171M. Alexander, Management Planning for Nature Conservation: A Theoretical Basis & Practical Guide, DOI 10.1007/978-94-007-5116-3_11, © Springer Science+Business Media Dordrecht 2013

Abstract All management plans must contain a section on legislation and policy: together they provide the foundations that support the plan and act as a guide to the direction that the process should follow. This chapter outlines the signi fi cance of legislation to planning and uses examples to demonstrate some of the main areas of in fl uence. The management of all sites will be in fl uenced to some extent by legisla-tion. On statutory conservation sites management may be governed almost entirely by legislation. Non-statutory sites do not escape the implications of legislation: there is a, sometimes bewildering, range of national and local laws, all requiring compliance. There is little purpose in spending any time discussing the failings, or otherwise, of legislation in a management plan. If there are issues these are probably best resolved elsewhere. Policies, or more speci fi cally organisational policies, are a high-level statement of the purposes of an organisation (why it exists). These policies will lead to an expression of their intentions, or a course of actions that they have adopted or proposed. The policies may have been adopted voluntarily, imposed by legislation, or they may be a combination of both. At best, they provide an opera-tional guide for an organisation, although sometimes, usually in less enlightened organisations, they are imposed as a set of incontrovertible rules.

11.1 Legislation

It is not the place of this book to document or discuss the implications of all the legislation that may in fl uence conservation management. This section will outline the signi fi cance of legislation to planning and will use examples to demonstrate some of the main areas of in fl uence.

The management of all sites will be in fl uenced to some extent by legislation. On statutory conservation sites management may be governed almost entirely by legislation. In these circumstances, managers can sometimes fi nd that their

Chapter 11 Legislation and Policy

172 11 Legislation and Policy

freedom is severely limited. Even non-statutory sites do not escape the implications of legislation: there will be health and safety legislation, access legislation and a sometimes bewildering range of other national and local laws, all requiring compliance.

Occasionally, legislation can be controversial, for example, the legislation that provides for designation and conservation of European habitats and species (Natura 2000 ). The main issue is that some people suggest that legislation does not favour dynamic, changing processes on sites. There is a belief that legislation is rather more about preservation than conservation. It may be the case that leg-islators have not given adequate consideration to the dynamic nature of our natu-ral environment. However, it is clear that, in some cases, it is the interpretation of legislation that may be the real issue. There is also a view that this problem is not insurmountable: legislation, and the interpretation of legislation, will change with time, and, in any case, the legislation in question is intended mainly for sites in a cultural landscape and not for wilderness areas. There is a general consensus that the management of habitats in cultural landscapes is best achieved through de fi ning outcomes for the important site features (see Chapter 15 ). There is little purpose in spending any time discussing the failings, or otherwise, of legislation in a management plan. If there are issues these are probably best resolved elsewhere.

Many conservationists, and those affected by nature conservation laws, see wildlife leg-islation as too blunt an instrument, as an in fl exible set of rules that sti fl e innovation and fl exibility, create bureaucracy, respond too slowly to social change and even hinder rather than help the conservation cause. In this respect nature conservation is no differ-ent to any other fi eld of social activity where people feel constrained or threatened by the law rather than protected by it. But the law is simply a set of rules by which society organises itself. In democracies, legislation is made – and can be changed – by our elected representatives. Meanwhile common law develops over time through social cus-tom and the work of the courts. Despite its failings the law of nature conservation, like any other, is ultimately an expression of social values and choices. And because law takes time to change – typically years – it tends to enshrine values and priorities that evolve slowly over time, rather than responding to whatever is making the headlines today. Law is indeed an imperfect tool, but since so much of it inadvertently enshrines rights to destroy biodiversity, is there really a viable alternative to a statutory basis for nature conservation?

