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Session 2005 - 06|
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|Natural Environment and Rural Communities Bill|
These notes refer to the Natural Environment and Rural Communities Bill as introduced in the House of Commons on 19th May 2005 [Bill 3]
NATURAL ENVIRONMENT AND RURAL COMMUNITIES BILL
1. These explanatory notes relate to the Natural Environment and Rural Communities Bill as introduced in the House of Commons on 19th May 2005. They have been prepared by the Department for Environment, Food and Rural Affairs ("Defra") in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the contents of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. In these explanatory notes the Natural Environment and Rural Communities Bill is simply referred to as the Bill.
4. The Bill is intended to implement key aspects of the Government's Rural Strategy published in July 2004. It establishes an independent integrated agency - Natural England - responsible for conserving, enhancing and managing England's natural environment for the benefit of current and future generations. Natural England brings together the functions of English Nature, and certain functions currently performed by the Countryside Agency and the Rural Development Service ("the RDS", a Defra Directorate). Natural England will work in close partnership with other organisations that have a major role in relation to the natural environment, in particular the Environment Agency, the Forestry Commission and English Heritage.
[Bill 3EN] 54/1
5. The Bill also establishes the Commission for Rural Communities (the "Commission"), which will take over other functions of the Countryside Agency. This new body will be a representative for rural England, especially for people suffering from social disadvantage and areas suffering from economic under-performance. It will provide information, advice, monitoring and reporting to Government and others on issues and policies affecting rural needs.
6. The Bill also reconstitutes the Joint Nature Conservation Committee (the "joint committee") and renames and reconstitutes the Inland Waterways Amenity Advisory Council (which becomes the Inland Waterways Advisory Council).
7. In line with the 2004 Rural Strategy, the Bill extends both the Secretary of State's funding powers for functions within Defra's remit, and the ability to authorise other bodies to carry out those functions. Public bodies for which Defra is responsible are given the power to enter agreements to enable other bodies to perform functions on their behalf. These various powers are intended to be used to simplify and devolve delivery structures, and to improve their effectiveness, efficiency and respect for principles of sustainability.
8. The Bill also makes provision in respect of biodiversity, pesticides harmful to wildlife and the protection of birds, and in respect of invasive non-native species. It alters enforcement powers in connection with wildlife protection, and extends time limits for prosecuting certain wildlife offences. It addresses a small number of gaps and uncertainties which have been identified in relation to the law on Sites of Special Scientific Interest. And it amends the duties, functions and constitution of National Park authorities, the functions of the Broads Authority, and the law on rights of way.
9. The Government set out its proposals for the countryside in the Rural White Paper, published in November 2000. The White Paper was published at a time of rapid change for rural areas, and the foot and mouth outbreak started less than three months after publication.
10. Following the creation of the Department for Environment, Food and Rural Affairs in June 2001, the Secretary of State for Environment, Food and Rural Affairs initiated a number of steps designed to improve the focus and delivery of rural policy. These were:
11. The Government published the full review of the Rural White Paper in January 2004, alongside a report called "Social and Economic Change and Diversity in Rural England" whose purpose was to develop the evidence base for rural policy.
12. The review by Lord Haskins was published in November 2003, having taken evidence from 350 organisations, authorities and groups and received comments from nearly 300 individual recipients of rural policy delivery. The Government gave its initial response to Lord Haskins' report in November 2003, agreeing with Lord Haskins that Defra's delivery structures are confusing and too bureaucratic and centralised, and accepting the thrust of his recommendations. Lord Haskins' review and the Government's response are available on the Defra website at: www.defra.gov.uk/rural.
13. The Government published its Rural Strategy in July 2004. This contained its detailed response to Lord Haskins' recommendations. It is available on the Defra website at: http://www.defra.gov.uk/rural/strategy.
14. Meanwhile, since the publication of the Rural White Paper in 2000, there have also been wider policy papers and reforms that are important in relation to rural policy and delivery. In particular, these include:
15. In its 2004 Rural Strategy, the Government made a commitment to publish a draft Bill in Spring 2005 to make the statutory changes required by the Strategy. The draft Bill, published on 10 February 2005, gave effect to this commitment. The Environment Food and Rural Affairs Select Committee carried out pre-legislative scrutiny of the draft Bill following its publication. The Select Committee published its report on the Rural Strategy and the draft Bill on 26 March. This report is available on the UK Parliament's website at: http://www.parliament.uk/efracom/.
16. The Government's response to the Select Committee's report is being published in parallel the Bill and will be available on Defra's website: www.defra.gov.uk/rural.
