1 Sites of special scientific interest (‘SSSIs’)

(a)Notification of SIs

13.11 By virtue of s 28 of the Wildlife and Countryside Act 1981³⁰ the relevant Conservation Body has wide powers to designate areas as ‘sites of special scientific interest’ (SIs) and to notify them to the relevant local Planning Authority.

(i)Notification and Confirmation

13.12 Section 28 imposes on the Conservation Bodies (for example Natural England) a ‘duty’ to notify affected landowners and the local authority, if they consider the area to be of special interest by reason of the criteria laid down in the 1981 Act (above).

13.13 The precise ambit of the UK Conservation Bodies’ duty to notify was considered in R v Nature Conservancy Council ex parte London Brick Co Ltd.³⁵ It was held that the designation process involves two stages.

(i)Firstly, s 28(1) imposes on the Conservation Body a duty to notify if the site concerned fulfils the scientific criteria set out in the 1981 Act. The initial notification is only provisional, however, as the 1981 Act gives parties affected by it three months in which to lodge objections to the notification, or to make representations. It was held in R v Nature Conservancy Council ex part Bolton Metropolitan District Council³⁶ that the Conservation Body must make the basis for the notification sufficiently clear to enable an affected landowner to make a full objection, should he wish to do so. If the notification is insufficiently clear as to the reasons for which the site is being notified as an SI, it may be quashed on judicial review.³⁷

(ii)The second stage in the process involves the confirmation or withdrawal of the notification. Following the notification of an SI the Conservation Body has nine months, beginning on the date it was served on the Secretary of State, in which to give notice to those persons on whom the notification was served either withdrawing or confirming the notification.³⁸ A notification will cease to have effect upon notice of withdrawal being given, or on expiry of the nine-month period if no notice of withdrawal or confirmation is given within that time.³⁹ The Conservation Body has power, when confirming a notification, to do so with or with modifications.

In R v Nature Conservancy Council ex parte London Brick Co Ltd,⁴² the court offered the view obiter dicta that at the second (confirmation) stage the conservation body has a wider discretion whether to confirm the SI notification with or without modifications. This was held to be wrong as a matter of statutory construction in Fisher v English Nature,⁴³ even though the language of s 28(5) is permissive when describing the Conservation Body’s confirmatory powers (‘may confirm’). If the scientific criteria in s 28 of the 1981 Act continue to be met when confirmation of the SI notification is considered, then the body’s discretion can only be exercised in one way, by confirming the notification, and they cannot lawfully withdraw it or allow it to lapse. If Natural England could withdraw the notification in these circumstances the paradoxical position would arise where they would come under an immediate duty to notify the site again – a circular exercise of their statutory powers that the legislature could not have intended.

(ii)Role of conservation body

13.14 The role of the conservation body in the notification process is one of exercising expert judgment, not discretion. The legislation requires them to apply expert judgement at each of the two stages in order to determine whether the statutory criteria are satisfied, to specify the flora fauna physiographical or geological features by reason of which the site is of special interest, and to specify the operations likely to damage that special interest. If, having considered the objections and representations made by affected parties (and any other evidence that has emerged in the interim), their judgement is that the site remains of special interest within the meaning of s 28 then they have no residual discretion to refuse to confirm the notification.

13.15 The exercise of scientific judgement by the Council of (for example) Natural England is informed and guided by scientific research, and especially by the Guidelines for the Selection of Biological SIs formulated by the Joint Nature Conservation Committee.⁴⁴ This raises two issues: (i) what is the scope for their scientific judgment to change from time to time in response to developments in scientific knowledge and research? and (ii) can the Conservation Body, by their own previous actions, fetter the manner in which they exercise their statutory power to notify and confirm SIs?

13.16 In Aggregate Industries v English Nature⁴⁵ English Nature had failed to confirm an earlier notification of part of the site (Bramshill plantation in Hampshire) in 1993 because the habitat it created for heath land birds such as nightjars, crossbills and hobbies was temporary. The conifers present on the plantation would grow within five–ten years and the foliage cover would prevent the subjacent regeneration of ground cover on which the bird populations depended. Crucially however, their approach to notifying temporary habitats changed in 2000, after their consideration of a research report that supported the designation of temporary habitats as SIs so that progress could be made towards moving candidate Special Protection Areas (‘SPAs’) under the 1979 EC Wild Birds Directive to full SPA status. When the remainder of the site was confirmed as an SI in 2001 the only new feature was the fact that the rotationally felled conifers provided a breeding habitat for three bird species protected under Annex 1 of the Wild Birds Directive – nightjar, woodlark and the Dartford Warbler. Nevertheless, it was held that the fact that English Nature had refused to confirm the whole of the plantation as a protected site in 1993 did not create a legitimate expectation in the claimants, and did not prevent the agency from changing their policy towards the notification of temporary habitats.

13.17 A similar issue arose in Fisher v English Nature⁴⁶ where large areas of arable land were notified because of their importance as a breeding site for the migratory stone curlew. The site was composed of extensive open fields with large areas of bare land resulting from spring-sown crops that mimic the curlews preferred habitat of stony open heath land. The birds do not nest in exactly the same place each year, however, and several attempts at establishing nesting sites may take place in different locations in any one year. English Nature had previously adopted the practice of not giving SI status to habitats for migratory birds that nest on the land in question only sporadically. This was changed in February 2000, in a policy shift that the courts subsequently held to be beyond challenge. English Nature’s overriding duty to apply their scientific expertise meant that they could not accept any constraints on the exercise of their judgment. The claimants also argued, perhaps more credibly, that the conservation body were not entitled to depart from the published Selection Guidelines established by the JNCC, which caution against the designation of cropland in most cases. This argument was also rejected. The Guidelines for the Selection of Biological SIs are meant to fulfil an informative and guidance role, and the conservation bodies are duty bound to depart from them if they go beyond that and place any constraint upon the exercise of their judgment. The net result, therefore, is that although the conservation agencies have no discretion whether to confirm a notification once they have formed the opinion that a site is of special interest, they have a very considerable latitude in the exercise of their expert judgment in the process leading to the formation (or otherwise) of that opinion.

