habitats directive and the uk conservation framework and ... · in europe, perhaps 22% of higher...

The habitats directive and the UKconservation framework and SSSI system

Research Paper 94/90

15 July 1994

The habitats directive is one of the most significant wildlife and habitats protection measuresto be produced in the last ten years or even twenty years. It will be transposed into UK lawby the Conservation (Natural Habitats, &c.) Regulations 1994. This paper considers theRegulations and reviews the existing UK conservation framework, including the SSSI system.

Patsy HughesScience and Environment Section

House of Commons Library

CONTENTS

Page

I. Introduction 1

II. The international habitat conservation framework 5

A. Bern convention 5B. Bonn convention 5C. Ramsar convention 6D. Biodiversity convention 7E. Birds Directive 7F. Habitats Directive 12

1. Main Provisions 122. Effects on Bird Directive 14

III. The UK habitat cons ervation framework 17

A. National Parks 17B. Areas of outstanding natural beauty 17C. Scotland: National Scenic Areas and Natural Heritage Areas18D. Environmentally sensitive areas 18E. Heritage coasts 18F. National nature reserves 19G. Local nature reserves 19H. Marine Nature Reserves and the problem of subtidalprotection 20

IV. The UK SSSI system 24

A. Selection and designation 24B. Management and protection 25C. Criticisms of the SSSI system 26

1. Low penalties 272. Voluntary basis 273. Damage by third parties 284. Nature and cost of management agreements 295. Land use- the example of the Cairngorms 30

6. Off-site damaging activities 317. Developments on SSSIs 31

D. Damage to SSSIs 34

V. The Conservation (Natural Habitats &tc.) Regulations 38

A. Procedures for UK implementation of Directives1 38B. Part II Conservation of natural habitats 39

1. Site selection and registration 392. Management agreements 413. Control of potentially damaging operations: SNC0s 424. Byelaws and compulsory purchase powers 445. European marine sites 44

C. Part HI Protection of species 46D. Part IV Adaptation of planning controls 47

1. Requirement to consider effect on a European site 472. Planning 48

Appendix 1 51Special Protection Areas already designated under the Birds Directive

Appendix 2 54Potential Special Areas of Conservation

Appendix 3 55Acronyms

1


I. Introduction

The Conservation (Natural Habitats, &c.) Regulations 1994, which have been laid under theEuropean Communities Act 1972, transpose into UK law the EU Habitats Directive (CouncilDirective 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora).

The Habitats Directive was adopted on 21 May 1992 and is one of the most important piecesof wildlife legislation to be agreed in the last ten or even twenty years; it is the "main vehiclethrough which the EC is endeavouring to safeguard its precious natural heritage"1.

The Directive further implements and gives force at an EU level to the Bern Convention onthe Conservation of European Wildlife and Natural Habitats, which was drawn up by theCouncil of Europe in September 19792.

Loss of natural habitats has been partly a historical process in Europe, with, for instance, 90%of the woodland cover in the UK being lost over the past 5000 years3. However, it is acontinuing process which has accelerated over the past 50 years. Between 1984 and 1990there was a net decrease of 23% in the length of hedgerows in the UK, and built up landincreased by 4%4. Most of the reforestation in the UK in recent years has been through anincrease in conifer (5%), rather than broadleaf woodland (less than 1%).

In Europe, perhaps 22% of higher plants, 52% of fish and 42% of mammal species arethreatened5. In the UK, 94 endemic animal species and 168 plant species are protected underthe Wildlife and Countryside Act 1981, which reflects "the Government's concern for thosespecies at risk"6. The plant species richness of grasslands, woodland and arable fields in theUK has fallen significantly since 1978, and although species richness in moorlands has risen,this may be associated with disturbance4.

The Directive aims to contribute towards ensuring biodiversity through the conservation ofnatural habitats and of wild fauna and flora7. A Natura 2000 network of conservation siteswill be established. They will contain specific habitat types and the habitats of vulnerablespecies. Habitat Directive sites will be known as special areas of conservation (SACs), butthe network will also include the special protection areas (SPAs) already designated under

1"The EU Habitats Directive" John Faulks, European Environment, Spring 1994 pp12-262Manual of Environmental Policy: the EC and Britain Nigel Haigh, Institute for European Environmental Policy,1992 and updated3Biodiversity The UK Action Plan Cm 2428 HMSO 19944Countryside Survey 1990 Main Report Department of the Environment 19935Special issue on Bern Convention, Naturopa newsletter No 4 (1993) Council of Europe 6HC Deb 11 July 1994 c474w7Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna andflora OJ L 206, 22.7.92, p.7


the Wild Birds Directive 79/409/EEC. However, during negotiations on the Habitats Directiveit was decided to remove some of the protection afforded to SPAs as established by case law;please see section II.F.2. All Natura 2000 sites are termed European sites in the UKRegulations.

The legislative and administrative provisions needed to meet the Directive's requirements hadto be put in place by Member States by June 1994. In October 1993 the DoE/Welsh Officeand the Scottish Office issued consultation papers concerning the Directive's implementation8.

The key existing terrestrial designation in the UK is the SSSI (Site of Special ScientificInterest) or the ASSI (Area of Special Scientific Interest) in Northern Ireland. Around 6000SSSIs have been notified. A 1991 report for Wildlife Link9 (the umbrella organisation formost of the UK's major conservation groups) concluded that SSSIs were failing to safeguardadequately Britain's finest wildlife sites.

The National Audit Office recently reported English Nature/Nature Conservancy Councilfigures showing that since 1987, 869 cases of loss and damage to SSSIs have been recordedin England alone10. In 1993, 40 SSSIs suffered long term damage, a higher number than inany previous year, and 107 suffered short term damage (expected to recover within 15 years). SSSIs cannot exist below low water mark, so the key marine designation is the marine naturereserve (MNR). Yet only two MNRs have ever been established in the UK, largely becauseof the procedures that conservation agencies have to observe before designation, especiallyconsultation with local fishing communities11.

In a 1992 report which cited case studies to illustrate some of the problems associated withthe SSSI and MNR systems, the World Wide Fund for Nature concluded12:

"It is suggested that new legislation should be drafted which is sufficientlyflexible to encompass protection for both marine and terrestrial sites in onedesignation.

...The UK Government could choose to implement the Directive in the mostminimal way, avoiding the opportunity to review the mechanism for sitesafeguard in this country by tinkering with existing legislative and

8Implementation in Great Britain of the Council Directive on the conservation of Natural Habitats and of WildFlora and Fauna (92/43/EEC), The Habitats Directive. Consultation Papers, DoE/Welsh Office and ScottishOffice, both 4 October 1993 9SSSIs: A Health Check. A Report for Wildlife Link. T A Rowell, Wildlife Link, December 1991. 10Protecting and Managing Sites of Special Scientific Interest in England. National Audit Office, 11 May 1994HMSO HC 37911D Laffoley, J M Baxter, R J Bleakley and M Richards [in press] Marine Protected Areas in the UnitedKingdom: Past Experience and Future Opportunities. In: Proc. 2nd Int. Conf. on the Science and Managementof Protected Areas, Dalhousie University, Nova Scotia, 16-20 May 1993.12The Habitats Directive: Time for Action WWF UK (World Wide Fund for Nature) November 1992


administrative structures. This is not good enough if we are to be sure ofsecuring a future for the myriad of species and habitats which constitute ourbiodiversity".

The former head of the Nature Conservancy Council, Sir William Wilkinson, has said13:

"I think the Government should jump at the opportunity to legislate as part ofits post-Rio programme on biodiversity. Otherwise I see great pressure onnature conservation sites as the recession ends. We could see a flood ofdevelopments on SSSIs, unless they are turned from a system of notification,to one of protection."

However, the Directive is being implemented by statutory instrument, not through newprimary legislation, and the SSSI system will be used as the bedrock for the European sitenetwork. (The use of the European Communities Act 1972 to implement Directives isdiscussed in section V.A.) The RSPB has commented14:

"The Government has clearly done as little as possible to meet therequirements of this Directive. The chance for the UK to take the lead inwildlife conservation in Europe has been sacrificed to expediency andGovernment in-fighting. By allowing the annual damage to hundreds of ourbest wildlife sites to continue, the Government shows that it is afraid to takeits responsibilities to protect habitats seriously. Relying on a voluntary systemto protect important marine areas is a disaster".

However, just before the present Regulations were published, English Nature commented15:

"Essentially, because Britain is in the vanguard amongst European nations inthe way it protects its wildlife and natural features, the Directive is likely tobring few changes for England's land managers. Other countries will have tobring their legislation more in line with ours".

The existing UK conservation framework consists of the Town and Country Planning Acts,the National Parks and Access to the Countryside Act 1949, and the Wildlife and Countryside1981 (WCA), which implemented the Bern Convention at a UK level. With this "firm andwell-established framework for safeguarding the natural heritage"16 the Government considersthat European sites, as SSSIs, will be "already subject to a wide range of controls to preventtheir damage". The Government's view is that the current draft regulations17:

13"Road to ruin for Britain's wildlife" New Scientist 11 September 1993 pp35-3814"Wildlife Protection Sacrificed" RSPB News Release 6 July 1994 15English Nature Magazine No. 14 July 1994 p.416HC Deb 6 July 1994 c244-5w17HC Deb 4 July 1994 c24-25w


"...comprise a thorough implementation package. They build largely on theexisting extensive legislative basis which provides a strong framework fornature conservation in this country. They introduce some new provisions andapply existing legislation amended as required by the directive's obligations."

This paper will consider whether the present Regulations meet the challenge of closing theperceived weaknesses in the present SSSI and MNR systems.

The Regulations will be subject to the affirmative procedure, for approval by resolution ofeach House. Further regulations will be laid "in due course" to ensure that other activitiesfor which statutory consents and permissions are required do not adversely affect protectedsites. The Government will also produce planning policy guidance notes (PPG) for localplanning authorities once the present regulations have been approved18.

Protection for SSSIs is often afforded by compensation payments being made to landownersor occupiers for profits foregone following notification. The SAC system will echo the SSSIsystem in favouring compensation and voluntary agreement rather than compulsion, since withthe present Regulations, the Government is seeking to19:

"continue to work as far as possible under the voluntary principle, seeking theinvolvement and active co-operation of those involved who live and work inrural areas and at sea".

Under the Regulations, the nature conservation bodies will be obliged to offer compensationon the "relatively rare" occasions when management proposals are not consented to (ibid).The safeguarding of European sites may thus constitute a considerable drain on the budgetsof the conservation agencies.

This will add to the already considerable costs associated with protecting the UK's countrysidethrough compensation for prohibitions.

18HC Deb 6 July 1994 cc244-5w19The draft Conservation (Natural Habitats, &c.) Regulations 1994 Compliance cost assessment


II. The international habitat conservation framework

Several international nature conservation conventions have been agreed, some with rathersimilar-sounding names and site designations. Sites already designated under some of thefollowing agreements will be included in the Habitats Directive "Natura 2000" network.

The Convention on International Trade in Endangered Species (CITES) and the actions of theInternational Whaling Commission (IWC) will not be discussed here, since these dealprimarily with species, rather than habitat, protection.

A. The Bern Convention

The Habitats Directive strengthens at an EU level the Bern Convention on the Conservationof European Wildlife and Their Natural Habitats (September 1979). The Bern Conventionaims to conserve wild flora and fauna, and to conserve their habitats. Its basic premise is thatwild flora and fauna constitute a natural heritage which plays a vital role in maintainingbiological balances. The Convention was implemented in the UK by the Wildlife andCountryside Act (1981).

The 1979 Convention's original signatories were the Council of Europe member states, andit has been primarily concerned with Western and Continental European species and habitats.The question of extending the Convention to Northern African states has been discussed onseveral occasions, but with the political changes in Eastern Europe the emphasis has switchedto including the Eastern European states. Any extension of the Convention to Eastern orNorth developing nations would necessitate financial assistance, and in 1992 the Convention'sCentral Secretariat was reported to be under-staffed and under-funded20.

Working groups produce population reports on given species, and the Bern StandingCommittee issues recommendations. These may concern particular species, such as the wolf,or particular habitats; the Committee may recommend that a state designates an area ofspecial conservation interest within its territory. However, implementation of the Conventionhas been the responsibility of the individual Contracting States and recommendations havebeen of a broad and advisory nature. The introduction of the Habitats Directive shouldincrease greatly, in the EU at least, the protection given to habitats and species by the BernConvention.

