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First, under this provision the statutory undertakers will have much broader responsibilities than they have ever had before. That will include responsibilities outside SSSIs that would have an impact on SSSIs. So these are entirely new circumstances and statutory undertakers will have no experience of them. Therefore, it is easier to see that their judgment could be wrong and they might plough on regardless of advice.
The second point I raise makes it an even more serious issue. The provision extends the duty to make that judgment to many more statutory undertakers than in the past. I say many more, but I probably mean many, many more. Can the Minister give a definite number of these statutory undertakers? I suspect that he cannot because I believe the reality is that no-one knows how many statutory undertakers there are. I know there are at least hundreds because they include the local authorities and the internal drainage boards. Possibly there could be several thousand of these statutory undertakers who, for the first time, have the responsibility of making a decision whether to damage an SSSI or not. I believe that any of this plethora of inexperienced undertakers could quite simply make a wrong decision.
As the noble Baroness, Lady Miller, rightly pointed out, the statutory consultation agency could refer to the Minister or ultimately seek a judicial review. But the Bill gives only 21 or 28 days in which to resolve a dispute and then the statutory undertaker can go ahead.
One might also say that the requirement in the Bill for Section 28G authorities to restore damage afterwards might act as a deterrent to them making rash decisions. But it might not. In many cases, once an SSSI is damaged restoration is not possible. I believe that the spirit of Amendment No. 201A provides a clear and more positive way of resolving these potentially highly damaging and rather unpredictable disputes. If it is not on the face of the Bill, perhaps I may at least press the Minister to give an undertaking that this provision will be clearly outlined in the code of guidance.
Baroness Byford: My Lords, before the noble Baroness sits down, I was slightly disturbed to hear her say that once an SSSI is damaged it is almost irreparable. That would be of great concern because around the countryside a great deal of quarrying is taking place on SSSI land. The quarry owners put the
Baroness Young of Old Scone: My Lords, I am grateful for the noble Baroness seeking guidance on this matter. Many habitats are pretty robust and one can do all kinds of things to them and they will eventually recover. But there are some which are so delicate that, if they are damaged, they either do not recover or recovery takes many, many years. It would be unfortunate if a statutory undertaker, simply through lack of experience, were to carry on regardless of that effect.
Lord Whitty: My Lords, one understands that there may be disputes in this area, although they would be few and far between. I do not believe that the noble Baroness's amendment deals with the matter in the appropriate way, which is to try to ensure that where such works are carried out they take place either with agreement or with provisions for effective restoration. Bearing in mind what my noble friend Lady Young said, there may be problems in that area and full restoration must meet the statutory requirements.
However, we are setting up a whole new structure of arbitration here. The amendment would potentially permit an arbitrator to enforce a decision on a public body even though the public body was carrying out an operation which it was statutorily required to do through the public body's own legislation. The amendment would not impose any time limit on the arbitrator in determining the dispute; nor would it provide any direction as to what criteria the arbitrator should apply.
The effect of such an unfettered process of dispute resolution could result in a complete block on public bodies carrying out their work. In many cases the work of these public bodies on drainage and so forth could be absolutely essential for both the conservation area itself and the wider interests of farmers and others within that area.
Safeguards are already built into the Bill. The starting point is the overarching duty in Section 28G(2). Where a public body proposes to carry out an operation which is likely to damage an SSSI, we have provided for notice to be given. Where a public body has not received assent to proposed operations, that body must nevertheless give 28 days' notice.
Paragraph 60 of the code of guidance already makes clear that Ministers will expect all public bodies, in deciding to go ahead against English Nature's advice, to demonstrate clearly how they have weighed the balance between differing interests. The 28-day period allows the conservation agency to consider whether it wishes to take any further action--for example, raising the matter with Ministers or the courts in some circumstances, who may determine whether or not to seek to dissuade the public body from proceeding. In certain circumstances, there may already be formal powers for the Secretary of State to intervene but, in general, that will not be the case.
Further safeguards exist in that, even after the procedures in Section 28H(4) and (5) have been gone through, the work must be carried out so as to cause as little damage as is reasonably practicable.
It is likely that many of the activities carried out by public bodies could constitute development, being consents granted under their own enabling legislation. In exceptional circumstances, a local planning authority, for example, may consider that planning control should apply to permitted development. It is open to the local planning authority to consider whether to pursue the matter by making a direction under Article 4 of the general development order, which can potentially remove the particular development right and require an application for planning permission.
Where the operation does not benefit from permitted development rights or consents granted by the public body, the public body will be subject to normal planning control and will have to submit a planning application. There are arrangements under Part IV of DoE Circular 18/84 to ensure that Crown bodies which are presently immune from planning control are also affected in that way. If the local planning authority objects to the proposal and the objections cannot be resolved through negotiation, the Crown body must refer the proposal to the Secretary of State for his determination. So in that context, there is effectively an in-built appeals procedure.
In most cases one would hope that the public body and English Nature would reach agreement. Where they do not, there is a time period for English Nature and the Welsh equivalent to decide how to take that further. To build in a new arbitration system with what are fairly draconian powers over public bodies which have been entrusted with other responsibilities different from those covered by this Bill is the wrong approach. I ask the noble Baroness not to press the amendment.
Baroness Miller of Chilthorne Domer: My Lords, there is something of an illusion that many of these activities would, after a period of time, result in satisfactory restoration of the sites. Certainly in Committee, I cited the example in Dorset of a local authority wanting to convert heathland, which is perhaps the most fragile of any habitat, into an urban parkland. I very much doubt that that would be restorable within decades, even if there were a will so to restore it.
I hear what the Minister says and I shall carefully read his reply in Hansard. I still believe that the advice that Article 4 can retrieve all those operations is wrong. I see that I am not likely to persuade the Government on this issue. I am sorry that we shall probably face a situation where agreements will fail to be reached in some circumstances. Eventually, those will probably have to go to judicial review rather than there being a mechanism which would have solved the problem more easily and earlier. But in the meantime, I beg leave to withdraw the amendment.
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 207 and 208. The issue of consents or licences which may be granted by a public body--which the Bill refers to as a Section 28G authority--was raised in Committee by the noble Baroness, Lady Wilcox. Government Amendments Nos. 203, 207 and 209 seek to address those concerns.
As presently drafted, the Bill requires a public body to wait for 28 days before issuing its decision on an application for consent. That is to allow for consultation with the conservation agency. Amendment No. 203 will allow the public body to issue its decision at any time within the 28-day period, providing the agency confirms in writing that it need not wait.
Amendments Nos. 207 and 209 provide defences for offences under Section 28P(6) of intentionally or recklessly destroying or damaging SSSIs. Those will be particularly relevant as respects persons carrying out operations who are not owners or occupiers of an SSSI. Those defences are similar to those available to owners or occupiers of SSSIs. They will include situations where planning permission has been granted on an application for the works; where the works are urgently required; and where the works have been authorised by a Section 28G authority acting in accordance with the terms of Section 28I, which will involve notification and so on.