Fourth Standing Committee
on Delegated Legislation
Wednesday 26 February 2003
[Miss Anne Widdecombe in the Chair]
Draft Code of Guidance on Sites
of Special Scientific Interest:
Encouraging Positive Partnerships
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Mr. Elliot Morley): I beg to move,
That the Committee has considered the draft Code of Guidance on Sites of Special Scientific Interest: Encouraging Positive Partnerships.
It is a pleasure, Miss Widdecombe, to be serving under your direction on the Committee.
The Government have a long-standing commitment to protecting biodiversity, as we saw in the Countryside and Rights of Way Act 2000, which was a landmark piece of legislation. The coherent network of designated sites remains vital to nature conservation and is a core element of a wider biodiversity strategy.
Sites of special scientific interest are at the heart of the system of designated conservation areas and they safeguard the best of England's wildlife and geology. More than 4,000 SSSIs in England, covering more than 1 million hectares of land, are currently designated. They comprise about 7.5 per cent. of England's total land area, and the sites can vary in size from half a hectare to many thousands of hectares. More than three quarters of the total area is of international importance. I would think that there are few Members who do not have an SSSI in their constituencies.
The concept of areas of special scientific interest was established in the National Parks and Access to the Countryside Act 1949—a revolutionary piece of legislation from the 1945–51 Labour Government. The key features of the modern regime for managing and protecting SSSIs were put in place under the Wildlife and Countryside Act 1981, which was also a very important piece of legislation. Far-reaching changes to the regime introduced by the Countryside and Rights of Way Act 2000 came into force for England and Wales.
The 2000 Act contains significant new provisions concerning the notification, protection and management of SSSIs. The changes were made to secure positive management of SSSIs and to ensure that there is robust protection for sites that is responsive to the wide range of threats that exist in modern society. The 1981 Act set out a requirement for a code to be prepared from time to time, containing advice, recommendations and information to guide those exercising functions relating to SSSIs and those who are affected by those functions.
The revised draft code before the Committee is designed to meet that requirement. It reflects the legislative changes and represents a significant
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enhancement of the previous code issued in 1982. Although there is a statutory requirement for the code, its content is advisory only and does not provide any additional basis for enforcement proceedings or prosecution or have any bearing on them. The code applies to England only, and is aimed at English Nature, local authorities, land agents, public bodies that exercise functions that impact on SSSIs, and corporate and individual owners and occupiers of SSSI land. A separate code is being prepared for Wales.
The draft code fulfils the section 33 requirements in seven important ways. First, it summarises and explains the regime now protecting SSSIs, taking into account the effect of the new legislation. Secondly, for those affected by exercise of functions and use of the provisions, it explains, in more accessible terms than the legislation, how the provisions for site notification, management and protection should now operate. Thirdly, it informs those parties of what they can expect in their dealing with English Nature concerning SSSI land. Fourthly, it advises them of the rights that they have in relation to having their views heard, or appealing against English Nature's decisions. Fifthly, it highlights the obligations on owners and occupiers that are designed to help protect the special interests of the site. Sixthly, it sets out the Government's expectations for English Nature, which is the primary body responsible for putting the legislation to good practical effect. Finally, it highlights the consultative obligations on public bodies whose actions may affect SSSIs and the positive statutory duty to protect and enhance SSSIs when they exercise their functions.
The draft code does not introduce any new burdens relating to SSSIs. It provides guidance within the context of the existing legislation. There was wide consultation on the draft code in August 2000 and again with key bodies in 2001. The consultation demonstrated that there is very good support for the code. Minor issues were raised and have been taken into account where possible.
To summarise, the code provides an explanation of SSSIs and why they are notified and important; information on English Nature and its role in respect of SSSIs, including the advice on which the Government expect it to work; guidance on the identification of SSSIs and the procedures for the notification and, in exceptional circumstances, denotification of SSSIs; and an explanation of and guidance on site management and protection provisions, including opportunities for owners and occupiers to enter into agreements with English Nature, procedures for securing consents to operations on an SSSI, rights of appeal against English Nature's decisions and English Nature's powers to ensure that special interest in a site is not lost. Information on the obligations of public bodies in the light of their new duties to conserve and enhance SSSIs is also included, and there is an explanation of the offences and penalties in the SSSI regime. The code also provides guidance on the wider public interest in SSSIs.
The Government have set a public service agreement target that 95 per cent. of SSSIs should be
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in a favourable condition by 2010. That is a very ambitious target, but I am glad to say that we are making good progress in achieving it. The code will contribute to the target by raising awareness of SSSIs among public bodies, landowners and other groups and by explaining clearly the powers and procedures associated with them.