B. The Bonn Convention

The Bonn Convention on the Conservation of Migratory Species of Wild Animals, made inJune 1979, aims to preserve listed threatened migratory species through sustainable utilisation

20The Effectiveness of International Environmental Agreements. Ed. Peter Sand, UNCED, 1992


and conservation of habitat in the states through which the species migrate. This covers birds,various terrestrial and marine mammals, reptiles and fish.

Immediate protection is offered through the convention to any migratory species threatenedwith extinction, and any species with an unfavourable conservation status is also affordedspecial attention. Various "Agreements" have been completed under this convention.

The Agreements vary in the severity of their obligations and are open only to those "RangeStates" through which the species in question migrates. For example, Agreements on whitestorks in Europe and Africa, and Houbara bustard in the Gulf, are under consideration20.

In July 1993 the UK ratified the Agreement on the Conservation of Small Cetaceans in theBaltic and North Seas (ASCOBANS); perhaps 22 whale, dolphin and porpoise species areresident in or pass through Britain waters. The UK hosts the Secretariat for this Agreementat the Sea Mammal Research Unit at Cambridge21. The UK sponsored the recent Agreementon the Conservation of Bats in Europe, also under the Bonn Convention.

C. The Ramsar Convention

The Ramsar Convention on Wetlands of International Importance Especially as WaterfowlHabitat, adopted in Iran in 1971, is global in scope. It was prompted by drainage anddevelopment over the past 20-30 years causing a considerable reduction in the surface areasof wetlands in Europe and beyond. Some spectacular losses of wetlands have occurred; theAral Sea, once the world's fourth largest lake, has shrunk by half, with over 90% of the waterthat used to reach the sea being diverted, much to irrigate cotton plantations. 40% of Japan'stidal flats have been destroyed since 1945 and Greek Macedonia has lost 94% of its wetlandssince 193022.

Any State may join the Ramsar Convention (there are 80 signatories), which is seen as beingsuccessful because it is voluntary in nature and relies on co-operation, rather than coercionor the threat of penalties20. However, some signatories, such as Japan and Greece, have metthe Convention's requirements less stringently than others.

Contracting parties have to designate at least one national wetland site onto a List ofWetlands of International Importance, establish wetland reserves which may or may not beon the List, and promote the wise use of wetlands within their territories.

Wetlands are defined as areas of marsh, fen, peatland, or water, whether permanent ortemporary, with water that is flowing, static, fresh, brackish or salt. A Ramsar data base andmonitoring procedure exist, and a "Wetland Conservation Fund" launched in 1990 seeks toassist developing countries implement the Convention. However, this has been running

21Implementation of ASCOBANS. Department of the Environment January 1994 DEP 1028822"Can we stop the wetlands from drying up?" New Scientist, 2 July 1994 pp. 30-35


extremely short of its funding target of $1m a year. It is hoped that the biodiversityconvention may lead to the Ramsar convention being strengthened and receiving more moneythrough the GEF.

The UK signed the convention in 1973 and has designated 76 Ramsar sites. By November1993 the UK had designated 69 sites, more than any other contracting party23. A further 83sites have been identified as being suitable for designation24.

D. The Biodiversity Convention

The UK has just ratified25 the UN Biodiversity Convention, which was agreed two years agoat the UNCED Earth Summit in Rio de Janeiro. The Convention came into force after thethirtieth signatory ratified. The UK produced its national Action Plan as required by theconvention in January 199426. The Convention provides a framework for international actionto protect species and habitats and will not be discussed in depth here (further informationcan be found in Library Research Paper 93/94 Biodiversity and in Biodiversity: the UK ActionPlan).

On announcing ratification, the Prime Minister said that the UK's record to date in meetingits Rio commitments was now second to none. The UK's overall goal under the Conventionis:

"To conserve and enhance biological diversity within the UK and to contributeto the conservation of global biodiversity through all appropriate mechanisms".

On ratification of the biodiversity convention the Habitats Campaigner at Friends of the Earthcommented27:

"Now we've ratified it's time to change our own laws to protect what littleremains of our grasslands, heathland, fens and ancient forests. Biodiversity isbeing hammered in Britain".

E. The Birds Directive

Directive 79/409/EEC on the conservation of wild birds is implemented in the UK by theWildlife and Countryside Act (1981). Bird Directive SPAs will form part of the Natura 2000network. The implementation of the Habitats Directive will reduce some of the protection

23Biodiversity The UK Action Plan. HMSO January 1994 Cm 242824HC Deb 16 May 1994 c375-376w25World Environment Day- Prime Minister Announces Ratification of the Biodiversity Convention. DoE NewsRelease 324, 3 June 1994 26Biodiversity: the UK Action Plan. Cm 2428 HMSO 1994. 27"UK ratifies wildlife protection treaty". Independent, 4 June 1994 p.5


afforded to SPAs, which had been built up by case law, in particular the Leybrucht case(please see section II.F.2 below for further details).

The Birds Directive arose from public concern over the annual hunting of migratory birds thatwas customary in southern Europe and northern Africa28, and from scientific researchconducted by the Commission which indicated that the number of species of European birdswas falling and the population levels of some species were declining sharply. Since manyEuropean species are migratory it was recognised that the protection of wild birds was atransboundary problem entailing shared responsibility at European level29.

The Directive was based to a large extent on British legislation, providing general protectionto all wild birds, giving extra protection to some, and allowing hunting of others; Britain isgenerally recognised as having had the most far-reaching bird protection of any Europeancountry before the Directive2.

The Birds Directive provides for the conservation, protection, management and control ofnaturally occurring wild birds, and also protects their eggs and nests. The general protectionoffered prohibits deliberate killing or capture, deliberate destruction or damage to nests andeggs, taking eggs in the wild and keeping these even if they are empty, the deliberatedisturbance of birds particularly during the breeding and rearing period, and keeping birdsbelonging to those species which may not be hunted or captured.

Significantly, Member States have also to preserve, maintain or re-establish a sufficientdiversity and area of habitats so that bird populations are maintained. Particularly vulnerablebird species listed in Annex I of the Directive (175 species and subspecies are now listed,including many sea birds and most birds of prey) are the subject of special conservationmeasures regarding their habitat. The most suitable land and sea territories for these birdsare classified special protection areas (SPAs). Similarly, breeding, moulting, wintering andstaging areas are protected for regularly migrating species not listed in Annex I. MemberStates have to pay particular attention to wetlands. For SPAs, the Member States are obligedto30:

"take appropriate steps to avoid pollution or deterioration of the habitats or anydisturbances affecting the birds...and outside these protection areas MemberStates shall also strive to avoid pollution or deterioration of habitats".

Member States may derogate from the general protection provisions in the interests of publichealth and safety, to control pests, or for various other reasons. The UK for instance permitsthe killing of 13 pest species, the taking into captivity of sick birds for nursing, or birds of

28Manual of Environmental Policy: the EC and Britain, Nigel Haigh, IEEP 1992 and updated29Second report on the application of Directive 79/409/EEC on the conservation of wild birds. 11007/93COM(93) 572 FINAL 7 December 199330Article 4(4) of Council Directive on the conservation of wild birds (79/409/EEC) OJ L 103, 25.4.79 p.1


prey for falconry2. The directive allows for the hunting of certain species listed in its AnnexII, under national legislation. Species listed in Annex II/1 (various game birds and severalcommon duck and goose species) may be hunted throughout the Union, and species in AnnexII/2 may be hunted only in those Member States indicated in a table.

A recent proposal from France to amend the Directive31 caused consternation in the BritishPress, amid allegations that the amendment was prompted by forthcoming Europeanelections32,33. The amendment seeks to define the discretion that Member States have to setthe dates of hunting seasons, and would, in some cases, allow hunting during the return ofmigratory birds to their breeding grounds. The French see this as the application ofsubsidiarity, but the RSPB has said that the proposal is "crazy...the whole point of thedirective was that birds are a common resource-they respect no boundaries" (ibid). TheRSPB fear that breeding adult birds who have survived the winter and the bulk of theirjourney across Europe would be shot at the last moment, including species such as thegreenshank and whimbrel which are threatened in the UK34.

The amendment was passed at the March 1994 meeting of the Council of EnvironmentMinisters but on 19 April the European Parliament deferred consideration of the issue untilafter the European elections35.

In its second report on the directive29, the Commission considered, inter alia, that in mostcases, the national legislation which had been drawn up since 1981 on the hunting, sale andprotection of birds and their habitats incorporated the spirit of the directive. In 1991 a totalof 667 SPAs had been designated throughout the EC. The implementation of the directivehad significantly contributed to improving the biological situation of most species, and severalbreeding species were no longer threatened with extinction in the EC, although the status ofmany of these species still gave considerable cause for concern (open grassland, meadow,moorland and scrub species in particular were still in decline and farming methods in theCommunity would have to be altered to address this problem).

Despite the positive developments, the Commission noted that the directive was not yet fullyimplemented in all Member States. Denmark and Luxembourg had obtained the best results.The implementation problems concerned primarily the designation and protection of SPAs,derogations, and hunting activities. In France, Italy and Spain, deep-rooted hunting traditionsstill persisted. Control on hunting activities varied widely between countries; some statessuch as Greece and Italy had insufficient manpower and financial resources to control illegalhunting.

31Proposal for a Council Directive amending Directive 79/409/EEC on the conservation of wild birds. 5947/94,24 March 199432Independent on Sunday 27 March 1994 "Gummer puts birds in line of French fire"33Daily Mail 28 March 1994 "Slaughter in the skies: Migrating birds face death to please French gun lobby"34Comment. RSPB Birds Magazine, Summer 1994 p.335"Birds directive will have to wait for new Parliament" Europe Environment No. 431, 3 May 1994 p.3


The Commission noted however that the deterioration and destruction of habitats presentlypose more serious threats to the survival of wild birds in Europe than hunting as such.

The UK was among 10 Member States which had not yet designated SPAs in sufficientnumber or size. Only Denmark and Belgium had almost fully complied with theirobligations. The other Member States,

"in particular Germany, Greece, France, Ireland, the Netherlands and the UKhave not yet classified a sufficient number of SPAs. In some regions of theEC, such as Northern Ireland and Gibraltar, there are no SPAs at all".

The UK blames the delay in its SPA programme in part on the Commission itself, for notproducing promised formal guidelines and proposals for the selection of SPAs, leading theUK to instead give priority to renotifying SSSIs (which embrace important bird sites). TheUK submits that since 1991 it has been working on an accelerated SPA programme36.

Presently, before Bird Directive SPAs can be designated, they must be notified as SSSIs tosecure legal protection under the WCA. They may then be designated an SPA by theappropriate Secretary of State. The conservation agencies advise which areas which shouldbe considered for designation, and consult with any land owners and with the local authority.However, whereas with SSSIs the conservation agencies are consulting on their own behalf,with SPAs they are consulting on behalf of the Secretary of State.

If someone (for instance a landowner) wishes to object to the designation of an SPA, hewould respond to the consultation letter sent to him by the conservation agency, who wouldprobably try to resolve the matter informally by discussion. If the objection was not resolvedthis would be passed straight to the Secretary of State. (Conversely, objections to SSSInotification are, in the case of English Nature, eventually passed to a full meeting of EN'sCouncil, appointed by the Secretary of State and including farmers, land managers and localauthority officials.)

The grounds for objection to an SPA are much broader than to an SSSI, since althoughnotifications as SSSIs include a statement of the special interest of the site and a list ofprohibited operations which would, in EN's view, damage the site, to some extent SPAdesignation predetermines land use and so social and economic factors have to beconsidered37. The designation procedures for SACs are likely to be similar to those for SPAs.

36Explanatory Memorandum on European Community Document: Second Report on the Application of Directive79/409/EEC on the Conservation of Wild Birds. DoE, February 199437source: English Nature, 3 May 1994


The UK has designated 86 SPAs, and 54 of these are in coastal locations38, reflecting theimportance of coastal habitat for birdlife. 151 potential SPAs have been identified and remainto be designated. 49 designated Ramsar sites are also wholly or partly SPAs, and 72identified Ramsar sites are also potential SPAs.

