Natural Act (1)

Certain provisions of the Natural Environment and Rural Communities (NERC) Act 2006 excited great parliamentary interest and furious lobbying from interested groups; others did not. The Act will be best known in the short term for stopping off-roaders opening up lost ways to 4x4s and trail bikes. The establishment of the Commission for Rural Communities, for example, has attracted less attention.

In summarising the scope of a wide-ranging Act, one can do worse than to look at its long title:

'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.'

In two parts, this article provides an overview of the Act, focusing on the more interesting and significant provisions. It is extensive, but not exhaustive, and is correct to 1 October 2006. Statutory references are to the NERC Act 2006 unless otherwise indicated.

Structural changes

Parts 1 and 2 of the Act provide for the reconstitution of the agencies responsible for the natural environment and conservation. In addition, Part 1 establishes the Commission for Rural Communities, which has a distinct, new role.

Natural England: Part 1, Chapter 1

Section 1 establishes Natural England as a successor to English Nature and the Countryside Agency, which are dissolved. 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' (s 2(1)). Section 2(2) provides a non-exhaustive list of what that general purpose includes:

'(a) promoting nature conservation and protecting biodiversity;

(b) conserving and enhancing the
landscape;

(c) securing 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.'

Any public lawyer looking for clarification of meaning, for example to answer the question whether Natural England is acting within or without its statutory purposes, will be disappointed. Sections 2(1) and (2) are to be given their natural meanings, save that 'nature conservation' means 'the conservation of flora, fauna or geological or physiographical features', and 'research' includes 'inquiries and investigations' (s 30(2)). The Explanatory Notes to the Act explain: 'The terms 'natural environment' and 'benefit' are not defined but are meant to be broad and encompassing, going wider than the specific purposes listed in subsection (2).'

Further, the list of purposes in s 2(2) is in no way hierarchical. The government resisted parliamentary pressure to prioritise purposes (a) and (b) over (c) to (e), as a mechanism for resolving conflicting purposes (eg, conserving the landscape versus promoting access). Section 2(2) in its final, unprioritised form creates a less certain background for consistent and rational policy-making and implementation.

Natural England is under duties to keep under review all matters relating to its general purpose (s 3(1)) and to give advice on matters relating to its general purpose to public authorities on request. It enjoys a general power to ''a) carry out proposals which appear to it to further its general purpose, or (b) assist in, coordinate or promote the carrying out of such proposals by others' (s 5). Additionally, it may:

• Give advice on matters relating to its general purpose to any person, on their request or on its own initiative (s 4(4).
• Give financial assistance, by way of loan, grant or guarantee, to anyone to further its general purpose (s 6).
• Enter into management agreements as to use of land (s 7).
• Carry out and promote experimental schemes to establish ways of furthering its general purpose (s 8).
• Publish documents and provide information about any matter relating to its general purpose (s 9).
• Provide consultancy services and training through its employees (s 10).
• Institute criminal proceedings (s 12).

The s 12 power to institute criminal proceedings is by way of a general power, rather than by reference to specific offences.

Natural England is also empowered to charge for its services (s 11), and, at least in theory, this includes for providing unsolicited advice under s 4(4)(b).

Sections 14 to 16 establish the relationship between the Secretary of State and Natural England. Central government may make grants to Natural England (s 14). It must give guidance to Natural England in relation to the exercise of its functions relating to planning and may give guidance as to the exercise of its other functions (s 15). Lastly, it has a power to give directions to Natural England as to the exercise of its functions (s 16).

Commission for Rural Communities: Part 1, Chapter 2

According to Margaret Beckett MP, former Secretary of State for the Environment, Food and Rural Affairs: 'The creation of the Commission for Rural Communities gives rural people '“ especially the disadvantaged '“ a strong voice to ensure that policies deliver for them, their communities and their businesses.' The Act gives the Commission, which was established on 1 April 2005, corporate status and a legal framework for operation.

The Commission's general purpose under s 18(1) is to promote:

(a) awareness of rural needs to the public and to public authorities and/or bodies concerned with rural needs; and

(b) meeting rural needs in ways that contribute to sustainable development.

'Rural needs' are defined as 'the social and economic needs of persons in rural areas of England' (s 18(3)) and, in determining those needs, the Commission must have particular regard to '(a) persons suffering from social disadvantage, and (b) areas suffering from economic under-performance' (s 18(4)).

Its functions include: representing rural needs; providing information and advice about rural needs; and monitoring policy initiatives of other bodies in this area (s 19). From the title conferred on Stuart Burgess, the first chairman of the Commission - 'Rural Advocate' '“ it appears that the first of those functions is given particular emphasis.

