RESEARCH PAPER 00/30 The Countryside and 16 MARCH 2000 Rights of Way Bill – Wildlife and Conservation Bill 78 of 1999-2000
This paper is concerned with Parts III and IV of the Countryside and Rights of Way Bill, which is scheduled to receive its Second Reading on Monday 20 March. This paper deals with the wildlife and conservation aspects of the Bill.
The provisions for protection of sites of special scientific interest (SSSIs) follow those set out in the DETR Sites of Special Scientific Interest: better protection and management. The Government’s Framework for Action document. (August 1999) Where notified SSSIs exist the Bill intends to strengthen the protections provided by such designation; improve notification procedures and introduce the power to denotify sites. The Bill also seeks to increase penalties for damaging both SSSIs and other wildlife and nature sites.
The Bill will grant extended powers to wildlife inspectors for the enforcement of wildlife legislation and will provide powers for enforcing the restoration of some damaged sites and managing other sites in danger.
This Bill extends to England and Wales only.
Stephen McGinness
SCIENCE AND ENVIRONMENT SECTION Grahame Allen
SOCIAL AND GENERAL STATISTICS SECTION
HOUSE OF COMMONS LIBRARY Recent Library Research Papers include:
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ISSN 1368-8456 Summary of main points
The wildlife and nature conservation provisions within the Bill have been anticipated for a considerable time. Since Labour won the last General Election with a promise to improve wildlife protection in their manifesto, there has been speculation as to the extent of improvements to wildlife law.
While the provisions of the Bill have, in general, been welcomed by most wildlife and nature conservation groups, there has been some disappointment expressed at the fact that the legislation has not been more wide ranging. There is no inclusion of Areas of Outstanding Natural Beauty within statutory protection measures; there is no legal underpinning of the process resulting in Biodiversity Action Plans; there is no duty on local authorities to maintain wildlife sites and there is no mention of marine habitats or marine species protection.
The response from landowners has been one of qualified welcome. It is felt that the powers granted by the Bill should be seen as measures of last resort for use when reasonable management agreements cannot be reached with the owners/occupiers of an SSSI.
There has also been a general feeling, from all concerned, that the Government must ensure that the changes and improvements in management and enforcement are accompanied by adequate funding for the conservation agencies (English Nature and the Countryside Council for Wales). As the Government have announced increased funding for English Nature this is more an issue for the CCW as the Welsh Assembly is now responsible for the funding of such activity.
CONTENTS
I Introduction 7
II Nature Conservation Sites and Legislation 9
A. Statistical Data on Wildlife and Nature Conservation 15
1. Prosecutions and convictions under the Wildlife and Countryside Act 1981 15 2. Sites of Special Scientific Interest (SSSI) 16 III Recent Parliamentary Debate 21
A. The Areas of Outstanding Natural Beauty Bill [HL] 1998/99 21
B. The Wildlife Bill [Bill 252] 1997-98 23
IV Sites of Special Scientific Interest 25
A. Protection and Management 25
B. Criticisms of the SSSI system 26
C. SSSI Adjournment Debate 28
V The Current Bill 32
A. Immediate Reaction to the Bill 32
1. Non-Governmental Organisations 32 2. Government Agencies and Political Parties 34 B. Provisions of the Bill 36
1. Sites of Special Scientific Interest 36 2. Enforcement of Wildlife Legislation 38 3. Other Provisions of the Bill for the Countryside 39
RESEARCH PAPER 00/30
I Introduction
The countryside holds a special place in the hearts of many people both urban and rural: there exists an idyllic picture of “England’s green and pleasant land”. There is little truly wild countryside left in England and Wales and, for many people, the view of the countryside is not wild woods and mountains but rolling fields and well managed hedges.
There is no precise definition of ‘countryside’ used by the Countryside Agency but it generally refers to land outside built up areas. The Department of the Environment carried out a Countryside Survey which reported that 88% of England is countryside of which over 70% is arable land or managed grassland.1
Rural areas are defined as those wards or postcode sectors which are outside settlements of 10,000 or more people. Rural parishes are those which have a resident population of 10,000 or less. There are 9,677 such parishes in England.2
The character of the land tends to reflect the history of the area and the use to which the land has been put over the past few centuries. The Countryside Agency have launched a Countryside Character Initiative that aims to:
look at the whole of England’s countryside - rather than just specific designated areas - and provide a consistent national framework within which more detailed local landscape assessments would sit.3
In the past, conservation of the countryside has been approached in a less holistic fashion, attempting to identify the important bits and provide protection for those. This has led to a piecemeal approach and a patchwork of legislation which is not held, by wildlife groups and conservation agencies, to have accomplished the conservation of the countryside nor the wildlife that once flourished in it.4
The State of the Countryside 19995 reports that over half the English population wish to live in the countryside but that a third of the population expressed some concern about the quality of countryside. The 1996 British Social Attitudes Survey reported that 47% of respondents believed the countryside to have changed for the worse over the previous 20 years, as opposed to the 12% that believed it to have changed for the better. It was also noted that whilst fewer than half of those living in cities or the suburbs were content with their way of life, 89% of countryside dwellers were content with living there.
1 Department of Environment, Countryside Survey 1990, January 1993 2 The Countryside Agency, The state of the countryside 1999 3 http://www.countryside.gov.uk/what/cci1.htm 4 Graham Harvey, The Killing of the Countryside, 1997 5 The Countryside Agency, The state of the countryside, 1999
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The three main concerns expressed with regard to the countryside were development, pollution and the removal of hedges and woods. These concerns were expressed by at least twice as often as other concerns.6
The Labour Party in their 1997 election manifesto promised to ‘ensure greater protection for wildlife’. There has been considerable speculation since the election amongst wildlife and countryside groups as to the nature of a countryside bill. Among the hopes of these organisations have been:
• stronger penalties for wildlife crime • better protection for wildlife sites such as SSSI and AONB; • better protection for hedgerows and landscape features; • the legal underpinning of the Biodiversity Action Plan; and • some consideration of how the marine environment might be protected.
In Scotland, responsibility for the environment is now largely devolved. Thus the Scottish Parliament will be responsible for producing legislation to update or alter the Wildlife and Countryside Act 1981 (WCA) as it applies in Scotland. Schedule 10 of the current Bill makes consequential amendments to the WCA to reflect this change.
6 Countryside Commission, Public Attitudes to the Countryside, 1997
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II Nature Conservation Sites and Legislation
There have been only a few major Acts of Parliament which address the countryside and the preservation of wildlife and wildlife habitats. The first of these, the National Parks and Access to the Countryside Act 1949, provided the beginnings of many of the bodies and mechanisms used today.
The National Parks Commission set up under the 1949 Act became first the Countryside Commission (1968) and then the Countryside Agency (1999). Between 1951 and 1957 ten national parks were established under this Act. A special case, The Broads, was added in 1989. The Broads are not legally a national park; they were set up under the Norfolk and Suffolk Broads Act 1988 rather than the National Parks and Access to the Countryside Act 1949. They are, however, usually considered part of the national parks group and are reported on within the Association of National Park Authorities Annual Reviews. There have been repeated calls for the New Forest and the South Downs to be added to the list of national parks. After receiving advice from the Countryside Commission, Protecting our Finest Countryside, the first steps were taken to do so in September last year.7
The next major piece of countryside legislation was the Countryside Act 1968 which established the Countryside Commission and provided new powers for local authorities to establish country parks. The Act also made provision (section 11) that:
In the exercise of their functions relating to land under any enactment every Minister, governing department and public body shall have regard to the desirability of conserving the natural beauty and amenity of the countryside.8
The 1968 Act also made provision for the establishment of management agreements between conservation agencies and the owners of SSSIs. These agreements were, however, to forgo development rights rather than to positively manage the site.
Following this was the Wildlife and Countryside Act 1981 that provided extensive protection for a whole range of wildlife species and habitats. The Act extended protection given to wildlife sites to provide control over damaging activities by the owners, or occupiers, of sites. The motivation for this legislation was the perceived damage caused by agricultural activity on, or near, the sites of interest.9
Though there have been subsequent changes to the way in which conservation has been managed through Government, there has been little change to the national legislative basis of nature and wildlife conservation. There has been a raft of European and international
7 Department of the Environment Transport and the Regions 953/ENV, First steps to create new national parks, 29 September 1999 8 Section 11; Countryside Act 1968 9 M Shoard, The Theft of the Countryside, 1981
9 RESEARCH PAPER 00/30 agreements and pieces of legislation which have, in conjunction with national legislation, provided us with the following list of sites:
World Heritage Sites World Heritage Sites are areas of global natural and/or cultural significance, nominated by the state within which they are situated, the nominations then being considered by a World Heritage Committee of Party States. Sites that are accepted are placed on the World Heritage List. World Heritage Sites must have strict legal protection and any management of the site must ensure that this continues.
Biosphere Reserves Biosphere Reserves represent globally significant examples of biomes (biological communities) for both terrestrial and coastal environments. They have particular value as benchmarks or standards for the measurement of long-term changes in the biosphere as a whole. They were devised by UNESCO under Project No. 8 of their Man and the Biosphere (MAB) ecological programme, and were launched in 1970. Criteria and guidelines for selection of sites were produced by an UNESCO task force in 1974. Although Biosphere Reserves are not always statutory protected areas, all British sites are also National Nature Reserves.