Of course, achievement of the target will require a sustained level of commitment and action from many people and organisations within and beyond the Government structure. Nevertheless, the setting of targets for restoring SSSIs shows that we are serious in our commitment to biodiversity. The code will significantly help to establish a clear understanding of the basic legislative regime for protecting and enhancing our SSSIs, which are one of the most important vehicles that we have for protecting geological features and key areas of wildlife and biodiversity.
The code has received a broad welcome from the various groups that have seen it, such as landowners and occupiers, non-governmental organisations and statutory agencies and bodies. It sets out in a very clear way the partnership approach that is absolutely essential in managing SSSIs to get the maximum benefit for them, and it is a very effective framework for helping the Government achieve their target of putting in a good condition all the SSSIs that are still under pressure and suffering damage from a wide variety of sources. The code demonstrates our commitment to do that and to work with all the interested players in the areas of energy conservation and biodiversity. I am sure that all members of the Committee share the objectives of protecting valuable sites and enhancing the biodiversity of our country. I commend the code to the Committee.
Mr. Jonathan Sayeed (Mid-Bedfordshire): I reiterate the Minister's comments and welcome you to the Chair, Miss Widdecombe.
Proceedings such as this are part of the unglamorous but essential work that the Commons does in trying to devil out the detail and understand the effect of legislation. I begin with an apology to you, Miss Widdecombe, and to the Committee. I have many questions for the Minister. My apology is not for asking the questions, which are important, but for the fact that I have not found a way of making my comments exciting or, for those who are not interested in the subject, terribly interesting.
It would be hard for anyone committed to sustainable development and the policy drivers that it requires to object to the code of guidance, because it emphasises positive, cross-body management of our sites of special scientific interest. Indeed, the publication of the code is long overdue, not just because the context in which SSSIs are managed has changed, but also because the legislation protecting SSSIs has been radically strengthened by the Countryside and Rights of Way Act 2000, which came into force, in respect of SSSIs, on 31 January 2001.
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As the Minister said, there is indeed strong support for a statutory code to direct English Nature, owners, occupiers and those public bodies whose operations may affect SSSIs, and to explain to representative organisations, such as the National Farmers Union, the Country Land and Business Association and wildlife conservation groups, what can be expected of English Nature.
The emphasis of the code is, quite rightly, on conservation bodies engaging landowners and land managers in a dialogue and working out how best to manage SSSIs to maintain their special features. The code also helps to highlight environmental land management schemes of which landowners might take advantage. From the farming perspective, the NFU has welcomed the fact that the guidance instructs English Nature to use its new legal powers with discretion and only when necessary to secure the protection of SSSIs. However, the NFU has expressed concern that the requirement for English Nature to use the code as a basis for working with owners and occupiers will necessitate a reconsideration of English Nature's internal training, as well as agreement of new working practices with external partners such as the NFU.
Can we be assured that English Nature will have available enough skilled staff and associated resources to fulfil its new obligations? Will Ministers regularly review the agency's performance against the new code? Such questions may apply equally to local authorities, which must include policies for the protection and, where appropriate, enhancement of SSSIs in their local plans.
I will ask a couple of general questions on the code as a whole before I move on to more detailed considerations. First, why does the scope of the draft code of guidance exclude section 32 of the Wildlife and Countryside Act 1981 and the duties of Agriculture Ministers with respect to SSSIs? The section relates to the duties of Agriculture Ministers with respect to SSSIs and how the interests of those SSSIs should be addressed when considering farm capital grants, which is a matter that should be addressed by the code.
Secondly, what additional guidance will be forthcoming on how section 28 of the 1981 Act applies to commoners? Much of the code is relevant to commoners and I am surprised that where guidance is given relating to owners and occupiers, it does not read as including commoners. Experience has shown that this matter is particularly difficult, both for English Nature and commoners. Commoners may exercise a wide range of rights such as grazing rights in the New Forest or shellfish-collecting rights on the north Norfolk coast. It is far from clear from the draft code how those rights are affected by section 28 of the 1981 Act and what is expected both of English Nature and commoners, who more often than not are not the landowners of the SSSI.
With your forbearance, Miss Widdecombe, and that of the Committee, I will pose a number of more specific questions. I start with paragraphs 1 to 5, which are on the purpose of SSSIs. The inclusion of a purpose for SSSIs, and in particular the statement that they are of ''national'' importance, is welcome.