Joint Committee for Nature Conservation

In its own words, the Joint Committee for Nature Conservation (JNCC) is 'the UK Government's wildlife adviser, undertaking national and international conservation work' on behalf of the national nature conservation agencies. Previously, the agencies have been limited to those for England, Scotland and Wales. With limited exceptions, the JNCC now acts for and advises Northern Ireland's Council for Nature Conservation and the Countryside as well.

Section 31 and Schedule 4 provide the JNCC with a more secure basis for operation than it has previously enjoyed. The Act reconstitutes it as a company limited by guarantee with power to employ its own staff and pay its chairman and independent members. Section 33(1) provides that the JNCC, as well as the individual agencies, have functions conferred on them for the purposes of nature conservation and fostering the understanding of nature conservation. Significantly, s 33(2) provides that, in discharging its functions, each must have regard to:

'(a) actual or possible ecological changes, and

(b) the desirability of contributing to sustainable development.' (emphasis added)

Thus, for the first time, climate change becomes a touchstone for policy development and implementation.

Sections 34 to 36 regulate the relationship between the JNCC and the individual agencies. The agencies have a number of functions that can only be discharged through the Joint Committee: advising central and devolved government, establishing common standards through the UK, and initiating or supporting research (s 34). The individual agencies for England, Scotland and Wales only are responsible for listing protected animals and plants under ss 2 2(3) and 24(1) of the Wildlife and Countryside Act 1981. Those functions too can only be exercised through the JNCC (s 36).

The JNCC may give advice or information to individual agencies. The agencies must have regard to it in discharging their functions (s 35).

Inland Waterways Advisory Council: Part 7

Part 7, when brought into force, will restructure and rename the Inland Waterways Amenity Advisory Council, established by s 110 of the Transport Act 1968. The Inland Waterways Advisory Council, as it will be known, is given operational and financial independence from the Waterways Board; its English and Welsh operations are to be funded by the Secretary of State and its Scottish operations by the Scottish Executive (s 75). Sections 76 and 77 impose on the newly-constituted Council statutory duties to advise the executive branches of government in England and Wales and Scotland, as well as the relevant navigation/waterways authorities, about matters relevant to inland waterways.

Rights of Way '“ Part 6

Part 6 of the Act excited most interest during its passage through Parliament. As reported in the national press, the last decade has seen a controversial increase in the use of rural byways open to all traffic (BOATs) or 'green lanes', as they are more colloquially known, by motorbikes and four wheel-drive vehicles. Well before the introduction of the NERC Bill, this interest provoked an increase in applications to surveying authorities (usually county councils) under s 53(5) of the WCA 1981 to recognise vehicular rights over routes that had fallen into disuse or which were limited to use on foot or horseback. The underlying common law principle was, 'once a highway, always a highway': ie, unless a 19th century cart road was formally stopped up, the public right to use it as such, including with mechanically propelled vehicles (MPVs), never ceased.

Two more recent developments set the scene for frenzied lobbying over Part 6 of the NERC Bill. First, in December 2003, DEFRA published its consultation document 'Use of mechanically propelled vehicles on rights of way', with a view to introducing legislative control of off-road vehicles. This provoked a large number of s 53(5), WCA 1981 applications by off-roaders to recognise byway rights, in anticipation of legislation preventing old cart-roads accommodating motorised vehicular use.

Secondly, the House of Lords gave judgment in Bakewell Management v Brandwood [2004] 2 All ER 305, on 1 April 2004. The wider ratio of that case was that the offences of driving without lawful authority on footpaths, bridleways and restricted byways ( s 34, Road Traffic Act 1988) or on common land (s 193, Law of Property Act 1925) did not prevent rights of way through long use accruing. Bakewell was concerned with acquisition of private rights of way by prescription. However, the principle holds good for acquisition of public rights of way by statutory deemed dedication (s 31, Highways Act 1980) or common law implied dedication.

Section 66 of the NERC Act 2006 severely restricts the creation of new public rights of way for MPVs to where there is express legislative provision (s 66(1)(a)) or construction under statute of a road intended to confer such rights (s 66(1)(b).

The creation of public rights of way for MPVs by dedication deemed from long-use has, by implication, also given rise to 'lower' rights: eg. footpath and bridleway rights. For clarity, s 66(2) ends this: long use by MPVs will no longer impliedly create 'lower' rights.