(iii)Factors that can be taken into account

13.18 Although these cases confirm that the conservation bodies have wide power to apply scientific expertise to the assessment of potential SIs, other factors will clearly also have relevance. The role of governmental policy on aspects of conservation and environmental protection is of particular relevance, and one question that arises is the weight to be attached to factors of policy orientation in the decision making process when sites are selected for designation. Of particular relevance here is current governmental policy to the effect that all sites selected for inclusion in the list of SPAs established under the EC Wild Birds Directive must first be notified as SIs under the domestic legislation. For the purposes of judicial control of decision making by the public agencies in this area, the question resolves itself into one of the extent to which these factors can be considered ‘material’ to the decision in hand, or whether they are irrelevant and therefore render any decision in which they are instrumental open to judicial review on grounds of irrationality or Wednesbury unreasonableness.

13.19 In both Aggregate Industries and Fisher the SI notification that was challenged was linked to the designation of a wider geographical area as an SPA under the EC Wild Birds Directive. This triggered several arguments surrounding the relevance of policy considerations connected with the completion of the SPA site network to the designation of individual SIs under the 1981 Act. In Aggregate Industries the fact that the site was to become an SPA under the Birds Directive, following designation as an SI, was held not to be an irrelevant consideration provided the primary reason for the notification was that the agency had formed the opinion that the site met the criteria for notification in s 28. In Fisher the court went somewhat further, holding that it was permissible to take into account the site’s role as part of a larger geographical area of European habitat significance when considering it for notification. In Fisher, ironically, the landowners would have been content to have an SPA designation on the land, but were opposed to the SI notification because of the additional land use restrictions that this would impose on them.

13.20 Perhaps the most important point in the court’s ruling on this aspect of the Fisher litigation was that English Nature were not entitled to refuse to notify the SI because they considered that the fauna to be protected (in this case stone curlews) could be better protected in some other way which interfered less with the landowners prerogative to manage the land as they saw fit eg by securing a voluntary management agreement or by simply classifying the site as an SPA (but not as an SI under the 1981 Act). A related issue arose in Boyd v English Nature.⁴⁷ This case concerned the designation as SI of several meadows that support nationally important examples of rare fen meadow and species rich neutral grassland communities. English Nature were alleged to have taken irrelevant considerations into account when designating the site, in that they excluded from the SI a further area of land which their scientific survey showed also supported the habitats involved (West Swainford farm). The West Swainford site was excluded because it was already being managed within the Countryside Stewardship Scheme and was not therefore prioritised for SI notification. Essentially, the issue here was English Nature’s right to prioritise sites and target its resources at those that were not already being protected in some other way. Judge Rabinder Singh QC agreed with English Nature’s submission that they are entitled to take into account their own set of priorities and that the inclusion of the West Swainford site in the Countryside Stewardship Scheme was not an irrelevant consideration in the setting of those priorities.

(iv)Variation of the Notification

13.21 An SI notification can be varied by the Conservation Body in a number of different situations:

•The matters specified or stated in the notification can be varied⁴⁸ at any time once the SI notification has been confirmed (but not before confirmation). This enables the Conservation Body to change, for example, the list of potentially damaging operations stipulated in the notification or the terms of the site management statements served with the notification. The area of land notified cannot, however, be varied. Notice must be given in the same manner as for the initial SI notification, and the amendments are subject to the same procedure for objections and confirmation (within a period of nine months) as applies on notification.

•Additional land can be added to the notification, but only if it is adjacent to the SI and the Conservation Body consider that when added to the SI ‘the combined area of land would be of special interest by reason of its flora fauna geological or physiographical features’.⁴⁹ The notification is subject to the same procedures for objections and confirmation as the initial SI notification.⁵⁰ An SI can also be enlarged under similar provisions in s 28C of the 1981 Act.

•An SI can be denotified if the Conservation Body is of the opinion that all or part of the site is not of special interest.⁵¹ In this case the Conservation Body must give notice of its intention to denotify to the local planning authority, the Secretary of State, every owner or occupier of any of the land included in the SI, the Environment Agency, and any relevant statutory water undertaker and internal drainage board.⁵² The identification powers were amended by the Natural Environment and Rural Communities Act 2006 to make it clear that the power can be used to denotify land that has been included in an SI in error, as opposed to simply applying to allow the identification of land that was once of special interest (but is no longer so).⁵³ The denotification must be confirmed 9 months after notice to denotify has been given. Similar consultation provisions apply as for notification and variation of the SI notification (above).

(v)Service of Notices

13.22 The site notification must be given to the local planning authority in whose area the land is situated, to ‘every owner or occupier of any of that land’ and to the Secretary of State,⁵⁴ as must its subsequent withdrawal or confirmation. Similarly, notice of the Conservation Body’s decision to denotify land that is within an SI must be given to the same classes of person,⁵⁵ as must the subsequent withdrawal or confirmation of denotification. Service of notification etc. on the owners and occupiers of agricultural land may be problematic if the land appears to be unoccupied, or if the identity of the current occupiers is difficult to determine eg as is sometimes the case with common land. The Natural Environment and Rural Communities Act 2006 introduced provisions⁵⁶ by virtue of which the validity of a notice will not be affected by the failure to serve it on every owner and occupier, provided ‘all reasonable steps’ have been taken to ensure that notice is served on every owner and occupier of land to which the notice relates. The notice is deemed to be served at the time when the Conservation Body took the last of the steps in its attempted service of the notices.⁵⁷ This will be of relevance to the calculation of the time limits for the subsequent confirmation of notification/denotification by the Conservation Body under the 1981 Act. This provision facilitates the notification of sites where the identity or whereabouts of the current occupiers is unknown – but it should be noted that, notwithstanding this, the owner or occupier would not be liable for carrying out unauthorised operations likely to damage the conservation interest of the site until they are served with a copy of the site notification.⁵⁸

