The habitats directive and the UK conservation framework and SSSI system Research Paper 94/90

15 July 1994

The habitats directive is one of the most significant wildlife and habitats protection measures to be produced in the last ten years or even twenty years. It will be transposed into UK law by the Conservation (Natural Habitats, &c.) Regulations 1994. This paper considers the Regulations and reviews the existing UK conservation framework, including the SSSI system.

Patsy Hughes Science and Environment Section

House of Commons Library CONTENTS

Page

I. Introduction 1

II. The international habitat conservation framework 5

A. Bern convention 5 B. Bonn convention 5 C. Ramsar convention 6 D. Biodiversity convention 7 E. Birds Directive 7 F. Habitats Directive 12 1. Main Provisions 12 2. Effects on Bird Directive 14

III. The UK habitat conservation framework 17

A. National Parks 17 B. Areas of outstanding natural beauty 17 C. Scotland: National Scenic Areas and Natural Heritage Areas18 D. Environmentally sensitive areas 18 E. Heritage coasts 18 F. National nature reserves 19 G. Local nature reserves 19 H. Marine Nature Reserves and the problem of subtidal protection 20

IV. The UK SSSI system 24

A. Selection and designation 24 B. Management and protection 25 C. Criticisms of the SSSI system 26 1. Low penalties 27 2. Voluntary basis 27 3. Damage by third parties 28 4. Nature and cost of management agreements 29 5. Land use- the example of the Cairngorms 30 6. Off-site damaging activities 31 7. Developments on SSSIs 31 D. Damage to SSSIs 34

V. The Conservation (Natural Habitats &tc.) Regulations 38

A. Procedures for UK implementation of Directives1 38 B. Part II Conservation of natural habitats 39 1. Site selection and registration 39 2. Management agreements 41 3. Control of potentially damaging operations: SNC0s 42 4. Byelaws and compulsory purchase powers 44 5. European marine sites 44 C. Part HI Protection of species 46 D. Part IV Adaptation of planning controls 47 1. Requirement to consider effect on a European site 47 2. Planning 48

Appendix 1 51 Special Protection Areas already designated under the Birds Directive

Appendix 2 54 Potential Special Areas of Conservation

Appendix 3 55 Acronyms

1 Research Paper 94/90

I. Introduction

The Conservation (Natural Habitats, &c.) Regulations 1994, which have been laid under the European Communities Act 1972, transpose into UK law the EU Habitats Directive (Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora).

The Habitats Directive was adopted on 21 May 1992 and is one of the most important pieces of wildlife legislation to be agreed in the last ten or even twenty years; it is the "main vehicle through which the EC is endeavouring to safeguard its precious natural heritage"1.

The Directive further implements and gives force at an EU level to the Bern Convention on the Conservation of European Wildlife and Natural Habitats, which was drawn up by the Council of Europe in September 19792.

Loss of natural habitats has been partly a historical process in Europe, with, for instance, 90% of the woodland cover in the UK being lost over the past 5000 years3. However, it is a continuing process which has accelerated over the past 50 years. Between 1984 and 1990 there was a net decrease of 23% in the length of hedgerows in the UK, and built up land increased by 4%4. Most of the reforestation in the UK in recent years has been through an increase in conifer (5%), rather than broadleaf woodland (less than 1%).

In Europe, perhaps 22% of higher plants, 52% of fish and 42% of mammal species are threatened5. In the UK, 94 endemic animal species and 168 plant species are protected under the Wildlife and Countryside Act 1981, which reflects "the Government's concern for those species at risk"6. The plant species richness of grasslands, woodland and arable fields in the UK has fallen significantly since 1978, and although species richness in moorlands has risen, this may be associated with disturbance4.

The Directive aims to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora7. A Natura 2000 network of conservation sites will be established. They will contain specific habitat types and the habitats of vulnerable species. Habitat Directive sites will be known as special areas of conservation (SACs), but the network will also include the special protection areas (SPAs) already designated under

1"The EU Habitats Directive" John Faulks, European Environment, Spring 1994 pp12-26 2Manual of Environmental Policy: the EC and Britain Nigel Haigh, Institute for European Environmental Policy, 1992 and updated 3Biodiversity The UK Action Plan Cm 2428 HMSO 1994 4Countryside Survey 1990 Main Report Department of the Environment 1993 5Special issue on Bern Convention, Naturopa newsletter No 4 (1993) Council of Europe 6HC Deb 11 July 1994 c474w 7Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora OJ L 206, 22.7.92, p.7 Research Paper 94/90

the Wild Birds Directive 79/409/EEC. However, during negotiations on the Habitats Directive it was decided to remove some of the protection afforded to SPAs as established by case law; please see section II.F.2. All Natura 2000 sites are termed European sites in the UK Regulations.

The legislative and administrative provisions needed to meet the Directive's requirements had to be put in place by Member States by June 1994. In October 1993 the DoE/Welsh Office and the Scottish Office issued consultation papers concerning the Directive's implementation8.

The key existing terrestrial designation in the UK is the SSSI (Site of Special Scientific Interest) or the ASSI (Area of Special Scientific Interest) in Northern Ireland. Around 6000 SSSIs have been notified. A 1991 report for Wildlife Link9 (the umbrella organisation for most of the UK's major conservation groups) concluded that SSSIs were failing to safeguard adequately Britain's finest wildlife sites.

The National Audit Office recently reported English Nature/Nature Conservancy Council figures showing that since 1987, 869 cases of loss and damage to SSSIs have been recorded in England alone10. In 1993, 40 SSSIs suffered long term damage, a higher number than in any previous year, and 107 suffered short term damage (expected to recover within 15 years). SSSIs cannot exist below low water mark, so the key marine designation is the marine nature reserve (MNR). Yet only two MNRs have ever been established in the UK, largely because of the procedures that conservation agencies have to observe before designation, especially consultation with local fishing communities11.

In a 1992 report which cited case studies to illustrate some of the problems associated with the SSSI and MNR systems, the World Wide Fund for Nature concluded12:

"It is suggested that new legislation should be drafted which is sufficiently flexible to encompass protection for both marine and terrestrial sites in one designation.

...The UK Government could choose to implement the Directive in the most minimal way, avoiding the opportunity to review the mechanism for site safeguard in this country by tinkering with existing legislative and

8Implementation in Great Britain of the Council Directive on the conservation of Natural Habitats and of Wild Flora and Fauna (92/43/EEC), The Habitats Directive. Consultation Papers, DoE/Welsh Office and Scottish Office, both 4 October 1993 9SSSIs: A Health Check. A Report for Wildlife Link. T A Rowell, Wildlife Link, December 1991. 10Protecting and Managing Sites of Special Scientific Interest in England. National Audit Office, 11 May 1994 HMSO HC 379 11D Laffoley, J M Baxter, R J Bleakley and M Richards [in press] Marine Protected Areas in the United Kingdom: Past Experience and Future Opportunities. In: Proc. 2nd Int. Conf. on the Science and Management of Protected Areas, Dalhousie University, Nova Scotia, 16-20 May 1993. 12The Habitats Directive: Time for Action WWF UK (World Wide Fund for Nature) November 1992 Research Paper 94/90

administrative structures. This is not good enough if we are to be sure of securing a future for the myriad of species and habitats which constitute our biodiversity".

The former head of the Nature Conservancy Council, Sir William Wilkinson, has said13:

"I think the Government should jump at the opportunity to legislate as part of its post-Rio programme on biodiversity. Otherwise I see great pressure on nature conservation sites as the recession ends. We could see a flood of developments on SSSIs, unless they are turned from a system of notification, to one of protection."

However, the Directive is being implemented by statutory instrument, not through new primary legislation, and the SSSI system will be used as the bedrock for the European site network. (The use of the European Communities Act 1972 to implement Directives is discussed in section V.A.) The RSPB has commented14:

"The Government has clearly done as little as possible to meet the requirements of this Directive. The chance for the UK to take the lead in wildlife conservation in Europe has been sacrificed to expediency and Government in-fighting. By allowing the annual damage to hundreds of our best wildlife sites to continue, the Government shows that it is afraid to take its responsibilities to protect habitats seriously. Relying on a voluntary system to protect important marine areas is a disaster".

However, just before the present Regulations were published, English Nature commented15:

"Essentially, because Britain is in the vanguard amongst European nations in the way it protects its wildlife and natural features, the Directive is likely to bring few changes for England's land managers. Other countries will have to bring their legislation more in line with ours".

The existing UK conservation framework consists of the Town and Country Planning Acts, the National Parks and Access to the Countryside Act 1949, and the Wildlife and Countryside 1981 (WCA), which implemented the Bern Convention at a UK level. With this "firm and well-established framework for safeguarding the natural heritage"16 the Government considers that European sites, as SSSIs, will be "already subject to a wide range of controls to prevent their damage". The Government's view is that the current draft regulations17:

13"Road to ruin for Britain's wildlife" New Scientist 11 September 1993 pp35-38 14"Wildlife Protection Sacrificed" RSPB News Release 6 July 1994 15English Nature Magazine No. 14 July 1994 p.4 16HC Deb 6 July 1994 c244-5w 17HC Deb 4 July 1994 c24-25w Research Paper 94/90

"...comprise a thorough implementation package. They build largely on the existing extensive legislative basis which provides a strong framework for nature conservation in this country. They introduce some new provisions and apply existing legislation amended as required by the directive's obligations."

This paper will consider whether the present Regulations meet the challenge of closing the perceived weaknesses in the present SSSI and MNR systems.

The Regulations will be subject to the affirmative procedure, for approval by resolution of each House. Further regulations will be laid "in due course" to ensure that other activities for which statutory consents and permissions are required do not adversely affect protected sites. The Government will also produce planning policy guidance notes (PPG) for local planning authorities once the present regulations have been approved18.

Protection for SSSIs is often afforded by compensation payments being made to landowners or occupiers for profits foregone following notification. The SAC system will echo the SSSI system in favouring compensation and voluntary agreement rather than compulsion, since with the present Regulations, the Government is seeking to19:

"continue to work as far as possible under the voluntary principle, seeking the involvement and active co-operation of those involved who live and work in rural areas and at sea".

Under the Regulations, the nature conservation bodies will be obliged to offer compensation on the "relatively rare" occasions when management proposals are not consented to (ibid). The safeguarding of European sites may thus constitute a considerable drain on the budgets of the conservation agencies.

This will add to the already considerable costs associated with protecting the UK's countryside through compensation for prohibitions.

18HC Deb 6 July 1994 cc244-5w 19The draft Conservation (Natural Habitats, &c.) Regulations 1994 Compliance cost assessment Research Paper 94/90

II. The international habitat conservation framework

Several international nature conservation conventions have been agreed, some with rather similar-sounding names and site designations. Sites already designated under some of the following agreements will be included in the Habitats Directive "Natura 2000" network.

The Convention on International Trade in Endangered Species (CITES) and the actions of the International Whaling Commission (IWC) will not be discussed here, since these deal primarily with species, rather than habitat, protection.

A. The Bern Convention

The Habitats Directive strengthens at an EU level the Bern Convention on the Conservation of European Wildlife and Their Natural Habitats (September 1979). The Bern Convention aims to conserve wild flora and fauna, and to conserve their habitats. Its basic premise is that wild flora and fauna constitute a natural heritage which plays a vital role in maintaining biological balances. The Convention was implemented in the UK by the Wildlife and Countryside Act (1981).

The 1979 Convention's original signatories were the Council of Europe member states, and it has been primarily concerned with Western and Continental European species and habitats. The question of extending the Convention to Northern African states has been discussed on several occasions, but with the political changes in Eastern Europe the emphasis has switched to including the Eastern European states. Any extension of the Convention to Eastern or North developing nations would necessitate financial assistance, and in 1992 the Convention's Central Secretariat was reported to be under-staffed and under-funded20.

