Home > Resource > Article > From passive to positive - the Countryside Act 2000 and British wildlife
Home > Resource > Article > From passive to positive - the Countryside Act 2000 and British wildlife
In November 2000, the Countryside and Rights of Way Act (CRoW) gained Royal assent. Not since the National Parks and Access to the Countryside Act of 1949 has British wildlife been such a substantial Government priority on its own merits: the 1981 Wildlife and Countryside Act was passed principally to implement the EEC Birds Directive, whilst the Habitats' Regulations introduced in 1994 were meant to implement the Habitats Directive. This time, Government made a direct response to the wildlife crisis in the British countryside and to the substantial campaign of the UK's leading environmental organisations, in which Friends of the Earth and the RSPB played a leading part.
The success or failure of the CRoW Act will be measured in terms of a better future for declining species such as the Skylark; more habitat in positive condition; wildlife being properly considered by public bodies (other than wildlife agencies); and a fair deal for farmers. This will depend on the interpretation of the Act, landowners and regulators taking their new responsibilities seriously and sufficient resources being made available to ensure effective implementation. In the first instance, everyone must be aware of and understand the provisions of the Act. While there is no substitute for reading it, this article aims to introduce some of its most striking provisions and some of the challenges to which the wildlife agencies must respond in the next few years. For overall the new laws demonstrate a gear-shift in wildlife legislation from passive listing, advising and informing to constructive conservation, positive action and enforcement.
The CRoW Act is in five main parts. Part I deals with the controversial ‘right to roam' - the statutory right of access on foot for open-air recreation to mountains, moors, heaths, downs and registered common land. Part II deals with Rights of Way - encouraging the creation of new routes and clarifying uncertainties about what rights already exist. These latter measures have proved to be popular with landowners. Part IV of the Act deals with Areas of Outstanding Natural Beauty - it requires local authorities to publish management plans for AONBs and allows establishment of conservation boards. Part V contains a mixed bag of other measures relating to: local-access fora; countryside-management agreements; duties on public bodies in relation to the Broads; and the registration of town and village greens. All of these parts of the Act have implications for wildlife and include some specific wildlife measures, for example, closure of access land or diversion of Rights of Way for wildlife-conservation reasons. However, the main part devoted to wildlife is Part III.
Much attention has been paid to the access parts of the Act and to those who see wider access rights as a threat to conservation. Access of the kind envisaged in the Act is a way of life already on National Trust land and much local-authority land, for example, on parts of the South Downs. However, some see the extension of such provision across broad swathes of the countryside as a threat. They have pointed to economic and ecological concerns, such as threats to ground-nesting birds or to livestock, especially from dogs.
Many organisations supported the extension of access to the countryside because people would be more likely to support conservation if they had the opportunity to enjoy the countryside. However, such access must not be allowed to harm wildlife or people's enjoyment of the countryside. The Act does not do all that was hoped for (such as making the ignoring of closures for wildlife reasons an act of trespass), but it does allow for exclusions or restricted access to enable essential land management and protection of sensitive wildlife. Conservation organisations also successfully argued for dogs to be kept on short leads, from March to the end of July, to protect breeding birds in particular. The challenge now for all is to ensure that these provisions are implemented effectively.
There is no doubt that the Act as a whole, though, is a major boost to nature conservation. Better measures for AONBs are helpful. Powers to manage access for nature-conservation purposes will also alleviate at least some threats that there may be to wildlife. In the course of the next few years, experience of the new legislation will show whether the concerns over access were justified or not.
The CRoW Act covers only England and Wales. It does not extend to Scotland, where the un-amended Wildlife and Countryside Act 1981 will continue to exist. Northern Ireland has always had separate legislation (the Nature Conservation and Amenity Lands Order 1985). At the beginning of March, the Scottish Executive published The Nature of Scotland: a policy statement, which outlines similar proposals to the CRoW Act. Initial analyses of the proposals are encouraging, although some important issues such as stronger environmental duties for public bodies are watered down. It is hoped that legislative proposals will be brought forward in the autumn. The Department of Environment (Northern Ireland) has published a consultation document, Partners in Protection: a review of the procedures for notifying, protecting and managing Areas of Special Scientific Interest in Northern Ireland. Again, from an initial analysis, it looks as if things are heading in the right direction, though it is unclear when any new measures might be introduced.