17. Finally, in relation to rights of way, the Bill's provisions also respond to a recent judgment by the House of Lords (Bakewell Management Ltd v Brandwood  UKHL 14,  2 AC 519) regarding the creation of rights of way for mechanically propelled vehicles. In that case the House of Lords found that a right of way may arise where mechanically propelled vehicles have used a route for a 20-year period, even where that use is illegal. This Bill alters the law so that illegal use of this kind will not create public rights of way.
Part 1: Natural England and the Commission for Rural Communities
18. Part 1 of and Schedules 1 to 3 to the Bill establish two new independent statutory non-departmental public bodies ("NDPBs"), Natural England and the Commission for Rural Communities ("the Commission"). They also provide for the dissolution of English Nature and the Countryside Agency.
19. Provision is made for the transfer of property, rights and liabilities in connection with the dissolution of English Nature and the Countryside Agency. This Part also confers power to make transfers in future between Natural England, the Commission and a Minister of the Crown. This power is exercisable for the efficient management of property, rights and liabilities.
Part 2: Nature conservation in the UK
20. Part 2 and Schedule 4 reconstitute the Joint Nature Conservation Committee (in these notes referred to as "the joint committee") as a UK-wide organisation, and make other changes to its remit.
Part 3: Wildlife etc.
21. This Part of the Bill makes provision in respect of biodiversity, pesticides harmful to wildlife, the protection of birds, and invasive non-native species. It also introduces Schedules 5 and 6 which make provision in relation to, respectively, enforcement powers in connection with wildlife and time limits for proceedings in respect of certain wildlife offences.
Part 4: Sites of special scientific interest
22. This Part of the Bill addresses a small number of gaps and uncertainties which have been identified for sites of special scientific interest ("SSSIs"). Specifically it creates a new offence for a "section 28G authority" (an authority under section 28G of the Wildlife and Countryside Act 1981, including most public authorities and their employees) in relation to permitting the carrying out of an operation which damages an SSSI without reasonable excuse. It also creates a related offence of intentionally or recklessly destroying or damaging an SSSI's flora, fauna, or geographical or physiographical features without reasonable excuse.
23. This Part also empowers Natural England and the Countryside Council for Wales to put up notices and signs relating to SSSIs, and makes it an offence to intentionally or recklessly, and without reasonable excuse, damage, destroy or obscure those signs.
Part 5: National Parks and the Broads
24. This Part of the Bill makes amendments to the duties, functioning and constitution of National Parks authorities and the functions of the Broads Authority.
Part 6: Rights of way
25. A purpose of Part 6 of the Bill is to limit those vehicular rights that can be recorded on English and Welsh local authorities' definitive maps and statements showing public rights of way. It does this by halting implied creation of rights of way for mechanically propelled vehicles, preventing post-1930 use of a way by a mechanically propelled vehicle from giving rise to any future public right of way, and (subject to certain exceptions) extinguishing existing public rights of way for mechanically propelled vehicles if those rights are not already recorded on the definitive map and statement.
26. Under current law, evidence of use by non-mechanically propelled vehicles of a route for a 20 year period or a dedication for such use gives rise to a public right of way for all vehicles. This is recorded on the definitive map and statement as a byway open to all traffic. In the 2004 case of Bakewell the House of Lords decided that a right of way may arise where mechanically propelled vehicles have used a route for the 20-year period, even where that use is illegal.
27. The Bill's provisions provide that illegal use of a route by a non-mechanically propelled vehicle will not give rise to a new public right of way. It also extinguishes certain unrecorded rights of way that have arisen through illegal use, and prevents their being recorded on the definitive map and statement.
28. There are property owners and others with an interest in land who rely on unrecorded public vehicular rights of way for access to that land. The Bill ensures that, if the public right of way for mechanically propelled rights is extinguished, those people are provided with a private right of way to access the land.
Part 7: Inland waterways
29. Part 7 of the Bill re-constitutes the Inland Waterways Amenity Advisory Council by severing its administrative connections with British Waterways and setting it up as an independent body supported by Defra (or the Scottish Executive in Scotland). The clauses replace the Council's existing statutory advisory functions with new, wider terms of reference enabling it to advise Government, navigation authorities and other interested persons about the inland waterways generally. The Council is renamed the Inland Waterways Advisory Council to reflect its new role. The Bill does not change the Council's existing functions as a statutory consultee.
