Session 2014-15

Infrastructure Bill

Written evidence submitted by the National Farmers’ Union (NFU) (IB 13)

Evidence concerning: Invasive Non-Native Species

Background

The National Farmers’ Union of England and Wales (NFU) is the voice of British farming. We provide professional representation for our 55,000 farming members. In addition we have 32,000 countryside members with an interest in farming and rural affairs.

Summary

The NFU believes that rapid response plans for early eradication or containment are far more cost effective than waiting until an Invasive Alien Species has become entrenched and difficult to control. In addition, there will always be situations where prevention may fail due to accidental escapes or via a new and previously unknown pathway for the spread of an Invasive Alien Species.

There are many Invasive Alien Species well established throughout the countryside. For example, muntjac deer, grey squirrel, giant hogweed and floating pennywort. These species and others are caught by the proposals for species control agreements and species control orders. Yet, the proposals do not outline how the ‘environmental authority’ should make a decision whether it is appropriate to use the powers in this Bill to tackle these known invasives. This is a real issue when there are 282 known invasive alien species in Great Britain, some of which cannot be eradicated because no method has been found.

There will be costs associated with the implementation of species control agreements and species control orders. In both cases the proposals need to outline where the costs fall and whether the environmental authority is picking up those costs. Agriculture should not be picking up the costs of invasive control when, for the established species, the species have ‘arrived’ on the land and it has been outside of the control of the land manager. In Britain the estimated costs of invasive alien species is £1.7bn annually. It is really important that this is addressed.

If much of the detail to support the implementation of this Bill is to be contained in a Code of Practice, then it is important that the draft Code is available to be considered alongside the Bill to understand the full context of the proposals. The Code of Practice should provide much of the missing context for the operation of the Bill.

Detailed Comments

Part 1 - Overview and interpretation

The Bill does not address when a species should be deemed to be an invasive non-native species that requires action through species control agreements or species control orders. This is a real issue when there are 282 known Invasive Alien Species in Great Britain, some of which cannot be eradicated because no method has been found.

There are many Invasive Alien Species well established throughout the countryside. For example, muntjac deer, grey squirrel or established plants including giant hogweed and floating pennywort. These species and others are caught by the definitions for invasive non-native species and could be subject to species control agreements and species control orders. Yet, the proposals do not outline how the ‘environmental authority’ should make a decision whether it is appropriate to use the powers in this Bill to tackle these known invasives.

The Bill should provide greater direction to ‘environmental authorities’ when to use species control agreements and species control orders, it would not be appropriate to use them on all invasive non-native species. In addition we are concerned as to how the determination of whether a species is ‘likely to have a significant adverse impact’ (section 2 (2)) would be objectively assessed. The Bill needs to direct when these powers are appropriate to be used to address invasive non-native species.

The inclusion of a definition of ‘no longer normally present in Great Britain’ (Section 3) is welcomed as it allows for use of these controls for species that were formally native in England. This is important as it provides a framework where action can be taken against former native species, many of which do not have natural predators.

Part 2 - Species Control Agreements

The treatment of all species ‘no longer normally present in Great Britain’ should be consistent across the legislation. The Bill proposes an additional consideration for animals in this category (section 7 clause 4(c)). The level of control required and alternatives to that control will be part of the discussion on the requirements of the species control agreement. To require an additional consideration in the Bill that ‘there is no appropriate alternative way of obviating that impact’ could impede those discussions. It could prevent the desired outcome of the species control agreement being achieved because there are alternatives that are not affordable or effective in the long term.

The species control agreement must outline who is to be responsible for the costs of the operations to be carried out.

The agreement must also contain some form of length of term; it cannot exist perpetually. The concern here really relates to the future impact such an agreement might have on the value/saleability of the land. The nature of the agreement itself would suggest that the land might be de-valued due to the presence of the ‘invasive species’.