One major source of criticism is the failure of the UK to designate marine SPAs. This islargely because of constraints introduced by the2:

"cumbersome procedures set out in the Wildlife and Countryside Act 1981which [the nature conservation agencies are] obliged to observe before beingable to designate Marine Nature Reserves - especially as regards consultationswith local fishing communities".

Further details can be found in section III. H. below.

38HC Deb 16 May 1994 cc375-376


F. The Habitats Directive

1. Main provisions

The World Wide Fund for Nature (WWF) acknowledges that the UK played an active partin the adoption of the Habitats Directive (Directive 92/43/EEC on the conservation of naturalhabitats and of wild flora and fauna), "the most significant piece of wildlife legislation to beagreed in the 1990s"39. The Government has said that it "welcomed the adoption of the ECHabitats Directive" (in May 1992) which "represented a great step forward for natureconservation in the community".

The draft Directive was considered in European Standing Committee A on 22 May 199140.

The Directive aims to conserve biodiversity through maintaining or restoring habitats andspecies. It will do this by establishing a coherent European network of sites of conservation,which will be known as the Natura 2000 network. The sites will contain specific naturalhabitat types (listed in Annex I to the Directive) and species (listed in Annex II).

Annex II includes "animal and plant species of community interest whose conservationrequires the designation of special areas of conservation". "Of community interest" meansspecies which are endangered (but not just because they are at the edge of their geographicalrange), vulnerable, rare, or endemic and needing particular attention.

The Natura 2000 network is to include the special protection areas (SPAs) designated underthe Wild Birds Directive, and Member States have also to propose a new list of sites, orspecial areas of conservation (SACs). The present UK regulations refer to SACs and SPAstogether as European sites.

Member States must select sites on the basis of the habitats and species present, using criteriaset out in Stage 1 of Annex III to the Directive. These include the degree of representivityof the site, the area of the site compared to its total area in a Member State, the density ofa species population at a site, and the isolation of that population. The lists of nationalcandidate sites must be submitted to the Commission by June 1995.

The Commission will then draw up a draft list of sites of Community importance, usingcriteria set out in Stage 2 of Annex III. These include the number of Annex I habitat typesand Annex II species on each site, the situation of the site on migration routes, and therelative value of the site at national level.

39The Habitats Directive: Time for Action WWF 199240European Standing Committee A Protection of the Habitats of Wild Flora and Fauna (Documents Nos.8149/88, 5807/90 and 4684/91) Wednesday, 22 May 1991


The Commission must draw up and agree its Community list of sites by June 1998. Oncea site of Community importance has been adopted, the Member State has to designate thatsite a special area of conservation as soon as possible and within six years at the most, whichis by 2004.

So SACs must finally be designated to form the Natura 2000 network by the year 2004.However, as soon as a site is placed on the Community's draft list, it will be subject to Article6, which provides protection for SACs. Article 6 requires Member States to establish thenecessary conservation measures for SACs involving, if need be, appropriate managementplans specifically designed for the sites and appropriate statutory, administrative or contractualmeasures.

Member States have to take appropriate steps to avoid, in the SACs, the deterioration ofnatural habitats and the habitats of species as well as disturbance of the species for which thesite has been designated. Further:

"Any plan or project not directly connected with or necessary to themanagement of the site but likely to have a significant effect thereon, eitherindividually or in combination with other plans or projects, shall be subject toappropriate assessment of its implications for the site in view of the site'sconservation objectives...the competent national authorities shall agree to theplan or project only after having ascertained that it will not adversely affect theintegrity of the site concerned, and, if appropriate, after having obtained theopinion of the general public".

However, if a plan or project must be carried out for reasons of over-riding public interest(including those of a social or economic nature as well as those involving public health andsafety) the Member State must take all compensatory measures to ensure that the overallcoherence of the Natura 2000 network is protected, and shall inform the Commission ofcompensatory measures employed.

If a site includes a priority species and/or priority habitat type , then the only considerationsthat may be raised are those relating to human health or public safety, or of primaryimportance to the environment. Further to an opinion from the Commission, other"imperative reasons of overriding public interest" may be raised. Priority species are starredin the Annexes, and are habitats or species for which certain Member States have particularresponsibility because a large part of that species' or habitat's natural range falls within theirterritory (see section V.B. for the UK's priorities).

In essence then, this is providing a two-tier system; "ordinary" SACs may be over-ridden onsocial or economic grounds, but "priority" SACs may only be over-ridden on grounds ofpublic health or safety.


2. Effect of Habitat Directive on Bird Directive SPAs

SPAs designated under the Birds Directive were, until the implementation of the HabitatsDirective, protected by a body of case law that meant they could only be over-ridden ongrounds of public health and safety. Social or economic grounds were insufficient. In otherwords, they had been granted though the Courts similar protection to that which priority SACswill enjoy. The most important decision was taken by the European Court of Justice in 1991,and is commonly referred to as the Leybrucht case (C57/89).

During the European Standing Committee debate on the draft habitats Directive, the thenMinister for the Environment and Countryside, Mr Trippier, noted41:

"...the recent European Court judgement in the Leybrucht case...made it clearthat a special protection area was inviolable, with the rare exceptionconsideration of a danger to public health. In my experience, that is uniquein any planning consideration...

We must consider the implications of the Leybrucht judgement. In ournegotiations on the Habitats Directive, the Government aim to ensure thateconomic and social needs are taken into account..."

During the negotiations on the Directive, the Commission was pressurised to 'introduce newclauses into the text of the habitats Directive in order to amend the birds Directive and bluntthe impact of the Court's judgement. This occurred.' (Manual of Environmental Policy: theEC and Britain, Nigel Haigh, IEEP 1992 and updated, p.9.9-9).

Hence from the date on which a Member State implements the Habitats Directive, SPAs willbe violable on social or economic, as well as public health and safety grounds; the habitatsDirective has effectively downgraded their degree of protection.

One important anomaly and further blow to the bird cause is that because birds are of coursecovered by the Birds Directive, they are not listed in any of the Annexes to the HabitatsDirective. Although to some extent it can be argued that this does not matter since they willbe protected by SPAs, this also means that they cannot be identified and treated as priorityspecies by the Habitats Directive42,43:

"The best protected sites under the Habitats Directive are those which containpriority habitat types or which host priority species. However, the BirdsDirective does not contain a priority system equivalent to that in the Habitats

41ibid42Source: RSPB 13.7.9443"The EU Habitats Directive" John Faulks, European Environment Spring 1994


Directive. Does that mean that none of the birds listed on Annex I of theBirds Directive is deserving of the highest protection as priority species?"

Further protection measures for individuals and breeding sites are included for species listedin Annex IV to the Directive ("animal and plant species of community interest in need ofstrict protection"). As with the Birds Directive, some derogations will be allowed, forprotecting the interests of, for instance, agriculture and nature conservation. However, certaintypes of killing and transport (listed in Annex VI) are prohibited.

Some exploitation of species listed in Annex V ("animal and plant species of communityinterest whose taking in the wild and exploitation may be subject to management measures")is allowed, so far as exploitation is compatible with the species being maintained at afavourable conservation status.

The species protection measures in the Habitats Directive, providing general protection to allspecies, giving extra protection to some, and allowing the sustainable exploitation of others,are thus very similar to those already enshrined in the Wildlife and Countryside Act 1981,which implemented the Birds Directive and the Bern Convention in the UK.

During the European Standing Committee debate, Mr Trippier said that the Government'smain points of anxiety were to ensure that member states could exercise proper judgementin the selection of sites, and that they would be obliged to take action on sites containingspecies or habitats in danger of extinction. Mr Trippier said the authority given to theCommission by the draft directive was important.

Mr Win Griffiths noted that specific commitments to amend EC Directive 85/337/EEC onenvironmental impact assessment had been dropped from earlier versions of the habitatsdirective and asked the Minister how he envisaged the new environmental assessment andpublic consultation provisions (in Article 6) working. The Minister replied that:

"I do not want to give the impression that in many cases economic and socialconsiderations should override conservation. That would devalue the currencyof the exercise. However, in rare circumstances, we want to preserve the rightto weigh in the balance economic and social considerations."

In response to a further question from Mr Griffiths concerning planning permission on SSSIs,the Minister pointed out that SSSIs were material planning considerations. The Minister gavean example to illustrate problems that might arise "if the SSSI designation gave so muchprotection that the land was virtually sterilised":

"If I acted on behalf of the Nature Conservancy Council and approached theHon. Gentleman, not only with a proposal to designate an area of his land anSSSI but to sterilise it, he would be entitled, through natural justice, to raisethe matter in the High Court unless I was prepared to compensate him for theloss of his land...


If there were a course of appeal that a landowner could take if his land wassterilised, a whole series of appeals would take place. Consequently, fewerSSSIs would be designated. And that would not achieve the objective, whichwe all share of providing more protection where possible".

The Government committed itself in 1992 to meeting the two year deadline set by theDirective to have in place the legislative and administrative provisions necessary forimplementation and to "developing criteria for site selection with a view to submitting theUK's national list of sites in accordance with the Directive - by 1995"44. Indeed, the UKintends to meet all of the Directive's deadlines45.

44This Common Inheritance, 2nd year report HMSO 1992, Cm 206845Biodiversity The UK Action Plan. Cm 2426 HMSO 1994


III. The UK habitat conservation framework

The Secretaries of State for the Environment, Scotland and Wales, will be responsible fordesignating future SACs in England, Scotland and Wales respectively. In this, they areadvised by the statutory nature conservation bodies; English Nature (EN), Scottish NaturalHeritage (SNH) and the Countryside Council for Wales (CCW). These are the successors tothe Nature Conservancy Council or NCC. In Northern Ireland, the Department of theEnvironment for Northern Ireland (DoE/NI) assumes a similar role. The Joint NatureConservation Committee (JNCC) oversees and co-ordinates.

As well as designating sites as required by international obligations, the UK has its ownhabitat and wildlife designations. These can be considered as falling into two broadcategories; those designed to provide larger-scale protection of landscape (National Parks,AONBs, NSAs and NHAs in Scotland, ESAs and heritage coasts) and smaller-scale protectionof habitat or species (SSSIs, NNRs, LNRs and MNRs).

A. National Parks

It is not within the scope of this paper to consider in detail the issues presently surroundingNational Parks. The ten National Parks in England and Wales were designated during the1950s following the National Parks and Access to the Countryside Act 1949 and the Norfolkand Suffolk Broads and the New Forest enjoy similar status and are National Parks in all butname. A major report on the national parks system, Fit for the Future (also known as theEdwards report after its chairman, Professor Ron Edwards) was produced in 1991 by thenational parks review panel for the Countryside Commission. Its main conclusion was thatthere should be a new National Parks Act to create strong, independent national parkauthorities in each national park, more accountable to local people.

The report was generally welcomed and since then the Government has confirmed itsintention to create national park authorities for all of the parks on several occasions46.Following the failure of a Private Members Bill introduced into the Lords by Lord Norrie thissession, the Countryside Commission has urged the Government to find time for legislationto protect these "jewels in the crown of our landscape"47.

B. Areas of outstanding natural beauty (AONBs)

AONBs were provided for under the same 1949 Act as National Parks, and are alsodesignated by the Countryside Commission or the Countryside Council for Wales, andconfirmed by the relevant Secretary of State. The 40 AONBs, covering nearly 14% of

46HC Deb 30 June 1993 c.519w47Government Urged: Find Time for National Parks Countryside Commission News Release 94/21 23 May 1994


England and Wales48, are essentially landscapes of distinctive character and fine naturalbeauty, often in more lowland areas than National Parks, and which are not quite suitable forNational Park status. The Department of the Environment (Northern Ireland) also designatesAONBs (Northern Ireland).

C. Scotland: National Scenic Areas (NSAs) and National Heritage Areas (NHAs)

NSA is the principal landscape protection category in Scotland and includes the areasoriginally proposed as National Parks for Scotland before it was decided not to extend thesystem to that country. 40 NSAs were designated following the Countryside Commission forScotland report Scotland's Natural Heritage in 1978. Sites lie mainly in the north and westof the mainland and in the Islands and cover 12.5% of land and inland water area in Scotland.A 1987 review revealed that the designation was perceived as not being effective, and thatNSA development plan policies were few in number and had little consistency.

NSAs are further protected where they coincide with SSSIs or NNRs. For instance, Assynt-Coigach NSA contains 10 SSSIs and 2 NNRs. Where these is such a coincidence oflandscape and scientific interest, such areas could be suitable for consideration as NHAs49.

