PROTECTION OF SITES OF SPECIAL SCIENTIFIC INTEREST

HL Deb 16 November 2000 vol 619 cc440-65

(" .—(1) English Nature, with respect to England, and the Countryside Council for Wales, with respect to Wales, may make byelaws for the protection of all or part of a site of special scientific interest (and may make different provisions for different parts thereof) under section 20 of the National Parks and Access to the Countryside Act 1949 (byelaws for the protection of nature reserves).

(2) Without prejudice to the generality of subsection (1), byelaws under that section as it applies by virtue of this section. May—

1. (a) prohibit or restrict the entry into, or movement within, the site of persons, vehicles, boats and animals;
2. (b) prohibit or restrict—
1. (i) the killing, taking, molesting or disturbance of living creatures of any description in the site;
2. (ii) the taking, destruction or disturbance of eggs of any such creature;
3. (iii) the taking of, or interference with, vegetation of any description in the site; or
4. (iv) the doing of anything in the site which will interfere with the soil or damage any object in the site;
3. (c) prohibit the deposition of rubbish and the leaving of litter in the site; and
4. (d) prohibit or restrict, or provide for the prohibiting or restricting, the lighting of fires in the site or the doing of anything likely to cause a fire in the site.

(3) Byelaws made under section 20 of the 1949 Act may prohibit or restrict any activity referred to in subsection (2) within such area surrounding or adjoining the site as appears reasonable for the protection of the site.

(4) Byelaws made under section 20 of the 1949 Act may provide for the issue, on such terms and subject to such conditions as may be specified in the byelaws, or permits authorising—

1. (a) entry into the site or any such surrounding or adjoining areas as mentioned in subsection (3), or
2. (b) the doing of anything within the site, or any such surrounding or adjoining area, where such entry, or doing that thing, would otherwise be unlawful under the byelaws.

(5) Byelaws made under section 20 of the 1949 Act as it applies by virtue of subsection (1) shall not interfere with—

1. (a) the exercise by any person of a right vested in him as owner, lessee or occupier of land within the site of special scientific interest, or in any such surrounding or adjoining area as is mentioned in subsection (3);
2. (b) the exercise of any public right or way; or
3. (c) the exercise of any functions of a section 28G authority.

(6) Where the exercise of any right vested in a person, whether by reason of his being entitled to any interest in land or by virtue of a licence or agreement, is prevented or hindered by the coming into operation byelaws made under section 20 of the 1949 Act as it applies by virtue of subsection (1), he shall be entitled to receive from English Nature, with respect to England, or the Countryside Council for Wales, with respect to Wales, compensation thereof.

(7) If any person without reasonable excuse (proof whereof shall lie on him) contravenes any byelaw made under section 20 of the 1949 Act as it applies by virtue of subsection (1), he shall be guilty of an offence and liable on summary conviction to a fine not exceeding, in the case of a first offence, level 1 on the standard scale; in the case of a second offence, level 2 on the standard scale and in the case of a third and subsequent offence, level 3 on the standard scale.").

The noble Baroness said: My Lords, at the moment there is nothing on the face of the Bill to replace the Section 29 orders that the Bill removes. Therefore SSSIs which are not part of a national nature reserve nor part of internationally important sites are left without any effective protection against a particular threat. That is why we have brought forward Amendment No. 200. The noble Lord, Lord Judd, has sent me a note to say that I may speak strongly on his behalf—although I would never presume to speak as strongly as the noble Lord.

Since I tabled the amendment, the Government have brought forward Amendments Nos. 210 and 211. I shall be interested to hear what the Minister has to say about those. Contrary to the previous group of amendments, the government amendments—which cover the same issue—are much shorter than ours. I welcome that. I hope that the government amendments will cover the gap left in the Bill, which would make the less important SSSIs—if one can call them that—vulnerable and without protection in case of need. I beg to move.

Lord Monro of Langholm

My Lords, I was interested in what the noble Baroness said about SSSIs. However, I wonder whether she is not going far too far with her amendment, bearing in mind the powers already available in the Wildlife and Countryside Act 1981.

Some of us who sat on the committee—including the noble Lord, Lord Hardy of Wath—remember 26 sittings in another place dealing with the Wildlife and Countryside Bill, with particular reference to SSSIs from Section 28 onwards which gave immense powers to English Nature and the Scottish Nature Conservancy Council, subsequently SNH. I am fortunate to have been on both sides because, after being involved in taking the Act through another place, I was for nine years a member of the council implementing it.

One can see the great value of the SSSI system. One's only worry is that English Nature already has immense powers, and, of course, conversely in Wales and Scotland. I often feel that we are going rather further than the Act, particularly in regard to the extension of the SSSIs and the action that could be taken against a potentially damaging operation.

There was a very good article in The Times on 4th November by Magnus Linklater—whose wife, the noble Baroness, Lady Linklater, is not in her place who writes extremely well. The article refers to Scotland but the same impact could occur here with English Nature. The article states: Later this month five vast areas of rural Scotland, totalling some 200,000 acres of hill and moor, are to be designated Sites of Special Scientific Interest. The aim is to preserve not people, but wild birds; or, to be precise, one particular species of wild bird—the hen harrier". and so on.

When we drew up the 1981 Act, we did not anticipate SSSIs of such enormous size. Even in my day on the NCC, there were moves to make large tracts of the Pennines into SSSIs. I do not think that that was the original intention; it was for much smaller, concentrated areas which could be managed more simply. When one sees SSSIs of 200,000 acres, one begins to wonder whether one is not merely nationalising land and preventing hard-pressed farmers from carrying out a great many operations that they would like to carry out and which would cause no harm at all.

When one has an SSSI, there are probably 15 or 20 matters on which one has to obtain permission before any action can be taken in terms of agricultural operation. Therefore, we must be very careful about giving greater powers to English Nature as regards its control of SSSIs, as the new clause seeks to do. We should move forward with great caution. The vast majority of people who are responsible for SSSIs, whether owners or tenants, look after them extremely well. They will not welcome further draconian powers being given to English Nature which will make it even more difficult for them to fulfil their duties. When people are hard-pressed financially, it is particularly difficult for them to enhance SSSIs or indeed the habitat of a farm, which can only come out of the profits, which at present are minimal or not there.

So, while I appreciate the wish behind the amendment, we should be very careful about increasing the powers that relate to SSSIs through English Nature and ultimately through the Minister responsible for rural affairs. I merely suggest a note of caution. We should not rush into this without careful thought. The powers are there, and we do not want to see them extended.

9.30 p.m

Baroness Young of Old Scone

My Lords, I declare an interest as chairman of English Nature. Perhaps I may take issue with a couple of points made by the noble Lord, Lord Monro. My experience, based on conversations that I have had with upland farmers, is that they are absolutely delighted if their land is designated an SSSI, because it is one of the few ways in which they can get additional income into their pockets as a result of management agreements on SSSI land at a time when they are indeed hard-pressed for funds. I am delighted to see that many farmers, both in the uplands and the lowlands, see conservation money as a useful adjunct to their income in these difficult times.

