The countryside at a crossroads: Is the Natural Environment and Rural Communities Act 2006 still fit for purpose? Contents

Chapter 1: Introduction and background

1.This Committee, which was established to “consider and report on the Natural Environment and Rural Communities Act 2006”, was appointed by the House on 29 June 2017. We were given a reporting deadline of 31 March 2018.1

Why hold an inquiry now?

2.Upon recommending the appointment of this Committee, the Liaison Committee of the House noted that over a decade had passed since the Natural Environment and Rural Communities Act received Royal Assent in March 2006. The Liaison Committee went on to highlight the fact that “there have been a number of legislative changes which have amended or undone some of the provisions of the Act”.2

3.The provisions of the Act are diverse; the introductory text of the Act describes them as follows:

“An Act to make provision about bodies concerned with the natural environment and rural communities; to make provision in connection with wildlife, sites of special scientific interest, National Parks and the Broads; to amend the law relating to rights of way; to make provision as to the Inland Waterways Amenity Advisory Council; to provide for flexible administrative arrangements in connection with functions relating to the environment and rural affairs and certain other functions; and for connected purposes”.3

4.Much has indeed changed in the period since the Act was passed and implemented. The Commission for Rural Communities (CRC), established by the Act and tasked with speaking up on behalf of rural people, has been abolished, raising questions over the extent to which Government decisions are taking account of rural circumstances and needs. The other significant body created by the Act, Natural England (NE), has been subject to significant funding reductions in recent years, leading to concerns over its ability to fulfil all elements of its wide-ranging remit.

5.One unfortunate trend that has not changed in the period since 2006 is the ongoing loss of biodiversity. Between 1970 and 2013 56% of UK species declined, with 40% of species showing strong or moderate declines.4 The State of Nature 2016 report suggested that the UK had lost significantly more nature over the long term than the global average.5 This is a significant cause for concern. The Government’s recently published 25 Year Environment Plan seeks to address this issue, promoting the concept of natural capital and examining the potential for prioritising biodiversity ‘net gain’.

6.Our work sought to take account of these changes and challenges, but also took place against the backdrop of Brexit, bringing with it the prospect of fundamental changes to the structures that currently govern much of our environmental decision making. We sought to recognise, also, that these bodies and structures do not operate in a vacuum and that our natural environment is shaped by a multitude of actors including farmers, landowners, local authorities, NGOs6 and the general public. Many of these interests were represented during the course of our inquiry; we received 95 submissions of written evidence and heard oral evidence from 41 witnesses in 23 sessions. We are grateful to all those who contributed to the work of the Committee.

7.The changing context, combined with the ongoing developments set out above, made for a timely inquiry. We hope that our recommendations can help to meet the challenges that lie ahead.

Background to the Act

The Haskins Review and the 2004 Rural Strategy

8.The origins of the Act can be traced back to the creation of the Department for Environment, Food and Rural Affairs (Defra) in June 2001. Following the establishment of the new department, the then Secretary of State for Environment, Food and Rural Affairs initiated a number of steps designed to improve the focus and delivery of rural policy. These measures included an independent review of the delivery of the Government’s rural policies, which was carried out by Lord Haskins.

9.Lord Haskins’ review, published in November 2003, was critical of the non-agricultural aspects of Defra’s rural policy work, noting that the department had a poorly understood remit, a lack of data upon which to base policy changes and an inability to take account of what people and institutions in rural areas really needed. The review concluded that delivery structures within Defra were too confusing and bureaucratic, and that too many different organisations were involved in rural delivery, making the policy landscape confusing for people and organisations in rural areas to navigate.7

10.Lord Haskins’ recommendations therefore included a proposal to develop a more integrated approach, by rationalising agencies with overlapping agendas into one new agency responsible for sustainable land management. He also proposed that policy and delivery functions should be separated so that Defra itself was providing policy direction while delivery functions were being managed at arm’s length.8

11.The Government published a new Rural Strategy in July 2004, which included a detailed response to Lord Haskins’ recommendations and a commitment to publish draft legislation in Spring 2005, in order to make the legal changes required to give effect to the Strategy. The Rural Strategy set out the Government’s priorities for policy as follows:

It proposed that these priorities should be implemented through:

12.A draft Bill10 was published on 10 February 2005, and was subject to scrutiny by the House of Commons Environment, Food and Rural Affairs Committee. Subsequently, the Bill itself was introduced in Parliament on 19 May 2005. The Natural Environment and Rural Communities Act (“the NERC Act”) then received Royal Assent on 30 March 2006.

