United Kingdom Environmental Law Association

UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION

NATURE CONSERVATION WORKING GROUP

November 11th 2005 Please reply to: Andrew Baker c/o Baker Shepherd Gillespie Media House Deepdale Business Park Ashford Road Bakewell Derbyshire DE45 1GT Telephone: 01629 815544 Fax: 01629 815577 Email: [email protected]

Dear Sir,

Re: Public consultation on new Environmental Impact Assessment (Agriculture) (England) Regulation.

This response is given by the Nature Conservation Working Group of the United Kingdom Environmental Law Association (UKELA). As the Department is aware, the Group represents a wide cross section of environmental lawyers and other professionals actively involved in different capacities in European and domestic law in relation to nature conservation. The comments we have provided are arranged by order of question at the end of each Chapter of the DEFRA consultation paper (August 2005). Our comments are as follows.

Screening Notices (Questions 1.2-1.4)

Screening notices could be a useful tool in targeting enforcement and EIA to sites where significant impacts on the environment are most likely. The manner in which they are to be used requires clarification and several issues are not clearly addressed in the Consultation Paper. If effective implementation of the Directive is to be achieved, it is important that the UKs overriding obligation under art 2.1 is kept in view viz. “to adopt all measures necessary to ensure that, before consent is given, projects likely to have a significant effect on the environment” are made subject to a requirement for development consent with regard to their effects.

Power or Duty to Issue Notice? The new power to issue screening notices will give the regulators wide administrative powers to subject agricultural activities - most of which are outside development control and not subject to any administrative consent requirement - to a screening process and then (if necessary) a full EIA. Effective compliance with the requirements of the Directive would indicate that the circumstances in which the power is to be exercised must be clearly defined and tailored to the requirements of site protection under the EIA Directive. The conferral merely of an uncircumscribed power to issue a screening notice would not appear to do so. In the closely related area of site protection and EA under the Habitats Directive, the ECJ ruling in Commission v UK (Case C 6 / 04) was critical of the UKs implementation strategy for

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NATURE CONSERVATION WORKING GROUP that Directive, which centres upon the conferral of administrative power on English Nature to specify potentially damaging operations in wildlife sites (and thereby apply an administrative consent requirement to their execution). The absence of a clearly defined legal duty to do so, and the related failure to specify its extent, were stressed as key failings in the legal measures underpinning the UKs implementation of the EIA requirements of the Directive (see paras 26-28 of the Judgement of the Court of 20 October 2005, and also Para 34 of the Opinion of the Advocate General delivered on 9 June 205). This would indicate that the EIA (Agriculture) Regulations should include impose a clearly articulated duty on the regulator to issue a screening notice in all cases where it is of the opinion that a project may have significant effects on the environment, by reference to its location nature and extent.

A Pro Active or Reactive Tool?

The activities covered by the proposed regulations are outside planning control. There is therefore no requirement for development consent – or indeed for any other form of administrative consent - unless and until a screening notice has been served on the landowner/occupier of the affected land. A key problem will therefore be the practical one of identifying and enforcing the new law in cases where the regulatory authorities are ignorant of the existence of a project otherwise caught by the new regulations. This problem will be exacerbated by the fact that landowners have historically been entitled to carry out this type of operation with planning consent, and will have no expectation of needing regulatory consent before doing so.

Is it intended that the power to issue screening notices will be used proactively – to identify all possible sites where projects will potentially have significant effects on the environment? Or is it intended that the powers will be used reactively i.e. to respond to a clearly perceived threat to the features of a particular site when it comes to the attention of the regulator that a damaging operation is about to take place? Para 22 of the Consultation paper gives the example of Natural England “becoming aware” that a person plans to do potentially damaging work on a small semi natural site, and then using the new powers to serve a screening notice preventing its completion without screening for EIA . This implies that the new powers will primarily be used in a reactive manner – to give the authorities additional powers to enforce compliance with an EIA requirement when damaging operations are detected. While undoubtedly useful in this type of case (i) in how many cases will the authorities have the requisite knowledge to apply screening notices, and (ii) is a reactive approach one which is either practicable, or (indeed) one which will secure compliance with the Directive?

For screening notices to be effective, the new power should be used pro actively. Sites where significant effects are likely should be identified by the regulator and screening notices served on landowners, thereby triggering the application of the new regulations. This will put all landowners who are potentially affected by the new regulations on notice that screening for EIA will be required in the case of projects (such as removal of hedgerows) covered by the regulations, and that it is unlawful to carry out development in the area without it. This will impose a heavier administrative burden on the regulator, but will ensure that all sites where significant effects might ensue are clearly identified, and thereby secure effective compliance with the Directive.

The imposition of a duty to serve screening notices, rather than a power to do so, would underpin a pro active approach to EIA in these cases. It would also allow the

NATURE CONSERVATION WORKING GROUP regulator to use notices in reactive mode when information about a proposed project comes to its attention in an area where screening notices have not previously been served.

Identity of Regulator

The consultation paper does not specify the identity of the “lead” regulator in whom the power to issue notices would vest. Natural England is referred to in this context. Its use of these powers would appear apposite, as nature conservation and/or landscape issues will predominate in this type of case. In some cases, however, projects of the type covered by the regulations could also have other environmental effects (for example on hydrological factors) which are significant and should be subjected to EIA under the terms of the Directive. In these cases the Environment Agency would be a more appropriate lead regulator. Administrative convenience would however dictate that the issuing of notices should be the responsibility of one agency.