NHAs were introduced in 1991 and are intended to provide added protection to wildlife aswell as landscape. Although NHAs could "easily supplant" NSAs, it has been stressed thatthey are not a substitute for National Parks, and the possibility remains that National Parkscould be established in Scotland49.

D. Environmentally sensitive areas (ESAs)

These are designated under the Agriculture Act 1986 by the Minister for Agriculture. Theyare areas of national environmental significance where particular farming practices are pivotalin environmental conservation and where a change in these practices could therefore pose amajor threat to the environment. ESAs are based on voluntary management agreements withfarmers, who are offered a five year agreement that awards them annual payments providedthey follow a prescribed set of farming practices. These include positive works (maintaininghedgerows, hedges and barns) and prohibitions (on use of fertilisers, drainage works andlevels of grazing)49.

E. Heritage Coasts

Heritage coasts in England and Wales are not statutorily protected but are selected stretchesof fine undeveloped coastline which are defined by local authorities in their developmentplans, and for which management plans are developed by local authorities in conjunction with

48Areas of Outstanding Natural Beauty in England and Wales. Countryside Commission, CCP 276, 199449Protected landscapes in the United Kingdom Countryside Commission, 1992


the Countryside Commission. 44 Heritage Coasts covering 1,493 km of coastline have beendesignated. One-third of Heritage Coast is in the ownership of the National Trust.

F. National Nature Reserves (NNRs)

EN, CCW and SNH have statutory powers under the National Parks and Access to theCountryside Act 1949 or under the Wildlife and Countryside Act 1981 to establish, maintainand manage land of national importance as nature reserves. The Department of theEnvironment (Northern Ireland) manages NNRs (Northern Ireland). NNRs are intended toensure the long term survival of a representative series of key wildlife habitats and species. More than 300 NNRs have been designated50. They vary widely in size, from Blelham Bogin Cumbria (two hectares) to The Wash (nearly 10,000 hectares). In England, EN ownsmore than a quarter of NNR land and three quarters is held under lease or nature reserveagreement. A Nature Reserve Agreement can be made allowing an "approved" voluntaryconservation body such as the RSPB or any private landowner or occupier to designate aNNR. EN spent £5 million on NNRs in 1992-93, including salaries for 100 staff; over 800voluntary wardens are also used by EN.

The work planning and management of NNRs is undertaken largely at a local level soregional variations in practice occur. To address this, EN are developing a new NNR policyto integrate site management. They also intend that all NNRs should have approved andcurrent plans prepared in a common format, to be reviewed every five years. EN will alsoproduce a review of their reserve holdings by April 1995 and will produce an annual reporton NNRs51.

NNRs are also notified as SSSIs (see below), and they can be thought of as SSSIs with a"clearly stated national level of importance"52.

G. Local Nature Reserves (LNRs)

Local Nature Reserves (LNR) may be designated by local authorities on land belonging tothem (or land which they acquire), under the National Parks and Access to the CountrysideAct 1949. The Act states that the land declared a LNR must be "special" in a local contextand must be managed to preserve or enhance its natural features. Hence the local authority,in declaring a LNR, is also undertaking to manage that site and to protect its natural featuresfrom any substantial damage.

50Digest of Environmental Protection and Water Statistics No.16 DoE 1994 HMSO 51Protecting and Managing Sites of Special Scientific Interest in England. National Audit Office, 11 May 1994HMSO HC 37952SSSIs: A health check. A report for Wildlife Link. T A Rowell, Wildlife Link December 1991


English Nature has recently produced a comprehensive guide53 for local authorities to helpthem carry out their duties with respect to LNRs. This stresses that "site objectives" (the rolethe site will play in helping to fulfil the local authority's nature conservation strategy) shouldideally be decided before the site is declared a LNR, and certainly before a management planfor the site is drawn up. A brief "LNR summary plan" describing the site and its mainobjectives and management options should be produced and this should be reviewed, usuallyafter five years. Guidance on managing different habitats (woodland and scrub, lowlandheath, upland moor, grassland, raised bog, fen and swamp, standing water and coastlands) andon fulfilling objectives (conservation, education, public enjoyment, research) is provided bythe guide.

On 31 March 1994, there were 393 LNRs54.

H. Marine Nature Reserves (MNRs) and the difficulty of sub-tidal protection

All terrestrial SACs to be designated under the Habitats Directive will have been notified asSSSIs55 (ASSIs in Northern Ireland). For marine sites, at present the only statutory natureconservation mechanism specifically designed for below low-water mark is the MNR.

Compared to over 300 NNRs, only two MNRs have been designated; at Lundy in the BristolChannel and at Skomer in Pembrokeshire. English Nature estimates that 500,000 hectaresof marine habitats are in need of active conservation measures, and acknowledges that"marine conservation is a decade or more behind its land-based counterpart"56.

Around one-fifth of the licences offered by the Department of Trade and Industry in the lastround of offshore oil exploration licensing cover areas "earmarked for marine protection".For instance, an exploration licence held by Amoco extends to Chesil Beach, behind whichlies Britain largest saline lagoon, the Fleet. The Chesil and Fleet SSSI has been called oneof five "really outstanding" places for marine conservation by English Nature's chiefexecutive. Exploration areas off the Welsh coast impinge on Cardigan Bay (one of two orperhaps three sites around the UK with resident bottlenose dolphin populations) and Ramsay,off St David's Head, home to the largest colony of grey seals in England and Wales. TheDTI has given its assurances that stringent controls will be exercised over environmentallysensitive sites and says that most companies have demonstrated environmental awareness57.

MNRs may be designated between the high water mark and the territorial limit by theSecretary of State under the Wildlife and Countryside Act 1981 on the advice of EN, CCW

53Managing LNRs Local Nature Reserves English Nature 199454English Nature Facts and Figures Information Guide Spring 1994. 55HL Deb 24 February 1994 WA 59-6056"Road to ruin for Britain's wildlife" New Scientist, 11 September 1993 pp35-3857 ibid.


and SNH. MNR protection operates through the enactment of byelaws and they are managedby the relevant statutory nature conservation agency. WWF says that although MNRs wereoriginally envisaged as the marine equivalents of NNRs, their protection is much weaker58.

Various mechanisms exist for regulating development below low water mark, and these havebeen reviewed recently by the DoE/Welsh Office.59 Yet presently, MNR is the only statutorynature conservation mechanism that applies specifically to the subtidal as well as intertidalzone60. SSSIs for instance apply only to the limits of local planning authority control,generally low water mark.

A recent paper61 by representatives from each of the UK nature conservation bodies (EN,CCW, SNH and DoE/NI) has considered the issues surrounding the designation, protectionand future of MNRs. The paper is summarised in the boxes on the following pages.

58The Habitats Directive: Time for Action WWF UK December 199259Development below low water mark. A Review of Regulation in England and Wales. Department of theEnvironment, Welsh Office October 1993. 60Important areas for marine wildlife around England English Nature/Campaign for a Living Coast 199461D Laffoley, J M Baxter, R J Bleakley and M Richards [in press] Marine Protected Areas in the UnitedKingdom: Past Experience and Future Opportunities. In: Proc. 2nd Int. Conf. on the Science and Managementof Protected Areas, Dalhousie University, Nova Scotia, 16-20 May 1993.


The paper, whose authors represent each of the UK's nature conservation bodies, notes that progressdesignating statutory MNRs has lagged far behind terrestrial conservation efforts and has also been farslower than progress in establishing Voluntary Marine Nature Reserves (VMNRs). (Nine VMNRs havebeen established "drawing on the efforts and enthusiasm of local groups", and have proved effectivein many cases, although their codes of conduct are voluntary.)

Furthermore, the conservation agencies which manage MNRs are presently unable to enact byelawsfor the protect of MNRs that would interfere with any other authorities' statutory responsibilities orrights inside the reserve. This has made for weak legal protection for marine wildlife. Very extensiveconsultation is required with anyone with any interest in a proposed MNR. The Government's policyis that total agreement must be obtained from every interest group before designation. This has leadto excessive bureaucracy and watering-down of legislation [bye-laws] in response to objections andis an approach not adopted for any other sectoral "developments" in territorial waters.

Seven sites were selected in the early 1980s as potential MNRs. Of these, only Skomer and Lundyhave been designated, although efforts are still continuing to designate Strangford Lough and the MenaiStraits. Even at Lundy (the first MNR), the most vulnerable conservation area, containing fragileseafans and solitary corals, has been made only a voluntary "no potting" zone and remains unprotectedbecause of commercial concerns. At Skomer, the second MNR, a byelaw prevents scallop fishing, butother environmentally unacceptable forms of fishing have been started up on the reserve, which theCCW is powerless to prevent.

At Menai, although 95% of respondents to consultation have been in favour of an MNR, this is beingheld up by opposition from Sea Angling Clubs and yachting interests. Over a year was spent tryingto resolve outstanding objections; the proposal has now gone to the Secretary of State for Wales.

Some objectors may not appreciate that MNRs may bring significant benefits to local people. AtSkomer for instance, income from divers, increased ecotourism, a strong lobby for environmentalimprovement and improved catches in adjacent fisheries have been noticed.

At Strangford Lough, encouraged by the positive response to extensive consultation and preparationsfor a MNR and surrounding ASSI, the DoE/NI prepared a draft designation order. At subsequentpublic meetings however, fishermen, suspicious of "hidden agendas", objected to the MNR. AStrangford Lough Management Committee with representatives of the local community and users isnow working towards producing management objectives for the Lough, with a view to letting theSecretary of State formally propose an MNR.

At Loch Sween "protracted negotiations and obstructions...by the then Government FisheriesDepartment" strung out the process over four years, losing the trust and interest of local people; thisMNR is no longer being pursued.


Regulations 33-36 (see section V.B.5) deal with marine sites. The Regulations will place a

Recently, formal but non-statutory designations have grown, building on the principle of VMNRs.Marine Consultation Areas in Scotland were prompted by a rapid expansion in salmon farming. Flexible management schemes, with forums representing all interest groups have been set up in manyareas, relying on enthusiasm from the local communities and funding from the conservation agencies.This drive towards non-statutory management planning is viewed as

"a result of the current lack of any effective statutory framework for protectingmarine wildlife and resolving conflict".

The paper concludes that the targets in the UK Biodiversity Action Plan, and the Habitats Directive,will give rise to a need for effective statutory protection of marine sites:

"It is vitally important that statutory MNRs are continued through more workablelegislation. Otherwise we will be without any effective mechanisms to protectnationally important marine wildlife sites and total reliance will have to be placed onthe strength of voluntary agreements".

The paper stresses that the UK's high population density, extensive traditional and recreational use ofmarine resources, and a complex legal system with over 81 Acts applying to the sea, mean that theneed to gain 100% agreement before designation of a MNR places unrealistic demands on conservationagencies:

"If the same unsatisfactory approach is taken in implementing the EC HabitatsDirective, similar or even slower rates of progress can be expected as the public tiresof it".

The most significant change called for is in the way that legislation is applied; achieving 100%agreement before designating a MNR is not considered feasible. The decision making process shouldinclude a political judgement concerning the value of a site and whether it should be protected for thenation in perpetuity. In the last paragraph, the report notes that

"Funds for compensating those who lose income through designation may also needto be considered".

duty on bodies with jurisdiction in the marine environment to use their existing powers,including those to make bye-laws, to perform their duties in ways consistent with theconservation interests of marine sites. They will seek to arrange management schemes ona voluntary basis. Ministers will have statutory reserve powers to co-ordinate such actionand to set time limits for action. There may be a "few cases" where fishing and industrialactivities take place alongside European Marine sites. The Regulations aim to create aframework that will enable these activities to continue in ways that are consistent withconservation objectives.


IV. The UK SSSI system

SSSIs and ASSIs in Northern Ireland contain the UK's finest and most precious examples ofhabitat and wildlife, or landscape and geological features. English Nature describes them asthe "core of our nation's natural heritage"62. The land-based component of the UK Natura2000 network will be based directly on the SSSI and ASSI network.

Originally established by the National Parks and Access to the Countryside Act (1949), SSSIsare today notified under the Wildlife and Countryside Act (1981).

According to the latest available figures, there were 5,999 SSSIs in Great Britain and 48ASSIs in Northern Ireland45,50. Approximately 18,000 people own or live on the SSSIs inEngland alone54. The average area of an SSSI is around 546 acres63.

