S.I. No. 378/2005 - European Communities (Natural Habitats) (Amendment) Regulations, 2005

S.I No. 378 of 2005

European Communities (Natural Habitats) (Amendment) Regulations, 2005

The Minister for the Environment, Heritage and Local Government, in exercise of the powers conferred on him by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive 79/409/EC of 2 April 1979¹ , Council Directive No. 92/43/EEC of 21 May 1992 ² , and Council Directive No. 97/62/EC of 27 October 1997³ , hereby makes the following Regulations:

1.         (1)  These Regulations may be cited as the European Communities (Natural Habitats) (Amendment) Regulations, 2005.

(2)  The Wildlife Act, 1976 , The Wildlife (Amendment) Act, 2000 , the European Communities (Natural Habitats) Regulations, 1997, ( S.I. No. 94 of 1997 ) (other than Part IV), the European Communities (Natural Habitats (Amendment) Regulations, 1998, ( S.I. No. 233 of 1998 ) and these Regulations shall be construed together as one.

2.         The Wildlife Act 1976 as amended by the Wildlife (Amendment) Act 2000 is amended -

(1)       In Section 9 by the insertion of the following provision after subsection (4):

“(5)  nothing shall be allowed to be done by a licence or permit that would not be allowed to be done by the provisions of the European Communities (Natural Habitats) Regulations 1997, as amended by the European Communities (Natural Habitats)(Amendment) Regulations 1998 and by the European Communities (Natural Habitats (Amendment) Regulations, 2005.”

(2)       in Section 21 subsection (3) by the substitution for paragraph (b) of the following:

“(b)  purchase, sell or exchange, transport, keep for sale or exchange offer for sale or exchange or be in possession of any such specimen or any specimen of a species listed in Annex IV(B) of Council Directive 92/43/EEC of 21 May 1992 and including any amendments that shall be made thereto, whether alive or dead or the flowers, roots, seeds spores or other part, product or derivative thereof.”;

(3)       in Section 23 by the insertion of the following provision after subsection (7):

“(7A) the provisions of subsection (7) of this section shall not apply to the species listed in Annex IV (A) of Council Directive 92/43/EEC of 21 May 1992, and including any amendments that shall be made thereto.”

(4)       in Section 45 by the substiution for subsection (1) of the following:

“(1)  A person who is not a licensed wildlife dealer shall not keep transport, sell or exchange, keep for sale or exchange, offer for sale or exchange, purchase for resale or exchange or engage in taxidermy in respect of-

(a)    a protected wild bird or protected wild animal, at any stage of its life, whether alive or dead, or any parts products or derivatives of such wild bird or animal

(b)    the eggs of a protected wild bird or the eggs or spawn of a protected wild animal, or any parts, products or derivatives thereof,

(c)    fauna, at any stage of its life, whether alive or dead, set out in Part I or II of the First Schedule of to the European Communities (Natural Habitats) Regulations, 1997, as amended by the European Communities (Natural Habitats (Amendment) Regulations, 1998 and by the European Communities (Natural Habitats) (Amendment Regulations, 2005, and being fauna within the meaning of this Act,

and shall not publish or cause to be published any advertisement catalogue, circular or price list likely to be understood as conveying that such a person buys or sells, or intends to buy or sell, or engages in taxidermy in respect of any protected wild bird or protected wild animal.”;

3.         The European Communities (Natural Habitats) Regulations, 1997 ( S.I. No. 94 of 1997 ), as amended by the European Communities (Natural Habitats (Amendment) Regulations, 1998 ( S.I. No. 233 of 1998 ), are amended -

(1)       in Regulation 4, by the substitution of the following for paragraph (1):

“The Minister shall cause a copy of the candidate list of European sites or a modified list under Regulation 3 (3) to be sent to the Minister for Community, Rural and Gaeltacht Affairs, the Minister for Agriculture and Food, the Minister for Communications, Marine and Natural Resources, the Minister for Transport, the Commissioners of Public Works in Ireland, the Environmental Protection Agency and to any planning authority within whose functional area the lands to which the list relates, or any part of such lands is situated and the Minister shall where appropriate, consult with all or any of them.”;

(2)       in Regulation 7, by the substitution of the following for paragraph (1):

“(1)  The Minister, and the Minister for Communications, Marine and Natural Resources in respect of the fish species specified in Part II of the First Schedule, and to the extent (if any) specified therein, shall undertake or cause to be undertaken surveillance of the conservation status of the natural habitats and species referred to in Article 2 of the Habitats Directive with particular regard to priority natural habitat types and priority species and the Minister shall have regard to such surveillance in the adaptation of the list transmitted to the Commission under Regulation 5(4).”;

and by the substitution of the following for paragraph 2(a):

