Environment Audit CommitteeWritten evidence submitted by Natural England

Summary

Since 2004 the legislation protecting Sites of Special Scientific Interest (SSSIs) has improved to the point that it is considered adequate and effective. Most offences can be heard in both the Magistrates and Crown Court where penalties are unlimited. The new civil sanctions were the final “piece of the jigsaw” allowing us to respond more proportionately to offending and in a way that achieves environmental outcomes.

Since 2004 the legislation protecting species has been improved; however, the number of amendments has made the situation more confusing. We welcome the work of the Law Commission and will actively contribute to it. From our perspective it is essential that civil sanctions and offences of breaching the licenses we issue are introduced for all protected species.

In 2004 much was said about the low penalties imposed by the Courts. Since then we have secured significant financial and custodial penalties for crimes associated with protected habitats and animal poisonings.

Partnership working at a national strategic level has markedly improved since 2004. In 2008 we signed an Memorandum of Understanding with the Association of Chief Police Officers and the Crown Prosecution Service and we are about to sign a similar protocol with the Environment Agency and Forestry Commission. We are active members of PAW and we share data with the National Wildlife Crime Unit. The priority now should be to improve partnership working at an operational local level and we have begun to establish local wildlife crime networks to achieve this.

1. Introduction

Our statutory 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. We were established to conserve our wildlife, landscapes and seas, to restore our natural assets and to work with people so that they can enjoy all the benefits the natural world offers. To do this we use advice, incentives, practical action and regulation.

We aim to provide a clear, simple and effective regulatory service. We will work increasingly closely with other regulators such as the Environment Agency and Forestry Commission to deliver consistent, risk based consenting and licensing. We use class and organisational licences as part of a modern approach to regulation that achieves benefits for biodiversity and prevents harm. We aim to be responsive to legislation and policy and improve our regulatory effectiveness year-on-year through better targeting and partnership with industry. Natural England is committed to reducing the costs to those we regulate as part of an ongoing programme.

Our regulatory role involves helping people to comply with laws that protect wildlife and the natural environment. We also take enforcement action when these laws are broken. When offences are committed our first step will normally be to offer advice on how to achieve compliance. If the breach was accidental and has had no or very little environmental impact we are unlikely to do anything else. However if the offender’s behaviour or the environmental impact is of concern we may impose a sanction. If sanctions are imposed we aim to use them in a way that achieves outcomes, including the restoration of harm, the prevention of further offences and the removal of any cost savings or financial gain.

Our general approach to compliance and enforcement is explained in our Compliance and Enforcement Position.1 Further details on how we take enforcement action are explained in our Enforcement Guidance.2

Our specific enforcement responsibilities are:

Sites of Special Scientific Interest.

Breaches of species licences that we issue.

Animal poisonings.

Heather and Grass Burning.

The Environmental Impact Assessment (Agriculture) Regulations.

Complaints relating to injurious weeds.

As each responsibility has very different issues and challenges evidence is presented on each responsibility separately. As requested in the Committee’s original call for evidence this includes the adequacy of the legislation and the powers it provides; the scale and impacts of criminality; emerging threats and challenges; and whether the penalties imposed are adequate and promote behaviour change. As specifically requested by the Committee we have included information on protected habitats, species licensing and the new civil sanctions. The final section of the report then discusses how we work in partnership with other enforcement agencies. We have not commented on matters such as wildlife trade and the role of the internet as these are outside our expertise.

2. Sites of Special Scientific Interest

2.1 Background

Sites of Special Scientific Interest (SSSIs) are a representative sample of our most important areas for flora, fauna, geology and physiography.

2.2 Legislation

Legislative protection is adequate. Most offences are now triable in both the Magistrates and Crown Court. Penalties are restricted to £20,000 in the Magistrates Court and are unlimited in the Crown Court. As set out in the introduction our focus is on helping our customers to comply so it is often more important to stop offending and repair the damage than impose a penalty. Since 3 January 2012 we have had access to a range of civil sanctions that allow us to do this.

2.3 Monitoring and statistics

Offences are detected through ecological monitoring, inspections by the Rural Payments Agency and reports from the public. Approximately 100 offences are detected on SSSIs every year (Figure 2.1). The vast majority of incidents are minor and are sanctioned through warning letters.

An emerging trend is the fall in SSSI offences committed by their owners and occupiers and a rise in offences committed by “third parties” (Figure 2.2). Offences committed by public authorities remain low. Offences continue to be concentrated in the south of England (Figure 2.3) and on the coast (Figure 2.4). A wide variety of activities give rise to offences, but these are dominated by vehicle use and the direct loss of habitat through construction and dumping (Figure 2.5).