The approach to protecting wildlife now varies among countries, affirming the status of nature conservation as a devolved matter. Where this article refers to ‘wildlife agencies', therefore, we mean English Nature and the Countryside Council for Wales but not the Environment and Heritage Service of Northern Ireland nor Scottish Natural Heritage.
The 1981 Act built on the original 1949 Act, which first introduced the concept of Sites of Special Scientific Interest (SSSIs). Part I of the 1981 Act dealt with species-protection measures, and in general this was widely felt to include good ideas and principles, but with some fatal flaws. For example, to prove a breach of the law, the ‘intention' to commit an offence would have to be shown; this proved impossible. Furthermore, with the exception of measures for bats, species legislation has been largely unenforced.
Part II of the 1981 Act incorporated measures for the protection of SSSIs. However, these amounted to little more than a listing process that identified where important wildlife was and told certain people about the sites. Remarkably, there was no legal impediment to destroying most SSSIs if their owners so wished. In addition, there was nothing to require the positive management of sites. No end of inquiries and reports identified a whole string of faults with wildlife law in the UK.
Shortfalls in the 1981 Act resulted in a serious toll of deterioration and destruction of sites. The wildlife agencies published ‘loss-and-damage data' which showed that more than 300 SSSIs suffered loss or damage every year. Such figures disguised an even more serious concern: English Nature published data that showed that 45% of SSSIs had key features in an ‘unfavourable condition' for their wildlife special interest (English Nature 1998). While a proportion of these features were coming under new management or were improving, 29% were not. In Wales, comprehensive data on site condition have not been published. However, CCW has reported that most of Wales' National Nature Reserves (areas it actually manages) are in an unfavourable condition.
The arrival of Biodiversity Action Plans (BAPs) in the mid 1990s heralded a new approach to conservation based on action for priority species and habitats. However, delivery has proved patchy, with some excellent examples of good practice and some significant failures to make progress. For example, the Countryside Council for Wales was unable to prioritise resources for biodiversity action because there was no statutory duty to do so, with the consequence that some work was dropped after just three years of the scheme.
Part III of the CRoW Act includes three major sets of wildlife measures: SSSIs and other designations (see pages 240 to 241); species enforcement; and biodiversity. There are some measures which the Act specifically does not address. The most notable omission is detailed measures relating to the marine environment. There are some helpful, but modest, clauses that explicitly cover marine concerns directly (a new offence of intentional or reckless harassment of cetaceans and Basking Sharks Cetorhinus maximus, for example) or affect them indirectly (backing for biodiversity action). However, while the Government has initiated a review of marine nature conservation, there are no prospects at present of marine wildlife getting measures as robust as those for species and habitats on land.
Another problem that has been carried over into the CRoW Act is the fact that damage to a site is still allowed where it is ‘as a result of an otherwise lawful activity'. For example, damaging activities consented to through the planning system will not be liable to enforcement action. An example of this is measures to deal with the hundreds of minerals permissions granted on sites before they were designated as SSSIs. This is an issue that the UK Government will have to address sometime, since it is likely to be an illegal departure from the (legally superior) Birds and Habitats Directives.
The biggest threat to SSSIs is not road-building, intensive farming or pollution, it is neglect. A key feature of the new Act is the emphasis that it puts on securing positive management of SSSIs. This is a significant improvement on the 1981 Act, as it requires from public bodies (especially the wildlife agencies) an impetus to maintain and enhance the special interest on an SSSI.
The process starts with ‘notification' of sites. Significantly, there is not to be a wholesale ‘re-notification' of the 5,000 or so SSSIs in England and Wales (as took place in 1981) as they are all deemed to exist under the new Act. Notification must now be published in at least one local newspaper.
