The Marine and Coastal Access Act 2009
The Marine and Coastal Access Act 2009 covers a variety of topics related to sustainable management of the coast and seas in the UK. It establishes a new marine planning system covering social and economic needs as well as nature conservation.
The Act established the Marine Management Organisation (MMO). The MMO has been given the power to enforce sea fisheries, nature conservation and licensing legislation under the Marine and Coastal Access act 2009. Marine regulation and licensing will be retained (or delegated to an eligible body) by the MMO in England and devolved in Welsh inshore waters to Welsh ministers (and subsequently delegated to Natural Resources Wales), in Scottish inshore and offshore waters to the Scottish Executive (Marine Scotland), and in Northern Ireland’s inshore waters to the Northern Ireland Executive (Department of the Environment of the Northern Ireland Executive).
Marine licensing includes licensing for species protected under the Habitats Regulations and the Wildlife and Countryside Act.
The Act also establishes Marine Conservation Zones, which are being designated to protect areas of national importance for biodiversity. Public authorities that can affect Marine Conservation Zones have a duty to further, or at least avoid hindering, their conservation. Once a Marine Conservation Zone is established, the MMO or the devolved authority has the power to create byelaws to further the conservation objectives of the Marine Conservation Zone, for example, by restricting access or protecting animals, plants or other features within the Zone. The Act makes offences of intentionally or recklessly killing, injuring, uprooting, collecting, taking or damaging features which are protected within the Marine Conservation Zone.
Environmental Liability Regulations
Separate regulations derived from the Environmental Liability Directive are in place in all four countries of the UK. These are:
- The Environmental Damage (Prevention and Remediation) (England) Regulations 2009
- The Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009
- Environmental Liability (Scotland) Regulations 2009, as amended
- Environmental Liability (Prevention and Remediation) (Amendment) Regulations (Northern Ireland) 2009
The Regulations reinforce protection already afforded to strictly protected species listed on the Birds and Habitats Directives. Perhaps more importantly, the Regulations provide some protection for the habitats of species that are not strictly protected by the Birds and Habitats Directive outside of designated sites. For example, the Regulations apply to the habitat of birds listed on Annex I of the Birds Directive, whether inside or outside an SPA (or SSSI), this includes some common species such as kingfisher, golden plover and peregrine, and other regularly occurring migratory birds, many of which are common such as chiffchaff, willow warbler, redwing, fieldfare and blackcap.
Specific habitats listed in the Habitats Directive, such as estuaries and heathland, are afforded protection from damage whether inside or outside a designated site. Similarly, habitats used by species listed on the Habitats Directive Annexes (for example, habitat for stag beetle, or streams supporting white clawed crayfish or bullhead) receive the same protection.
The Regulations mean:
- operators may be required to demonstrate measures to prevent negligent or intentional damage to these species or habitats
- where an operator’s action causes damage, they may be obliged to remediate it
Environmental damage in the case of protected species and habitats is defined as damage having a ‘significant adverse effect on reaching or maintaining the favourable conservation status of the protected species or natural habitat’, taking into account factors such as their existing conservation status, capacity to regenerate and their role within the wider ecological community. Depending on how this is interpreted by the relevant authorities, this has potential to be far-reaching and includes a wide range of actions, including those having indirect effects, as well as the more obvious direct effects. Where applicable, the required remediation measures would be determined by the enforcing authority and implemented by the operator proven to have caused the environmental damage.
Environmental Civil Sanctions
(England, Wales and Scotland)
In the face of breaches of wildlife legislation, the relevant agencies previously had the option of issuing warning letters or proceeding to full criminal prosecution. Now these organisations have greater flexibility of enforcement. Again these powers are derived from separate sets of legislation in each country, as follows:
- The Environmental Civil Sanctions (England) Order 2010 and the Environmental Sanctions (Misc. Amendments) (England) Regulations 2010
- The Environmental Civil Sanctions (Wales) Order 2010 and the Environmental Civil Sanctions (Miscellaneous Amendments) (Wales) Regulations 2010
- Regulatory Reform (Scotland) Act 2014
Under these Regulations, the relevant organisations will be able to halt illegal activities, to order the restoration of environmental damage and to impose fines where legislation has been breached. The fines may be up to £250,000. These changes should mean that an appropriate level of action can be undertaken when wildlife law is breached. This may mean that, in cases of minor infringement, a fine will be imposed rather than the warning letters which are currently used in such situations.
