Natural Act (2)

Protecting wildlife (Part 3), NERC Act 2006

Conserving biodiversity

Section 40(1) of the Act extends and replaces the duty under s 74 of the Countryside and Rights of Way (CROW) Act 2000, imposing on every public authority a duty 'in exercising its functions, [to] have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity'.

'Conserving biodiversity'under s40(3) includes 'in relation to a living organism or type of habitat, restoring or enhancing a population or habitat'. Although statutory context suggests that it was not Parliament's intent, there is actually nothing on a literal reading to stop s 40(1) being applied to homo sapiens, as a living organism.

The concept of 'public authority' is not left to common law. Instead, it is extensively defined at s 40(4) and includes local government down to parish councils, as well as statutory undertakers within the meaning of Part 11 of the Town and Country Planning Act 1990. However, only central government and the Welsh Assembly need have regard to the United Nations Environmental Programme Convention on Biological Diversity of 1992 when discharging the s 40(1) duty (s 40(2)).

The duty 'to have regard to' the purpose of conserving biodiversity will, then, always be a relevant consideration in public law decision-making that touches on issues of wildlife and nature, however peripherally. Any public authority that does not, or does not manifestly, consider it in those circumstances will be vulnerable to review.

The Secretary of State must 'publish a list of the living organisms and types of habitat which in the Secretary of State's opinion are of principal importance for the purpose of conserving biodiversity' (s 41(1)), after consultation with Natural England before publication (s 41(2)) and every time the list is reviewed or revisited (s 41(4)). Section 41(2) imposes, without prejudice to s 40, an even stronger duty on the Secretary of State to:
'(a) Take such steps as appear'¦ reasonably practicable to further the conservation of the living organisms and types of habitat included in any list published under this section, or (b) promote the taking by others of such steps.' Similar duties apply in Wales under s 42.

In practice, questions about the discharge of these duties and the exercise of discretion in so doing seem most likely to arise in connection with rural planning issues and public works schemes, such as road-building.

Use of pesticides harmful to wildlife

Part 1 of the Wildlife and Countryside Act (WCA) 1981 made it an offence to set or use poisoned bait but, as explained in Explanatory Note 117 to the Act, 'in practice, it has been difficult to prove that the person set or used the bait'. Under s 43, the Note continues, 'it will not be necessary to show this'. It will be sufficient to be found in possession of a pesticide containing an ingredient prescribed by order of the Secretary of State (s 43(1)). Orders will be made by statutory instrument by negative resolution (s 43(7)) on the basis of necessity and expediency in the interests of protecting wild birds or animals from harm (s 43(2)).

The offence is summary-only, carrying a £5,000 maximum fine or (currently) up to six months' imprisonment. As is usual with strict liability offences, there is a statutory defence available, by proving that the possession of the pesticide was for the purposes of doing anything in accordance with certain statutory regimes (s 40(3)).

Section 44 sets out powers available to inspectors authorised by the Secretary of State or the National Assembly for Wales. These include powers of entry to premises where the inspector has reasonable grounds to suspect commission of the s 43 offence, and seizure of any substance found on the premises, where the inspector has reasonable grounds for believing that it is evidence of commission of the offence (s 44(1)). Enforcement is not, however, governed by s44 alone; rather, s44 needs to be read with Sched 2 of the Food and Environment Protection Act 1985, which has effect by s 44(4). Notably, this requires a warrant from a magistrates' court to authorise entry into a dwelling-house.

On a practical level, farmers and landowners will need to ensure they have an up-to-date knowledge of prescribed substances and have centralised records of pesticides in their possession or ownership.

Protection of birds

Sections 47 to 49 strengthen the regime for the protection of birds under the WCA 1981. It will be an offence to take, damage or destroy the nests of birds that re-use their nests (s 47, amending s 1 and referring to Sched ZA1 of the WCA 1981). Birds protected are the Golden Eagle, White-tailed Eagle and Osprey, but the Secretary of State may amend the list by order.

Birds bred in captivity and lawfully released into the wild as part of a re-population or reintroduction programme will benefit from similar protection (s 48(1), introducing a new s 1(6) to WCA 1981). It is also an offence to sell, offer or expose these birds for sale or have them in one's possession or transport them for the purposes of sale (s 48(2), introducing a new s 6(5) to WCA 1981).