The wildlife agencies are now required to produce a ‘management statement'. This must outline in broad terms what they think the management regime should be in order to maintain and enhance the special interest. However, there are already concerns about the development of these statements in that they may focus on habitat requirements and not necessarily on the species interest that may occur on the site.
The new Act gives every opportunity for agreements to be reached with owners and occupiers on how to deliver the appropriate management - from chats over the kitchen table to full-blown legal management agreements. Agreements are not restricted to SSSIs, but may be with owners of land outside an SSSI where management is needed to protect the SSSI. Where management of SSSIs is currently adequate, there will not be a need to re-negotiate new agreements. Where management agreements include payments, the new financial guidelines associated with the Act require that these must be for positive management only, and cannot be for ‘profits forgone' - the old system whereby some landowners were paid for not carrying out proposed damaging activities.
If the condition of an SSSI is not satisfactory and no agreement can be reached, then the conservation agencies may issue a management scheme that defines what management measures are necessary for the conservation and enhancement of the site. Then, if the management scheme is not acted upon, the agencies can issue a ‘management notice' that requires the appropriate management to take place. Failure to act on the notice would risk prosecution, heavy fines and an order to restore the site. This crucial measure puts the onus on the wildlife agencies to secure the positive management of those SSSIs that are in an unfavourable condition. In practice, in order to avoid the use of such a sanction, it should give an extra impetus to both parties to get round the table and reach a voluntary agreement. Landowners have the right to appeal against a management notice served on them.
Under certain circumstances, the agencies can purchase land compulsorily where they feel that a site will not receive positive management. Such powers were in the 1981 Act, but were used just once and have been clarified and improved in the present Act. In addition, the agencies may purchase land outside an SSSI (by agreement) where this would help with the management of an SSSI.
It is to be hoped that the agencies now have every power necessary to secure positive management of all SSSIs. However, they have got used to being advisory bodies and used to the partnerships which they have secured with a proportion of landowners. This new sense of purpose with respect to SSSIs is more like the powers available to the Environment Agency, and without a proper enforcement strategy, as well as a constructive partnership strategy, the Act will flounder. The public now expect more of the agencies, and they must deliver but, at the same time, ensure that they bring the farming and landowning community with them.
There are few new requirements placed on owners and occupiers in the new Act. As in the 1981 Act, every owner and occupier (including, for the first time, commoners) must give notice to the wildlife agency of their intention to carry out a potentially damaging operation, now called an ‘operation likely to damage'. However, for the first time, the wildlife agency may refuse outright to give consent for the operation, or may give consent but with conditions attached (for example, time-limits). The applicant may appeal to the Secretary of State against a decision to refuse consent for a damaging operation or against any conditions imposed. Landowners now also have a duty to inform the wildlife agencies of changes in ownership or occupation. Previously, the agencies would have no way of knowing if land had changed hands, and this vacuum of mutual information has in the past led to sites being totally destroyed.
The Government ran scared of a wider ‘duty of care' on landowners with respect to their SSSI land and opted for these slighter duties instead, the latter of which carries a princely £200 fine for being breached! The agencies have much to do to build trust with a large number of landowners. The legislation has put the bulk of the effort regarding this on the agencies, and does not really expect much of landowners, other than an acceptance that there is a public interest in the wildlife on their land. That is still a hurdle for some, but most should be reassured with the readier availability of positive payments for positive action.
The Act imposes new, stronger duties on public bodies. All public bodies which own or manage SSSIs, or which affect sites through their activities or through granting of permissions (for example, planning consents), now have a duty to further the conservation and enhancement of these sites (although with the rider that they should do so in so far as it is consistent with their main functions). The new duty is extremely welcome, especially as its coverage is so comprehensive - every public body from parish councils, local authorities and the Crown Estates to Ministries such as Defence, as well as ‘Statutory Undertakers' such as water companies and port authorities. However, the Government failed to address the problem of conflicts between the new conservation duty and the exercise of other statutory duties and powers. For example, port authorities will not be able to use their existing bye-law-making powers for the conservation of SSSIs because this is not a stated purpose of these powers. Without wishing to undervalue the constructive efforts of many public bodies, some have failed to take their conservation responsibilities seriously in the past and those that continue to do so must be put in a difficult position by the wildlife agencies.
