Memorandum submitted by Natural England
(ELD 06)
1. INTRODUCTION
Natural England is a new organisation which
has been established under the Natural Environment and Rural Communities
Act 2006. Its purpose as outlined in the Act 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.
2. RESPONSES
TO QUESTIONS
(a) What consultations Defra has had on the
Directive since it was adopted in 2004 and with whom, and whether
Defra has listened to consultees" views. Why Defra has taken
so long to consult formally on the ELD. Whether any important
questions were omitted from the formal consultation.
Defra has engaged with Natural England on a
wide range of ELD related issues since 2004, including the contents
of the first Public Consultation document (November 2006). The
consultation paper was thorough on the transposition options,
but should have also asked for stakeholder views on competent
authority allocations.
(b) What discretion Member States have in
the implementation of the ELD, and the reasons for Defra seeking
to apply the "permit" and "state of knowledge"
defences under Article 8 (4). Which other Member States will be
imposing strict liability to a wider range of activities than
is Defra, and which are applying a more sensitive test of damage.
The Government's preferred option is to apply
the "permit" and "state of knowledge" defences
to the remediation requirements of the Directive that do not currently
exist in environmental law. This is designed to create a more
consistent and transparent regime, by avoiding undermining the
existing legislation that regulates environmental damage caused
by Annex 3 operations, where such defences do not exist. We support
this approach. However, we do not support the Government's proposals
to introduce these defences before remediation is undertaken by
the operator, because we believe this would result in remedial
measures not being undertaken at all. This would be below the
minimum requirements of the Directive, and therefore could lead
to infraction proceedings.
The Government's preferred option is to apply
fault rather than strict liability to non-annex 3 operations.
This was on the basis that better regulation principles do not
endorse gold-plating of European Directives as this increases
the burdens on business. Natural England does not support this
approach. In summary, we believe that liability should be identical
for both annex 3 and non-annex 3 operations, because non-annex
3 operations damage biodiversity more frequently; and creating
a "level playing field" by applying strict liability
to all operations would establish a more consistent and transparent
regime. We are unaware of the position in other Member States.
The Government's preferred option is not to
apply a more sensitive test of damage. We support this approach
because we believe the test of damage should be transposed exactly
as it is written within the Directive.
We are unaware of the position in other Member
States.
(c) Why the Government is proposing to limit
the scope of the ELD to EU-protected biodiversity, and which SSSIs
would be affected.
We understand that the Government wishes to
limit the scope of the ELD to EU-protected biodiversity so as
to conform with better regulation principles and avoid "gold-plating".
Natural England does not support this approach. In summary, we
strongly believe that nationally protected biodiversity should
be afforded the same level of protection as internationally protected
biodiversity, and that creating a level playing field for all
protected biodiversity would establish a more consistent and transparent
regime.
Not applying the ELD to nationally protected
biodiversity would affect 2477 of 3195 biological SSSIs, or 30%
of SSSIs by area.
(d) What effect implementing the ELD in the
manner proposed by the Government is likely to have on its meeting
the 2010 targets under the Biodiversity Action Plan and its PSA
target to bring 95% of nationally important wildlife sites into
favourable condition; and whether the ELD may take resources away
from achieving these targets.
The ELD is particularly relevant to halting
biodiversity loss by 2010, as its provisions effectively ensure
against any biodiversity loss due to damage covered by the ELD.
Where biodiversity damage is reparable, operators are required
to undertake primary remediation (to directly remediate the damage)
and compensatory remediation (to provide replacement biodiversity
during the period of recovery). Where biodiversity damage is irreparable,
operators are required to undertake complementary remediation
(to permanently provide replacement biodiversity). Provisions
to provide compensatory and complementary remediation do not exist
in current legislation.
74.7% of SSSIs are currently in favourable or
recovering condition. The remaining SSSIs are in an unfavourable
condition due to either damage or inappropriate management. The
ELD addresses the problem of future damage but not inappropriate
management.
On a case by case basis, the ELD may provide
cost savings for competent authorities. Currently, competent authorities
can only achieve remediation through expensive prosecutions. The
ELD is an administrative rather than judicial regime, and places
operators under duty to carry out remediation. However, the current
remediation provisions are used at competent authorities' discretion.
Under the ELD, competent authorities must respond to cases of
biodiversity damage that fall within its thresholds, and must
also respond to requests for action from third parties. Both of
these factors are likely to increase the frequency of biodiversity
damage casework and therefore the resources that competent authorities
would need to deploy to carry out their duties under ELD.
(e) The timescale for implementation of the
Directive
Defra has kept Natural England informed of the
likely transposition dates.
(f) The capacity of organisations such as
the Environment Agency, Natural England and NGOs to take action
under the Directive.
The ELD does not give NGOs the provisions to
take action. However, they are able to formally request action
from competent authorities. Our comments on our capacity to take
action are covered in (d) above.
April 2007
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