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8 May 2003
PEOPLE TOO response to
Amendments to the Conservation Regulations
(Filed 8 May 2003)
www.land-care.org.uk
LAND-CARE INTRODUCTION
In March 2003 the Scottish Executive issued a
document (paper 2003/10) entitled
TECHNICAL AMENDMENTS TO THE CONSERVATION
(NATURAL HABITATS &c.) REGULATIONS 1994
A Consultation Paper on Amendments to the Habitats Regulations
Land-Care feels that few people may have been
aware of this important document as it does not appear to have been
widely circulated. We are grateful to PEOPLE TOO for bringing it
to our attention.
Although the consultation period was supposed
to have closed on 6th May, readers may wish nevertheless to make
their views known to the Scottish Executive by e-mail to
HabitatsRegulationConsultation@scotland.gsi.gov.uk
The document itself can be accessed at
www.scotland.gov.uk/consultations/environment/tacnh-00.asp
The document is also available in PDF format (68k)
at
www.scotland.gov.uk/consultations/environment/tacnh.pdf
PEOPLE TOO have kindly sent Land-Care a copy
of their response to the consultation paper. It is reproduced below.
Others who may wish to respond to the consultation paper may find
it useful, but should preferably express their views in their own
words.
However, as most of us do not have the privilege
of being paid civil servants within SEERAD and do not have the time
to rewrite responses, it is suggested that readers may wish to e-mail
their responses (see above) stating whether or not they agree with
PEOPLE T00 in relation to all their points; or state which points
they agree or disagree with, and add any additional points they
wish.
Land-Care fully endorses the views expressed
by PEOPLE TOO.
PEOPLE TOO Response to
A CONSULTATION PAPER ON AMENDMENTS
TO THE HABITATS REGULATIONS (1)
Introductory Remarks
1. These Amendments, together with the related
Nature Conservation (Scotland) Bill (2), constitute
an unacceptable erosion by the State of the freedom to own and manage
land.
There is an established right of government to
compulsorily acquire resources for projects like hospital construction
or harbour development. What is proposed here, however, is power
for the State to compulsory acquire over 2m acres of land due to
disputed conservation objectives or methods.
Given the amount of land and water resources potentially
affected by these proposals, we can only view the Bill and Technical
Amendments together as little less than a form of land nationalisation.
2. We question whether the major changes implied
in this document should be implemented as “technical amendments”.
The Habitats Directive affects about 13% of our land plus “adjacent”
land and all the people within these areas. It is essential that
any changes to such a Directive are examined by the Scottish Parliament.
3. The time allowed for consultation (12th March
– 6th May) was unacceptably brief and coincided with the election
campaign for the Scottish Parliament.
4. The paper was not sent to occupiers of European
sites, despite the fact that these designations are burdens on individual
title deeds. SEERAD communicates regularly with thousands of livestock
producers in Scotland on regulation changes and there is no reason
why the same cannot be done on important conservation issues.
5. The proposals are a betrayal of the assurances
given to occupiers of non-SSSI SACs/SPAs during site designation,
i.e. that the sites would not be underpinned by SSSI procedures
and that management agreements would be “voluntary”.
COMMENTS ON THE TEXT OF THE CONSULTATION PAPER
(Land-Care note: Numbers refer to paragraphs in the consultation
paper)
Site Management and Protection
9. The Habitats Directive must take account of
“economic, social, cultural and regional requirements”
and its chief aim of maintaining biodiversity “may require
the maintenance, or indeed the encouragement, of human activity”.
Since the Conservation Regulations were passed in October 1994,
there has been a growing recognition that all these requirements
are not being implemented equally. In using SNH as its sole advisor
for management of European sites, the Scottish Executive is failing
in its duty to develop procedures which satisfy the full aims of
the Habitats Directive.
10. Regulation 10 excludes those sites whose
selection and designation are incomplete. This amendment implies
that the Scottish Executive might nevertheless submit such sites
to the EU as candidate SACs. If so, this is an abuse of the consultation
procedure and infringement of individual rights of those affected.