13.23 Natural England has power to put up and maintain notices or signs relating to the site on any land included in an SI.⁵⁹ It is an offence for ‘any other person’ (including not only the owner or occupier but also third parties) to intentionally or recklessly and without reasonable excuse take down, damage or obscure any notice placed on the land under this statutory power.⁶⁰ Natural England’s officers have statutory powers of entry for the purpose of putting up and maintaining notices or signs erected pursuant to these provisions.⁶¹ These powers will be useful where the identity of the owner or occupier is uncertain or unknown, and are also relevant in making third parties aware of the present of an SI on the land – knowledge that the land is an SI is, for instance, a necessary ingredient to some of the criminal offences applicable for damaging protected sites.⁶²

(b)Restrictions on Agricultural or Other Operations

13.24 Following notification, the owner or occupier of land within the SI must not carry out (or cause or permit to be carried out) while the notification remains in force, any operation that is specified in the notification as likely to damage the conservation interest of the site (‘OLDSIs’).⁶³ Section 28E of the 1981 Act imposes a statutory consultation procedure which must be adhered to, on pain of criminal liability, if a landowner or occupier wishes to carry out a notified operation in an SI. The statutory consultation rules for OLDSIs are the principal legal mechanism for restricting those agricultural operations that are not subject to planning control. Where planning permission is required for an operation – because it constitutes ‘development’ within the Planning Acts⁶⁴ – protection is delivered through development control. This is considered further below.⁶⁵

(i)‘Operations’

13.25 The legal meaning of ‘operations’ in this context was given a broad interpretation in Sweet v Secretary of State,⁶⁶ thus widening the scope of agricultural activities that can be proscribed by an SI notification. It is not to be construed in the manner adopted under the planning legislation, where the term carries an active connotation limiting it to the carrying out of development or engineering operations on land. Rather it has a wide meaning, and can encompass passive agricultural activities, which have a potentially damaging effect on wildlife and habitats, such as the release of chemicals or seeds, and the grazing of livestock. On the other hand, only those operations ‘likely’ to damage the conservation interest of the site can be notified. To be ‘likely’ to damage the site, and therefore notifiable, there must be a probability that the operations concerned will cause damage to the conservation value of the site – and not merely a possibility that they might do so.⁶⁷

(ii)Statutory Consultation

13.26 The legal regime for regulating land use in SIs is based upon the imposition of a statutory consultation mechanism that applies whenever a landowner wants to carry out a potentially damaging operation (‘OLDSI’) that has been notified in the SI notification. Section 28E provides that the owner or occupier of any land included in an SI shall not while the notification remains in force carry out, cause or permit to be carried out, on that land any operation specified in the site notification unless:

(a)One of them has, after service of the notification, given the Conservation Body notice of their proposal to carry out the operation specifying its nature and the land on which it is proposed to carry it out. The notice of intent does not have to be in writing; and

(b)The operation is either carried out with the Conservation Body’s written consent, or in accordance with the terms of a management agreement, or that the operation is carried out in accordance with a management scheme or a management notice under the 1981 Act (as to which see below).

13.27 Where a landowner makes a request for operational consent to carry out an OLDSI and they consent, the Conservation Body’s written consent to the carrying out of the operations can be given subject to conditions and/or for a limited period, as specified in the consent.⁶⁸

13.28 Prior to amendments introduced by the Countryside and Rights of Way Act 2000, it was only illegal to carry out notified operations during a four-month statutory consultation period, following the giving of notice of the landowner’s intent. Once the statutory four-month period had elapsed, however, notified operations could be carried out lawfully without the Conservation Bodies’ consent, unless a Nature Conservation Order had been applied for and granted by the Secretary of State under s 29 of the 1981 Act. The limited protection that this provision gave against unwarranted damage to wildlife sites was subjected to judicial criticism in the House of Lords:

‘It needs only a moment to see that this regime is toothless, for it demands no more from the owner or occupier of an SI than a little patience. Unless the Conservation Body can convince the Secretary of State that the site is of sufficient national importance to justify an order under section 29 -...a task rarely achieved- the owner will within months be free to disregard the notification and carry out the proscribed operations, no matter what the cost to the flora etc. on the site. In truth the Act does no more in the great majority of cases than give the Conservation Body a breathing space within which to apply moral pressure, with a view to persuading the owner or occupier to make a voluntary agreement’.⁶⁹

13.29 The law was strengthened by the 2000 Act, and the Conservation Body can now refuse operational consent to OLDSIs without time limit. The Act gave landowners a safeguard, however, in the form of a right of appeal to the Secretary of State against a refusal of operational consent or against the conditions imposed by the Conservation Body. The Conservation Body has four months from the giving of notice of intent to carry out an OLDSI in which to give a decision. If they decide not to grant operational consent they must give notice to the landowner/occupier who has requested permission to carry out the operation(s). When granting consent for a limited period or subject to conditions they must give the applicant notice of their reasons for imposing the conditions, or for the limitation of the period of consent, or for refusing withdrawing or modifying the consent as appropriate. If they neither give consent nor refuse it within four months, the applicant can treat the Conservation Body as having refused consent, and any appeal s/he subsequently makes is to be determined on that basis. There are complex rules for the timing of notices of appeal, and for the determination of appeals for the secretary of state.

