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.