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Baroness Miller of Chilthorne Domer: My Lords, we, too, welcome the code and the implementation of the Countryside and Rights of Way Act. I also have fond memories of sitting with other noble Lords through long hours of night to debate that Bill.

Page 7 of the code gives January 2006 as the date when English Nature must have given every owner,

"a short but clear statement".

Is the Minister confident that English Nature has the resources to implement a policy that will require an additional amount of resource?

On page 8, public bodies that carry out work must,

"minimise and make good any damage caused, where practicable".

The guidance is weakened considerably by the words "where practicable". Does the Minister have it in mind to strengthen that guidance? Many public bodies may claim that it is not practicable.

Also on page 8, under "Offences", the code says that English Nature must be both friend and enforcer. That is a difficult dual role, and the Government may want to keep an eye on that, for English Nature and for the Environment Agency, in some other contexts. The Government might like to monitor whether being the landowner's friend and enforcer makes life very much more difficult for English Nature.

On page 9, the code raises a small point, but one to which your Lordships often return. English Nature must give notification in local newspapers, but we are still failing to put websites into requirements, although that is the medium that many people use. I recognise that the issue of identifying new SSSIs, which is addressed on page 13, is developing. However, it does not seem to have been given much weight in the code, no doubt because there is still a great deal of work to be done on existing SSSIs. Perhaps the Minister can

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tell us whether the Government would consider reviving the code, at which point the identification of new SSSIs could be given a little more weight.

I recognise that the target for 2010—on page 17—has been watered down so that it now includes sites which are in an "unfavourable but recovering condition". Would it not be more helpful if the two targets were split? I see no reason why we cannot have sites designated "favourable" and a second batch of sites designated "unfavourable but recovering". Such definition would be very helpful.

Page 25 of the code offers owners and occupiers the choice of submitting a planning application to the local planning authority or, alternatively, to appeal to the Secretary of State when English Nature refused consent for an operation. Who will offer guidance to the owner or occupier on the best route? The code offers none.

I turn to issues affecting public bodies and I must declare an interest as a Somerset county councillor. I welcome the statement as set out in PPG 9 that local authorities should include policies for the protection and enhancement of SSSIs in their area and their local plans. That is quite right. However, local authorities are driven by the Audit Commission's indicators as outlined in its comprehensive performance assessments. Although the indicators are meaningful, as the Government rightly intended them to be, they are also very rigid. They offer no means of taking account of the sort of requirement which the Government are laying down in the code. Sustainability itself is barely mentioned, and litter seems to be the only environmental consideration. I encourage the Minister to talk to the Audit Commission about how the indicators might better reflect the good work that local authorities are doing in this area.

When the code was considered in the Commons, the Minister's reply on the duties of public bodies was not entirely clear. Perhaps the Minister could clear up two points. Elliot Morley said:

"Under Section 28I, any public body is required to take account of advice provided by English Nature. Under current legislation, English Nature can issue a so-called second notice that will include a statement of how the advice has been taken into account, if it is concerned".

It would be helpful if the Minister could confirm that public bodies must take account of advice provided by English Nature. It is also unclear whether the Minister in another place was referring to a second notice. I realise that it is a technical point, but I think that I should quote from my brief which states:

"Under section 28H(5)(b) and 28I(6)(a), a public body which wishes to proceed with an activity against the wishes of English Nature must notify English Nature of how (if at all) the advice has been taken account of".

Can the Minister confirm that that is the procedure to which reference was made?

The Minister, Mr Morley, went on to say:

"In the end, where there is disagreement between English Nature and a public or private developer, English Nature has the power to apply a stop notice to any development to allow it time to present its case and possibly to negotiate with the developer

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about, for example, a management agreement".—[Official Report, Fourth Standing Committee on Delegated Legislation, 26/2/03; cols. 18-22.]

It is not clear which section of the Act gives English Nature the power to prevent a public body carrying out a damaging activity in pursuit of the public body's statutory functions or duties. I would welcome the Minister's comments on whether English Nature as a government agency has powers over other public bodies.

Lord Crickhowell: My Lords, I must first declare an interest. The whole of the River Usk and its tributaries are about to be designated as an SSSI and ESA, and my home is on the banks of one of those tributaries which flows past my garden. However, that is not the point that I wish to address today. The example which I want to give of one concern is taken from Wales. Therefore, I am dealing with correspondence involving the Countryside Council for Wales rather than English Nature. However, the same principles apply.

A number of noble Lords have received correspondence about the Montgomery Canal. I have already discussed the matter with the noble Lord, Lord Hooson, who has a close interest in it. In recent years, very large sums of public money and private money—many millions of pounds—have been spent on the Montgomery Canal in order to reopen it for use. Previously, large sections were closed or were impassable in one way or another. It is in that connection that I wish to draw attention to paragraph 105 of the document before us, which states:

"SSSIs are capable of accommodating many activities that do not conflict with the special features on them . . . English Nature should liaise with owners, managers and representative bodies to ensure that a range of recreational and other activities can continue in ways that are compatible with the conservation interest. It will be encouraged to pursue Memoranda of Understanding with representative bodies, and to develop individual management plans, particularly for heavily used sites. It should ensure that the importance of sites, for example as a recreational resource and as part of the nation's wildlife or geological heritage, is properly recognised, and that appropriate management is in place.

That seems to emphasise the need not for positive management of SSSIs but for sensible and in some cases flexible management.

