S.I. No. 212/2010 - European Communities (Conservation of Wild Birds (South Dublin Bay and River Tolka Estuary Special Protection Area 004024)) Regulations 2010.

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 21st May, 2010.

I, JOHN GORMLEY, Minister for the Environment, Heritage and Local Government, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) (as amended by section 2 of the European Communities Act 2007 (No. 18 of 2007) and by section 4 of the European Union Act 2009 (No. 33 of 2009)) and for the purpose of giving further effect to Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 and Council Directive 92/43/EEC of 21 May 1992 (as amended by Council Directive 97/62/EC of 27 October 1997, Regulation (EC) No. 1882/2003 of the European Parliament and of the Council of 29 September 2003, Council Directive 2006/105/EC of 20 November 2006 and as amended by Act of Accession of Austria, Sweden and Finland (adapted by Council Decision 95/1/EC, Euratom, ECSC), Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded and as amended by the Corrigendum to that Directive (Council Directive 92/43/EEC of 21 May 1992)), hereby make the following Regulations:

1. (1) These Regulations may be cited as the European Communities (Conservation of Wild Birds (South Dublin Bay and River Tolka Estuary Special Protection Area 004024)) Regulations 2010.

(2) These Regulations come into operation on 11th May, 2010.

2. (1) In these Regulations—

“Directive” means Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009;

“farm or land management plan” means an agreement between the holder of any estate, right or interest in land within the Special Protection Area and the Minister or the Minister for Agriculture, Fisheries and Food for the purposes of, inter alia, compliance with the Directive and Council Directive No. 92/43/EEC of 21 May 1992. Without prejudice to the generality of the foregoing, this may take the form of a plan under the Farm Plan Scheme or management agreements administered by the Department of Environment, Heritage and Local Government or either a Rural Environment Protection Scheme plan (REPS), administered by the Department of Agriculture, Fisheries and Food, or an Agri-Environment Options Scheme (AEOS), administered by the Department of Agriculture, Fisheries and Food, or any similar or successor plan or scheme;

“foreshore area” means the bed and shore, below the line of high water of ordinary or medium tides, of the sea and of every tidal river and tidal estuary and of every channel, creek and bay of the sea or of any such river or estuary;

“land” includes any structure and any land covered with water (whether inland or coastal), any substratum of land and any estate, right or interest in, on, over or under land;

“Minister” means the Minister for the Environment, Heritage and Local Government;

“public authority” means:—

(a) a Minister of the Government;

(b) a local authority within the meaning of the Local Government Act 2001 (No. 37 of 2001); or,

(c) a board or other body (but not including a company under the Companies Acts) established by or under statute;

“Special Protection Area” or “SPA” means the area which is designated under Regulation 3;

“waterbird” means any bird ecologically dependent on a wetland habitat wholly, or for at least part of their annual cycle;

“wetland” refers to areas of habitat containing water, whether natural or artificial, permanent or temporary, static or flowing, fresh, brackish, or marine.

(2) A word or expression that is used in these Regulations and is also used in the Directive shall, unless the contrary intention appears, have in these Regulations the meaning that it has in the Directive.

3. In order to ensure the survival and reproduction of the species to which Article 4 of the Directive relates, including in particular the species specified in Schedule 3 and having taken account of the matters referred to in Article 4 of the Directive, the area referred to in Schedule 2 and further identified by reference to the maps contained in Schedule 1, is designated as a Special Protection Area.

4. (1) Subject to paragraph (2), a person shall not perform any operation or activity specified in Schedule 4 in the Special Protection Area without the prior written consent of the Minister.

(2) There is no requirement to obtain the consent of the Minister if:—

(a) the operation or activity is licensed by or subject to the permission of another public authority, or

(b) the operation or activity is specified as permitted in a farm or land management plan (subject to compliance with any conditions set out therein).

5. (1) Any person who contravenes Regulation 4(1) commits an offence and is liable:—

(a) on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 6 months, or both, or

(b) on conviction on indictment to a fine not exceeding €500,000 or imprisonment for a term not exceeding 3 years, or both.

(2) A summary offence under these Regulations may be prosecuted by the Minister.

Revocation

6. (1) (a) Paragraph 16 (inserted by Regulation 3 of the European Communities (Conservation of Wild Birds) (Amendment) Regulations, 1994 ( S.I. No. 59 of 1994 )) of the Schedule to the European Communities (Conservation of Wild Birds) Regulations 1985 ( S.I. No. 291 of 1985 ) is revoked.

(b) The European Communities (Conservation of Wild Birds) (Amendment) Regulations 1999 ( S.I. No. 367 of 1999 ) are revoked.

(2) Notwithstanding paragraph (1)—

(a) any civil or criminal proceedings brought under the Regulations revoked in paragraph (1) and pending when these Regulations come into operation may be continued as if they had been brought under these Regulations.

(b) any document, notice, decision, act or thing issued, made or done by the Minister under the Regulations revoked in paragraph (1) shall continue to have full force and effect on and after the commencement of these Regulations.