I also wish that it were possible to designate great tracts of the uplands of England for hen harriers. Alas, owing to illegal persecution in a quite shameful way, we are now down to fewer than 20 pairs of hen harriers in England. I support government Amendments Nos. 210, 211, 219 and 220. Bylaws can already be enacted on European sites and on national nature reserves. The amendments simply extend the provision to all SSSIs. It is much easier to prove infringement of by-laws than it is to prove damage to SSSIs. It adds a means of prevention rather than shutting the stable door after the horse has bolted. I strongly support these amendments.

Earl Peel

My Lords, I support Amendment No. 210 in principle. However, the words of my noble friend Lord Monro need to be heeded. Much of what he says is right. I accept what the noble Baroness, Lady Young of Old Scone, says about how much farmers welcome the additional income that comes on the back of an SSSI designation, that is not the original purpose of the designation; it is a by-product. Welcome though it may be, we need to be very careful that these designations do not get out of hand or become too draconian, and that they do not impose too much on the ability of people who own land to manage that land. There is a delicate balance, but there is a danger that in certain circumstances we may be going a little bit too far.

In regard to Amendment No. 210, the noble Lord, Lord Monro, is right in his reference to the Pennines. Large areas of the Pennines have been designed as SSSIs. I see this amendment, which would allow English Nature to make by-laws, as a possible advantage, especially as regards dealing with some of the abuses under the access provisions of the Bill that we failed to address at an earlier stage. Again, I suspect that that may be a by-product, but I shall be interested to hear the Minister's response as to whether or not such by-laws could be used in cases where, for example, people disregard Schedule 2 and Chapter 2 in Part I of the Bill. That may be one way of dealing with those abuses, albeit in a rather round-about fashion. Can the Minister give us an assurance that such bylaws will not impinge on the rights of owners and occupiers of this land? May I also assume that those owners and occupiers will be consulted before any such by-laws are introduced?

Baroness Mallalieu

My Lords, I, too, support the government amendment. I have reservations about Amendment No. 200 tabled in the name of the noble Baroness, Lady Miller, but it does have one advantage in that it spells out a concern that the noble Earl, Lord Peel, has just put into words. In subsection (5) of the amendment, the by-laws specifically, shall not interfere with … the exercise by any person of a right. vested in him as owner, lessee or occupier of land within the site of special scientific interest, or in any such surrounding or adjoining area as is mentioned in subsection (3)"— and, indeed, shall not interfere with either, "the exercise of any public right or way; or … the exercise of any functions of a section 28G authority".

Those matters are not spelt out specifically in the Government's amendment. I, too, should be glad if my noble friend the Minister could give us some undertaking that it is intended that those who own, occupy or lease land shall have some safeguards, and that they shall be properly consulted before such powers are exercised.

Lord Whitty

My Lords, much reference has already been made to government Amendment No. 210. The other amendments in this group are consequential upon it. Our amendment has the same objective as the noble Baroness's Amendment No. 200. However, I inevitably consider our amendment to be slightly better in one substantive respect; namely, that it is more focused than Amendment No. 200.

Having considered our earlier discussions in Committee and the issue of damage by persons other than owners and occupiers, we have been persuaded that there may indeed be circumstances where activities, which may well fall outside the general offence in 28P(6) of intentionally or recklessly damaging an SSSI, may nevertheless need to be curtailed. This amendment would enable the agencies to tackle situations and control activities that may be causing minor amounts of damage, but which, if carried out repeatedly or by a large number of people, would cause serious damage to the SSSI.

By-laws may well prove effective in many such circumstances. We believe that it would be appropriate to apply, with appropriate adaptations, the conservation agencies' existing by-law-making powers in relation to national nature reserves, so as to enable them to make by-laws for the protection of all, or part, of an SSSI. I refer back to the discussion that we had when we dealt with the point raised by the noble Earl, Lord Peel, and my noble friend Lady Mallalieu regarding the access position. Although by-laws may not interfere with the basic rights of owners or with the use of public rights of way, they may otherwise enable the agency to prevent or restrict movement within an SSSI. Therefore, by imposing restrictions via by-laws, some of the potential abuses to which the noble Earl, Lord Peel, referred in earlier debates would be tackled. I indicated at that stage that that was one of the ways in which such problems could be addressed later in the Bill.

One facility under the by-laws which may be particularly useful would be the power for the agencies to issue consents authorising activities that would otherwise be illegal under the by-laws. That would enable the agencies to permit sustainable levels of activity—for example, the diversification issues to which reference has been made—at particular times. However, we do not need a specific provision in this Bill because the powers of the agencies are included under Section 20(2) of the 1949 Act.

We also consider that the agencies should not seek to make by-laws without taking the views of those with an interest in the land. I hope that that reassures the noble Earl, Lord Peel, on the consultation aspect.

One difference between the amendment of the noble Baroness and mine is that my amendments contain only a limited power for by-laws to go wider than the SSSI itself in Section 20(2)(g) of the 1949 Act (which enables by-laws to restrict the shooting of birds where this is required to protect the SSSI). However, the noble Baroness's amendment goes further than that. We do not consider that appropriate, partly for the reasons adduced by the noble Lord, Lord Monro. We do not consider it appropriate to provide the agencies with unlimited powers to make by-laws on areas adjoining or adjacent to SSSIs. Although such a provision has been included with respect to by-laws on European sites, so far as we are aware no circumstances have arisen where the powers have been used. Where problems arise on an SSSIas a consequence of lawful activities on adjoining land, I anticipate that the agencies will need to negotiate with the owners and occupiers of the land rather than have powers to impose by-laws on land which is not part of the SSSI. If necessary, they could use the Section 15 powers of the Countryside Act 1968 to offer a management agreement, for example.

I think that that is a better way to deal with adjoining landowners than to extend the SSSI powers into those areas. That is the only substantive difference between the noble Baroness's amendment and mine. I believe that we are both attempting to achieve the same objective.

Baroness Byford

My Lords, before the noble Lord sits down, in response to a question of my noble friend Lord Peel he said that the Government would consult with landowners and others. However, that does not appear to be included in the amendment. While the noble Lord considers that point I turn to the noble Baroness's amendment. It is difficult to try to tackle such a wide range of matters. However, I seek to clarify two points.