Major provisions of the Act

Restructuring of organisations

13.Until 2006 much rural and environmental policy was delivered through two non-departmental public bodies; English Nature and the Countryside Agency. The role of English Nature was to manage National Nature Reserves, advise national and local government on conservation of the natural environment, designate Sites of Special Scientific Interest (SSSIs) and undertake scientific research into the environment. English Nature was formed in 1990 and was itself a successor body to the Nature Conservancy Council.11

14.The Countryside Agency was also an amalgamation, having been formed in 1999 from the Countryside Commission, which had held responsibility for delivering landscape, access and recreation policies relating to National Parks and other major natural areas, and the Rural Development Commission, which had advised the Government on matters relating to the economic and social development of rural areas in England and had major grant-giving and land-buying powers that it could use to further these aims.

15.Additional functions were also delivered through the Rural Development Service, based within Defra, which was principally an implementation body delivering the England Rural Development Programme, a channel for a large number of EU agricultural funding schemes. The Service had grant giving powers and administered a number of environmental schemes.

16.The Haskins Review had determined that these mechanisms for delivering rural policy were “complex”, being the “collective legacy of many past governments and of changing priorities”. Lord Haskins found the arrangements to be “confused and overlapping”, with blurred accountability.12

17.Part One of the NERC Act carried out a major restructuring of these agencies, providing for the dissolution of English Nature and the Countryside Agency. Functions from each of these bodies, along with some of the functions of the Defra Rural Development Service, were brought together into NE.

Natural England

18.Section 2 of the Act states that the general purpose of Natural England is to “ensure that the natural environment is conserved, enhanced and managed for the benefit of present and future generations, thereby contributing to sustainable development”.13 Section 2(2) goes on to state that:

“Natural England’s general purpose includes:

(a)Promoting nature conservation and protecting biodiversity,

(b)Conserving and enhancing the landscape,

(c)Securing the provision and improvement of facilities for the study, understanding and enjoyment of the natural environment,

(d)Promoting access to the countryside and open spaces and encouraging open-air recreation, and

(e)Contributing in other ways to social and economic well-being through management of the natural environment.”

19.Accordingly, NE took on those functions of the Countryside Agency that dealt with landscape, public access and recreation. We consider the work and impact of NE further in Chapter 3 of this report.

The Commission for Rural Communities

20.The NERC Act also created the Commission for Rural Communities (“the CRC”), which was spun out of a number of remaining functions of the Countryside Agency. Chapter Two of the Act established the CRC as an independent, non-departmental public body, accountable to the Government and primarily sponsored by Defra. Section 18 of the Act defined the general purpose of the Commission as being “to promote—

(a)Awareness among relevant persons and the public of rural needs, and

(b)Meeting rural needs in ways that contribute to sustainable development”.14

The CRC was required to have particular regard to people suffering from social disadvantage and areas suffering from economic underperformance.

21.The CRC was intended to have a tight focus on three roles:

22.The CRC was abolished in 2013 (see paragraph four). We consider the work of the CRC, and the impact of its abolition, further in Chapter 5 of this report.

Other structural changes

23.Chapter 3 of the Act addressed the wider impact of the abolition of English Nature and the Countryside Agency, allowing for the transfer of the designated property, rights and liabilities of the two organisations to NE or the CRC. Section 26 also allowed for some matters to be transferred to Regional Development Agencies (RDAs)17; some consideration of the impact of this change is provided in Chapter Five of our report.

