|Countryside And Rights Of Way Bill - continued||House of Commons|
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Clauses 56-57: Removal of obstructions from highways
106. Clause 56 introduces two new sections into the Highways Act 1980 in relation to the obstruction of rights of way. New section 130A enables any person to serve notice on a local highway authority requiring it to secure the removal of certain types of obstruction from a footpath, bridleway, restricted byway, or byway open to all traffic for which it is responsible. Subsection (3) applies the new provisions to obstructions which are structures, things deposited on the highway which are causing a nuisance, and overhanging vegetation. It also gives a power to prescribe by regulation other types of obstruction to which the provisions should apply.
107. Subsection (4) excludes overall certain types of obstructions from the provisions. These include those types of obstructions for which an order under section 56 of the Highways Act 1980 can be obtained - in effect those obstructions that consist of disrepair.
108. Subsection (5) requires a highway authority on which a notice has been served to respond stating what action it intends to take over the obstruction. It also contains provisions requiring the highway authority to inform the person responsible for the obstruction about the notice.
109. New section 130B(1) allows the person who served the notice on the highway authority to seek a magistrates' court order if they are not satisfied that the obstruction has been removed within 2 months. The person must give the highway authority 5 days notice of their intention to apply to the court.
110. Subsections (2) and (3) empower a magistrates' court to make an order requiring the highway authority to take action to secure removal of the obstruction. Subsection (4) provides a defence for the authority if it shows it has no duty to remove the obstruction under section 130(3) of the Highways Act 1980 or it shows that it has any necessary arrangements in hand.
111. Clause 57 introduces a further provision into the Highways Act 1980. It will empower a magistrates' court on conviction of a person for the offence under section 137 of the Act (wilful obstruction of a highway) to order that person to remove the obstruction. This may be additional to, or instead of, a fine. Under the new provision, failure to comply with an order (without reasonable excuse) is an offence punishable by a fine up to level 5 on the standard scale (currently £5000).
Clauses 58-61: Public Rights of Way and Road Traffic Miscellaneous
112. Clause 58 amends the provisions in the Road Traffic Regulation Act 1984 governing the circumstances in which traffic authorities may make traffic regulation orders.
113. Section 22 of the 1984 Act gives traffic authorities a power to regulate traffic for the purpose of conserving or enhancing the natural beauty of the area, or of affording better opportunities for the public to enjoy the amenities of the area. The power is restricted to roads in England and Wales which are both outside Greater London and in or near certain designated areas, for example National Parks and Areas of Outstanding Natural Beauty. Clause 58 ensures that the power will apply similarly to all areas designated as Sites of Special Scientific Interest, and brings Greater London within the scope of the statute.
114. Clause 58 also introduces new section 22A into the 1984 Act. The new section enables traffic authorities to make orders to control vehicular traffic on unclassified roads and byways throughout England and Wales for the purposes of conserving or enhancing the natural beauty of the area. It is made explicit that "conservation of natural beauty" in the context of both section 22 and new section 22A, includes the conservation of flora, fauna and physical features of the landscape.
115. Clause 59 introduces Schedule 8. Schedule 8 amends section 34 of the Road Traffic Act 1988, which prohibits the driving of motor vehicles, without lawful authority, elsewhere than on roads. The offence in section 34 is extended to cover mechanically propelled vehicles, such as scrambler bikes and quad bikes, which currently may not fall within the definition of "motor vehicle", to which the current offence relates, because they may not be intended or adapted for use on roads. The offence will not extend to invalid carriages, mechanically propelled vehicles controlled by pedestrians used for cutting grass and electrically assisted pedal cycles.
116. Clause 60 amends section 147 of the Highways Act 1980 so that local authorities when authorising the erecting of stiles, gates or other works on footpaths or bridleways must have regard to the needs of people with mobility problems. It provides for the Secretary of State and the National Assembly for Wales to issue guidance on how the powers to authorise works are to be exercised.