Working groups produce population reports on given species, and the Bern Standing Committee issues recommendations. These may concern particular species, such as the wolf, or particular habitats; the Committee may recommend that a state designates an area of special conservation interest within its territory. However, implementation of the Convention has been the responsibility of the individual Contracting States and recommendations have been of a broad and advisory nature. The introduction of the Habitats Directive should increase greatly, in the EU at least, the protection given to habitats and species by the Bern Convention.

B. The Bonn Convention

The Bonn Convention on the Conservation of Migratory Species of Wild Animals, made in June 1979, aims to preserve listed threatened migratory species through sustainable utilisation

20The Effectiveness of International Environmental Agreements. Ed. Peter Sand, UNCED, 1992 Research Paper 94/90

and conservation of habitat in the states through which the species migrate. This covers birds, various terrestrial and marine mammals, reptiles and fish.

Immediate protection is offered through the convention to any migratory species threatened with extinction, and any species with an unfavourable conservation status is also afforded special attention. Various "Agreements" have been completed under this convention.

The Agreements vary in the severity of their obligations and are open only to those "Range States" through which the species in question migrates. For example, Agreements on white storks in Europe and Africa, and Houbara bustard in the Gulf, are under consideration20.

In July 1993 the UK ratified the Agreement on the Conservation of Small Cetaceans in the Baltic and North Seas (ASCOBANS); perhaps 22 whale, dolphin and porpoise species are resident in or pass through Britain waters. The UK hosts the Secretariat for this Agreement at the Sea Mammal Research Unit at Cambridge21. The UK sponsored the recent Agreement on the Conservation of Bats in Europe, also under the Bonn Convention.

C. The Ramsar Convention

The Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat, adopted in Iran in 1971, is global in scope. It was prompted by drainage and development over the past 20-30 years causing a considerable reduction in the surface areas of wetlands in Europe and beyond. Some spectacular losses of wetlands have occurred; the Aral Sea, once the world's fourth largest lake, has shrunk by half, with over 90% of the water that used to reach the sea being diverted, much to irrigate cotton plantations. 40% of Japan's tidal flats have been destroyed since 1945 and Greek Macedonia has lost 94% of its wetlands since 193022.

Any State may join the Ramsar Convention (there are 80 signatories), which is seen as being successful because it is voluntary in nature and relies on co-operation, rather than coercion or the threat of penalties20. However, some signatories, such as Japan and Greece, have met the Convention's requirements less stringently than others.

Contracting parties have to designate at least one national wetland site onto a List of Wetlands of International Importance, establish wetland reserves which may or may not be on the List, and promote the wise use of wetlands within their territories.

Wetlands are defined as areas of marsh, fen, peatland, or water, whether permanent or temporary, with water that is flowing, static, fresh, brackish or salt. A Ramsar data base and monitoring procedure exist, and a "Wetland Conservation Fund" launched in 1990 seeks to assist developing countries implement the Convention. However, this has been running

21Implementation of ASCOBANS. Department of the Environment January 1994 DEP 10288 22"Can we stop the wetlands from drying up?" New Scientist, 2 July 1994 pp. 30-35 Research Paper 94/90

extremely short of its funding target of $1m a year. It is hoped that the biodiversity convention may lead to the Ramsar convention being strengthened and receiving more money through the GEF.

The UK signed the convention in 1973 and has designated 76 Ramsar sites. By November 1993 the UK had designated 69 sites, more than any other contracting party23. A further 83 sites have been identified as being suitable for designation24.

D. The Biodiversity Convention

The UK has just ratified25 the UN Biodiversity Convention, which was agreed two years ago at the UNCED Earth Summit in Rio de Janeiro. The Convention came into force after the thirtieth signatory ratified. The UK produced its national Action Plan as required by the convention in January 199426. The Convention provides a framework for international action to protect species and habitats and will not be discussed in depth here (further information can be found in Library Research Paper 93/94 Biodiversity and in Biodiversity: the UK Action Plan).

On announcing ratification, the Prime Minister said that the UK's record to date in meeting its Rio commitments was now second to none. The UK's overall goal under the Convention is: "To conserve and enhance biological diversity within the UK and to contribute to the conservation of global biodiversity through all appropriate mechanisms".

On ratification of the biodiversity convention the Habitats Campaigner at Friends of the Earth commented27:

"Now we've ratified it's time to change our own laws to protect what little remains of our grasslands, heathland, fens and ancient forests. Biodiversity is being hammered in Britain".

E. The Birds Directive

Directive 79/409/EEC on the conservation of wild birds is implemented in the UK by the Wildlife and Countryside Act (1981). Bird Directive SPAs will form part of the Natura 2000 network. The implementation of the Habitats Directive will reduce some of the protection

23Biodiversity The UK Action Plan. HMSO January 1994 Cm 2428 24HC Deb 16 May 1994 c375-376w 25World Environment Day- Prime Minister Announces Ratification of the Biodiversity Convention. DoE News Release 324, 3 June 1994 26Biodiversity: the UK Action Plan. Cm 2428 HMSO 1994. 27"UK ratifies wildlife protection treaty". Independent, 4 June 1994 p.5 Research Paper 94/90

afforded to SPAs, which had been built up by case law, in particular the Leybrucht case (please see section II.F.2 below for further details).

The Birds Directive arose from public concern over the annual hunting of migratory birds that was customary in southern Europe and northern Africa28, and from scientific research conducted by the Commission which indicated that the number of species of European birds was falling and the population levels of some species were declining sharply. Since many European species are migratory it was recognised that the protection of wild birds was a transboundary problem entailing shared responsibility at European level29.

The Directive was based to a large extent on British legislation, providing general protection to all wild birds, giving extra protection to some, and allowing hunting of others; Britain is generally recognised as having had the most far-reaching bird protection of any European country before the Directive2.

The Birds Directive provides for the conservation, protection, management and control of naturally occurring wild birds, and also protects their eggs and nests. The general protection offered prohibits deliberate killing or capture, deliberate destruction or damage to nests and eggs, taking eggs in the wild and keeping these even if they are empty, the deliberate disturbance of birds particularly during the breeding and rearing period, and keeping birds belonging to those species which may not be hunted or captured.

Significantly, Member States have also to preserve, maintain or re-establish a sufficient diversity and area of habitats so that bird populations are maintained. Particularly vulnerable bird species listed in Annex I of the Directive (175 species and subspecies are now listed, including many sea birds and most birds of prey) are the subject of special conservation measures regarding their habitat. The most suitable land and sea territories for these birds are classified special protection areas (SPAs). Similarly, breeding, moulting, wintering and staging areas are protected for regularly migrating species not listed in Annex I. Member States have to pay particular attention to wetlands. For SPAs, the Member States are obliged to30:

"take appropriate steps to avoid pollution or deterioration of the habitats or any disturbances affecting the birds...and outside these protection areas Member States shall also strive to avoid pollution or deterioration of habitats".

Member States may derogate from the general protection provisions in the interests of public health and safety, to control pests, or for various other reasons. The UK for instance permits the killing of 13 pest species, the taking into captivity of sick birds for nursing, or birds of

28Manual of Environmental Policy: the EC and Britain, Nigel Haigh, IEEP 1992 and updated 29Second report on the application of Directive 79/409/EEC on the conservation of wild birds. 11007/93 COM(93) 572 FINAL 7 December 1993 30Article 4(4) of Council Directive on the conservation of wild birds (79/409/EEC) OJ L 103, 25.4.79 p.1 Research Paper 94/90

prey for falconry2. The directive allows for the hunting of certain species listed in its Annex II, under national legislation. Species listed in Annex II/1 (various game birds and several common duck and goose species) may be hunted throughout the Union, and species in Annex II/2 may be hunted only in those Member States indicated in a table.

A recent proposal from France to amend the Directive31 caused consternation in the British Press, amid allegations that the amendment was prompted by forthcoming European elections32,33. The amendment seeks to define the discretion that Member States have to set the dates of hunting seasons, and would, in some cases, allow hunting during the return of migratory birds to their breeding grounds. The French see this as the application of subsidiarity, but the RSPB has said that the proposal is "crazy...the whole point of the directive was that birds are a common resource-they respect no boundaries" (ibid). The RSPB fear that breeding adult birds who have survived the winter and the bulk of their journey across Europe would be shot at the last moment, including species such as the greenshank and whimbrel which are threatened in the UK34.

The amendment was passed at the March 1994 meeting of the Council of Environment Ministers but on 19 April the European Parliament deferred consideration of the issue until after the European elections35.

In its second report on the directive29, the Commission considered, inter alia, that in most cases, the national legislation which had been drawn up since 1981 on the hunting, sale and protection of birds and their habitats incorporated the spirit of the directive. In 1991 a total of 667 SPAs had been designated throughout the EC. The implementation of the directive had significantly contributed to improving the biological situation of most species, and several breeding species were no longer threatened with extinction in the EC, although the status of many of these species still gave considerable cause for concern (open grassland, meadow, moorland and scrub species in particular were still in decline and farming methods in the Community would have to be altered to address this problem).

Despite the positive developments, the Commission noted that the directive was not yet fully implemented in all Member States. Denmark and Luxembourg had obtained the best results. The implementation problems concerned primarily the designation and protection of SPAs, derogations, and hunting activities. In France, Italy and Spain, deep-rooted hunting traditions still persisted. Control on hunting activities varied widely between countries; some states such as Greece and Italy had insufficient manpower and financial resources to control illegal hunting.

31Proposal for a Council Directive amending Directive 79/409/EEC on the conservation of wild birds. 5947/94, 24 March 1994 32Independent on Sunday 27 March 1994 "Gummer puts birds in line of French fire" 33Daily Mail 28 March 1994 "Slaughter in the skies: Migrating birds face death to please French gun lobby" 34Comment. RSPB Birds Magazine, Summer 1994 p.3 35"Birds directive will have to wait for new Parliament" Europe Environment No. 431, 3 May 1994 p.3 Research Paper 94/90

The Commission noted however that the deterioration and destruction of habitats presently pose more serious threats to the survival of wild birds in Europe than hunting as such.

The UK was among 10 Member States which had not yet designated SPAs in sufficient number or size. Only Denmark and Belgium had almost fully complied with their obligations. The other Member States,

"in particular Germany, Greece, France, Ireland, the Netherlands and the UK have not yet classified a sufficient number of SPAs. In some regions of the EC, such as Northern Ireland and Gibraltar, there are no SPAs at all".

The UK blames the delay in its SPA programme in part on the Commission itself, for not producing promised formal guidelines and proposals for the selection of SPAs, leading the UK to instead give priority to renotifying SSSIs (which embrace important bird sites). The UK submits that since 1991 it has been working on an accelerated SPA programme36.

Presently, before Bird Directive SPAs can be designated, they must be notified as SSSIs to secure legal protection under the WCA. They may then be designated an SPA by the appropriate Secretary of State. The conservation agencies advise which areas which should be considered for designation, and consult with any land owners and with the local authority. However, whereas with SSSIs the conservation agencies are consulting on their own behalf, with SPAs they are consulting on behalf of the Secretary of State.

If someone (for instance a landowner) wishes to object to the designation of an SPA, he would respond to the consultation letter sent to him by the conservation agency, who would probably try to resolve the matter informally by discussion. If the objection was not resolved this would be passed straight to the Secretary of State. (Conversely, objections to SSSI notification are, in the case of English Nature, eventually passed to a full meeting of EN's Council, appointed by the Secretary of State and including farmers, land managers and local authority officials.)

The grounds for objection to an SPA are much broader than to an SSSI, since although notifications as SSSIs include a statement of the special interest of the site and a list of prohibited operations which would, in EN's view, damage the site, to some extent SPA designation predetermines land use and so social and economic factors have to be considered37. The designation procedures for SACs are likely to be similar to those for SPAs.