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However, given the implications of devolution, it would be helpful if some clarification were given about what ''national'' means. I accept that the Minister said in his opening remarks that the draft code deals with England alone and that a draft code for Wales will be prepared later. However, I think that a very precise definition would be useful, bearing in mind the way in which decisions on SSSIs are made, especially where they cross transnational boundaries.
Paragraphs 6 to 8 refer to English Nature. As the draft code states, English Nature is under a duty to have regard to the needs of agriculture and forestry and to the economic and social interests of rural areas. However, it also states that
''the management of SSSIs should reflect the general principles of sustainable development as set out in its strategy, A Better Quality of Life''
of 1999, and paragraph 8 of that strategy in particular. That strategy defined sustainable development not only in terms of conserving the environment but in terms of maintaining high and stable rates of economic growth and employment. The draft code, however, provides no clarification of how English Nature's duty to further the conservation and enhancement of SSSIs should be exercised in the light of the Government's definition of sustainable development. If there is a potential conflict between the duty to conserve an SSSI and the Government's definition of sustainable development, to which should English Nature give the greater weight?
Paragraphs 13 to 25 of the draft code deal with identifying and notifying SSSIs. I welcome the emphasis on a sound scientific basis for the identification and management of SSSIs, which is in line with the precautionary principle. However, although the role of the Joint Nature Conservation Committee is highlighted, there is no clarification of what level of common standards is to be maintained. That is important, given that the identification of SSSIs is to be a devolved matter. Can the Minister confirm that it will be for the JNCC to maintain common standards for the identification of SSSIs, which will apply equally through England, Wales, Scotland and Northern Ireland?
Can the Minister also confirm that although there is no legal requirement to do so, English Nature will be expected to provide copies of statements relating to SSSI management that have been consulted on under paragraph 6 of schedule 11 of the Countryside and Rights of Way Act 2000 to anyone who requests the opportunity to comment on them?
The development of short, clear statements of English Nature's views on the management of SSSIs is an important addition to SSSI notification. The commitment that every owner and occupier will have such a statement relating to their land in an SSSI by January 2006 is most welcome. However, although the later section of the code on managing SSSIs discusses management schemes, management agreements and management notices, none of those meets the definition of the management statement. Can the Minister clarify who will draw up those statements,
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how much weight will be applied to them in later discussions, and how flexible they will be in the light of changing contexts?
There is an important difference between the way in which statements are to be developed for new and existing SSSIs. For new sites, English Nature is required to advertise the intention to notify a site, including the statement about site management. It must subsequently take account of any views expressed not only by the landowners but by other interested parties. However, for existing sites, English Nature is apparently required to consult only owners and occupiers of SSSIs. There is no requirement on it to advertise the statement and allow other interested parties to comment. That is despite the fact that any changes to existing notifications made under section 28B or 28C allow other interested parties to comment on changes to SSSIs. Can the Minister clarify the precise difference between section 28B, on the notification of additional land, and section 28C, on the enlargement of an SSSI?
Paragraph 21 of the draft code is on English Nature's powers to vary SSSI notification, which include varying the reasons for which an SSSI is notified, the list of operations likely to damage the site under section 28A, the notification of additional land under section 28B and the enlargement of SSSIs under section 28C. It appears that section 28B allows additional areas to be added to an existing SSSI where the additional area is of the same interest as the existing site. In other words, more areas of rough grassland might be added to existing lowland wet grassland. However, section 28C appears to allow the addition of areas that are of a different interest, such as the addition of heathland adjacent to an existing lowland wet grassland SSSI. In both cases, the area to be added does not have to merit SSSI notification in its own right. Can the Minister tell me whether that interpretation is correct?
Can the Minister assure us that the powers to denotify SSSIs will not be exercised until English Nature has consulted and published guidance on the use of that power? Will he encourage English Nature to look for opportunities to restore sites that have lost their interest, even if that means restoring them to a different interest? For example, a peat land SSSI may lose its interest because of extraction and drainage but it may be possible to restore it to a new interest, such as heathland.
Paragraphs 25 to 36 are on the continuing management of SSSIs. Can the Minister clarify what the Government's target for SSSI condition is, and whether that has changed since the publication of the White Paper ''Our Countryside: the Future—A Fair Deal for Rural England'' in 2000? The clear commitment there to ensuring that 95 per cent. of SSSIs by area should be in favourable condition by 2010 is good. However, this document says that the target is that 95 per cent. of SSSIs should be
''in favourable or unfavourable but recovering condition''.
That seems to be a considerable watering down of the target previously published.