Subsection (2)(b) of the proposed new clause in Amendment No. 200 refers to prohibiting or restricting, the killing, taking, molesting or disturbance of living creatures of any description in the site". The control of squirrels or rabbits would fall foul of that provision. I suspect that that may constitute a problem. We have discussed the provision in subsection (2)(c) of the proposed new clause at several stages of the Bill. It seeks to prohibit, the deposition of rubbish and the leaving of litter in the site". I believe that that provision is included elsewhere in the Bill. I seek clarification on that point either from the Minister or from the noble Baroness. However, I hope that it is already included. I should be worried if that were not the case. I am worried that, because of the lack of rural police, landowners, occupiers or land managers might be obliged to enforce these provisions. I thought that we had sought to avoid confrontation between visitors and those who work on and manage the land.

Baroness Miller of Chilthorne Domer

My Lords, I emphasise again that my amendment does not seek to duplicate anything in the 1981 Act. Section 29 of that Act, which enables nature conservation orders to be made, is repealed by the Bill. My amendment does not seek to address a new area but rather a gap that arises through the repeal of Section 29. I hope that that answers the points made by the noble Lord, Lord Monro, and to some extent the points made by the noble Baroness, Lady Byford, on rural police. The order-making powers would also have required enforcement.

I accept the noble Baroness's point about litter. I am not sure that rubbish falls within quite the same definition, but that is a small point. Subsection (2)(b)(i) refers to prohibiting or restricting, the killing, taking, molesting or disturbance of living creatures". The control of pests would be covered by subsection (5)(a).

I am pleased that the Government have brought forward their own amendment to cover the gap left by the repeal of the Section 29 orders. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.45 p.m.

Schedule 9 [Sites of special scientific interest]:

Baroness Byford moved Amendment No. 200A: Page 114, line 16, at end insert— ("() In any of the circumstances referred to in subsections (1) and (2), the Council shall consider alternative options for securing the conservation of the flora, fauna or geological or physiographical features of the site, and shall discuss any such options with the persons referred to in subsections (1) and (2).").

The noble Baroness said: My Lords, in moving the amendment, I speak to Amendment No. 200B. As the Bill is drafted, it appears that English Nature and the Countryside Council for Wales could simply refuse consent for an operation notified to them and walk away from the issue. Such a strategy could potentially damage any possibility of developing a positive relationship with the owner or occupier. A disgruntled occupier could feel left in limbo.

Accordingly, it is important that at the same time that English Nature or the Countryside Council for Wales refuse, withdraw or modify a consent they also consider alternative options for conserving the special interest of the site and discuss these options with the owner or occupier.

The options could include doing nothing, seeking a mutually agreed grazier—for example, where the occupier no longer keeps livestock—or offering a management agreement to secure positive management. It is to be hoped that through such consideration and dialogue a positive working partnership can be established between the parties.

I turn to Amendment No. 200B. It is important that proper consideration is given to the interests of agriculture and forestry and economic and social interests by whoever is appointed to hear appeals. Under Section 28G any person who hears appeals will be bound by the requirement to, further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest".

That duty must be counterbalanced by a duty to take account of the interests of those bringing appeals, which will often relate to agriculture, forestry or economic or social matters. If the conservation and enhancement duty is not effectively balanced, anyone making an appeal is likely to feel that the cards are stacked against them.

The amendment, which draws on the duty placed on English Nature and the Countryside Council for Wales by Section 37 of the Countryside Act 1968, provides for the necessary balance. I beg to move.

Earl Peel

My Lords, I support both amendments. On Amendment No. 200A, it would be unfortunate if the conservation authorities simply dismissed a consent from an owner or occupier without seriously considering an alternative option. I have no doubt that in most cases this will be considered. I can only speak from my experience when dealing with the regional officers of English Nature. They are extremely reasonable. I have no doubt that in most cases such an option will be considered. However, we have a duty to legislate for the unlikely. It is also important that owners and occupiers feel confident that the system is fair. It is unlikely that they will consider such art option unless it is a serious matter. We owe it to them to make the system fair and equitable.

On Amendment No. 200B, I understand that an owner or occupier who has been refused a consent under new Section 28F in Schedule 9 or who is aggrieved by the conditions attached to that consent may appeal to the Secretary of State. That seems fair and proper. However, as my noble friend pointed out, whoever is appointed to hear such appeals is bound under Section 28G, to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest". That is fine. I have no problems with that concept. However, coming back to fairness and reasonableness, whoever is responsible for hearing the appeal should have due regard for local economic and social needs. The terminology in the amendment appears in many Acts of Parliament, so there is already a precedent for it.

The words "due regard" hardly compete with the words, to further the conservation and enhancement of". The amendments would not seriously erode the principles behind the Bill. However, they would bring some reality to the decision-making process. As I said on the previous amendment, if an owner or occupier goes to the trouble of seeking a consent under Section 28F, he will have a good reason for doing so. It is only right and proper that his considerations should he given a fair hearing, alongside the obligations that the Bill places on the person conducting the hearing.

Lord Whitty

My Lords, I hope to be able to convince the noble Baroness that the amendments are unnecessary. Like her, we would prefer a partnership approach. When a landowner or occupier applies for a consent, he will already have before him the notification, which explains what is special about the land and what operations are likely to damage the special interests. He may also have the agency's statement of views on the management of the land. He should have approached the agency to discuss his plans and explore the options before making the application for consent. Even if he has not, there is still an opportunity for discussion should consent be refused or granted with onerous conditions that the owner or occupier is not happy with. That is why the provisions for making an appeal allow the agency and the owner or occupier to agree to extend the time limit.

There is plenty of scope for looking at the options. However, it is not appropriate to put the onus entirely on the conservation agency to come up with alternatives. Clearly, it would need to be prepared to discuss the options with the owner or occupier.

The code of guidance to the agencies, on which we are consulting, promotes positive partnerships and pre-application discussions. The consideration of alternatives will also be very helpful. English Nature will then be in a position to suggest ways of making the operation acceptable.

However, there is no need to specify that informal process in the Bill. Each case is different. Alternative ways of carrying out the proposed operation, potential enterprises or suitable conservation options will vary widely. The agency should not be forced to consider alternatives only when an owner or occupier is seeking to carry out operations listed on the notification as likely to damage the special interest features of the site. It would also be impractical to burden the agency with such a general duty. The requirements to consider alternatives are built into the guidance under the Bill. The amendment would place too rigid a formulation on the agency.

As the noble Earl, Lord Peel, said, the phraseology of Amendment No. 200B is already contained in earlier Acts. When considering appeals, the Secretary of State will have regard to the requirements of Section 37 of the Countryside Act 1968, which states that in the exercise of their functions under that Act, the 1949 Act and the Wildlife and Countryside Act 1981, it shall be the duty of every Minister … to have due regard to the needs of agriculture and forestry and to the economic and social interests of rural areas". As the appeals under this provision would come under the 1981 Act, as amended by this Bill, that duty will already apply. Therefore, the amendment is unnecessary and I hope that the noble Baroness will not pursue it.

