Environment, Food and Rural Affairs CommitteeWritten evidence submitted by the UK Environmental Law Association (UKELA)


1. The UK Environmental Law Association (UKELA) aims to make the law work for a better environment and to improve understanding and awareness of environmental law. UKELA’s members are involved in the practice, study or formulation of environmental law in the UK and the European Union. It attracts both lawyers and non-lawyers and has a broad membership from the private and public sectors.

2. UKELA prepares submissions and advice to government with the help of its specialist working parties, covering a range of environmental law topics. This response has been prepared with the help of the nature conservation working party.

3. UKELA works on a UK basis and seeks to ensure that best legislation and practice are achieved across the devolved jurisdictions.

Introductory Observations

4. UKELA welcomes the White Paper and the Committee’s inquiry. However, before addressing the specific areas requested we make the following observations.

5. The legal framework for protecting the natural environment and government policies complementing it has developed incrementally over a long period of time, particularly since the passing of the National Parks and Access to the Countryside Act 1949. Our domestic framework has been added to by legislation, policy and case law from the European Community and by international treaties. It is a complex and comprehensive framework. Whilst it is generally agreed it has not been completely successful, no-one can deny that as this framework has become more comprehensive and sophisticated it has become more effective. Where this framework has not been wholly successful this has been due to a combination of factors, for example a lack of will or resources etc; not necessarily a failure of the legal framework.

6. One example of a successful statute is the Wildlife and Countryside Act 1981 which has been amended a number of times to incorporate new measures to improve wildlife protection. On the other hand, biodiversity is a concept first propounded at the Rio Conference in 1992 and immediately espoused by the Government of the day. Since then it has also been incorporated in statute. Firstly in section 74 of the Countryside and Rights of Way Act 2000 to be replaced by section 40 of the Natural Environment and Rural Communities Act 2006, imposing a duty on public bodies to conserve biodiversity. The provision is largely ignored. Other examples are noted in our answers to the Committee’s questions.

7. Our recommendation is that before any of the new initiatives set out in the White paper are implemented there should be a root and branch assessment of the present framework to establish what works and what does not: if not, why not: and what should be done to redress the problems. Only then can we have any idea whether these new proposals are necessary or appropriate.

8. Our view of the proposals in the White Paper are that they are too general and vague. Our experience as practicing lawyers is “the devil is in the detail”. If any of these are to go forward they need much refinement for detailed implementation.

Specific Questions

What actions are required across Government Departments, from local government and by civil society to deliver the White Paper’s proposals to grow a green economy and reconnect people with nature?

9. It will be necessary to identify regulatory requirements to compel businesses to measure and reduce their impacts on natural capital. Without mandatory requirements this will not occur except in a minority of cases.

10. There needs to be clear aims and objectives at local and national levels within an agreed strategic framework and cross sectoral understanding, and agreement on their implementation.

Will the institutional framework outlined for delivering the proposals (in particular Nature Improvement Areas and Local Nature Partnerships) be effective? Does the proposed Natural Capital Committee have sufficient powers?

11. Don’t know. The current proposals lack the detail necessary to comment.

Local Nature Partnerships

12. Important issues of detail that need addressing include: What guidance will be given to LNPs in terms of their broad role and functions? How will LNPs be constituted? How will funds be utilised? How will success be measured? Who will be responsible for providing advice and guidance and oversee their effectiveness? Given that the funds will only be available 201112 what guarantees are there that LNPs will be sustained? What will be the role of Natural Value Ambassadors? Who will they work for (Defra?) and how will their effectiveness be judged? Will the 50 Natural Value Ambassadors be employed beyond 2012?

Nature Improvement Areas

13. Important issues of detail that need addressing include: What is the purpose of NIAs? The current proposals suggest that NIAs are a conduit to secure additional funding for at the moment 12 areas, to implement existing government policies. How will the 12 initial areas be identified? By competition is bizarre. Surely NIAs should be located in those areas that most need attention. Is there a limit on NIA size? Who will manage the partnerships establishing NIAs? What will the funds be used for? How will success be measured? Good baseline data is required. Given the plethora of countryside designations do we really need another one? Albeit not a statutory designation, it will clearly influence countryside management and planning. NIAs need to function within local, regional and national strategic agendas. They need to work within an agreed framework and be accountable.

14. The framework for delivering Nature Improvement Areas is very unlikely to be effective. As a “designation” this will be one of the least significant and, just like “Sites of Interest for Nature Conservation” which are also protected merely through planning policy, unlikely to be protected effectively. There needs to be a fundamental refocus on the absence of application by planning authorities of the policies in PPS 9 and its Circular (06/2005). If they were followed as they should be there would be a significant improvement in reconnecting nature. This needs to happen to allow NIAs the protection they need to make any difference.

Natural Capital Committee

15. There is no information in the White Paper about how/to what extent the Committee’s advice must be taken into account/followed. A Committee reporting is ineffective if its advice is not duly considered and where appropriate followed. The Committee should have powers to enable it to obtain information about how its advice has been taken into account; and the recipient of the advice must be under some obligation to heed it/demonstrate how it has been taken into account.

What further research and/or evidence is required to develop practical programmes sufficiently detailed to deliver the White Paper’s ambition to fully embed the value of nature into policy delivery?

16. Sufficient information already exists to inform policy judgements. What is needed is for local and national government to give it appropriate weight in making decisions. There is a near total disregard to the policies of PPS9 as they apply to biodiversity generally. Planning authorities tend to take notice of European sites, SSSIs and species protected by the Habitats Directive, but beyond that their application of existing policy to protect biodiversity is inconsistent and in some cases non—existent. This arises due to a fundamental lack of education of planning officers in these areas. The situation will be further compounded by the probable loss of local government ecologists due to the funding cuts.

What evidence is there from other countries that the approaches proposed in the White Paper can be successfully applied in practice?

17. Biodiversity offsetting has limited success in the USA. The creation of wetland habitats in lieu of habitat loss is well documented. Success with other habitat types less so. The USA is also a big country having the land/water available to provide offsetting, unlike England.

What resources will be needed to fully deliver the White Paper’s ambitions and how can these best be provided? How might the value of “services” provided by ecosystems to beneficiaries be translated into spending that will enhance the natural environment?

18. There has to be a fundamental decision made about the incentive or requirement that must be imposed on businesses/industry to make them wake up to the need to factor in ecosystem services into their operational decision. We consider the way to get spending to enhance the natural environment is to impose say a tax incentive to encourage businesses to choose options which enhance the natural environment; or to impose mandatory requirements.

Does the White Paper set out an accurate assessment of the barriers to public engagement with the natural environment and make the most effective proposals for re-engagement?

19. There are many existing initiatives and opportunities for engagement with the natural environment. We suggest that the funding is used to better publicise these, rather than create new ones.

Relationship of the White Paper Initiatives with Planning Policy

20. Finally, the effectiveness of the initiatives set out in this White Paper depends on them being underpinned by strong and specific planning policy. We consider that the draft National Planning Framework is inconsistent with the aims and objectives of the White Paper and, unless amended, will undermine its implementation.

26 September 2011

Prepared 16th July 2012