36Explanatory Memorandum on European Community Document: Second Report on the Application of Directive 79/409/EEC on the Conservation of Wild Birds. DoE, February 1994 37source: English Nature, 3 May 1994 Research Paper 94/90

The UK has designated 86 SPAs, and 54 of these are in coastal locations38, reflecting the importance of coastal habitat for birdlife. 151 potential SPAs have been identified and remain to be designated. 49 designated Ramsar sites are also wholly or partly SPAs, and 72 identified Ramsar sites are also potential SPAs.

One major source of criticism is the failure of the UK to designate marine SPAs. This is largely because of constraints introduced by the2:

"cumbersome procedures set out in the Wildlife and Countryside Act 1981 which [the nature conservation agencies are] obliged to observe before being able to designate Marine Nature Reserves - especially as regards consultations with local fishing communities".

Further details can be found in section III. H. below.

38HC Deb 16 May 1994 cc375-376 Research Paper 94/90

F. The Habitats Directive

1. Main provisions

The World Wide Fund for Nature (WWF) acknowledges that the UK played an active part in the adoption of the Habitats Directive (Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna), "the most significant piece of wildlife legislation to be agreed in the 1990s"39. The Government has said that it "welcomed the adoption of the EC Habitats Directive" (in May 1992) which "represented a great step forward for nature conservation in the community".

The draft Directive was considered in European Standing Committee A on 22 May 199140.

The Directive aims to conserve biodiversity through maintaining or restoring habitats and species. It will do this by establishing a coherent European network of sites of conservation, which will be known as the Natura 2000 network. The sites will contain specific natural habitat types (listed in Annex I to the Directive) and species (listed in Annex II).

Annex II includes "animal and plant species of community interest whose conservation requires the designation of special areas of conservation". "Of community interest" means species which are endangered (but not just because they are at the edge of their geographical range), vulnerable, rare, or endemic and needing particular attention.

The Natura 2000 network is to include the special protection areas (SPAs) designated under the Wild Birds Directive, and Member States have also to propose a new list of sites, or special areas of conservation (SACs). The present UK regulations refer to SACs and SPAs together as European sites.

Member States must select sites on the basis of the habitats and species present, using criteria set out in Stage 1 of Annex III to the Directive. These include the degree of representivity of the site, the area of the site compared to its total area in a Member State, the density of a species population at a site, and the isolation of that population. The lists of national candidate sites must be submitted to the Commission by June 1995.

The Commission will then draw up a draft list of sites of Community importance, using criteria set out in Stage 2 of Annex III. These include the number of Annex I habitat types and Annex II species on each site, the situation of the site on migration routes, and the relative value of the site at national level.

39The Habitats Directive: Time for Action WWF 1992 40European Standing Committee A Protection of the Habitats of Wild Flora and Fauna (Documents Nos. 8149/88, 5807/90 and 4684/91) Wednesday, 22 May 1991 Research Paper 94/90

The Commission must draw up and agree its Community list of sites by June 1998. Once a site of Community importance has been adopted, the Member State has to designate that site a special area of conservation as soon as possible and within six years at the most, which is by 2004.

So SACs must finally be designated to form the Natura 2000 network by the year 2004. However, as soon as a site is placed on the Community's draft list, it will be subject to Article 6, which provides protection for SACs. Article 6 requires Member States to establish the necessary conservation measures for SACs involving, if need be, appropriate management plans specifically designed for the sites and appropriate statutory, administrative or contractual measures.

Member States have to take appropriate steps to avoid, in the SACs, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the site has been designated. Further:

"Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives...the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned, and, if appropriate, after having obtained the opinion of the general public".

However, if a plan or project must be carried out for reasons of over-riding public interest (including those of a social or economic nature as well as those involving public health and safety) the Member State must take all compensatory measures to ensure that the overall coherence of the Natura 2000 network is protected, and shall inform the Commission of compensatory measures employed.

If a site includes a priority species and/or priority habitat type, then the only considerations that may be raised are those relating to human health or public safety, or of primary importance to the environment. Further to an opinion from the Commission, other "imperative reasons of overriding public interest" may be raised. Priority species are starred in the Annexes, and are habitats or species for which certain Member States have particular responsibility because a large part of that species' or habitat's natural range falls within their territory (see section V.B. for the UK's priorities).

In essence then, this is providing a two-tier system; "ordinary" SACs may be over-ridden on social or economic grounds, but "priority" SACs may only be over-ridden on grounds of public health or safety. Research Paper 94/90

2. Effect of Habitat Directive on Bird Directive SPAs

SPAs designated under the Birds Directive were, until the implementation of the Habitats Directive, protected by a body of case law that meant they could only be over-ridden on grounds of public health and safety. Social or economic grounds were insufficient. In other words, they had been granted though the Courts similar protection to that which priority SACs will enjoy. The most important decision was taken by the European Court of Justice in 1991, and is commonly referred to as the Leybrucht case (C57/89).

During the European Standing Committee debate on the draft habitats Directive, the then Minister for the Environment and Countryside, Mr Trippier, noted41:

"...the recent European Court judgement in the Leybrucht case...made it clear that a special protection area was inviolable, with the rare exception consideration of a danger to public health. In my experience, that is unique in any planning consideration...

We must consider the implications of the Leybrucht judgement. In our negotiations on the Habitats Directive, the Government aim to ensure that economic and social needs are taken into account..."

During the negotiations on the Directive, the Commission was pressurised to 'introduce new clauses into the text of the habitats Directive in order to amend the birds Directive and blunt the impact of the Court's judgement. This occurred.' (Manual of Environmental Policy: the EC and Britain, Nigel Haigh, IEEP 1992 and updated, p.9.9-9).

Hence from the date on which a Member State implements the Habitats Directive, SPAs will be violable on social or economic, as well as public health and safety grounds; the habitats Directive has effectively downgraded their degree of protection.

One important anomaly and further blow to the bird cause is that because birds are of course covered by the Birds Directive, they are not listed in any of the Annexes to the Habitats Directive. Although to some extent it can be argued that this does not matter since they will be protected by SPAs, this also means that they cannot be identified and treated as priority species by the Habitats Directive42,43:

"The best protected sites under the Habitats Directive are those which contain priority habitat types or which host priority species. However, the Birds Directive does not contain a priority system equivalent to that in the Habitats

41ibid 42Source: RSPB 13.7.94 43"The EU Habitats Directive" John Faulks, European Environment Spring 1994 Research Paper 94/90

Directive. Does that mean that none of the birds listed on Annex I of the Birds Directive is deserving of the highest protection as priority species?"

Further protection measures for individuals and breeding sites are included for species listed in Annex IV to the Directive ("animal and plant species of community interest in need of strict protection"). As with the Birds Directive, some derogations will be allowed, for protecting the interests of, for instance, agriculture and nature conservation. However, certain types of killing and transport (listed in Annex VI) are prohibited.

Some exploitation of species listed in Annex V ("animal and plant species of community interest whose taking in the wild and exploitation may be subject to management measures") is allowed, so far as exploitation is compatible with the species being maintained at a favourable conservation status.

The species protection measures in the Habitats Directive, providing general protection to all species, giving extra protection to some, and allowing the sustainable exploitation of others, are thus very similar to those already enshrined in the Wildlife and Countryside Act 1981, which implemented the Birds Directive and the Bern Convention in the UK.

During the European Standing Committee debate, Mr Trippier said that the Government's main points of anxiety were to ensure that member states could exercise proper judgement in the selection of sites, and that they would be obliged to take action on sites containing species or habitats in danger of extinction. Mr Trippier said the authority given to the Commission by the draft directive was important.

Mr Win Griffiths noted that specific commitments to amend EC Directive 85/337/EEC on environmental impact assessment had been dropped from earlier versions of the habitats directive and asked the Minister how he envisaged the new environmental assessment and public consultation provisions (in Article 6) working. The Minister replied that:

"I do not want to give the impression that in many cases economic and social considerations should override conservation. That would devalue the currency of the exercise. However, in rare circumstances, we want to preserve the right to weigh in the balance economic and social considerations."

In response to a further question from Mr Griffiths concerning planning permission on SSSIs, the Minister pointed out that SSSIs were material planning considerations. The Minister gave an example to illustrate problems that might arise "if the SSSI designation gave so much protection that the land was virtually sterilised":

"If I acted on behalf of the Nature Conservancy Council and approached the Hon. Gentleman, not only with a proposal to designate an area of his land an SSSI but to sterilise it, he would be entitled, through natural justice, to raise the matter in the High Court unless I was prepared to compensate him for the loss of his land... Research Paper 94/90

If there were a course of appeal that a landowner could take if his land was sterilised, a whole series of appeals would take place. Consequently, fewer SSSIs would be designated. And that would not achieve the objective, which we all share of providing more protection where possible".

The Government committed itself in 1992 to meeting the two year deadline set by the Directive to have in place the legislative and administrative provisions necessary for implementation and to "developing criteria for site selection with a view to submitting the UK's national list of sites in accordance with the Directive - by 1995"44. Indeed, the UK intends to meet all of the Directive's deadlines45.

44This Common Inheritance, 2nd year report HMSO 1992, Cm 2068 45Biodiversity The UK Action Plan. Cm 2426 HMSO 1994 Research Paper 94/90

III. The UK habitat conservation framework

The Secretaries of State for the Environment, Scotland and Wales, will be responsible for designating future SACs in England, Scotland and Wales respectively. In this, they are advised by the statutory nature conservation bodies; English Nature (EN), Scottish Natural Heritage (SNH) and the Countryside Council for Wales (CCW). These are the successors to the Nature Conservancy Council or NCC. In Northern Ireland, the Department of the Environment for Northern Ireland (DoE/NI) assumes a similar role. The Joint Nature Conservation Committee (JNCC) oversees and co-ordinates.

As well as designating sites as required by international obligations, the UK has its own habitat and wildlife designations. These can be considered as falling into two broad categories; those designed to provide larger-scale protection of landscape (National Parks, AONBs, NSAs and NHAs in Scotland, ESAs and heritage coasts) and smaller-scale protection of habitat or species (SSSIs, NNRs, LNRs and MNRs).

A. National Parks

It is not within the scope of this paper to consider in detail the issues presently surrounding National Parks. The ten National Parks in England and Wales were designated during the 1950s following the National Parks and Access to the Countryside Act 1949 and the Norfolk and Suffolk Broads and the New Forest enjoy similar status and are National Parks in all but name. A major report on the national parks system, Fit for the Future (also known as the Edwards report after its chairman, Professor Ron Edwards) was produced in 1991 by the national parks review panel for the Countryside Commission. Its main conclusion was that there should be a new National Parks Act to create strong, independent national park authorities in each national park, more accountable to local people.

The report was generally welcomed and since then the Government has confirmed its intention to create national park authorities for all of the parks on several occasions46. Following the failure of a Private Members Bill introduced into the Lords by Lord Norrie this session, the Countryside Commission has urged the Government to find time for legislation to protect these "jewels in the crown of our landscape"47.

B. Areas of outstanding natural beauty (AONBs)

AONBs were provided for under the same 1949 Act as National Parks, and are also designated by the Countryside Commission or the Countryside Council for Wales, and confirmed by the relevant Secretary of State. The 40 AONBs, covering nearly 14% of

46HC Deb 30 June 1993 c.519w 47Government Urged: Find Time for National Parks Countryside Commission News Release 94/21 23 May 1994 Research Paper 94/90

England and Wales48, are essentially landscapes of distinctive character and fine natural beauty, often in more lowland areas than National Parks, and which are not quite suitable for National Park status. The Department of the Environment (Northern Ireland) also designates AONBs (Northern Ireland).

C. Scotland: National Scenic Areas (NSAs) and National Heritage Areas (NHAs)

NSA is the principal landscape protection category in Scotland and includes the areas originally proposed as National Parks for Scotland before it was decided not to extend the system to that country. 40 NSAs were designated following the Countryside Commission for Scotland report Scotland's Natural Heritage in 1978. Sites lie mainly in the north and west of the mainland and in the Islands and cover 12.5% of land and inland water area in Scotland. A 1987 review revealed that the designation was perceived as not being effective, and that NSA development plan policies were few in number and had little consistency.