24.Additionally, Part 2 of the Act reconstituted the Joint Nature Conservation Committee (JNCC)—first established under the Environmental Protection Act 1990—as an organisation with a UK-wide remit. The work of the JNCC did not feature prominently in the evidence that we received and, accordingly, we have reserved our commentary and recommendations in this report for those elements of the Act which were more widely addressed in our evidence-taking.18

25.Part Seven of the Act reconstituted and renamed the Inland Waterways Amenity Advisory Council, a statutory public body which was first formed under Section 110 of the Transport Act 1968 and was tasked with advising Government, British Waterways and other navigation authorities on inland waterways. The Inland Waterways Advisory Council—as it was renamed by the NERC Act—was subsequently abolished in July 2012.

26.The evidence that we received on the implications of Part Seven of the NERC Act, and the 2012 abolition of the Inland Waterways Advisory Council, was especially limited and, again, we have therefore reserved our scrutiny and recommendations for those elements of the NERC Act which figured more prominently during our inquiry.

Biodiversity

27.Alongside the major restructuring of arm’s length organisations, another important aspect of the Act was section 40, which required that any “public authority” must, “in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity”.19 A similar requirement on central Government and the National Assembly of Wales had earlier been laid down by the Countryside and Rights of Way Act 2000. The NERC Act repealed and replaced that provision with one that extended the duty to “have regard” to biodiversity to all public authorities.

28.The definition of “public authority” is wide; it includes central Government departments, local authorities, NHS Trusts, fire and police authorities, statutory undertakers and a range of other bodies. Section 40 also placed a duty on Ministers of the Crown to have particular regard to the United Nations Environmental Programme Convention on Biological Diversity of 1992.

29.Section 41 of the Act required the Secretary of State, in consultation with NE, to publish lists of species and habitats of principal importance in England, to take steps to further their conservation and to keep those lists under review.20 The list was last updated in August 2010.

Rights of way

30.Over the years case law, including a House of Lords judgment21, had determined that a right of way for motor vehicles on a piece of land could be established simply by long and habitual use by such vehicles, even where that use was illegal. This was in contrast to several generations of Road Traffic Acts, which had created an offence of driving a vehicle on land other than roads without lawful authority. This apparent anomaly was generating concern from some user groups, concerned at environmental damage and degradation to routes.

31.Part 6 of the NERC Act clarified the law in this area, extinguishing22 unofficial rights of way created through use by mechanically propelled vehicles since 1 December 1930 (when the first Road Traffic Act came into force) and preventing the use of a right of way by such vehicles since 1930 giving rise to any future creation of or claim to a right of way. Certain exemptions were provided for property owners who may have been relying on unrecorded public rights of way to access their land. Where such rights were extinguished by the Act, the property owners were provided with a private right of way to ensure continued access by motor vehicle.

32.We received extensive evidence on this part of the Act, and consider the issues raised in Chapter 6 of this report.

Territorial extent of the Act

33.The Act initially had limited application beyond England and Wales and, in the period since 2006, some arrangements in Wales have been superseded by legislation passed by the National Assembly for Wales. Provisions on biodiversity protection (sections 40-41), for example, originally applied to England and Wales but were superseded in Wales by the Environment Act (Wales) 2016.23

34.Given the current limited application beyond England, therefore, much of our evidence related to legislation, policy and practice in England. We were provided with some insight into practices and policies in other parts of the UK, particularly when considering biodiversity issues, and draw upon these submissions where appropriate. Our recommendations are to the UK Government but, necessarily, would apply principally to England alone.

Developments since 2006

35.The substantive chapters of this report contain discussion of major developments and changes since the Act received Royal Assent in 2006. By way of context, however, some of the key interim developments that have shaped our understanding of the Act are set out in brief detail here.