11. As point 5 above. SNH’s Natural Heritage
Future document of 2002 for Coll, Tiree
and the Western Isles, for example, states at page 17:
"..recent voluntary management schemes for corncrakes and
peatlands have been well received in place of the statutory Sites
of Special Scientific Interest (SSSI), demonstrating that it is
the method rather than the principle that has been unpopular."
This has been used by SNH as evidence of general
support for positive management agreements. But these sites and
agreements would not have been “well received” had the
occupiers known that these Amendments were to be introduced a mere
3/4 years later. We also note that SNH originally offered these
voluntary management agreements on an annual basis, whereas the
trend now is to offer at least 5 year agreements which are not so
popular.
The procedural detail contained in the Nature
Conservation Bill at Chapter 3, 25(5)(g) is merely a variation on
the Potentially Damaging Operations list.
12. This goes far beyond Regulation 16 in its
threat of compulsion. It is worth quoting SNH’s own words here:
"These proposed changes to the SSSI system represent a fundamental
change to the relationship between SNH and owners or occupiers.
Under the present arrangement the owner or occupier is in a position
to propose the management regime, and it is for SNH to object,
as it sees necessary, and then to compensate for the constraints
imposed. The proposed changes will give SNH the ability to propose
and discuss a suitable management regime.....However, it is likely
to result in a more confrontational approach similar to the town
& country planning system".
(SNH’s response to The Nature of Scotland,
29/5/02)
SNH has portrayed its management agreements in
a positive light and European designations do give owner/occupiers
easier access into agri-environment schemes. But the actual uptake
of such schemes is very small overall and SNH is correct to anticipate
widespread resistance to mandatory managements schemes. If, as the
conservation lobby claims, there has been widespread damage done
to Scotland’s SSSIs (and therefore European sites), there will
be calls for widespread “corrective” management.
As at point 9, we disagree with the Scottish Executive’s
exclusive reliance on SNH’s advice. Not only does this restrict
management to a narrow brand of conservation objectives, it ignores
the mounting claims that SNH is not a competent body to give such
advice. We urge a thorough review of SNH’s in-hand land management
and the socio-economic and cultural health of associated communities.
A right of appeal to the Land Court has limited
value. In its present form, the Court has farming and crofting expertise.
The Scottish Executive now proposes to add judgements on conservation
management agreements to its remit. Given that management on SACs
and SPAs may be based on sporting land uses, for instance, the make-up
of the Court would have to be expanded, as the relevant legislation
allows. Would this mean yet another quango of government appointees?
Appeals to this Court would be dependent on the
applicant’s ability to pay and in the ongoing situation of
economic uncertainty in land management, it seems unlikely that
many could afford to protect their interests.
Another important point is the use of science
and conservation theory as a basis for argument. Virtually all the
advantage here would rest with the Scottish Executive through SNH
and the single-interest conservation groups.
LAND MANAGEMENT ORDERS (LMOs): at present, SNH
offers voluntary agreements of between 1 and 999 years. European
sites are deemed to be designated “in perpetuity”. How
long can we expect LMOs to last? Unless the rural economy stabilises
and offers some sort of longterm security, people will not willingly
sign up to schemes which tie their hands for a set number of years.
Agri-environment schemes are already distorting both the land market
and a landuser’s ability to flexibly manage his or her land
as Nature dictates (particularly true in hill areas).
13. If SNCOs are to be imposed on land adjacent
to European sites, it is not clear how the rights of occupiers and
interested parties in these areas will be incorporated into the
Regulations. In Regulation 25, compensation for the effect of a
SNCO is limited in definition to “land comprised in an agricultural
unit”. How would restrictions imposed on Scottish territorial
waters be compensated?
14. How is surveillance to be undertaken? By whom?
With what rights reserved to owners, occupiers and users of sites?
There is already widespread dissatisfaction with existing SNH-licensed
voluntary monitoring and the ability of single-interest organisations
to draw and publicise their own conclusions, usually to the detriment
of the land manager. These practices need to be properly managed.
15. In deciding on an appropriate procedure, the
following growing demands need to be considered:
- the need for minimum standards of practical
ability, scientific competence and accountability amongst advisors;
- the importance of the views of local people
as opposed to nationally-based groups;
- a review of the continued use of the Precautionary
Principle;
- an alternative to the discredited Public Consultation
exercise;
- due respect for the owners and occupiers of
sites and those chiefly affected by the legislation;
- recognition of the costs and time factor involved.
