Nature Conservation

There is a significant body of European Union driven legislation dealing with nature conservation.  This is part of the EU’s environmental function acquired in the single European act and progressively strengthened through the various treaties in the last 30 years.

The habitats directive required member states to take actions to protect certain habitats and species. Special protections apply to special areas of conservation, proposed special areas of conservation, sites of community interest and special protection areas. SPA areas have been designated by Ministerial order.

The EU directive requires member states to assess and designate special areas of conservation (SAC) which contain habitats of the type and habitats of species listed in the EU legislation.

Member states draw up the candidate sites which themselves accords places legal limits on what may be done on the sites.  Development within such sites is very strictly regulated and most likely prevented. Designation for any of the relevant status would have a very significant impact on the value of land.

Member states are obliged to restore and maintain natural habitats.  Local authorities in adapting their development plan must include objectives in respect of preservation of the landscape in their development plan.  They may make landscape conservation area orders under planning legislation.  They must have regard to Department of the Environment and Local Government guidelines.

States are obliged to take measures in relation to landscape conservation and habitat protection.

They must establish conservation measures and if need be appropriate management plans designed for the sites and integrated into other development plans.  Statutory administrative and contractual measures must respond to the ecological requirements of the habitats.  Arrangements under the single farm payment and the REPS scheme may form part of such land management measures.

States must take appropriate steps to avoid the deterioration of the habitat and the habitat of species which have been designated.

Consent Required for any Works

Any plan or proposal which may have significant effects on a site either individually or combined with others must be subject to appropriate assessment.  Any aspect of the plan which affects the site’s conservation aspects must be identified in light of the best scientific knowledge. This covers all types of licensing and measures which in anyway impact upon the site.

Plans and projects which would adversely affect the site are prohibited.  A project or plan may only be permitted if there is a high degree of certainty that will not adversely affect the site.  If a plan or project must be carried out for overriding public interest reasons within a special area of conservation, then this may only be done under certain conditions.

Projects that may be permitted in a special conservation area are likely to be extremely limited.  They would have to be justified in overriding public interest terms relating to public health and safety relating to beneficial consequences of primary importance or other imperative reason. Private projects are unlikely to satisfy the test.

There must be an appropriate assessment of plans which may affect a special area of conservation. In common with other EU legislation, it binds to state.  Therefore the special summary methods of approval of local authority and central government body works are subject to the regulation.

Works to protected sites that would otherwise be exempt from planning permission are subject to special consent procedures.  Habitats are integrated into development plans and the planning system as a special area of conservation, the proposed special area of conservation, European site of interest or special protection area.

Where development is proposed that may affect any of the above, an environmental impact assessment or equivalent assessment is required.  Planning permission may not be given if it would adversely affect any of the protected sites.  Permission is only allowed for imperative reasons of overriding public interest.

Proposals by local and governmental authorities are subject to special more limited procedures which resemble planning permission but do not actually involve an independent decision-maker.

Authorities which grant polluting licences such as councils and the EPA must have regard to the objectives of the habitats regulations in exercising their powers.

A special authorisation system exists for consent to operations and activities on land in proposed or designated special areas of conservation.  The notice must be given to the department to the environment and local government and consent must be requiredforo the activity.

The consent procedure does not apply where other consent procedures such as planning permission or their equivalent apply.  However, the consent procedure applies to all activities which would not generally be subject to planning control.

The authority must assess the impact on the site where an application is made.  Consent will not be given if the activity would have an adverse effect. The only exception is in respect of imperative reasons of overriding public interest.  If consent is granted, conditions may be attached.  Consents may be revoked if they may adversely affect the sites.  There was a procedure whereby the minister may apply to the court  to prohibit and restrain unauthorised operations and activities.

Persons who undertake operations or activities in contravention of a consent or without consent may be obliged to restore the site within a certain time.  If this does not comply with the authority  may take steps to restore the site and recover the cost.  Contravention of the habitats regulation is an offence triable summarily or indictment.