(c)Duties of Public Bodies and Statutory undertakers

13.30 Much SI land is owned by the Ministry of Defence or other government departments, local government or public agencies. Additionally, much major work carried out on Sis will be done by the public utilities (for example the water or electricity companies). For this reason, special rules apply to operations carried out on SI land by statutory undertakers and other public authorities. These duties (and the offences committed upon their breach⁷⁰) apply to a wide range of public bodies, as well as statutory undertakers. These are referred to as ‘section 28G authorities’ in the 1981 Act (as amended by the 2000 and 2006 Acts) and include any Minister, the Welsh Assembly Government, a local authority, and a person holding office under the crown, any statutory undertaker or ‘any other public body of any description’.⁷¹ All section 28G authorities also have a basic duty to take reasonable steps, consistent with the proper exercise of their functions, to further the conservation and enhancement of the flora, fauna, or geological/physiographical features by reason of which the site has been notified an SI.⁷²

13.31 In R (Friends of the Earth) v Welsh Ministers⁷³ it was held that the s 28G duty does not require the public body (in this case the minister) to seek to protect SIs by giving the desirability of their protection a special weighting against other relevant factors in a decision. The question is not whether the Minister (or other public body) gave the desirability of conserving special features particularly enhanced weight, but rather whether s/he took reasonable steps to conserve and enhance those features – and ‘conserve and enhance: should be interpreted to include ‘not damage’ the SI features.⁷⁴ This duty will apply to public bodies and statutory undertakers when conducting operations in SIs, and also to decisions taken by a public authority in relation to an SI eg on applications for planning permission, the approval of plans and projects by public bodies that impact upon SIs,⁷⁵ and applications for operational consent for operations in an SI.

13.32 Before carrying out any operation likely to damage an SI or any of its features, the statutory undertaker must give notice to the Conservation Body. The latter can refuse consent, or give it with or without conditions. The position is different to that where a private landowner asks for operational consent, however, in that a refusal of consent (or the imposition of conditions) does not prevent the undertaker carrying out the operation in question. Instead, the authority or statutory undertaker is required⁷⁶ to give notice that it intends to carry out the operations notwithstanding and (when doing so) to indicate how (if at all) it has taken into account any written advice received from the Conservation Body in response to its initial notice of intent. If the operations subsequent proceed, then the authority must carry them out in such a way as to give rise to as little damage as is reasonable practicable in all the circumstances to the flora, fauna or geological/physiographical features by reason of which the site is of special interest, taking account in particular of any advice received from the Conservation Body. The authority must restore the site to its former condition so far as is reasonably practicable if any damage does occur. These provisions are complemented by s 28I which imposes consultation duties on section G authorities before they authorise the carrying out of operations on SI land where the permission of a statutory undertaker is needed before the operations may be carried out. These consultation duties apply even if the operations in question would not take place on land included in a site of special scientific interest; the fact that the operations, if geographically outside the boundaries of the SI, are likely to damage any of the conservation features of the site itself is sufficient to bring the consultation provisions into play.

(d)Scope of Liability.

13.33 The penalties for damaging SIs in breach of the terms of the 1981 Act were considerably strengthened by the Countryside and Rights of Way Act 2000. Section 28P of the 1981 Act (as amended) sets out three different categories of criminal offence which may be committed in relation to SI land:

(i)Liability of owner and/or occupier.

13.34 A person who, without reasonable excuse, carries out or causes or permits the carrying out of an operation likely to damage the conservation interest contrary to s 28E (above) is guilty of an offence and liable on summary conviction to a fine not exceeding £20,000 or on conviction on indictment to a fine.⁷⁷ The restrictions imposed by s 28E apply solely to the owner or occupier of land notified as an SI and requires statutory consultation before notified operations can be carried out. This provision imposes no sanction for damage to an SI caused by third parties, unless (of course) their actions are carried out with the owner’s consent or under his/her direction – in which event the owner or occupier may be principally liable for ‘causing or permitting’ the damage in question.⁷⁸ When assessing the quantum of the fine to be imposed on conviction the court must take into account any financial benefit that has accrued or is likely to accrue to the defendant as a consequence of the offence having been committed.⁷⁹ On indictment the fine that can be imposed is potentially unlimited, and the court can take into account aggravating factors and the need for deterrence.⁸⁰

13.35 The potential scope of liability was considered in Southern Water Authority v Nature Conservancy Conservation Body.⁸¹ The House of Lords there adopted a restrictive interpretation, limiting liability to acts done by the freehold owner or an ‘occupier’ with a legal right of occupation or some relationship of permanence with the land. An ‘occupier’ is someone who, although lacking legal title to the land, nevertheless ‘stands in such a comprehensive and stable relationship with the land as to be, in company with the actual owner, someone to whom the [notification procedures] could sensibly be made to apply. A stranger who enters the land for a few weeks solely to do some work on it does not fall into this category’.⁸² It was there held that an independent contractor with no interest in the land could not be liable under this provision. Following the changes introduced by the 2000 Act, however, a statutory undertaker entering to carry out work under its statutory powers will now be liable for damaging notified SI features unless the consultation procedures outlined in s 28H are complied with (see below). Liability would clearly extend to a tenant and to others farming the land under a legal relationship of long standing, such as commoners exercising registered rights of common. Query however whether a grazier, or a licensee with short term contractual rights (grass keep etc), would be an ‘occupier’ for this purpose. It should be noted, however, that although the owner or occupier will not be primarily liable for damage caused by third parties, they may still be liable for ‘causing or permitting’ the damage concerned eg if it is done by independent contractors who carry out proscribed operations at the owners request.

(ii)Liability of Section G authorities.

