Nature Conservation Legislation in the UK - Assignment Example

Nature Conservation Legislation in UK By Due Nature conservation is probably the most important means of survival, or at least prolonging, of life on this planet. Plants, animals and humans are all parts of an interconnected system and substantial change in each of them affects the other parts of the system. Various types of pollution have put the natural environment under a persistent threat of extinction. Pollution is a kind of a necessary evil that humans have to bear with if they have to undergo development. While a few developed countries are able to switch to environment friendly sources of energy, developing countries like India and China cannot stop using the dangerous ones as they deem it their right to be on the road to development. In UK, special attention is paid to natural conservation and there is a legislation to regulate it. There are specific areas which are marked as conservation designation. Special ethics are devised for the use and allocation of natural resources from these areas so that they can be protected from bulk consumption. However, since land is the main concern in this regard, the rights of land owners also inevitably come into play. Land owners are also provided with rights under the UK legislation and there is always a chance that a clash may occur between the natural conservation legislation and the rights of land owners. There is some key legislation that governs conservation issues in the UK. One of them is Ancient Monuments and Archaeological Areas Act (AMAAA)1, which was passed to protect the archaeological heritage of Great Britain. AMAAA protects sites that are regarded as ancient monuments and are of a national importance. An important legislation is the Environment Act2 which defined new standards for environmental management and also created a number of new agencies like the Environment Agency, the Scottish Environment Protection Agency (SEPA), and the National Park authorities. The Environment Agency supervises all the waste management activities and also has the authority of licensing of sites such as landfill, incineration and recycling facilities. SEPA has almost similar authorities in Scotland. The Environment Act also introduced some new provisions in the Environmental Protection Act3. This act established a duty of care in respect of waste and provided guidelines as to how it is to be disposed on land. Another important legislation is the National Parks and Access to the Countryside Act4 which later became Natural England. This act is extremely important as it provided the framework for the creation of National Parks and Areas of Outstanding Natural Beauty in England and Wales. In addition, it also addressed public rights of way and access to open land. Natural England has designated various types of areas for conservation. There are areas called Sites of Special Scientific Interest (SSSI). The Government registers every SSSI in England as a local land charge. It is done so that any prospective buyer of such land can discover in advance if it is registered as an SSSI. In order to make this process convenient, the authorities of Natural England have put up a detailed map on their website where SSSIs are vividly marked. After World War II, it was realized that there is a need to protect and preserve UK’s natural habitats, wildlife and geological heritage so that both present and the future generations can benefit from them. With this view, SSSIs were first established in 1949. Natural England protects SSSIs in a very efficient manner. Natural England puts most of the responsibilities of preservation on the owners. It provides guidance as to how an owner can preserve the natural resources of their site. The Wildlife and Countryside Act5 (WCA) has set out the responsibilities of Natural England in relation to SSSIs. This act requires the Nature Conservancy Council (Natural England) to explore and check whether any land fulfils the requirements of being registered as an SSSI. S 28(1) of WCA provides that it is duty of the Council to notify the fact about a land being an SSSI: a. “to the local planning authority in whose area the land is situated; b. to every owner and occupier of any of that land ; and c. to the Secretary of State.”6 This notification is essential and it must also specify the time “within which and the manner in which, representations or objections with respect thereto may be made.”7 When this notification is made to the owners, they should not carry out or permit to carry out any operations on their land which are prohibited by the notification under S 28(5) of WCA. If an owner wants to carry out a certain operation which is prohibited by the notification, they should give the Council a proposal to carry out that operation. This proposal must be given before the date of commencement of the land as SSSI. It must clearly state the nature of the operation and the land on which it is to be carried out. Also, one of the conditions provided in S 28(6) of WCA must be fulfilled. These conditions are: a. “that the operation is carried out with the Councils written consent; b. that the operation is carried out in accordance with the terms of an agreement under section 16 of the 1949 Act or section 15 of the 1968 Act ; and c. that three months have expired from the giving of the notice under