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SNH and the Isle of Arran
A Case Study presented at the PEOPLE TOO conference,
Perth, 29th October 2004
"Who governs rural Scotland?"
Liz Robertson
Sheep Farmer, Isle of Arran
Filed 19 Nov 04
©www.land-care.org.uk
I am part of a group of 36 farmers, landowners
and tenants opposed to the Arran Moors Site of Special Scientific
Interest (SSSI) and Special Protection Area (SPA). We feel Scottish
Natural Heritage (SNH) has supreme power and probably a hidden agenda.
We think our story is evidence of this.
The SSSI is 8,426 hectares (20,376 acres) which
is mostly sheep grazing. SNH would have us believe that the purpose
of its designation as an SSSI is primarily to protect our hen harrier
population and its hunting and nesting ground.
Figure 1:
Liz Robertson, sheep farmer on Arran
Member of the Arran Moors Group of 36 farmers, landowners and tenants
(for photo enlargement
Click Here)
Photo©Kimpton Graphics
We have 17 to 21 hen harrier nests depending on
the yearly food supply and weather. We have existed in harmony with
the hen harrier since World War II without problems, but now SNH
sees an opportunity to create a mountain of paperwork in administrating
the protection of these birds. Statistics state that 8% of the land
of the England & Wales is under some sort of designation. Scotland
has 12% of its land under designation. The areas of Scotland under
SSSI designation are shown in Figure 2 as of March 2002.
Figure 2:
Sites of Special Scientific Interest (SSSI)in Scotland
from SNH Facts & Figures
as notified at 31 March 2002
To enlarge CLICK HERE
Over 60% of the Island of Arran is under a designation order
Arran Moors SSSI (red area shown upper
right in Figure 3) is a large area. But when we add the previous
SSSIs on the coast, Ard Bheinn and Glendhu and Benlister and the
huge area of Arran Northern Mountains SSSI (see upper left map
in Figure 3) designated for other conservation interests (be
they geology, plants or birds), we find over 60% of Arran is designated.
I drew these maps of SSSI/SPA from originals provided
by SNH. In earlier life I used to be a geographer.
Figure 3:
Top left: Existing
SSSI in Blue
Top right: Arran Moores SSSI/SPA in Red
Bottom left: Arran SSSI/SPA (red) plus existing SSSI (blue)
Bottom right: Forestry commission plus private forestry administered
by Forest Enterprise(green),
and National Trust for Scotland land (NTS)
It is worth noting that the fragmented area of
SSSI to the north is somehow joined up when the SPA is mapped.
Nearly 80% of Arran is under outside control
Add to this the huge area of Forestry Commission
land and private forestry (which is run by the state-run Forestry
Commission) plus the National Trust for Scotland (NTS) area, we
find nearly 80% of Arran under outside control. This is worrying
because any island is unique and has to have some degree of autonomy
to support its people and its economy.
Figure 4:
80% of the land of Arran is under some type of outside control
as indicated by the different colourings as described in figure
3.
NTS = National Trust for Scotland
To Enlarge CLICK HERE
The influence of SNH is even wider. When the National
Trust for Scotland (NTS) appointed a new head ranger a member of
SNH staff sat in on the interview committee.
Arran is a member of Argyll and the Islands
Enterprise (AIE) and has now formed a development company.
A member of SNH staff attends the meetings. Planning matters include
consultation with SNH. I don't know much about their relationship
with the forestry but they share an office. It's all extremely worrying
.
Potentially Damaging Operations List (PDOs)
The original designation papers arrived without
warning in March 2000 along with a Potentially Damaging Operations
(PDO) list (CLICK HERE to VIEW).
PDOs require us to seek written permission to
do such things as spreading fertiliser, muirburn, stock feeding
etc. There are 24 PDOs that applied to us. On the list they are
numbered under references 1 - 28 for some reason.
The notice (i.e. the full force of conservation
law) had immediate effect. We had 9 months to make any objections
before it would be confirmed. So what to do?
Our efforts to achieve justice
NFU Scotland hosted a meeting of those concerned.
SNH heard of this and asked to come to allay our fears. They failed
and the Arran Moors Group was born.
We first put forward our own objection contradicting
what SNH provided as scientific evidence. SNH provided no detail
of what I would call "science".
We also wrote to MPs and MSPs, but all to no avail.
We employed Ian Mitchell who produced an in depth
objection to their "science" and their handling of the
affair (1). The matter was referred to the
Advisory Committee on SSSIs (ACSSSI) who gave us a very fair hearing
at Blackwaterfoot. However, SNH was not bound to accept the ACSSSI's
opinion.