We have taken 10 SSSI prosecutions since we were vested in 2006 (Table 1). Some of the penalties imposed have been significant especially when considered in combination with cost recovery (eg Lune Forest and Farndale). Recently a landowner of the River Wensum SSSI was given the first suspended prison sentence for a SSSI offence. More importantly the courts have ordered restoration where appropriate.

Figure 2.1

CRIMINAL ACTIVITY ON SSSIS BY FINANCIAL YEAR AND SANCTION

Figure 2.2

CRIMINAL ACTIVITY ON SSSIS BY FINANCIAL YEAR AND CULPRIT

Figure 2.3

SPATIAL VARIABILITY IN CRIMINAL ACTIVITY ON SSSIS. DATA FROM 1 APRIL 2008–31 MARCH 2011

Figure 2.4

CRIMINAL ACTIVITY ON SSSIS BY AFFECTED HABITAT. DATA FROM 1 APRIL 2008–31 MARCH 2011

Figure 2.5

CRIMINAL ACTIVITY ON SSSIS BY ACTIVITY. DATA FROM 1 APRIL 2008–
31 MARCH 2011

Table 1

PROSECUTIONS FOR SSSI OFFENCES TAKEN BY NATURAL ENGLAND

3. Species Licensing

3.1 Background

We are responsible for issuing licences that permit activities affecting protected species that would otherwise be unlawful. We are responsible for enforcing breaches of those licences, whereas the police and CPS are responsible for enforcing breaches of wildlife legislation committed by those without a licence. We issue about 10,000 licences each year. In addition to the general licences and individual licences, we are making increased use of a range of licensing options such as class and organisation licences to reduce burdens on the regulated community and engaging with stakeholders to find workable solutions.

3.2 Legislation

Legislative protection of species is inconsistent. Some species such as badgers, deer and seals have specific domestic legislation but the majority of species are covered by the Wildlife and Countryside Act 1981. Layered on this are various European Directives which are implemented in the UK by Acts and Regulations. Over 20 separate pieces of legislation protect wildlife, some of which date back to the 19th century (eg Game Acts). This creates inconsistency and is difficult for the regulated community to understand. From an enforcement perspective a single species can be protected by more than one Act and as such different statutory defences can apply in different circumstances.

We welcome the Law Commission’s work, to which we are contributing, and we look forward to working with stakeholders in a much needed, simplified and clearer regulatory landscape. One inconsistency that could usefully be resolved is an offence of breaching a licence condition. This offence is in place of all other species legislation where we issue licence, except for the Wildlife and Countryside Act.

Most species offences are triable only in the Magistrates Court and penalties are generally restricted to £5,000. Civil sanctions are available for some species offences but not for all, most notably those affecting European Protected Species under the Conservation of Habitats and Species Regulations.

3.3 Monitoring and statistics

Licence breaches are detected through inspections and the compulsory supply of data by licence holders. The number of breaches of licences that we issue rose from 38 in 2009–10 to 44 in 2010–11 (Figure 3.1). There has been a small increase in the number of minor offences and slight fall in technical breaches. Warning letters continue to be the main sanction used by Natural England. Notably during 2010–11 one caution was issued for a breach of the conditions of a licence, as this was the first time Natural England has issued a caution for a licence breach. The three most frequently affected species were great crested newts, bats and cormorants (Figure 3.2). Offences were concentrated in the East and South-East of England (Figure 3.3).

Figure 3.1

CLASSIFICATION OF BREACHES OF SPECIES LICENCES BY SEVERITY. CLASSIFICATIONS OF TECHNICAL, MINOR, MEDIUM OR SIGNIFICANT ARE BASED MAINLY ON THE ENVIRONMENTAL IMPACT OF THE BREACH BUT ALSO ON A RANGE OF AGGRAVATING AND MITIGATING FACTORS

Figure 3.2

SPECIES AFFECTED BY BREACHES OF SPECIES LICENCES. DATA FROM APRIL 2009–MARCH 2011

Figure 3.3

SPATIAL VARIABILITY IN BREACHES OF SPECIES LICENCES. DATA FROM APRIL 2009–MARCH 2011

4. Animal Poisonings

4.1 Background

We undertake enquiries into the death of wildlife, companion animals or beneficial invertebrates where pesticides are thought to be involved. The Wildlife Incident Investigation Scheme belongs to Defra and is administered through the Health and Safety Executive’s Chemical Regulations Directorate.

The impact of “approved use” of substances is the priority of the scheme. The results show that when users fully follow the label instructions there are few acute impacts on wildlife.

When rat poisons are used to control rats but the requirements to protect baits from non target animals or target species (rats) are not searched and disposed of, then there are many recorded cases of “misuse” resulting in the death of red kites from exposure to secondary sources of pesticides. The worst wildlife crimes occur when individuals choose to “abuse” pesticides and use them with the intention of killing wildlife. This is illegal, dangerous and cruel. Poison baits are left exposed, often laced with large quantities of toxic substances, with no control over which animals might eat the bait and die. Foxes, corvids and birds of prey are often the primary targets. Those responsible over the years have covered all sectors of our community including householders, farmers, gamekeepers and pest controllers.

