Brexit – Change Ahoy to Habitat Regulations


Defra has published a new policy document to explain the changes made to the Conservation of Habitats and Species Regulations 2017 (as amended). The 2017 Regulations are one of the pieces of domestic law that transposed the land and marine aspects of the Habitats Directive (Council Directive 92/43/EEC) and certain elements of the Wild Birds Directive (Directive 2009/147/EC)(known as the Nature Directives).

Habitat Regulations

This document explains the:

  • changes made to the Conservation of Habitats and Species Regulations 2017 to make them operable from 1 January 2021

  • functions transferred to ministers from the European Commission.

The changes cover England and Wales including their inshore waters up to 12 nautical miles and explain how the amendments to the legislation work; it does not cover offshore waters beyond 12nm but similar processes are expected to be applied.

What has changed?

The Secretary of State for the Environment, Food and Rural Affairs and Welsh Ministers have made changes to parts of the 2017 Regulations so that they operate effectively. Most of these changes involved transferring functions from the European Commission to the appropriate authorities in England and Wales. All other processes or terms in the 2017 Regulations remain unchanged and existing guidance is still relevant. The obligations of a competent authority in the 2017 Regulations for the protection of sites or species do not change. A competent authority is a public body, statutory undertaker, minister or department of government, or anyone holding public office.

The main changes to the 2017 Regulations are:
  • the creation of a national site network within the UK territory comprising the protected sites already designated under the Nature Directives, and any further sites designated under these Regulations
  • the establishment of management objectives for the national site network (the ‘network objectives’)
  • a duty for appropriate authorities to manage and where necessary adapt the national site network as a whole to achieve the network objectives
  • an amended process for the designation of Special Areas of Conservation (SACs)
  • arrangements for reporting on the implementation of the Regulations, given that the UK no longer provides reports to the European Commission
  • 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
  • arrangements for amending the schedules to the Regulations and the annexes to the Nature Directives that apply to the UK

The 2017 Regulations (Regulation 9(1)), as amended by the 2019 Regulations, require the Secretary of State and Welsh Ministers to secure compliance with the requirements of the Nature Directives. Any new powers in the 2019 Regulations must be exercised in line with the Directives and retained EU case law up to 1 January 2021.


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