subsection (5).”8 If an owner carries out or allows carrying out of a prohibited operation on his land without fulfilling the requirements of S 28(5), they shall be liable on summary conviction to a fine not exceeding £500 under S 28(7). But where a planning permission for an operation is granted under Part III of the Town and Country Planning Act 1971 or Part III of the Town and Country Planning (Scotland) Act 1972,9 it is allowed as it has a reasonable excuse for not fulfilling the requirements of S 28(5). A notification before the commencement of the operation is necessary but where it is not done, it is allowed as having a reasonable excuse under S 28(8) only if the operation was carried out in an emergency, and the particulars of the operation including the details of the emergency are notified to the Council as soon as it was practicable. Further, S 29(1) empowers the Secretary of State to stop carrying out of any operation, which is likely to destroy or damage the flora, fauna, or geological or physiographical features by reason of which the land is an SSSI, on a certain SSSI after consultation with the Nature Conservancy Council.10 But where the owner or the occupier has given the Council a notice of proposal to carry out the operation and which also specifies the nature of the operation and the land on which it is to be carried out, S 29(1) does not apply. S 29(5) provides that it is also imperative that the operation is carried out with the written consent of the Council, or is carried out in accordance with the terms of an agreement under section 16 of the 1949 Act or section 15 of the 1968 Act, or three months have passed since the notice was given to the Council.11 The Council can still prevent the operation if it enters into an agreement with the owner to buy their interest in the land. But S 29(6) provides that this agreement has to be made before the aforementioned three month period has expired. There is a possibility that the owner might reject the Council’s offer to buy their interest in the land. In such cases, the Council also has the power of compulsory acquisition under S 29(7). If an owner carries out a prohibited operation on his land despite the Council’s intimation, they shall be liable under S 29(8): a. “on summary conviction, to a fine not exceeding the statutory maximum; b. on conviction on indictment, to a fine.”12 But there is no penalty if an operation is carried out with a reasonable excuse under S 29(9). Where the Council prohibits carrying out of certain operations on a land, the owners may suffer a loss as a result. There is always a possibility that the owner wants to carry out a certain operation on their land because it will increase the value of their interest in the land. However, they can get compensated by the Council for their loss. S 30(2) of WCA provides that, “The Council shall pay compensation to any person having at the time of the making of the order an interest in land comprised in an agricultural unit comprising land to which the order relates who, on a claim made to the Council within the time and in the manner prescribed by regulations under this section, shows that the value of his interest is less than what it would have been if the order had not been made; and the amount of the compensation shall be equal to the difference between the two values.”13 Therefore, the calculation of compensation seems fair. But the problem is that there is no reliable way of forecasting the future profits that may have accrued to the land if the operation was allowed to be carried out by the Council. Operations on land are carried out with a long term view and fair values cannot always be fair. Compensation made under S 30(2) is a short term solution and can be regarded as somewhat myopic. Also, S 30(4b) provides that where an owner has more than one interest in the land and they make more than one claim for compensation, the various interests are to be valued together.14 This may also end up in being detrimental to the owner. The Council also pays compensations to the owners who have incurred a loss due to the fact that they have made certain expenditures for certain procedures on their land which are to be aborted due to a notification by the Council. However, the claim should be made within the time and the manner which is specified in WCA. If an owner carries out or allows to carry out an operation which is prohibited by the Council and that operation damages or destroys the matter due to which the land was regarded as an SSSI, the court may, in addition to fine or conviction, make an order in which the owner is required to carry out such operation on their land which restores the land to its former condition or in a condition that is specified by the court.15 The owner is entitled to appeal against this order in a higher court in which case they would not be required to carry out that operation until the appeal is determined. If it is impracticable for the owner to carry out that operation or the operation has become unnecessary due to a change in circumstances, the owner must give an application to the court so that they can be discharged from their duty under the order.16 However, the court may not discharge the owner if it is not convinced that there is a change in circumstances that has made it impracticable for the owner to carry out that operation or the operation