The Conservation of Habitats and Species Regulations 2010
(England and Wales)
The Conservation (Habitats &c) Regulations 1994 implemented the Habitats Directive in England, Wales and Scotland. The Regulations identified the species and habitats that should be protected across Europe and set out the measures that should be undertaken to protect them. These included the designation of Special Areas of Conservation and the carrying out of appropriate assessments whenever Special Areas of Conservation and Special Protection Areas could be affected by development or other projects. The Regulations also set out how licensing for European protected species should work.
The Regulations have been amended several times, including the following:
- The Conservation (Natural Habitats, &c.) (Amendment) (England) Regulations 2000
- The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007
- The Conservation (Natural Habitats, &c.) (Amendment) (England and Wales) Regulations 2009
- The Conservation (Natural Habitats, &c.) (Amendment) (No. 2) Regulations 2009
The changes that have occurred as a result of these amendments are many, but include the following:
- Creation of the offence of breaching a licence condition (in 2007), which means that a criminal prosecution could apply to anybody to whom a licence is issued under the Regulations if they fail to follow the method statement or other document which is attached to the licence
- Removal of certain defences in the legislation with regard to protected species (in 2007). The defences were basically exemptions from the legislation which meant that actions that would normally be an offence, such as killing a protected species, would not be regarded as an offence if the conditions of the defence are met. One of the defences was that an offence would not have been committed if it could be shown that the killing, injuring, etc was an incidental result of a lawful operation that could not reasonably have been avoided. This defence, among others, has now been removed from the Regulations
- Refinements (in 2007 and then again in 2009) to what is meant by disturbance of protected species that is sufficient to constitute an offence under the Habitats Regulations. This is now defined as disturbance which is likely a) to impair their ability (i) to survive, to breed or reproduce, or to rear or nurture their young; or (ii) in the case of animals of a hibernating or migratory species, to hibernate or migrate; or b) to affect significantly the local distribution or abundance of the species to which they belong
As a result of the numerous amendments, the Habitats Regulations were becoming difficult to work with and interpret. Therefore, the Conservation of Habitats and Species Regulations 2010 were drafted to replace the 1994 Regulations and all the subsequent amendments. They consolidate all the previous legislation into one document but do not change the previous legal obligations and processes. The 1994 Regulations, as amended, have therefore been revoked, except (generally) as they extend to Scotland.
Amendments to Schedule 9 of the Wildlife and Countryside Act (2010)
(England and Wales)
There are several international conventions and directives (to which the UK is a signatory) that aim to prevent the spread of invasive non-native species. Since 1981, it has been illegal to allow any animal not ordinarily resident in Great Britain to escape into the wild and also illegal to plant, or cause to grow, in the wild, plant species that are listed on Schedule 9 of the Wildlife and Countryside Act. Plant species listed on Schedule 9 include the notorious Japanese knotweed and giant hogweed.
However, it has long been recognised that the number of non-native, invasive species that pose a threat to UK biodiversity is much larger than those found on Schedule 9 of the Wildlife and Countryside Act. Consequently, Defra, the Welsh Assembly Government and the Scottish Executive have undertaken public consultations on amendments.
In England and Wales, the Governments have decided to add around 24 species of animal and around 38 species of plant to Schedule 9. The legislation came into effect on 6th April 2010.
Of particular interest to developers will be the plant species that have been added to Schedule 9. These include several species that are already common in the UK and may turn up on development sites, such as:
- three cornered garlic
- Himalayan balsam
- Virginia creeper
- Rhododendron ponticum
The list also includes several aquatic plant species which are restricted to ponds and waterways.
If one of these species is present on a development site or other land holding, failure to manage the species appropriately could result in an offence being committed. For example, if a plant listed on Schedule 9 is not adequately controlled by the land owner and allowed to spread onto adjoining areas, then this would constitute ‘causing to grow in the wild’’ and would therefore be regarded as an offence.
Amendments to lists of invasive plant species in Scotland
A review resulted in an expanded list of Schedule 9 plants in Scotland in 2005. The amendment was provided by the Wildlife and Countryside Act 1981 (Variation of Schedule) (Scotland) Order 2005. The list of Schedule 9 plants varied from that in England and Wales. In Scotland, it included few-flowered leek, shallon and false-acacia but not, for example, Rhododendron or Himalayan balsam.