117. Clause 61 provides for the Secretary of State and the National Assembly for Wales to make regulations requiring local highway authorities to publish reports on the performance of their functions relating to rights of way. An example might be a report on the implementation of its rights of way improvement plans. The regulations may prescribe what the reports should cover and how they should be published.
PART III NATURE CONSERVATION AND WILDLIFE PROTECTION
118. Part III of the Bill gives greater protection to wildlife and natural features by improving protection for Sites of Special Scientific Interest (SSSIs) in England and Wales and the enforcement of wildlife legislation.
119. The provisions enable the conservation agencies (the Nature Conservancy Council for England and the Countryside Council for Wales) to impose permanent restrictions in place of the present temporary 4 month restrictions to prevent damaging operations on Sites of Special Scientific Interest ('SSSIs') in England and Wales. There will also be a power for the conservation agencies to secure the management of an SSSI. The Bill improves procedures for notification and denotification of Sites of Special Scientific Interest. The Bill also gives various rights of appeal to owners and occupiers of land who are affected by its provisions.
120. The Bill increases the agencies' powers of entry to land and extends powers of compulsory purchase. There are increased penalties for damage to an SSSI, by owners and occupiers and by other persons.
121. The Bill places new duties on statutory undertakers and certain public bodies in respect of SSSIs and imposes restrictions on them when carrying out or authorising activities which affect an SSSI.
122. Sites of Special Scientific Interest were first introduced in legislation by s.23 of the National Parks and Access to the Countryside Act 1949, which required them to be notified to the local planning authority. A system of controls was introduced by the current Wildlife and Countryside Act 1981.
123. Under s.28 of the 1981 Act, SSSIs are established by notification by the conservation agencies. Owners and occupiers are then required to notify the agency if they intend to carry out an operation on a site which is likely to damage the features of special interest (these operations are listed by the agency when notifying the site). The agency may consent to the work, or has 4 months to negotiate a management agreement for the land (including financial payments). If agreement is not reached at the end of the 4 month period (and if this period is not extended by agreement or by a nature conservation order, where appropriate, under s.29), the owner or occupier may undertake the proposed operation. The 1981 Act does not enable the conservation agencies to require owners and occupiers to manage an SSSI for its nature conservation interest.
124. Proposals for strengthening the legislation were published in Sites of Special Scientific Interest - Better protection and management8. Over 550 responses were received, generally in support of the proposals. Following consideration of the responses to consultation, a framework document was published setting out proposals for legislation9. This Bill gives effect to those proposals.
Commentary on clauses
125. Clause 62 introduces Schedule 9, which amends Pt II of the Wildlife and Countryside Act 1981 ("the 1981 Act") to improve the protection of sites of special scientific interest (SSSIs). Schedule 9 is explained in more detail at paragraphs 130 to 147 below.
126. Clause 63. The 1981 Act provisions relating to SSSIs apply to England, Wales and Scotland while the amendments made to those provisions by this Bill will apply only to England and Wales (SSSIs are a devolved matter). This clause introduces Schedule 10, which makes the necessary consequential amendments in relation to provisions which will in future apply only in Scotland.
127. Clause 64 imposes on the Secretary of State a duty to notify the conservation agencies of sites designated under the 1971 Ramsar Convention on Wetlands of International Importance (under this Convention, adopted at Ramsar in Iran, the United Kingdom is required to designate wetlands of international importance especially in relation to waterfowl, and generally to promote the wise use of wetlands).
128. Clause 65. Limestone pavements are rare and exceptional areas of fissured limestone. They are protected under section 34 of the 1981 Act which enables orders to be made to prevent the limestone from being disturbed or removed. This clause amends the fines for damage to limestone pavements, to match increased penalties that may be imposed for damaging SSSIs.
129. Clause 66 amends section 51 of the 1981 Act which provides for powers of entry for giving proper effect to the nature conservation provisions in the Act. This clause extends the conservation agencies' powers of entry onto land for a range of specified purposes. These include to assess whether the land should be notified as an SSSI, to formulate a scheme for the management of the land in order to conserve its special features, to assess the condition of the features on the site, and to ascertain whether an offence under the SSSI provisions of the 1981 Act has been committed. Entry to the land may be by vehicle or boat, and the person entering the land may take equipment or materials with him.