has become unnecessary. S 31(5) of WCA provides that where an owner fails to comply with the order and there is no reasonable excuse, they “shall be liable on summary conviction: a. to a fine not exceeding £1,000 ; and b. in the case of a continuing offence, to a further fine not exceeding £100 for each day during which the offence continues after conviction.”17 S 32 provides guidance as to other duties of agricultural Ministers and the Council. In addition to the aforementioned function of the Minister, it is also the Minister’s duty to exercise his functions in such a manner that furthers the conservations of the matter that makes a land an SSSI. Where the Minister recommends an operation to be carried out on a land but the Council objects to it for some reason, the Minister should take the objection into account. Where a Minister refuses a grant for an operation upon objection by the Council, the Council shall attempt to enter into an agreement with the owner within three months of their receiving notice from the Minister. The agreement shall be made under section 16 of the 1949 Act or section 15 of the 1968 Act, and it must: a. impose restrictions as respects those activities; and b. provide for the making by them of payments to the applicant.18 The underlying authority to declare any land SSSI also gives Natural England the authority to declare any land a National Nature Reserve (NNR). NNRs include lands like coastal salt-marshes, dunes, cliffs, downlands, meadows and the subtle variations of the native woodlands. Natural England also possesses the authority to designate any land as an Area of Outstanding Natural Beauty (AONB). It defines AONB as “an area of high scenic quality which has statutory protection in order to conserve and enhance the natural beauty of its landscape. AONB landscapes range from rugged coastline to water meadows to gentle lowland and upland moors.”19 The purpose of making these designations is to protect and preserve these areas, and enhance their natural beauty. The National Parks and Access to the Countryside Act 1949 prohibits any such developments on these lands which would damage or destroy their special qualities. To help protect AONBs further, the Countryside and Rights of Way (CROW) Act20 brought some more provisions which clarified the role of local authorities. It added the duty of preparing management plans that set out how the local authorities would care for their AONBs. In order to improve management, the CROW Act introduced the option to create conservation boards to manage AONBs. It further makes all public bodies bound to have a duty of regard for the purposes of AONBs when they undertake their work. Recreation is not the primary objective of designating a land as an AONB but as far as recreations are consistent with the conservation of natural beauty and the needs of agriculture, forestry and other users, AONBs should be used to meet the recreation demands. Safeguarding agriculture, forestry, other rural industries and the economic and social needs of local communities are also to be taken into account while pursuing the primary purpose of AONBs.21 In the legislation regarding Rights of Way are also attached the duties of landowners and occupiers of land. The owners and occupiers of land have following responsibilities: 1. They should keep rights of way clear of any obstructions. The obstructions include padlocked gates, rubbish, barbed wire, slurry, manure, electric fences, and hedgerows. Further they should warn users if there are any chained or loose dogs, or any other potential dangers (e.g. slurry lagoons, cliffs) near rights of way; 2. They should cut back any vegetation that encroaches from the sides (but not the surface), and above, as it inconveniences the public or prevents the line of the right of way being apparent on the ground. Also, horse-riders should be allowed 3 metres (10 feet) of headroom on bridleways; 3. Paths should be kept clear of crops (other than hay and silage) as they also inconvenience users; 4. Owners and occupiers should ensure that stiles and gates on rights of way are maintained in good order. Owners are entitled to claim a minimum contribution of 25% of the cost of any works from the highway authority. Some authorities provide materials and others may carry out the work themselves; 5. If any new ditches are made or the existing ones are widened with the permission of the highway authority, the occupiers should provide adequate bridges; 6. They should not cultivate (i.e. plough or disturb) the cross-field footpaths and bridleways unless it is inconvenient to avoid them; 7. Also, restricted byways and unsurfaced public roads are never to be cultivated; 8. They should ensure that field-edge footpaths, bridleways and all byways are open to all traffic; 9. Where it is not possible to avoid the cultivation of a cross-field footpath or bridleway, they should ensure that it is reasonably convenient to use by making the surface good to at least the minimum width, and it should be done within 14 days of first being cultivated for that crop, or within 24 hours of any subsequent cultivation. The highway authority may agree to allow a longer period in advance and it must be in writing; 10. They should also ensure that at all times, paths over cultivated land remain apparent on the ground, to at least the minimum width, and are not obstructed