Where public bodies wish to carry out, or authorise, damaging activities, they must consult with the wildlife agencies. If they choose to ignore the agency's advice, they must explain why and minimise any damage which they cause. They must also restore sites which they damage where this is possible, for example, if there is temporary damage such as a water company drilling a test bore-hole. This is a weaker approach than it could have been, because the only way a public body can ultimately be stopped from damaging an SSSI is by judicial review. An interim stage would have been useful, such as a ‘call-in' procedure similar to that which exists for the Broads Authority.
Another common cause of damage to SSSIs has been the activities of third parties, such as trail bikers or 4x4 vehicles. It may seem surprising, then, that the CRoW Act repeals previous measures that were able to deal with this (although these ‘Nature Conservation Orders' were scarcely used). NGOs argued that these orders should not only be retained but also be extended. The idea of ‘Biodiversity Orders' was advocated, which would have helped protect not only SSSIs but also protected species outside SSSIs and contributed to BAP targets.
Instead, the Act introduces a new offence of intentional or reckless damage of an SSSI or disturbance of animals on the SSSI, which is designed to tackle offences caused by individuals. The new law relies on individuals knowing that what they are doing is likely to damage a SSSI. This makes enforcement questionable, as it restricts the scope of what constitutes a ‘reckless' act. The wildlife agencies can now also issue bye-laws on all SSSIs to constrain general threats to sites from particular types of activity, although indications from the agencies suggest that they are not keen to use these new bye-law-making powers.
Inevitably, there will be those who choose to ignore the provisions of the Act. The penalties for doing so have been increased to a maximum of £20,000 (unlimited in a Crown Court). The courts will also be able to order an offender to restore any damage caused, which might cost more than the fine. It is hoped that such fines are enough to discourage some offences, and may also encourage the agencies actually to prosecute offenders, something which they have previously been reluctant to do. Equally high fines have also been introduced for breaches of Limestone Pavement Orders. It should be noted that damage which results from activities authorised by planning permissions are exempt.
The agencies have rarely resorted to prosecution, which has resulted in wildlife laws being widely flouted, yet the Government has retained a monopoly on SSSI prosecutions for the agencies. NGOs argued strongly that others should also be able to take prosecutions. As this view was rejected, the Government should be expected to balance this monopoly (which is not the norm for legislation) with a clear enforcement strategy.
Previously, under the 1981 Act, making changes to SSSI boundaries and notifications was a long drawn-out process. The CRoW Act provides the wildlife agencies with new powers to extend, modify or even in some circumstances delete SSSIs. The implementation of this last measure has raised some concern, as many feel that a site should not be denotified unless all hope of restoring any declining special interest has gone. Conservation NGOs had argued that decisions concerning additions (and if necessary, subtractions) from the SSSI series should be made in the context of a ‘statutory purpose' for the series as a whole. In other words, what the SSSI series aimed to achieve and how it should react when changes to the series occur (e.g. when a site is damaged). Such an approach would be analogous to provisions in the Habitats Directive. Unfortunately, the Government did not agree and the SSSI series continues not to have a formal purpose. The agencies will be producing guidance on how this power will be operated, but already cracks are showing in the agencies' policies. Despite not having denotification guidance debated, English Nature is removing SSSI status from a set of sites, including one of the nation's oldest nature reserves, managed by the Selbourne Society, Perivale Wood. The loss of SSSI status here has not included a thorough assessment of why the site may have declined (if it has) nor of whether special interest is restorable.
The Government has reassured conservationists that there will not be a grand ‘shake-out' of SSSIs, but, in the legislation at least, it stopped short of declaring all SSSIs explicitly nationally important. This may, on the one hand, ensure that some sites stay as SSSIs but, on the other, reduce the ability to protect sites from planning threats.