Much of the antipathy towards conservation law, and environmental legislation generally, is because of its complexity, although compared to the law of, say, fi nancial services or inter-national trade nature conservation law is relatively uncomplicated. But if conservation law is simpli fi ed too much, it becomes either draconian or toothless and fails to re fl ect the huge diversity of people’s relationships with nature. Most of the complexity in environmental legislation is because the legislators somehow have to express society’s demand for ‘balance’ between a wide range of environmental objectives and an even wider range of cultural, social and economic aspirations. And on top of that, we demand fair and transparent rules of engagement. The only alternatives to a legal framework for nature conservation capable of balancing con fl icting interests, monitoring outcomes and accounting for itself, are to permit anything or ban everything. So maybe those turgid directives and regulations are worth having.

(Cole-King 2007 )

17311.1 Legislation

11.1.1 Examples of Legislation

The following section contains a few examples of legislation. They are typical of the types of legislation that anyone involved in preparing a management plan will need to consider. It is essential that this section in any management plan is taken seriously and given adequate attention. Legislation is, in most circumstances, intended to protect wildlife or people (both managers and visitors). In general, legislation will have a very positive impact. Indeed, it is usually the most important mechanism for protecting wildlife. There will also be a wide range of obligations where, occasionally, compliance can be expensive, sometimes prohibitively so. For example, in Britain the need to comply with Health and Safety law, particularly regarding the use of safety equipment and the provision of certi fi cated training, can mean that some management activities requiring the use of dangerous power tools become too expensive. Whatever the bene fi ts or costs, all operations on a site must be legal: the cost of compliance will be signi fi cantly less than the cost of being prosecuted.

The legislation section in a plan can be conveniently divided into two main sub-sections: wildlife legislation and general legislation

11.1.1.1 Wildlife Legislation

Site Designation The statutory status of a site, along with the obligations that this imposes, is one of the most important considerations in any plan. When statutory sites are established to protect speci fi ed features, species and/or habitats then the management plan must place the obligation to protect these features above all other considerations. Sometimes, when organisations have limited resources they will concentrate on the statutory features and give little, if any, attention to other features.

This section should also take account of the various international designations, for example, Ramsar, Biosphere and World Heritage, which will also in fl uence the management of the site features.

Examples of legislation that leads to site designation:

International – Ramsar The Convention on Wetlands, signed in Ramsar, Iran, in 1971, is an intergovern-mental treaty which provides the framework for national action and international cooperation for the conservation and wise use of wetlands and their resources. There are 154 Contracting Parties to the Convention, with 1,636 wetland sites, totalling 145.7 million hectares, designated for inclusion in the Ramsar List of Wetlands of International Importance. Contracting Parties are expected to designate sites for the List ‘on account of their international signi fi cance in terms of ecology, botany, zoology,

174 11 Legislation and Policy

limnology or hydrology’ (Article 2.2), and to ‘formulate and implement their planning so as to promote the conservation of the wetlands included in the List, and as far as possible the wise use of wetlands in their territory’ (Article 3.1).

Fig. 11.1 Dy fi , a Ramsar site

European – Natura 2000 In the European Union, nature conservation policy is based on two main pieces of legislation: the Birds Directive and the Habitats Directive. This has led to the development of the network of Natura 2000 sites. These are statutory nature conser-vation sites where the designation identi fi es speci fi c species and habitats (features) which will be protected. Article 6 of the ‘Habitats’ Directive (92/43/EEC) sets out provisions which govern the conservation and management of Natura 2000 sites. One of the key requirements for the Natura Network is that the habitats or species must be at Favourable Conservation Status across their natural range within the network. However, because the network will depend on the contribution of each individual site, it will always be necessary (although there is no legal requirement) to assess Favourable Conservation Status at site level. The implications of Favourable Conservation Status for the preparation of conservation management objectives are discussed in detail in Chapter 15 .