by crops; 11. The owners or occupiers must ensure that bulls kept in a field crossed by a path do not exceed 10 months old or are not of a recognised dairy breed, and are accompanied by cows or heifers; 12. They must also ensure that when a bull is present in a field, warning notices are displayed; 13. They should never keep an aggressive animal (including any bull of whatever breed) in a field to which the public has any access; 14. If the occupiers consider it necessary and desirable, they may waymark rights of way; 15. They must also ensure that there are no misleading signs placed near rights of way that might discourage access. Section 57 of the National Parks and Access to the Countryside Act 1949 empowers highway authorities to remove such signs.22 It is also important to discuss designations of lands made as Special Protection Areas (SPAs). Natural England defines SPA as “an area of land, water or sea which has been identified as being of international importance for the breeding, feeding, wintering or the migration of rare and vulnerable species of birds found within the European Union. SPAs are European designated sites, classified under the European Wild Birds Directive which affords them enhanced protection.”23 The objective of these designations is to protect certain members of wildlife. The details of SPAs are provided on the Natural England website. The objectives of each designation are different and they are separately explained as different types of plants, birds, and animals are specific to different areas. These areas are also designated within the underlying authority to designate any land as an SSSI. It can easily be construed that the legislation regarding nature conservation safeguards wildlife to a great degree. But less has been discussed about the rights of owners than their duties and responsibilities. The nature conservation legislation in UK stresses on the fact that the owners and occupiers of land are a part of the system of conserving nature. But this system inevitably puts many restrictions on them and limits their activity on their own land. Upon analysis of the legislation discussed above, it can easily be seen that conservation of nature is prioritised to the rights of owners. The owners can do anything to their land that they want as long as their plans do not interfere with the objectives of nature conservation. The onus of certain responsibilities is not too much either. For instance, it cannot reasonably be expected as inconvenient for the owner of an SSSI to notify Natural England if there is any change in ownership. Also, in respect of Right of Way, the highway authority actually contributes to the maintenance of stiles and gates in good order. Therefore, the legislation attempts to be fair and be not too burdensome on the owners. The legislation attempts to provide the owners with sufficient rights. There might be some aspects in which the owner or occupier of an SSSI might believe that their right of enjoying possessions is violated by the law. But such cases are few and far between. Most of the sections of the legislation attempt to protect them from any loss that they might incur. It has been seen above that the Council has to compensate the owners if their interest in land is lowered as a certain operation is prohibited. The Wildlife and Countryside Act has even created exceptions for owners and occupiers who: a. kill or take a bird included in Part II of Schedule 2, or injure such a bird in the course of an attempt to kill it; b. take, damage or destroy a nest of such a bird ; or c. take or destroy an egg of such a bird; d. take, damage or destroy the nest of such a bird while that nest is in use or being built; e. take or destroy an egg of such a bird; f. disturb such a bird while it is building a nest or is in, on or near a nest containing eggs or young; or g. disturb dependent young of such a bird.24 These exempt owners are also known as authorised persons. These are the persons in whom a right is vested “whether as owner, lessee or occupier of any land in that area or by virtue of a licence or agreement.”25 The notice of their exemption is provided by the Secretary of the State. All the persons other than the authorised persons are held liable for offense if they commit any of the aforementioned actions. This lenience is, however, not limited to owners of land: outsiders can benefit from it too. The major problem occurs when an owner of an SSSI has an opportunity to increase his interest in the land by carrying out a certain operation. The WCA was based on a preventative approach.26 It attempts to prevent any damage to SSSIs and ‘buy out’ the development operations along with a compensation payable under agreement with the landowners. The WCA in itself is poorly equipped to achieve its objectives. It requires positive and efficient management to retain the special interest. For instance, there are certain SSSIs where light grazing by livestock is actually beneficial for the land as it encourages growth of wildflowers and other vegetation. As discussed above, the Countryside and Rights of Way Act 2000 introduced additional provisions and enabled the public bodies to introduce management schemes. The need of positive management is not only in respect of protecting wildlife: it is also required to efficiently handle the rights of owners or occupiers of