Baroness Byford

My Lords, I am grateful for that latter clarification. Before I finally withdraw the amendment, perhaps I may ask the Minister a question. He mentioned the code of guidance. Is that already covered in the Bill or will it be dealt with later? I was not aware of it.

Lord Whitty

My Lords, I am not sure that I can point to the provision in the Bill under which it comes. However, we are currently consulting on the draft paper. If it is not in the Library, it probably should be, and I shall ensure that the noble Baroness receives a copy of it before Third Reading.

Baroness Byford

My Lords, I am grateful to the noble Lord—not for more reading but for his response. It worried me that, as we go through the Bill, we keep discussing matters which, we are told, we shall come to but which are not relevant at present. However, if the Minister says that the code of guidance is being dealt with, I shall certainly have a look at it. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 200B not moved.]

[Amendment No. 201 had been withdrawn from the Marshalled List.]

Baroness Miller of Chilthorne Domer moved Amendment No. 201A: Page 115, line 39, at end insert— ("() Where the Council does not assent to the proposed operation or assents to the proposed operation but with conditions, any dispute between the Council and a statutory undertaker shall be determined by a person appointed for the purpose

1. (a) by an agreement between the Council and the section 28G authority; or
2. (b) failing such an agreement, by the Secretary of State,

and on any such reference the person so appointed may confirm the decision of the Council or give the section 28G authority such directions as he thinks appropriate.").

The noble Baroness said: My Lords, this amendment returns to the problem that we had in Committee in relation to a disagreement between the conservation bodies under the Section 28G authority about an operation likely to damage an SSSI. Our amendment would allow either party formally to seek the view of the Secretary of State before the operation proceeded.

In Committee, I tabled an amendment which sought to use the planning process to resolve the issue. However, given my explanation and the reply from the noble Lord, Lord McIntosh, I was persuaded that that was perhaps not the correct route to take. But I believed that the principle was worthy of pursuit. Therefore, in tabling this amendment I suggest the simpler route of an appeal to the Secretary of State.

If we leave the Bill as it is, there will be no mechanism to ensure a satisfactory outcome. English Nature's briefing on this amendment states that it believes that, whilst such a provision would be useful it is not necessary to add it to the face of the Bill itself, as enshrining it in statute may constrain attempts to reach a mutually acceptable solution". I fully accept that. However, if an acceptable solution was not reached, the problem would remain.

English Nature goes on to say that, although it supports the principle, it believes that, this useful provision would be better incorporated into the Code of Guidance Ministers are preparing, which already provides explicit guidance for statutory authorities in paragraph 60". English Nature states: Ministers expect that all public bodies, in deciding to go ahead against English Nature's advice, will clearly demonstrate how they have weighed the balance between differing interests". The question that I must return to is: what if those bodies have not satisfactorily demonstrated how they have weighed the balance? Will the matter then be left in stalemate? English Nature may decide that it can appeal directly to the Minister. However, could the Section 28G authority appeal in the same way? Although such cases may not be frequent, I believe that when they occur they are likely to be difficult. Without a clear mechanism, they are likely to waste public time and money in a resolution that could, if our amendment were followed, be resolved easily. I beg to move.

Baroness Young of Old Scone

My Lords, I am grateful to the noble Baroness, Lady Miller of Chilthorne Domer, for pursuing this issue with dogged determination. It would, indeed, be a serious issue if the statutory conservation body under the Section 28G authority failed to agree a proposed operation where the advice of the statutory conservation body was that the operation would damage the SSSI. I believe that it would be a serious issue for two reasons.

First, under this provision the statutory undertakers will have much broader responsibilities than they have ever had before. That will include responsibilities outside SSSIs that would have an impact on SSSIs. So these are entirely new circumstances and statutory undertakers will have no experience of them. Therefore, it is easier to see that their judgment could be wrong and they might plough on regardless of advice.

The second point I raise makes it an even more serious issue. The provision extends the duty to make that judgment to many more statutory undertakers than in the past. I say many more, but I probably mean many, many more. Can the Minister give a definite number of these statutory undertakers? I suspect that he cannot because I believe the reality is that no-one knows how many statutory undertakers there are. I know there are at least hundreds because they include the local authorities and the internal drainage boards. Possibly there could be several thousand of these statutory undertakers who, for the first time, have the responsibility of making a decision whether to damage an SSSI or not. I believe that any of this plethora of inexperienced undertakers could quite simply make a wrong decision.

As the noble Baroness, Lady Miller, rightly pointed out, the statutory consultation agency could refer to the Minister or ultimately seek a judicial review. But the Bill gives only 21 or 28 days in which to resolve a dispute and then the statutory undertaker can go ahead.

One might also say that the requirement in the Bill for Section 28G authorities to restore damage afterwards might act as a deterrent to them making rash decisions. But it might not. In many cases, once an SSSI is damaged restoration is not possible. I believe that the spirit of Amendment No. 201A provides a clear and more positive way of resolving these potentially highly damaging and rather unpredictable disputes. If it is not on the face of the Bill, perhaps I may at least press the Minister to give an undertaking that this provision will be clearly outlined in the code of guidance.

10 p.m.

Baroness Byford

My Lords, before the noble Baroness sits down, I was slightly disturbed to hear her say that once an SSSI is damaged it is almost irreparable. That would be of great concern because around the countryside a great deal of quarrying is taking place on SSSI land. The quarry owners put the sites back together and they become wonderful SSSI sites. Did the noble Baroness really mean what she said?

Baroness Young of Old Scone

My Lords, I am grateful for the noble Baroness seeking guidance on this matter. Many habitats are pretty robust and one can do all kinds of things to them and they will eventually recover. But there are some which are so delicate that, if they are damaged, they either do not recover or recovery takes many, many years. It would be unfortunate if a statutory undertaker, simply through lack of experience, were to carry on regardless of that effect.

Lord Whitty

My Lords, one understands that there may be disputes in this area, although they would be few and far between. I do not believe that the noble Baroness's amendment deals with the matter in the appropriate way, which is to try to ensure that where such works are carried out they take place either with agreement or with provisions for effective restoration. Bearing in mind what my noble friend Lady Young said, there may be problems in that area and lid I restoration must meet the statutory requirements.

However, we are setting up a whole new structure of arbitration here. The amendment would potentially permit an arbitrator to enforce a decision on a public body even though the public body was carrying out an operation which it was statutorily required to do through the public body's own legislation. The amendment would not impose any time limit on the arbitrator in determining the dispute; nor would it provide any direction as to what criteria the arbitrator should apply.

The effect of such an unfettered process of dispute resolution could result in a complete block on public bodies carrying out their work. In many cases the work of these public bodies on drainage and so forth could be absolutely essential for both the conservation area itself and the wider interests of farmers and others within that area.

Safeguards are already built into the Bill. The starting point is the overarching duty in Section 28G(2). Where a public body proposes to carry out an operation which is likely to damage an SSSI, we have provided for notice to be given. Where a public body has not received assent to proposed operations, that body must nevertheless give 28 days' notice.