A. Selection and designation

SSSIs are notified by EN, SNH or CCW under the Wildlife and Countryside Act 1981(WCA), which implemented the Bern Convention at a UK level. In 1993 EN notified 66sites covering 12,150 hectares as SSSIs, and notified 11 river SSSIs (ibid). In NorthernIreland, the area of land protected by ASSI designation has increased sevenfold since 1990,and the survey and declaration of ASSIs should be completed by 200164.

To decide what is "special" about a site, the conservation agencies use extremely detailedselection criteria. Those for biological SSSIs were published by the NCC in 198965 and partsof this document have been updated by further guidelines published by the JNCC since then66.

Agency officers will survey areas of interest, with the landowner or occupier's permission.The results of these surveys, together with available published information, are assessed bythe agencies against the selection criteria.

When an agency decides to designate an area an SSSI, it notifies every owner and occupierof the land, the local planning authority, the Secretary of State for the Environment, theappropriate water and sewerage company, and the NRA. Notifications include a map of theboundary, a statement of the special interest of the site, a list of operations which would, inthe agency's view, damage the site, and a statement that the Agency must be consulted about

62Progress '94 English Nature May 199463What you should know about SSSIs, English Nature 199264This Common Inheritance The Third Year Report, Cm 2549 HMSO 1994 65Guidelines for selection of biological SSSIs Nature Conservancy Council 198966Guidelines for selection of biological SSSIs: non-vascular plants Joint Nature Conservation Committee 1992


such listed operations. At least four months notice must be given by land owners or occupiersof any potentially damaging operations.

Once notifications have been sent, the area becomes an SSSI and must be treated as such bythe owner, even if the owner is appealing against notification. This immediate protection wasintroduced by the WCA and had not been available to SSSIs notified under the NationalParks and Access to the Countryside Act (1949)67. After the site is notified, the owner oroccupier has three months in which to make representations or objections. Agency officerswill aim to reach agreement or compromise and the notification must be confirmed orwithdrawn within 9 months of initial notification.

SSSIs designated under the 1949 Act remained SSSIs following the WCA, but the legalobligations of owners and occupiers under the WCA did not apply to them until they hadbeen notified formally of their new obligations. This process of renotification of existingSSSIs has now been largely completed and involved reassessing the special interest of allexisting SSSIs.

If SSSIs or parts of SSSIs lose their special interest, these can be withdrawn or denotifiedby the conservation agencies. Between 1982 and 1991, 34 SSSIs were denotified by theNCC68.

B. SSSI management and protection

The SSSI notification sent by the conservation agency to the owner or occupier of a sitecontains a list of all the operations which, in the agency's view, could conceivably damagethe site. These are termed potentially damaging operations or PDOs. Notice must begiven notice in writing by the occupier or owner of any such operations at least four monthsbefore they are carried out. In the four months, the conservation agency will consider theimplications of the proposals. It may give consent to the operation, refuse it, or invite theowner or occupier to consider modifications which might avoid damaging the wildlife or site.

Damaging a SSSI without consent from the conservation agency is punishable on summaryconviction by a fine of up to £2000.

Consent will not normally be given for damaging operations63. Instead, EN may, under s15of the WCA, offer the owner or occupier a payment in return for a management agreementthat protects the interest of the site. Most of these pay the owners or occupiers compensationfor profit foregone by not developing the site, and this negative nature, as well as the expense,of most management agreements is often criticised (see next section).

67Second report on the application of Directive 79/409/EEC on the conservation of wild birds. Commissiondocument 11007/93 7 December 199368HC Deb 11 January 1994 c98w


If negotiations are becoming protracted, the conservation agency may ask the Secretary ofState to make a Nature Conservation Order (NCO) under s29 of the WCA. This willspecify operations that may not be carried out on the site by anyone, and is intended to giveprotection against specific works while consultation is extended. The legal obligations undera Nature Conservation Order last for twelve months and they apply to anyone, not just toowners and occupiers.

SSSIs to which NCOs have been applied have been termed "super SSSIs"69, and this is auseful concept. In contrast, the legal requirements under standard SSSI notification apply toowners and occupiers only and essentially last for only four months.

However, NCOs are not commonplace, and typically only one or two dozen will be in forceat a given time70. For instance, only 16 NCOs are currently in force in England71.

As a last resort, the conservation agency can apply to the Secretary of State for aCompulsory Purchase Order for a SSSI. However, in England only one compulsorypurchase order has been made in ten years72.

English Nature have a number of schemes aimed at enhancing and monitoring SSSIs. Anational site monitoring and information system was launched in 1993, starting off withgrassland sites and with lowland heath and upland grassland planned for 1994. The WildlifeEnhancement Scheme aims to link EN wildlife management expertise with the local siteknowledge and practical skills of SSSI managers. The first four pilot schemes haveconcluded 175 management agreements. The Reserves Enhancement Scheme supports localTrusts managing SSSI nature reserves, encouraging the use of volunteers and aiming toincrease public access and understanding62.

C. Criticisms of the SSSI system

The problems with the SSSI system are best summarised by the recent National Audit Officereport which commented that10:

"Notification of a SSSI does not guarantee absolute protection and was notintended by Parliament to do so...Owners can legally carry out damagingactivities if they have given English Nature due notice, and the four monthperiod available to English Nature to persuade and negotiate has expired. Thisis unless application is made to the Secretary of State who may grant a NatureConservation Order, extending the period of negotiations by 12 months.Damage may also be caused by third parties who are not covered by SSSI

69"Nature conservation and the protection of SSSIs" ENDS Report 212, September 1992, p3470HC Deb 3 February 1994 cc917-8w; What You Should Know About SSSIs, English Nature 199271HC Deb 28 June 1994 c494w72"Saving Europe's wildlife? The EC Habitats Directive" RSPB Conservation Review 7, 1993 pp.61-66


procedures. Nor can SSSIs be isolated from the effects of developments andmanagement changes on adjacent or nearby land. Planning permission, localand private Acts of Parliament and Statutory Orders may allow developmentsto proceed which damage the site".

Some of these points are expanded upon below.

1. Low penalties

Anyone who without reasonable excuse carries out a potentially damaging operation on anSSSI is liable to a fine of up to £200073. Compared to this, contravention of a TreePreservation Order may result in a fine of up to £20,000 in the Magistrates' court. Damaginga listed building may result in a prison sentence of up to 12 months and a fine that takes intoaccount any benefit accrued by the offender through the damage74.

See section V.B.3. Regulation 19 sets the fine for carrying out a potentially damagingoperation on a European site at level 4 on the standard scale (£2500). For contravening anspecial nature conservation order, Regulation 23 stipulates a fine not exceeding the statutorymaximum. Under Regulation 25, the offender may also be sentenced to repair the damagecaused.

2. Voluntary basis of the system

In 1989, Southern Water Authority (since privatised to form Southern Water plc) dredged HillHeath Ditch, part of Alverstone Marshes SSSI on the Isle of Wight, without notifying orobtaining consent from the [then] NCC. There was some dispute between SWA and the NCCas to whether SWA should have known that the site was an SSSI. The plant-filled ditchcontaining marsh species such as horned pondweed, marsh woundwort, bogbean and yellowloosestrife was dug out and destroyed. Newport Magistrates' court convicted SWA ofbreaching the 1981 Act. However, the Divisional Court overturned this conviction, and in1992, the Law Lords upheld the Divisional Court.

The Lords said that the drainage work had done grave damage to the features of the marshwhich the SSSI system was designed to protect, and that Southern Water was guilty ofecological vandalism, if not, because of a legal loophole, of a criminal offence. The Lordswere reported to have said that the Act was so weak that

"it would be insufficient to penalise the fly tipper...In truth the Act does nomore in the great majority of cases than give [English Nature] a breathing

73Source: English Nature, 17.6.9474The Habitats Directive: Time for Action. World Wide Fund for Nature, November 1992.


space within which to apply moral pressure, with the view to persuading theowner or occupier to make a voluntary agreement"75.

The Lords noted that after giving the required four months' notice of a potentially damagingoperation, even if EN refused to grant its consent, the owner or occupier was free to turndown the offer of a management agreement with or without a financial inducement, and tocarry out their original plans with impunity. The main recourse, to make the site a "super-SSSI" though a Nature Conservation Order (NCO), had only ever been used about 40 times76. Under Regulation 19, the four months' loophole still exists, and the system is still essentiallyvoluntary (see section V.B.3). However, by placing a special nature conservation order ona European site, the Secretary of State will now be able to protect a European site for anindefinite period. The readiness with which SNCOs are made will be of interest.

EN acknowledges that legislation alone cannot provide for the proper management of SSSIs,for which it depends on the goodwill and personal commitment of landowners andmanagers62. EN works to develop good relations, by, for instance, working with the PlainEnglish Campaign to improve notifications, carrying out customer (enquirer) surveys, andproducing a newsletter Sitelines, for SSSI owners and occupiers.

The drawback of this approach is of course that the responsible site owners and managers arenot the problem. The former chairman of the Nature Conservancy Council, Sir WilliamWilkinson, has commented that good landowners protect their SSSIs77:

"but the bad boys get away with murder. The most recent example thatsprings to mind was Twyford Down, where the agent of destruction was theGovernment".

3. Damage by third parties

The Alverstone Marsh SWA case illustrated a further flaw in the system, which turned outto be the essence of that particular case. The NCC had prosecuted SWA, but the WCA'swording clearly states that it applies only to owners or occupiers. It was ruled that "astranger who enters the land for a few weeks solely to do some work on it does not fall intothis category". Not only independent contractors but even trespassers would be immune fromprosecution (ENDS).

Regulations 19 and 23 do not appear to apply to third parties but still only to owners andoccupiers (see section V.B.3).

75The Independent, 18 July 1992, The Guardian, 18 July 199276ENDS Report 212 September 1992 p.3477"Wildlife sites put at risk by inaction" Independent, 17 September 1993 p.9


4. The nature and cost of management agreements

Even if the owner or occupier agrees to enter into a voluntary agreement, at present it ismost likely that any agreement reached will be of a "negative" nature. The cost of these tothe conservation agencies is considerable.

By March 1993, 1,840 management agreements had been made between EN and owners andoccupiers of SSSIs, costing £7.5 million. Only £500,000 of this £7.5 million related topositive conservation management.

The remaining £7 million was spent on expected profit foregone by owners or occupiersthrough not implementing a PDO78. This 'negative' nature of most management agreementsis one of main criticisms commonly levelled at the SSSI system. The system leaves theconservation agencies open to having to pay very large sums in compensation to landownersand occupiers, even more so because the compensation takes into account the change in thevalue of a person's land following notification.

In 1991 John Cameron, the Scotrail chairman, was awarded £568,294 because SSSInotification prevented him from claiming afforestation and agricultural improvement grantsat Glen Lochy; with interest the award was thought to amount to £900,000 (the NCC's annualbudget at that time was £19 million)79. John Cameron had acquired the land in the fullknowledge that it was an SSSI and therefore subject to restrictions upon its use. Thecompensation payments for refusal of afforestation grants exceeded the original purchase pricefor the estate80.

Similarly, a farmer at Inverlocharig was paid £180,000 in compensation for not planting treeson the Beinn More Stob Binnein SSSI. In 1989 the rules were changed so that landownerscould no longer claim large amounts of compensation for the refusal of afforestation grantwhere it was refused solely on conservation grounds. However, a large backlog of casesremained from before the changes, and compensation continues to be available for profitforegone, excluding any grant element, in cases where planting would otherwise proceed80.

Under Regulations 16 and 17 management agreements may still be positive or negative. Thenature conservation bodies will still have to offer compensation to owners who will not enterinto voluntary agreements. However, on agricultural units, compensation will only bepayable to persons having an interest in the land at the time of the making of the Order (seesection V.B.2).

78HC Deb 22 February 1994 c106w79SSSIs: A Health Check Wildlife Link 199180Forestry. Library Research Paper 92/29


English Nature recognise that it is better to give financial support for the positive managementof SSSIs, and have a goal that all SSSIs should be positively managed by the year 200062.

5. Land use-the example of the Cairngorms

The Cairngorms cover 300,000 hectares and contain fragments of the 8000-year-oldCaledonian pine forest that once covered much of Scotland.

