Directives and Regulations
126. The protection of the environment has elicited
substantial regulation at European level. The Habitats Directive
includes lists of 169 habitat types and 623 species for which
Member States must consider designation of Special Areas of Conservation
(SACs). The UK SACs comprise 598 sites covering a total area of
over 2,424,000 hectares.
127. The main objectives of the Habitats Directive
are:
"…to contribute towards ensuring biodiversity
through the conservation of natural habitats and of wild fauna
and flora in the European territory of the Member States to which
the Treaty applies" (Article 2.1);
"…to maintain or restore, at favourable
conservation status, natural habitats and species of wild fauna
and flora of Community interest" (Article 2.2).
128. The 24 articles of the Directive specify a wide
range of measures relating to conservation. The most stringent
obligations however, relate to the selection, designation and
protection of the network of SACs. SAC designation requires Member
States to establish conservation measures which correspond to
the ecological requirements of habitats and species present on
the site (Article 6.1), and to take appropriate steps to avoid
deterioration of the natural habitats and habitats of species,
as well as significant disturbance of species, for which the site
is designated (Article 6.2). This includes the appropriate assessment
of the implications of any plans or projects that, alone or in
combination, are likely to have a significant effect on the site
in view of the site's conservation objectives (Article 6.3). If
a negative assessment is concluded, a plan or project can only
proceed if it is for imperative reasons of overriding public interest
and no alternative solutions are possible. We examine the implications
of this provision in our chapter on planning. The Member State
must take compensatory measures to ensure the overall coherence
of the Natura 2000 network (Article 6.4).
129. In the UK the Directive has been transposed
into legislation by the Conservation (Natural Habitats, &c.)
Regulations[110] (as
amended) and the Conservation (Natural Habitats, &c.) (Northern
Ireland) Regulations 1995.[111]
These are informally known as the 'Habitats Regulations' and apply
to the UK land area and its territorial sea (to 12 nautical miles
from the coast), and are supported by Government policy guidance.
130. This Directive has caused particular problems
to the port industry because the designation of navigation channels
and implications for their maintenance. Ports fear that the inclusion
of a navigation channel will put them at a disadvantage because
they have to comply with the requirements of the Habitats Directive
regarding dredging. The treatment of estuary systems and defining
boundaries for sites has been inconsistent throughout the EU.[112]
In certain instances the navigation channel has been omitted from
the candidate SAC. This has not been the case in the UK. Associated
British Ports told us that they believed these regulations are
often overlapping and conflicting.
"In the UK, the designations and regulations
directly affect the working port areas and the navigational channels
required for a safe approach. ABP is unaware of any European port
in any other Member State in which working areas of the port,
or the approach channels to the port, have been designated. The
way in which European Marine Sites legislation has been applied
in the UK means that it constitutes a virtual veto by ecological
interests in relation to sustainable development policy…"[113]
131. Although the Minister claimed that it is "not
unusual for directives to be implemented in different ways in
this country to other countries in the European Union",[114]
the Department did have some concerns. Consequently English
Nature was asked to carry out a review of the way in which these
directives were interpreted and implemented across the EU.[115]
Not surprisingly, the study found that there were substantial
differences. This evidence has since been brought to the attention
of the European Commission which found it sufficiently persuasive
to issue guidance that navigation channels are indeed to be included
in all cases. European environmental legislation relating to
the classification of port approaches has been interpreted differently
across member states, to the disadvantage of UK ports. The Government
must be satisfied that such legislation is applied consistently
and ensure that approaches to UK ports remain accessible to commercial
traffic.
132. The Department for Transport considers that
the maintenance of channels done in a 'sustainable way' is unlikely
to cause further environmental impact, because the ports industry
has done a lot of work on sustainable ways of dredging. Following
discussion with the Department of the Environment, Food and Rural
Affairs, the Department is confident that any problems in implementing
the directive without imposing undue restrictions on the maintenance
of approaches to ports can be solved. [116]
133. We were also told that there had been problems
in implementing the principle that compensatory habitats could
be provided for those lost through port development. English Nature
told us that although it had entered an agreement to manage compensatory
habitat at Kilnsea "in a similar situation today, we would
require the developer to do it".[117]
They also pointed out that "if we go into discussions with
the port, we cannot make cast iron guarantees to the port that
what we say will be accepted by the consenting authority, that
is the Secretary of State …we need a degree of a higher Government
involvement and strategic guidance".[118]
In evidence given this year, English Nature told us that it had
made progress and that if ports accepted the need to provide compensatory
habitat at the start, many problems could be avoided:
"Given sufficient forward thinking they
may be able to secure land suitable for compensatory habitat creation
at this stage and avoid inevitable upward pressure on land values
as the urgency for a compensation package becomes apparent. The
savings in time and legal costs are considerable, whilst the outcome
should mean that the development is based on sound principles
of sustainability".[119]
134. English Nature was more guarded about the progress
of a national strategy:
"We are disappointed that these issues have
not been addressed, but believe that for the time-being, given
that the major development proposals are already within the planning
process, the need for an overall strategy is no longer a pressing
issue for English Nature at this time. However, we will watch
with interest how decisions will be made on the three new port
development proposals (Bathside Bay, Dibden Bay and London Gateway)
and on the re-configuration of the Languard Terminal at the Port
of Felixstowe."[120]
135. While this progress is encouraging, we are concerned
that English Nature considers that "rather than considering
the UK to be 'gold
plating' we should be seeking 'better application of the Habitats
Directive across Europe to deliver parity with the UK approach'."[121]
It is clearly appropriate to press for high standards across Europe,
but the first responsibility of Government and its associated
bodies must be to deal with matters in the United Kingdom over
which they have some control, rather than with matters in other
sovereign states.
136. It is essential that a workable
method of protecting the approaches to UK ports is found. The
Habitats Directive should not prevent port development or expansion,
but ensure that such development is environmentally sustainable.
A more comprehensive strategic framework is required to ensure
the integration of port development into a sustainable transport
strategy to encourage environmental benefits.
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