Biogenetic Reserves In 1973 the European Ministerial Conference on the Environment recommended that a European network of reserves to conserve representative examples of European flora, fauna and natural areas be established. All sites in the UK are existing Sites of Special Scientific Interest (SSSIs), and most are also National Nature Reserves (NNRs).
Wetlands of international importance (Ramsar sites) Ramsar sites are statutory areas designated by the UK government on the advice of the conservation agencies under the Ramsar Convention (the Convention on wetlands of international importance especially as waterfowl habitat). Contracting parties (of which the UK is one) are required to designate wetlands of international importance and to promote their conservation and ’wise use’. Ramsar sites are designated for their waterfowl populations, their important plant and animal assemblages, their wetland interest or a combination of these: all Ramsar sites have first to be designated as Sites of Special Scientific Interest.
Special Protection Areas The 1979 EC Directive on the Conservation of Wild Birds (the Birds Directive) requires member states to take conservation measures particularly for certain rare or vulnerable species and for regularly occurring migratory species of birds. In part this is achieved through the designation of statutory Special Protection Areas (SPAs) by the UK government on the advice of the statutory conservation agencies. This designation is implemented through the Wildlife & Countryside Act 1981; all SPAs have first to be notified as Sites of Special Scientific Interest (SSSIs).
Special Areas of Conservation The designation of Special Areas of Conservation (SACs) is one of the main mechanisms by which the EC Habitats & Species Directive (1992) is implemented.
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SACs are areas identified as outstanding examples of selected habitat types or areas important for the continued well-being or survival of selected non-bird species in a European context. In the UK, the Directive is implemented through the Conservation (Natural Habitats &c.) Regulations 1994 (DoE 1994); all SACs have first to be notified as Sites of Special Scientific Interest (SSSIs). A list of ’possible’ SACs was announced by the Government on 31 March 1995, and additions were announced in October 1997.
Environmentally Sensitive Areas European Community authorisation for Environmentally Sensitive Areas (ESAs) is derived from Article 19 of Council Regulation (EEC) No. 797/85 - National Aid in Environmentally Sensitive Areas. ESAs are statutory areas in which the Government seeks to encourage environmentally sensitive farming practices, prevent damage that might result from certain types of agricultural intensification, and restore traditional landscapes, for which member states are allowed to make payments to farmers.
Sites of Special Scientific Interest (SSSIs) and Areas of Special Scientific Interest (ASSIs) The Site of Special Scientific Interest/Area of Special Scientific Interest designation is the main site protection measure in the UK. All Biosphere Reserves, Biogenetic Reserves, Special Protection Areas, Ramsar sites, Areas of Special Protection, (Candidate) Special Areas of Conservation and National Nature Reserves have first to be notified as SSSIs/ASSIs. The notification process involves considering the site against a published set of quality and rarity criteria, followed by consultations with the owners and occupiers of the land, the local authority and the appropriate Secretary of State. All views on the proposed notification are considered. Once notified, protection of the site is achieved by agreements to compensate land owners or occupiers for profits lost as a result of not carrying out specified damaging operations or, increasingly, through ‘positive’ management agreements. In the last resort, sites can be bought from the owner without their agreement. Around 8% of the total land area of Britain is designated as SSSIs.
National Nature Reserves National Nature Reserves (NNRs) contain examples of some of the most important natural and semi-natural ecosystems in Great Britain. They are managed to conserve their habitats, providing special opportunities for scientific study of the habitats, communities and species represented within them. Wherever possible, access by the public is encouraged. Most are owned and managed by the country nature conservation agencies, although increasingly land owned and managed by other bodies is being designated as NNRs.
Marine Nature Reserves Marine Nature Reserves (MNRs) conserve marine flora and fauna and geological or physiographical features of special interest, while providing opportunities for study of the marine systems. Their designation involves consultation with numerous statutory and voluntary bodies and interest groups and consequently only three have so far been established in the UK. By far the largest is Strangford Lough in Northern Ireland.
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Areas of Special Protection The ’Area of Special Protection’ (AoSP) designation replaces Bird Sanctuary Orders under the 1954 to 1967 Protection of Birds Acts, which were repealed and amended under the Wildlife & Countryside Act 1981. Designation makes it unlawful to damage or destroy either the birds for which the area is identified or their nests. In some cases this involves prohibiting or restricting access to the site.
Areas of Outstanding Natural Beauty AONBs are statutorily designated by the Countryside Commission (in England) and the Countryside Council for Wales (in Wales), under the National Parks & Access to the Countryside Act 1949. In Northern Ireland they are statutorily designated by the Department of the Environment under the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 and its amendments. AONBs are not designated in Scotland. Their primary purpose is to conserve natural beauty, but account is taken of the need to safeguard agriculture, forestry and other rural industries, and the economic and social needs of local communities.
National Parks National Parks in England and Wales were statutorily designated by the National Parks Commission and confirmed by the Government between 1951 and 1957, and one area with similar status, The Broads (in East Anglia), was established in 1989. The Countryside Commission (England) and the Countryside Council for Wales advise government on National Parks, each of which is administered by a Park Authority. The purpose of National Parks is to preserve and enhance the most beautiful, dramatic and spectacular expanses of countryside, while promoting public enjoyment of them, and having regard for the social and economic well-being of those living within them. In 1998 SNH presented proposals to Government to inform separate legislation to be considered by the new Scottish Parliament, introducing National Parks in Scotland.
National Scenic Areas National Scenic Areas (NSAs) are statutorily designated by Scottish Natural Heritage as the best of Scotland’s landscapes, deserving special protection in the nation’s interest. NSAs replace two earlier categories of sites of importance for scenic interest that mirrored the National Park and Area of Outstanding Natural Beauty (AONB) designations in England and Wales. Special development control measures for the 40 National Scenic Areas in Scotland were introduced by the Scottish Development Department in 1980.
Country Parks Country Parks are statutorily declared and managed by local authorities under section 7 of the Countryside Act 1968. They are primarily intended for recreation and leisure opportunities close to population centres and do not necessarily have any nature conservation interest. Nevertheless, many are in areas of semi-natural habitat and so form a valuable network of locations at which informal recreation and the natural environment co-exist.
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Local Nature Reserves A local authority can declare a site in which it has a legal interest as a Local Nature Reserve (LNR) under section 21 of the National Parks & Access to the Countryside Act 1949, for the same purposes as NNRs, but because of the local rather than the national interest of the site and its wildlife. Under this Act local authorities have the power to issue bylaws to protect their LNRs.
Limestone Pavement Orders Limestone Pavement Orders afford statutory protection for limestone pavements under the Wildlife & Countryside Act 1981. An Order, created by the relevant local government authority, prohibits the removal or damage of limestone within a designated area, after notification of its importance by English Nature and the Countryside Commission. Limestone pavements are identified as a priority habitat under the EC Habitats & Species Directive.10
The patchwork of protection for wildlife and nature conservation sites in the UK can appear confusing and some wildlife organisations feel frustrated that a site can be recognised as important but receive no statutory protection.
The main statutory protected site designations in the UK are outlined below. Sites designated under international conventions, treaties and directives occur throughout Europe (in the case of sites designated under EC legislation) and the world. Other sites are designated under UK domestic legislation only.