13.36 A public body or statutory undertaker which, in the exercise of its functions, carries out an operation which damages any of the special features of an SI without first complying with the relevant statutory consultation requirements,⁸³ or without having consulted with the Conservation Body, and then fails to give notice of its intention to proceed with unconsented operations without first giving notice⁸⁴ will, unless there was a reasonable excuse for carrying out the operation without complying, be guilty of an offence and liable on summary conviction to a fine not exceeding £20,000 or on conviction on indictment to a fine.⁸⁵ The Natural Environment and Rural Communities Act 2006⁸⁶ extended this liability further, so that a public body or statutory undertaker will also be liable for permitting the carrying out of an operation that damages any of the flora, fauna, geological or physiographical features of an SI in certain circumstances. By virtue of s 28P(5A) a public body will be liable unless it has complied with the requirement to first notify the Agency of the proposed operation and then wait 28 days before deciding whether to give its permission to its being carried out.⁸⁷ If it decides to permit the operation against the subsequent advice of the Conservation Body, it must give notice to the latter of its decision and the work cannot be permitted until a further 21 days has elapsed.⁸⁸ This offence also carries a fine not exceeding £20,000 on summary condition or an unlimited fine on indictment. There is a defence if there was a ‘reasonable excuse’ for permitting the carrying out of the operation question: it is a ‘reasonable excuse’ for these purposes if the operation was an emergency operation particulars of which were notified to Natural England as soon as practicable.⁸⁹

(iii)Liability of third parties.

13.37 A major weakness of the legal regime for protecting SIs before the 2000 Act was the restriction of its application solely to owners and occupiers of SI land. The 1981 Act⁹⁰ now contains a separate criminal offence for damage to SIs by third parties eg fly tippers, trespassers or transient occupants who are not ‘occupiers’ for the purposes of s 28E (above). Any person who without reasonable excuse intentionally or recklessly destroys or damages any of the special features by reason of which the land is notified an SI, or intentionally or recklessly disturbs any of its flora or fauna, with knowledge that what s/he destroyed, damaged or disturbed was within a site of special scientific interest, is guilty of an offence and is liable on summary conviction to a fine not exceeding £20,000 or on conviction on indictment to a fine. It will be appreciated that the offence requires proof of knowledge on the part of the accused that the site was an SI. An obvious question that will arise is whether it would suffice that the perpetrator ought reasonably to have known that the land was SI land when s/he committed the acts of damage/disturbance in question?

13.38 The Natural Environment and Rural Communities Act 2006 created a second offence.⁹¹ It is also an offence for anyone (other than a s 28G authority acting in the exercise of its functions) to intentionally or recklessly destroy or damage the nature conservation or geological features of an SI or disturb its fauna without reasonable excuse. This is a strict liability offence and does not require knowledge that what was destroyed or damaged was within an SI. An offender is liable to a fine not exceeding level 4 on the standard scale on summary conviction (cf. the maximum £20,000 fine applicable under s 28P(6) above). The court has power to make restoration orders in relation to both of these offences.

(e)Change of owner or occupier

13.39 One weakness in the law prior to the Countryside and Rights of Way Act 2000 concerned enforcement where a change of occupation has taken place. A new tenant or owner/occupiers who is unaware of the site’s status as an SI, and has not received a site notification from the Conservation Body, may damage the conservation features of the site. In order to deal with this Section 28Q⁹² now places the owner of land included in an SI under a duty to notify the Conservation Body when s/he disposes of any interest or ‘becomes aware that [the notified land] is occupied by an additional or a different occupier’.⁹³ This provision will apply where there is a sale of freehold land by the owner, and (for instance) where there is a change of tenant in relation to tenanted SI land. The owner must send a notice to the Conservation Body within a twenty-eight day period after disposing of the legal interest or becoming aware of a change of occupation of the land (eg a change of tenant or licensee). The Conservation Body must be notified of the date on which the owner disposed of his interest in the land and the name and address of the person to whom it was disposed. Alternatively the notice must inform them of the date on which the change of occupation took place and, as far as the owner knows them, the name and address of the new occupier. Failure on the part of a land owner to comply with this provision, without reasonable excuse, is a criminal offence punishable on summary conviction by a fine not exceeding level 1 on the standard scale.⁹⁴ The duty to notify is triggered by any ‘disposal’ of an interest in, or possession of, the land, and this is widely defined to include not only sale but also exchange or lease, or the creation of an easement right or privilege or any other disposal, except by way of mortgage.⁹⁵

(f)Defences under the 1981 Act

13.40 It is not an offence to carry out an operation if the occupier has a reasonable excuse for carrying it out. For these purposes it is a ‘reasonable excuse’ for a person to carry out an operation that damages the conservation interest of an SI in either of two situations:⁹⁶

•It is authorised by planning permission granted under the Town & Country Planning Act 1990, or has been permitted by a statutory undertaker which has consulted the Conservation Body as required by s 28I (above) or

•It is an emergency operation particulars of which (including details of the emergency) were notified to the Conservation Body as soon as practicable after the commencement of the operation. No guidance is offered by the 1981 Act as to the scope of this provision, and no definition of ‘emergency’ is given in the Act or caselaw.The provision is intended to exonerate emergency agricultural operations in situations where it would be impossible or impractical to initiate and use the statutory consultation procedure for OLDSIs (above). The precise ambit of the defence is therefore unclear. The requirement to notify the conservation body ‘as soon as reasonably practicable’ after the emergency operation has begun would indicate, however, that it must in the circumstances be impossible to notify them before undertaking the operation. Examples would include remedial action to deal with an outbreak of fire, or flooding of farmland. If the circumstances are such that it is reasonably practicable to inform the agencies before undertaking remedial work, however, it is suggested that the latter will not constitute an ‘emergency’ within the meaning of s 28P(4).