16. It is not clear what scale of water abstraction
controls is envisaged.
Species Protection
20. The word “deterioration” is used
in Article 12, 1(d) of the Habitats Directive (3)
but elsewhere the Article uses “destruction”, “deliberate
capture” and “deliberate disturbance”. “Deterioration”,
in the present political conservation climate, could be made to
mean almost anything. The Habitats Directive also refers to “significant”
damage: this amendment appears to go beyond that limitation.
22. We infer from this that the Scottish Executive
views the Habitats Directive as overriding other relevant EU directives
relating to Scottish waters and their use. How is this decided?
23. We propose that the surveying, monitoring
and reporting of such incidents should likewise be clarified in
the Regulations and that these duties should also be given to SNH
to the exclusion of other voluntary and single-interest groups.
The outcomes of all forensic examinations should be publicised.
26. Second bullet point: this will have the effect
of preventing any development on any site (not necessarily designated)
where it can be demonstrated that any European Protected Species
(EPS) exists.
27. This is gold-plating the Directive.
28. In theory, site owners and occupiers could
be expected to know the locations of European Protected Species
(EPS) on their sites via the consultation and designation process.
This amendment therefore removes any defence they might have against
accusations of deliberate destruction. It would, on the other hand,
safeguard the casual tourist who allows a dog to romp through a
nesting site from prosecution.
29. This is another extremely serious point, i.e.
the removal of protecting livestock, crops, timber, fisheries, etc,
as a legitimate reason for killing or disturbing protected species.
There is an increasing, not decreasing, sense of frustration with
SNH’s licensing procedures as regards defence of stock, fisheries
and other forms of property. Such an amendment cannot seriously
be considered without some discussion of alternative procedures
and compensation.
Abbreviations
| EPS |
European Protected Species |
| LMOs |
Land Management Sites |
| SACs |
Special Areas of Conservation |
| SNCOs |
Special Nature Conservation Orders |
| SNH |
Scottish Natural Heritage |
| SSSI |
Sites of Special Scientific Interest |
References
1. Scottish Executive (2003).
Technical Amendments to the Conservation (Natural Habitats &c.)
Regulations 1994. A Consultation Paper on Amendments to the Habitats
Regulations.
www.scotland.gov.uk/consultations/environment/tacnh-00.asp
(HTML)
www.scotland.gov.uk/consultations/environment/tacnh.pdf
(PDF)
2. Statutory Instrument 1994 No.
2716. The Conservation (Natural Habitats, &c.) Regulations 1994.
www.hmso.gov.uk/si/si1994/Uksi_19942716_en_1.htm
3. Coucil Directive 92/43/EEC
of 21 May 1992 on the conservation of natural habitats and of wild
fauna and flora.
www.ecnc.nl/doc/europe/legislat/habidire.html
www.land-care.org.uk
Further Reading Recommended by Land-Care
Mitchell, Ian (2003). Drastic Change in Land Management.The Herald,
Letters, 25 April 2003.
(Filed 25 April 2003, www.land-care.org.uk,
click
here to view).
Irvine, James (2003). Conservation and the misuse of science.
(Filed 15 April 2003, www.land-care.org.uk,
click
here to view).
Linklater, Magnus (2003). When even Mother Nature finds it hard
to cope with man's interference.
(Filed 14 April 2003, www.land-care.org.uk,
click
here to view).
Scottish Gamekeepers Association Petition to Scottish Parliament
(2003).
(Filed 25 March 2003, www.land-care.org.uk,
click
here to view).
SNH told to think again: this time about hedgehogs (2003).
(Filed 25 April 2003, www.land-care.org.uk,
click
here to view).
Mictchell, Ian (2002). Scientific Objection to the Designation of
the Sound of Barra as a possible Special Area of Conservation. LandCare
Scotland, Vol 2, pp. 3-49.
Mictchell, Ian (2002). Scientific Objection to the designation of
the Arran Moors as a proposed Site of Special Scientific Interest
and proposed Special Protection Area. LandCare Scotland, Vol 3,
pp. 3-118.
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