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Paragraph 10.2.1 in chapter 10 of the White Paper clearly stated:
''We have set ourselves an ambitious target of ensuring that 95 per cent. of the nationally important sites (SSSIs) in England are in favourable condition by March 2010.''
There is no caveat there about ''unfavourable but recovering condition''. Will the Government take this opportunity to reaffirm their original commitment, while at the same time telling us how they plan to meet the 2010 target and whether English Nature will be provided with the necessary resources to achieve that?
Can the Minister confirm that although reaching agreement on the content of a management scheme and any modifications may be desirable, it is not a requirement of section 28J of the 1981 Act and that, where agreement cannot be reached, English Nature is empowered to serve management schemes on owners and occupiers with or without modification?
My next series of questions refers to the applications for consent for operations in paragraphs 37 to 60. Can the Minister tell us when English Nature will introduce the appropriate byelaws to replace the protection previously afforded to 22 SSSIs that was lost when section 29 of the Wildlife and Countryside Act 1981 was repealed? Paragraphs 59 and 60 of the draft code refer to the new byelaw-making powers available to English Nature. When the Countryside and Rights of Way Act 2000 came into force, 22 nature conservation orders existed in England which prevented a range of damaging activities such as off-road motor cycling.
The Government argued that the new offence of intentional and reckless damage provided by section 28P(6) of the 1981 Act effectively replaced the need for nature conservation orders. However, the Royal Society for the Protection of Birds and others successfully argued that additional protection measures would be needed and, as a result, section 28R was introduced giving English Nature the power to introduce byelaws to control damaging activities. Despite that, I am not aware of any byelaws having been introduced to protect the 22 sites that lost the protection of nature conservation orders.
Moving on to obligations of public bodies to which paragraphs 73 to 87 refer, I welcome the new duty imposed on all public bodies by section 28G of the Wildlife and Countryside Act 1981 to further the conservation and enhancement of SSSIs. However, I suggest to the Minister that more clarification is needed of how a balance is to be struck if that conservation duty conflicts with other duties on the public body. In the Committee considering the Countryside and Rights of Way Bill, the Minister for the Environment said:
''We expect public bodies to pay full regard to the new duty that we are imposing on them, and that the duty will be rigorous . . . I expect the nature conservation interest to be paramount when there is a conflict''.—[Official Report, Standing Committee B, 16 May 2000; c. 684.]
Can the Minister confirm that it is still the Government's intention that the duty imposed on authorities by section 28G will be rigorous and that when there are conflicts between that duty and other
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statutory duties on those authorities, nature conservation interests will be paramount?
Can the Minister also confirm that, although the draft code does not explicitly say so, public bodies should consult English Nature whenever they intend to carry out, or give consent for others to carry out, activities listed in the SSSI notification that are likely to damage the site and any activities that may take place off the site but have an effect on it? The lack of cross-reference to operations listed in the citation means that a listed ''operation likely to damage'' could be carried out without the public body consulting English Nature if, in the public body's opinion, it is unlikely to damage the site. Can the Minister provide further clarification of what is expected of public bodies that unavoidably damage an SSSI and are, for whatever reason, unable to restore the site to its former condition?
Can the Minister confirm that it is Government policy that when public bodies, including English Nature, propose to carry out or authorise works on land which they do not own, the owners and occupiers of that land will be notified in advance of their intentions? This is a sensitive issue and was considered during the Committee stage of the Countryside and Rights of Way Bill when the Minister for the Environment stated:
''We expect public bodies, as a matter of policy and good practice, to notify owners and occupiers of any land, regardless of whether it contains special interest features, or whether operations are likely to be damaging''.—[Official Report, Standing Committee B, 16 May 2000; c. 684–88.]
Can the Minister confirm that when the draft code refers to a requirement to consider advice from English Nature, that amounts to having to take account of that advice?
Finally, I have a couple of questions on the wider public interest and specifically paragraphs 101 to 106. The draft code does not give any guidance to English Nature regarding the circumstances when closure of access may be appropriate or necessary. I presume that such closures are likely to be appropriate when access is likely to damage an SSSI interest. Can the Minister provide further guidance on when restrictions on access, or even exclusions, should be considered appropriate in relation to SSSIs and when English Nature should be expected to provide advice to that effect?
I have posed a number of questions to the Minister. If he is unable to answer them now, I would be grateful if he would write to all Committee members giving the answers. I do not regret having put a series of questions—that is my job. I apologise to the Committee, however, if they have been rather more lengthy, tortuous or boring than others could have made them.