(g)Positive Management: Management Schemes and Orders

13.41 The 1981 Act was based on a defensive or ‘preventative’ approach ie that of preventing damaging operations and ‘buying out’ development with payments under management agreements. One of the principal objectives of the 2000 Act was to introduce provisions dealing with cases of neglect and/or failure of appropriate land management that damages SIs. The statutory consultation provisions that apply before OLDSIs can be carried out are aimed at preventing unwarranted damage to SI features. They cannot deliver positive management, or the recreation or improvement of natural habitats. Accordingly, the 2000 Act introduced provisions enabling the Conservation Bodies to introduce Management Schemes on SI land and, in appropriate circumstances, to enforce positive management obligations by serving Management Notices on owners and occupiers.⁹⁷

(i)Management Schemes

13.42 The Conservation Body can prepare a Management Scheme for all or part of an SI, either when initially notifying the SI or at any time thereafter. It cannot exercise its’ legal powers to establish the scheme without first giving notice of their proposals (including a copy of the Scheme) to every owner and occupier of land to which it would relate and consulting them about the terms of the proposed Scheme.⁹⁸ Where a Management Scheme has been proposed, it is subject to confirmation, following consultation with affected land owner/occupiers and other relevant consultees, under provisions which mirror those for consultation on the initial notification of an SI (above). Objections must be made within three months, and the scheme must be confirmed by the agency within nine months. If the Management Scheme is confirmed, it has effect from the time the notice of confirmation is served on all the relevant owners and occupiers. If it is not withdrawn or confirmed within nine months, the Conservation Body’s initial notice establishing it ceases to have effect. There is no right of appeal against the making of a Management Scheme, although the Agency’s power to confirm a Scheme with modifications is restricted in that it cannot be exercised so as to make complying with the Scheme more onerous.⁹⁹ Once established the Conservation Body may at any time cancel or propose the modification of a Management Scheme, in which event the consultation provisions described above apply.

(ii)Management Orders

13.43 The 2000 Act conferred powers on the Conservation Bodies to impose a Management Order on owners and occupiers of agricultural land, requiring positive management where a Management Scheme exists and its terms are being ignored or broken so that its flora or fauna is being inadequately conserved or restored. This is a potentially draconian remedy, and its application hedged with safeguards for the landowner. There is a right of appeal to the Secretary of State. And, before serving a management notice, the Conservation Body must be able to show that they have been unable to conclude, on reasonable terms, a management agreement with the owner to deliver the requirements of the Management Scheme.

13.44 Under the terms of a management order, the Conservation Body has wide powers to require the carrying out by the owner or occupier of such work on the land or such other things as may be specified, provided they appear to them to be reasonable in order to ensure that the land is managed in accordance with the Management Scheme already established for the site. Moreover, if any of the work required by it is not done (or not done within the period specified in the Notice) the Conservation Body can enter the land and carry it out themselves. If they do so they can recover from the owner or occupier upon whom the notice was served any expenses reasonably incurred in doing so. Quite apart from his potential liability for the Conservation Body’s expenses in carrying out the work themselves, the owner/occupier who fails to carry out the terms of a management order, without reasonable excuse, will also be committing a criminal offence and be liable on summary conviction to a fine not exceeding the statutory maximum, or on conviction on indictment to a fine.¹⁰⁰

(h)Payments by Conservation Body

13.45 In several situations the Conservation Bodies are obligated to offer payments in relation to management prescriptions, and in others they can make payments on a discretionary basis. Where the Conservation Body modify or withdraw an operational consent for notified operations¹⁰¹ they must make a payment to any owner or occupier of the land who suffers loss because of the modification or withdrawal of consent. Where a management scheme is established under the provisions described above,¹⁰² on the other hand, the Conservation Body has discretion whether to make payments. This power applies to allow them, if they think fit, to make one or more payments to any owner or occupiers of land in relation to which the scheme applies, while it is in force. This will enable the making of either lump sum or periodic payments. The quantification of the payments in both cases is governed by the governmental circular issued under ss 28M and 50 of the Wildlife & Countryside Act 1981.¹⁰³ This also applies to management agreements in SIs, and is discussed in detail below at para 13.138 ff.

(i)Powers of entry

13.46 The Countryside and Rights of Way Act 2000 conferred on the Conservation Bodies’ wide rights to enter onto private land for the purpose of carrying out their statutory functions in relation to SIs. They enjoy wide statutory powers to enter onto land for the purposes of: (i) identifying sites for protection and assessing their conservation interest; (ii) notifying the land as SI; and (iii) then supervising the management of land within notified SIs.¹⁰⁴

Scope of Powers of Entry

13.47 The Conservation Bodies’ officers, and others so authorised by them for this purpose, have the right to enter private land for the following purposes:

•To determine whether the land should be notified as an SI, and in the case of land already notified to assess the condition of the flora fauna and/or other features by reason of which it has been notified as an SI.

•To determine whether or not to enter into a management agreement with the owner or occupier.

•Where occupational consent has been granted for a potentially damaging operation to be carried out at the site, they can enter to assess whether any conditions attached to it are being complied with. They also have a power of enter to ascertain whether a criminal offence is being committed, either under the land management rules in the Act or under bylaws made for the site

•To formulate a management scheme for the land, or to decide whether an existing scheme should be modified. Where a management scheme is in place, they can enter in order to prepare a management order.

•They have powers of entry for the purposes of ascertaining whether a management agreement covering the site is being adhered to, or whether a management scheme or management order is being observed.

•To determine whether to offer a payment in respect of an operational consent which has been withdrawn or modified, or where payment is proposed under a management scheme.¹⁰⁵

•To determine any questions relating to the acquisition of land, either by agreement or using the Conservation Bodies’ compulsory purchase powers.

•To put up, maintain or remove notices or signs erected on the land by the Conservation Body.¹⁰⁶

•The powers of entry also apply for the purposes of determining whether to make a Limestone Pavement Order¹⁰⁷ or an order under the 1981 Act preventing agricultural operations (such as ploughing) on heath or moor land in National Parks.¹⁰⁸

13.48 When exercising rights of entry the Conservation Bodies’ officers or agents can use a vehicle or boat to enter the land and, if they reasonably believe they may be obstructed in doing so, can take a police constable with them, in addition to such material and equipment a they need for the purpose of their inspection. They are also entitled to take samples of the land and anything on it (for example vegetation). If the land is unoccupied, or the occupier is temporarily absent, the person exercising the right of entry must leave the land as ‘effectively secured’ against unauthorised entry as he found it.