Sanction

The sanction for ignoring a screening notice should be the same as for other breaches of the regulations. The principal case where this will occur is where a landowner commences work on a project without applying for consent and submitting an environmental statement. Whether or not the project is one which, following screening, would require a full EIA, the damage to the site may be considerable. Moreover, if EIA is required and consent ultimately refused, then remediation of the site could prove both costly and difficult. The effectiveness of the new EIA requirements will be seriously undermined unless adequate sanctions are provided for failure to comply with all relevant stages of the process.

Public Consultation

This is not discussed in the consultation paper. The issuing of screening notices would be environmental information which should be made publicly available.

Article 6.2 of the EIA Directive (as amended by the Public Participation Directive 2003/35/EC) requires that the public be informed “of the following matters early in the environmental decision making procedures… and at latest as soon as information can reasonably be provided”. Among the factors specified are: “(b) the fact that a project is subject to an environmental impact procedure etc. © details of the competent authority responsible for taking the decision etc”. (emphasis added).

Issuing a screening notice is arguably part of an “environmental impact procedure” for these purposes. The decision of the regulator not to require an EIA in a particular case would be subject to judicial review in the courts, as would a decision to grant or refuse consent following an EIA. The effectiveness and utility of these remedies requires effective public notice of the exercise of the regulators decision making powers at each stage of the process, starting with the decision to issue a screening notice. Public participation would also be required in the process leading to the grant or refusal of regulatory consent in cases where an EIA was subsequently deemed necessary.

NATURE CONSERVATION WORKING GROUP

Projects for Restructuring Land Holdings

2.1 The definition of restructuring projects excludes some rural land projects which might have significant effects. It limits the scope of the proposed regulations to “agricultural” projects. No definition of agriculture is provided, but it will presumably be that currently employed in either the TCPA 1990 or the Agricultural Holdings legislation. The definition of “agriculture” in UK planning law (see section 336 TCPA 1990) has idiosyncrasies which might be of relevance in this context. “Rural” land holdings may not in all cases be synonymous with “agricultural” land holdings. For example,  the breeding and keeping of livestock is an agricultural use. ‘Livestock' is defined as including any 'creature' kept for the production of food etc. This has been held, for the purposes of the tied cottage legislation, not to include pheasants and other game birds raised for sporting purposes (see Lord Glendyne v Rapley [1978] 1 WLR 601, CA; Earl of Normanton v Giles (1978) 248 E.G. 869) . Horses, however, cannot be regarded as livestock (Hemens v Whitsbury Farm and Stud Ltd [1988] 1 All ER 72, HL.) and keeping them is not “agriculture”.  Grazing land. The use of land as grazing land is an 'agricultural' user within section 336(1), even if the animals grazed are not livestock e.g. horses. It will not suffice to turn animals onto the land for the occasional 'snack' of grass; they must be turned onto the land with a view to feeding them from the land (Sykes v Secretary of State for the Environment [1981] 1 WLR 1092). Land and buildings used solely for the purpose of keeping animals (such as racehorses), and not primarily for grazing, is not used therefore for “agriculture” (Belmont Farm Ltd v Minister of Housing and Local Government (1962) 13 P & CR 417).

If this definition were to be applied in the EIA Agriculture Regulations, the effect would be to exclude from its scope significant projects which might be construed as restructuring projects affecting rural land holdings. Projects undertaken for the purposes of game management on rural land would not be within the EIA provisions. Neither would projects connected with the management of extensive areas of rural land for breeding and training horses (either for livery or racing purposes).

2.2 There seems little justification for excluding beneficial restructuring projects taking place under ELS from the new rules. Whether they are “beneficial” is a matter for decision as part of a structured decision making process within the context of the EIA regulations, and not for the discretion of the regulator outwith the scope of the regulations.

2.3 The new rules are proportionate to the risks they are designed to address, subject to the problems identified above.

2.4 Thresholds should be set at a low level. This would minimise the administrative burden on the regulator in using screening notices pro actively, as suggested above, and enable the use of screening notices to be targeted at sites where smaller scale projects would be “significant” in terms of their effect on the environment.

2.5 Screening notices should be used in a proactive way (see above) so as to apply the EIA rules in a clear, orderly and transparent manner, and put the landowner in all Page 4 of 5

NATURE CONSERVATION WORKING GROUP relevant cases on notice that the land is subject to a decision making procedure and potential EIA before relevant projects can be undertaken.

2.6 There is no justification for defining sensitive areas in a manner differing from that currently adopted in other EIA regulations. The definition in regulation 2 of the Town and Country Planning (EIA) Regulations 1999 should be applied.

2.7. Split between linear and area based projects is suitable and meets needs of administrative convenience.

2.8 & 2.9 No comment

2.10 See comments above on interaction with planning regime.

UL &SNA Rules - Changes

4.1 The definitions of uncultivated land and semi natural areas are appropriate. The definition of “intensive agricultural purposes” should be clarified to reverse the effect of the Queens Bench DC ruling in the DEFRA v Alford case (2005) EWHC 808, should DEFRAs appeal to the House of Lords prove unsuccessful.

4.3 The changes in the enforcement mechanisms are appropriate and necessary to underpin the effectiveness of the EIA regulations. In some cases on small sites, significant damage could be caused in the 24 hour period before a stop notice becomes legally binding. The removal of this time limited application is therefore to be supported. The practical problems in detecting breaches of the regulations are referred to above, and would dictate the imposition of 6 month time limit for prosecution, running from the date of discovery of the offence, not its commission.

4.5 Thresholds should be set at a low level. See comments on 2.4 above to same effect.

4.6 The comments on screening notices and their use made above also apply in this context. ------

Many thanks for giving UKELA the opportunity to comment on this consultation. Should you require any further clarification of our position then please feel free to contact us as the above address.

Yours faithfully,

Andrew Baker MIEEM Nature Conservation Working Group Convenor.

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