NSAs are further protected where they coincide with SSSIs or NNRs. For instance, Assynt- Coigach NSA contains 10 SSSIs and 2 NNRs. Where these is such a coincidence of landscape and scientific interest, such areas could be suitable for consideration as NHAs49.

NHAs were introduced in 1991 and are intended to provide added protection to wildlife as well as landscape. Although NHAs could "easily supplant" NSAs, it has been stressed that they are not a substitute for National Parks, and the possibility remains that National Parks could be established in Scotland49.

D. Environmentally sensitive areas (ESAs)

These are designated under the Agriculture Act 1986 by the Minister for Agriculture. They are areas of national environmental significance where particular farming practices are pivotal in environmental conservation and where a change in these practices could therefore pose a major threat to the environment. ESAs are based on voluntary management agreements with farmers, who are offered a five year agreement that awards them annual payments provided they follow a prescribed set of farming practices. These include positive works (maintaining hedgerows, hedges and barns) and prohibitions (on use of fertilisers, drainage works and levels of grazing)49.

E. Heritage Coasts

Heritage coasts in England and Wales are not statutorily protected but are selected stretches of fine undeveloped coastline which are defined by local authorities in their development plans, and for which management plans are developed by local authorities in conjunction with

48Areas of Outstanding Natural Beauty in England and Wales. Countryside Commission, CCP 276, 1994 49Protected landscapes in the United Kingdom Countryside Commission, 1992 Research Paper 94/90

the Countryside Commission. 44 Heritage Coasts covering 1,493 km of coastline have been designated. One-third of Heritage Coast is in the ownership of the National Trust.

F. National Nature Reserves (NNRs)

EN, CCW and SNH have statutory powers under the National Parks and Access to the Countryside Act 1949 or under the Wildlife and Countryside Act 1981 to establish, maintain and manage land of national importance as nature reserves. The Department of the Environment (Northern Ireland) manages NNRs (Northern Ireland). NNRs are intended to ensure the long term survival of a representative series of key wildlife habitats and species.

More than 300 NNRs have been designated50. They vary widely in size, from Blelham Bog in Cumbria (two hectares) to The Wash (nearly 10,000 hectares). In England, EN owns more than a quarter of NNR land and three quarters is held under lease or nature reserve agreement. A Nature Reserve Agreement can be made allowing an "approved" voluntary conservation body such as the RSPB or any private landowner or occupier to designate a NNR. EN spent £5 million on NNRs in 1992-93, including salaries for 100 staff; over 800 voluntary wardens are also used by EN.

The work planning and management of NNRs is undertaken largely at a local level so regional variations in practice occur. To address this, EN are developing a new NNR policy to integrate site management. They also intend that all NNRs should have approved and current plans prepared in a common format, to be reviewed every five years. EN will also produce a review of their reserve holdings by April 1995 and will produce an annual report on NNRs51.

NNRs are also notified as SSSIs (see below), and they can be thought of as SSSIs with a "clearly stated national level of importance"52.

G. Local Nature Reserves (LNRs)

Local Nature Reserves (LNR) may be designated by local authorities on land belonging to them (or land which they acquire), under the National Parks and Access to the Countryside Act 1949. The Act states that the land declared a LNR must be "special" in a local context and must be managed to preserve or enhance its natural features. Hence the local authority, in declaring a LNR, is also undertaking to manage that site and to protect its natural features from any substantial damage.

50Digest of Environmental Protection and Water Statistics No.16 DoE 1994 HMSO 51Protecting and Managing Sites of Special Scientific Interest in England. National Audit Office, 11 May 1994 HMSO HC 379 52SSSIs: A health check. A report for Wildlife Link. T A Rowell, Wildlife Link December 1991 Research Paper 94/90

English Nature has recently produced a comprehensive guide53 for local authorities to help them carry out their duties with respect to LNRs. This stresses that "site objectives" (the role the site will play in helping to fulfil the local authority's nature conservation strategy) should ideally be decided before the site is declared a LNR, and certainly before a management plan for the site is drawn up. A brief "LNR summary plan" describing the site and its main objectives and management options should be produced and this should be reviewed, usually after five years. Guidance on managing different habitats (woodland and scrub, lowland heath, upland moor, grassland, raised bog, fen and swamp, standing water and coastlands) and on fulfilling objectives (conservation, education, public enjoyment, research) is provided by the guide.

On 31 March 1994, there were 393 LNRs54.

H. Marine Nature Reserves (MNRs) and the difficulty of sub-tidal protection

All terrestrial SACs to be designated under the Habitats Directive will have been notified as SSSIs55 (ASSIs in Northern Ireland). For marine sites, at present the only statutory nature conservation mechanism specifically designed for below low-water mark is the MNR.

Compared to over 300 NNRs, only two MNRs have been designated; at Lundy in the Bristol Channel and at Skomer in Pembrokeshire. English Nature estimates that 500,000 hectares of marine habitats are in need of active conservation measures, and acknowledges that "marine conservation is a decade or more behind its land-based counterpart"56.

Around one-fifth of the licences offered by the Department of Trade and Industry in the last round of offshore oil exploration licensing cover areas "earmarked for marine protection". For instance, an exploration licence held by Amoco extends to Chesil Beach, behind which lies Britain largest saline lagoon, the Fleet. The Chesil and Fleet SSSI has been called one of five "really outstanding" places for marine conservation by English Nature's chief executive. Exploration areas off the Welsh coast impinge on Cardigan Bay (one of two or perhaps three sites around the UK with resident bottlenose dolphin populations) and Ramsay, off St David's Head, home to the largest colony of grey seals in England and Wales. The DTI has given its assurances that stringent controls will be exercised over environmentally sensitive sites and says that most companies have demonstrated environmental awareness57.

MNRs may be designated between the high water mark and the territorial limit by the Secretary of State under the Wildlife and Countryside Act 1981 on the advice of EN, CCW

53Managing LNRs Local Nature Reserves English Nature 1994 54English Nature Facts and Figures Information Guide Spring 1994. 55HL Deb 24 February 1994 WA 59-60 56"Road to ruin for Britain's wildlife" New Scientist, 11 September 1993 pp35-38 57 ibid. Research Paper 94/90

and SNH. MNR protection operates through the enactment of byelaws and they are managed by the relevant statutory nature conservation agency. WWF says that although MNRs were originally envisaged as the marine equivalents of NNRs, their protection is much weaker58.

Various mechanisms exist for regulating development below low water mark, and these have been reviewed recently by the DoE/Welsh Office.59 Yet presently, MNR is the only statutory nature conservation mechanism that applies specifically to the subtidal as well as intertidal zone60. SSSIs for instance apply only to the limits of local planning authority control, generally low water mark.

A recent paper61 by representatives from each of the UK nature conservation bodies (EN, CCW, SNH and DoE/NI) has considered the issues surrounding the designation, protection and future of MNRs. The paper is summarised in the boxes on the following pages.

58The Habitats Directive: Time for Action WWF UK December 1992 59Development below low water mark. A Review of Regulation in England and Wales. Department of the Environment, Welsh Office October 1993. 60Important areas for marine wildlife around England English Nature/Campaign for a Living Coast 1994 61D Laffoley, J M Baxter, R J Bleakley and M Richards [in press] Marine Protected Areas in the United Kingdom: Past Experience and Future Opportunities. In: Proc. 2nd Int. Conf. on the Science and Management of Protected Areas, Dalhousie University, Nova Scotia, 16-20 May 1993. Research Paper 94/90

The paper, whose authors represent each of the UK's nature conservation bodies, notes that progress designating statutory MNRs has lagged far behind terrestrial conservation efforts and has also been far slower than progress in establishing Voluntary Marine Nature Reserves (VMNRs). (Nine VMNRs have been established "drawing on the efforts and enthusiasm of local groups", and have proved effective in many cases, although their codes of conduct are voluntary.)

Furthermore, the conservation agencies which manage MNRs are presently unable to enact byelaws for the protect of MNRs that would interfere with any other authorities' statutory responsibilities or rights inside the reserve. This has made for weak legal protection for marine wildlife. Very extensive consultation is required with anyone with any interest in a proposed MNR. The Government's policy is that total agreement must be obtained from every interest group before designation. This has lead to excessive bureaucracy and watering-down of legislation [bye-laws] in response to objections and is an approach not adopted for any other sectoral "developments" in territorial waters.

Seven sites were selected in the early 1980s as potential MNRs. Of these, only Skomer and Lundy have been designated, although efforts are still continuing to designate Strangford Lough and the Menai Straits. Even at Lundy (the first MNR), the most vulnerable conservation area, containing fragile seafans and solitary corals, has been made only a voluntary "no potting" zone and remains unprotected because of commercial concerns. At Skomer, the second MNR, a byelaw prevents scallop fishing, but other environmentally unacceptable forms of fishing have been started up on the reserve, which the CCW is powerless to prevent.

At Menai, although 95% of respondents to consultation have been in favour of an MNR, this is being held up by opposition from Sea Angling Clubs and yachting interests. Over a year was spent trying to resolve outstanding objections; the proposal has now gone to the Secretary of State for Wales.

Some objectors may not appreciate that MNRs may bring significant benefits to local people. At Skomer for instance, income from divers, increased ecotourism, a strong lobby for environmental improvement and improved catches in adjacent fisheries have been noticed.

At Strangford Lough, encouraged by the positive response to extensive consultation and preparations for a MNR and surrounding ASSI, the DoE/NI prepared a draft designation order. At subsequent public meetings however, fishermen, suspicious of "hidden agendas", objected to the MNR. A Strangford Lough Management Committee with representatives of the local community and users is now working towards producing management objectives for the Lough, with a view to letting the Secretary of State formally propose an MNR.

At Loch Sween "protracted negotiations and obstructions...by the then Government Fisheries Department" strung out the process over four years, losing the trust and interest of local people; this MNR is no longer being pursued. Research Paper 94/90

Recently, formal but non-statutory designations have grown, building on the principle of VMNRs. Marine Consultation Areas in Scotland were prompted by a rapid expansion in salmon farming. Flexible management schemes, with forums representing all interest groups have been set up in many areas, relying on enthusiasm from the local communities and funding from the conservation agencies. This drive towards non-statutory management planning is viewed as

"a result of the current lack of any effective statutory framework for protecting marine wildlife and resolving conflict".

The paper concludes that the targets in the UK Biodiversity Action Plan, and the Habitats Directive, will give rise to a need for effective statutory protection of marine sites:

"It is vitally important that statutory MNRs are continued through more workable legislation. Otherwise we will be without any effective mechanisms to protect nationally important marine wildlife sites and total reliance will have to be placed on the strength of voluntary agreements".

The paper stresses that the UK's high population density, extensive traditional and recreational use of marine resources, and a complex legal system with over 81 Acts applying to the sea, mean that the need to gain 100% agreement before designation of a MNR places unrealistic demands on conservation agencies:

"If the same unsatisfactory approach is taken in implementing the EC Habitats Directive, similar or even slower rates of progress can be expected as the public tires of it".

The most significant change called for is in the way that legislation is applied; achieving 100% agreement before designating a MNR is not considered feasible. The decision making process should include a political judgement concerning the value of a site and whether it should be protected for the nation in perpetuity. In the last paragraph, the report notes that

"Funds for compensating those who lose income through designation may also need to be considered".

Regulations 33-36 (see section V.B.5) deal with marine sites. The Regulations will place a duty on bodies with jurisdiction in the marine environment to use their existing powers, including those to make bye-laws, to perform their duties in ways consistent with the conservation interests of marine sites. They will seek to arrange management schemes on a voluntary basis. Ministers will have statutory reserve powers to co-ordinate such action and to set time limits for action. There may be a "few cases" where fishing and industrial activities take place alongside European Marine sites. The Regulations aim to create a framework that will enable these activities to continue in ways that are consistent with conservation objectives. Research Paper 94/90

IV. The UK SSSI system

SSSIs and ASSIs in Northern Ireland 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"62. The land-based component of the UK Natura 2000 network will be based directly on the SSSI and ASSI network.