Fig. 11.2 Rhinog SAC, North Wales

Fig. 11.3 Pembrokeshire seabird cliffs SPA

176 11 Legislation and Policy

National (Britain) – Sites of Special Scienti fi c Interest (SSSI) Sites of Special Scienti fi c Interest are the best examples of Britain’s natural heritage of wildlife habitats, geological features and landforms. An SSSI is an area that has been noti fi ed as being of special interest under the provisions of the Wildlife and Countryside Act 1981. This was strengthened by the Countryside and Rights of Way Act 2000, which amends the 1981 Act and improves protection for SSSIs in England and Wales. The improvements include: enabling the conservation agencies (Natural England and the Countryside Council for Wales) to refuse consent for damaging activities; providing new powers to combat neglect; increasing penalties for deliberate damage and a new court power to order restoration; improving powers to act against cases of third party damage; and placing a duty on public bodies to further the conservation and enhancement of SSSIs. The sites are selected because they contain special or ‘interest’ habitat or species features. The UK Joint Nature Conservation Committee published A Statement of Common Standards Monitoring in 1998. This sets out a commitment to prepare conservation objectives which de fi ne the favourable condition for each ‘interest’ feature.

National (USA) – Wilderness Act Federal legislators in the USA have taken a different approach. The Wilderness Act protects more than 105 million acres of wild land throughout the United States. The act allows research and recreation (such as hiking, canoeing and camping) but prohibits mechanized vehicles and all development within the designated wild areas.

The ‘Wilderness Act’ (1964) de fi nes a wilderness as:

A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammelled by man, where man himself is a visitor who does not remain. An area of wilderness is further de fi ned to mean in this chapter an area of undeveloped Federal land retaining its primeval character and in fl uence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and uncon fi ned type of recreation; (3) has at least 5,000 acres of land or is of suf fi cient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scienti fi c, educational, scenic, or historical value.

Species Legislation – The Following Are Examples of Legislation Intended to Protect Species:

International – CITES The Convention on International Trade in Endangered Species (CITES) is an agree-ment between governments. Its aim is to ensure that international trade in speci-mens of wild animals and plants does not threaten their survival. CITES operates by

17711.1 Legislation

controlling the international trade in specimens of selected species. These are listed in three appendices according to the degree of protection they require. All the imports, exports and introductions of species covered by the Convention have to be authorized through a licensing system. Currently, 169 countries have joined the Convention. CITES control is obtained through the establishment of regional and domestic management and scienti fi c authorities. (CITES, speci fi cally the species listed in the appendices, can make an extremely useful contribution to the process of identifying the important site features.)

European Legislation – Article 5 of Council Directive 79/409/EEC of 2 April 1979 on the Conservation of Wild Birds This is the wild birds directive: it requires member states to establish a system for conserving wild birds. This is a general system for protecting wild birds by prohibit-ing the deliberate capture, killing, damage to nests, taking of eggs, and disturbance, particularly during the breeding season.

National Legislation – The UK Wildlife and Countryside Act 1981 Part 1 of the Act contains provisions for the protection of wild birds: any bird of a kind which is ordinarily resident in, or a visitor to, Great Britain in a wild state. The Act prohibits the deliberate capture or killing, protects nests when in use, and pro-hibits the collection or destruction of eggs. Protection from disturbance only includes birds listed in Schedule 1 (Cook 2004 ) .

11.1.1.2 General Legislation

This can be extremely complex and dif fi cult to deal with, because the management of protected areas is always subject to a vast array of regional, domestic and local legislation. This aspect of planning cannot be treated lightly since legislation will in fl uence the management of all sites. It would be impossible to produce a represen-tative list of typical legislation because this will vary so enormously from country to country and from site to site. Instead, the following are a few examples of legislation which are relevant to most UK sites. They are included to illustrate the diversity of legislation that has to be considered.

Health and Safety at Work Ac t 1974 The main principle of the Health and Safety at Work Act 1974 is that those who create risk as a result of a work activity are responsible for the protection of workers and members of the public from any consequences.

The Act places speci fi c duties on employers, the self-employed, employees, designers, manufacturers, importers and suppliers.

178 11 Legislation and Policy

Legislation associated with the Act places additional duties on owners, licensees, managers and people in charge of premises.