Paragraph 60 of the code of guidance already makes clear that Ministers will expect all public bodies, in deciding to go ahead against English Nature's advice, to demonstrate clearly how they have weighed the balance between differing interests. The 28-day period allows the conservation agency to consider whether it wishes to take any further action—for example, raising the matter with Ministers or the courts in some circumstances, who may determine whether or not to seek to dissuade the public body from proceeding. In certain circumstances, there may already be formal powers for the Secretary of State to intervene but, in general, that will not be the case.

Further safeguards exist in that, even after the procedures in Section 28H(4) and (5) have been gone through, the work must be carried out so as to cause as little damage as is reasonably practicable.

It is likely that many of the activities carried out by public bodies could constitute development, being consents granted under their own enabling legislation. In exceptional circumstances, a local planning authority, for example, may consider that planning control should apply to permitted development. It is open to the local planning authority to consider whether to pursue the matter by making a direction under Article 4 of the general development order, which can potentially remove the particular development right and require an application for planning permission.

Where the operation does not benefit from permitted development rights or consents granted by the public body, the public body will be subject to normal planning control and will have to submit a planning application. There are arrangements under Part IV of DoE Circular 18/84 to ensure that Crown bodies which are presently immune from planning control are also affected in that way. If the local planning authority objects to the proposal and the objections cannot be resolved through negotiation, the Crown body must refer the proposal to the Secretary of State for his determination. So in that context, there is effectively an in-built appeals procedure.

In most cases one would hope that the public body and English Nature would reach agreement. Where they do not, there is a time period for English Nature and the Welsh equivalent to decide how to take that further. To build in a new arbitration system with what are fairly draconian powers over public bodies which have been entrusted with other responsibilities different from those covered by this Bill is the wrong approach. I ask the noble Baroness not to press the amendment.

Baroness Miller of Chilthorne Domer

My Lords, there is something of an illusion that many of these activities would, after a period of time, result in satisfactory restoration of the sites. Certainly in Committee, I cited the example in Dorset of a local authority wanting to convert heathland, which is perhaps the most fragile of any habitat, into an urban parkland. I very much doubt that that would be restorable within decades, even if there were a will so to restore it.

I hear what the Minister says and I shall carefully read his reply in Hansard. I still believe that the advice that Article 4 can retrieve all those operations is wrong. I see that I am not likely to persuade the Government on this issue. I am sorry that we shall probably face a situation where agreements will fail to be reached in some circumstances. Eventually, those will probably have to go to judicial review rather than there being a mechanism which would have solved the problem more easily and earlier. But in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 202 not moved.]

Lord Whitty moved Amendment No. 203: Page 117, line 3, at end insert (", unless the Nature Conservancy Council have notified the authority that it need not wait until then.").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 207 and 208. The issue of consents or licences which may be granted by a public body—which the Bill refers to as a Section 28G authority—was raised in Committee by the noble Baroness, Lady Wilcox. Government Amendments Nos. 203, 207 and 209 seek to address those concerns.

As presently drafted, the Bill requires a public body to wait for 28 days before issuing its decision on an application for consent. That is to allow for consultation with the conservation agency. Amendment No. 203 will allow the public body to issue its decision at any time within the 28-day period, providing the agency confirms in writing that it need not wait.

Amendments Nos. 207 and 209 provide defences for offences under Section 28P(6) of intentionally or recklessly destroying or damaging SSSIs. Those will be particularly relevant as respects persons carrying out operations who are not owners or occupiers of an SSSI. Those defences are similar to those available to owners or occupiers of SSSIs. They will include situations where planning permission has been granted on an application for the works; where the works are urgently required; and where the works have been authorised by a Section 28G authority acting in accordance with the terms of Section 281, which will involve notification and so on.

I shall listen to the noble Baroness who, no doubt, will want to speak to Amendment No. 204. I beg to move.

Baroness Wilcox

My Lords, I thank the Minister for having listened and for returning with a good resolution to the amendment that I tabled at an earlier stage of the Bill. Amendments Nos. 207 and 209 will achieve the same effect as my Amendment No. 208 would have done. I was delighted to be able to withdraw it.

However, I want to speak to Amendment No. 204 and ask the Government to consider carefully the value of it. It is intended to reduce the bureaucratic workload that the Bill would generate. It enables the consultation procedures set out in Section 281 of the Bill to be focused on real problems, rather than blindly requiring consultation for all permissions affecting an SSSI, whether or not they pose a threat to wildlife. An earlier version of this amendment was met with initial approval in our debate on the Bill, but was ultimately rejected on the grounds that it referred to another part of the Bill that was directed specifically at owner-occupiers rather than statutory bodies.

That much-commended body of officers at the DETR have written in support of the view that the consultation procedure should be tailored to suit the features of each SSSI. They have proposed that administrative measures should be used for that, and that a memorandum of understanding should be agreed between the council and statutory bodies. The DETR suggests that that memorandum may, for example, exempt certain permissions from the consultation procedure.

I regret to inform your Lordships that the Bill in its current form provides no facility for such exemption from consultation. Although there is no obstacle in the Bill to the agreement of a memorandum of understanding, neither the statutory body nor the council could rely upon such a memorandum as a legal excuse from undertaking consultations demanded by the Bill. The memorandum would leave both the statutory body and the council vulnerable to legal challenge, making it, in effect, worthless.

Along with the Shellfish Association of Great Britain, the North Western and North Wales Sea Fisheries Committees, the worried cockle fishermen and other fishermen who earn their living on these estuaries, I have studied carefully the comments of the noble Lord, Lord Whitty, and the DETR on my original amendment, and I believe that Amendment No. 204 incorporates changes which overcome the objections to the original. I hope that the Minister will recognise that this is a pragmatic amendment that offers to streamline the administration of the Bill and to reduce its burden on public bodies without compromising the protection of wildlife.

Lord Whitty

My Lords, I have been informed of the particular concerns expressed by bodies such as the sea fisheries committees. Nevertheless, I hope that I can reassure the noble Baroness. It is part of the duty of the public body to ensure that the agency has an opportunity to comment on applications for permission, consent or licences where the activity is likely to damage the special features of an SSSI. It is also open to the agency to reach the kind of memorandum of understanding to which she refers. In certain circumstances we would wish to encourage that in terms of the correspondence from my department.

As the conservation agency by reaching an agreement with the public body has confirmed that the activity is not likely to damage the special interest, there would be no requirement to follow the procedures under new Section 281. There is therefore no need for an agreement to be specifically included in the legislation as a reasonable excuse because such an agreement would already have been confirmed by the conservation body and would be a reasonable excuse against prosecution. We do not believe that the noble Baroness's amendment is necessary and I hope that, with those reassurances, she and those in the sea fisheries sector who are concerned will take comfort from the albeit slightly more indirect protection which a memorandum would have. I assure her that that would be the position because of the implied agreement of the conservation body, which is already a signatory to the memorandum.