The matter went before the West Area Board of
SNH. Because some members of that Board were unhappy that information
on nest sites had been withheld from us, it was referred to the
SNH Main Board. Following a letter from a lawyer acting on our behalf
the designation was withdrawn in November 2000. Celebrations all
round!
But then came March 2001 - a month indelibly
marked on the minds of the farming community in Britain. Foot and
mouth disease was raging. This is when redesignation arrived.
Again, private complaints were made to SNH, to
MPs, to MSPs, to MEPs and to Ross Finnie (the then current Scottish
Minister for Environment and Rural Affairs).
Again, a professional complaint from Ian Mitchell
this time focussing on the designation being unlawful, which we
still think it is.
There was another good hearing from 10 learned
men at the AC SSSI, plus visits to the site by them. We were informed
by the then head of the Secretariat of SNH of their complaints procedure.
Stages 1 and 2 involve complaints to the case officer who will reply
in 10 working days, we were told. We found 21 days more usual. On
one occasion 57 weeks passed before we received a reply. It started
"with thanks for your letter of 12 October" and
"apologies for the delay in replying". The writer
omitted to say that the date of our letter that he was replying
to was 12 October of the previous year.
Stage 3 was a complaint to the chief executive
against SNH, their staff and the West Area SNH Board. This got nasty,
names were named and no punches pulled.
The reply was unsatisfactory. It said if we remained
dissatisfied we may ask an MSP - not necessarily your own - to register
our complaint with the Parliamentary Commissioner for Administration
(i.e. the Scottish Commissioner) to investigate SNH procedures.
This we did. I wrote to 4 MSPs and received similar
polite replies saying
"it would be a breach of protocol to interfere in a matter
concerning another MSPs constituency."
Our MSP was at that time under minister for environment
and not at all helpful.
In the meantime we presented a petition to the
Public Petitions Committee of the Scottish Parliament in February
2002 (2). Again we got a good hearing (under
Petition No. PE462) in June 2002. Sufficient concern was expressed
by some MSPs that it was considered again in September 2002 and
evidence asked from SNH and AC SSSI.
We had also approached our local community council
who wrote a letter of support and raised their own concerns. North
Ayrshire Council (NAC) even made sympathetic noises, and believe
me getting sympathetic noises out of NAC takes some doing.
We then approached the Scottish Public Services
Ombudsman who agreed to deal with any matter of maladministration
or incompetence. We put forward a huge pile of stuff. Due to its
weight the postage cost £15. The evidence ranged from incorrectly
addressed paperwork, wrong people receiving designations on land,
failure to reply to letters, and even the law as applied to SNH.
Were the actions of SNH/Scottish Executive legal?
We asked 4 different government bodies about the
law regarding Special Protection Areas (SPA) and got 4 different
answers. This is suspicious. Did the government ever enact laws
transposing the Birds Directive of 1979 into UK law? The Directive
requires member states to pass laws implementing directives within
a maximum of 10 years. The Scottish Executive told us that the directive
leaves it to National Authorities to decide the best means of implementation,
and that in Scotland ministers achieve this through administrative
processes. Germany used administrative processes and in this way
was taken to task by the European Commission in 1991 and made to
change the method of implementation.
The Conservation (Natural Habitats, etc) Regulations
1994 - which is a Statutory Instrument - transpose the Habitats
Directive of 1992 into UK law. This covers SSSIs, but SPAs come
under the Birds Directive. We cannot find where these were legalised.
We suspect that by using SSSIs (which do seem to have a UK legal
basis) to underpin the SPAs the Scottish Executive is trying to
transform SSSIs into SPAs without having created a legal base for
SPAs.
In reply to all this the Ombudsman wrote one and
a half pages saying they could find no evidence of maladministration
or incompetence on the part of SNH. On questioning this we were
told in a very tactful way that the matter is closed.
The new Nature Conservation (Scotland) Act gives
a right of appeal to the Land Court, but only within a designation
and not against the designation itself.
There is a European complaints procedure but we
doubt if it will be any better. Maybe we need a bill of rights for
our protection.
Conclusion
Several basic questions arise from our plight.
1. Is the designation legal?
2. It is fair to take such a huge amount of control
of such a small island?
3. Have SNH been given such power so as to enable
the Scottish Executive to nationalise land by devious means. If
so, will the controlling party stand up and admit this, and include
it in their manifesto at the next election?
©www.land-care.org.uk
References
1. Mitchell, Ian (2001). 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 2 Issue 2. pp53 -168.
2. Petition submitted to the Scottish
Parliament February 2002. Heard in June and in September 2002 (PE
462).
http://www.scottish.parliament.uk/business/committees/historic/petitions/2002.htm
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