Special Protection Areas and Nature Reserves

Member states are obliged to designate special protection areas for their conservation of specified species of birds and for regularly occurring migratory species not mentioned in the directive.  Member states must avoid pollution and deterioration of habitats or significant disturbance affecting birds in an SPA.

The habitats legislation extends the protections and controls for special areas of conservation to special protection areas under the birds directives.

Under wildlife legislation, there is provision for designation as a nature reserve or national heritage areas.  All public bodies are obliged to consult with the Minister before determining matters which are likely to affect a nature reserve or national heritage area.

Nature reserves may be established by Ministerial order under the wildlife act in respect of state or foreshore land owned by the state.  Nature reserves may be recognised on private land.  Lands may be designated as a refuge for protection of particular species of flora or fauna.

The procedure for making a nature reserve is similar to that for the habitats regulation. A notice is given of the intention to make the order and this is served on persons affected.  It is also published in the newspaper. Persons with an interest or who claimed the order may affect them have a right to object within two months.  The Minister may confirm or vary the proposed order.  Compensation may be payable to persons affected.

Wild birds, their nests and eggs except certain excluded species are protected by the wildlife.  The department of the environment may make protection orders declaring particular species of flora to be protected generally or in particular places.

The Minister may enter agreements with landowners in relation to the management and conservation of protected areas.  Sums may be paid and it is binding on successes entitled.

A natural heritage area is one worthy of conservation for one or more species, habitats, landforms, geographical or geomorphic features.

The procedures for creation of special conservation orders are similar to those for that as apply when a national heritage area is created.  Notice of the proposed order must be given to persons affected.  The proposal is published.  There is a period for the making of objections.  The order is either confirmed or confirmed as varied or objections may be made.

Natural Heritage Area

Any works in a natural heritage area are prohibited other than under license/consent. Work shall not be carried out in a natural heritage area which may significantly alter damage or interfere with the features for which the designation was made, unless the consent of the Minister is given.

There is provision for notification of the Department specifying the nature of the work.  The works must be carried out in accordance with the Ministerial consent or the terms of the agreement entered.  If no consent is given within six months and the applications are not been refused, the consent is deemed to issue. A proposed NHA is subject to similar controls.

A consent may be given if the Minister is satisfied that it is necessary for imperative reasons of overriding public interest and there is no alternative and viable solution.  Consents may be revoked.  Where works have been carried out in an NHA or designated NHA without consent or in breach of consent, a notice can be served to require the person to rectify the damage done.  If this is not done, the Minister may do the works and charge the cost to the owner or occupier concerned. Failure to comply or obstruction constitutes a criminal offence.

Compensation may be available where designation has caused the land to be restricted in a way relative to the way it has been used previously.

Timber Products

A 2010 Regulation lays down obligations on placing place timber and timber products on the market.  It applies to imported timber and timber harvested within the EU.  It also applies to a wide range of timber products.

Timber and timber products are to be accompanied by a FLEGT licence (established under 2005 EU Regulation) or a CITES permit (established under 1997 Regulation) meet the requirements of the Regulation.

There are

  • treatments obligations:
  • prohibition on placing illegally harvested timber and timber products on the EU market;
  • obligations for EU operators placing timber and timber products on the EU market to use a system of due diligence.  A system of due diligence is a risk management system which aims to minimise the risk of illegal timber arising in the supply chain.  Operators must be able to provide specific information on timber and timber products placed in the market and conduct a risk analysis;
  • obligations for traders buying and selling timber or timber products already on the market to identify their supplier and clients in order to ensure minimal traceability timber.

The Regulation offers the option of using the due diligence system put in place by the monitoring organisations.   Monitoring organisations may apply for recognition to demonstrate that they have the processes and expertise and a due diligent system with the procedures necessary and a strategy to avoid conflict of interests.

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