Lawton Review and the Natural Environment White Paper

36.In 2009 the then Government commissioned Professor Sir John Lawton, Chairman of the Royal Commission on Environmental Pollution, to undertake a review of the management of wildlife sites across England. This review was published, following the change of Government, in September 2010, and concluded that the approach taken was highly fragmented, leading to difficulties in responding to new pressures such as climate and demographic change.24

37.The report made 24 recommendations described as a “repair manual to help re-build nature”. The Government responded to the Lawton Review with the publication of a white paper, The Natural Choice: Securing the value of nature, in June 2011. The approach taken within the white paper committed Natural England to a greater degree of joint working with related bodies (particularly the Environment Agency) on matters such as the provision of statutory advice to local authorities and developers, operation of the Environmental Stewardship Scheme and biodiversity recording. The paper also gave NE responsibility for designating 12 new ‘Nature Improvement Areas’.25

The Defra Triennial Review, June 2013

38.The Environment Agency, like NE, is a non-departmental public body (NDPB) with extensive responsibilities regarding the natural environment. The potential for closer joint working between the two organisations—or even a merger—has been raised in the period since NE was established in 2006. In 2013, Defra conducted a detailed review of the responsibilities and relationships of the two organisations.26

39.Businesses that participated in the review noted that they would benefit from a more integrated and effective customer interaction with the two bodies. The review concluded that, on balance, NE and the Environment Agency needed to collaborate more effectively but should not be merged. In particular, the review recommended that the two bodies work proactively together on their planning advice processes and functions, to provide a coherent offer to businesses and the public sector.

40.We considered the effect of both the Defra Triennial Review, and the Lawton Review, upon the work of NE during the course of our inquiry.

The closure of the Commission for Rural Communities

41.The intention to abolish the CRC was announced by the Secretary of State for Environment, Food and Rural Affairs in the House of Commons on 29 June 2010. The Government’s post-legislative memorandum on the NERC Act 2006 explains the reasoning behind this decision:

“The proposal to abolish the Commission for Rural Communities was driven by a desire to remove duplication, improve efficiency and enable resources to be more effectively focused on securing fair, practical and affordable outcomes for rural communities in relation to priority policy areas. The government considered that policy functions should be subject to the direct oversight of Ministers, who are accountable to Parliament for the way they discharge this policy function”.27

The Commission was then formally abolished on 1 April 2013, through the Public Bodies (Abolition of the Commission for Rural Communities) Order 2012 (S.I. 2012/2654).

42.In order to prepare for the closure of the independent Commission, Defra established a Rural Communities Policy Unit (RCPU) within the department in April 2011. This unit was intended to support Ministers in leading rural policy from within the department. The RCPU was, however, itself closed down in April 2015, leaving something of a gap in a policy field that had first been occupied by the Development Commission in 1909.28 We consider the implications of this in more detail in Chapter 5 of this report.

The Environment (Wales) Act 2016

43.As set out in paragraph 33, section 40 of the NERC Act originally applied in both England and Wales, but has since been replaced in Wales, with respect to all public bodies other than Her Majesty’s Revenue and Customs (HMRC), by the Environment (Wales) Act 2016. Section 6 of the 2016 Act has the effect of replacing the duty to “have regard” to biodiversity contained in the NERC Act with a new duty requiring a public authority to “seek to maintain and enhance biodiversity” and to “promote the resilience of ecosystems”, as well as introducing a requirement to report publicly on achievements every three years. This reporting requirement is not dissimilar to that contained in the Wildlife and Natural Environment (Scotland) Act (2011), which requires public bodies in Scotland to provide a publicly available report every three years on the actions that they have taken to meet the Scottish biodiversity duty.29

44.We consider the wording and application of the Welsh, and Scottish, biodiversity duties and reporting requirements further in Chapter 4. In doing so our intention was to draw out and develop comparisons to inform our recommendations on the section 40 NERC Act duty, which continues to apply in England.

Brexit

45.The NERC Act was passed at a time when UK membership of the European Union (EU) and its legal framework were taken for granted. Across a wide range of relevant policy areas, including biodiversity monitoring and reporting, the prioritisation of different nature conservation objectives, and funding for rural development, the EU and its institutions have played an important role in shaping the application of the NERC Act and the activities of some of the institutions—particularly NE—created by the Act.

