The European Union (Withdrawal) Act 2018 brought all existing EU law into UK law (“EU retained law”), to ensure that it would continue to have legal effect after Brexit, giving powers to Ministers to make secondary legislation (statutory instruments) to operationalise in a UK context. 

The Department for the Environment, Food and Rural Affairs has now published a policy paper to explain the latest changes to the Conservation of Habitats and Species Regulations 2017 (as previously amended) to make sure that the Regulations operate effectively following Brexit. The focus is on changes to the transfer of functions from the European Union (EU) to appropriate authorities within England and Wales. All other terms and processes within the 2017 Regulations remain unchanged and as such the existing guidance is still relevant.

In this context, the key points to note are:

1. The creation of a national site network within the UK comprising the protected sites already designated under the EU Natura 2000 network, and any new sites designated under these Regulations – this relates to Special Areas of Conservation (SACs) and Special Protection Areas (SPAs),

2. the establishment of management objectives for the national site network (the ‘network objectives’). These network objectives are to –

  • maintain or, where appropriate, restore habitats and species listed in Annexes I and II of the Habitats Directive to a favourable
  • conservation status (FCS) and contribute to ensuring, in their area of distribution, the survival and reproduction of wild birds and securing compliance with the overarching aims of the Wild Birds Directive.

3. arrangements for reporting on the implementation of the Regulations, given that the UK no longer provides reports to the European Commission – this principle of reporting is also built into the Environment Bill still making its way through the Parliament process,

4. arrangements for amending the schedules to the Regulations and the annexes to the Nature Directives that apply to the UK,

5. arrangements replacing the European Commission’s functions with regard to the imperative reasons of overriding public interest (IROPI) test where a plan or project affects a priority habitat or species, and last but by no means least,

6. an amended process for the designation of, or amendment to, SACs and SPAs, including notably, the inclusion of a process to allow the declassification of such sites. The process to classify and declassify sites is the same, the principles being to assess if –

  • the site continues to meet the criteria for designation, and
  • the site’s contribution to the achievement of the conservation of natural habitats and species has been irretrievably lost.

Importantly, where declassification is proposed, appropriate authorities must make sure the coherence of the national site network is maintained, and the network objectives are achieved in other ways, such as designating new SACs or SPAs. Hopefully, these requirements will ensure that the integrity of the sites is maintained and that their protection is not weakened, but as ever, time and implementation of the Regulations will tell.

For those in the development and environment protection business, all of this is certainly something to monitor in itself going forward, but also in the context of potential implications for the revisions to the Environmental Impact Assessment (EIA) process and consideration of planning applications in the locality of the designated sites.

For further advice and guidance in respect of the Habitat Regulations or EIA, please contact Sarah Smith, Planning Partner and EIA lead at Rapleys.