Part 8: Flexible administrative arrangements
30. Chapter 1 enables Ministers of State to make agreements with any listed Defra or associated body (referred to in the Bill as "designated" bodies and listed in Schedule 7), or with any non-Defra body, to authorise the body to carry out functions on the Minister's behalf. This provides a mechanism to, for example, authorise agency staff to undertake activities currently carried out by the Rural Development Service on behalf of the Secretary of State. Part 8 also allows designated bodies to enter agreements either with each other or with non-designated bodies (for example, local authorities or voluntary organisations). Such agreements will enable the other body to perform specified functions.
31. Chapter 2 and Schedules 8, 9 and 10 confer power to establish boards for the purpose of helping to develop and promote agricultural and related industries. The Bill also contains power to abolish certain existing agricultural levy bodies that are within Defra's remit (namely, the British Potato Council, the Home-Grown Cereals Authority, the Horticultural Development Council, the Meat and Livestock Commission and the Milk Development Council).
32. Chapter 3 provides a wide power to enable financial assistance to be given by the Secretary of State for any purposes connected with Defra activities.
Part 9: Miscellaneous
33. Clause 90 amends byelaw-making powers relating to flood defence and the drainage system more generally, so that they can take environmental matters into account.
34. Clause 91 provides for the abolition of certain defunct statutory committees.
Part 10: Final provisions
35. Part 10, as well as providing standard provisions in relation to transitional arrangements, commencement and extent, introduces two Schedules: Schedule 11 which contains minor and consequential amendments, and Schedule 12 which contains repeals.
36. Clause 98 of the Bill deals with extent.
37. Part 1 of the Bill (Natural England and the Commission for Rural Communities) extends to England and Wales only. But clause 1(2) makes it clear that, except where expressly otherwise provided, Natural England's functions are exercisable only in relation to England. Similarly, the Commission's general purpose relates to England only.
38. Part 2 (nature conservation in the UK) extends to Scotland and Northern Ireland as well as England and Wales.
39. Part 3 (wildlife etc.), extends to England and Wales only, except that its amendments to the Wildlife and Countryside Act 1981 (including those in Schedule 5) extend also to the territorial waters adjacent to England and Wales, and section 52 and Schedule 6 (wildlife offences: time limits for proceedings) extend to any place to which the enactments amended by Schedule 6 extend.
40. Parts 4 (sites of special scientific interest), 5 (National Parks and the Broads) and 6 (rights of way) extend to England and Wales only.
41. Part 7 (Inland Waterways) extends to England and Wales, and Scotland.
42. All of Part 8 (flexible administrative arrangements) extends to England and Wales. Chapter 2 (powers to reform agricultural etc. bodies) extends also to Scotland and Northern Ireland. Chapter 3 (financial assistance) extends also to Northern Ireland, but it should be noted that that Part does not confer power to give financial assistance in respect of devolved matters.
43. In Part 9 (miscellaneous), clause 90 (byelaws relating to land drainage) extends to England and Wales only and clause 91 (abolition of certain agricultural etc. committees) extends to all the United Kingdom.
44. Part 10 (final provisions) extends to England, Wales, Scotland and Northern Ireland as appropriate. Scheduled amendments, repeals and revocations have the same extent as the provision to which they relate, or as provided in the Schedules.
COMMENTARY ON CLAUSES
Part 1: Natural England and the Commission for Rural Communities
Chapter 1: Natural England
Constitution and general purpose
Clause 1: Constitution
45. This clause establishes Natural England, dissolves the Countryside Agency and English Nature and introduces Schedule 1.
46. Schedule 1 sets out the constitution of Natural England, and includes provisions about its status, membership, chief executive and other employees, pay and pensions, procedure, accounts and annual reports.
47. The functions of English Nature and the Countryside Agency are transferred to Natural England, subject to the provisions of the Bill.
Clause 2: General purpose
48. Subsection (1) sets out that Natural England's general purpose is to ensure that the natural environment is conserved, enhanced and managed for the benefit of present and future generations, thereby contributing to sustainable development. The terms "natural environment" and "benefit" are not defined but are meant to be broad and encompassing, going wider than the specific purposes listed in subsection (2), so that the natural environment could be found in towns in open spaces as well as in the countryside. The reference in subsection (1) to sustainable development indicates that Natural England is meant to seek solutions which, while achieving environmental benefits, also provide long-term economic and social benefits, and avoid untoward economic and social impacts.
49. Subsection (2) lists specific matters covered by the general purpose. Those matters are current purposes of the Countryside Agency and English Nature and aims of the Rural Development Service. Subsection (2) is not intended to be a comprehensive list. Natural England will be able to pursue anything which falls within its general purpose.
50. Subsection (2)(a) provides that the general purpose includes promoting nature conservation and protecting biodiversity. "Nature conservation" is defined in clause 30 as the conservation of flora, fauna or geological or physiographical features.
