The designation of areas on land and in the marine environment to protect habitats and species has been the subject of three announcements since the start of 2016. First the announcement of the second tranche of Marine Conservation Zones (MCZs) in England, 23 in total, with notification of an intended consultation on the third tranche of proposed MCZs in 2017 for eventual designation in 2018. Read our briefing here. Second the announcement that Natural England was commencing a public consultation regarding potential Special Protection Areas for wild birds (pSPAs) around England, running from 21 January 2016 to 21 April 2016 (endnote 1).
The third announcement, the subject of this update, concerns the consultation (19 January to 19 April 2016) on possible Special Areas of Conservation (pSACs) for harbour porpoises (endnote 2), led by the Joint Nature Conservation Committee (JNCC). Five sites have been proposed, a number of which include areas that are the responsibility of more than one UK administration.
The consultation and location of the pSACs
Protection for harbour porpoise has been a long standing issue with the European Commission, who see this as a gap in current UK legislation. Harbour porpoise are listed in Annex II of Council Directive 92/43/EEC as animal species of community interest whose conservation requires the designation of SACs, although they are not a priority species. The consultation is being carried out in light of the prospect of infraction proceedings against the UK if new UK SACs are not designated.
The consultation concerns the scientific basis on which the proposed boundaries are based and the draft UK Socio-Economic Impact Assessment including likely management scenarios for each site. In line with usual European marine site process:
JNCC is leading on sites for the Northern Ireland, England and offshore:
- Bristol Channel approaches – English and offshore area
- North Channel – Northern Ireland and offshore area
- Southern North Sea – English inshore and offshore.
Natural Resources Wales (NRW) is leading on Welsh sites:
- West Wales marine (west Pembrokeshire & Cardigan Bay)
- North Anglesey marine
- Bristol Channel approaches (Welsh inshore area within the Bristol Channel approaches).
Note that JNCC also recommended four areas in Scotland, although they have not been accepted by Marine Scotland which is planning to make its own proposals before going to public consultation.
What are the potential implications?
The designation process for SACs has a number of implications for affected marine projects. At the stage at which a pSAC is identified the requirement for a Habitats Regulation Assessment (HRA) cannot be excluded. The issue of the current consultation will mean that, as a matter of policy, the requirement for a HRA will be triggered for any application for development consent (including applications to discharge requirements or conditions) where any plan or project in the offshore marine area is likely to have a significant effect on a European offshore marine site or a European site, either alone or in combination with other plans or projects. Consequently, now that the consultation on pSACs has been issued promoters of marine projects should be considering if their project requires a HRA.
Similarly, consents granted for projects that may have a likely significant effect on a pSAC may need to be reviewed if the pSACs become Sites of Community Importance (SCIs) (i.e. sites that have been submitted by the government to the EC and adopted by the EC, but have not yet formally designated by the government of each country). This was recently considered by the European Court of Justice in the case Grune Liga Sachsen and Others case (endnote 3).