46.We recognised the potential impact of Brexit from the outset of our inquiry. Additionally, we were also mindful of wider work, taking place across the House, on the implications of Brexit. The EU Committee of the House has conducted a large number of inquiries into the impact of UK withdrawal from the EU, with reports including Brexit: agriculture, Brexit: farm animal welfare, and Brexit: environment and climate change.30 The Science and Technology Committee has reported on the future for UK science after the referendum, and the Economic Affairs Committee conducted an inquiry into Brexit and the labour market.31

47.In conducting our inquiry, therefore, we did not seek to undertake a detailed analysis of the potential implications of Brexit for wide swathes of rural and environmental policy. Instead, we looked at the structures and priorities created by the NERC Act and sought to understand how they might be affected by withdrawal from the EU. The next chapter sets out our findings and recommendations in relation to the natural environment, while the implications for rural communities are touched on in Chapter 5.

The Government’s 25 Year Environment Plan

48.The Government published A Green Future: Our 25 Year Plan to Improve the Environment32 on 11 January 2018. The majority of our evidence, therefore, was taken before the plan was published but, given the relevance to our work and the wider operations of bodies such as NE, we comment upon the themes raised where appropriate.

49.The plan outlines initial environmental proposals following the United Kingdom’s planned departure from the EU in 2019, noting that this is a “once-in-a-lifetime” opportunity to reform agriculture, fisheries and the environment.33 Through a series of ‘25-year goals’, the plan sets out the Government’s long-term objective to “hand over our planet to the next generation in a better condition than we inherited it”.34

50.Included within these goals are cleaner air and water, reduced waste, and thriving plants and wildlife.35 The plan also sets out proposals to improve soil health, protect crops and reduce the impact of pesticides.36 Due to its long-term nature, the plan is intended to evolve over time; the Government states that it will “put in place regular and transparent reporting of progress against our new metrics, including to Parliament. We propose to report annually on the plan itself”.37 Furthermore, the plan promises an updated assessment in 2022, providing an up-to-date analysis of the environment following Brexit. The impact of Brexit is considered further in the next chapter.

51.An emphasis on natural capital38 is applied throughout the plan, with the approach described as both ambitious and a world first.39 This approach is aimed at boosting output and productivity through enhancing “the air, water, soil and ecosystems that support all forms of life”, with the reasoning that these (elements of our natural capital) form an essential basis for economic growth and productivity in the long-term.40 Although the natural capital approach forms a central basis of the 25-year plan, it is recognised that not all aspects of natural capital can be robustly valued—the contribution of wildlife, for example, is difficult to place an economic or monetary value on, yet it is understood that it is worth protecting—and therefore it is used, within the plan, as a tool rather than an “absolute arbiter”.41 We discuss natural capital in greater detail in Chapter Four of this report.

52.The plan also promotes the principle of ‘net environmental gain’ within the planning system, in order that the natural environment does not diminish in an era of increased housebuilding. This could have significant implications for local planning authorities, and we consider this further in Chapter 3 of this report.42


1 HL Deb, 29 June 2017, col 563

2 Liaison Committee, New Investigative committees in the 2017–18 Session (2nd Report, Session 2016–17, HL Paper 144)

3 Natural Environment and Rural Communities Act 2006, introduction

4 The State of Nature Partnership, State of Nature 2016 (2016), p 6: https://www.rspb.org.uk/globalassets/downloads/documents/conservation-projects/state-of-nature/state-of-nature-uk-report-2016.pdf [accessed 13 March 2018]

5 Ibid.

6 Non-governmental organisations.

7 Lord Haskins, Rural Delivery Review: A report on the delivery of government policies in rural England, (2003): http://www.tgsystems.org.uk/Gefag/haskins_full_report.pdf [accessed 13 March 2018]