Schedule 9 - Sites of Special Scientific Interest
130. Paragraph 1 of Schedule 9 replaces s28 of the Wildlife and Countryside Act 1981 with new sections 28 to 28M inclusive.
131. New Section 28 revises procedures for notifying SSSIs. The measures include: affirming the duty of the conservation agencies to notify land of special interest; setting out the procedures and timetables to be followed (including the opportunity for representations to be made to and considered by the agencies) before a notification can be confirmed with or without modification; requiring notification to owners and occupiers (that notification to include a list of the operations likely to damage the features making the site one of special interest), the local planning authority, the Secretary of State; the notification to be published in a local newspaper. The notification should also include a statement of the conservation agencies' views about the appropriate management of the land. Paragraph 4(3) of Schedule 9 amends s.52 of the 1981 Act and provides that "occupier" include commoners, defined in the section as persons with rights of common .
132. Section 28A enables the conservation agencies to vary the matters specified in the notification, other than the area of land concerned, at any time after confirmation. The agency must give notice to the owners and occupiers of the land affected, who may make representations. The amended notification may then be withdrawn or confirmed (with or without modifications).
133. Section 28B provides a power for conservation agencies to denotify all or any part of an SSSI if the features making the site one of special interest no longer exist (or no longer exist in that part of the SSSI). Where the power is to be exercised the agency must notify, amongst others, owners and occupiers and advertise the fact in a local newspaper; representations may be made to the conservation agency and the agency may then withdraw or confirm (with or without modifications) the denotification. If they do neither, the proposal to de-notify will lapse after nine months. The land will continue to be protected until the de-notification has been confirmed.
134. Section 28C provides that the owner or occupier of an SSSI shall not carry out any operation listed in the s.28 notification as likely to damage the site unless -
(1) notice is given to the conservation agency of a proposal to carry out the operations, and
(2) the agency give their consent or the works are carried out under the terms of an agreement with the agency, or under a management scheme or notice.
Consent may be granted subject to conditions and may be withdrawn or modified.
This section does not apply where the owner or occupier is a public body (defined under section 28E) carrying out its functions.
135. Section 28D provides that any person who has been refused consent (this includes a deemed refusal where after 4 months the agency has neither granted nor refused consent) or had it granted subject to conditions or holds a consent which has been modified or withdrawn, may appeal. The appeal must be made within 2 months of the decision or failure to decide, to the Secretary of State or the National Assembly for Wales in Wales, who may cause a hearing or local inquiry to be held into the appeal. The Secretary of State and National Assembly for Wales may make regulations specifying the procedures for appeals. There is power to award costs of the proceedings.
136. Section 28E imposes a duty on public bodies in exercising their functions to take reasonable steps, consistent with the proper exercise of those functions, to further the conservation and enhancement of the special features on an SSSI. This applies where the public body is exercising its functions. Public bodies, referred to in the Bill as section 28E authorities, are defined in subsection (3) to include Ministers, Government Departments, the National Assembly for Wales, local authorities and statutory undertakers (whether in the public sector, or a privatised utility) and the holders of certain other offices.
137. Section 28F requires the public body to notify the conservation agency when they propose to carry out operations in the exercise of their functions, which are likely to damage the features of special interest of an SSSI. This applies equally to works outside an SSSI, which may affect that SSSI. The conservation agency may refuse its assent, or assent to the operation (with or without conditions). Where assent is refused, or the conditions are not acceptable, the public body may proceed with the works, providing that they give the agency not less than 28 days notice of the start of the operation. That notice must state how the body has taken into account any advice which the agency has given. It is a requirement that any such operations are carried out so as to cause as little damage as is reasonably practicable.
138. Section 28G applies where the authority has powers to grant permissions, including authorisations or consents, for other parties to carry out operations (whether on or outside an SSSI) which are likely to damage the SSSI. Before granting any such permission they must give the conservation agency not less than 28 days notice. If the authority intends to grant permission against the advice of the agency, they must notify the agency and the permission must allow 21 days before operations may commence.