Originally established by the National Parks and Access to the Countryside Act (1949), SSSIs are today notified under the Wildlife and Countryside Act (1981).

According to the latest available figures, there were 5,999 SSSIs in Great Britain and 48 ASSIs in Northern Ireland45,50. Approximately 18,000 people own or live on the SSSIs in England alone54. The average area of an SSSI is around 546 acres63.

A. Selection and designation

SSSIs are notified by EN, SNH or CCW under the Wildlife and Countryside Act 1981 (WCA), which implemented the Bern Convention at a UK level. In 1993 EN notified 66 sites covering 12,150 hectares as SSSIs, and notified 11 river SSSIs (ibid). In Northern Ireland, the area of land protected by ASSI designation has increased sevenfold since 1990, and the survey and declaration of ASSIs should be completed by 200164.

To decide what is "special" about a site, the conservation agencies use extremely detailed selection criteria. Those for biological SSSIs were published by the NCC in 198965 and parts of this document have been updated by further guidelines published by the JNCC since then66.

Agency officers will survey areas of interest, with the landowner or occupier's permission. The results of these surveys, together with available published information, are assessed by the agencies against the selection criteria.

When an agency decides to designate an area an SSSI, it notifies every owner and occupier of the land, the local planning authority, the Secretary of State for the Environment, the appropriate water and sewerage company, and the NRA. Notifications include a map of the boundary, a statement of the special interest of the site, a list of operations which would, in the agency's view, damage the site, and a statement that the Agency must be consulted about

62Progress '94 English Nature May 1994 63What you should know about SSSIs, English Nature 1992 64This Common Inheritance The Third Year Report, Cm 2549 HMSO 1994 65Guidelines for selection of biological SSSIs Nature Conservancy Council 1989 66Guidelines for selection of biological SSSIs: non-vascular plants Joint Nature Conservation Committee 1992 Research Paper 94/90

such listed operations. At least four months notice must be given by land owners or occupiers of any potentially damaging operations.

Once notifications have been sent, the area becomes an SSSI and must be treated as such by the owner, even if the owner is appealing against notification. This immediate protection was introduced by the WCA and had not been available to SSSIs notified under the National Parks and Access to the Countryside Act (1949)67. After the site is notified, the owner or occupier has three months in which to make representations or objections. Agency officers will aim to reach agreement or compromise and the notification must be confirmed or withdrawn within 9 months of initial notification.

SSSIs designated under the 1949 Act remained SSSIs following the WCA, but the legal obligations of owners and occupiers under the WCA did not apply to them until they had been notified formally of their new obligations. This process of renotification of existing SSSIs has now been largely completed and involved reassessing the special interest of all existing SSSIs.

If SSSIs or parts of SSSIs lose their special interest, these can be withdrawn or denotified by the conservation agencies. Between 1982 and 1991, 34 SSSIs were denotified by the NCC68.

B. SSSI management and protection

The SSSI notification sent by the conservation agency 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 or PDOs. Notice must be given notice in writing by the occupier or owner of any such operations at least four months before they are carried out. In the 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.

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 operations63. Instead, EN may, under s15 of the WCA, offer the owner or occupier a payment in return for a management agreement that protects the interest of the site. Most of these pay the owners or occupiers compensation for profit foregone by not developing the site, and this negative nature, as well as the expense, of most management agreements is often criticised (see next section).

67Second report on the application of Directive 79/409/EEC on the conservation of wild birds. Commission document 11007/93 7 December 1993 68HC Deb 11 January 1994 c98w Research Paper 94/90

If negotiations are becoming 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 by anyone, 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 they apply to anyone, not just to owners and occupiers.

SSSIs to which NCOs have been applied have been termed "super SSSIs"69, and this is a useful concept. In contrast, the legal requirements under standard SSSI notification apply to owners and occupiers only and essentially last for only four months.

However, NCOs are not commonplace, and typically only one or two dozen will be in force at a given time70. For instance, only 16 NCOs are currently in force in England71.

As a last resort, the conservation agency can apply to the Secretary of State for a Compulsory Purchase Order for a SSSI. However, in England only one compulsory purchase order has been made in ten years72.

English Nature have 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 understanding62.

C. Criticisms of the SSSI system

The problems with the SSSI system are best summarised by the recent National Audit Office report which commented that10:

"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 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

69"Nature conservation and the protection of SSSIs" ENDS Report 212, September 1992, p34 70HC Deb 3 February 1994 cc917-8w; What You Should Know About SSSIs, English Nature 1992 71HC Deb 28 June 1994 c494w 72"Saving Europe's wildlife? The EC Habitats Directive" RSPB Conservation Review 7, 1993 pp.61-66 Research Paper 94/90

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".

Some of these points are expanded upon below.

1. Low penalties

Anyone who without reasonable excuse carries out a potentially damaging operation on an SSSI is liable to a fine of up to £200073. Compared to this, contravention of a Tree Preservation Order may result in a fine of up to £20,000 in the Magistrates' court. Damaging a listed building may result in a prison sentence of up to 12 months and a fine that takes into account any benefit accrued by the offender through the damage74.

See section V.B.3. Regulation 19 sets the fine for carrying out a potentially damaging operation on a European site at level 4 on the standard scale (£2500). For contravening an special nature conservation order, Regulation 23 stipulates a fine not exceeding the statutory maximum. Under Regulation 25, the offender may also be sentenced to repair the damage caused.

2. Voluntary basis of the system

In 1989, Southern Water Authority (since privatised to form Southern Water plc) dredged Hill Heath Ditch, part of Alverstone Marshes SSSI on the Isle of Wight, without notifying or obtaining consent from the [then] NCC. There was some dispute between SWA and the NCC as to whether SWA should have known that the site was an SSSI. The plant-filled ditch containing marsh species such as horned pondweed, marsh woundwort, bogbean and yellow loosestrife was dug out and destroyed. Newport Magistrates' court convicted SWA of breaching the 1981 Act. However, the Divisional Court overturned this conviction, and in 1992, the Law Lords upheld the Divisional Court.

The Lords said that the drainage work had done grave damage to the features of the marsh which the SSSI system was designed to protect, and that Southern Water was guilty of ecological vandalism, if not, because of a legal loophole, of a criminal offence. The Lords were reported to have said that the Act was so weak that

"it would be insufficient to penalise the fly tipper...In truth the Act does no more in the great majority of cases than give [English Nature] a breathing

73Source: English Nature, 17.6.94 74The Habitats Directive: Time for Action. World Wide Fund for Nature, November 1992. Research Paper 94/90

space within which to apply moral pressure, with the view to persuading the owner or occupier to make a voluntary agreement"75.

The Lords noted that after giving the required four months' notice of a potentially damaging operation, even if EN refused to grant its consent, the owner or occupier was free to turn down the offer of a management agreement with or without a financial inducement, and to carry out their original plans with impunity. The main recourse, to make the site a "super- SSSI" though a Nature Conservation Order (NCO), had only ever been used about 40 times76. Under Regulation 19, the four months' loophole still exists, and the system is still essentially voluntary (see section V.B.3). However, by placing a special nature conservation order on a European site, the Secretary of State will now be able to protect a European site for an indefinite period. The readiness with which SNCOs are made will be of interest.

EN acknowledges that legislation alone cannot provide for the proper management of SSSIs, for which it depends on the goodwill and personal commitment of landowners and managers62. EN works to develop good relations, by, for instance, working with the Plain English Campaign to improve notifications, carrying out customer (enquirer) surveys, and producing a newsletter Sitelines, for SSSI owners and occupiers.

The drawback of this approach is of course that the responsible site owners and managers are not the problem. The former chairman of the Nature Conservancy Council, Sir William Wilkinson, has commented that good landowners protect their SSSIs77:

"but the bad boys get away with murder. The most recent example that springs to mind was Twyford Down, where the agent of destruction was the Government".

3. Damage by third parties

The Alverstone Marsh SWA case illustrated a further flaw in the system, which turned out to be the essence of that particular case. The NCC had prosecuted SWA, but the WCA's wording clearly states that it applies only to owners or occupiers. It was ruled that "a stranger who enters the land for a few weeks solely to do some work on it does not fall into this category". Not only independent contractors but even trespassers would be immune from prosecution (ENDS).

Regulations 19 and 23 do not appear to apply to third parties but still only to owners and occupiers (see section V.B.3).

75The Independent, 18 July 1992, The Guardian, 18 July 1992 76ENDS Report 212 September 1992 p.34 77"Wildlife sites put at risk by inaction" Independent, 17 September 1993 p.9 Research Paper 94/90

4. The nature and cost of management agreements

Even if the owner or occupier agrees to enter into a voluntary agreement, at present it is most likely that any agreement reached will be of a "negative" nature. The cost of these to the conservation agencies is considerable.

By March 1993, 1,840 management agreements had been made between EN and owners and occupiers of SSSIs, costing £7.5 million. Only £500,000 of this £7.5 million related to positive conservation management.

The remaining £7 million was spent on expected profit foregone by owners or occupiers through not implementing a PDO78. This 'negative' nature of most management agreements is one of main criticisms commonly levelled at the SSSI system. The system leaves the conservation agencies open to having to pay very large sums in compensation to landowners and occupiers, even more so because the compensation takes into account the change in the value of a person's land following notification.

In 1991 John Cameron, the Scotrail chairman, was awarded £568,294 because SSSI notification prevented him from claiming afforestation and agricultural improvement grants at Glen Lochy; with interest the award was thought to amount to £900,000 (the NCC's annual budget at that time was £19 million)79. John Cameron had acquired the land in the full knowledge that it was an SSSI and therefore subject to restrictions upon its use. The compensation payments for refusal of afforestation grants exceeded the original purchase price for the estate80.

Similarly, a farmer at Inverlocharig was paid £180,000 in compensation for not planting trees on the Beinn More Stob Binnein SSSI. In 1989 the rules were changed so that landowners could no longer claim large amounts of compensation for the refusal of afforestation grant where it was refused solely on conservation grounds. However, a large backlog of cases remained from before the changes, and compensation continues to be available for profit foregone, excluding any grant element, in cases where planting would otherwise proceed80.

Under Regulations 16 and 17 management agreements may still be positive or negative. The nature conservation bodies will still have to offer compensation to owners who will not enter into voluntary agreements. However, on agricultural units, compensation will only be payable to persons having an interest in the land at the time of the making of the Order (see section V.B.2).

78HC Deb 22 February 1994 c106w 79SSSIs: A Health Check Wildlife Link 1991 80Forestry. Library Research Paper 92/29 Research Paper 94/90

English Nature recognise that it is better to give financial support for the positive management of SSSIs, and have a goal that all SSSIs should be positively managed by the year 200062.

5. Land use-the example of the Cairngorms

The Cairngorms cover 300,000 hectares and contain fragments of the 8000-year-old Caledonian pine forest that once covered much of Scotland.

Caledonian pine forest is one of the UK's priority habitats (see section V.B.1).

The Scottish Office's Cairngorms Working Group set up in 1991 concluded that there was "no landscape or ecosystem quite like it anywhere else in the world...it should be the keystone of the Scottish and the UK contribution to the global natural heritage"81.

Although management agreements can be made with landowners, in practice the WCA does not allow the conservation agencies to curtail current land use practices. The Caledonian forests are failing to sustain, let alone regenerate themselves, because new saplings get removed through grazing by red deer, encouraged by the landowners to generate income from hunting. According to one researcher:

"What remains here looks like healthy forest. It is certainly old. But it is also dying. There is not a tree here that is under 150 years old. The last saplings to survive in any numbers into adulthood sprouted here before the [Highland clearances]".

