The EU Habitats Directive provides for a network of special areas of conservation and for special protection areas. The sites were designated by the Department under a procedure. Sites can be added. Many of the restrictions and controls that apply to a designated site also apply to some types of proposed sites.
The Habitats Directive required the Member States to take actions to protect certain habitats and species. The Directive required the assessment and designation of special areas of conservation that contain habitats of the type and habitats of species listed in the EU legislation. Development within such sites is very strictly regulated and is generally prohibited. The designation may have a very significant impact on the value of the land. Member States are obliged to restore and maintain natural habitats and species.
States are obliged to take measures in relation to landscape conservation and habitat protection. They must establish conservation measures and if need be, ensure appropriate management for the site and integrate the protection 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.
Habitats are integrated into development plans and the planning system. Local authorities in adopting 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.
Authorities which grant pollutant licences, such as councils and the EPA must have regard to the objectives of the habitats regulations in exercising their powers and preparing their resource management plan.
States must take appropriate steps to avoid a deterioration of habitats and species which have been designated. Any plan or proposal which may have significant effects on a site either individually or combined with others, must be subject to appropriate assessment.
Aspects of the plan which affect the site’s conservation designation, must be identified in light of best scientific knowledge. This would refer to licensing and measures which in any way impact upon the site.
Special Areas of Conservation
Special areas of conservation are the prime wildlife conservation areas in the country, considered to be important on a European as well as Irish level. The legal basis on which SACs and special protection areas are selected and designated is the EU Habitats Directive, transposed into Irish law by the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011), as amended.
The Directive lists certain habitats and species that must be protected within SACs. Irish habitats include raised bogs, blanket bogs, turloughs, sand dunes, machair (flat sandy plains on the north and west coasts), heaths, lakes, rivers, woodlands, estuaries and sea inlets. The 25 Irish species which must be afforded protection include Salmon, Otter, Freshwater Pearl Mussel, Bottlenose Dolphin and Killarney Fern.
The areas chosen as SAC in Ireland cover an area of approximately 13,500 sq. km. Roughly 53% is land, the remainder being marine or large lakes. Across the EU, over 12,600 sites have been identified and proposed, covering 420,000 sq. km of land and sea, an area the size of Germany.
Special areas of conservation may relate to land and sea. Certain natural habitats types and species are described in the European legislation. States nominate candidate sites based on criterial. The procedure involves the EU commission and the state/department.
States are obliged under the Habitats Directive to endeavour and where necessary to improve the ecological coherence of the overall programme by maintaining and where appropriate developing features of the landscape.
The obligations may be implemented through planning legislation with reference to proposed development and land use. Planning authorities are required to designate objectives for preservation of the landscape in their development plans. Local authorities may make landscape conservation areas. There are departmental guidelines on landscapes.
States are obliged to take necessary conservation measures including if need be appropriate management plans designated for the sites or integrated into development plans and measures which correspond to the ecological requirement of the natural habitat concerned. The kind of measures may include contracts with landowners and pursuing the objectives through government and administrative policy.
States are required to take steps to conserve the site including where necessary compulsory purchase, economic and tax incentives, control over development and planning permissions including modification of existing planning permissions authorisations that are their inconsistent with it. It may include measures under single farm / basic payment requirements, as well as broader obligations under Axis II and Axis III measures.
The state is obliged to take appropriate steps to avoid the deterioration of natural habitats of species concerned as well as the service of species that have been designated. Appropriate steps may be required in relation to the totality of government activity including for example policy on water and wastewater treatment. The obligation applies before the risk to protect species of birds arises.
It is accepted that designation as a special area of conservation or special protection area can limit property rights. States must follow human rights procedures in terms of justifying limitation of property rights under the European Convention on Human Rights.
The EU Commission can monitor states and their departments for implementation. Ultimately it can take legal action if the state fails to comply with its obligations. In many cases, the state would be landowner. However, being landowner and controlling it as such may not be sufficient in some cases. In some states cases the state must take proactive measures to protect habitats and avoid deterioration
Special Protection Areas (Birds)
The Birds Directives required EU states to designate Special Protection Areas. These are territories suitable for conservation of species set out in the legislation as well as other migratory species not mentioned. It applies to land and sea. States must prevent pollution and deterioration of habitats and disturbance affecting birds.