139. Section 28H sets out new provisions for Management Schemes, which may be formulated by the conservation agencies. A management scheme will set out measures for conserving or restoring the features of the land which make it a site of special scientific interest. The conservation agency must consult the owners and occupiers of the land about a proposed management scheme. The agency may then serve notice of the proposed scheme on owners and occupiers who may make representations. Within 9 months, the agency must confirm (with or without modifications) or withdraw the proposed scheme. The agency may cancel or withdraw a scheme at any time.
140. Section 28I enables a conservation agency to serve a management notice on the owner or occupier where (1) the agency has issued a management scheme which is not being implemented, and as a result the features which make the land of special interest are being inadequately conserved or restored, and (2) the agency has been unable to conclude a management agreement, on terms appearing to it to be reasonable, with the owner or occupier. A management notice is a notice requiring specified works (which it is reasonable to require to ensure the land is managed in accordance with the management scheme) to be carried out on the site. Section 28K(2) provides that the conservation agency may make payments for the costs of this work. They may also enter the land and carry out the works themselves, if the notice is not complied with, and may charge the costs to the owner or occupier.
141. Section 28J enables any person who has been served with a management notice, to appeal against it to the Secretary of State or the National Assembly for Wales as appropriate. Notices may be quashed, varied or confirmed. Procedures for appeals will be set out in regulations. There are provisions for hearings or local inquiries as in s.28D above.
142. Section 28K provides that the conservation agencies may make payments to an owner or occupier of land in relation to which a management scheme is in force. If they withdraw or modify an existing consent to carrying out operations, they must offer a payment to an owner or occupier if he suffers loss as a result. The amount of payments will be determined in accordance with guidance given and published by the Secretary of State and the National Assembly for Wales.
143. Section 28L. This clause gives the conservation agencies a compulsory purchase power in relation to land notified as an SSSI (additional to that in section 17 of the National Parks and Access to the Countryside Act 1949 relating to nature reserves). This new power may be exercised where the agencies cannot secure an agreement for the management of a SSSI or where the terms of such an agreement have been breached in such a way that the land is not being managed satisfactorily. The agency may then either manage the land or dispose of it to ensure its future management.
144. Section 28M provides the penalties that may be imposed on an owner or occupier causing or permitting damaging operations, contrary to s.28C(1), without reasonable excuse. A public body, as defined in section 28E, which commits an offence is subject to the same penalty. There is to be a fine not exceeding £20,000 in the magistrate's court or an unlimited fine in the Crown Court. A reasonable excuse will be that a planning permission (granted on an application) is held for the works, or that the works were necessary as an emergency measure. Subsection (5) makes it an offence for any person intentionally or recklessly to damage or destroy the features which make a site of special interest provided he knew that what was damaged or destroyed lay within the SSSI. Failure to comply with a management notice is an offence under subsection (6) and attracts the statutory maximum fine or on indictment an unlimited fine. Proceedings for an offence under this section may only be taken by the conservation agency, unless the Director of Public Prosecutions agrees otherwise.
145. Paragraph 2 of Schedule 9 repeals section 29 and section 30 of the 1981 Act which allow the conservation agencies to make a Nature Conservation Order and provide for associated compensation. These powers are no longer required as Clause 28C (in paragraph 1 of Schedule 6) gives the conservation agencies the power to refuse consent permanently.
146. Paragraph 3 of Schedule 9 enables the court to order restoration of a SSSI where a person has been convicted of damaging or destroying it, or where a public body (as defined by s.28E) has been convicted of an offence under s.28M(3).
147. Paragraph 5 provides for a new Schedule 10 in the 1981 Act. The Schedule contains provisions relating to the appointment and powers of persons appointed under s.28D(8) and 28J(10) to determine appeals.