The main points of the Act place general duties on people. Examples are:

Employers must maintain a safe workplace – Anyone who undertakes a work activity must protect the public – Goods must be designed so as to be safe and without risks to health – Employees are required to co-operate with their employer in taking care –

The Control of Substances Hazardous to Health Regulations 2002 (COSHH) This requires employers to control exposure to hazardous substances to prevent ill health. They have to protect both employees and others who may be exposed.

Hazardous substances include:

Substances used directly in work activities (e.g. adhesives, paints, cleaning agents) – Substances generated during work activities (e.g. fumes from soldering and welding) – Naturally occurring substances (e.g. grain dust) – Biological agents such as bacteria and other micro-organisms –

Disability Discrimination Act 1995 The DDA de fi nes a disabled person as: ‘a person who has, or has had in the past, a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.’

There are numerous sections under this Act. Perhaps most relevant to the man-agement of protected sites is the section dealing with, ‘Discrimination in relation to goods, facilities and services’. Here, Section 19 of the Act reads:

It is unlawful for a provider of services to discriminate against a disabled person-

in refusing to provide, or deliberately not providing, to the disabled person any service –which he provides, or is prepared to provide, to members of the public; in failing to comply with any duty imposed on him by section 21 in circumstances in which –the effect of that failure is to make it impossible or unreasonably dif fi cult for the disabled person to make use of any such service; in the standard of service which he provides to the disabled person or the manner in which –he provides it to him; or in the terms on which he provides a service to the disabled person. –

The Provision and Use of Work Equipment Regulations 1998 (PUWER) The Regulations require risks to people’s health and safety from equipment that they use at work to be prevented or controlled. In addition to the requirements of PUWER, lifting equipment is also subject to the requirements of the Lifting Operations and Lifting Equipment Regulations 1998.

17911.2 Policies

In general terms, the Regulations require that equipment provided for use at work is:

suitable for the intended use; – safe for use, maintained in a safe condition and, in certain circumstances, –inspected to ensure this remains the case; used only by people who have received adequate information, instruction and –training; and accompanied by suitable safety measures, e.g. protective devices, markings, –warnings ( HSE 2004).

Occupiers’ Liability Acts of 1957 and 1984 The Occupiers’ Liability Act 1957 sets out the duty of care to visitors – i.e. people invited or permitted to use land, whether expressly or by implication. There is an obligation to take reasonable care that visitors will be safe doing whatever it is that they have been invited or permitted to do on a site.

The Occupiers’ Liability Act 1984 sets out the duty of care to people that have not been invited or permitted to be on a site, i.e. trespassers. In most circum-stances, there is a duty of care where a site manager is aware of, or believes that there is, a danger and knows that people may be in, or can come into, the vicinity of the danger. There is an expectation that the manager will provide some protection.

Where there is a risk, as outlined above, the manager will have to take reasonable care that people do not suffer injury on the site. It may be possible to discharge this duty of care by warning people about a danger, but this may not always be suf fi cient. For example, some extra precautions may be needed if there is reason to believe that unsupervised children are likely to use the site.

The duty of care does not apply to risks that adults willingly accept on behalf of themselves or those immediately in their care (NE 2005).

11.2 Policies

Policies, or more speci fi cally organisational policies, are a high-level statement of the purposes of an organisation (why it exists). These policies will lead to an expres-sion of their intentions, or a course of actions that they have adopted or proposed. The policies may have been adopted voluntarily, imposed by legislation, or they may be a combination of both. At best, they provide an operational guide for an organisation, although sometimes, usually in less enlightened organisations, they are imposed as a set of incontrovertible rules.

Most organisations will have general policy statements which cover their entire operation. In addition to managing sites they can be involved in a very much wider range of activities. This can be anything from funding to enforcement, from lobbying to providing advice. It is rarely necessary for a plan to include details of all the

180 11 Legislation and Policy

policy statements of an organisation, but a reference to their existence may be appropriate. The policies, and in some cases the remit, of an organisation will determine how it manages its sites and for what purpose. Ideally, organisations should prepare policies which are speci fi c to site management: they should be unequivocal and concise. Broad-based, general policies will be open to interpretation and are often dif fi cult to apply.