Caledonian pine forest is one of the UK's priority habitats (see section V.B.1).

The Scottish Office's Cairngorms Working Group set up in 1991 concluded that there was "nolandscape or ecosystem quite like it anywhere else in the world...it should be the keystone ofthe Scottish and the UK contribution to the global natural heritage"81.

Although management agreements can be made with landowners, in practice the WCA doesnot allow the conservation agencies to curtail current land use practices. The Caledonianforests are failing to sustain, let alone regenerate themselves, because new saplings getremoved through grazing by red deer, encouraged by the landowners to generate income fromhunting. According to one researcher:

"What remains here looks like healthy forest. It is certainly old. But it is alsodying. There is not a tree here that is under 150 years old. The last saplingsto survive in any numbers into adulthood sprouted here before the [Highlandclearances]".

The Working Group called for a large cull of deer to reduce populations by half, andconservationists call for still larger culls. Through Government funding, fences are beingerected across some estates to keep deer away from parts of the natural forests, and to allowregrowth. But critics say that the growth inside the fences is no more natural than thatoutside, since it is not being browsed at all and a dense undergrowth is developing (ibid).Where the deer are allowed to go, their increased population densities are leading to soilerosion, the loss of plants such as heather and juniper and damage to dotterel nests.

The Glenfeshie Estate, half of which is inside the Cairngorms NNR, was offered for sale for£4-5 million at the start of June 1994. Management procedures on the estate had been thecause of much concern to conservation bodies. In response to a recent PQ from Mr TamDalyell about the planting of set-aside trees on the Glenfeshie estate, the Secretary of Statefor Scotland replied82:

81"Last chance for the wasting wilderness?" New Scientist, 18 September 1993 p.382HC Deb 28 June 1994 c501w


"Glenfeshie is a private estate, and thus tree planting on the estate is a matterfor its owner".

Several conservation organisations were involved in bidding for the estate. The RSPB/JohnMuir Trust withdrew a joint bid after failing to secure extra funding from the ScottishNational Heritage Memorial Fund83. In the event a little-known English charitable trust, WillWoodlands Ltd, outbid the Danish Legoland Corporation, and has pledged to manage theestate for nature conservation84.

The control of land use practices on privately owned land does appear to be a real problem,tied up with that of having to make costly compensation payments to owners.

6. Off-site damaging activities

SSSIs almost inevitably get damaged by outside influences. For instance, one 1993 EnglishNature Science report considered that in England, 600 SSSIs (16% of the total), are at riskfrom continued acidification85.

102 SSSIs in England are thought by English Nature to regularly suffer from eutrophication.Streams running into SSSIs from farmland may carry organic pollutants such as fertiliser orsewage onto the site. Eutrophication results from an over-abundance of nutrients in waterwhich leads to over-growth of algae; these may produce toxins and use up the oxygendissolved in the water as they grow, jeopardising other life in the water. The Lake District,Somerset Levels, Norfolk Broads, Loch Leven and the River Test have been damaged byeutrophication86.

Regulation 16 allows management agreements to be made on land next to or surrounding aEuropean site, which may mitigate some external influences (but of course this cannot counterwider pollution effects).

7. Developments on SSSIs

Environmental organisations have turned several SSSIs into cause célèbres. Department ofTransport plans to re-route or enlarge major roads have threatened the Devil's Punch BowlSSSI in Hindhead in Surrey, Oxleas Wood in Greenwich and, most famously, have damagedTwyford Down in Hampshire. WWF (UK) has written87:

83"Scots bid for Glenfeshie abandoned on eve of deadline" Scotsman 16 June 1994 84"Glenfeshie goes at £4m to secret English trust". Scotsman 30.6.94 p.185SSSIs in England at risk from acid rain. Bisset & Farmer, English Nature Science No. 15, 199386New Scientist 18 September 199387The Habitats Directive: Time for Action WWF UK (World Wide Fund for Nature) November 1992


"The fact that the Government has chosen to embark upon the greatest roadbuilding programme in the history of the UK will undoubtedly focus furtherpressure on SSSIs. At least ten SSSIs, for example, will be directly affectedby proposals to "improve" the M25..."

The final stretch of the M3 motorway from Bar End to the M27 near Southampton, acrossTwyford Down, was given the go-ahead on 20 February 1990 after an inquiry had been heldin 1985. The EC Directive on Environmental Impact Assessment (85/337/EEC) whichrequires mandatory environmental assessment for major road projects had come into force justafterwards (an Environmental Statement had been prepared according to the 1983 DoTManual of Environmental Assessment). The late Stephen Milligan MP commented during onedebate88:

"jobs in Southampton are more important than butterflies on Twyford Down".

At the end of last year there were allegations of a dispute between the Department ofTransport and the Department of the Environment. A report in the Daily Telegraph89

described a leaked letter showing that the Transport Secretary, Mr John MacGregor, wasconcerned that the Natura 2000 network might jeopardise parts of the £23m road programme.The article alleged that there was a "wide gulf" between lawyers at the two Departments onthe point of whether road schemes which already had consents would need to be reviewed,and that the Attorney General and nine other Cabinet Ministers had been involved in thedispute. The former chief scientist at the NCC, Dr Derek Ratcliffe, said that:

"The clear intention of the habitats directive is that there should be reviews ofnot only transport projects, but agriculture, forestry and industrial developmentwhich affect these important sites. The Department of the Environment hasclearly been leaned on heavily by Transport. Transport must not be allowedto get away with it."

Earlier in 1993 a joint report by Friends of the Earth and the Observer newspaper, featuredin a Channel 4 Dispatches programme, concluded that 160 SSSIs were threatened by theDepartment of Transport's trunk roads programme90. The Observer article listed 65 siteswhich it alleged were directly "in the bulldozer's path", and reported that English Nature hadestimated that 150 special sites were threatened by road building plans.

The National Audit Office report on SSSIs further addresses this issue. English Nature andthe Department of Transport had agreed that, as at 1 December 1993, 48 sites would beaffected by road schemes, for which the Preferred Route had been announced. Byextrapolation, English Nature has estimated that up to 160 sites might be threatened by the

88HCDeb. 7 July 1992, c17289"Ministers on collision course over countryside conservation" Daily Telegraph 20 December 1993 p.190"In the bulldozer's path..." Observer 14 February 1993 p.1


entire roads programme. However, according to the NAO, the Department of Transport"doubt that this is a meaningful calculation"91.

See section V.D.1 and 2. Road schemes and other statutory undertakings must now includea consideration of the effects on European sites. Existing planning permissions will bereviewed. However, under Regulations 48 and 49 social or economic considerations willover-ride European site protection.

A Royal Society for Nature Conservation report in 199192 listed twenty SSSIs that had beendamaged or were threatened by mineral extraction as a result of "Interim DevelopmentOrders" (IDOs) granted during the Second World War and immediately afterwards. Manyof these IDOs still exist.

The 1991 Planning and Compensations Act has required that mineral planning permissionsbe registered with a local authority who may modify the conditions of the order, but WWFsay that a complete revocation of these IDOs will be necessary to remove the threat to SSSIs.The Wildlife and Countryside Act 1981 does not allow the planning authority to imposeconditions on IDOs that affect economic viability. So for instance, Cumbria County Councilare unable to impose conditions on an old IDO permission for slate quarrying on Kirby Moor(the largest area of heather moorland in southern Cumbria) that will affect the economicviability of that site93. At Aldermaston Butts Lake SSSI in Berkshire, a partially extractedgravel pit which supports breeding birds, planning permission granted in 1949 for sand andgravel extraction allows the owners to legally continue with extraction87.

The Cors Carmel SSSI in Dyfed (an ancient semi-natural limestone woodland, where the raregreater horseshoe bat hibernates in caves formed by the old lime-workings) has for some timebeen the centre of a dispute between conservation groups, and developers (McAlpine)planning to extract limestone from the site under an IDO. The Secretary of State announcedin 1992 that a public enquiry would be held, but by then the case had been widely quoted ashighlighting a failure in the call-in procedures relating to SSSIs; that a public enquiry in theevent of an objection from the conservation agency is not mandatory87.

Under Regulation 32 the nature conservation bodies (not just the Secretary of State) now havethe power of compulsory purchase. Regulation 50 requires the review of existing consentsand permissions.

Cardiff Bay was listed as an SSSI in 1980 because of its importance as a wetland habitat formigrating bird species including redshank and dunlin. The estuarine mudflats and saltmarshes will be replaced by a freshwater lake when the Cardiff Bay Barrage is built as part

91Protecting and Managing Sites of Special Scientific Interest in England. National Audit Office, 11 May 1994HMSO HC 37992Losing Ground. Skeletons in the Cupboard. Mineral Planning. Royal Society for Nature Conservation- TheWildlife Trusts' Partnership 199193"Road to ruin for Britain's wildlife" New Scientist, 11 November 1993 p.35


of a £150 million redevelopment and marina scheme in Cardiff Docks. The work is beingdone under the Cardiff Bay Barrage Act 1993 (cap 42) which received Royal Assent inNovember 1993, and the Taff-Ely SSSI will be completely destroyed. The then Secretary ofState for Wales David Hunt said that the barrage represented:

"a public interest greater than the ecological interest".

Friends of the Earth released a leaked letter written by Ioannis Paleokrassis to the UK inJanuary 1994. The letter released by FoE said that the area should have been included in theSevern Estuary SPA, of which it was an integral part. Under the Habitats Directive, thedevelopment might have been acceptable as a project of over-riding socio-economic reasons,but under the Birds Directive, because of the German Leybucht case (C57/89), it would nothave been. According to the letter, the compensatory measures proposed for the loss of theCardiff Bay mudflats and birds were inadequate, given, inter alia, that redshank and dunlinhad significantly declined in the UK and the Severn Estuary could not adequatelyaccommodate the birds displaced from Cardiff Bay94.

Under Regulation 55, planning permissions granted by public Acts of Parliament do not haveto be reviewed. European sites may be over-ridden on social or economic grounds, butpriority European sites only for reasons of public health or safety. Inter alia, permitteddevelopment rights have been removed (see section V.D.2)

Friend of the Earth's Habitats Campaigner has commented:

"If the UK gets away with interpreting EC habitat legislation to suit businessinterest, then dozens more internationally important wildlife sites must beconsidered at risk".

D. Damage to SSSIs

Since 1991, English Nature has carried out site integrity monitoring of SSSIs. Checking asite's integrity includes noting significant changes, whether important habitats and features arestable, and whether there are any threats to the site. EN has also been checking site quality,which includes noting subtle changes, collecting scientific data collection over the long term,and addressing problems identified during integrity monitoring. EN aims to visit one thirdof all sites every year. Some sites are visited more often if they are vulnerable or fragile,and in 1992-93 some part of 52% of all sites was visited. However, many of these visits did

94"Cardiff Bay Barrage "Unacceptable" Commission demands compensation measures for wildlife" Friends ofthe Earth Press Release 15 April 1994


not include an inspection of the entire site, and inspections may have been combined withother tasks95.

The recent National Audit Office (NAO) report on SSSIs gave NCC/English Nature figuresfor loss and damage on SSSIs, collected during annual integrity monitoring. Since 1987 therehave been 869 cases of loss or damage, but only one site has been completely lost. In 57other cases part of a site were lost. The figures are summarised in Table 1:

Nature Conservancy Council English Nature

Category ofdamage

87-88 88-89 89-90 90-91 91-92 92-93 Total

Site loss 0 0 0 0 1 0 1

Partial loss 19 9 9 8 6 6 57

Damage:Long term

19 20 21 20 34 40 154

Damage:Short term

56 107 78 132 177 107 657

Total 94 136 108 160 218 153 869

(Where short term=will take less than 15 years to repair. Adapted from NAO report, reference 91.)

The total number of sites damaged in England from 1987 to 1993 (869) is a significantproportion (almost a quarter) of the total number of SSSIs in England (3,759; there are over6000 in the UK as a whole). However, English Nature note that damage on some sites maybe recorded more than once, year after year. Also, in 1992-93 the 153 loss and damage casesoccurred on only 139 sites.