Ireland is required under the terms of the EU Birds Directive (2009/147/EC) to designate Special Protection Areas (SPAs) for the protection of:
- Listed rare and vulnerable species
- Regularly occurring migratory species
- Wetlands especially those of international importance
A programme to identify and designate SPA sites has been in place since 1985 and Ireland’s SPA Network now encompasses over 597,000 hectares of marine and terrestrial habitats.
In Ireland, the Birds Directive has been implemented by the designation of Special Protection Areas under EU legislation and under the habitat regulation. Many of the obligations like in the protection of birds are affected through the Wildlife Act.
Almost 3% of the land area of the state has been designated as SPA. They typically protect estuaries, coastal bays, offshore islands, inland lakes.
The quality of protection of SPAs vary. In some cases, statutory instrument under the European Communities Acts designates SPA’s but does not contain detailed machinery to give effect to them. The protection is largely effected through the European Communities (Natural Habitats) Regulations through planning and development acts and the European Communities Conservation of Wild Birds Regulations.
Special protection areas are covered under the same legislation but the regime as SACs but it is slightly less intensive. States must avoid pollution or deterioration of the habitats or any significant disturbance affecting the birds in the SPA. They must comply with the obligations of the habitats directive regarding appropriate assessment. There are various provisions protecting birdlife under this legislation and under the wildlife act.
Natural Heritage Areas and Nature Reserves
A Natural Heritage Area is an area worthy of conservation for one or more species, communities, habitats, landforms, logical or geomorphologic features or for its diversity of natural attributes.
They are designated and protected under The Wildlife Act 2000 Part III. The proposal is published. There is a period for making of objections. The order is either confirmed or confirmed as varied or objections may be made.
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 or a refuge is similar to that under the habitats regulations. A notice is given of the intention to make the order, which is served on persons affected. It is also published in a newspaper. Persons with an interest or who claim 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.
Wildlife Legislation and Other
Under the wildlife legislation, there is provision for designation as a nature reserve and national heritage areas. All public bodies are obliged to consult with the Minister for the Environment before determining matters which are likely to affect a nature reserve or a national heritage area.
Wild birds, their nests and eggs except certain excluded species are protected by the Wildlife Act. 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 land owners in relation to the management and conservation of protected areas. Money may be paid to the private land owner. The agreement is binding on successors in title.
Apart from special designations the wildlife legislation contains a wide range of provisions to conserve and protect wildlife and promote biological diversity. This includes both prohibitions on certain things as well as powers for the Department to manage land, enter arrangements in relation to schemes with landowners.
There is a statutory obligation on local authorities the OPW and other bodies to consult with the Minister responsible (usually the Minister for the Environment) before determining any matter or doing a thing which is likely to affect or interfere with the suitability of a nature reserve, a refuge or land to which certain designation areas are made, including and natural heritage propose natural heritage area. The bodies must take all practical steps to avoid and minimise such effect or interference.
Planning; Development Plan
Planning authorities must indicate objectives for conservation and protection of the environment including particular natural heritage European sites (SACs SPAs plus others) in their development plans. Local authorities must have regard to the implication of any proposed development for which planning permission is sought on a European site or natural heritage area.
In principle planning authorities are entitled to take more positive and proactive steps to promote and protect environmental protection. They may enter agreements with landowners regulating and restricting the use of land. They may acquire land for open spaces make special amenity orders and designate landscape conservation areas. They make preservation orders. The may enter agreements for creation of a public right of way over land and compulsorily acquire land right-of-way.
There is legislation requiring the strategic environmental impact assessment of certain plans and programs. One of the considerations is the impact of the plan approval in the areas of landscapes which have been recognised as national European Union international protected sites.
The local authority may designate special amenity areas under the Planning and Development Act because of their outstanding natural beauty and special recreational value and having regard to benefits for nature conservation. The Minister may direct a local authority to make an order Generally development which is usually y permitted under exempt development legislation is not permissible without planning permission in the area.
Local authorities may make tree preservation orders under the Planning and Development Act if it is of the opinion that it is expedient in the interests of amenity or the environment to make special preservation provision for the preservation of trees roots of trees and would land.
The state Is obliged by EU legislation to designate categories of fresh water requiring protection to support fish life in salmonid water and cyprinid waters. A further directive applies in relation to quality of shellfish waters.
The Minister has powers under the Fisheries Act to declare that an area of the high seas is a conservation order area being an area of conservation and management for straddling fish stocks and highly migratory fish stocks covered by a regional or subregional fisheries management organisation or agreement. This is designed to implement UN convention in relation to conservation and management of certain vulnerable and valuable straddling and highly migratory fish stocks.