“(2)(a)  For the purposes of undertaking surveillance of the conservation status of the natural habitats and species under paragraph (1), and generally for the purposes of giving effect to the Habitats Directive, the Minister, and the Minister for Communications, Marine and Natural Resources in respect of the fish species specified in Part II of the First Schedule, and to the extent (if any) specified therein, may each appoint in writing, one or more than one person to be an authorised officer for those purposes.”;

(3)       in Regulation 7, by the substitution of the following for paragraph (5 (a) (vi):

“(vi)  to which Regulation 14 or 14A relate,”;

(4)       After Regulation 14, by the insertion of the following:

“14A.  (1)For the purposes of this Regulation the “delegate officer” is a member of An Garda Síochána not below the rank of Superintendent authorised in writing to perform functions under this Regulation otherwise performed by the Garda Commissioner of An Garda Síochána.

(2)A person, without the duly given consent of the owner, shall not-

(a)  Enter and occupy any European Site, or bring onto or place on any European Site any object or carry out any activity where such entry or occupation or bringing onto or placing on site of such object or carrying out of such activity is likely to damage the site.

(b)  A person who contravenes subsection (a) shall be guilty of an offence.

(c)  Where a member of An Garda Síochána or an authorised officer appointed under Regulation 7 of the European Communities (Natural Habitats) Regulations 1997 has reason to believe that a person is committing or has committed an offence under subsection (a) the member or authorised officer-

(i)         may demand of the person his or her name and address,

(ii)        may direct the person to leave the land concerned and to remove from the land any object that belongs to the person or that is under his or her control, and

(iii)       shall inform the person of the nature of the offence in respect of which it is suspected that person has been involved and the statutory consequences of failing to comply with a demand or direction under this subsection.

(3)  Where a person refuses or fails to give his or her name and address to a member of An Garda Síochána or authorised officer when demanded under Regulation 14(A)(2), or gives to the member a name or address that is false or misleading or fails to comply with a direction under that section, he or she shall be guilty of an offence.

(4)  A member of the Garda Síochána may arrest without a warrant a person

(a)  who fails or refuses to give his or her name and address when demanded under Regulation 14(A)(2 or gives a name or address which the member has reasonable grounds for believing is false or misleading,

(b)  who fails to comply with direction given under Regulation 14(A)(2), or,

(c)  whom the member finds committing an offence under Regulation 14(A)(2) or Regulation 14(A)(3).

(5)        (a)  Where a person fails to comply with a direction under Regulation 14(A)(2), a member of the Garda Síochána may remove or cause to be removed any object which the member has reason to believe was brought onto or placed on the land in contravention of Regulation 14(A)(2) and may store or cause to be stored such object so removed.

(b)  Any person who obstructs or impedes or assists a person to obstruct or impede a member of the Garda Síochána or an authorised officer in the execution of his or her duty under this Regulation shall be guilty of an offence.

(c)   Where an object has been removed under this Regulation without the presence or knowledge of any person claiming to own, occupy, control or otherwise retain it, the Garda Commissioner or delegate officer shall serve or cause to be served upon each such person whose name and address can be ascertained by reasonable enquiry, a notice informing the person where the object may be claimed and recovered, requiring the person to claim and recover it within one month of the date of service of the notice and informing him or her of the statutory consequences of his or her failure to do so.

(d)   A notice or other document under this Regulation shall be addressed to the person concerned by name and may be served on the person by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or carries on business or, in a case in which an address for service has been furnished, to that address.

(e)   An object removed and stored under this Regulation shall be given to a person claiming possession of the object if, but only if, he or she makes a declaration in writing that he or she is the owner of the object or is authorised by its owner to claim it or is, for a specified reason otherwise entitled to possession of it and, at the discretion of the Garda Commissioner or the delegate officer, the person pays the amount of any expenditure reasonably incurred in removing and storing the object.

(f)   Any person who makes a declaration under 14A(5)(e) knowing or believing that declaration to be false shall be guilty of an offence.

(g)   The Garda Commissioner or delegate officer may dispose of, or cause to be disposed of, an object removed and stored under this Regulation if-

(i)        the owner of the object fails to claim it and remove it from the place where it is stored within one month of the date on which a notice under paragraph (c) was served on him or her or

(ii)        the name and address of the owner of the object cannot be ascertained by reasonable enquiry.

(h)   Where the Garda Commissioner or delegate officer becomes entitled to dispose of or cause to be disposed an object under paragraph (g) and the object is, in his or her opinion, capable of being sold, the Garda Commissioner or delegate officer shall be entitled to sell or cause to be sold the object for the best price reasonably obtainable and upon doing so shall pay or cause to be paid to the person who was the owner of the object at the time of its removal, where the name and address of the owner can be ascertained by reasonable enquiry, a sum equal to the proceeds of such sale after deducting there from any expenditure reasonably incurred in its removal, storage and sale.