The Working Group called for a large cull of deer to reduce populations by half, and conservationists call for still larger culls. Through Government funding, fences are being erected across some estates to keep deer away from parts of the natural forests, and to allow regrowth. But critics say that the growth inside the fences is no more natural than that outside, since it is not being browsed at all and a dense undergrowth is developing (ibid). Where the deer are allowed to go, their increased population densities are leading to soil erosion, the loss of plants such as heather and juniper and damage to dotterel nests.

The Glenfeshie Estate, half of which is inside the Cairngorms NNR, was offered for sale for £4-5 million at the start of June 1994. Management procedures on the estate had been the cause of much concern to conservation bodies. In response to a recent PQ from Mr Tam Dalyell about the planting of set-aside trees on the Glenfeshie estate, the Secretary of State for Scotland replied82:

81"Last chance for the wasting wilderness?" New Scientist, 18 September 1993 p.3 82HC Deb 28 June 1994 c501w Research Paper 94/90

"Glenfeshie is a private estate, and thus tree planting on the estate is a matter for its owner".

Several conservation organisations were involved in bidding for the estate. The RSPB/John Muir Trust withdrew a joint bid after failing to secure extra funding from the Scottish National Heritage Memorial Fund83. In the event a little-known English charitable trust, Will Woodlands Ltd, outbid the Danish Legoland Corporation, and has pledged to manage the estate for nature conservation84.

The control of land use practices on privately owned land does appear to be a real problem, tied up with that of having to make costly compensation payments to owners.

6. Off-site damaging activities

SSSIs almost inevitably get damaged by outside influences. For instance, one 1993 English Nature Science report considered that in England, 600 SSSIs (16% of the total), are at risk from continued acidification85.

102 SSSIs in England are thought by English Nature to regularly suffer from eutrophication. Streams running into SSSIs from farmland may carry organic pollutants such as fertiliser or sewage onto the site. Eutrophication results from an over-abundance of nutrients in water which leads to over-growth of algae; these may produce toxins and use up the oxygen dissolved in the water as they grow, jeopardising other life in the water. The Lake District, Somerset Levels, Norfolk Broads, Loch Leven and the River Test have been damaged by eutrophication86.

Regulation 16 allows management agreements to be made on land next to or surrounding a European site, which may mitigate some external influences (but of course this cannot counter wider pollution effects).

7. Developments on SSSIs

Environmental organisations have turned several SSSIs into cause célèbres. Department of Transport plans to re-route or enlarge major roads have threatened the Devil's Punch Bowl SSSI in Hindhead in Surrey, Oxleas Wood in Greenwich and, most famously, have damaged Twyford Down in Hampshire. WWF (UK) has written87:

83"Scots bid for Glenfeshie abandoned on eve of deadline" Scotsman 16 June 1994 84"Glenfeshie goes at £4m to secret English trust". Scotsman 30.6.94 p.1 85SSSIs in England at risk from acid rain. Bisset & Farmer, English Nature Science No. 15, 1993 86New Scientist 18 September 1993 87The Habitats Directive: Time for Action WWF UK (World Wide Fund for Nature) November 1992 Research Paper 94/90

"The fact that the Government has chosen to embark upon the greatest road building programme in the history of the UK will undoubtedly focus further pressure on SSSIs. At least ten SSSIs, for example, will be directly affected by proposals to "improve" the M25..."

The final stretch of the M3 motorway from Bar End to the M27 near Southampton, across Twyford Down, was given the go-ahead on 20 February 1990 after an inquiry had been held in 1985. The EC Directive on Environmental Impact Assessment (85/337/EEC) which requires mandatory environmental assessment for major road projects had come into force just afterwards (an Environmental Statement had been prepared according to the 1983 DoT Manual of Environmental Assessment). The late Stephen Milligan MP commented during one debate88:

"jobs in Southampton are more important than butterflies on Twyford Down".

At the end of last year there were allegations of a dispute between the Department of Transport and the Department of the Environment. A report in the Daily Telegraph89 described a leaked letter showing that the Transport Secretary, Mr John MacGregor, was concerned that the Natura 2000 network might jeopardise parts of the £23m road programme. The article alleged that there was a "wide gulf" between lawyers at the two Departments on the point of whether road schemes which already had consents would need to be reviewed, and that the Attorney General and nine other Cabinet Ministers had been involved in the dispute. The former chief scientist at the NCC, Dr Derek Ratcliffe, said that:

"The clear intention of the habitats directive is that there should be reviews of not only transport projects, but agriculture, forestry and industrial development which affect these important sites. The Department of the Environment has clearly been leaned on heavily by Transport. Transport must not be allowed to get away with it."

Earlier in 1993 a joint report by Friends of the Earth and the Observer newspaper, featured in a Channel 4 Dispatches programme, concluded that 160 SSSIs were threatened by the Department of Transport's trunk roads programme90. The Observer article listed 65 sites which it alleged were directly "in the bulldozer's path", and reported that English Nature had estimated that 150 special sites were threatened by road building plans.

The National Audit Office report on SSSIs further addresses this issue. English Nature and the Department of Transport had agreed that, as at 1 December 1993, 48 sites would be affected by road schemes, for which the Preferred Route had been announced. By extrapolation, English Nature has estimated that up to 160 sites might be threatened by the

88HCDeb. 7 July 1992, c172 89"Ministers on collision course over countryside conservation" Daily Telegraph 20 December 1993 p.1 90"In the bulldozer's path..." Observer 14 February 1993 p.1 Research Paper 94/90

entire roads programme. However, according to the NAO, the Department of Transport "doubt that this is a meaningful calculation"91.

See section V.D.1 and 2. Road schemes and other statutory undertakings must now include a consideration of the effects on European sites. Existing planning permissions will be reviewed. However, under Regulations 48 and 49 social or economic considerations will over-ride European site protection.

A Royal Society for Nature Conservation report in 199192 listed twenty SSSIs that had been damaged or were threatened by mineral extraction as a result of "Interim Development Orders" (IDOs) granted during the Second World War and immediately afterwards. Many of these IDOs still exist.

The 1991 Planning and Compensations Act has required that mineral planning permissions be registered with a local authority who may modify the conditions of the order, but WWF say that a complete revocation of these IDOs will be necessary to remove the threat to SSSIs. The Wildlife and Countryside Act 1981 does not allow the planning authority to impose conditions on IDOs that affect economic viability. So for instance, Cumbria County Council are unable to impose conditions on an old IDO permission for slate quarrying on Kirby Moor (the largest area of heather moorland in southern Cumbria) that will affect the economic viability of that site93. At Aldermaston Butts Lake SSSI in Berkshire, a partially extracted gravel pit which supports breeding birds, planning permission granted in 1949 for sand and gravel extraction allows the owners to legally continue with extraction87.

The Cors Carmel SSSI in Dyfed (an ancient semi-natural limestone woodland, where the rare greater horseshoe bat hibernates in caves formed by the old lime-workings) has for some time been the centre of a dispute between conservation groups, and developers (McAlpine) planning to extract limestone from the site under an IDO. The Secretary of State announced in 1992 that a public enquiry would be held, but by then the case had been widely quoted as highlighting a failure in the call-in procedures relating to SSSIs; that a public enquiry in the event of an objection from the conservation agency is not mandatory87.

Under Regulation 32 the nature conservation bodies (not just the Secretary of State) now have the power of compulsory purchase. Regulation 50 requires the review of existing consents and permissions.

Cardiff Bay was listed as an SSSI in 1980 because of its importance as a wetland habitat for migrating bird species including redshank and dunlin. The estuarine mudflats and salt marshes will be replaced by a freshwater lake when the Cardiff Bay Barrage is built as part

91Protecting and Managing Sites of Special Scientific Interest in England. National Audit Office, 11 May 1994 HMSO HC 379 92Losing Ground. Skeletons in the Cupboard. Mineral Planning. Royal Society for Nature Conservation- The Wildlife Trusts' Partnership 1991 93"Road to ruin for Britain's wildlife" New Scientist, 11 November 1993 p.35 Research Paper 94/90

of a £150 million redevelopment and marina scheme in Cardiff Docks. The work is being done under the Cardiff Bay Barrage Act 1993 (cap 42) which received Royal Assent in November 1993, and the Taff-Ely SSSI will be completely destroyed. The then Secretary of State for Wales David Hunt said that the barrage represented:

"a public interest greater than the ecological interest".

Friends of the Earth released a leaked letter written by Ioannis Paleokrassis to the UK in January 1994. The letter released by FoE said that the area should have been included in the Severn Estuary SPA, of which it was an integral part. Under the Habitats Directive, the development might have been acceptable as a project of over-riding socio-economic reasons, but under the Birds Directive, because of the German Leybucht case (C57/89), it would not have been. According to the letter, the compensatory measures proposed for the loss of the Cardiff Bay mudflats and birds were inadequate, given, inter alia, that redshank and dunlin had significantly declined in the UK and the Severn Estuary could not adequately accommodate the birds displaced from Cardiff Bay94.

Under Regulation 55, planning permissions granted by public Acts of Parliament do not have to be reviewed. European sites may be over-ridden on social or economic grounds, but priority European sites only for reasons of public health or safety. Inter alia, permitted development rights have been removed (see section V.D.2)

Friend of the Earth's Habitats Campaigner has commented:

"If the UK gets away with interpreting EC habitat legislation to suit business interest, then dozens more internationally important wildlife sites must be considered at risk".

D. Damage to SSSIs

Since 1991, English Nature has carried out site integrity monitoring of SSSIs. Checking a site's integrity includes noting significant changes, whether important habitats and features are stable, and whether there are any threats to the site. EN has also been checking site quality, which includes noting subtle changes, collecting scientific data collection over the long term, and addressing problems identified during integrity monitoring. EN aims to visit one third of all sites every year. Some sites are visited more often if they are vulnerable or fragile, and in 1992-93 some part of 52% of all sites was visited. However, many of these visits did

94"Cardiff Bay Barrage "Unacceptable" Commission demands compensation measures for wildlife" Friends of the Earth Press Release 15 April 1994 Research Paper 94/90

not include an inspection of the entire site, and inspections may have been combined with other tasks95.

The recent National Audit Office (NAO) report on SSSIs gave NCC/English Nature figures for loss and damage on SSSIs, collected during annual integrity monitoring. Since 1987 there have been 869 cases of loss or damage, but only one site has been completely lost. In 57 other cases part of a site were lost. The figures are summarised in Table 1:

Nature Conservancy Council English Nature

Category of 87-88 88-89 89-90 90-91 91-92 92-93 Total damage

Site loss 0000101

Partial loss 19 9 9 8 6 6 57

Damage: 19 20 21 20 34 40 154 Long term

Damage: 56 107 78 132 177 107 657 Short term

Total 94 136 108 160 218 153 869

(Where short term=will take less than 15 years to repair. Adapted from NAO report, reference 91.)

The total number of sites damaged in England from 1987 to 1993 (869) is a significant proportion (almost a quarter) of the total number of SSSIs in England (3,759; there are over 6000 in the UK as a whole). However, English Nature note that damage on some sites may be recorded more than once, year after year. Also, in 1992-93 the 153 loss and damage cases occurred on only 139 sites.

Many sites (154) have suffered long term damage that will take over 15 years to repair. The NAO points out that the majority of cases (657) concern short term damage, expected to recover within 15 years (and "often considerably less", with the right site management). In 1991-92, 3.5% of total SSSI area was damaged, and in 1992-93 this figure was 2.8%. EN points out that damage and deterioration on some sites may be offset by gains and improvements elsewhere, and that the actual loss by area in 1992-93 was only 0.001%.