4.2 Legislation

Legislation governing pesticides is fairly complex with the split between what are called Plant Protection Products and Biocides. Penalties can seem inconsistent with wildlife legislation in that they are restricted to fines and there is no custodial option even for those convicted in the crown court. Enforcement Notices are available and a useful sanction to quickly put right matters related to storage or use of pesticides. Parliament introduced the ability to prescribe pesticides under Section 43 of the Natural Environment and Rural Communities Act 2006 by listing them on an order. No such order has been made which makes England inconsistent with Scotland. Should a “vicarious liability” offence be introduced in England it would have relevance to poisoning incidents.

4.3 Monitoring and statistics

Cases are reported to the Wildlife Incident and Investigation Scheme through a dedicated helpline. After a steady rise in reports of animal deaths there was a slight fall in the number of reports in 2010–11 (Figure 4.1). The number of cases rejected (ie lack of grounds to believe pesticide may be involved) continues to rise whilst the number accepted has fallen since 2008–09. This may be a result of increasing assurance that we are strictly applying the acceptance criteria. Pesticides caused the deaths of 62 individual or groups of animals in 2010–11 (Figure 4.2). Deliberate abuse of pesticide continues to be the most common cause of death, whilst accidental mis-use continues to decline. Cases were unevenly spread throughout England with the highest number of incidents in the east of England (Figure 4.3). We issue Enforcement Notices to remedy immediate issues with storage and use of pesticides discovered as part of our enquiries. In 2010–11 four Enforcement Notices were issued.

In one of the most extreme cases in recent years, two council pest control officers were jailed in 2010 for four months and fined £7,000 each for poisoning wildlife at a London park. The men laced bread with a concentrate pesticide, legally used for insect control, before leaving it at Wanstead Flats Park killing 90 birds and a pet dog. The two men were sacked from their jobs.

Figure 4.1

REPORTS OF INJURY OR DEATH OF ANIMALS TO THE WILDLIFE INCIDENT INVESTIGATION SCHEME. CASES ARE ACCEPTED IF PESTICIDES ARE SUSPECTED TO BE INVOLVED

Figure 4.2

CASES OF CONFIRMED PESTICIDES AS A RESULT OF THE ABUSE, MISUSE AND OTHER USES OF PESTICIDES

Figure 4.3

CONFIRMED PESTICIDE CASES BY GOVERNMENT REGION. DATA FROM APRIL 2009–
MARCH 2011

5. Heather and Grass Burning

5.1 Background and legislation

The Heather and Grass etc. Burning (England) Regulations 2007 govern the burning of heather, rough grass, bracken, gorse and vaccinium. They establish a burning season and impose other light touch restrictions (eg limits on the size of burns) that aim to ensure burning takes place safely and in ways which do not harm the environment. Penalties are limited to £1,000 and the new civil sanctions are unavailable.

The Regulations are supported by the Heather and Grass Burning Code and various Best Practice Guides which are co-branded by Natural England and a range of practitioner representatives including the National Farmers Union, Moorland Association and National Gamekeepers Organisation. These organisations make up the Burning Best Practice Group which aims to reach a consensus on the practice and impacts of burning moorland habitats.

5.2 Monitoring and statistics

Breaches are detected through ecological monitoring visits, inspections by the Rural Payments Agency and reports from the public. Breaches are low and to date have not been the subject of prosecution (Table 5.1).

Table 5.1

BREACHES OF THE HEATHER AND GRASS BURNING REGULATIONS BY FINANCIAL YEAR AND SANCTION.

2007–08

2008–09

2009–10

2010–11

Warning letter

3

0

5

2

Caution

0

0

0

1

Prosecution

0

0

0

0

6. The Environmental Impact Assessment (Agriculture) Regulations

6.1 Background

These Regulations aim to protect uncultivated land and semi-natural areas from being damaged by projects that increase agricultural productivity. They also guard against possible negative environmental effects from the restructuring of rural land holdings. Certain types of work which might affect uncultivated land or semi-natural areas require a screening decision before they can commence. Where we judge that a project is likely to have a significant environmental effect, which includes impacts both on biodiversity and the historic environment, then the project must go through an EIA and receive our consent before it can proceed. The regulations set out an offence for starting a project without either of these decisions.

6.2 Legislation

Some of the more serious offences are triable in both Courts and penalties are unlimited when tried in the Crown Court. More importantly we have the power to serve a stop notice and a restoration notice. We may also issue a screening notice if 3 criteria are satisfied, which removes applicable thresholds and requires that a screening application to Natural England is made.