Many sites (154) have suffered long term damage that will take over 15 years to repair. TheNAO points out that the majority of cases (657) concern short term damage, expected torecover within 15 years (and "often considerably less", with the right site management). In1991-92, 3.5% of total SSSI area was damaged, and in 1992-93 this figure was 2.8%. ENpoints out that damage and deterioration on some sites may be offset by gains andimprovements elsewhere, and that the actual loss by area in 1992-93 was only 0.001%. Equally however, EN do not regard the above figures as exhaustive, and the NAO alsoconsider that some cases of loss and damage might not be included. For instance, an NCC

95Protecting and Managing Sites of Special Scientific Interest in England. National Audit Office 379, HMSOApril 1994.


report on farm pollution in 1990 identified 46 cases of chronic pollution damage on a "smallsample" of SSSIs, yet far fewer cases were shown on the formal loss and damage statisticsin the NCC's Annual Reports for the same period.

The NAO also note that the most serious long-term threat to many sites, which in EN's viewis deterioration through lack of management, is not fully represented in the loss/damagefigures, and nor are further threats such as pollution and acid deposition.

The causes of loss and damage in 1991-92 and 1992-93 were as follows:

CAUSE OF LOSS/DAMAGE 1991-92 1992-93

Agriculture(overgrazing, pollution, poor management)

28 28

Miscellaneous(including pollution, tipping and burning)

28 24

Insufficient management(leading to deterioration)

20 22

Recreation(scrambling, water sports, four wheel drives)

11 6

Statutory undertakers(including road building)

6 13

Planning permission 5 4

Forestry 2 3

(Adapted from NAO report, ref 91.)

The NAO report notes that:

"the fact that notification does not always protect an individual site does notmean that the designation is of no value. For example there is no way ofknowing how many proposals to develop on or near SSSIs have neverprogressed because of the notification, but it is likely to have had a significantdeterrent effect".

The 1991 Wildlife Link report on SSSIs79 was written just as English Nature introduced itssite integrity and quality monitoring regime. The report pointed out that, particularly beforethe implementation of the site integrity monitoring scheme, not all sites were checked everyyear, so it was "perfectly possible" for damage to be recorded several years after it hadoccurred. Moreover, the report attacked the figures given by the NCC for 1990-91 as anunderstatement of the true damage.


For England, the Wildlife Link report noted wide county imbalances in returns. It noted thatfigures for loss and damage in Scotland were "so low that no effective analysis can be madeother than to question their veracity". For Wales, where CCW had been recording chronicloss and damage for only two years, the vast majority of damage was through over-grazing.

The report considered that around 5% of SSSIs were being recorded as being damaged everyyear, but this was an underestimate. The first results from English Nature's site integritymonitoring scheme had indicated that 40% of sites visited showed some damage ordeterioration and 21% were under threat.

By definition, sites which had suffered short term damage should recover within 15 years, butthis presupposed effective and appropriate site management. Since much of the damage hadbeen done in the first case by inappropriate management, such as over-grazing, it was notclear that short-term damage would be repaired effectively.

An article in New Scientist magazine has commented96:

"Landowners can sign management agreements, and accept cash for notdraining marshes or ploughing up pastures for as long as they want. But theycan also tear up the agreement whenever it is convenient...The [SSSI] systemcannot control outsiders or insist on better than existing land management. Itdoes not supersede old planning consents, and lacks a means of preventingparliamentary bills, or the determination of central government, from pushingthrough development projects...Many of these failings could be addressed asthe government reviews its policy to meet the European Commission's habitatsdirective..."

96"Last chance for the wasting wilderness?" New Scientist 18 September 1993


V. The Conservation (Natural Habitats, &c.) Regulations 1994

The draft Regulations will be subject to the affirmative procedure, for approval by resolutionof each House. Further regulations will be laid "in due course" to ensure that other activitiesfor which statutory consents and permissions are required do not adversely affect protectedsites. The Government will also produce planning policy guidance notes (PPG) for localplanning authorities once the present regulations have been approved97.

The draft Regulations were relaid on Wednesday 13 July 1994, but these were unavailableat the time of writing.

The general requirements of the directive were described in section II.F above; this sectiondescribes the present Regulations and requirements peculiar to the UK.

A. Procedures for UK implementation of Directives

Under Article 189 of the Treaty of Rome (as amended by the Maastricht Treaty) theinstitutions of the European Community have the power to issue directives which are "bindingas to the result to be achieved, upon each Member State... but shall leave to the nationalauthorities the choice of form and methods".

Once a directive has been adopted, the British Government is therefore bound to implementit, but has some discretion as to how this is done. In some cases UK law may alreadycomply with the requirements of the directive. If it does not, then changes may be introducedeither by new primary legislation, or else by secondary legislation (statutory instrument). Thelatter route is available where regulations can be made under existing UK legislation, eg onHealth and Safety and Food Safety, or under Section 2 (2) of the European Communities Act1972.

Section 2 (2) allows the use of secondary legislation to implement any Community obligationor to deal with matters arising out of or related to any obligation, but its use is limited bySchedule 2 of the Act. Specifically, it cannot be used to impose or increase taxation, tolegislate retrospectively, or to further sub-delegate the power to legislate and there arerestrictions in 1(1)(d) of the Schedule as to the penalties which can be introduced by thismethod.

As long as the Community directive can be implemented within these restrictions, this routemay be chosen. Under 2(2) of the Schedule, the parliamentary procedure is the negative one(giving either House the power to annul by resolution) unless the Regulations have been

97HC Deb 6 July 1994 cc244-5w


approved in draft by both Houses. In the present instance both Houses are being invited toapprove the Regulations in draft.

The use of the procedure has sometimes been controversial. An Efficiency Scrutiny Reportof 1993 on The Implementation and Enforcement of EC Law in the UK described the use ofSection 2(2) of the ECA 1972 as "the method of last resort" (para 4.10), partly because ofworries about introducing major legislative changes without full parliamentary scrutiny andpartly because of the restrictions which the procedure imposes. For example, Section 2(2)gives little scope for any "tidying up" of UK legislation unless this is strictly required by theDirective. The advantage of the method is that it can be quicker and occupies less time inthe parliamentary timetable. Fuller parliamentary scrutiny could only effect the method ofimplementation, since, as noted above, a Directive is already binding "as to the result to beachieved". The draft Habitats directive was subject to UK parliamentary scrutiny before itwas adopted in 1992 and was considered in European Standing Committee A on 22 May 1991(see section II.F above).

Part I of the Regulations deals with introductory provisions, defines the relevant authorities,and also defines many of the terms already referred to in this paper. The provisions of theUK Regulations follow closely those of the Directive, to a large extent.

B. Part II Conservation of natural habitats and habitats of species

1. Site selection and registration

Regulation 7 deals with the selection of sites eligible as sites of Community importance(European sites). The procedures reproduce those as set out in the Directive. The UK'snational list of sites will be transmitted to the Commission by 5th June 1995. Informationon each site, including a map, its location and extent, and the way in which it fits the criteriaset out in Annex III (stage 1) will be included.

Regulation 8 again echoes the Directive, and states that once a site has been adopted [by theCommission onto its draft list of sites of Community importance], the UK will designate thatsite an SAC within six years at the most. The Secretary of State will prioritise sites fordesignation on the basis of the importance of the sites for Annex I habitat types or Annex IIspecies and for the coherence of Natura 2000.

Regulation 9 allows the Commission to intervene in exceptional cases, should it find that asite in the UK hosting a priority habitat or species has not been included on the UK's nationallist. The Commission can initiate a bilateral consultation, and if either the Secretary of Stateagrees that the site should be on the list, or if, following referral from the Commission, theCouncil decides that it should, then the site will be added to the list. This shouldtheoretically pose few problems for the UK since we are not responsible for a large numberof priority species or habitats.


The priority habitats for which the UK is the main site in the EC are;

active raised bogs, active blanket bogs, dune heaths and grasslands, limestone pavements, Caledonian forests and yew woods98.

The liverwort Marsupella profunda, which grows on china clay spoil heaps, is the UK's onlypriority species99.

The choice of priority species has perplexed some conservationists. Regarding the choice ofM. profunda, a JNCC official has commented100:

"One can think of all sorts of other bryophytes [mosses and liverworts] and soon at least as worthy. And while it is nice to see four species of vertigo snailsthere, I have no idea why they were chosen. What about all the othermolluscs?"

One can however infer, for instance, that at least part of the Cairngorms (containingCaledonian forest) will have to be included on the national list and designated an SAC.

Regulation 10 defines "European sites" as SACs, Bird Directive SPAs, and sites that havebeen placed on the Community's "list of sites selected as sites of Community importance".European sites also include sites containing a priority species or habitat type that have notbeen placed on the UK's list, but which the Commission is pursuing, under Regulation 9.However, this last category of European site will not be fully subject to the provisions in theUK's Regulations.

Regulations 11 and 12 require the Secretary of State to maintain a register of all the above-defined European sites. The register may be in "such form as he thinks fit" but it must bekept available for public inspection free of charge. The appropriate nature conservation body[EN, SNH, CCW or DoE/NI] must be informed of any changes to the register, and thesebodies will also have to keep copies of the register available for public inspection in theirareas.

Regulation 13 states that as soon as practicable after a nature conservation body is told ofthe inclusion of a site on the register, they shall inform every owner and occupier of the land,

98Conservation in Europe will Britain make the grade? A Report by Derek Ratcliffe for Friends of the EarthSeptember 199399Source: Department of the Environment, 13 July 1994100Forum, New Scientist, 6 November 1993 pp50-51


every local planning authority, and such other persons as the Secretary of State may direct.All information on the register pertaining to the relevant part of the site shall also be providedalong with notification.

No list of SACs or potential SACs has yet been published101 or is otherwise available throughofficial sources. According to the Secretary of State for the Environment, the natureconservation bodies, coordinated by the JNCC, are "working on their advice" concerning theUK's national list, and:

"When the Government has considered the agencies' advice, we shall decideto publish our proposals and the consultation process will begin. Individualowners and occupiers of sites will be kept fully informed".

However, Derek Ratcliffe, the former chief scientist at the NCC, writing for Friends of theEarth, has compiled a list of 112 Potential SACs (PSACs) based on the scientific criteria laidout in the directive. Nearly all of these are designated at least in part as SSSIs, and the sitesvary in their vulnerability and conservation status. Derek Ratcliffe considers that all shouldbe included in the UK's national list of candidate SACs to be submitted to the Commission.(Specific sites for the highly mobile marine mammals were not identified.)

The 112 PSACs identified by Derek Ratcliffe are shown in Appendix 2.

Regulations 14 and 15 specify that an entry in the register in England and Wales is a localland charge and that in Scotland the register of European sites must be made available byplanning authorities102.

2. Management agreements

Regulation 16 states that the nature conservation bodies may enter into managementagreements with every owner, occupier or lessee of land forming part of a European site.This Regulation also allows the nature conservation bodies to enter into a managementagreement with the owner, occupier or lessee of land adjacent to a European site. If thispower is used extensively in practice, it may help to prevent some of the damage that maybe done to sites by outside activities.

As with SSSIs, the agreements may be positive or negative, and compensatory payments maybe made. Regulation 17 makes existing agreements entered into under previous Acts subjectto the present Regulations.

101Source: Department of the Environment, 13 July 1994102This means that, for instance, if someone is buying land, they should discover during the searches that theland has a long term obligation attached to it.


3. Control of potentially damaging operations: SNCOs

Regulation 18 deals with potentially damaging operations (PDOs). Any notifications alreadyin force on SSSIs under s28 of the Wildlife and Countryside Act 1981 (specifying PDOs thatmay not be carried out) will have effect under these Regulations. The nature conservationbody may alter the notification at any time to secure compliance with the Directive, and shallnotify any owner and occupier and the local planning authority.

Under Regulation 19, the owner or occupier may not carry out, or cause or permit to becarried out, any PDO, unless;

the nature conservation body has been given notice and either

the nature conservation body has given its consent, orthe operation is carried out in accordance with the terms of a managementagreement, orfour months have expired since notice was given.

As with the SSSI system, this does not appear to apply to third parties, but only to ownersand occupiers. The four month loophole is still present (but a SNCO may be made; seebelow).

Under Regulation 20, the nature conservation body must only give its consent to an operationif it has assessed such a project and has ascertained that it

"will not adversely affect the integrity of the site".

Emergency operations and operations authorised by planning permissions are permitted.Contravention risks of a fine of up to level 4 on the standard scale (£2500). So theseprovisions essentially do not alter those already in place for SSSIs: the nature conservationbodies are expected to use their existing statutory powers to protect European sites and thecriticisms of low fines and the owner merely having to wait four months before being ableto carry out a PDO could still be levelled.