For many years in Scotland, officers of Scottish Natural Heritage have had wide powers to enter SSSI land for formal purposes, such as survey. In England and Wales, no such powers existed, but now the Act allows access to land to establish whether it should be notified as an SSSI, to establish the condition of an SSSI, to establish what measures need to be included in any management agreement, and to ascertain whether any offences have been committed. It is essential that the agencies quickly get used to exercising these new powers.
The new Act strengthens the enforcement provisions against wildlife offences laid down in Part I of the 1981 Act. Hitherto, to prove that a criminal offence had occurred, the prosecuting authority had to show the ‘intention' of the defendant to commit it. In practice, this was impossible. A new offence of ‘reckless' disturbance of certain listed birds and animals at their nest or place of shelter has been introduced. ‘Recklessness' is a term well known in law, and its application in the context of wildlife crime is a significant step forward.
Penalties have been much increased. For serious wildlife offenders there is now the possibility of up to six months in prison and for other offences fines of up to £5,000. In addition, the police can now gather evidence through search warrants for all wildlife offences. The time limit for bringing a prosecution has been set at six months from the date on which evidence first came to light but no more than two years after commission of the offence.
The new Act gives police officers special powers to require tissue samples for DNA analysis. Officers also have a new power of arrest in respect of offences involving listed animals and plants. This is a step forward, as it can prevent evidence (such as birds' eggs kept in someone's home) being destroyed by a suspect before a search warrant is secured. In addition, without such a power of arrest, it was possible for suspects to refuse to attend for interview and courts were unable to draw any inferences from this.
Whilst NGOs are broadly happy with the measures introduced for greater species protection, the CRoW Act omitted one very important improvement. It was argued that, with respect to species, the word ‘reckless' should be added to ‘intentional' throughout Part I. This would have reflected the fact that it is now an offence intentionally or recklessly to disturb protected species. However, the Government disagreed. Unfortunately, this dichotomy means that it is no longer possible to argue that intentional killing or taking of protected species also includes reckless acts.
Perhaps one of the most progressive and far-reaching measures in the new Act relates to biodiversity. Until now, the UK has not had any legislation on habitat or species recovery, unlike many other countries (instanced by the US Endangered Species Act). Yet Britain was an enthusiastic signatory of the Biodiversity Convention signed at Rio in 1992. Biodiversity concerns have traditionally been stuck in the ghetto of the Environment Department (DETR) and been overridden by other parts of Government, which pay them scant regard. The new Act reverses this state, at least in legal terms. Now every Department and Minister and the National Assembly for Wales must have regard to the purpose of conserving and enhancing biodiversity in accordance with the Rio Biodiversity Convention.
Of all the new clauses in the CRoW Act, the way in which this particular one plays out will be perhaps the most intriguing. ‘Have regard to' is weaker than it could have been, and the enforcement process is the clumsy, expensive and legalistic route of judicial review. The Treasury has a practical ability to interfere in the performance of every Government department over financial matters, and this clause gives the DETR the potential to do the same for environmental matters. Practically, though, it will take a determined Environment Minister to test that potential.
The same clause on biodiversity goes on to give some concrete ideas on taking forward biodiversity conservation. It requires the listing of species and habitats of most concern and promotion of action to conserve and enhance them by the DETR and National Assembly for Wales. This is legal backing for the existing Biodiversity Action Plan process in all but name, and a real boost to conservation efforts.
The delight of NGOs in securing these important measures should not be underestimated. However, a more ambitious goal would be to establish real species- and habitat-recovery legislation that would have greatly enhanced the current Biodiversity Action Plan process, rather than just ensure its survival. Whilst the protection afforded to SSSIs and scheduled species has been greatly increased by the CRoW Act, it does little for other habitats and species, even where these are listed as priorities under the UK Biodiversity Action Plan but do not happen to be in protected areas.