On Question, amendment agreed to.

[Amendment No. 204 not moved.]

10.15 p.m.

Lord Luke moved Amendment No. 205: Page 117, line 31, after ("them") insert ("to a condition Which existed at the time of the notification of the site under the 1981 Act or at any other time after such notification").

The noble Lord said: My Lords, the amendment develops Amendments Nos. 486A and 487B, which were discussed in Committee. It is still unclear where the baseline exists for deciding the condition to which an SSSI should be restored. The amendment specifies that it was the condition of the land at notification of the SSSI, or at a point in time after it, to which restoration should refer. It qualifies the reference to restoration in the reference setting out the contents of management schemes.

The amendment would prevent English Nature and the CCW insisting under a management notice that the site should be restored to some pristine condition in which it could have been at any time in the past. It would not prevent English Nature and the CCW al: any time negotiating a voluntary agreement with an owner or occupier to restore a site to any agreed condition.

The amendment would not affect the powers in relation to the restoration of an SSSI where a successful prosecution had been brought against someone who damaged it. In cases where an offence of damaging an SSSI under the Act has been proven, it is right to insist on restoration to the condition before the offence took place. I beg to move.

Baroness Young of Old Scone

My Lords, this is one of the most important amendments we are debating tonight and I want to speak firmly against it. Amendment No. 205 would condemn those SSSIs which are in an unfavourable condition at the time of notification to remaining in an unfavourable condition potentially for ever. Sixteen per cent of the SSSIs notified since 1998 were in an unfavourable condition at the time of notification. Forty per cent of our SSSIs are in an unfavourable condition and they are our few sites of national and international conservation importance. Frankly, the fact that we have sites in such condition is a national disgrace.

The sites require management action to restore to an adequate condition the features for which they were notified. It is not about a mythical state that existed at some point in the past or a notional baseline; it is a state defined by objective criteria for the individual features for which the site was notified. Perhaps a layman's explanation of those criteria needs to be provided for SSSI owners and occupiers so that they are not shrouded in mystery and appear to be less like longing for the Nirvana of a past age which is unobtainable by anybody. There is a simple way to describe "favourable condition" in relation to each of these features, and I hope that that is reassuring to owners and occupiers.

In the vast majority of cases management action can be obtained by voluntary agreement with owners and occupiers of SSSIs, with the support of advice and funding. In the very few sites where there is no voluntary agreement there are provisions in the Bill for a management scheme and, ultimately, a management notice to ensure that restoration to a favourable condition occurs. However, both of those would be accompanied by the provision of funding and technical support. There are provisions in the Bill for the proper hearing of appeals against management notices if owners and occupiers feel aggrieved. There are more than adequate safeguards against any concern that some kind of high-handed, unilateral action will be taken by blind statutory conservation organisations. I hope that the Minister will resist the amendment.

Earl Peel

My Lords, I have difficulty with the situation in which we find ourselves as a result of this amendment. I understand what the noble Baroness says and appreciate the aspirations of English Nature and any of the statutory bodies to enhance SSSIs. However, it seems rather harsh to insist that the land in question should be forcibly changed to a standard of management different from that which obtained on designation. The noble Baroness shakes her head, in which case I have obviously misunderstood.

Baroness Young of Old Scone

My Lords, it is rather strange that a site which is in an unfavourable condition should somehow remain in that state, as the noble Earl suggests. If all one is doing is setting in aspic its unfavourable conservation condition, which may be declining, it almost begs the question why the site was designated in the first place.

Earl Peel

My Lords, there is some misunderstanding. It is odd that a conservation body may ultimately resort to a management notice, which is a fairly draconian measure, to achieve better standards than existed when the site was designated. I have no objection whatever to the idea of English Nature or CCW entering into a wildlife enhancement scheme to try to improve the standard of a site, but it is perhaps a little unreasonable to use these draconian measures if the owner is against it. I am certain that the Government will reassure us that they hope these measures will be dealt with in an agreeable fashion without recourse to action at this level. I declare an interest as an SSSI owner. English Nature might tell me that it intended to designate the site because it had potential for improvement, and it could force that upon me even if I thought that it was not in my interests to do so. Perhaps I am being unreasonable, but I believe that my noble friend raises a point which is somewhat inequitable.

Lord Monro of Langholm

My Lords, perhaps the noble Baroness can intervene at some stage to deal with the following matter. Why have so many sites got into a bad state? Is it because English Nature has insufficient funds to make management agreements to keep the SSSIs up to the required standard, or is there a shortage of management to carry out the work? The onus seems to be on English Nature to indicate why these sites are in such poor shape and why it is not doing more to bring them back to where they should be.

Lord McIntosh of Haringey

My Lords, the answer to the last question is that for a number of years there has been reliance on voluntary agreements. Sometimes that voluntary agreement has worked and sometimes it has not. Conservation agencies have discussed site management statements or conservation plans with many owners and occupiers of SSSIs. They have often been able to agree on measures designed to bring the sites back into good health. My noble friend Lady Young is right that that must be English Nature's objective. It certainly is the Government's objective. That is called "favourable condition". I shall return to that because the noble Lord, Lord Luke, asked what is the baseline about which we are talking. Sometimes this process works, and sometimes it does not.

The Bill's provision for management schemes in new Section 28J represents a formal recognition of this voluntary process. It similarly includes requirements for consultation. Subsections (3) and (7) of new Section 28J provide extensive opportunities for the land manager to contribute his or her expertise, often based on his or her knowledge of the condition of the land over a number of years, in the process of establishing the most appropriate management for the site.

The management scheme—or any similar arrangements, agreed separately—will be a key feature in helping to combat neglect, which is often a factor on sites where the special features are not in good health, and in helping to change management practices which do not support the special interest. Where change is required, the agency would of course offer a management agreement if additional costs were involved.

The noble Lord, Lord Luke, asked what was the baseline; what is meant by a site being in "favourable condition"? There cannot be a general answer. One can only give an answer in the context of an individual site. It must be related to the conservation objectives for the site. The objectives identify the minimum standard of conservation management needed to maintain the special interest that justified the notification of the land as an SSSI in the first place. They will relate to specific features on a site, such as the habitat requirements of species, or the area and composition of habitats. "Favourable condition" is the standard against which the agencies measure whether SSSIs—our most special nature conservation sites—are in good health. There is one standard; there is no one favourable condition. There can only be a favourable condition for each site.