Compensation

13.49 The Conservation Body has a duty to compensate an owner or occupier whose land is entered in pursuit of these powers in certain circumstances. Compensation must be paid if he sustains damage as a result of the entry, except in cases where damage is attributable to the fault of the person who sustained it.¹⁰⁹ Compensation must also be paid if damage is sustained as consequence of the officer who enters failing to leave the site adequately secured.¹¹⁰

(j)Compulsory purchase

13.50 Section 28N of the 1981 Act gives the Conservation Bodies wider powers of compulsory purchase in relation to SI land. They may acquire compulsorily all or part of any SI where either:

(a)they are satisfied that they are unable to conclude, on reasonable terms, an agreement with the owner or occupier as to the management of the land, or

(b)that they have entered into a Management Agreement, but are satisfied that it has been breached in such a way that the land is not being managed satisfactorily. Where they acquire land compulsorily under the new provision, the Conservation Body may either manage the land themselves, or dispose of it (or any interest in it) on terms designed to secure that the land is managed satisfactorily. If any dispute as to whether or not there has been a breach of a Management Agreement for the purposes of triggering the power of compulsory purchase granted by s 28N, it is determined by an arbitrator appointed by the Lord Chancellor.¹¹¹

(k)Site Notification and the Human Rights Act

13.51 The Human Rights Act 1998 has relevance to the manner in which the Conservation Bodies notify land for protection as an SI (or other protected area), and also to the manner in which they use their statutory powers as to management of the eland following notification. Litigation under the 1998 Act has touched upon both issues and has centred on two aspects of the European Convention of Human Rights: the ‘procedural’ right to a determination by an impartial tribunal when civil rights are affected by state action, and the ‘substantive’ right to the protection of property.

(i)Impartiality: the Article 6 issue

13.52 Article 6 of the ECHR provides that ‘in the determination of his civil rights…everyone is entitled to a fair and public hearing…by an independent impartial tribunal established by law’. In both Aggregate Industries UK Ltd v English Nature¹¹² and Boyd v English Nature¹¹³ the courts ruled that the confirmation of an SI notification engages the civil rights of the landowner. The additional question is therefore whether the procedures laid down in the 1981 Act for the notification and confirmation of SIs confers the required level of impartiality and objectivity to comply with the procedural safeguards of the ECHR.

13.53 It was held in William Sinclair Holdings v English Nature¹¹⁴ that the procedure for confirming SI notifications was not ‘impartial’ because the decision to confirm the notification was made by the Conservation Body – the same body that had made the initial notification. There was therefore no independent review of the objections and representations made by objectors. In this case Turner J held that the decision would also fall foul of the requirement for a fair and pubic hearing if the decision was reached by way of written submissions without any opportunity for the evidence upon which the submission of objectors was based to be challenged. An interim injunction was granted to prevent English Nature proceeding to confirmation of the SI. Although the case did not subsequently proceed to a full hearing of the human rights issues, it signalled a number of potential problems. These duly materialised in Aggregate Industries v English Nature, where the court confirmed that there was a sufficient want of the necessary objective appearance of impartiality and independence on the part of the Conservation Body when confirming the notification for it not to be an independent and impartial tribunal for the purpose of Art 6.¹¹⁵

13.54 Although Art 6 does not give the state an express ‘margin of appreciation’ as to the manner in which the convention right is guaranteed,¹¹⁶ nevertheless a fair balance has to be struck between the competing interests of protecting the individual on the one hand, and giving sufficient freedom of action to the executive authorities on the other.¹¹⁷ This balance has been struck in relation to Art 6 by accepting that the necessary guarantees can be found in a ‘composite’ procedure within which the necessary convention rights are protected, but not by a single procedure before a discrete tribunal. In Bryan v UK¹¹⁸ the European Court considered UK planning enforcement procedures in a case involving an appeal against an enforcement notice requiring the demolition of a mock Tudor dwelling erected in breach of planning control.¹¹⁹ It was there held that although the appeal proceedings before the planning inspector were not in themselves sufficiently impartial to satisfy the convention,¹²⁰ nevertheless the High Courts’ power to review the inspectorate proceedings, coupled with safeguards applied to the inspectorate proceedings themselves,¹²¹ together ensured full compliance with the procedural standards required by the Convention.

13.55 The composite approach was also endorsed by the House of Lords in the Alconbury case¹²² when reviewing the legitimacy of the procedures for planning appeals under Art 6. In Alconbury the House of Lords stressed the importance of the decision makers (in that case planning committee members) being democratically accountable for the exercise of their planning powers.¹²³

13.56 The administrative arrangements for decision making in the application of nature conservation law are, by contrast, more technocratic and closed. There is no democratic accountability either of Natural England’s actions when confirming SI notifications, or of the actions of their officers when granting or refusing operational consent for potentially damaging operations in an SI. Nevertheless, in Aggregate Industries v English Nature the court of appeal took the view that it was not necessary to the application of the composite approach for the decision maker to be democratically elected. A central element in deciding whether the procedure in question is Art 6 compliant is whether it can be relied upon to produce a ‘fair and reasonable’ result or decision. The court’s view in Aggregate Industries was that the safeguards provided by the Wildlife and Countryside Act 1981 ensured that this was the case.¹²⁴ The courts have also ruled that it is not necessary to apply more intensive scrutiny by judicial review in nature conservation cases than would be required in an ordinary case in order to satisfy the composite approach.¹²⁵

(ii)Property Rights: the Article 1 issue

13.57 Article 1 of the Protocol to the European Convention of Human Rights (hereafter simply ‘Article 1’) guarantees the peaceful enjoyment of possessions. The Convention right is not unqualified, however, as the state has the right to enforce such laws as it deems necessary ‘to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties’. The jurisprudence of the European Court of Human Rights has established that the article in fact comprises three elements; a general right to the peaceful enjoyment of possessions, a second rule covering the deprivation of possessions (which is made subject to conditions), and a third rule providing for the control of the use of property in accordance with the general interest.¹²⁶ The article could potentially apply at different stages in the notification and subsequent management of land as an SI.