Section 49(1) amends s 7 of the WCA 1981, making it an offence to keep or possess a bird listed in Sched 4 to the 1981 Act within five years of being convicted of an offence under s 7(1) of the WCA 1981. (Section 7(1) makes it an offence to keep or have in one's possession a Sched 4 bird that has not been registered and ringed or marked.)

Invasive non-native species

Section 50 adds a new section to the heavily -augmented WCA 1981:ï'žµnew s 14ZA creates an offence of selling, offering or exposing for sale or possessing or transporting for sale an invasive non-native plant or animal or anything from which they could be reproduced or propagated. Such plants and animals are defined by reference to s14 of the 1981 Act, must be prescribed on a new list by the Secretary of State (new s 14ZA(3)(b) of the Act) and must be live.

The offence is strict liability; the defence of having taken all reasonable steps and exercised all due diligence to avoid its commission is found in the pre-existing ss 14(3) and (4) of the 1981 Act.

Enforcement of provisions relating to wildlife

Section 52 and Sched 5 amend the WCA 1981 to increase the scope of wildlife inspectors' powers. Schedule 5 Pt 1, inserting ss 18A-18F of the WCA 1981, is the engine for this increase. WCA 1981 offences are categorised into 'Group 1' and 'Group 2' for these purposes (see box 1, above). The Group 2 offences broadly correspond with those that CROW Act 2000 amendments to the WCA 1981 enabled wildlife inspectors to enforce. According to Explanatory Note 145, Group 1 offences 'mainly deal with the animals, birds and plants that are found in the wild and of which it is rare for any person to have possession or control'.

Schedule 5 Pt 1, para 3 also enhances powers for constables in connection with the taking of samples.

Schedule 5 Pt 2 extends the Sched 5 Pt 1 enforcement regime for Group 1 WCA 1981 offences to what DEFRA has identified as 'the other four main pieces of wildlife legislation in England and Wales' (Explanatory Note 148): the Destructive Imported Animals Act 1932, the Conservation of Seals Act 1970, the Deer Act 1991, and the Protection of Badgers Act 1992. Part 4 of Sched 5 extends police powers of entry by warrant under s 19(3) of the WCA 1981 to these four statutes.

As a whole, s 52 and Sched 5 significantly increase the 'policing' powers exercisable by wildlife inspectors. In this connection, the government's comments are noteworthy: it does not intend that wildlife inspectors will usurp the police as general enforcers of wildlife legislation; the role of inspectors will be to enforce licences and regulatory activity; and, inspectors should not engage in 'fishing trips' (Hansard, HL, vol 680, col 48 '“ 20, March 2006). It remains to be seen whether this is borne out in practice.

Section 53 and Sched 6 amend the time limits for the prosecution of summary offences under not only the WCA 1981, but also the four statutes listed above. The drafting scheme is becoming increasingly familiar in criminal legislation:

• Proceedings may be brought within six months, beginning with the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to the prosecutor's knowledge.
• A certificate signed by or on behalf of the prosecutor and stating the date on which evidence sufficient in his opinion to warrant the proceedings came to his knowledge shall be conclusive evidence of that fact.
• The long-stop date for bringing proceedings is two years from the date of the offence.

In Explanatory Note 99 to the Animal Welfare Bill (enacted as the Animal Welfare Act on 8 November 2006) DEFRA put forward policy reasons for a similar increase in the time limit for prosecuting animal cruelty offences: 'Under the existing law, which requires that a prosecution be commenced within six months of the date of the offence being committed, it has sometimes proved difficult to prosecute for cruelty to animals when evidence of the offence has not been discovered until some considerable time after the offence was committed.' Aside from its circularity, the reasoning is as woolly there as it would be in relation to WCA 1981 offences: given the transient nature of animals and plants, as well as their surroundings, a six-month time limit for prosecution is appropriate. It should also be sufficient: for a more fundamental public policy reason, promoting legal certainty in relation to offences that Parliament deems to be less serious '“ and, hence, summary-only.

Section 54 inserts a new s 66A into the WCA 1981, applying Pt 1, WCA 1981 and its subordinate legislation to the Crown. By s 66A(2), the Crown will, however, enjoy immunity from criminal, though not civil, proceedings for any contravention of the WCA 1981.

Sites of Special Scientific Interest (SSSIs) regime (Part 4)

Schedule 9 of the CROW Act 2000 substantially revised the regime governing SSSIs, which is to be found in the WCA 1981. The new Act makes minor additions to that regime (Part 4).