land. Whenever Natural England proposes a new management scheme, it also consults the affected owners or occupiers. This is actually a very good measure as it gives the owners an opportunity to actually be a part of the management system. If only the WCA is considered, it just lays out a set of rules of what the owners can and cannot do. A management scheme takes effect only when it is confirmed and the notice of its confirmation is served on all the relevant owners and occupiers. Natural England strives very hard to look at the problems of the SSSI owners and solve them. It has set up various ways of communication with owners through which the owners can convey their problems and any inconvenience that they might have to face while performing their duties. Natural England also offers financial help to the owners. It also helps the owners in applying for funding through programmes such as Environmental Stewardship, Conservation Enhancement Schemes and the English Woodland Grant Scheme.27 A problem that SSSI owners might have to face is the revocation of consent by Natural England for carrying out of a certain operation. The owner of an SSSI has to obtain consent from Natural England before they can carry out any operation on their land. But if such circumstances are created subsequently which make Natural England believe that the carrying out of that operation would damage or destroy any of the land’s flora, fauna, or geological or physiographical features, it is entitled to revoke its consent and have the owner undo the operation. In such cases, as discussed above, Natural England would have to compensate the owner for the cost of undoing the operation and for any loss that the owner incurs as a result of this abortion. But there is no compensation for the reduction of owner’s interest in the land. This rule should be changed and the owner must also be compensated for the reduction of their interest in the land. Apart from such rare cases, Natural England is doing a brilliant job overall. It purports to have given the owners and occupiers the freedom to manage their land in any manner as they choose. The land managers (farmers) are provided with some financial help in order to make it convenient for them to manage access. A farmer can apply for funding under the Access Management Grant Scheme in certain circumstances which are: If the access authority concerned has refused to enter the scheme If the farmer has the responsibility of managing substantial areas of new access land that meets the schemes priorities If offering a grant is economical. This will include consideration to the extent of the grant application and the administration costs The local context – it is to be considered whether the inclusion of the area in question would be particularly valuable in terms of the local access opportunity.28 Therefore, it can be concluded that proper, efficient and positive management is best way to handle any issue. It is always better to pay attention to the details of each case and then decide how the objective of preserving wildlife can be efficiently achieved. Efficient achievement refers to the fact that the rights of owners are also kept in close check while dealing with each problem. Natural England goes at great lengths to achieve this purpose. Where no convenient manner of managing an SSSI is found, Natural England’s last resort is to devise a new management scheme to deal with it. This shows the dedication of Natural England to preservation and protection of nature while caring about the rights of owners and occupiers. Hence, the legislation is working quite efficiently under the well-organized management of Natural England. References Ancient Monuments and Archaeological Areas Act 1979 (UK) Areas of Outstanding Natural Beauty. Natural England. Retreived 12/04/2014 from http://www.naturalengland.org.uk/ourwork/conservation/designations/aonb/default.aspx Countryside and Rights of Way Act 2000 (UK) Duties of landowners and occupiers of land. Natural England. Retrieved 12/04/2014 from http://www.naturalengland.org.uk/ourwork/access/rightsofway/prowresponsibility/landownerduties.aspx Environment Act 1995 (UK) Environmental Protection Act 1990 (UK) Land managers rights and responsibilities. Natural England. Retrieved 12/04/2014 from http://www.naturalengland.org.uk/images/land%20managers%20rights%20and%20responsibilities_tcm6-9796.pdf National Parks and Access to the Countryside Act 1949 (UK) Rodgers C., 2013, ‘The Law of Nature Conservation’ Oxford: United Kingdom p.95 Special Protection Areas. Natural England. Retrieved 12/04/2014 from http://www.naturalengland.org.uk/ourwork/conservation/designations/spa/default.aspx Wildlife and Countryside Act 1981 (UK) Wildlife and Countryside Act 1981 (UK) S 4 Wildlife and Countryside Act 1981 (UK) S 28(1) Wildlife and Countryside Act 1981 (UK) S 28(2b) Wildlife and Countryside Act 1981 (UK) S 28(6) Wildlife and Countryside Act 1981 (UK) S 28(8) Wildlife and Countryside Act 1981 (UK) S 29(1) Wildlife and Countryside Act 1981 (UK) S 29(6b) Wildlife and Countryside Act 1981 (UK) S 29(8) Wildlife and Countryside Act 1981 (UK) S 30(2) Wildlife and Countryside Act 1981 (UK) S 30(4b) Wildlife and Countryside Act 1981 (UK) S 31(1) Wildlife and Countryside Act 1981 (UK) S 31(4) Wildlife and Countryside Act 1981 (UK) S 31(5) Wildlife and Countryside Act 1981 (UK) S 32(2) Read More