Two other measures contained in Part III of the Act are worth a mention. The oldest international designation for wildlife areas in the UK is the Ramsar status given to sites that are internationally important as wetlands and for wildfowl. However, until the CRoW Act, the designation carried no acknowledgement in UK law. In England and Wales at least, this has now been addressed.
Finally, a section of the Act along with an entire, rather complex schedule was included so that English Nature could now be known officially as … English Nature. The new Act confers this radical new name as a change from the previous formal name, the Nature Conservancy Council for England.
It would be no over-statement to suggest that the CRoW Act 2000 is the single most important piece of legislation concerning the conservation of wildlife in England and Wales since 1981. Time will tell just how effective it is on the ground, but there should be no doubt that the future for wildlife looks somewhat brighter.
Voluntary agreement remains the main way in which nature conservation will be delivered in Britain, despite some outlandish claims to the contrary from opponents of this Act. What the Act represents is a re-balancing of private interests against the public interest. If voluntary approaches fail to deliver, a methodical legal process will allow SSSIs to come under positive management in the interests of the wider public. The excuses of public bodies that have damaged and threatened SSSIs in the past will soon run out, as they are now under very substantial legal pressure to recognise their responsibilities towards nature conservation.
The wildlife agencies can now be seen in a different light, too. Their previous role was principally as advisors to the Government. They are now cast in the mould of enforcers similar to the Environment Agency. While this need not undermine their commitments to partnerships with farmers, for example, it does give the tired old watchdogs some teeth at last. The question remains as to whether they are fully aware of what they must do and are willing to do it!
The CRoW Act 2000 is testament to politicians having listened to citizens who indicated overwhelmingly that they wanted better wildlife protection. In practical terms, the measures outlined above turn ‘listing' wildlife legislation into ‘positive conservation' legislation. SSSIs have moved from being valued to being a protected-areas network. Enforcement is not so much improved as made possible. Environmental concerns are also infused throughout Government for the first time. The DETR in England and the National Assembly for Wales will be able to press other Government departments to play a full role in conserving and enhancing biodiversity. If they do not, they will run the risk of being found not to have regard to the Biodiversity Convention.
For environmental campaigners, there is still much to do. The Scottish proposals must survive what may be a more hostile audience and be recognised as a priority. The consultation in Northern Ireland must be turned into solid proposals and then law. In England and Wales, planning policy must be rewritten, and the 1994 ‘habitats' regulations amended. The promised statutory code of guidance on SSSIs has yet to be completed and published. Government commitment to producing similar measures to the CRoW Act for the marine environment has yet to be secured.
Such an Act and package of policy measures cannot deal with all the threats facing wildlife, and there is a long way to go. Massive subsidies are still backing unsustainable farming in Europe. Corporate interests are still predominating over wildlife and citizens' interests around the world. Britain's wetlands are still suffering over-abstraction by water companies. Alien species are still invading land and sea. Dangerous climate change is threatening habitat transformation on a massive scale. Globally, we are facing the biggest extinction event for 65 million years.
At least, in the face of this grim picture, Britain has gone some way to putting its own house in order with this impressive new Act.
General DETR website for CRoW:
www.defra.gov.uk/wildlife-countryside/cl/index.htm
CRoW Act Circular 04/2001-02-02:
www.defra.gov.uk/wildlife-countryside/cl/circular/index.htm
RSPB
www.rspb.co.uk
English Nature (1998) 7th Report: 1st April 1997-31st March 1998. EN, Peterborough
Matt Phillips is Senior Campaigner at Friends of the Earth England, Wales and Northern Ireland. Duncan Huggett is a Senior Policy Officer at the RSPB. Both were involved in the campaign for reform of the Wildlife and Countryside Act.
Article from British Wildlife Vol 12 No4 April 2001
published with the permission of British Wildlife
www.britishwildlife.com/
Contact details:
Friends of the Earth
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Website: www.foe.co.uk
April 2001
Matt Phillips and Duncan Huggett
Last modified: August 2001