*As at 31.3.97 +As at 31.3.98 Sites designated under international conventions and directives Established by No. in the UK Total area (ha) World Heritage Sites+ UK government 2 923 Biosphere Reserves + UK government 13 44,258 Biogenetic Reserves* UK government 18 8,000 Ramsar sites+ UK government 122 462,125 Special Protection Areas UK government 177 743,859 (SPAs)+ (Candidate) Special Areas of Conservation UK government 301 1,568,060 (SACs)+ Environmentally Sensitive UK government 43 3,377,000 Areas (ESAs)*
10 http://www.jncc.gov.uk/communications/natcons/descriptions.htm
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Sites established/protected under national statute Established by No. in the UK Total area (ha) Areas of Special UK government Not available Not available Protection (AoSPs) National Nature English Nature/CCW11/ 362 206,710 Reserves (NNRs)* SNH12/EHS13 Countryside National Parks* 10 1,376,000 Commission/CCW Marine Nature Reserves English Nature/CCW/ 3 19,390 (MNRs)* SNH/EHS Sites of Special Scientific Interest English Nature/CCW/ 6,382 2,109,450 (SSSIs) (in England, SNH Scotland and Wales) Areas of Special Scientific Interest EHS 117 78,968 (ASSIs) (in Northern Ireland)* Local Nature Reserves (LNRs) (IN England, Scotland and Wales; Local government 629 33,000 Local Authority Nature authorities Reserves (LANRs) (in Northern Ireland)* Areas of Outstanding Countryside Commission Natural Beauty (in England)/ CCW (in 41 2,123,700 (AONBs) (in England Wales) and Wales)+ National Scenic Areas SNH 40 1,001,800 (Scotland only)* Local government Country Parks* 281 35,150 Authorities Limestone Pavements Local government Not available Not available Authorities Authorities
11 Countryside Council for Wales (Wales), http://www.ccw.gov.uk 12 Scottish Natural Heritage (Scotland), http://www.snh.org.uk/ 13 Environment and Heritage Service (Northern Ireland), http://www.ehsni.gov.uk:8080/index.htm
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A. Statistical Data on Wildlife and Nature Conservation
1. Prosecutions and convictions under the Wildlife and Countryside Act 1981
Table 1 below shows the number of defendants prosecuted and convicted of offences related to birds under the Wildlife and Countryside Act 1981 between 1990 and 1996. Figure 1 below also shows the percentage of the prosecutions that lead to a conviction over the same period. Table 1 Number of defendants prosecuted and convicted of offences related to birds under the Wildlife and Countryside Act 1981, 1990-1996 England and Wales Offence description 1990 1991 1992 1993 1994 1995 1996
Prosecutions Wildlife and Countryside Act 1981 Protection of wild birds (Section 1) 35 45 44 48 30 41 33 Protection of nests and eggs of wild birds (Section 1) 5 14 9 16 17 18 9 Protection of wild birds in sanctuaries (Section 3) -- 1 ------Protection of the nest and eggs of wild birds in sanctuaries (Section 3) 3 1 -- 1 -- 2 -- Prohibition of certain methods of killing or taking wild birds (Section 5) 11 7 7 10 3 3 8 Protection of captive birds (Section 8) 7143-- 32
Total 61 69 64 78 50 67 52
Convictions Wildlife and Countryside Act 1981 Protection of wild birds (Section 1) 24 33 33 32 19 30 24 Protection of nests and eggs of wild birds (Section 1) 2 12 7 8 15 10 3 Protection of wild birds in sanctuaries (Section 3) -- 1 ------Protection of the nests and eggs of wild birds in sanctuaries (Section 3) 3 0 -- 1 -- 0 -- Prohibition of certain methods of killing or taking wild birds (Section 5) 9658327 Protection of captive birds (Section 8) 7042-- 31
Total 45 52 49 51 37 45 35
Percentage of prosecutions leading to a conviction Wildlife and Countryside Act 1981 Protection of wild birds (Section 1) 69% 73% 75% 67% 63% 73% 73% Protection of nests and eggs of wild birds (Section 1) 40% 86% 78% 50% 88% 56% 33% Protection of wild birds in sanctuaries (Section 3) -- 100% ------Protection of the nests and eggs of wild birds in sanctuaries (Section 3) 100% 0% -- 100% -- 0% -- Prohibition of certain methods of killing or taking wild birds (Section 5) 82% 86% 71% 80% 100% 67% 88% Protection of captive birds (Section 8) 100% 0% 100% 67% -- 100% 50%
Total 74% 75% 77% 65% 74% 67% 67%
Source: HC Deb 5 Mar 1998 c706W
Figure 1: Percentage of prosecutions leading to a conviction for offences related to birds under the Wildlife and Countryside Act 1981
78%
76%
74%
72%
70%
68%
66%
64%
62%
60% 1990 1991 1992 1993 1994 1995 1996
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Between 1990 and 1996 the majority of prosecutions against offenders were brought under Section 1 of the Wildlife and Countryside Act 1981, which relates to the intentional killing, injury, taking and destroying of wild birds, their nests or eggs in the wild. Of the 441 prosecutions relating to birds brought to court between 1990 and 1996, 364, or almost 83% of prosecutions, were brought under Section 1 of the Act. In 252, or 69%, of these cases, convictions were made.
The most successful prosecutions, in terms of the percentage leading to a conviction, were brought against offenders under Section 3 of the Act, which relates to wild birds in sanctuaries. Between 1990 and 1996 the conviction rate for prosecutions under this part of Section 3 was 100%. The most unsuccessful prosecutions, in terms of the percentage leading to a conviction, were brought against offenders under Section 3 of the Act that relates to the protection of the nests and eggs of wild birds in sanctuaries with a 57% success rate between 1990 and 1996.
Although there were the highest number of prosecutions for offences related to birds in 1993 it was also the year in this period that had the lowest percentage of convictions. This was mainly down to half the prosecutions brought against offenders under Section 1 of the Act not leading to a conviction. Of the total number of prosecutions relating to birds brought under the Wildlife and Countryside Act 1981 in 1996, in 33% of cases no conviction was made. This is approximately the same percentage of defendants that were not committed for trial to the Crown Court or found guilty in Magistrates Courts for all offences in England & Wales in the same year.14 Between 1992 and 1996 The number of recorded convictions brought against offenders under Section 9 and Section 11 of the Wildlife and Countryside Act 1981, which relates specifically to offences against wild animals, was 17 and 13 respectively.15
2. Sites of Special Scientific Interest (SSSI)
Table 2 and figure 2 below show that in 1991/92 there were just over 3,700 Sites of Special Scientific Interest (SSSI) in England and 800 in Wales. The total number of SSSIs in England and Wales has increased each year subsequently, from 4,500 in 1991/92 to 5,000 at 31 December 1999. However, the growth in the number of SSSIs created each year in England & Wales has slowed form almost 2% per annum between 1991/92 and 1992/93 to just over 1.5% per annum between 1997/98 and 1998/99.
The total area covered by SSSIs in England and Wales, shown in table 3 and figure 3 below, has also increased each year from just over 1 million hectares in 1991/92 to almost 1.3 million hectares at 31 December 1999, an increase of 27%. The average size of a SSSI in England has risen from 220 hectares in 1991/92 to almost 260 hectares at 31 December 1999. In Wales, over the same time period, the average size of a SSSI has fallen from 240 hectares at 31 December 1991 to 225 hectares at 31 December 1999.
14 Home Office, Criminal Statistics England and Wales 1997, November 1998 15 HL Deb 19 May 1998 c 154WA
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Table 2 Table 3 Total number of SSSIs Total Area (ha) of SSSIs England & Wales England & Wales England & England & England Wales Wales England Wales Wales 1991/92 3,675 827 4,502 1991/92 809,525 198,341 1,007,866 1992/93 3,730 849 4,579 1992/93 858,921 201,626 1,060,547 1993/94 3,794 882 4,676 1993/94 871,066 205,795 1,076,861 1994/95 3,825 894 4,719 1994/95 893,335 205,670 1,099,005 1995/96 3,865 907 4,772 1995/96 919,807 207,665 1,127,472 1996/97 3,912 917 4,829 1996/97 951,680 218,135 1,169,815 1997/98 3,987 930 4,917 1997/98 967,365 218,225 1,185,590 1998/99 4,045 946 4,991 1998/99 1,035,821 222,661 1,258,482 31/12/99 4,081 988 5,069 31/12/99 1,051,928 223,532 1,275,460
Note: Figures for Wales are at 31st December Note: Figures for Wales are at 31st December Source: English Nature & Countryside Council for Wales Source: English Nature & Countryside Council for Wales
Figure 2: Total number of SSSIs in Figure 3: Total area of SSSIs in England &
England &Wales 1,300,000 Wales
5,000
1,250,000
4,500 1,200,000
1,150,000 4,000
1,100,000
3,500 1,050,000
1,000,000 3,000 1991/92 1992/93 1993/94 1994/95 1995/96 1996/97 1997/98 1998/99 31/12/99 1991/92 1992/93 1993/94 1994/95 1995/96 1996/97 1997/98 1998/99 31/12/99
Tables 4 and 5 below show summaries of the scale and reason for damage that has occurred to designated SSSIs in England during 1998/99. Cases that have been reported are those that involve damage exceeding any of the thresholds set out below: 16
• Greater than 0.5 hectares damaged, or • Greater than 10% of the SSSI area damaged, or • Greater than 100m of a linear feature on the SSSI damaged, or • Greater than 10% of a particular habitat or species feature damage
From table 4 below it can be seen that 3,286 hectares or 98% of the features damaged in 1998/99 have been designated as areas where there is a reduction in the special interest that will take more than three years for recovery. This is shown as long term recovery of features in table 4
16 English Nature, Facts and Figures, 27 October 1999, http://www.english-nature.org.uk/facts.htm
17 RESEARCH PAPER 00/30 below.17 Only 4 hectares or less than 0.2% of the total area damaged have been designated as ‘no recovery, whole feature’ that may lead to the denotification of the whole feature. The two SSSIs in this category are the Scroggs in Northumberland and Horse Field, Gilling in North Yorkshire. 18
Table 4 Table 5 Summary of recovery type for all damaged SSSIs Summary of SSSIs damaged in 1998/99 England England
Recovery Group Categories Sites Cases Area(Ha) Feature Damage Site Recovery Area(Ha) Site Area
Loss of whole (unit) feature 2 2 4 Agricultural 3,097 114,541 Partial loss of (unit) feature 6 6 4 Insufficient management 73 806 Long term recovery of features 35 39 3,286 Development 42 3,485 Short term recovery of features 10 10 35 Forestry damage 4 830 Unknown feature recovery period 5 5 34 Recreational 6 630 Miscellaneous damage 142 19,602 Total number of sites damaged 553 62 3,362 Total damage 3,362 139,896
Note: Some sites are listed in more than one category Source: English Nature Press Release EN/99/43 28 October 1999 Source: English Nature Press Release EN/99/43 28 October 1999
From table 5 the major factor in damage to SSSIs in 1998/99 can be seen to be agriculture which was found to have been the cause of damage to 3,000 hectares, or 92% of the total area. Of the area damaged by agriculture 92% was due to the effects of heavy grazing of upland heath and grassland. The largest single area reported damaged was Whernside SSSI in North Yorkshire where 2,000 hectares were lost to over-grazing.19
The full list of SSSIs damaged in 1998/99, broken down by feature, is presented on the following pages.