In considering the action that a management scheme may need to include to restore a site where the features are not in good health, the agency will have regard to the statement of views about the management of the site, which Section 28(4) of the Bill requires it to prepare when notifying a new SSSI, or within five years for existing SSSIs. The statement will have explained in broad and simple terms the kind of management which would best support the special features of the SSSI; in effect, a summary of the conservation objectives. But in drawing up a management scheme for the site as a whole, or for an individual landholding within it, the agency will look to integrate those conservation objectives with the owner or occupier's management plans for the land. The agencies will be looking for the most sustainable match which secures the best opportunities both for the land manager and for the conservation interest.

SSSIs can only be notified on the basis that they contain special features which justify notification, but not all of the features will necessarily be in good health at the time the site is notified. A number will have aspects that require remedial action. I believe it would be an unreasonable constraint to prevent management schemes from seeking to achieve this, and might significantly compromise our long-term objective of securing favourable condition for all SSSIs. As the noble Baroness, Lady Young, rightly said, if we cannot go back to favourable condition and seek to improve on the conditions which existed at notification then in many cases it is not worth actually notifying an SSSI.

I believe the agencies should be reasonable and realistic in their expectations. Clearly, long-term decline cannot necessarily be reversed overnight. Securing healthy sites, in favourable condition, may be a long process, for which the active co-operation of the owner or occupier is an essential pre-condition for success.

That is why I emphasise the value to the conservation agencies of taking account of the land manager's own objectives. There will of course be opportunities to challenge a scheme if anyone considers it to be unreasonable. There is an opportunity to make representations once a scheme is served. The agency must consider these and English Nature is drawing up internal arrangements to ensure that representations are given a wholly fresh examination. If a management notice must eventually be served requiring action to be taken, there is a right of appeal to the Secretary of State, who can consider the extent to which it is reasonable to expect the works listed in the notice—and the management scheme—to be carried out.

I accept that the agencies must be cautious about imposing unreasonable or inappropriate demands on land managers, but restricting their ability to seek to secure the restoration to good health of all SSSIs could be damaging. I hope that the amendment will not be pressed.

10.30 p.m.

Lord Luke

My Lords, we are to some extent going round in circles and I believe that there is something of a misunderstanding. I am sure I am right in saying that the SSSI scheme has been going for some 20 to 25 years. It would be reasonable to assume that during that period nearly all SSSIs have been well managed due to the management schemes that were put in place when they were notified at the time, and that there are probably very few indeed which require the restoration that may or may not be needed.

Baroness Young of Old Scone

My Lords, perhaps I may give two facts. First, 40 per cent of all our SSSIs are in an unfavourable condition and are showing no signs of improvement. Secondly, under the current legislation, until the Bill becomes an Act, if a landowner or occupier refuses to undertake a management plan, we ultimately have no statutory means of insisting that work to carry out improvements takes place. There is a serious problem. At the moment we have no mechanisms as a nation to resolve the problem if there is no ability to reach agreement.

Lord Luke

My Lords, I am most grateful to the noble Baroness. I am astonished to hear that such a large proportion of SSSIs, which were established some time ago, are not in a good state. I am in favour of them being restored to the condition that they were in, or better, when the notification took place 20 years ago.

Lord McIntosh of Haringey

My Lords, "or better". Those are the words.

Lord Luke

My Lords, "or better", under a voluntary agreement. The objective of the amendment is to stop any indication to a perhaps negligent owner who has not kept to the terms of the original agreement that he should restore the SSSI not only to what it was when there was a satisfactory agreement in place but going back to something that was never there in the original agreement. That is all I am talking about. I have no objection to getting back to the condition they should be in. I think that we are all on the same side. I shall withdraw the amendment but I should like to discuss the matter with the noble Baroness, Lady Young, to see whether we can sort out exactly where we are. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Luke moved Amendment No. 206: Page 118, line 22, at end insert— ("() Where a notice under subsection (3) has been given and is subsequently withdrawn, the Council shall reimburse any costs reasonably incurred by any of the persons mentioned in subsection (3) in making any representation or objection in relation to the notice.").

The noble Lord said: My Lords, this amendment should be a little less difficult. It is an established principle that where a statutory body commences any proceedings which lead to the person affected incurring costs in dealing with the proposal and the body then fails to proceed for whatever reason, the person affected is entitled to receive reimbursement of those costs from the body concerned. For example, the principle has been established in relation to compulsory purchases of land under Section 31 of the Land Compensation Act 1961.

The same principle should apply where a notice regarding a management scheme is not subsequently confirmed in relation to an owner or occupier who was notified and who reasonably incurred costs in handling and responding to the notice. Such costs could include those of attending meetings with English Nature or the Countryside Council for Wales or in seeking proper professional advice on the implications of the notice or in seeking professional assistance in preparing any representation or objection. I beg to move.

Lord McIntosh of Haringey

My Lords, in Committee the noble Lord, Lord Luke, and the noble Earl, Lord Caithness, referred us to Section 31 of the Land Compensation Act 1961. It is quite right that where a notice to treat following a compulsory purchase order is withdrawn the costs of the owner or occupier should be reimbursed. However, I do not think that this is a parallel situation. On a successful objection to a compulsory purchase order such that it is not confirmed, the costs of making the objection at a public inquiry follow the event; that is, an award of costs is made automatically. If a compulsory purchase order is confirmed, the acquiring authority then serves a notice to treat. The owner or occupier needs to take steps in response—for instance, terminating an operation or acquiring new property—which would be rendered abortive if the notice were withdrawn. Confirmation in such a case would take away from the objector some right or interest in land for which the legislation gives an explicit right to compensation.

In planning law, a revocation or discontinuance notice which prevents implementation of a previously granted planning permission or a stop notice requiring cessation of activities which do not have the benefit of planning permission and where enforcement notice proceedings are being taken are examples of analogous cases where compensation is payable and where costs would "follow the event if the notice was not confirmed on appeal. That could also arise under this Bill if an agency sought to withdraw an existing consent and its action was quashed following an appeal.

But this is not the case with a management scheme. A scheme would be the result of extensive consultation and discussion. It reflects, in statute, the conservation agencies' existing practices in agreeing site management statements and conservation plans, which land managers have welcomed and encouraged. The purpose of the scheme is to reach agreement on the preferred management of the conservation interest. This could include confirming activities which may take place or which have consent. It may be accompanied by a management agreement supporting positive management. It should therefore be of benefit to an owner or occupier, although it is quite possible that it could be withdrawn in favour of a voluntary agreement. It does not remove any rights and there is no entitlement to compensation.

A management scheme is by no means analogous to a compulsory purchase order, as the noble Lord, Lord Luke, appears to suggest. I hope that he will not press this amendment.

Lord Luke

My Lords, I am not terribly happy with that explanation. I believe that this is similar to a compulsory purchase order which has not been carried out. This concerns an outside agency which would come into an owner's private property. Obviously the owner would wish to secure the best possible advice as to how he should deal with it and thus costs will be incurred. If the whole procedure then goes through, everything will be taken care of but if, for whatever good reason, it is then stopped, it seems to me that it would be extremely unfair on the owner.