Section 67 was the most controversial of Part 6. Subject to specific exceptions, it extinguishes extant (and typically latent) public right of way for MPVs that, at commencement, were not shown on the definitive map and statement or which were shown as 'lower' rights of way. The exceptions are:

• Where the main lawful public use of the route in the five years before commencement was by MPVs (s 67(2)(a)). As a matter of evidence, would-be applicants may well find it difficult to demonstrate 'main' use over a five-year period.
• Before commencement, the way was shown in a list of highways maintainable at the public expense (s 67(2)(b)).
• The right of way was created by enactment, instrument or otherwise, making express provision for MPV rights (s 67(2)(c)), ie, reflecting s 66(1)(a).
• The right of way was created by the construction, in exercise of statutory powers, of a road intended for MPV-use, ie, reflecting s 66(1)(b).
• The right of way was created by long-use by MPVs prior to 1 December 1930 '“ on which date s 14(1), Road Traffic Act 1930 came into force, creating the offence of driving a motor vehicle common land, moorland, other land not forming a road and on any road being a bridleway or footpath.

Section 67(3) provides further exceptions to s 67(1):

• An application made under s 53(5), WCA 1981 to add a BOAT to the definitive map prior to 20 January 2005 in England or 19 May 2005 in Wales will be determined on the pre-NERC Act basis (s 67(3)(a)): ie, if the application is successful, public rights for MPVs will be recorded on the definitive map and statement.
• Section 67(3)(b) preserves MPV-rights where such a WCA 1981 application has been determined positively by the surveying authority before commencement of the NERC Act 2006.

The s 67(3)(c) exception and s 67(5) protect the landowner against the Act operating to 'landlock' property. Rights of public use by MPVs are not extinguished where a person with an interest in land has applied under s 53(5) WCA 1981 and, immediately before commencement, use of the way by MPVs was reasonably necessary to enable access to that land (s 67(3)(c)(i)) or would have been reasonably necessary to enable access to part of the land, if he an interest in part only (s 67(3)(c)(ii)).

Section 67(5) operates to create a private right of way for the landowner in similar circumstances to s 67(3). However, s 67(5) does not require an application to have been made under s 53(5) of the WCA 1981 before commencement of the Act.

As to the recognition and recording of an easement under s 67(5), a landowner could seek declarations from the High Court or a county court that:

(a) a public right of way for MPVs subsisted before commencement of the NERC Act, either by long-use or on a historical basis; and

(b), by s 67(5), a private right of way for MPVs had arisen.

Provided no s 53(5) of the WCA 1981 application for MPV rights had been made prior to commencement, declaration (a) would only expose the landowner to the risk of public restricted byway rights being recorded on the definitive map: ie the right of public use with a horse-drawn vehicle.

Alternatively, there seems no objection in principle to a landowner applying to the Land Registry on form AP1 to register an easement under s 67(5): it would only require the Land Registry to recognise that, on the balance of probabilities, the evidential pre-conditions for the right arising had been met.

Section 31 of the Highways Act 1980 provides the basis for most applications to add public rights of way accruing through long-user to the definitive map and statement. It creates a presumption of the landowner's intention to dedicate if the applicant can shown 20 years' user as of right without interruption before the user is brought into question; it is then for the landowner to rebut the presumption, by demonstrating that he had no such intention. Section 69 of the NERC Act provides that, where the s 53(5) of the WCA 1981 application to record the right of way on the definitive map is the event that brings use into question, the date of the application is to be treated as the date on which use was brought into question. This may appear self-evident; in practice, it has not been and this clarification is welcome.

On 11 May 2006, SI no 1279 brought s 47(2) of the Countryside and Rights of Way (CROW) Act 2000 into force, redesignating all roads used as public paths (RUPPs) as restricted byways and, thereby, extinguishing unclaimed public rights of access for MPVs on such routes. Sections 70(3) and (4) offer protection against prosecution under the Road Traffic Act 1988 to people with an interest in land or their visitors who drive an MPV on what was a RUPP prior to 11 May 2006, which route was in use by MPVs for obtaining such access.

Also in response to the debate about MPV-access, when brought into force, s 72, NERC Act will enable National Park Authorities to make Traffic Regulation Orders under the Road Traffic Regulation Act 1984. The power extends to BOATs, restricted byways, bridleways and footpaths, as well as to unsurfaced carriageways.

Overview of the NERC Act 2006

Part 1 Natural England and the Commission for Rural Communities

Part 2 Nature Conservation in the UK

Part 3 Wildlife etc.

Part 4 Sites of Special Scientific Interest

Part 5 National Parks and the Broads

Part 6 Rights of way

Part 7 Inland waterways

Part 8 Flexible administrative arrangements

Part 9 Miscellaneous

Part 10 Final provisions