17 English Nature, Facts and Figures, 27 October 1999, http://www.english-nature.org.uk/facts.htm 18 Ibid 19 Ibid
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List of SSSIs damaged in 1998/99
Key to recovery potential codes:
NR whole - No recovery for whole feature NR part - No recovery for part of feature LT mgd / ST mgd - Long Term / Short Term managed recovery LT spon / ST spon - Long Term / Short Term spontaneous recovery U - Unknown
Feature Damage Site Recovery
Agricultural Site name County Type Damaged Site area Potential Area (Ha) Aarreton Down Isle of Wight Grassland 2 29.3 LT mgd Bowland Fells Lancashire Moorland 100 16002.3 LT mgd Braunton Burrows Devon Sand dunes 250 1346.6 LT mgd Burgh Common & Muckfleet Marshes Norfolk Wet ditches 0.5 120.1 LT mgd Calbourne Down Isle of Wight Grassland 0.5 15.2 LT mgd Clayton to Offham Escarpment Sussex Grassland 0.2 431.3 LT mgd Clayton to Offham Escarpment Sussex Grassland 0.5 431.3 LT mgd Cowpen Marsh Cleveland Marshy grassland 0.5 120.5 ST spon Dark Peak Derbyshire Grassland 250 31818.9 LT mgd Dungeon Ghyll Cumbria Upland ledges 5 10.1 LT mgd Geldeston Meadows Norfolk Fen 0.5 13.8 LT mgd Great Asby Scar pavement Cumbria Limestone 349.8 349.8 LT mgd Horse Field, Gilling N Yorkshire Grassland 2.1 2.1 NR whole Lambert’s Castle Dorset Grassland 0.3 108.1 LT mgd Lune forest Durham Heathland 7 6333.4 ST mgd Mambury & Stowford Moors Devon Grassland 1 39.8 LT mgd Newby Moor N Yorkshire Grassland 5 277.7 LT mgd North Exmoor Somerset Heathland 50 12016.7 LT mgd North Exmoor Somerset Heathland 20 12016.7 LT spon North Exmoor Somerset Heathland 20 12016.7 ST mgd River Eden and Tributaries Cumbria River 4.2 2491.1 LT mgd Rodney Stoke Somerset Grassland 3.5 71.4 LT mgd Upper Teesdale Durham Blanket bog 20 14370.8 LT mgd Upton Broad and Marshes Norfolk Lake 0.5 194.8 LT mgd Whernside N Yorkshire Heathland/bog 2000 3853.4 LT mgd Wolstonbury Hill West Sussex Grassland 4 58.8 ST mgd Total 3097.1 114540.7
Insufficient management Bassenthwaite Lake Cumbria Fen 34 674.2 LT mgd Bishop’s Hill Wood Avon Grassland 6 30.2 LT mgd Bowlditch Quarry Avon Geological 0.1 0.2 ST mgd Grime’s Graves Norfolk Heathland 28 66.4 LT mgd Huish Colliery Quarry Avon Geological 0.2 0.8 ST mgd Kilmersdon Road Quarry Avon Geological 0.2 0.5 ST mgd Shiplate Slait Avon Grassland 4 34.1 LT mgd Total 72.5 806.4
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Development Site name County Type Damaged Site area Potential Area (Ha) Elterwater Cumbria Lake 20 36 LT mgd Humber Flats & Marshes, Barton & Humberside Swamp 1 452.4 ST mgd Barrow Clay Pits Lazonby Fell Cumbria Heathland 5 331 LT mgd Matchams Dorset Heathland 1.3 9.8 LT mgd Mid Colne Valley Greater London Lake 10.5 147.8 LT mgd Parley Common Dorset Heathland 0.5 164 LT mgd Povington and Grange Heaths Dorset Fen 1 1210.2 NR part Spadeadam Mires Cumbria Blanket bogs 1 1132.8 NR part The Scroggs Northumberland Grassland 1.4 1.4 NR whole Total 41.6 3485.4
Forestry damage Gog Magog Golf Course Cambridgeshire Grassland 3.5 88.1 Un The Malvern Hills Hereford & Worcester Grassland 0.3 741.7 LT mgd Total 3.8 829.8
Recreational Bognor Reef West Sussex Grassland 1.5 74.7 Un Bowerchalke Downs Wiltshire Grassland 0.3 128.6 NR Part River Blythe West Midlands River 0.5 105.3 LT mgd Shrawley Wood Hereford & Worcester Woodland 3 101.5 LT spon Upton Heath Dorset Heathland 0.3 220.3 LT mgd Total 5.5 630.4
Miscellaneous damage Clayhanger West Midlands Grassland 4 27.7 Un Esthwaite Water Cumbria Lake 100 156.3 LT mgd Hope’s Nose to Wall’s Hill Devon Geological 0 62.1 NR part Low Church Moss Cumbria Wetland 0.9 4.9 NR Part Lune Forest Durham Blanket bog 20 6333.4 Un Meathop Woods and Quarry Cumbria Woodland 0.8 38.7 LT mgd North Exmoor Devon Heathland 1 12016.7 LT mgd Oss Mere Shropshire Grassland 2.1 29 ST mgd River Nent at Blagill Cumbria Geological 4.5 9 Un Rose End Meadows Derbyshire Grassland 0.2 54.5 ST mgd South Gare & Coatham Sands Cleveland Sand dune 0.8 387 NR part Tees and Hartlepool Foreshore & Wetlands Cleveland Coastal lagoons 7 288.2 LT mgd Upton Broad & Marshes Norfolk Fen 0.5 194.8 LT mgd Total 141.8 19602.3
Total damage, all categories 3362.2 Total site area 139895
Source: English Nature Press Release EN/99/43 28 October 1999
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III Recent Parliamentary Debate
Conserving the countryside and wildlife has given rise to substantial Parliamentary interest since the 1997 General Election. A search of records since that time shows that there have been at least: 38 oral debates (16 of them in the Lords); 62 early day motions; 9 private members bills and 8 select committee reports with direct bearing on these issues.
Perhaps the most relevant Parliamentary debates have been those on Bills concerning areas of outstanding natural beauty and sites of special scientific interest.
A. The Areas of Outstanding Natural Beauty Bill [HL] 1998/99
A Bill was introduced in the Lords in each of the last two years to provide greater protection for those areas designated as Areas of Outstanding Natural Beauty (AONB).
The AONB designation is awarded where there is a desire to conserve and enhance natural beauty, taking into account the needs of agriculture, forestry and other rural industries and of the economic and social needs of local communities. Sustainable forms of social and economic development, which in themselves protect and improve the environment, are encouraged.
AONBs were established under the same legislation as National Parks (National Parks and Access to the Countryside Act 1949), but the key difference between the two is that creating opportunities for recreation is not a specific purpose of AONB. However, recreation within AONBs is acceptable if it is consistent with the conservation of natural beauty and the needs of agriculture, forestry and other uses.
Although AONBs do not have statutory protection, local authorities are expected to ‘take the special character of the landscape into account’ when creating policy and controlling development.
The Areas of Outstanding Natural Beauty Bill (HL Bill 46) received its second reading in the Lords on 21 May20 before being committed to a Committee of the whole House. The function of the Bill was discussed fully in the Second Reading debate; the three key objectives were elucidated by its sponsor, Lord Renton of Mount Harry:
My Bill has three prime objectives. The first is to enable--that word is important--the establishment of statutory conservation boards. But that is done on an "opt-in" basis. It is not compulsory. It happens where the Countryside Agency, English Nature and the elected local authorities recommend to the Secretary of State that they want this done. It will be done on an a la carte basis; each will be considered on its merits, each individual conservation board perhaps having somewhat different powers and
20 HL Deb 21 May 1999 cc 537-548, cc 558-592
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composition appropriate to its area. That is a point that is not fully understood in the briefing put out by the National Farmers’ Union.
The second objective is to provide secure funding from central and local government. The third and most complex is to strengthen the protection given by the planning system.21
Replying for the Government, Baroness Farrington of Ribbleton noted:
Unlike the national parks, there is no provision for a comprehensive set of powers and duties for AONBs, for dedicated statutory bodies to look after them or for an extensive system of central funding. The former Countryside Commission, now the Countryside Agency, recognised this last summer in presenting its advice to government.
Advice on the protected landscapes included proposals for the future management and funding of AONBs and consideration of possible national park status for the South Downs and the New Forest. In Wales, the Countryside Council for Wales has recently submitted advice on AONBs which is broadly similar to that provided by the Countryside Agency, except that it does not envisage statutory conservation boards.
The key recommendations advanced by the agency are similar in most ways to the proposals in the noble Lord’s Bill. The agency’s advice sought new primary legislation to strengthen the administration and management of AONBs, including a recommendation that local authorities should be required to pursue AONB objectives and to produce management plans and for all relevant authorities to have regard to the purposes of AONBs.