51. Subsection (2)(b) sets out a purpose of conserving and enhancing the landscape. This includes, but goes wider than, conserving the natural beauty of the landscape. It could for example cover conserving field boundaries (such as hedgerows and dry stone walls), and monuments, buildings and sub-surface archaeological features which contribute to the landscape. Natural England will be able to conserve and enhance the English landscape for aesthetic, cultural and historic purposes as well as those carried out for habitat protection purposes.
52. Subsection (2)(c) and (d) provides that Natural England's general purpose includes securing the provision and improvement of facilities for the study, understanding and enjoyment of the natural environment, as well as encouraging open-air recreation and promoting access to the countryside and open spaces. These purposes are similar to the purposes of the Countryside Agency and English Nature under the National Parks and Access to the Countryside Act 1949 ("the 1949 Act"), the Countryside Act 1968 ("the 1968 Act") and the Wildlife and Countryside Act 1981 ("the 1981 Act").
53. Subsection (2)(e) provides that Natural England's general purpose includes contributing in other ways to social and economic well-being through management of the natural environment.
Clause 3: Review and research
54. Subsections (1) and (2) ensure that Natural England keeps under review matters relating to its general purpose, and that it consults bodies that it considers to have an interest when doing so.
55. Subsection (3) gives Natural England powers to undertake research which relates to its general purpose, and to commission or support others to undertake such research. The power to support research is not limited to financial support and so could include the provision of accommodation, equipment and expertise. "Research" is defined by clause 30 to include inquiries and investigations, and so could include, for example, surveys and monitoring of the natural environment.
56. Subsection (4) ensures that when Natural England is carrying out functions to monitor nature conservation and related activities it should have regard to the common standards for monitoring of nature conservation, research into nature conservation and analysis of resulting information that have been established by the Joint Nature Conservation Committee.
Clause 4: Advice
57. This clause specifies Natural England's duties and powers to provide advice to public authorities and others in relation to Natural England's general purpose. "Public authority" is defined in clause 30.
General implementation powers
Clause 5: Carrying out proposals etc.
58. As well as allowing Natural England to carry out proposals itself in pursuit of its general purpose, this clause gives Natural England power to assist, coordinate and promote others' carrying out of such proposals. This power will enable Natural England to enter into a variety of working arrangements with persons or organisations in the public, private, voluntary and charity sectors.
Clause 7: Management agreements
59. Management agreements are agreements that Natural England may enter into with people who have an interest in land. Their aim is to ensure that the land is managed or used in a way that helps to further Natural England's general purpose. This new clause will replace English Nature and the Countryside Agency's agreement-making powers in other legislation, but transitional provisions will ensure that any existing agreements made by English Nature and the Countryside Agency remain in force.
60. Clause 7 needs to be read in conjunction with the consequential amendments made to the 1949 Act, the 1968 Act and the 1981 Act by Schedule 11 to the Bill. Those Acts make further provision about the consequences of entering into or not entering into management agreements, and other related matters.
Clause 8: Experimental schemes
61. The Countryside Agency currently has powers under section 4 of the Countryside Act 1968 to make and carry out experimental schemes designed to facilitate the enjoyment of the countryside, or to conserve or enhance its natural beauty or amenity. This clause gives Natural England power to enter into experimental schemes over its whole remit. It also provides the Secretary of State with power in individual cases to authorise Natural England to acquire land compulsorily for experimental schemes.
Clauses 9 and 10: Information, consultancy and training services etc.
62. These clauses specify information, consultancy and training services that Natural England may provide. In relation to information services, clause 9 confirms that the power is not to be interpreted as limited by any other enactment conferring more specific information powers (such as section 86 of the 1949 Act, which currently requires the Countryside Agency to provide a variety of information, including about where National Parks, areas of outstanding natural beauty and long-distance routes are, and how to access and stay in them).
Clause 11: Power to charge for services and licences
63. This clause gives Natural England power, with the consent of the Secretary of State, to charge for its services. Charges are to be reasonable, with the clause being intended to allow cost recovery.
64. The clause also gives the Secretary of State a power, exercisable by statutory instrument, to require charges for licences where no charging provisions are set out elsewhere, and to provide for exemptions or remissions from those charges.
Clause 12: Power to bring criminal proceedings
65. This clause provides that Natural England has the power to institute proceedings and the power to authorise persons other than barristers or solicitors to bring prosecutions on its behalf. This enables Natural England to have prosecutors on its staff in the same way as do organisations such as the Environment Agency and local authorities.
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