The real difference lies in changes made to the NCO provisions.

Regulations 22 and 23 deal with special nature conservation orders (SNCO). If a natureconservation body thinks that a PDO is going to be carried out, they shall notify the Secretaryof State. The Secretary of State may then make a SNCO specifying operations that may notbe carried out (or be caused or permitted to be carried out) by the owner or occupier.


Operations specified in a SNCO may only be carried out if

the nature conservation body has been given notice and either

the nature conservation body has given its consent, orthe operation is carried out in accordance with the terms of a managementagreement

Under Schedule 1, an SNCO will last for 9 months unless the Secretary of State haspreviously given notice that he does not propose to amend or revoke it. So SNCOs can bethought of as being not time-limited (unlike NCOs on SSSIs under the Wildlife andCountryside Act 1981 which run out after twelve months).

This means that SACs can be made the equivalent of "super-SSSIs" (see section IV.B above),and that this protection may last indefinitely. The question will be how often and readilysuch powers will be used, bearing in mind that only about 40 NCOs have been made forSSSIs to date.

A person who contravenes a SNCO is liable on summary conviction to a fine not exceedingthe statutory maximum, or on conviction on indictment, to a fine. However it is a reasonableexcuse if an operation is carried out in an emergency or under planning permission.

Under Regulation 24, the owner or occupier may, within two months of refusal of a consent,or if he has not heard a decision within three months, require the nature conservation bodyto refer the matter to the Secretary of State.

If the Secretary of State is satisfied that the project must be carried out for reasons of over-riding public interest (which may be of a social or economic nature) he may direct the natureconservation body to give consent. If the site hosts a priority habitat or species then the onlyreasons for which consent may be given are those relating to human health, public safety orof primary importance to the environment, or which in the opinion of the Commission are inthe interests of over-riding public interest.

If such consent is given, the Secretary of State must ensure that "such compensatory measuresare taken as are necessary to ensure that the overall coherence of Natura 2000 is protected". Regulation 25 deals with compensation for the effects of SNCOs. Compensation may bepaid to persons having an interest in land comprised in an agricultural unit at the time of themaking of the order.

Under Regulation 26, a person convicted for contravening an SNCO may, in addition to afine, be sentenced to carry out remedial or restorative work to the land. Failure to do thisis an offence punishable on summary conviction to a fine not exceeding level 5 on thestandard scale (£5000), and further offences may be proceeded against from time to time.


4. Byelaws and compulsory purchase powers

Regulations 28-31 deal with bye-laws for terrestrial European sites. Under s20 of theNational Parks and Access to the Countryside Act 1949 (cap 97) the nature conservationbodies may make bye-laws to prohibit or restrict entry into, or activities within, terrestrialEuropean sites. Bye-laws may also cover an area surrounding or adjacent to a site.

These bye-laws must not interfere with the activities or functions of;

an owner, occupier or lesseea public right of waystatutory undertakersinternal drainage boards, district salmon fishery boards or Commissionersappointed under the Tweed Fisheries Act 1969a telecommunications code system or the operator of any such system

If these bye-laws interfere with the rights or interests of any person, he shall be entitled tocompensation from the nature conservation body.

Regulation 32 allows the nature conservation bodies, where they cannot arrange a satisfactorymanagement agreement, or where a management agreement has been breached, tocompulsorily acquire the land. (The Secretary of State was responsible for compulsorypurchase of SSSIs.)

5. European Marine Sites

Regulations 33-36 place a duty on the appropriate bodies to use their existing statutory andbye-law making powers to further the conservation objectives of European sites. They allowthe nature conservation bodies to mark out a European marine site (so long as this does notinterfere with navigation), and to inform other relevant authorities of the site's conservationobjectives and any operations that might prove damaging.

Any or all of the relevant authorities103 may establish a management scheme under which theirfunctions to make bye-laws shall be exercised so as to secure compliance with the Directive.Only one management scheme may be in place at a time, and as soon as it is established theappropriate nature conservation body must be sent a copy.

103for a marine site, these are; a nature conservation body; a county, district, London borough, regional, islandsor district council, the NRA, a water or sewerage undertaker, an internal drainage board, a navigation authority,a harbour authority, a lighthouse authority, a river purification board or a local fisheries committee


As well as giving directions regarding any aspect of a European marine site managementscheme, the relevant Minister is given reserve statutory powers to make a Direction to theauthorities stipulating;

conservation measures to be included in the schemetime limits for actionthat one authority should act as a coordinatorthat Ministerial approval be sought before the scheme is established, or thatany information must be supplied to the Minister.

The nature conservation bodies may also make bye-laws for the protection of a marineEuropean site using their existing powers under s37 of the Wildlife and Countryside Act 1981(byelaws for protection of marine nature reserves). However, nothing in such bye-laws mayinterfere with the functions of any relevant authority, with functions conferred by anyenactment, or with any right of any person (whenever vested).

The marine system will thus be run on a voluntary basis (see section III.H above for furtherdetails).

Regulation 37 addresses linear landscape features, such as field boundaries (hedgerows) orriver banks, which aid the migration and dispersal of wild flora and fauna, and thus helpmaintain genetic diversity (biodiversity). It also mentions features such as small ponds orwoods that may act as stepping stones. Without such features, small populations can becomegeographically and thus genetically isolated and this may be a mechanism that leads to eitherspeciation or extinction. The Regulation stipulates that, under the Town and Country Planning Acts, policies in respectof the conservation of the natural beauty and amenity of the land should be taken to includepolicies encouraging such features as those described above.


C. Part III Protection of Species

Regulations 38 to 46 largely reiterate the provisions already present in UK law in the Wildlifeand Countryside Act 1981. The species of animals and plants listed in the Annexes to theDirective whose natural range includes any area in Great Britain are copied to the Schedulesof the Regulations.

Schedule 2 lists rare native UK species of animals;

all UK batslarge blue butterflywild catall UK cetaceansdormousesand lizardgreat crested newtottersmooth snakesturgeonnatterjack toadfive species of marine turtles.

These European protected species, and their eggs and breeding and resting sites are strictlyprotected. It is an offence to deliberately capture, kill or disturb these animals or to tradein them.

Schedule 3 lists less threatened species;

barbelgraylingmountain harelampreypine martinpolecatAtlantic slamonbearded sealcommon sealgrey sealharp sealhooded sealringed sealallis shadTwaite shadvendacewhitefish


which may not be killed or taken in certain ways, such as by using explosives, gas,poisons, automatic weapons, dazzling devices, non-selective traps or nets, and blind ormutilated animals as decoys.

Schedule 4 lists rare native plants;

shore dockKillarney fernearly gentianlady's slippercreeping marshwortslender naiadfen orchidfloating-leaved water plantainyellow marsh saxifrage

These European protected species of plants are strictly protected. It is an offence to pick,collect, cut, uproot or destroy these plants or to trade in them.

Licenses may be granted by the nature conservation bodies for derogations to allow, forinstance, scientific work, to protect agricultural interests or to prevent the spread of disease.

Offences are punishable by fines of up to level 5 (£5000) on the standard scale.

The UK's only "priority species" is the liverwort Marsupella profunda, which grows on chinaclay spoil heaps (see section V.B.1 above).

D. Part IV Adaptation of planning and other controls

1. Requirement to consider effect on a European site

Regulation 48 stipulates that a competent authority, when deciding whether to grant planningpermission or authorisation for any plan or project that is likely to have a significant effecton a European site and is not directly connected with or necessary to the management of thatsite, shall make an appropriate assessment of the implications.

The applicant shall supply any information reasonably required by the authority. Theauthority shall consult with the appropriate nature conservation body and take their views intoaccount, and if the authority considers it appropriate it shall also consult public opinion.

After assessment,

"the authority shall agree to the plan or project only after having ascertainedthat it will not adversely affect the integrity of the European site".


However, under Regulation 49, for a "standard" European site, if the authority is satisfiedthat there are reasons of overriding public interest which may be of a social or economicnature, the authority may agree to the plan.

If the site hosts a priority habitat or species (if it is a "priority" European site), then theauthority may only agree if the reasons relate to human health or public safety.

The opinion of the Commission may be sought by the authority or by the Secretary of Stateif necessary.

Regulations 50 and 51 allow for the review of existing decisions and consents. Therelevant authority shall, as soon as reasonably practicable, review any consents, decisions orauthorisations which were granted before a site became a European site, and shall affirm,modify or revoke these.

Guidance may be issued by the Secretary of State to help authorities decide how to exercisetheir powers and to help them decide whether, while affirming the consent, any action canbe taken that will stop the plan or project from adversely affecting the integrity of the site.

Regulation 52 says that where more than one competent authority may be involved, guidancemay also be issued to indicate which authority would be best suited to take decisions, andwhether the opinions of other authorities should be taken into account.

Under Regulation 53, when a plan or project on a European site is agreed to for reasons ofoverriding public interest,

"the Secretary of State shall secure that any necessary compensatory measuresare taken to ensure that the overall coherence of Natura 2000 is protected".

2. Planning

The provisions relating to planning are lengthy and technical and will not be covered in verygreat detail here. They were summarised recently by the Secretary of State for theEnvironment104, and the DoE/WO and SO issued consultation papers on the withdrawal ofpermitted development rights in March 1993105. The Planning Policy Guidance Note (PPG)on Nature Conservation which will be published following the approval of these Regulationsshould give further information.

104HC Deb 6 July 1994 cc244-5w105The Town and County Planning GDO: permitted development, environmental assessment and implementationof the Habitats Directive. DoE 17 March 1993, and Scottish Office, 2 August 1993


Regulation 54 states that the requirement to consider the effect on a European site will applyto planning permission being granted under various Acts including Part III of the Town andCountry Planning Act 1990 and the Town and Country Planning (Scotland) Act 1972.

Planning permission may be granted for projects if the competent authority considers thatadverse effects on the integrity of a European site may be avoided by attaching conditions orlimitations to the planning permission.

Outline planning permission may not be granted unless the authority is satisfied that nodevelopment adversely affecting the integrity of a European site could be carried out underthe permission, whether before or after obtaining approval of any reserved matters.

Regulation 55 states that the required review of existing consents and decisions (Regulations50 and 51) apply to any planning permission or deemed planning permission granted undervarious Acts. Certain exceptions exist. For example, permissions granted by public generalAct of Parliament are not covered.

Regulations 60-62 remove permitted development rights. They state that any planningpermission granted under a general development order (GDO) which is likely to have asignificant effect on a European site shall not be begun or completed until the developer hasreceived written confirmation from the local planning authority.

Where a project is planned under a GDO the opinion of the appropriate nature conservationbody may be sought, and after assessment

"the authority shall approve the development only after having ascertained thatit will not adversely affect the integrity of the site".

Under Regulations 64-67, following the Commencement of the Regulations, specialdevelopment orders, simplified planning zone schemes and Enterprise zone schemes shallnot have effect for granting permission for a development that is likely to have a significanteffect on a European site. Compensation will apply to planning permission withdrawn.

Regulations 69-85 say that the requirement to consider the effect on a European site(Regulations 48 and 49) applies to;

plans by the Secretary of State or a Highway Authority to construct or improve a newhighway or road, cycle tracks, consents under the Electricity Act 1989, authorisations under the Pipelines Act 1962, orders under the Transport and Works Act 1992authorisations [to pollute] under the Environmental Protection Act 1990waste management and disposal licenses granted under the Environmental ProtectionAct 1990


discharge consents under the Water Resources Act 1991 (and the Control of PollutionAct 1974 in Scotland)

Part V deals with Supplementary provisions. Inter alia, these allow life tenants to enterinto management agreements, give powers of entry to land to the nature conservation bodiesto check whether a special nature conservation order needs to be made, and deal withcompensation.

Regulations 91-93 deal with the compensation payable after a special nature conservationorder has been made on an agricultural unit. This shall be

"shall be the difference between the interest of the value in question and whatit would have been had the order not been made".

Compensation will carry interest from the date of a claim until payment.

Regulations 94-97 deal with the making of bye-laws and the compensation payable for theeffect of these.

Regulation 98 confers the powers of compulsory acquisition on the appropriate natureconservation body (with the authorisation of the Secretary of State).