The Government, in considering this, have paid high regard to the advice that they have received, including the agency advice, seeking core management costs to be met by 50 per cent government grant, although Ministers have received a number of representations that central funding should be at 75 per cent, like the national parks. We will consider these points.
We have a great deal of sympathy with the overall objectives of the Bill. We share the same goal in wanting to achieve the best for the future. There are complex proposals involving significant implications for local government, the planning system, development control and financially. All these questions need to be considered properly. Ministers have been studying the advice that we have received on the options for change. I understand the impatience of the noble Lord, Lord Renton of Mount Harry, but there are implications which need to be carefully balanced. We want to make the right decision.22
21 HL Deb 21 May 1999 c 538 22 HL Deb 21 May 1999 c 589
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The Bill eventually progressed to report stage23 where it fell through a lack of time. Lord Renton re-introduced his bill (HL Bill 7) in the current session but the Bill has not yet received a date for its Second Reading.
B. The Wildlife Bill [Bill 252] 1997-98
There has been pressure on the Government for a new Wildlife Bill to incorporate legislation that would essentially update the Wildlife and Countryside Act 1981.
David Lepper introduced the Wildlife Bill, Bill 252 1997-98, following a well received EDM, late in the 97/98 session.24 Both the Bill and the EDM (reproduced below) aimed to bring attention to the Wildlife Charter and the coalition of wildlife groups lobbying for improvement to the current wildlife legislation. The EDM was eventually signed by 302 Members of Parliament, a significant number from each of the parties.
That this House is concerned at the continuing loss of the country’s wildlife and urges the Government to support the Wildlife Charter launched by a broad coalition of wildlife groups; believes that implementation of this charter will help to secure the future of the United Kingdom’s wildlife; recognises the role of those who depend upon the natural environment for their livelihoods; welcomes the recognition in the Government’s manifesto that the countryside is a great national asset, ’a part of our heritage which deserves careful stewardship’, and further welcomes the manifesto commitment to providing ’greater protection for wildlife’; and therefore urges the Government to introduce broad-based wildlife legislation which puts into law the principles called for by the broad alliance of organisations behind the Wildlife Charter, namely the British Association for Nature Conservationists, British Ecological Society, Butterfly Conservation, Earthkind, Environmental Investigation Agency, Friends of the Earth (England, Wales and Northern Ireland), Friends of the Earth (Scotland), Greenpeace, Herpetological Conservation Trust, International Wildlife Coalition, Marine Conservation Society, Plantlife, Royal Society for the Prevention of Cruelty to Animals, Royal Society for the Protection of Birds, Scottish Wildlife Trust, The Wildlife Trusts, Tuskforce, Whale and Dolphin Conservation Society, Wildfowl & Wetlands Trust, Woodland Trust, WWF-UK - The World Wide Fund for Nature, and the Young People’s Trust for the Environment and Nature Conservation.
Mr Lepper maintained the pressure in the 1998-99 session by tabling another EDM which received 349 Members’ signatures.25
The Wildlife Charter26 was co-ordinated by the Wildlife and Countryside Link (WCL),27 a liaison body for voluntary organisations in the UK concerned with the conservation and
23 HL Deb 9 July 1999 c 1202-10 24 David Lepper, EDM 559 1997-98, Launch of the wildlife charter, 4 December 1997 25 David Lepper, EDM 11 1998-99, Wildlife Charter And Wildlife Bill, 24 November 1998 26 The Wildlife Charter, http://www.wildlink.demon.co.uk/page28.html
23 RESEARCH PAPER 00/30 protection of wildlife and the countryside. The aims of the WCL with regard to reform of wildlife law are quite clearly laid down in the Charter:
• provision of a basic standard of protection over the whole of the UK; • legislation which has clear aims of what it has to accomplish; • a good deterrent in the form of higher penalties where persuasion and incentives fail; • fundamental duties of care; and • increased powers of access for officers of conservation agencies.
The WCL believes that previous statutes have relied too much on voluntary compliance to be really effective and have been easy to ignore in the face of short term economic gain.
In January this year the WCL produced a comprehensive document28 outlining what they felt necessary to ensure the comprehensive protection of wildlife. This document provides, not only the actions they wished to be taken, e.g. the legal underpinning of the Biodiversity Action Plan process, but also the reasons why and how they would like to see it done in practice.
27 Wildlife and Countryside Link, 246 Lavender Hill, London, SW11 1LJ. http://www.wildlink.demon.co.uk/ Tel: 0171 924 2355, Fax: 0171 223 4235, Email: [email protected] 28 Wildlife and Countryside Link, Ensuring Comprehensive protection for wildlife in the year 2000, January 2000
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IV Sites of Special Scientific Interest
The UK conservation framework and SSSI system were discussed in great detail in an earlier Library research paper. Some of that material is repeated here but for further detail please consult The habitats directive and the UK conservation framework and SSSI system.29
SSSIs by definition contain the UK’s finest and most precious examples of habitat and wildlife, or landscape and geological features. English Nature describes them as the "core of our nation’s natural heritage".30 The land-based component of the UK Natura 2000 network will be based directly on the SSSI network.
As discussed earlier within the statutory sites SSSI designation is the main site protection measure in the UK. All Biosphere Reserves, Biogenetic Reserves, Special Protection Areas, Ramsar sites, Areas of Special Protection, (Candidate) Special Areas of Conservation and National Nature Reserves have first to be notified as SSSIs. The SSSI designation was originally established by the National Parks and Access to the Countryside Act 1949 but are today notified under the Wildlife and Countryside Act 1981. Once notified, protection of the site is achieved by agreements to compensate land owners or occupiers for profits lost as a result of not carrying out specified damaging operations or, increasingly, through ‘positive’ management agreements. In the last resort, sites can be bought from the owner without their agreement. Around 8% of the total land area of Britain is designated as SSSIs.
According to the latest available figures, there were 5,969 SSSIs in England and Wales and 117 Areas of Special Scientific Interest (ASSIs) in Northern Ireland.31,32 Approximately 32,000 people own, or live on, the SSSIs in England alone.33 The average area of an SSSI is around 252 hectares.34
A. Protection and Management
The SSSI notification sent by the conservation agency (English Nature or the Countryside Council for Wales) to the owner or occupier of a site contains a list of all the operations which, in the agency's view, could conceivably damage the site. These are termed potentially damaging operations (PDOs). Notice must be given in writing by the occupier or owner of any such operations at least four months before they are carried out. In these four months, the conservation agency will consider the implications of the proposals. It may give consent to the operation, refuse it, or invite the owner or occupier to consider modifications which might avoid damaging the wildlife or site.
29 Patsy Richards, Library Research Paper 94/90, The habitats directive and the UK conservation framework and SSSI system, 15 July 1994 30 English Nature, Progress ’94 31 English Nature, Facts and Figures, http://www.english-nature.org.uk/facts.htm (31 July 1999) 32 Department of the Environment, Digest of Environmental Protection and Water Statistics, No.20, 1998 33 English Nature, Facts and Figures, http://www.english-nature.org.uk/facts.htm (31 July 1999) 34 English Nature, What you should know about SSSIs, 1992
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Damaging a SSSI without consent from the conservation agency is punishable on summary conviction by a fine of up to £2000.
Consent will not normally be given for damaging operations.35 Instead, English Nature may, under s15 of the Wildlife and Countryside Act 1981 (WCA), offer the owner or occupier a payment in return for a management agreement that protects the interest of the site. Most of these compensate the owners, or occupiers, for profit forgone by not developing the site. The negative nature of these management agreements, as well as their expense, is often criticised.
If negotiations become protracted, the conservation agency may ask the Secretary of State to make a Nature Conservation Order (NCO) under s29 of the WCA. This will specify operations that may not be carried out on the site and is intended to give protection against specific works while consultation is extended. The legal obligations under a Nature Conservation Order last for twelve months and apply to anyone, not just owners and occupiers.
SSSIs to which NCOs have been applied have been termed "super SSSIs".36 The legal requirements under standard SSSI notification apply to owners and occupiers only.
However, NCOs are not commonplace; typically only one or two dozen will be in force at a given time.37 As a last resort, the conservation agency can apply to the Secretary of State for a Compulsory Purchase Order for a SSSI.