(aa)Proportionality in the Confirmation of SSSI Notifications

13.58 In Fisher v English Nature¹²⁷ one of the grounds for challenging the site notification was that its confirmation breached Art 1 because it was a disproportionate interference with the claimant’s peaceful possession of his land. This required an examination of the margin of appreciation allowed to the state by the express qualification of the convention right, and the consequent degree to which derogations from the convention right were permissible. The claimants argued that the legislative provisions were disproportionate in the absence of compensation for the loss in the value of land consequent upon its notification as an SI. This was argued to be a disproportionate burden because (unlike the Town and Country Planning Act 1990) the conservation legislation applies only to the approximately 5000 sites in England and Wales which had been notified as SIs, covering approximately 7% of the land area of the country. At first instance, Lightman J held that the wide margin of appreciation allowed to the state under Art 1 meant that the controls prescribed by law must be without any reasonable foundation if they are to be regarded as disproportionate.¹²⁸ The issue of proportionality only arose if the statutory scheme was not itself convention-compliant. On this issue he held that the relationship of proportionality between the measure and the social evil to be remedied does not involve a test of strict necessity. It followed that although there might be a better means of achieving the same ends¹²⁹ this does not necessarily mean that an SI notification will be disproportionate within the meaning of the Convention.¹³⁰

13.59 The Court of Appeal upheld the first instance decision in the Fisher litigation, but disposed of the proportionality issue on narrower grounds. As Wall LJ put it,¹³¹ on the facts all that SI status imposed was a need to consult with English Nature before particular activities were engaged in. In so far as the notification imposed restrictions on particular farming activities, however, the claimants brought forward no evidence that could render the restrictions disproportionate. It was not therefore necessary to decide the wider issue – whether the SI scheme was itself convention-compliant. The court viewed the evidence in Fisher as ‘surprisingly weak’. Little solid evidence was submitted on the effect of the SI on land values, and there were no objections to the list of potentially damaging operations served with the notification. The overall argument on this aspect of Art 1 was also weak. The claimants chose not to challenge the legality of the legislation itself or the overall SI scheme, and against that background Lord Justice Wall observed that he ‘struggled to ascertain why it was that the imposition of an SI on the appellants was so disproportionate as to render the decision to confirm [the notification] unlawful. A bare assertion that the SI serves no useful purpose is not...a reason of itself for refusing to confirm’.¹³² Importantly, in both Fisher and a subsequent decision – Trailer and Marina (Leven) Ltd v Secretary of State and English Nature¹³³ – the interference was viewed as an interference with land use, rather than an expropriation of title. In this type of case the jurisprudence of the European Court makes it clear that while the payment of compensation will generally support a finding of non-violation, it is not essential. There is an extensive case law in the ECHR, but because of the nature of the balancing exercise to be carried out, most of the decisions are fact-specific.¹³⁴ In Trailer and Marina, the court held that the availability of compensation will be of significance only ‘on rare occasions rather than as a matter of routine’¹³⁵ in land use cases, whereas it will usually be decisive of the proportionality issue in expropriation cases.

13.60 If the notification of an SI can be shown to have a disproportionate impact on a landowner affected by it, and it can be shown that Natural England or Natural Resources Wales failed to take this into account when confirming the notification, then this might found a claim for judicial review of the notification under Art 1 of the protocol.¹³⁶.This will put the onus on applicants to present clear evidence of diminution in land values consequent on the SI notification, and of demonstrable loss of income flowing from the restrictions to be imposed.¹³⁷ It will also require the Conservation Bodies to consider each case on its merits, to take into account the financial impact of the potential SI notification on the owners and occupiers of the land under consideration, and in appropriate cases to offer compensation (possibly under the terms of a management agreement) to those affected by the notification. The court of appeal gave no indication in Fisher of the manner in which these factors might impact on future cases, but the decision fell short of giving English Nature approval to proceed with SI notifications without considering their potential impact on individual landowners. The full impact of the proportionality issues on decision-making in this area will only become clearer with further litigation.¹³⁸

(bb)Controls on OLDSIs in an SSSI

13.61 A second issue is whether the imposition of legal controls on potentially damaging operations specified in the site notification imposes disproportionate restrictions on ownership rights in an SI. In Fisher it was held that issuing a list of operations likely to damage the conservation interest was not itself a breach of Art 1. All this requires is that a statutory consultation be initiated and that consent be obtained before they are carried out. If and when a landowner applies for operational consent a fair balance can be struck in determining whether consent be granted in the particular case – the required balance being between the public interest in protecting the wildlife habitat for which the site was notified (stone curlews in the Fisher case) and the claimant’s interest in carrying out the operation. The regime is not disproportionate inasmuch as it includes a mechanism for effecting the required balance in individual cases.

13.62 The court of appeal in Fisher v English Nature placed particular emphasis on the fact that the landowner is free at all times to apply to be absolved from the bonds imposed upon him by applying for operational consent.¹³⁹ This ignores the fact, noted above, that the framework of reference within which the balance must be struck was fundamentally changed by the 2000 Act. English Nature can now indefinitely refuse operational consent, subject to a right of appeal against refusal to the secretary of state.¹⁴⁰ The procedure differs from that in planning cases in other key respects, notably because there is no mechanism for public consultation on applications for operational consent in wildlife sites, and there is no obligation on English Nature to furnish detailed written reasons for a refusal of consent. The key to the regime’s compliance with the convention right appears to have been the facility for appeals to the secretary of state.

13.63 Nevertheless, although the court pronounced the management regime for SIs convention-compliant in Fisher, it remains the case that its application in individual cases must accord with Art 1 and with (in particular) the proportionality principle. The action taken by the public authorities must in each case be proportionate to the public policy interest that is being pursued. This will depend on the facts of each case.