When a part of the Montgomery Canal was closed, a great deal of what ignorant people call weed life—but which the Countryside Council for Wales calls "important aquatic plants"—started to grow. The banks became heavily overgrown so that the passage of boats was impossible. Now, the Countryside Council for Wales is taking such a protectionist view of the weeds—or the important aquatic plants—that use of the canal for its original purpose, by boats, is proving almost impossible.

I am sorry to say that I do not have the letter from the Countryside Council for Wales with me—I apologise to the House for that. I should have liked to quote a most remarkable paragraph which indicates that boating on the canal is very much a secondary use and that it should perhaps be restricted to parts of the

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year when it will not damage the weeds. The letter indicates that boats could be quite useful if they came at the right time of year, because aquatic plants need stirring up from time to time, and that canal boats—which travel everywhere else under their own power—may require special motor power, possibly electric or horse power, in that section. In other words, the emphasis is almost entirely on the aquatic plants and the overgrowth and not at all on the recreational use of a canal that was built for boats.

I am not expert on the exact legal requirements of the European directives and the law in this respect. However, it is a most extraordinary position. A canal was closed for a time and something grew in it; it was then made an SSSI and could not be used for boating. The rules have to be interpreted with sensitivity and flexibility.

I give one other example. I live in a home in Wales which was a watermill. I and some friends, while still at Cambridge, reroofed it. I doubt whether I would be allowed to do that today. I confess that there were a few bats in the roof which no longer live there. I am almost certain that today I would be prevented from converting that building and it would now be a pile of stones—a ruin. No doubt the bats would be happy but I doubt whether that would really be the right decision. I know of other old buildings where bats are present and where perfectly sensible restoration work is prevented because the bats are considered more important than other uses.

So my plea is that in interpreting the legislation and the code of guidance there is a sensitive and sensible approach to these issues, a proper balancing of all the requirements and not an over-concentration on just one of them.

11.30 a.m.

Earl Peel: My Lords, I join other noble Lords in thanking the noble Baroness for having introduced the guidelines. Clearly, the main thrust behind them is one of co-operation between English Nature and owners and occupiers. That is absolutely essential. As time has evolved, a greater confidence has developed between both sides which I welcome. Indeed, paragraph 4 states:

"As recent experience shows, good management and a fruitful partnership between English Nature and the land manager needs to be maintained".

I am sure that all of us would concur with that.

But as a general point—I declare an interest as an owner of part of a very substantial upland SSSI—there is sometimes a tendency for English Nature to jump to conclusions about certain established management practices without perhaps having the relevant scientific evidence to substantiate such claims. For full co-operation to be effective on both sides we cannot rely on vague assumptions that a certain practice might be damaging. Any allegations that that is the case must be substantiated by proper research.

My main point relates to paragraphs 59 and 103 of the code of guidance. I refer here to English Nature's power to make by-laws under Section 20 of the 1949

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Act in relation to nature reserves, which has now been extended to include sites of special scientific interest. In essence I have no problems with that; it is a step in the right direction. The by-laws are designed for dealing with situations that could undermine the reasons for designation of the SSSI by,

"controlling activities and modifying behaviour".

In bold print paragraph 59 further states:

"The Secretary of State considers that powers to make byelaws are an important and valuable tool, which English Nature can use . . . to address problems arising from damaging activities".

Paragraph 103—I attach a great deal of importance to this—states:

"Increasing public interest in sustaining these important sites has led to requests for more information to be made available".

That is logical because the public will naturally pay greater heed to the by-laws if they are accompanied by some degree of explanation.

I suspect that the Minister will not be surprised when I draw her attention once again to the fact that under the Countryside and Rights of Way Act 2000 there is no statutory obligation on anyone entering an access area to do so via an access point. That being the case, it is inevitable that some visitors will be totally ignorant of any by-laws that English Nature decides are appropriate for a particular SSSI which is subject to open access.

Furthermore, the opportunity for providing more information—to which the Government devote so much attention and as prescribed in the guidelines—will also be lost. That will apply also to any closure orders that may be in place at the time.

I should add that concern is not restricted just to landowners and farmers. I quote from the minutes of the Moorland Access Advisory Group, which consists of representatives from all sides, including English Nature and the Countryside Agency:

"It is still not clear how access points or access information points will be shown . . . Land that is subject to regular and predictable exclusions and restrictions will not be distinguished from that with unrestricted access on OS maps".

That is a serious problem and one, quite frankly, that the Government have to come to terms with. I have no doubt that the Minister will be aware of the recently published predictions—we discussed the matter in a Starred Question yesterday—by the Countryside Agency on the likely state of the countryside in the year 2020. I shall not quote from that report but one suggestion was that there is likely to be a significant exodus from urban areas to rural areas with all the corresponding pressure that will ensue. Quite frankly, if we are incapable of imposing proper sustainable management structures for designated land now, I suggest that the Government are making a rod for their own back in the future. But, of course, it is not the Government who have to deal with the difficulties. It is the people on the ground, the landowners and the farmers, and, indeed, those representing English Nature and the Countryside Agency.

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I simply say to the Minister and her department that they really must come forward with realistic proposals to deal with a major difficulty that was ducked in the Countryside and Rights of Way Bill.

Finally, I ask the Minister a question that does not relate directly to the guidelines. However, it saves my putting down a Written Question and the Minister having to give me an Answer. When will the regulations relating to Sections 21 and 22 of the CROW Act be published? They were promised last November but, to the best of my knowledge, are still not available. I refer to the implications of the 20-day restriction orders.

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