English Nature has a number of schemes aimed at enhancing and monitoring SSSIs. A national site monitoring and information system was launched in 1993, starting off with grassland sites and with lowland heath and upland grassland planned for 1994. The Wildlife Enhancement Scheme aims to link EN wildlife management expertise with the local site knowledge and practical skills of SSSI managers. The first four pilot schemes have concluded 175 management agreements. The Reserves Enhancement Scheme supports local Trusts managing SSSI nature reserves, encouraging the use of volunteers and aiming to increase public access and understanding.38
B. Criticisms of the SSSI system
The problems with the SSSI system are best summarised by a National Audit Office report which commented that:
Notification of a SSSI does not guarantee absolute protection and was not intended by Parliament to do so...Owners can legally carry out damaging activities if they have given English Nature due notice, and the four month period available to English Nature to persuade and negotiate has expired. This is unless application is made to
35 Ibid 36 "Nature conservation and the protection of SSSIs" ENDS Report 212, September 1992, p 34 37 HC Deb 3 February 1994 c 917-8W; English Nature, What You Should Know About SSSIs, 1992 38 English Nature, Progress ’94, May 1994
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the Secretary of State who may grant a Nature Conservation Order, extending the period of negotiations by 12 months. Damage may also be caused by third parties who are not covered by SSSI procedures. Nor can SSSIs be isolated from the effects of developments and management changes on adjacent or nearby land. Planning permission, local and private Acts of Parliament and Statutory Orders may allow developments to proceed which damage the site.39
Despite this criticism an analysis of the effectiveness of the Wildlife and Countryside Act 1981 suggests that the Act has been of use:
The changes that have occurred since the enactment of the Wildlife and Countryside Act and that can be attributed to it are: an increase in the number of management agreements; a decrease in the amount of damage; and the destruction of sites by a number of landowners in the three month period for consultation before designation. Apart from the last of these, which was remedied early on in the operation of the system, it is submitted that the impact [of the Act] has been generally positive.40
This analysis, which appeared in the Journal of Environmental Law, argued that the 1981 Act had successfully addressed the problems that it was introduced to deal with. The current causes of concern are outwith the remit of the 1981 Act; it would therefore be unfair to expect this Act to address those concerns.
When the Act was introduced, agriculture was seen as the primary threat to habitats. Much of the threat from positive agricultural operations has been successfully tackled, both by the Act and by general changes in agricultural policy. The areas where levels of damage are now of concern, such as the activities of third parties and insufficient management, are outside of the controls imposed by the Act. The fact these are now the issues of importance in habitat protection is a clear sign of the success of the Act within its own limitations.41 [emphasis added]
It should be remembered that the caveat at the end of the quotation; ’within its own limitations’ means that only those aspects of habitat protection related to the SSSI system are considered. Agriculture still represents a substantial threat to wildlife habitats outside of the SSSI system. Hedgerows are a good example of this threat and it has been argued that the current agricultural system contains more incentives to diminish this habitat than to conserve it.42
39 National Audit Office Protecting and Managing Sites of Special Scientific Interest in England., 11 May 1994, HC 379 1993-94 40 Katheryn V. Last, Vol 11 No 9, "Habitat Protection: Has the Wildlife and Countryside Act 1981 made a difference?", Journal of Environmental Law, 1999 41 Ibid 42 Country Landowners Association Press Release, CLA concern for new ’two-metre’ ruling, 6 March 2000
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The Government consulted on the topic of sites of special scientific interest in advance of introducing the current Bill.43 There were over 560 responses to the consultation and the Government produced their response44 in August 1999.
The Framework for Action outlined the approach the Government intended to take in addressing the issues highlighted in the consultation exercise:
• a statutory duty on public bodies to secure the positive management of SSSIs which they own or occupy; • provision of additional powers for conservation agencies - to require land managers to carry out necessary works or allow agencies to do so; - more flexible powers to purchase land compulsorily; - additional power to enter land; and the • introduction of stronger penalties for damaging SSSIs
The Framework also indicates that action over and above direct legislation is necessary. There will be an opportunity to change planning guidance in the forthcoming review of Planning Policy Guidance note 9. It would appear that the Government intends that the planning guidance should provide protection to those areas outside the SSSI system (and which are not addressed in the current Bill). The marine environment is to be looked at through the establishment of a marine working party.
C. SSSI Adjournment Debate
Caroline Flint introduced an adjournment debate on Sites of Special Scientific Interest and the Government’s action plan late last year.45 She began by highlighting the desire for action on wildlife issues:
With such rapid destruction and degradation of our precious wildlife resource, there has been steady growth in public and political support for tough and comprehensive new laws. In August, in a poll conducted by the Royal Society for the Protection of Birds, 65 per cent. of people said that they would like the Government to change the law, to give greater legal protection to wildlife. Additionally, 35 environmental and conservation groups - representing more than 6 million people - are now united in their desire for urgent environmental legislation.
She went on to argue that even within the limits of its remit the action plan was lacking in protection measures.
43 Department of the Environment Transport and the Regions, Sites of Special Scientific Interest: Better Protection and Management, September 1998 http://www.wildlife-countryside.detr.gov.uk/consult/sssi/index.htm 44 The Government’s Framework for Action http://www.wildlife-countryside.detr.gov.uk/consult/sssi/response/index.htm 45 HC Deb 3 November 1999 cc 229-251
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I welcome the framework document, but it is neither sufficiently tough nor sufficiently comprehensive. It contains, for example, no mention of measures to protect species outside SSSIs or at sea. It does not contain a legal presumption against development affecting SSSIs, nor does it mention an issue that is at the forefront of my constituents’ minds--lowland raised peat bogs being cut up by an American multinational, bagged up and sold cheaply to gardeners to sprinkle in their pots.
The destruction of wildlife habitats for commercial purposes will probably dominate discussions on the issue. Quarrying for stone products such as granite and slate and for other mineral products such as coal and peat are often carried out in, or nearby, areas where there is likely to be some statutory habitat protection in force. Such activity is almost certain to cause some damage to the habitat. While many companies are sensitive to such issues they are restricted as to where they might carry out such commercial activity; restoration has not often been successful in returning sites to their original ’of special scientific interest’ condition.
Caroline Flint explained that another problem with commercial exploitation of these areas is that the damage caused to parts of the area might eventually cause it to lose protected status and thereby open it to even greater exploitation:
In 1997, English Nature’s rationale for removing the moors’ SSSI status was that parts of them had been worked for peat extraction, hence, the vegetation had been stripped, hence--in English Nature’s logic--the moors were no longer either special or significant. I am pleased to tell the House that, with the help of my right hon. Friend the Minister for the Environment, English Nature bowed to public pressure demanding that Thorne and Hatfield moors be treated as an integral, whole and interdependent ecosystem that needed restoration and protection in law, not further destruction.46
David Taylor pointed out that the legislation required some supplemental support throughout planning legislation rather than being expected to stand on its own. He also pointed out that the landowner needed incentives, as well as legislative sticks, to encourage proper maintenance and conservation of these sites. A particular danger, however, was that of prior planning agreements:
A major threat to SSSIs often arises when the owner or occupier activates an ancient planning permission which the modern planning framework would never have sanctioned. Owners and occupiers can, after giving notice, carry out damaging activities, preventable only if English Nature produces a management agreement with financial compensation for lost profits.47
Mr Taylor also called for the Government to introduce a system whereby conservation agencies might order an owner to carry out work or to have the work done and subsequently recover costs from the owner of the site. He acknowledged that such orders might be
46 HC Deb 3 November 1999 c 231 47 HC Deb 3 November 1999 c 236
29 RESEARCH PAPER 00/30 appealed against. There is no such appeal available in the analogous situation of listed buildings.
Helen Brinton added her concerns to the others in the debate. She supported earlier calls for protective measures to be introduced for marine wildlife in the case of accidental, as well as deliberate, harassment. She believed that powers had to be devolved to bodies other than the police to deal with offshore wildlife crime; that sanctions for wildlife crimes should be increased; and that the concept of recklessness should be introduced for wildlife crime generally as it is in the specific example of Protection of Badgers Act 1992.48
Lindsay Hoyle called for a ’Rangers Agency’ highlighting both the need for greater enforcement of the legislation and some body involved in enforcement with a greater understanding of the requirements of the countryside.49
It was pointed out by Damian Green that the countryside legislation to be introduced would have to live alongside the also-promised right to roam legislation. There was bound to be some conflict between a right to roam and habitat protection.50
The Wildlife Trusts have made a number of good points on access, saying that a "distinction must be made between access on foot for quiet enjoyment and access for other recreational pursuits that are more disruptive to wildlife". The trusts add: "Agencies should have the power to close (permanently or temporarily) areas or close or divert rights of way, if . . . access is having a significant affect on the wildlife or habitat." The trusts also make the good point that there "should be wide-ranging consultation before access to other areas of open country are agreed."
There were repeated references throughout the debate to the costs of further wildlife legislation and whether further legislative moves would be backed by sufficient finance to provide meaningful implementation and enforcement of the new measures. A further area of general concern was the impact of development near SSSIs. It was pointed out several times that such development would often have an impact on the site making it necessary for planning authorities to have regard to this kind of impact on wildlife habitats.
Chris Mullin (the Parliamentary Under-Secretary of State for the Environment, Transport and the Regions) responded to the debate for the Government.51 He welcomed the debate and the opportunity to detail the Government’s intentions in regard to wildlife protection.
48 HC Deb 3 November 1999 cc 238-41 49 HC Deb 3 November 1999 cc 241-2 50 HC Deb 3 November 1999 c 245 51 HC Deb 3 November 1999 cc 247-251
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He indicated that the proposed new powers for agencies would be strong:
the most significant of which will allow them, for the first time, to refuse consent for damaging operations52
Such refusal would not automatically grant the right to compensation. There would also be powers to enable agencies to enforce the better management of wildlife habitats. Rights of entry and more flexible compulsory purchase would go some way to aiding this effort.