Subsequently, the Wildlife and Countryside Act was amended further, this time by the Wildlife and Natural Environment (Scotland) Act 2011. This states that “any person who plants, or otherwise causes to grow, any plant in the wild at a place outwith its native range is guilty of an offence”. There is no longer any reference to Schedule 9 in the Scottish version of the Act. This is very significant change from previous legislation covering this topic. Rather than focusing on specific, problem species, the legislation now refers to any non-native plant, so extends much further than the lists given in England and Wales.
Control of Invasive non-native species
(England, Wales and Scotland)
Building on the prescriptions in the original Wildlife and Countryside Act to control non-native invasive species, additional measures have now been introduced to enable more effective control in England, Wales and Scotland. In England and Wales, this is through additions to the Wildlife and Countryside Act contained within the Infrastructure Act 2015 and in Scotland by The Wildlife and Natural Environment (Scotland) Act 2011. These introduce species control agreements and species control orders, enabling the relevant agency to agree measures to control invasive species with the landowner or as a last resort order the control of such species. The agency can also undertake the control itself and pass the costs on to the land owner. Invasive non-native species are frequently present on development sites and such agreements and orders may be particularly relevant when such sites are dormant or proceeding through the planning process.
Nature Bill 2014
The latter days of the parliamentary term to March 2015 saw the introduction of the Nature Bill 2014 – 2015 (for England). The Bill contained requirements for (i) local authorities to maintain local ecological network strategies and provide access to high quality natural green space; and (ii) the Secretary of State to publish a list of species most threatened with extinction and to set biodiversity targets for 2040. The Bill also included the creation of Natural Capital Committee and a proposed amendment to the Education Act, requiring education about the natural environment to be on the curriculum for maintained schools. The Bill got as far as its first reading but no further. It may be that these ideas resurface in the next parliament.
The Environment (Wales) Bill 2015
The Environment (Wales) Bill was introduced on 11th May 2015 to create the legislation needed to plan and manage Wales’ natural resources in a more sustainable and joined-up way. One of the measures included in the Bill is the enhancement of the biodiversity duty in Wales. Previously, under the NERC Act, public authorities in England and Wales must have regard to conserving biodiversity. The Environment (Wales) Bill, if enacted, will require all public authorities, when carrying out their functions in Wales, to seek to “maintain and enhance biodiversity” where it is within the proper exercise of their functions and to seek to “promote the resilience of ecosystems”.
Proposed Wildlife Bill resulting from the Law Commission Review (2015)
(England and Wales)
The Law Commission undertook a review of the law relating to the conservation, control, protection and exploitation of wildlife in England and Wales. One outcome of the review was new primary legislation for control of invasive species which has been included in the Infrastructure Act 2015. The final report was published in November 2015. As well as a discussion of the findings, the Law Commission drafted a proposed Wildlife Bill. If enacted, it would result in a single statute which covers the species-specific law on the conservation, protection and exploitation of wildlife, and would replace these elements of the Wildlife and Countryside Act and of the Habitats Regulations. The Bill addresses various short-comings in the existing legislation. The Governments of both the UK and Wales have made clear that neither intends to bring forward the Bill in the immediate future. The main reason given by both is the pending departure of the UK from the European Union and the opportunity that presents to review or strengthen wildlife legislation. The lack of parliamentary time for the Bill was also cited as a reason.
The Great Repeal Bill (2017 or later)
The European Communities Act 1972 provides the legal basis for the UKs membership of the European Union. At the point at which the UK leaves the European Union this Act will need to be repealed by a further act of parliament. The European Communities Act is also the primary legislation upon which most or all of the secondary legislation derived from European Directives is attached. Repealing this Act therefore has the possibility of repealing all of the secondary legislation as well. However, as more than 13% of all UK law is derived from European directives, such an action would create a legal ‘black-hole’ by removing much desirable legislation. Therefore, the UK government is proposing to save most or all of the existing secondary legislation derived for the European Directives after the European Communities Act is repealed. This will be set out in the so-called ‘Great Repeal Bill’, the precursor to the Act which will repeal the European Communities Act. It should mean that there is no immediate change to the legal protection of wildlife in the UK as a result of the departure from the European Union. The Government has now published a white paper setting out its proposals for the repeal bill.