148. This Schedule contains consequential amendments.
PROVISIONS FOR THE ENFORCEMENT OF WILDLIFE LEGISLATION
149. This section of the Bill introduces new provisions for the enforcement of the provisions of the Wildlife and Countryside Act 1981 which protect and conserve certain wildlife species in England and Wales.
150. In response to concern about the enforcement of those provisions, the then Secretary of State established in 1994 a working group to consider the scope for improvements in the enforcement of wildlife species controls. The working group reported in 1995. Further to this report the Secretary of State established a further group to consider changes to wildlife enforcement legislation. The group submitted its recommendations in 1997. Following consultations, the majority of the recommendations were accepted and form the basis of the changes in the Bill.
151. All wild birds, some animals and some plants are protected by the 1981 Act. Some controls protect specimens in their natural habitat, for example it is an offence to injure, kill or take such specimens from the wild. Further controls ban the sale (and related activities) of these specimens unless a licence has been obtained. Another layer of protection is provided for certain bird species, which must be ringed and registered with the DETR if held in captivity.
152. The Bill will not affect these controls significantly or change the species to which they apply.
153. The measures in the Bill will increase the enforcement powers under the 1981 Act, and will increase the sentencing options available to the Courts.
Commentary on clauses
154. Clause 67 provides that in future Regulations made to implement the EU Habitats Directive (Council Directive 92/43/EEC) or the EU Wildlife Trade Regulation (Council Regulation 338/97 which amongst other things implements the Convention on International Trade in Endangered Species of Wild Fauna and Flora) will be able to create offences, which on summary conviction will attract a custodial sentence of up to six months.
155. This disapplies the European Communities Act 1972, which provides for such offences to attract a custodial sentence of up to three months. It will mean that the penalties for wildlife offences across these pieces of legislation can be consistent with those now being introduced into the Wildlife and Countryside Act 1981.
156. Paragraph 1 provides further protection for certain birds and animals. It is already an offence to intentionally disturb birds listed on Schedule 1 (mainly the more rare breeding birds), and animals listed on Schedule 5. It has proved difficult to prosecute the offence, mainly because of the need to prove that the defendant went with the objective of causing disturbance. By adding the lesser test of reckless disturbance, a prosecutor will have to show that a person either deliberately took an unacceptable risk or failed to notice an obvious risk and thereby caused disturbance.
157. Reckless disturbance in the context of interfering with a badger sett is an offence under section 3 of the Protection of Badgers Act 1992.
158. Paragraph 2 removes the reference to 'persons registered with the Secretary of State' from section 6. This and the repeal of related sections will remove the statutory framework for the now discontinued Registered Sellers of Dead Birds Scheme. On 20 July 1994 Ministers announced their intention to replace the scheme with a general licence (which is issued under section 16 of the Act and allows actions which would otherwise be unlawful under various sections of the Act) and following a period of consultation, such a licence was issued on 21 December 1994.
159. Paragraph 3 provides that for all offences under Part 1 of the Act, justices of the peace will be able to grant police officers search warrants to enter premises, where they are satisfied that there are reasonable grounds for suspecting that an offence has been committed, and that evidence will be found on those premises.
160. This extends the provisions in the Act, which do not provide for search warrants to be issued for offences which would not attract a 'special penalty' and certain other offences. As an example, the Act provides for a search warrant for offences against a redwing (listed on Schedule 1), but not a mistle thrush (not so listed).
161. Paragraph 4 introduces two new sections into the 1981 Act. Section 19ZA relates to the powers and role of wildlife inspectors; section 19ZB sets out the powers to take samples for DNA analysis.
162. At present sections 6,7 and 14 provide powers of entry for wildlife inspectors (newly defined as a person authorised by the Secretary of State in section 19ZA(1)). The first two include a power to enter dwellings but the latter only relates to "land" Section 19ZA replaces those powers and broadens them.
163. Inspectors will be empowered to enter premises in order to ascertain whether an offence related to a sale, bird registration or release into the wild has been or is being committed. In general this power will not extend to dwellings. However inspectors will be able to enter dwellings which are occupied by people who have:
164. This power of entry will be subject to safeguards provided in a non-statutory Code of Practice which will set out how inspections will be exercised.