Flowing on from this, it is important that once the operations are completed, the agreement is extinguished by the authority. This agreement should not continue to bind the landowner, once the operations have been effectively completed. The agreement should be terminated on the completion of the operations. There could be a danger that the authority could seek to engage the terms of the agreement again in the future, notwithstanding the fact that the operations had been completed in the past.

Part 3 - Species Control Orders

The Bill provides that an order can be made where the landowner has failed to comply with an agreement, or an agreement has been offered and refused, or offered and not accepted within 42 days. As regards non-compliance with a species control agreement, we believe that the power to create a species control order should only be triggered in relation to non-compliance with fundamental requirements within that agreement, and the landowner should be given sufficient opportunity to address any alleged non-compliance. The alleged non-compliance in terms of a minor requirement, for example document filing should not be valid grounds for the creation of an order by the authority.

An authority can also take out an order when ‘urgently necessary’ (section 10 (2)(c)). This is a subjective test; therefore guidance is required to authorities in terms of when an order would be ‘urgently necessary’. This should be provided in the Code of Practice

In the case of an unidentifiable owners (section 10 (2) (d)) five days is simply too short to create an order. At the very least, the authority should be obliged to use its best endeavours to identify the owner (unless it is an emergency). Placing a notice on a premise for five days may not work if land is remote form the main land holding the landowner does not visit it in the five day period. This is pertinent because species control orders are potentially very draconian. If the authority simply places a notice, and after 5 days itself commences operations on the land, this could potentially destroy other crops on the property.

The treatment of all species ‘no longer normally present in Great Britain’ should be consistent across the legislation. The Bill proposes an additional consideration for animals in this category (section 10 clause 4(c)). The level of control required and alternatives to that control will be part of the discussion on the requirements of the species control agreement. To require an additional consideration in the Bill that ‘there is no appropriate alternative way of obviating that impact’ could impede those discussions. It could prevent the desired outcome of the species control agreement being achieved because there are alternatives that are not affordable or effective in the long term.

The species control orders must outline who is to be responsible for the costs of the operations to be carried out. If the landowner is to be liable, then this should be outlined. Equally if Natural England or the Environment Agency is going to foot the bill, then this should be clear from the outset.

In terms of enforcement by the authority (section 18), the authority should be obligated to the landowner outlining exactly why the authority believes that breach has occurred, before they enter the land and complete the operations. A week to carry out operations after receiving notice is short. It may not be physically or practically possible to undertake works to that timescale, for example, due to inclement weather conditions. These constraints must be acknowledged in the application of these powers.

Compensation (section 16): There should be an appeals mechanism to the Lands Tribunal if this is disputed.

Part 4 - Supplementary, Codes of Practice

The Code will provide much of the detail required to both deliver species control agreements and species control orders. We welcome the requirement for consultation with stakeholders in the development of the Code. It is important that the Code outlines the decision when environment authorities should use the powers provided by the Bill.

Any code of practice should include provision for the handling of disputes between the parties over the terms of the agreement or the operations. It should provide guidance on what is proportionate (Section 7 (3)(a)). It should guide how species agreements and orders are issued, outline their content, and how the agreement or order can be revoked once completed.

An authority can also take out an order when ‘urgently necessary’ (section 10 (2)(c)). This is a subjective test, therefore guidance is required to authorities in terms of when an order would be ‘urgently necessary’. This should be provided in the Code of Practice.

December 2014

Annex – Extracts from the Bill and suggested amendments

Part 2 Species Control Agreements

Bill

Proposed amends

Making of species control agreements

7 (4) Before entering into a species control agreement relating to animals of a species that is no longer normally present in Great Britain, the environmental authority must also be satisfied that-

(a) the animals are present on the premises otherwise than under and in accordance with the terms of a licence under section 16(4)(c),

(b) the animals on the premises are having a significant adverse impact on-

(i) biodiversity,

(ii) other environmental interests, or

(iii) social or economic interests, and

Content of species control agreements

8 (1) A species control agreement must provide for-

(a) the species control operations to be carried out,

(b) the party who is to carry them out, and

Making of species control agreements

7 (4) Before entering into a species control agreement relating to animals of a species that is no longer normally present in Great Britain, the environmental authority must also be satisfied that-