The policy section should begin with the inclusion of all relevant organisational policies. This should be followed, if necessary, by an assessment of the extent to which organisational policies can be met on individual sites. Local conditions can signi fi cantly in fl uence the ability to meet policies. For example, although an organi-sation may have a policy to encourage stakeholders, particularly local communities, to take an active role in the management of sites, in some circumstances (the site may be very remote) this will not be possible. As another example, it can be very dif fi cult to meet access policies on sites which contain dangerous features, fragile wildlife, or where the site is inaccessible.

The following is an example of a policy developed by a government agency in the UK. A policy statement for the management of a suite of National Nature Reserves – Countryside Council for Wales (This is an unpublished document for internal use.)

The purpose of NNRs as guided in legislation is as follows:

They are statutory sites where the primary land use is management for nature or • earth science conservation. This sets them apart from other SSSIs, Natura 2000, Ramsar and Biosphere sites, where, for example, the primary land use could be agriculture. They are sites where CCW’s duty is to maintain or restore the nature conserva-• tion and geological features to Favourable Conservation Status. They provide special opportunities for research relating to fl ora, fauna and earth • science. They have to be of national importance for wildlife or earth science. •

Having acknowledged that our prime responsibility is to safeguard the nationally important conservation features, the Welsh Assembly Government expects CCW to consider its wider remit for landscape, recreation/access and public understanding. In this regard, the suite of Welsh NNRs will:

be managed to the highest possible standard. • be one of many tools at CCW’s disposal for habitat, species and earth science • protection. include adequate representation of all key Welsh biodiversity habitats. • be managed within a context of sustainable development i.e. optimising opportu-• nities for NNRs to contribute social bene fi ts such as access, enjoyment and edu-cation, and consequently making a contribution to local economies.

Furthermore, providing that all activities or uses are sustainable and compatible with the conservation management of the site features the NNRs will:

provide CCW with direct practical experience of a wide range of land manage-• ment practices for wildlife.

181Reference

provide opportunities for study and research. • be exemplars of conservation management with a geographical distribution that • will provide opportunities for demonstration, training and education at all levels for most people in Wales. provide opportunities for the development and trial of new and innovative man-• agement techniques. be sites with a geographical distribution (to ensure that they are available to • people from most areas of Wales) where public access, appreciation and enjoy-ment, including provisions for people of all abilities, will be encouraged. become sites where stakeholders, in particular local communities, will be encour-• aged to take an active role in management, and adopt a sense of value and shared ownership. be sites which contribute to local economies through visitor spend on local • services.

CCW will encourage the sustainable public use of National Nature Reserves in Wales in so far as such use:

Is consistent with CCW’s duty to maintain or restore the nature conservation and • geological features to Favourable Conservation Status. Does not expose visitors or staff, including contractors, to any signi fi cant hazards •

All legitimate and lawful activities will be permitted in so far as these activities:

are consistent with CCW’s duty to maintain or restore the nature conservation • and geological features to Favourable Conservation Status. do not expose visitors or staff, including contractors, to any signi fi cant hazards. • do not diminish the enjoyment of other visitors to the site. •

Recommended Further Reading

Cook, K. (2004). Wildlife Law: Conservation and Biodiversity . Cameron May, London, UK. European Communities (2000). Managing NATURA 2000 Sites, The Provisions of Article 6 of the

‘Habitats’ Directive 92/43/CEE. European Communities, Luxembourg. Reid, C. T. (2002). Nature Conservation Law . W. Green & Son Ltd, Edinburgh, UK. Van Heijnsbergen, P. (1996). International Legal Protection of Wild Fauna and Flora . IOS Press,

Fairfax, VA, USA.

Reference

Cole-King, A. (2007). Personal communication.