(i)    Where the identity of the owner has not been ascertained after reasonable enquiry and the object is sold pursuant to subparagraph (h) the Commissioner or the delegate officer, having deducted the sum of any expenditure reasonably incurred in the removal of the object its storage and sale, may retain the deducted sum and the remainder shall be forfeited to the State.

(6)  A person guilty of an offence under this Regulation is liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 6 months or both.”;

(5)         in Regulation 16 by

(a)        the insertion of the following after paragraph (1):

“(1A) The Minister may attach conditions to any consent given pursuant to paragraph (1) or at any time vary such conditions as the Minister deems appropriate or revoke such consent to works if in the opinion of the Minister the conditions attached to such consent have been breached, or the continuation of such consent would be liable to destroy, or significantly alter, damage or interfere with the site's conservation objectives and the Minster shall communicate in writing his or her decision to the person concerned being the owner occupier or user of the land concerned.”

(b)        the deletion of all words after “relate,” in subparagraph (4)(a)(i),

(c)        the substitution of “paragraph (1)” for “paragraph (4)” in subparagraph (4)(b) and

(d)        the insertion after paragraph (4) (c) the following:

“(4)(d) For the avoidance of doubt an arbitrator appointed under subparagraph (b) shall have regard to paragraph 5 in respect of any appeal made under 4(a) for a site containing a priority natural habitat type or a priority species.”

(e)        the substitution of “Commission” for “European Communities”; in subparagraph (5)(b);

(6)       by the substitution of the following for Regulation 17:

“17. (1)  Where the Minister forms an opinion that an operation or activity is being carried out or may be carried out on a European Site which is neither directly connected with nor necessary to the management of the site but likely to have a significant effect thereon either individually or in combination with other operations or activities the Minister may, in view of the site's conservation objectives, make an application under this Regulation to a Court of competent jurisdiction to prohibit the commencement or continuance of the operation or activity.

(2)  For the purposes of this Regulation and for the purposes of Regulation 18 “A Court of competent jurisdiction” means either the Circuit Court where the lands or part of the lands concerned are situated or the High Court.

(3)  An application to the Circuit Court or the High Court for an order under this Regulation shall be by motion and the Court when considering the matter may make such interim or interlocutory order (if any) as it considers appropriate having regard to paragraph 4 of Article 6 of the Habitats Directive and to the overall requirement of safeguarding the integrity of the site concerned and ensuring that the overall coherence of Natura 2000 is protected.

(4)  Where an unauthorised operation or activity has been, is being or is likely to be carried out or continued, the Circuit Court or the High Court may on application by the Minister, whether or not a person has an interest in the land, by order require such person to do or not to do or cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:

(a)        that the unauthorised operation or activity is not carried out or continued;

(b)        that any operation or activity is carried out in conformity with the consent provided under Regulation 14 or any condition of that consent.”;

(7)       by the substitution of the following for Regulation 18:

“18.  (1)  Where the Minister forms an opinion, in view of site conservation objectives

(a)        that an operation or activity is being carried out on any land that is not within a European Site or

(b)        that it is proposed to carry out an operation or activity on any land that is not within a European Site and

(c)        that the operation or activity is having or is likely to have an adverse effect on the integrity of the site concerned either alone or in combination with other operations or activities

the Minister may make an application under this Regulation to a Court of competent jurisdiction to prohibit the commencement or continuance of the operation or activity.

(2)  Where an application is brought under paragraph (1) of this Regulation, the provisions contained in paragraphs (2) to (4) of Regulation 17 shall apply.”;

(8)       in Regulation 19(1), by the insertion of “(a)” after “(1)”;

(9)       in Regulation 20 (2) (a), by the substitution of “Chapter III” for “Chapter II”;

(10)     in Regulation 23, by the substitution of the following for paragraph (5)

“(5)  For the avoidance of doubt this Regulation applies only to species referred to in Part 1 of the First Schedule of these Regulations.”

(11)     in Regulation 34, by the insertion of “17 and 18” after “16” and the deletion of “and” after “15”;

(12)     in the First Schedule, by the substitution of the following for Part (I):

“All species listed in Annex IV (A) of Council Directive 92/43/EEC of 21 May 1992 and including any amendments that shall be made thereto.”;

(13)     in the Second Schedule, by the substitution of the following for Part 1:

“Enactments referred to in Regulation 31

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations amend the European Communities (Natural Habitats) Regulations 1997 (S.I. 94 of 1997) as amended by the European Communities (Natural Habitats (Amendment) Regulations 1998, and in doing so make amendments to the Wildlife Acts 1976 and 2000. In the preamble to these Regulations a specific reference is now made to Council Directive 79/409 of 2 April, 1979.

¹ OJ No L 103, 25 April 1979, p.1

²OJ No L 206, 22 July 1992, p. 7

³ OJ No L 305, 8 November 1997,. p. 42