Protected Areas - Legislation outlining duties of Public Bodies/Competent Authorities
Duties under the Environment Order
The Environment (Northern Ireland) Order 2002 Part IV (Articles 38, 39 and 40) places certain duties on public bodies in relation to land included in Areas of Special Scientific Interest (ASSIs), declared by the Department of the Environment.
- Article 38 defines the organisations that are Public Bodies, which have a duty to further the conservation and enhancement of ASSI features.
- Article 39 requires public bodies to give notice to the Department, by applying for Assent, before carrying out, in the exercise of its functions, operations likely to damage ASSI features, even if the operations would not take place on land included in an ASSI.
- Article 40 covers permissions issued by public bodies. Where the permission of a public body is needed to carry out operations likely to damage ASSI features, public bodies must give notice of the proposed operations to the Department, by applying for Assent, even if the operations would not take place on land included in an ASSI.
Therefore, any Public Body/ Competent Authority intending to carry out or permit any operation listed in the ASSI citation schedule, which lists operations thought by the Department to have potential to affect the designated site, is obliged to notify the Department of the Environment.
Duties under the WANE Act
Further duties were added to the responsibilities of Public Bodies and Competent Authorities under the Environment Order by The Wildlife and Natural Environment Act (Northern Ireland) 2011 (the WANE Act), which came into operation on 17 August 2011.
The WANE Act amends The Wildlife (NI) Order 1985 and the Environment (NI) Order 2002 and adds new provisions to protect a greater range of plants, animals, birds and to increase protection to Areas of Special Scientific Interest. It gives authorities new powers.
The WANE act places a duty on public bodies and competent authorities to further the conservation of biodiversity.
The changes were as follows:
Section 29 - Public body: Duties in relation to authorising operations
This Section places an obligation on public bodies, when granting consent to someone to carry out an operation, to require that the operation is carried out in such a way so as to minimise any possible damage to the designated features of an ASSI; or require the operator to take reasonable action to restore the ASSI to its former condition where damage does occur.
Section 31 - Offences in connection with ASSI
This Section introduces an offence in relation to measures for protecting ASSIs. Public bodies, when authorising or permitting anyone to undertake an operation which may damage any of the features of an ASSI, are under an obligation to inform the Department of the Environment (in practice, Northern Ireland Environment Agency) beforehand and, where appropriate, how it has taken into account any advice received from the Department before permitting an operation. Any public body which fails to do so will be committing an offence. Provision is made for defences, for example, where the operation was required in an emergency.
Duties under the Habitats Regulations
If the ASSI concerned is also designated as a Natura 2000 (N2K) site, in accordance with the Habitats Regulations, Public Bodies who are Competent Authorities have further responsibilities to protect the European features for which the site is designated.
The term Habitats Regulations refers to The Conservation (Nature Habitats, etc.) Regulations (Northern Ireland) 1995 and later amendments. (Amendments were made in 2004, 2007, 2009 and 2011).
Regulation 4.4 of the Habitats Regulations states: “without prejudice to the preceding provisions, every competent authority in the exercise of any of their functions, shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions.”
Regulation 5 goes on to define a competent authority as: "Government departments, district councils and statutory undertakers, and any trustees, commissioner, board or other persons, who as a public body and not for their own profit, act under any statutory provision for the improvement of any place or the production or supply of any commodity or service."
The duties of Competent Authorities are principally laid out in Part IV - Section 43 to Section 48 of the Regulations, although other parts also apply, so these sections should not be taken out of context.
A ‘Competent Authority’ is the authority with the power or duty to determine whether or not a proposal can proceed. The Competent Authority must consider the possible impacts of plans/projects/policy for European Natura 2000 (N2K) features before planning the methodology for the project/proposal.
A Habitats Regulations Assessment (HRA) is a tool developed by the European Commission to help Competent Authorities carry out assessment to ensure that a Project, Plan or Proposal will not have an adverse effect on the integrity of any Natura 2000 site.
The competent authority is responsible for carrying out the HRA (formerly known as an Article 6 Assessment) to assess any possible impacts on N2K (SAC/SPA) features. Where several Public Bodies, with different roles and expertise, are involved in a plan or project, it can be decided between them which organisation takes the lead role in coordinating the assessment.
If you are a Competent Authority, you are required to consult NIEA with regard to your HRA. The competent authority has to take into account any representations made by NIEA in arriving at a decision - it is up to the Competent Authority, as the authorising body, whether or not they decide to take the Department's advice. However, if the works were later to be found to cause any adverse impact to the designated features, the Competent Authority would be held responsible.
NIEA are represented in this matter by Natural Heritage Conservation Designations and Protection (CDP), who will deal with your consultation under the Assent process described above, provide any necessary advice and coordinate the NIEA response. Click here for contact details for CDP.
CDP also assess any potential impacts to any additional ASSI features of the site or adjacent sites (i.e. those features not also designated as N2K features) under the Assent process described above