection, for the words “the period of seven days” there were substituted the words “the period of fourteen days”.

(5) Regulations 50 (requirement to review existing decisions and consents, etc) and 51 (consideration on review) apply to any authorisation mentioned in paragraph (1)(a), (b), (c), (d) or (h).

(6) Where on the review of any such authorisation the competent authority consider that any adverse effects on the integrity of a European site or European offshore marine site of the carrying out or, as the case may be, the continuation of the activities authorised by it would be avoided by a variation of the authorisation, they may vary it, or cause it to be varied, accordingly.

(7) In this regulation—

“the Agency” means the Environment Agency;

“the WIA” means the Water Industry Act 1991(46); and

“the WRA” means the Water Resources Act 1991(47).”.

(49) In regulation 84B(48) (abstraction and works authorised under water legislation) as it has effect in Scotland—

(a) in paragraph (2), after “European site” insert “or European offshore marine site”; and

(b) in paragraph (4), after “European site” insert “or European offshore marine site”.

(50) In regulation 85 (discharge consents under water pollution legislation)—

(a) in paragraph (1)—

(i) for “European site” substitute “European sites in Great Britain and European offshore marine sites;

(ii) in sub-paragraph (a), for “, or” substitute a full stop; and

(iii) omit sub-paragraph (b);

(b) in paragraph (2), after “European site” insert “or European offshore marine site”; and

(c) for paragraph (4), after “European site” insert “or European offshore marine site”.

(51) In regulation 85B(49) (assessment of implications for European site) as it has effect in Scotland—

(a) in paragraph (1)(a), after “Great Britain” insert “or a European offshore marine site”;

(b) in paragraph (4), after “European site” insert “or the European offshore marine site (as the case may be)”; and

(c) for paragraph (6) substitute—

“(6) This regulation does not apply in relation to a site which is—

(a) a European site by reason of regulation 10(1)(c); or

(b) a European offshore marine site by reason of regulation 15(c) of the 2007 Regulations.”.

(52) In regulation 85C(50) (considerations of overriding public interest) as it has effect in Scotland—

(a) in paragraph (1), after “European site” insert “or the European offshore marine site (as the case may be)”; and

(b) in paragraph (5), for “a European site” substitute “the site concerned”.

(53) In regulation 85D(51) (co-ordination for land use plan prepared by more than one planning authority) as it has effect in Scotland, in sub-paragraphs (a) and (b) of paragraph (3), after “European site”, insert “or a European offshore marine site”.