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Baroness Wilcox: My Lords, I thank the Minister for having listened and for returning with a good resolution to the amendment that I tabled at an earlier stage of the Bill. Amendments Nos. 207 and 209 will achieve the same effect as my Amendment No. 208 would have done. I was delighted to be able to withdraw it.
However, I want to speak to Amendment No. 204 and ask the Government to consider carefully the value of it. It is intended to reduce the bureaucratic workload that the Bill would generate. It enables the consultation procedures set out in Section 28I of the Bill to be focused on real problems, rather than blindly requiring consultation for all permissions affecting an SSSI, whether or not they pose a threat to wildlife. An earlier version of this amendment was met with initial approval in our debate on the Bill, but was ultimately rejected on the grounds that it referred to another part of the Bill that was directed specifically at owner-occupiers rather than statutory bodies.
I regret to inform your Lordships that the Bill in its current form provides no facility for such exemption from consultation. Although there is no obstacle in the Bill to the agreement of a memorandum of understanding, neither the statutory body nor the council could rely upon such a memorandum as a legal excuse from undertaking consultations demanded by the Bill. The memorandum would leave both the statutory body and the council vulnerable to legal challenge, making it, in effect, worthless.
Along with the Shellfish Association of Great Britain, the North Western and North Wales Sea Fisheries Committees, the worried cockle fishermen and other fishermen who earn their living on these estuaries, I have studied carefully the comments of the noble Lord, Lord Whitty, and the DETR on my original amendment, and I believe that Amendment No. 204 incorporates changes which overcome the objections to the original. I hope that the Minister will recognise that this is a pragmatic amendment that offers to streamline the administration of the Bill and to reduce its burden on public bodies without compromising the protection of wildlife.
Lord Whitty: My Lords, I have been informed of the particular concerns expressed by bodies such as the sea fisheries committees. Nevertheless, I hope that I can reassure the noble Baroness. It is part of the duty of the public body to ensure that the agency has an opportunity to comment on applications for permission, consent or licences where the activity is likely to damage the special features of an SSSI. It is also open to the agency to reach the kind of memorandum of understanding to which she refers. In certain circumstances we would wish to encourage that in terms of the correspondence from my department.
As the conservation agency by reaching an agreement with the public body has confirmed that the activity is not likely to damage the special interest, there would be no requirement to follow the procedures under new Section 28I. There is therefore no need for an agreement to be specifically included in the legislation as a reasonable excuse because such an agreement would already have been confirmed by the conservation body and would be a reasonable excuse against prosecution. We do not believe that the noble Baroness's amendment is necessary and I hope that, with those reassurances, she and those in the sea fisheries sector who are concerned will take comfort from the albeit slightly more indirect protection which a memorandum would have. I assure her that that would be the position because of the implied agreement of the conservation body, which is already a signatory to the memorandum.
The noble Lord said: My Lords, the amendment develops Amendments Nos. 486A and 487B, which were discussed in Committee. It is still unclear where the baseline exists for deciding the condition to which an SSSI should be restored. The amendment specifies that it was the condition of the land at notification of the SSSI, or at a point in time after it, to which restoration should refer. It qualifies the reference to restoration in the reference setting out the contents of management schemes.
The amendment would prevent English Nature and the CCW insisting under a management notice that the site should be restored to some pristine condition in which it could have been at any time in the past. It would not prevent English Nature and the CCW at any time negotiating a voluntary agreement with an owner or occupier to restore a site to any agreed condition.
The amendment would not affect the powers in relation to the restoration of an SSSI where a successful prosecution had been brought against someone who damaged it. In cases where an offence of damaging an SSSI under the Act has been proven, it is right to insist on restoration to the condition before the offence took place. I beg to move.
Baroness Young of Old Scone: My Lords, this is one of the most important amendments we are debating tonight and I want to speak firmly against it. Amendment No. 205 would condemn those SSSIs which are in an unfavourable condition at the time of notification to remaining in an unfavourable condition potentially for ever. Sixteen per cent of the SSSIs notified since 1998 were in an unfavourable condition at the time of notification. Forty per cent of our SSSIs are in an unfavourable condition and they are our few sites of national and international conservation importance. Frankly, the fact that we have sites in such condition is a national disgrace.
The sites require management action to restore to an adequate condition the features for which they were notified. It is not about a mythical state that existed at some point in the past or a notional baseline; it is a state defined by objective criteria for the individual features for which the site was notified. Perhaps a layman's explanation of those criteria needs to be provided for SSSI owners and occupiers so that they are not shrouded in mystery and appear to be less like longing for the Nirvana of a past age which is unobtainable by anybody. There is a simple way to describe "favourable condition" in relation to each of these features, and I hope that that is reassuring to owners and occupiers.
Earl Peel: My Lords, I have difficulty with the situation in which we find ourselves as a result of this amendment. I understand what the noble Baroness says and appreciate the aspirations of English Nature and any of the statutory bodies to enhance SSSIs. However, it seems rather harsh to insist that the land in question should be forcibly changed to a standard of management different from that which obtained on designation. The noble Baroness shakes her head, in which case I have obviously misunderstood.
Baroness Young of Old Scone: My Lords, it is rather strange that a site which is in an unfavourable condition should somehow remain in that state, as the noble Earl suggests. If all one is doing is setting in aspic its unfavourable conservation condition, which may be declining, it almost begs the question why the site was designated in the first place.
Earl Peel: My Lords, there is some misunder- standing. It is odd that a conservation body may ultimately resort to a management notice, which is a fairly draconian measure, to achieve better standards than existed when the site was designated. I have no objection whatever to the idea of English Nature or CCW entering into a wildlife enhancement scheme to try to improve the standard of a site, but it is perhaps a little unreasonable to use these draconian measures if the owner is against it. I am certain that the Government will reassure us that they hope these measures will be dealt with in an agreeable fashion without recourse to action at this level. I declare an interest as an SSSI owner. English Nature might tell me that it intended to designate the site because it had potential for improvement, and it could force that upon me even if I thought that it was not in my interests to do so. Perhaps I am being unreasonable, but I believe that my noble friend raises a point which is somewhat inequitable.
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