8 Ibid.

9 Defra, ‘The Rural Strategy 2004’ (July 2004), p 5: http://webarchive.nationalarchives.gov.uk/20050302105329/http://www.defra.gov.uk/rural/strategy/ [accessed 13 March 2018]

10 Draft Natural Environment and Rural Communities Bill, Cm 6460, February 2005

11 Appendix 5 of this report provides a diagram, illustrating the history of changes to these structures.

12 Lord Haskins, Rural Delivery Review: A report on the delivery of government policies in rural England, (2003): http://www.tgsystems.org.uk/Gefag/haskins_full_report.pdf [accessed 13 March 2018]

13 Natural Environment and Rural Communities Act 2006, section 2

14 Natural Environment and Rural Communities Act 2006, section 18

15 SQW, Ex-post evaluation of the CRC: Report to the Department for Environment, Food and Rural Affairs (December 2014), p 8: http://www.sqw.co.uk/files/3214/5055/3302/CRC_Report.pdf [accessed 13 March 2018]

16 Natural Environment and Rural Communities Act 2006, section 19

17 Natural Environment and Rural Communities Act 2006, section 26

18 Towards the end of our inquiry Natural England did notify us of one concern regarding the composition of the JNCC (NER0095).

19 Natural Environment and Rural Communities Act 2006, section 40

20 Natural Environment and Rural Communities Act 2006, section 41

21 Bakewell Management Ltd v Brandwood (2004) UKHL 14, (2004) 2 AC 519

22 Where those rights were not already recorded on the definitive map and statement, with certain exemptions.

23 The provisions that now apply in Wales, as defined in this Act, are discussed in more detail in Chapter Four of this report.

24 Sir John Lawton, ‘Making space for nature: A review of England’s Wildlife Sites and Ecological Network’ (September 2010): http://webarchive.nationalarchives.gov.uk/20130402170324/http://archive.defra.gov.uk/environment/biodiversity/documents/201009space-for-nature.pdf [accessed 13 March 2018]

25 HM Government, The natural choice: Securing the value of nature, Cm 8082, June 2011, p 21: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228842/8082.pdf [accessed 13 March 2018]

26 Department for Environment, Food and Rural Affairs (Defra), Triennial review of the Environment Agency and Natural England (June 2013): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/209382/triennial-rev-ea-ne.pdf [accessed 13 March 2018]

27 Defra, Post-legislative Scrutiny of the Natural Environment and Rural Communities Act 2006, Cm 9473, July 2017, p 20: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/632027/nerc-act-2006-post-legislative-scrutiny-9473-web.pdf [accessed 13 March 2018]

28 Appendix 5 contains an organisation chart setting out the history of changes to these structures.

29 The Scottish biodiversity duty requires all public bodies in Scotland to “further” the conservation of biodiversity.

30 European Union Committee, Brexit: agriculture (20th Report, Session 2016–2017, HL Paper 169), European Union Committee, Brexit: farm animal welfare (5th Report, Session 2017–19, HL Paper 15), European Union Committee, Brexit: environment and climate change (12th Report, Session 2016–17, HL Paper 109)

31 Science and Technology Committee, A time for boldness: EU membership and UK science after the referendum (1st Report, Session 2016–17, HL Paper 85), Economic Affairs Committee, Brexit and the Labour Market (1st Report, Session 2017–19, HL Paper 11)

32 HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/673203/25-year-environment-plan.pdf [accessed 13 March 2018]

33 HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018), p 9

34 Ibid.

35 HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018), p 10:

36 HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018), p 12

37 HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018), p 138

38 Natural Capital is defined within the plan as “the sum of our ecosystems, species, freshwater, land, soils, minerals, our air and our seas. These are all elements of nature that either directly or indirectly bring value to people and the country at large. They do this in many ways but chiefly by providing us with food, clean air and water, wildlife, energy, wood, recreation and protection from hazards.”

39 HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018), p 11

40 HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018), p 18

41 HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018), p 20

42 HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018), p 33




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