Regulation 35 Exceptions from regulation 34

Changes not yet applied. Later legislation changes this provision in ways not yet written into the text below:

reg. 35(1) words substituted by Conservation (Natural Habitats, etc.) 2004 reg. 10(a)
reg. 35(5)-(7) omitted by Conservation (Natural Habitats, etc.) 2004 reg. 10(b)
reg. 35 substituted by Conservation (Natural Habitats, etc.) 2007 reg. 6
reg. 35(1) text amended by Conservation (Natural Habitats, etc.) 2009 reg. 5(a)
reg. 35(3) inserted by Conservation (Natural Habitats, etc.) 2009 reg. 5(b)

(1)

Nothing in regulation 34 shall make unlawful anything done—

(a)

in pursuance of a requirement by the Department of Agriculture under section 6 of the Agriculture Act (Northern Ireland) 1949^f1 or under section 2 of the Agriculture (Miscellaneous Provisions) Act (Northern Ireland) 1959^f2; or

(b)

under the Drainage (Northern Ireland) Order 1973^f3.

(2)

Nothing in regulation 34(1)(b) or (d) shall make unlawful anything done within a dwelling house.

(3)

Notwithstanding anything in regulation 34, a person shall not be guilty of an offence by reason of—

(a)

the taking of a wild animal of a European protected species if he shows that the animal had been disabled otherwise than by his unlawful act and was taken solely for the purpose of tending it and releasing it when no longer disabled;

(b)

the killing of such an animal if he shows that the animal had been so seriously disabled otherwise than by his unlawful act that there was no reasonable chance of its recovering; or

(c)

any act made unlawful by that regulation if he shows that the act was the incidental result of a lawful operation and could not reasonably have been avoided.

(4)

A person shall not be entitled to rely on the defence provided by paragraph (2) or (3)(c) as respects anything done in relation to a bat otherwise than in the living area of a dwelling house unless he had notified the Department of the proposed action or operation and allowed it a reasonable time to advise him as to whether it should be carried out and, if so, the method to be used.

(5)

Notwithstanding anything in regulation 34 an authorised person shall not be guilty of an offence by reason of the killing or disturbing of an animal of a European protected species—

(a)

if he shows that his action was necessary for the purpose of preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber, pasture or any other form of property or to fisheries; and

(b)

he notifies the Department immediately after taking such action.

(6)

An authorised person may not rely on the defence provided by paragraph (5) as respects any action taken at any time if it had become apparent, before that time, that the action would prove necessary for the purpose mentioned in that paragraph and either—

(a)

a licence under regulation 39 authorising that action had not been applied for as soon as reasonably practicable after that fact had become apparent; or

(b)

an application for such a licence had been determined.

(7)

In this regulation “authorised person” means—

(a)

the owner or occupier, or any person authorised by the owner or occupier, of the land on which the action authorised is taken,

(b)

any person authorised by the Department;

so, however, that the authorisation of any person for the purposes of this definition shall not confer any right of entry upon any land.

Annotations

Footnotes

f1: 1949 c. 2 (N.I.)
f2: 1959 c. 2 (N.I.)
f3: S.I. 1973/69 (N.I. 1)