I should like to test the opinion of the House on this matter.

10.39 p.m.

On Question, Whether the said amendment (No. 206) shall be agreed to?

Their Lordships divided: Contents, 20; Not-Contents, 46.

Division No. 1
CONTENTS
Arran, E.	Luke, L. [Teller]
Brougham and Vaux, L.	Marlesford, L.
Buxton of Alsa, L.	Monro of Langholm, L.
Byford, B.	Monson, L.
Dixon-Smith, L. [Teller]	Montrose, D.
Elton, L.	Peel, E.
Glentoran, L.	Renton of Mount Harry, L.
Griffiths of Fforestfach, L.	Selborne, E.
Hodgson of Astley Abbotts, L.	Waldegrave of North Hill, L.
Hunt of Wirral, L.	Wilcox, B.
NOT-CONTENTS
Acton, L.	Howells of St. Davids, B.
Amos, B.	Hunt of Chesterton, L.
Archer of Sandwell, L.	Lea of Crondall, L.
Bach, L.	Macdonald of Tradeston, L.
Bassam of Brighton, L.	McIntosh of Haringey, L. [Teller]
Billingham, B.
Borrie, L.	MacKenzie of Culkein, L.
Brooke of Alverthorpe, L.	Maddock, B.
Carlile of Berriew, L.	Miller of Chilthorne Domer, B.
Carter, L. [Teller]	Ponsonby of Shulbrede, L.
Clarke of Hampstead, L.	Ramsay of Cartvale, B.
Evans of Watford, L.	Rendell of Babergh, B.
Farrington of Ribbleton, B.	Rennard, L.
Filkin, L.	Simon, V.
Gibson of Market Rasen, B.	Stone of Blackheath, L.
Gilbert, L.	Thornton, B.
Greaves, L.	Warner, L.
Hamwee, B.	Warwick of Undercliffe, B.
Hardy of Wath, L.	Wedderburn of Charlton, L.
Harris of Haringey, L.	Whitaker, B.
	Whitty, L.
Harrison, L.	Williamson of Horton, L.
Haskel, L.	Woolmer of Leeds, L.
Hayman, B.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

10.49 p.m.

[Amendment No. 206A not moved.]

Lord McIntosh of Haringey moved Amendment No. 207: Page 122, line 25, at end insert ("without reasonable excuse").

On Question, amendment agreed to.

[Amendment No. 208 had been withdrawn from the Marshalled List.]

Lord McIntosh of Haringey moved Amendment No. 209: Page 122, line 34, at end insert— ("() It is a reasonable excuse in any event for a person to do what is mentioned in subsection (6) if—

1. (a) paragraph (a) or (b) of subsection (4) is satisfied in relation to what was done (reading references there to an operation as references to the destruction, damage or disturbance referred to in subsection (6)), and
2. (b) where appropriate, subsection (5) is also satisfied, reading the reference there to an operation in the same way.").

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendments Nos. 210 and 211: Page 123, line 23, at end insert—

("Byelaws.

28R.—(1) The Nature Conservancy Council may make byelaws for the protection of a site of special scientific interest.

(2) The following provisions of the 1949 Act apply in relation to byelaws under this section as they apply in relation to byelaws under section 20 of that Act—

1. (a) subsections (2) and (3) of section 20 (reading references there to nature reserves as references to sites of special scientific interest); and
2. (b) sections 106 and 107.").

Page 124, line 25, at end insert— ("(1B) Byelaws made by virtue of section 28R may apply to Crown land if the appropriate authority consents.").

On Question, amendments agreed to.

Schedule 10 [Consequential amendments relating to sites of special scientific interest]:

Baroness Byford moved Amendment No. 211A: Page 126, leave out lines 9 to 12.

The noble Baroness said: My Lords, this amendment speaks for itself. We on these Benches are asking the Government whether they wish to continue to include these three lines in the 1981 Act. In the light of our feelings on the matter, we feel that they should not be included at this stage of the Bill. I beg to move.

Baroness Miller of Chilthorne Domer

My Lords, the noble Baroness says that the amendment speaks for itself. I do not wish to delay the House, but I wonder whether she could interpret it for me. I have read through the amendment, but I am not familiar with the details of the Act to which it refers. Perhaps the noble Baroness could expand upon her explanation.

Lord McIntosh of Haringey

My Lords, perhaps I may try to do so. The amendment has the effect of retaining references to English legislation in the 1981 Act. This Bill applies only to England and Wales, whereas the 1981 Act also applies to Scotland. The Bill inserts into the 1981 Act a new Section 28, which will apply in England and Wales. Paragraph 1(2) of Schedule 10 merely deletes references in the original Section 28, which will be retained in Scotland, where these refer only to England and Wales, as these references will be obsolete. References to these matters have been carried forward for England and Wales in the new Sections 28 to 28Q, set out in Schedule 9 to the Bill. Therefore, what we have done is intentional.

Baroness Byford

My Lords, I am grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 11 [Transitional provisions and savings relating to sites of special scientific interest]:

Baroness Farrington of Ribbleton moved Amendment No. 212: Page 128, line 24, at end insert ("and "stop notice" has the meaning given by paragraph 9(3) of this Schedule").

The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 213 to 216 and 262A. Amendments Nos. 212 and 216 are technical amendments to Schedule 11. They set out the transitional arrangements for SSSIs and relate to procedures for service of a stop notice. Amendment No. 212 defines the term "stop notice" for the purposes of the schedule. Amendment No. 216 applies the conservation agencies' powers of entry in Section 71 of the 1981 Act so as to enable them to, determine whether or not to give or vary a stop notice". The amendment also applies to Schedule 11 generally the procedures for service of notices, which already apply to Part II of the 1981 Act.

Amendments Nos. 213, 214 and 215 clarify the time limits for an owner or occupier to make representations on the statement made by the conservation agencies of views about the management of the land. The owner/occupier is notified of the date, not being less than three months, on or before which he may make representations about the proposed statement. The agency then has a further two months to consider any representations and confirm or revise its statement of views.

Amendment No. 262 clarifies the timing of commencement of the transitional provisions set out in Schedule 11; namely, that they come into force two months after Royal Assent, along with the other SSSI provisions of this Bill. I beg to move.

On Question, amendment agreed to.

Baroness Farrington of Ribbleton moved Amendments Nos. 213 to 216: Page 129, line 9, leave out ("time") and insert ("date"). Page 129, line 10, leave out ("within") and insert ("on or before"). Page 129, line 13, leave out ("period of three months") and insert ("date"). Page 133, line 16, at end insert—

("Powers of entry

21. Section 51 (powers of entry) has effect on and after the substitution date as if, in subsection (1), after paragraph (1) there were inserted— (m) to determine whether or not to give or vary a stop notice;".