Green light for Nature Bill?

The Nature Conservation Bill, then completing its passage, makes substantial changes to the protections for sensitive habitats

The Journal, April 2004, page 51

The Nature Conservation (Scotland) Bill completed stage 2 of its passage in March. It has extensive implications for the rural environment: it is intended that over 1,000,000 hectares of land will receive further protection and the scope of wildlife crime will be expanded. The bill seeks to overhaul existing legislation and introduce new legal powers to curtail potential harm by landowners, farmers, developers and the public.

A general duty would apply to all Scottish public bodies and office holders to further the conservation of biodiversity. Public bodies would have to have regard to the Rio Convention and to a Scottish biodiversity strategy designated by the Scottish Ministers, when exercising their functions. Ministers would publish lists of species and habitats they consider would further this duty.

Notification of sites of special scientific interest (SSSI) would be extended to “interested parties” including local communities. Parties would be able to raise objections to the designated natural feature to a scientific committee; however, as at present, an objection against designation on economic and social grounds would not be competent. Ultimately selection of the site would still be in the hands of SNH. Operations requiring consent (ORCs) would only be permitted with SNH’s express consent, subject to exceptions. If SNH thought that anyone were carrying out or intended to carry out an operation which would be likely to damage the SSSI, an emergency amendment to the ORCs and SSSI area can be made. Designation would no longer form a delaying device to operations or development but would simply prohibit certain activities on land. Statutory bodies would be under more stringent obligations such as when considering planning applications.

Consent and compensation

A site management statement would be required offering practical guidance and would indicate the need for a management agreement. SNH would be obliged to offer compensation if it refuses or withdraws consent to an ORC or grants consent subject to conditions. This would reflect income foregone, and costs and losses associated with designation. Appeal would lie to the Scottish Land Court. However, compensation would no longer be payable where development is speculative and does not form part of the established use of the land. Nor would land managers receive payment where they require to comply with other regulatory regimes. There would also be no appeal regarding the content of the management statement and it is unclear what would happen if a landholder did not follow the “guidance”.  

SNH would be able to make byelaws in order to deal with problems such as flytipping. Several offences including carrying out or permitting an ORC without consent would be introduced, with maximum fines of £40,000 on summary conviction or an unlimited fine on indictment. It would be no defence that the ORC did not cause any damage. An order requiring restoration of the land could also be made. Ministers could use extended powers to make nature conservation orders prohibiting operations on land forming part of an SSSI and contiguous land. There would be no appeal to the Land Court. SNH could apply for a land management order from the Ministers to oblige the land manager to carry out or cease certain operations; failure to comply would lead to sanctions. There would be a right of appeal. The ultimate control is that SNH could compulsorily acquire the land in question to secure the conservation, restoration or enhancement of any protected feature.

More protection, more penalties

The scope of wildlife crime and defences would be widened alongside increased police enforcement powers; the introduction of wildlife officers; and more stringent penalties. For example, it would become an offence to knowingly cause or permit another person to carry out an act that amounts to an offence relating to the protection of birds, plants and animals. Reckless behaviour towards wildlife and its habitats would also be criminalised and new offences would be created relating to possession of pesticides containing “active ingredients”. Cage-trapping and using nets to take wild birds would be brought under a licensing system. It had been the intention to include the catching-up of game birds for breeding purposes, which would have had a heavy impact on field sport activities, but this was amended out at stage 2.

The bill has not been substantially amended by the Parliament’s Environment and Rural Development Committee since its first introduction and is likely to move into its final stage in the debating chamber in early May. Certainly it will not liberalise the use of sensitive land, nor ease the burden of red tape on land managers and owners, but it may perhaps curb the worst excesses of “wildlife criminals”. It remains to be seen whether MSPs will give the bill the “green” light and approve it in its current form, or refer it back to committee for further stage 2 consideration.

Sarah Baillie, Planning and Environment Group, Anderson Strathern WS