A greater incentive to avoid damaging wildlife habitats would be introduced in the form of greater penalties and more wide-ranging powers to deal with third party damage. There was also to be a greater emphasis on positive management as opposed to simple avoidance of damage that would require the wider regard of public bodies in the conduct of their general duties.
A major point with regard to planning was also mentioned:
The habitats regulations will also require a review of all extant permissions and consents--including planning permissions, which were granted prior to their inclusion in the list of candidate special areas of conservation, or their classification as a special area of protection for birds, under the birds directive. Where the review, which is carried out by the local planning authority, concludes that the integrity of the site is likely to be adversely affected, the consent will have to be modified or revoked, unless Ministers decide that an imperative reason outweighs the conservation interest.
This would mean that planning permissions previously granted for development of sites may not be activated on sites that are given special status under EU law. There was no mention of similar provisions being made with regard to SSSI status under new legislation.
Revocation of planning permission would be compensated, however, and the Government would consider providing some aid to local authorities where such compensation was costly.
52 HC Deb 3 November 1999 c 248
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V The Current Bill
The Countryside and Rights of Way Bill [Bill 78] 1999-2000 was presented on 3 March 2000 to a flurry of immediate reaction by interested organisations. The text of the Bill53 is available on-line as are the Explanatory Notes54 produced by the Government.
A countryside bill has been keenly anticipated among environmental organisations and there has been of some concern to landowners organisations. The announcement of the Bill55 made it clear that a Bill would address both wildlife conservation and the right to roam. There were a number of questions as to how far the Government would go in providing greater access to the countryside and in furthering the protection of wildlife.
Reactions with regard to the right to roam and rights of way aspects of the Bill are presented in a second Library briefing. This paper concentrates on those aspects of the Bill concerning wildlife conservation.
Mr Meacher, the Minister for the Environment, indicated that the Bill would:
• Give greater protection to Sites of Special Scientific interest (SSSIs) - conservation agencies will have the power to prevent damaging activities; • Include tougher action against wildlife crime by creating a new offence of reckless disturbance; giving increased powers to the police and wildlife inspectors; increasing fines up to £5,000 and introducing prison sentences of up to six months for virtually all wildlife offences.56
A. Immediate Reaction to the Bill
The initial reaction to the Bill seemed to be one of qualified welcome. There seemed to be something for everyone to be pleased about and some aspects that caused concern. As might be expected views were split between the wildlife and conservation groups and the landowners organisations.
1. Non-Governmental Organisations
Tony Juniper of Friends of the Earth was interviewed on the Radio 4 Today programme on the morning the Bill was presented.57 The policy director congratulated the Minister on the Bill and welcomed many of the measures contained in the Bill to protect wildlife. He said that when the Bill was enacted it should spell the end of scenarios like that of the Newbury
53 http://pubs1.tso.parliament.uk/pa/cm199900/cmbills/078/2000078.htm 54 http://pubs1.tso.parliament.uk/pa/cm199900/cmbills/078/en/00078x--.htm 55 Department of Environment Transport and the Regions 151/ENV, Greater access and wildlife protection - we’re on our way says Meacher, 3 March 2000 56 Ibid 57 Radio 4, Today Programme, 3 March 2000
32 RESEARCH PAPER 00/30 by-pass where four SSSIs were damaged to accommodate the road. He made it plain, however, that he would have preferred the Bill to go further than simply addressing the SSSI system and, instead, had brought all wildlife conservation under some statutory protective system.
He would like to see some key aspects of the Bill strengthened as it passed through the Parliamentary system.
The Wildlife Trusts (Royal Society for Nature Conservation) and Worldwide Fund for Nature (WWF-UK) had both been campaigning for a countryside bill under the umbrella of the Wildlife Link. There were a number of points in common in their response to the Bill. Their immediate reaction to the Bill was to welcome several of the measures they had been campaigning for:
The Wildlife Trusts have urged the Government to consider three measures to strengthen the Bill: greater recognition of important wildlife-rich areas outside the SSSI network, improved protection of rare species wherever they occur and legal underpinning of the Biodiversity Action Plan process.58
The Director General of the Wildlife Trusts (Dr Simon Lyster) said
This is a good day for wildlife but if the Bill is strengthened as we have suggested then it will be a truly great one.59
An initial response to the Bill by the WWF-UK said:
SSSI measures and wildlife crime enforcement are very welcome and should succeed in deterring offenders and preventing damage to and improving the quality of our SSSIs. There are a number of missing elements, which we feel would greatly improve the species conservation…60
The Council for the Protection of Rural England also welcomed the Bill then chose to concentrate on the features not included in the Bill: hedgerows and Areas of Outstanding Natural Beauty:
We are concerned however that the Bill is a missed opportunity to deliver on numerous Government commitments to secure much needed improvements to the protection and management of England's valuable hedgerows, landscape features and Areas of Outstanding Natural Beauty (AONB) and further the Government's new direction for agriculture.61
58 Wildlife Trusts Press Release, Countryside Bill brings new hope for wildlife says The Wildlife Trusts, 3 March 2000 59 Ibid 60 WWF-UK briefing, Countryside and Rights of Way Bill, 3 March 2000 61 CPRE Briefing, Countryside and Rights of Way Bill, 3 March 2000
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The Country Landowners Alliance found many aspects of the Bill to welcome and believed that ’Common Sense wins’. While much of their concern was related to the access aspects of the Bill the CLA president (Anthony Bosanquet) made some mention of the countryside,
The conservation agencies must use negotiation and mediation to resolve disputes over the management of these wildlife sites, invoking their new regulatory powers only as a last resort. And we shall press the Government to deliver the resources needed - estimated by English Nature as some £20 million per year in England - to support sensitive but often unprofitable - farming regimes on SSSIs.62
The Countryside Alliance also focused on the rights of access to be introduced by the Bill and broadly accepted the countryside aspects of the Bill:
…this protection must be coupled with substantial new funds for conservation and a fundamental shift in agricultural policy. [The Alliance] is also calling for clarification on the destination of extra funding promised for SSSI management - which it fears could go solely to sites managed by statutory conservation bodies, rather than to farmer-owned sites.63
There seemed to be little concern that the promised rights of access would impinge on conservation issues. Indeed, the Wildlife Trusts said:
The balance is about right. It is important that the countryside and wildlife are more accessible to people but with safeguards against the thoughtless action of a few.64
2. Government Agencies and Political Parties
The response of conservation agencies, those Government agencies responsible for implementation of new SSSI notification procedures, was to welcome to the Bill. English Nature was pleased with the increased powers and duties to enable them:
to take positive steps to tackle the quality of …English SSSIs…neglected or suffering from inappropriate management.65
Baroness Young, the chairman of English Nature, believed that the money announced to enable her organisation to carry out the provisions of the Bill would be sufficient to begin the work, but felt that more would be necessary to ensure that all SSSI are in favourable condition. She said that there should be money spent from agri-environment schemes,
62 CLA Press Release, Countryside Bill - common sense wins say Landowners, 3 March 2000 63 Countryside Alliance Press Release, Opportunities of Countryside Bill must not be outweighed by burdens, 3 March 2000 64 Wildlife Trusts Press Release, Countryside Bill brings new hope for wildlife says The Wildlife Trusts, 3 March 2000 65 English Nature Press Release EN/00/10, New laws for special wildlife sites, 3 March 2000
34 RESEARCH PAPER 00/30 especially with regard to uplands where a large proportion of SSSIs are in unfavourable condition.
Before the Bill was published the Countryside Council for Wales reported on the extremely poor state of SSSIs in Wales. The Chief Executive of the Council called for tougher penalties, a greater ability to enforce positive management schemes and the legal means to enforce restoration of sites.66
The CCW welcomed the Bill but pointed out that the budget that they had been set by the Assembly was already restricting the activity they had hoped to be able to carry out prior to the Bill.67
The Countryside Agency were supportive of the Bill but concerned that there was no mention of field boundaries, an issue also highlighted by the Council for the Protection of Rural England (CPRE). The minutes of the Agency’s meeting on the 7th March provides a good summary of, and background detail to, their concerns:
6. The 1998 report of the House of Commons Environment Sub-committee The Protection of Field Boundaries was unequivocal in its recommendation that all types of traditional field boundary should be given legal protection via primary legislation. In his subsequent letter (30.11.98) to the Rt. Hon. Michael Meacher MP, the Chairman of the Countryside Commission said We consider that the Government should introduce new primary legislation within the lifetime of this Parliament for all types of traditional field boundary, which should without exception be protected in law.