(a) the animals are present on the premises otherwise than under and in accordance with the terms of a licence under section 16(4)(c),

(b) the animals on the premises are having a significant adverse impact on-

(i) biodiversity,

(ii) other environmental interests, or

(iii) social or economic interests, and

Content of species control agreements

8 (1) A species control agreement must provide for-

(a) the species control operations to be carried out,

(b) the party who is to carry them out, and

(d) the payment to be made by either party to the other, or to another person, in respect of the species control operations to be carried out.

(e)the length of terms of the agreement.

(f) the agreement to be terminated by either party earlier than (e) once conditions have been completed.

Part 3 - Species Control Orders

Bill

Proposed amends

When a species control order may be made

10 (2) The circumstances are-

(a) the environmental authority considers that an owner has failed to comply with a species control agreement entered into with the environmental authority and, having been given notice to that effect and a reasonable opportunity to rectify the failure, has not done so;

(b) the environmental authority has offered to enter into a species control agreement with an owner but-

(i) the owner has refused to enter into any kind of species control agreement, or

(ii) no species control agreement has been entered into in respect of the premises by the end of the period of 42 days beginning with the day after the offer was made and the authority considers it unlikely that the owner will enter any kind of such agreement;

(d) the environmental authority has been unable to identify an owner, having-

(i) placed on the premises a conspicuous notice of its desire to enter into a species control agreement, and

(ii) waited for 5 days after the day on which the notice was placed.

(4) Before making a species control order relating to animals of a species that is no longer normally present in Great Britain, the environmental authority must also be satisfied that-

(a) the animals are present on the premises otherwise than under and in accordance with the terms of a licence under section 16(4)(c),

(b) the animals on the premises are having a significant adverse impact on-

(i) biodiversity,

(ii) other environmental interests, or

(iii) social or economic interests, and

When a species control order may be made

10 (2) The circumstances are-

(a) the environmental authority considers that an owner has failed to comply with a species control agreement entered into with the environmental authority due to significant non-compliance with the conditions of the species control agreement and, having been given notice to that effect and a reasonable opportunity to rectify the failure, has not done so;

(b) the environmental authority has offered to enter into a species control agreement with an owner but-

(i) the owner has refused to enter into any kind of species control agreement, or

(d) the environmental authority has been unable to identify an owner, having-

(i) placed on the premises a conspicuous notice of its desire to enter into a species control agreement, and

(ii) waited for 30 days after the day on which the notice was placed.

(4) Before making a species control order relating to animals of a species that is no longer normally present in Great Britain, the environmental authority must also be satisfied that-

(a) the animals are present on the premises otherwise than under and in accordance with the terms of a licence under section 16(4)(c),

(b) the animals on the premises are having a significant adverse impact on-

(i) biodiversity,

(ii) other environmental interests, or

(iii) social or economic interests, and

12. A species control order must-

(a) specify the species to which the order relates,

(b) specify the species control operations to be carried out,

(c) specify the time by which the species control operations must be carried out or (as the case may be) the time by which they are proposed to be carried out by the authority, and

(d) if appropriate, include a map of the premises to which the order relates.

12. A species control order must-

(a) specify the species to which the order relates,

(b) specify the species control operations to be carried out,

(c) specify the time by which the species control operations must be carried out or (as the case may be) the time by which they are proposed to be carried out by the authority, and

(d) if appropriate, include a map of the premises to which the order relates.

(e) the payment to be made by either party to the other, or to another person, in respect of the species control operations to be carried out.

(f)the length of term of the agreement.

(g) the agreement to be terminated by either party earlier than (e) once conditions of the order have been met.

Appeals

16 (1) An owner of premises in relation to which a species control order is made may appeal to the First-tier Tribunal against-

(a) the making of the order, or

(b) any provision of the order.