The Regulations have a reputation amongst some stakeholders for being challenging to implement and ineffective. We believe the main issues are:

the area threshold of 2ha is too high to capture the many fragmented areas of important semi-natural habitat, particularly grasslands;

one of the tests to be met before we can issue a screening notice requires us to reasonably believe that a project is to be carried out which is difficult to anticipate. The level of proof needed has never been tested. Only one screening notice has ever been issued and this was successfully over-turned on appeal to Defra;

the key terms “uncultivated land” and “semi-natural area” are not defined in the regulations and are open to interpretation. We will reissue public guidance in this area in May 2012 and this should provide helpful clarification;

lack of clarity on the definition as to what is meant by “cultivation”. The regulations refer only to physical or chemical means;

lack of comprehensive information about the quality and location of semi-natural areas in England. This was identified in the MacDonald Task Force review and a recommendation made that Natural England improve this situation, which is under consideration;

low public awareness of the regulations. This is being addressed through a communications strategy;

difficulties in determining the semi-natural status of the land once an incident has occurred—eg when a field is ploughed and re-seeded—as a lot of information about breaches is received from third parties either during or some time after the incident (“tip-offs”).

6.3 Monitoring and statistics

Breaches are reported through a dedicated helpline. Table 6.1 summarises regulatory activity in this area.

Table 6.1

REGULATORY ACTIVITY UNDER THE EIA (AGRICULTURE) REGULATIONS

Year

Contacts/queries

Investigations
(“tip offs”)

Stop notices

Restoration Notices

Prosecutions

2006

1,795

21

0

0

0

2007

1,462

20

2

0

0

2008

1,105

23

1

0

0

2009

633

19

0

1

0

2010

575

23

0

0

0

2011

899

48

2

1

0

7. Complaints Relating to Injurious Weeds

7.1 Background and legislation

Five weeds are classified under the Weeds Act 1959: common ragwort (Senecio jacobaea), spear thistle (Cirsium vulgare), creeping or field thistle (Cirsium arvense), broad-leaved dock (Rumex obtusifolius) and curled dock (Rumex Crispus). It is not an offence to have these weeds growing on your land and species such as ragwort have significant conservation benefits. However problems can arise if they are allowed to spread onto agricultural land, particularly grazing areas or land which is used to produce conserved forage.

Our role is generally only to resolve weeds complaints in “last resort” cases where an agreement cannot be reached without our intervention. It is expected that the complainant will have already contacted the landowner to try and resolve the problem before contacting us. Natural England gives priority to cases where weeds are threatening land used for keeping or grazing horses and other livestock, or farmland used to produce conserved forage or other agricultural activities. Complaints about weeds spreading to private gardens or allotments are not normally investigated.

7.2 Monitoring and statistics

Queries and complaints can be made through a dedicated helpline. We have the power to serve a notice requiring a land occupier to take action to prevent such weeds from spreading. In a case where the land occupier fails to take the necessary action under a notice we can take the action required and recover the costs of doing so. This is our usual response as opposed to a prosecution (Table 7.1).

Table 7.1

ENFORCEMENT ACTION RELATING TO INJURIOUS WEEDS

Year

Contacts/queries

Complaints

Inspections

Enforcement notices

Clearance actions

Prosecutions

2006

1,950

342

67

19

5

0

2007

1,924

234

117

52

2

0

2008

2,664

319

136

39

3

0

2009

944

202

73

40

0

0

2010

684

145

41

24

2

0

2011

1,775

230

86

46

0

0

8. Partnership Working

We are involved in a number of partnership initiatives at a national strategic level and local operational level.

We sit on the steering group of the Partnership for Action Against Wildlife Crime (PAW) and its publicity, bat and raptor working groups. To help determine the UKs wildlife crime priorities we provide evidence on the conservation impact of criminality to the Wildlife Crime Tasking and Co-ordination Group.

In 2008 we signed an Memorandum of Understanding with the Association of Chief Police Officers and Crown Prosecution Service on tackling wildlife crime in partnership. We are about to sign a similar protocol with the Environment Agency and Forestry Commission.

We share information with the National Wildlife Crime Unit and have made use of the investigative services it provides. One of the Unit’s strengths has been the relationships it has established with all statutory and voluntary agencies, not just the police. Our specific concern regarding the possible merger into the National Crime Agency is our ability to continue to use its services.

We have established Local Wildlife Crime Networks in Cumbria, Yorkshire and Humber, the East of England, and the South East. We hope to have covered all of England in the next few years. Currently these bring together Natural England, the police, the Crown Prosecution Service and the Environment Agency. We hope they will also include the Forestry Commission and Rural Payments Agency in the future.

1 May 2012

1 http://www.naturalengland.org.uk/Images/compliance-enforcement-position_tcm6-29090.pdf

2 http://www.naturalengland.org.uk/Images/enforcement-guidance_tcm6-29091.pdf

Prepared 16th October 2012