Equally however, EN do not regard the above figures as exhaustive, and the NAO also consider that some cases of loss and damage might not be included. For instance, an NCC

95Protecting and Managing Sites of Special Scientific Interest in England. National Audit Office 379, HMSO April 1994. Research Paper 94/90

report on farm pollution in 1990 identified 46 cases of chronic pollution damage on a "small sample" of SSSIs, yet far fewer cases were shown on the formal loss and damage statistics in the NCC's Annual Reports for the same period.

The NAO also note that the most serious long-term threat to many sites, which in EN's view is deterioration through lack of management, is not fully represented in the loss/damage figures, and nor are further threats such as pollution and acid deposition.

The causes of loss and damage in 1991-92 and 1992-93 were as follows:

CAUSE OF LOSS/DAMAGE 1991-92 1992-93 Agriculture 28 28 (overgrazing, pollution, poor management) Miscellaneous 28 24 (including pollution, tipping and burning) Insufficient management 20 22 (leading to deterioration) Recreation 11 6 (scrambling, water sports, four wheel drives) Statutory undertakers 613 (including road building) Planning permission 5 4 Forestry 2 3

(Adapted from NAO report, ref 91.)

The NAO report notes that:

"the fact that notification does not always protect an individual site does not mean that the designation is of no value. For example there is no way of knowing how many proposals to develop on or near SSSIs have never progressed because of the notification, but it is likely to have had a significant deterrent effect".

The 1991 Wildlife Link report on SSSIs79 was written just as English Nature introduced its site integrity and quality monitoring regime. The report pointed out that, particularly before the implementation of the site integrity monitoring scheme, not all sites were checked every year, so it was "perfectly possible" for damage to be recorded several years after it had occurred. Moreover, the report attacked the figures given by the NCC for 1990-91 as an understatement of the true damage. Research Paper 94/90

For England, the Wildlife Link report noted wide county imbalances in returns. It noted that figures for loss and damage in Scotland were "so low that no effective analysis can be made other than to question their veracity". For Wales, where CCW had been recording chronic loss and damage for only two years, the vast majority of damage was through over-grazing.

The report considered that around 5% of SSSIs were being recorded as being damaged every year, but this was an underestimate. The first results from English Nature's site integrity monitoring scheme had indicated that 40% of sites visited showed some damage or deterioration and 21% were under threat.

By definition, sites which had suffered short term damage should recover within 15 years, but this presupposed effective and appropriate site management. Since much of the damage had been done in the first case by inappropriate management, such as over-grazing, it was not clear that short-term damage would be repaired effectively.

An article in New Scientist magazine has commented96:

"Landowners can sign management agreements, and accept cash for not draining marshes or ploughing up pastures for as long as they want. But they can also tear up the agreement whenever it is convenient...The [SSSI] system cannot control outsiders or insist on better than existing land management. It does not supersede old planning consents, and lacks a means of preventing parliamentary bills, or the determination of central government, from pushing through development projects...Many of these failings could be addressed as the government reviews its policy to meet the European Commission's habitats directive..."

96"Last chance for the wasting wilderness?" New Scientist 18 September 1993 Research Paper 94/90

V. The Conservation (Natural Habitats, &c.) Regulations 1994

The draft Regulations will be subject to the affirmative procedure, for approval by resolution of each House. Further regulations will be laid "in due course" to ensure that other activities for which statutory consents and permissions are required do not adversely affect protected sites. The Government will also produce planning policy guidance notes (PPG) for local planning authorities once the present regulations have been approved97.

The draft Regulations were relaid on Wednesday 13 July 1994, but these were unavailable at the time of writing.

The general requirements of the directive were described in section II.F above; this section describes the present Regulations and requirements peculiar to the UK.

A. Procedures for UK implementation of Directives

Under Article 189 of the Treaty of Rome (as amended by the Maastricht Treaty) the institutions of the European Community have the power to issue directives which are "binding as to the result to be achieved, upon each Member State... but shall leave to the national authorities the choice of form and methods".

Once a directive has been adopted, the British Government is therefore bound to implement it, but has some discretion as to how this is done. In some cases UK law may already comply with the requirements of the directive. If it does not, then changes may be introduced either by new primary legislation, or else by secondary legislation (statutory instrument). The latter route is available where regulations can be made under existing UK legislation, eg on Health and Safety and Food Safety, or under Section 2 (2) of the European Communities Act 1972.

Section 2 (2) allows the use of secondary legislation to implement any Community obligation or to deal with matters arising out of or related to any obligation, but its use is limited by Schedule 2 of the Act. Specifically, it cannot be used to impose or increase taxation, to legislate retrospectively, or to further sub-delegate the power to legislate and there are restrictions in 1(1)(d) of the Schedule as to the penalties which can be introduced by this method.

As long as the Community directive can be implemented within these restrictions, this route may be chosen. Under 2(2) of the Schedule, the parliamentary procedure is the negative one (giving either House the power to annul by resolution) unless the Regulations have been

97HC Deb 6 July 1994 cc244-5w Research Paper 94/90

approved in draft by both Houses. In the present instance both Houses are being invited to approve the Regulations in draft.

The use of the procedure has sometimes been controversial. An Efficiency Scrutiny Report of 1993 on The Implementation and Enforcement of EC Law in the UK described the use of Section 2(2) of the ECA 1972 as "the method of last resort" (para 4.10), partly because of worries about introducing major legislative changes without full parliamentary scrutiny and partly because of the restrictions which the procedure imposes. For example, Section 2(2) gives little scope for any "tidying up" of UK legislation unless this is strictly required by the Directive. The advantage of the method is that it can be quicker and occupies less time in the parliamentary timetable. Fuller parliamentary scrutiny could only effect the method of implementation, since, as noted above, a Directive is already binding "as to the result to be achieved". The draft Habitats directive was subject to UK parliamentary scrutiny before it was adopted in 1992 and was considered in European Standing Committee A on 22 May 1991 (see section II.F above).

Part I of the Regulations deals with introductory provisions, defines the relevant authorities, and also defines many of the terms already referred to in this paper. The provisions of the UK Regulations follow closely those of the Directive, to a large extent.

B. Part II Conservation of natural habitats and habitats of species

1. Site selection and registration

Regulation 7 deals with the selection of sites eligible as sites of Community importance (European sites). The procedures reproduce those as set out in the Directive. The UK's national list of sites will be transmitted to the Commission by 5th June 1995. Information on each site, including a map, its location and extent, and the way in which it fits the criteria set out in Annex III (stage 1) will be included.

Regulation 8 again echoes the Directive, and states that once a site has been adopted [by the Commission onto its draft list of sites of Community importance], the UK will designate that site an SAC within six years at the most. The Secretary of State will prioritise sites for designation on the basis of the importance of the sites for Annex I habitat types or Annex II species and for the coherence of Natura 2000.

Regulation 9 allows the Commission to intervene in exceptional cases, should it find that a site in the UK hosting a priority habitat or species has not been included on the UK's national list. The Commission can initiate a bilateral consultation, and if either the Secretary of State agrees that the site should be on the list, or if, following referral from the Commission, the Council decides that it should, then the site will be added to the list. This should theoretically pose few problems for the UK since we are not responsible for a large number of priority species or habitats. Research Paper 94/90

The priority habitats for which the UK is the main site in the EC are;

active raised bogs, active blanket bogs, dune heaths and grasslands, limestone pavements, Caledonian forests and yew woods98.

The liverwort Marsupella profunda, which grows on china clay spoil heaps, is the UK's only priority species99.

The choice of priority species has perplexed some conservationists. Regarding the choice of M. profunda, a JNCC official has commented100:

"One can think of all sorts of other bryophytes [mosses and liverworts] and so on at least as worthy. And while it is nice to see four species of vertigo snails there, I have no idea why they were chosen. What about all the other molluscs?"

One can however infer, for instance, that at least part of the Cairngorms (containing Caledonian forest) will have to be included on the national list and designated an SAC.

Regulation 10 defines "European sites" as SACs, Bird Directive SPAs, and sites that have been placed on the Community's "list of sites selected as sites of Community importance". European sites also include sites containing a priority species or habitat type that have not been placed on the UK's list, but which the Commission is pursuing, under Regulation 9. However, this last category of European site will not be fully subject to the provisions in the UK's Regulations.

Regulations 11 and 12 require the Secretary of State to maintain a register of all the above- defined European sites. The register may be in "such form as he thinks fit" but it must be kept available for public inspection free of charge. The appropriate nature conservation body [EN, SNH, CCW or DoE/NI] must be informed of any changes to the register, and these bodies will also have to keep copies of the register available for public inspection in their areas.

Regulation 13 states that as soon as practicable after a nature conservation body is told of the inclusion of a site on the register, they shall inform every owner and occupier of the land,

98Conservation in Europe will Britain make the grade? A Report by Derek Ratcliffe for Friends of the Earth September 1993 99Source: Department of the Environment, 13 July 1994 100Forum, New Scientist, 6 November 1993 pp50-51 Research Paper 94/90

every local planning authority, and such other persons as the Secretary of State may direct. All information on the register pertaining to the relevant part of the site shall also be provided along with notification.

No list of SACs or potential SACs has yet been published101 or is otherwise available through official sources. According to the Secretary of State for the Environment, the nature conservation bodies, coordinated by the JNCC, are "working on their advice" concerning the UK's national list, and:

"When the Government has considered the agencies' advice, we shall decide to publish our proposals and the consultation process will begin. Individual owners and occupiers of sites will be kept fully informed".

However, Derek Ratcliffe, the former chief scientist at the NCC, writing for Friends of the Earth, has compiled a list of 112 Potential SACs (PSACs) based on the scientific criteria laid out in the directive. Nearly all of these are designated at least in part as SSSIs, and the sites vary in their vulnerability and conservation status. Derek Ratcliffe considers that all should be included in the UK's national list of candidate SACs to be submitted to the Commission. (Specific sites for the highly mobile marine mammals were not identified.)

The 112 PSACs identified by Derek Ratcliffe are shown in Appendix 2.

Regulations 14 and 15 specify that an entry in the register in England and Wales is a local land charge and that in Scotland the register of European sites must be made available by planning authorities102.

2. Management agreements

Regulation 16 states that the nature conservation bodies may enter into management agreements with every owner, occupier or lessee of land forming part of a European site. This Regulation also allows the nature conservation bodies to enter into a management agreement with the owner, occupier or lessee of land adjacent to a European site. If this power is used extensively in practice, it may help to prevent some of the damage that may be done to sites by outside activities.

As with SSSIs, the agreements may be positive or negative, and compensatory payments may be made. Regulation 17 makes existing agreements entered into under previous Acts subject to the present Regulations.

101Source: Department of the Environment, 13 July 1994 102This means that, for instance, if someone is buying land, they should discover during the searches that the land has a long term obligation attached to it. Research Paper 94/90

3. Control of potentially damaging operations: SNCOs

Regulation 18 deals with potentially damaging operations (PDOs). Any notifications already in force on SSSIs under s28 of the Wildlife and Countryside Act 1981 (specifying PDOs that may not be carried out) will have effect under these Regulations. The nature conservation body may alter the notification at any time to secure compliance with the Directive, and shall notify any owner and occupier and the local planning authority.

Under Regulation 19, the owner or occupier may not carry out, or cause or permit to be carried out, any PDO, unless;

the nature conservation body has been given notice and either

the nature conservation body has given its consent, or the operation is carried out in accordance with the terms of a management agreement, or four months have expired since notice was given.

As with the SSSI system, this does not appear to apply to third parties, but only to owners and occupiers. The four month loophole is still present (but a SNCO may be made; see below).

Under Regulation 20, the nature conservation body must only give its consent to an operation if it has assessed such a project and has ascertained that it

"will not adversely affect the integrity of the site".

Emergency operations and operations authorised by planning permissions are permitted. Contravention risks of a fine of up to level 4 on the standard scale (£2500). So these provisions essentially do not alter those already in place for SSSIs: the nature conservation bodies are expected to use their existing statutory powers to protect European sites and the criticisms of low fines and the owner merely having to wait four months before being able to carry out a PDO could still be levelled.