Section 55(2) of the 2006 Act inserts a new either-way offence in s 28P of the WCA 1981, where, without giving the required statutory notice, a public authority in the exercise of its functions, carries out an operation that damages flora, fauna or geological or physiographical features that are the basis of the SSSI designation, it commits a strict liability offence. The statutory defence is 'reasonable excuse', which includes carrying out an emergency operation, particulars of which were notified to Natural England as soon as practicable after permission was given for it (s 55(2)).

Section 55(3) creates a new summary-only offence (s 28P(6A), WCA 1981) where a person, without reasonable excuse, intentionally or recklessly destroys, or damages flora, fauna or geological or physiographical features that are the basis of the SSSI-designation, or disturbs those fauna

Section 57 provides a saving provision for the failure to serve statutory notices relating to SSSIs, where the relevant conservation body has taken all reasonable steps to do so. Section 58 confers a general power on the newly constituted Natural England to erect, maintain and remove notices on SSSI land about that SSSI.

Clarifying designation rules for National Parks and the Broads (Part 5)

Section 5 of the National Parks and Access to the Countryside Act (NPACA) 1949 sets out the criteria for designating National Parks. Section 59 of the 2006 Act inserts a new subs (2A), which brings the criteria into line with the purposes as set out in s 5(1) of the NPACA 1949. Thus, when considering the natural beauty of land, Natural England (now the designating authority) may consider its wildlife and cultural heritage (new s 5(2A)(a), NPACA 1949) and, when considering the opportunities that extensive tracts of land afford for open-air recreation, it may consider the extent to which it can promote opportunities for the understanding and enjoyment of its special qualities by the public (new s (2A)(b), NPACA 1949).

This is by way of legal clarification. In Meyrick Estate Management Ltd v Secretary of State for Environment, Food and Rural Affairs [2005] EWHC 2618 Admin, Sullivan J quashed the designation of part of the New Forest National Park on the basis that the Secretary of State had erred in law, considering matters other than the naturalness of the landscape. Section 59 reinstates the link between the purposes of National Parks and the criteria for choosing their designation, which, prior to Meyrick, had been thought to exist.

Section 64 amends the Norfolk and Suffolk Broads Act 1988 to align the first two purposes of the Broads Authority and other relevant authorities with the first two purposes of National Parks under s 5 of the NPACA 1949.

Section 60 makes procedural amendments to the NPACA 1949 for orders designating National Parks. Significantly, s 60(5), by amendment to Sched 1 to the 1949 Act, provides that an English parish council or Welsh community council is unable to trigger automatically a public inquiry into designation of a National Park or amendment of its boundary. The inference from Explanatory Note 171 is that this will prevent a self-interested, lone parish or community council placing obstacles in the way of designation. An alternative reading is that the amendment will facilitate designation by central government without local objection.

Flexible administrative arrangements (Part 8)

Part 8, Chap 1 contains a legislative mechanism for the Secretary of State to enter into agreements with designated bodies (listed in Sched 7) in order for those bodies to perform DEFRA functions (s 78). Section 81 reserves certain functions to the Secretary of State, which cannot be delegated by agreement. Section 79 provides the mechanism for agreements between designated bodies.

Chapter 2 empowers the Secretary of State in England and relevant devolved authorities elsewhere to establish and dissolve agricultural boards. Chapter 3 enables the Secretary of State to give or arrange financial assistance in respect of expenditure on or connected with a DEFRA function.

Miscellaneous provisions (Part 9)

An area that consist of or includes land used for agriculture, woodlands, as a park or its flora, fauna or whose physiographical features are partly the product of human intervention in the landscape does not prevent it being treated for statutory purposes as an area of (outstanding) natural beauty (s 99). This is intended to give a broader meaning to 'natural beauty' than Sullivan J found in Meyrick.

Conclusion

The NERC Act 2006 is, like the curate's egg, good in parts. Part 6 introduces welcome reforms to the law relating to the public rights of way, in response to genuine concerns from users and landowners. However, those changes merely ameliorate what is a fundamentally unsatisfactory and uncertain system for determining whether property is encumbered by public rights of way. After such recent parliamentary attention, any fundamental reform seems far off.

The Act displays a centralising tendency. At least for economic reasons, the merger of two public bodies (English Nature and the Countryside Agency) into one (Natural England) seems to be a beneficial result; the removal of local powers to cause an inquiry into National Park designation perhaps less so.

It remains to be seen whether such an overtly political innovation as the 'rural advocate' will improve the lot of rural communities or whether this voice will be heard by central government.