(2) The First-tier Tribunal may-

(a) affirm the order,

(b) direct the environmental authority which made the order to revoke or amend it,

(d) make such other order as the Tribunal thinks fit.

Appeals

16 (1) An owner of premises in relation to which a species control order is made may appeal to the First-tier Tribunal against-

(a) the making of the order, or

(b) any provision of the order, or

(c) compensation offered under section 25.

(2) The First-tier Tribunal may-

(a) affirm the order,

(b) direct the environmental authority which made the order to revoke or amend it,

(d) make such other order as the Tribunal thinks fit, or,

(e) Determine the level of compensation.

Enforcement

18 (1) This paragraph applies where an environmental authority considers that an owner of premises required by a species control order to carry out a species control operation has not done so by the date or in the way specified in the order.

(2) The authority must give the owner notice to that effect.

(3) Sub-paragraphs (4) to (6) apply if, after a week after giving notice under sub-paragraph (2), the authority considers that the owner has still not carried out the species control operation in the way specified in the order.

Enforcement

(2) The authority must give the owner notice to that effect outlining to the landowner why the breach is considered to have occurred.

(3) Sub-paragraphs (4) to (6) apply if, after a week after giving notice under sub-paragraph (2), the authority considers that the owner has had reasonable opportunity to undertake the required control and still not carried out the species control operation in the way specified in the order.

Part 4 Supplementary, Codes of Practice

Bill

Proposed amends

Codes of practice

26 (2) A code under this paragraph must in particular provide guidance to environmental authorities in England on-

(a) when to offer to enter into a species control agreement;

(b) how to go about entering into a species control agreement;

(c) what a species control agreement should contain (and in particular what it should contain by way of provision about payment of costs);

(d) when to make a species control order;

(e) what a species control order should contain (and in particular what it should contain by way of provision about payment and recovery of costs);

(f) standards of animal welfare to be met in connection with species control agreements and orders.

Codes of practice

26 (2) A code under this paragraph must in particular provide guidance to environmental authorities in England on-

(a) when to offer to enter into a species control agreement;

(b) how to go about entering into a species control agreement;

(c) what a species control agreement should contain (and in particular what it should contain by way of provision about payment of costs);

(d) when to make a species control order;

(e) what a species control order should contain (and in particular what it should contain by way of provision about payment and recovery of costs);

(f) standards of animal welfare to be met in connection with species control agreements and orders.

(g) outline how disputes between the parties over the terms of the agreement or the operations will be handled.

(h) describe when a situation is deemed ‘urgently necessary’ to use the powers in section 10 (2)(c).

27 (2) A code under this paragraph must in particular provide guidance to environmental authorities in Wales on-

(a) when to offer to enter into a species control agreement;

(b) how to go about entering into a species control agreement;

(c) what a species control agreement should contain (and in particular what it should contain by way of provision about payment of costs);

(d) when to make a species control order;

(e) what a species control order should contain (and in particular what it should contain by way of provision about payment and recovery of costs);

(f) standards of animal welfare to be met in connection with species control agreements and orders.

27 (2) A code under this paragraph must in particular provide guidance to environmental authorities in Wales on-

(a) when to offer to enter into a species control agreement;

(b) how to go about entering into a species control agreement;

(c) what a species control agreement should contain (and in particular what it should contain by way of provision about payment of costs);

(d) when to make a species control order;

(e) what a species control order should contain (and in particular what it should contain by way of provision about payment and recovery of costs);

(f) standards of animal welfare to be met in connection with species control agreements and orders.

(g) outline how disputes between the parties over the terms of the agreement or the operations will be handled.

(h) describe when a situation is deemed ‘urgently necessary’ to use the powers in section 9 (2)(c).

Prepared 19th December 2014

Primary navigation

Infrastructure Bill

Footer links

Site search

Primary navigation

Infrastructure Bill

Footer links