(c) any act, decision or other thing commenced but not completed by the Minister under the Regulations revoked in paragraph (1) may be continued and completed by the Minister under these Regulations.

SCHEDULE 1

SCHEDULE 2 DESCRIPTION OF AREA

The area known as South Dublin Bay and River Tolka Estuary SPA is situated in the County of Dublin being the land and waters enclosed on the map (contained in Schedule 1 to these Regulations) within the inner margin of the red line and hatched in red.

SCHEDULE 3 SPECIAL CONSERVATION INTERESTS

Bird Species

Wetland and Waterbirds

In establishing their Special Protection Area network, Member States are explicitly required under Article 4 of the Directive to pay attention to the protection of wetlands. To this end the wetland habitat that is contained within this Special Protection Area and the waterbirds that utilise this resource are therefore listed as a special conservation interest for this site. This special conservation interest is listed as “Wetland and Waterbirds”.

SCHEDULE 4 OPERATIONS OR ACTIVITIES REQUIRING CONSENT OF THE MINISTER AND CONTROLLED NATIONALLY UNDER THE PROVISIONS OF THE WILDLIFE ACTS 1976-2000

1.Any activity that involves the deliberate killing or capture of any species of naturally occurring bird in the wild state, save where a specific derogation within the meaning of Article 9 of the Directive is in place.

2.The destruction, damage or removal of nests or eggs or any disturbance, particularly during periods of breeding or rearing, save where a specific derogation within the meaning of Article 9 of the Directive is in place.

3.The rearing or keeping of birds, the hunting and capture of which is prohibited, save where a specific derogation within the meaning of Article 7 of the Directive is in place.

SITE SPECIFIC OPERATIONS OR ACTIVITIES REQUIRING CONSENT

4.Altering watercourses or wetlands, including changing the height of the water table, blocking or altering the flow of the water or deepening any channel.

5.Developing, operating or allowing leisure or sporting activities liable to cause significant disturbance to those species specified in Schedule 3 of these Regulations or damage to their habitats.

6.Any activity intended to disturb those species specified in Schedule 3 of these Regulations including by mechanical, air or wind powered or audible means.

7.Use of off-road recreational vehicles, other than by a landowner or on a public road or a non-public road serving forests or woodlands.

8.Harvesting marine species, unless for personal use not exceeding certain limits as may be set by the Minister from time to time.

9.Construction or alteration of tracks, paths, roads, embankments, car parks or access routes, or using or permitting the use of land for car parking.

10.Planting of trees.

11.Reclamation or infilling.

12.Removal of soil, mud, sand, gravel, rock or minerals.

13.Dredging whether for fishing or other purposes.

14.Introduction (or re-introduction) into the wild of plants or animals not currently found in the area.

15.Any activity which destroys habitat, except normal maintenance activities as defined in approved farm plans.

16.Any other activity of which notice may be given by the Minister from time to time.

GIVEN under my Official Seal,

11th May 2010.

JOHN GORMLEY, T.D.,

Minister for the Environment, Heritage and Local Government.

EXPLANATORY NOTE

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

Directive 2009/147/EC (O.J. L 20/7 of 26 January 2010) of the European Parliament and of the Council of 30 November 2009 (“the Birds Directive”) on the conservation of wild birds provides for the conservation of wild birds by, among other things, classifying important ornithological sites as Special Protection Areas. The hyperlink http://ec.europa.eu/environment/nature/natura2000/sites_birds/index_en.htm which connects to the useful and informative European Commission Environment (Nature and Biodiversity) website also contains a further link to the text of the Birds Directive.

The effect of these Regulations is to designate a site as a Special Protection Area in accordance with Article 4 of the Directive. The geographical area of the Special Protection Area designated by these Regulations is defined by the First Schedule (a map or maps of the area) and the Second Schedule (a list of the townlands in question or a description of the area).

The bird species cited in the Third Schedule of these Regulations are specified, in accordance with the Directive, in order to ensure their survival and reproduction in their area of distribution. Under Article 5 of the Directive all species of birds are afforded protection from disturbance, capture and damage to nests and eggs, not just the birds listed on Schedule 3 (with the exception of those birds covered under Articles 7 for hunting and 9, where derogations are listed).

Those operations or activities requiring the consent of the Minister listed at Schedule 4 to these Regulations are cited for their potential to cause disturbance or damage to the bird species and their habitats specified in the Third Schedule of these Regulations. Landowners or occupiers should contact the local National Parks and Wildlife Service office of the Department of the Environment, Heritage and Local Government before undertaking any of the works listed at Schedule 4. (See www.npws.ie for contact details). Please note that operations/activities other than those listed at Schedule 4 to these Regulations, such as effluent discharge, planning permission, aquaculture, fishing or forestry require a licence or permission from the appropriate consent authority.

These Regulations provide (Regulation 4) that contravention of the provisions of these Regulations shall constitute an offence: Regulation 5 provides for penalties.