7. Instead, DETR intends to strengthen the existing Hedgerow Regulations (June 1997), by issuing a revised Statutory Instrument later this year which will amend the criteria for selecting hedgerows for protection. However, there will remain widespread concern that some valuable hedgerows are likely still to be at risk, and other types of traditional field boundary (eg many Cornish/Devon hedge banks and dry stone walls) will be without legal protection. It is therefore very likely that the voluntary sector will propose amendments to the Bill at committee stage introducing new clauses on field boundaries.68
With regard to Areas of Outstanding Natural Beauty, the Agency went one stage further. They believe this Bill to be the last forseeable opportunity to bring these sites under the statutory protection that they believe necessary to preserve them. They would promote amendments to the Bill to introduce clauses along the lines of those within the Areas of
66 Countryside Council for Wales Press Release, Countryside Bill legislation cannot come soon enough to ease Wales’ SSSI pressures, 28 February 2000 67 Countryside Council for Wales Press Release, CCW endorses Countryside Bill measures at open meeting, 7 March 2000 68 http://www.countryside.gov.uk/who/meetings/mar_00/part3.htm
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Outstanding Natural Beauty Bill sponsored by Lord Renton.69 The disappointment in the failure to provide statutory protection for AONBs was shared by the Local Government Association, which represents every local authority in England and Wales.70
There has been little comment from the political parties with respect to the countryside aspects of the Bill. The Conservatives attacked the Bill as being ‘confused and insubstantial’.71 They believed that the access provisions would leave SSSIs open to increased damage from passers-by.
The Liberal Democrats are concerned that the extra costs implied by the Bill could be passed on to farmers and local authorities rather than be funded by central Government. They also commented that there seemed to be bits and pieces missing from the Bill such as what should be done with regard to Biodiversity Action Plans and Areas of Outstanding Natural Beauty.72
Neither Plaid Cymru nor the Welsh Liberal Democrats had come to a position at the time of writing.73
B. Provisions of the Bill
The Bill has several major provisions in the area of nature conservation. This section will look at those and highlight any concerns raised with respect to them.
1. Sites of Special Scientific Interest
Schedule 9 of the Bill, introduced by clause 62, will amend those sections of the Wildlife and Countryside Act 1981 (WCA) relating to SSSI. This schedule is concerned with the notification of SSSI and the responsibilities and rights of the various bodies concerned with such notification.
The first significant change to the notification process is that notification that a site is of special scientific interest must now be published in at least one local newspaper in addition to those listed in the WCA, i.e.:
• the local planning authority, • every owner and occupier of any of that land; and • the Secretary of State.
69 http://www.countryside.gov.uk/who/meetings/mar_00/part4.htm 70 Telephone conversation with LGA policy officer, 11 March 2000 71 Conservative Party Press Release, Government’s approach to the environment is ’confused and insubstantial’, 3 March 2000 72 Telephone conversation with Liberal Democrat Policy Officer, 10 March 2000 73 14 March 2000
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The proposed subsection 28(3) will also allow the Nature Conservancy Council (NCC) to make comment on the management of the land whereas before they were limited to specifying the special nature of the site. This would seem to place a greater emphasis on the better future management of the site. As before, there is provision to make representations on, or objections to, the notification of a site as being of special scientific interest. WWF-UK believe such representations should be limited to scientific grounds thereby mirroring both the Habitats and Species and Birds Directives.
The Bill aims to introduce a number of new sections to the WCA through Schedule 10 of the Bill. There is a new power intended to amend notifications made on sites (Section 28A). The requirement to notify through a local paper does not extend to such amendments and so only those bodies in the bullet list above would receive notice of such amendments.
The power to denotify a site is to be granted (Section 28B). The denotification of sites, or parts of sites, can be carried out if that area no longer meets the requirements of an SSSI, i.e. to be of special scientific interest. There is some concern that this may be easier, and therefore more likely, than restoration and positive management of the site. Denotification must be published in at least one local newspaper.
The duties on those owners, or occupiers, under notification has changed (Section 28C). The requirement to seek consent from the Nature Conservancy Council remains in force although statutory undertakers (listed in the proposed Section 28E) are excluded from such requirements. The Wildlife Trusts are concerned that this is a weakness in the Bill. That the ability of statutory undertakers to appoint third parties to carry out such works will leave the door open to damage that might otherwise be avoided. There is no test within the legislation as to whether the action taken by statutory undertakers is necessary or merely desirable.
Statutory undertakers are required to report to the NCC any works they propose to undertake, outside SSSI, that will cause damage to those sites (Section 28F). This notification would not provide the NCC with an ability to prevent such actions taking place. Both the Wildlife Trusts and WWF-UK think that the Bill should allow certain conditions to be placed on statutory undertakers when there is a risk of damage to an SSSI.
There appears to be some discrepancy that, although it is recognised that action outside the SSSI may damage the site, only statutory undertakers shall be required to take notice of such damage.
A major step proposed in the management of SSSIs is the ability of the NCC to formulate and impose a management plan, after proper consultation, upon the owner/occupier of an SSSI (Section 28H). This management plan can be enforced through management notices which require the owner to carry out the work required to implement the formulated management plan (Section 28I). In extreme circumstances the NCC may enter the land, carry out the work and subsequently recover the costs of the operation from the owner/occupiers. There would be a system of appeals in place to address a variety of situations including where one owner/occupier feels that there are grounds for another owner/occupier to pay the majority, or all, of the costs individually.
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Another tool to be granted to conservation agencies is a wider and more flexible remit under which they may compulsorily purchase land under threat.
A widespread concern of wildlife organisations has been that there was insufficient disincentive to break the law. This may have been addressed in the proposed Section 28M which raises the fines that may be imposed on those proved guilty of an offence under this legislation. Fines up to £20,000 could be levied on those convicted under the proposed Section 28C(1) of the legislation and also for statutory undertakers that do not comply with both sections 28F(1) and 28F(4) of the proposed legislation. Allowance is made for reasonable excuse to be made for any breach of the law.
One excuse for damage might be that the work was carried out under planning permission. The Wildlife Trusts feel that there would be a more informed debate if the proposed draft revised Planning Policy Guidance note 9 could be released.74 There is also some concern that discussion of the Bill be undertaken with some knowledge of the DETR review group report on local wildlife sites. This report is due to be released in the near future but there is no guarantee it will be ready for either the second reading or the committee stages of the Bill.
The new Section 28M(5) will introduce the concept of reckless damage to wildlife crime. This would require the person responsible to know that the damage occurred within a SSSI. It may be that such knowledge will be hard to prove and that the legislation will be severely weakened due to this requirement.
The ability to order restoration of a site following a conviction under the new legislation has been widely welcomed. This means that not only will such people not benefit from their crime, but that the SSSI would not suffer any long term damage.
The right to access is actually widened considerably by Clause 66 which allows any person authorised in writing by the conservation agencies to enter SSSI land to aid the protection and management of SSSIs. These entry rights would be welcomed by wildlife organisations and the conservation agencies for other purposes of wildlife and nature conservation but are not provided by this Bill.75
2. Enforcement of Wildlife Legislation
There is some recognition in the Bill that wildlife legislation outside of the SSSI system is also in need of tightening up.
The major measure within the Bill to achieve this is the provision of greater penalties under existing wildlife legislation. There are also amendments to sections 1 and 9 of the Wildlife and Countryside Act 1981 (WCA) to include reckless disturbance to animals and birds
74 Telephone conversation with policy officer, 13 March 2000 75 WWF-UK, Brief on Countryside and Rights of Way Bill 2000, 7 March 2000
38 RESEARCH PAPER 00/30 protected under that legislation. This means that prosecution would not depend on proving intent to disturb wildlife, just that there had been such disturbance by the accused. The WWF would like to see this strengthened even further as the protection afforded to wildlife and plants under wildlife protection is less than that afforded to animals and plants under access provisions elsewhere in the Bill.
Penalties under the WCA are increased to a maximum of two years imprisonment and/or a fine not exceeding level 5 on the standard scale (£20,000). There is also an indication in the Explanatory Notes that future regulations implementing the Habitats Directive and the EU Wildlife Trade Regulations will include an ability to create offences that will attract custodial sentences of up to six months. The fines for damaging limestone pavements are also increased to match those being imposed for damaging SSSIs.
In order to make enforcement easier the Bill also aims to provide wildlife officers with greater rights of entry to facilitate enforcement of the legislation. These rights are limited to entering land to check wildlife crime with reference to only limited sections of the WCA legislation. The WWF-UK would like to see more extensive powers of entry but there is usually resistance to the granting of police powers to non-police agencies.
A wildlife inspector is defined within the new Bill as ‘a person authorised in writing by the Secretary of State’.
3. Other Provisions of the Bill for the Countryside
The Bill makes provision for the fact that the new Scottish Parliament now has authority with regard to SSSI. Schedule 10 of the Bill amends the relevant parts of the Wildlife and Countryside Act to reflect this change.
The Bill also imposes a duty on the Secretary of State to notify the conservation agencies of wetlands which are designated under the 1971 Ramsar Convention of Wetlands of International Importance.
Clause 71 of the Bill provides that Parliament shall be responsible for the payment of increased costs of the Countryside Agency and the Nature Conservancy Council that are directly attributable to this legislation. Parliament will also pay for increased costs to Ministers which are attributable to provisions within the legislation. The Clause also makes provision for payments, made under other enactments, which arise due to the enactment of the Countryside and Rights of Way Bill to be paid by Parliament.
The Government’s explanatory notes recognise some of the costs implicit in the Bill, such as staff needs at English Nature and the Countryside Council for Wales and costs to the Planning Inspectorate. There is also recognition that public bodies subject to s11 of the Countryside Act 1968, to pay general regard to nature conservation in the course of their duties, will attract increased costs due to the legislation. There is, however, no mechanism proposed for identifying such costs.
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