The real difference lies in changes made to the NCO provisions.

Regulations 22 and 23 deal with special nature conservation orders (SNCO). If a nature conservation body thinks that a PDO is going to be carried out, they shall notify the Secretary of State. The Secretary of State may then make a SNCO specifying operations that may not be carried out (or be caused or permitted to be carried out) by the owner or occupier. Research Paper 94/90

Operations specified in a SNCO may only be carried out if

the nature conservation body has been given notice and either

the nature conservation body has given its consent, or the operation is carried out in accordance with the terms of a management agreement

Under Schedule 1, an SNCO will last for 9 months unless the Secretary of State has previously given notice that he does not propose to amend or revoke it. So SNCOs can be thought of as being not time-limited (unlike NCOs on SSSIs under the Wildlife and Countryside Act 1981 which run out after twelve months).

This means that SACs can be made the equivalent of "super-SSSIs" (see section IV.B above), and that this protection may last indefinitely. The question will be how often and readily such powers will be used, bearing in mind that only about 40 NCOs have been made for SSSIs to date.

A person who contravenes a SNCO is liable on summary conviction to a fine not exceeding the statutory maximum, or on conviction on indictment, to a fine. However it is a reasonable excuse if an operation is carried out in an emergency or under planning permission.

Under Regulation 24, the owner or occupier may, within two months of refusal of a consent, or if he has not heard a decision within three months, require the nature conservation body to refer the matter to the Secretary of State.

If the Secretary of State is satisfied that the project must be carried out for reasons of over- riding public interest (which may be of a social or economic nature) he may direct the nature conservation body to give consent. If the site hosts a priority habitat or species then the only reasons for which consent may be given are those relating to human health, public safety or of primary importance to the environment, or which in the opinion of the Commission are in the interests of over-riding public interest.

If such consent is given, the Secretary of State must ensure that "such compensatory measures are taken as are necessary to ensure that the overall coherence of Natura 2000 is protected".

Regulation 25 deals with compensation for the effects of SNCOs. Compensation may be paid to persons having an interest in land comprised in an agricultural unit at the time of the making of the order.

Under Regulation 26, a person convicted for contravening an SNCO may, in addition to a fine, be sentenced to carry out remedial or restorative work to the land. Failure to do this is an offence punishable on summary conviction to a fine not exceeding level 5 on the standard scale (£5000), and further offences may be proceeded against from time to time. Research Paper 94/90

4. Byelaws and compulsory purchase powers

Regulations 28-31 deal with bye-laws for terrestrial European sites. Under s20 of the National Parks and Access to the Countryside Act 1949 (cap 97) the nature conservation bodies may make bye-laws to prohibit or restrict entry into, or activities within, terrestrial European sites. Bye-laws may also cover an area surrounding or adjacent to a site.

These bye-laws must not interfere with the activities or functions of;

an owner, occupier or lessee a public right of way statutory undertakers internal drainage boards, district salmon fishery boards or Commissioners appointed under the Tweed Fisheries Act 1969 a telecommunications code system or the operator of any such system

If these bye-laws interfere with the rights or interests of any person, he shall be entitled to compensation from the nature conservation body.

Regulation 32 allows the nature conservation bodies, where they cannot arrange a satisfactory management agreement, or where a management agreement has been breached, to compulsorily acquire the land. (The Secretary of State was responsible for compulsory purchase of SSSIs.)

5. European Marine Sites

Regulations 33-36 place a duty on the appropriate bodies to use their existing statutory and bye-law making powers to further the conservation objectives of European sites. They allow the nature conservation bodies to mark out a European marine site (so long as this does not interfere with navigation), and to inform other relevant authorities of the site's conservation objectives and any operations that might prove damaging.

Any or all of the relevant authorities103 may establish a management scheme under which their functions to make bye-laws shall be exercised so as to secure compliance with the Directive. Only one management scheme may be in place at a time, and as soon as it is established the appropriate nature conservation body must be sent a copy.

103for a marine site, these are; a nature conservation body; a county, district, London borough, regional, islands or district council, the NRA, a water or sewerage undertaker, an internal drainage board, a navigation authority, a harbour authority, a lighthouse authority, a river purification board or a local fisheries committee Research Paper 94/90

As well as giving directions regarding any aspect of a European marine site management scheme, the relevant Minister is given reserve statutory powers to make a Direction to the authorities stipulating;

conservation measures to be included in the scheme time limits for action that one authority should act as a coordinator that Ministerial approval be sought before the scheme is established, or that any information must be supplied to the Minister.

The nature conservation bodies may also make bye-laws for the protection of a marine European site using their existing powers under s37 of the Wildlife and Countryside Act 1981 (byelaws for protection of marine nature reserves). However, nothing in such bye-laws may interfere with the functions of any relevant authority, with functions conferred by any enactment, or with any right of any person (whenever vested).

The marine system will thus be run on a voluntary basis (see section III.H above for further details).

Regulation 37 addresses linear landscape features, such as field boundaries (hedgerows) or river banks, which aid the migration and dispersal of wild flora and fauna, and thus help maintain genetic diversity (biodiversity). It also mentions features such as small ponds or woods that may act as stepping stones. Without such features, small populations can become geographically and thus genetically isolated and this may be a mechanism that leads to either speciation or extinction.

The Regulation stipulates that, under the Town and Country Planning Acts, policies in respect of the conservation of the natural beauty and amenity of the land should be taken to include policies encouraging such features as those described above. Research Paper 94/90

C. Part III Protection of Species

Regulations 38 to 46 largely reiterate the provisions already present in UK law in the Wildlife and Countryside Act 1981. The species of animals and plants listed in the Annexes to the Directive whose natural range includes any area in Great Britain are copied to the Schedules of the Regulations.

Schedule 2 lists rare native UK species of animals;

all UK bats large blue butterfly wild cat all UK cetaceans dormouse sand lizard great crested newt otter smooth snake sturgeon natterjack toad five species of marine turtles.

These European protected species, and their eggs and breeding and resting sites are strictly protected. It is an offence to deliberately capture, kill or disturb these animals or to trade in them.

Schedule 3 lists less threatened species; barbel grayling mountain hare lamprey pine martin polecat Atlantic slamon bearded seal common seal grey seal harp seal hooded seal ringed seal allis shad Twaite shad vendace whitefish Research Paper 94/90

which may not be killed or taken in certain ways, such as by using explosives, gas, poisons, automatic weapons, dazzling devices, non-selective traps or nets, and blind or mutilated animals as decoys.

Schedule 4 lists rare native plants;

shore dock Killarney fern early gentian lady's slipper creeping marshwort slender naiad fen orchid floating-leaved water plantain yellow marsh saxifrage

These European protected species of plants are strictly protected. It is an offence to pick, collect, cut, uproot or destroy these plants or to trade in them.

Licenses may be granted by the nature conservation bodies for derogations to allow, for instance, scientific work, to protect agricultural interests or to prevent the spread of disease.

Offences are punishable by fines of up to level 5 (£5000) on the standard scale.

The UK's only "priority species" is the liverwort Marsupella profunda, which grows on china clay spoil heaps (see section V.B.1 above).

D. Part IV Adaptation of planning and other controls

1. Requirement to consider effect on a European site

Regulation 48 stipulates that a competent authority, when deciding whether to grant planning permission or authorisation for any plan or project that is likely to have a significant effect on a European site and is not directly connected with or necessary to the management of that site, shall make an appropriate assessment of the implications.

The applicant shall supply any information reasonably required by the authority. The authority shall consult with the appropriate nature conservation body and take their views into account, and if the authority considers it appropriate it shall also consult public opinion.

After assessment,

"the authority shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site". Research Paper 94/90

However, under Regulation 49, for a "standard" European site, if the authority is satisfied that there are reasons of overriding public interest which may be of a social or economic nature, the authority may agree to the plan.

If the site hosts a priority habitat or species (if it is a "priority" European site), then the authority may only agree if the reasons relate to human health or public safety.

The opinion of the Commission may be sought by the authority or by the Secretary of State if necessary.

Regulations 50 and 51 allow for the review of existing decisions and consents. The relevant authority shall, as soon as reasonably practicable, review any consents, decisions or authorisations which were granted before a site became a European site, and shall affirm, modify or revoke these.

Guidance may be issued by the Secretary of State to help authorities decide how to exercise their powers and to help them decide whether, while affirming the consent, any action can be taken that will stop the plan or project from adversely affecting the integrity of the site.

Regulation 52 says that where more than one competent authority may be involved, guidance may also be issued to indicate which authority would be best suited to take decisions, and whether the opinions of other authorities should be taken into account.

Under Regulation 53, when a plan or project on a European site is agreed to for reasons of overriding public interest,

"the Secretary of State shall secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 is protected".

2. Planning

The provisions relating to planning are lengthy and technical and will not be covered in very great detail here. They were summarised recently by the Secretary of State for the Environment104, and the DoE/WO and SO issued consultation papers on the withdrawal of permitted development rights in March 1993105. The Planning Policy Guidance Note (PPG) on Nature Conservation which will be published following the approval of these Regulations should give further information.

104HC Deb 6 July 1994 cc244-5w 105The Town and County Planning GDO: permitted development, environmental assessment and implementation of the Habitats Directive. DoE 17 March 1993, and Scottish Office, 2 August 1993 Research Paper 94/90

Regulation 54 states that the requirement to consider the effect on a European site will apply to planning permission being granted under various Acts including Part III of the Town and Country Planning Act 1990 and the Town and Country Planning (Scotland) Act 1972.

Planning permission may be granted for projects if the competent authority considers that adverse effects on the integrity of a European site may be avoided by attaching conditions or limitations to the planning permission.

Outline planning permission may not be granted unless the authority is satisfied that no development adversely affecting the integrity of a European site could be carried out under the permission, whether before or after obtaining approval of any reserved matters.

Regulation 55 states that the required review of existing consents and decisions (Regulations 50 and 51) apply to any planning permission or deemed planning permission granted under various Acts. Certain exceptions exist. For example, permissions granted by public general Act of Parliament are not covered.

Regulations 60-62 remove permitted development rights. They state that any planning permission granted under a general development order (GDO) which is likely to have a significant effect on a European site shall not be begun or completed until the developer has received written confirmation from the local planning authority.

Where a project is planned under a GDO the opinion of the appropriate nature conservation body may be sought, and after assessment

"the authority shall approve the development only after having ascertained that it will not adversely affect the integrity of the site".

Under Regulations 64-67, following the Commencement of the Regulations, special development orders, simplified planning zone schemes and Enterprise zone schemes shall not have effect for granting permission for a development that is likely to have a significant effect on a European site. Compensation will apply to planning permission withdrawn.

Regulations 69-85 say that the requirement to consider the effect on a European site (Regulations 48 and 49) applies to;

plans by the Secretary of State or a Highway Authority to construct or improve a new highway or road, cycle tracks, consents under the Electricity Act 1989, authorisations under the Pipelines Act 1962, orders under the Transport and Works Act 1992 authorisations [to pollute] under the Environmental Protection Act 1990 waste management and disposal licenses granted under the Environmental Protection Act 1990 Research Paper 94/90

discharge consents under the Water Resources Act 1991 (and the Control of Pollution Act 1974 in Scotland)

Part V deals with Supplementary provisions. Inter alia, these allow life tenants to enter into management agreements, give powers of entry to land to the nature conservation bodies to check whether a special nature conservation order needs to be made, and deal with compensation.

Regulations 91-93 deal with the compensation payable after a special nature conservation order has been made on an agricultural unit. This shall be

"shall be the difference between the interest of the value in question and what it would have been had the order not been made".

Compensation will carry interest from the date of a claim until payment.

Regulations 94-97 deal with the making of bye-laws and the compensation payable for the effect of these.

Regulation 98 confers the powers of compulsory acquisition on the appropriate nature conservation body (with the authorisation of the Secretary of State).