165. If the specimen which is the subject of the application or registration is not kept at the applicant's address, the inspector can require it to be presented for inspection - wherever it is held. People who have live specimens in their possession or control will be required to assist the Inspector so that he can examine the specimen.
166. It will be an offence to obstruct an inspector when he is exercising these powers, or to fail to assist him without reasonable cause, and a penalty of up to £5,000 (Level 5) will apply.
167. Section 19ZB introduces powers for wildlife inspectors or constables to require blood or tissue samples for DNA analysis. The powers in subsections (1) and (2) of the section will be exercisable by inspectors in certain circumstances, and by constables who are on premises under the authority of a search warrant.
168. Samples may be taken to determine the identity or ancestry of a specimen so long as it will cause no lasting harm to that specimen. For birds and animals, the sample will always be taken by a veterinary surgeon.
169. To prove ancestry, it will be necessary to take samples from specimens other than the specimens subject to the licence or registration or connected with the reason for the issue of a search warrant. Subsection (3) of the section provides for inspectors and constables to require any person (including the applicant) to make other specimens available for sampling where that is likely to confirm or disprove the identity or ancestry of the subject specimen, as well as from the subject specimen itself.
170. The Control of Trade in Endangered Species (Enforcement) Regulations 1997 already contain powers for inspectors to take samples from species listed in the Annexes to the EC Wildlife Trade Regulation (No. 338/97) in certain circumstances.
171. It will be an offence to obstruct an inspector who is exercising his power to require a sample; or refuse to make a specimen available or assist an Inspector or constable without reasonable cause, and a penalty of up to £5,000 (Level 5) will apply.
172. Paragraph 5 provides that for all offences under Part 1 of the 1981 Act, prosecutions are able to be brought within a period of six months from the date on which sufficient evidence of the offence became available to the prosecutor, subject to a limit of two years of the commission of the offence.
173. The current legislation already provides for some offences to be subject to this time limit, but for others, prosecution must take place within six months of the commission of the offence. These different time limits cause anomalies, for example the time limit for a prosecution for killing a bird is different to that for injuring it. In cases where the results of DNA analysis are important, the longer time period will be useful because the results often take some weeks to obtain.
174. Paragraph 6 introduces custodial sentences into the 1981 Act. At present fines ranging from Level 3 (£1,000) to Level 5 (£5,000) on the standard scale can be imposed. The change is that fines of up to Level 5 and/or the possibility of a custodial sentence of up to six months will be available for all Part 1 offences. For that reason the references to "special penalties" have been removed from the Act.
175. For releases to the wild, at present a fine up to the statutory maximum (£5,000) in the magistrates' court and an unlimited fine in the Crown Court, is available. The change is that magistrates will have the possibility of imposing a custodial sentence of up to six months, and in the Crown Court, a custodial sentence of up to two years will be possible.
176. The exception is offences of obstruction of a wildlife inspector. Such offences will be subject to a fine only, of up to Level 5, except where the obstruction is in relation to releases to the wild where a fine of up to the statutory maximum (£5,000) can be imposed in the magistrates' court, and an unlimited fine in the Crown Court.
177. Most other wildlife legislation, including the Protection of Animals Act 1911, the Protection of Badgers Act 1992, the Wild Mammals (Protection) Act 1996 and the Control of Trade in Endangered Species (Enforcement) Regulations 1997 already provide the possibility of a custodial sentence.
178. Paragraphs 7 and 8 contain consequential amendments.
8 Published by the Department of the Environment, Transport and the Regions, September 1998. Available free of charge from: DETR Free literature, PO Box 236, Wetherby LS23 7NB. Tel. 0870 1226236, Fax. 0870 1226237
9 Sites of Special Scientific Interest: better protection and management. The Government's Framework for Action. Published by the Department of the Environment, Transport and the Regions, August 1999. Available free of charge from: DETR Free literature, PO Box 236, Wetherby LS23 7NB. Tel. 0870 1226236, Fax. 0870 1226237
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