HC Deb 14 June 2000 vol 351 cc1029-36
Mr. Mullin

I beg to move amendment No. 281, in page 81, line 16, leave out from "functions" to end of line 17 and insert— 'so far as their exercise is likely to affect the flora, fauna or geological or physiographical features by reason of which a site of special scientific interest is of special interest.'.

Mr. Deputy Speaker

With this it will be convenient to discuss the following amendments: No. 48, in page 81, line 17, at end insert— 'and in relation to land not included in a site of special scientific interest where the exercise of its functions would affect such land.'. No. 49, in page 81, line 41, after "functions,", insert— 'any operation specified in a notification made under section 28(1) and any'. No. 94, in page 81, line 41, leave out "operations likely to" and insert— 'any operation specified in a notification made under section 28(1)(b) or which may'.

Mr. Mullin

Government amendment No. 281 imposes a duty on public bodies in exercising their functions to take reasonable steps, consistent with the proper exercise of those functions, to further the conservation and enhancement of special features of the SSSI.

Amendment No. 48, tabled by the hon. Members for Somerton and Frome (Mr. Heath) and for Carshalton and Wallington (Mr. Brake), would achieve the same effect, and we ask that they do not press it.

Mr. David Heath

I am most grateful to the Minister for his response to amendment No. 48. I agree with him that Government amendment No. 281 deals with the issue that I sought to address. I am grateful for the fact that he has listened to what we have had to say.

Amendment No. 49 deals with a slightly different issue. It would ensure that all operations carried out by section 28E authorities listed on the notification of the SSSI as well as those that, in the opinion of the agency, are likely to cause damage are first referred to English Nature or the Countryside Council for Wales. The Minister will remember that we discussed the matter in Committee. He stated that the Bill already caught operations listed on the notification as, by implication, they will be operations that might damage the SSSI. However, that misses the point slightly. There is no duty on section 28E authorities to inform the council if, in their view, the operation is not likely to damage the site. The point is that there is a difference between section 28E authorities and what is required of private landowners. It begs the question whether those authorities are in a better position to judge what may be damaging to an SSSI than a private individual. I see no inherent reason why they should be. It seems better that there should be a safeguard that requires the nature conservation bodies to be aware of what is to be done and enables them to give appropriate advice, or take appropriate action if need be. That is what my amendment would provide.

Mr. Green

I wish to speak to amendment No. 94, but all the amendments are pointing in the same direction. We are grateful that the Government are moving along with those of us who have sought to equalise an imbalance between the obligations that the Bill places on private landowners and those that it places on public bodies. That was a matter of some debate in Committee. We argued strongly that private landowners were treated unfairly as compared with public bodies—those laid out in new section 28E in schedule 8. Our amendments would restore that balance.

The thought behind our amendment and other amendments is that schedule 8 should be tightened up considerably to ensure a number of things. It should ensure that the duty on public bodies to further the conservation of SSSIs applies to activities that public bodies may undertake not on the site but in an area that will affect the site. The most common example used is off-site abstraction of water by water companies. Clearly, sources of water are important. I am sympathetic to the argument advanced by the hon. Member for Somerton and Frome (Mr. Heath) that, on a separate issue, English Nature or the Countryside Council for Wales should be consulted and informed if public bodies are planning potentially damaging operations, just as they would expect to be consulted if private landowners intended to do something potentially damaging.

Another point covered by the group of amendments is that there should be restoration orders for offences by public bodies, including their operations away from SSSIs. Those various loopholes were subject to amendment in Committee. I am glad that the Government have acknowledged the general, genuine concern. If it is addressed properly, it will alleviate one of the Bill's remaining unfairnesses.

Amendment agreed to.

Amendments made: No. 216, in page 84, line 30, leave out— 'terms appearing to them to be reasonable' and insert "reasonable terms"

. No. 282, in page 84, line 51, after "land" insert— ',and any other land,'. No. 217, in page 87, line 6, leave out— 'terms appearing to them to be reasonable' and insert "reasonable terms".[Mr. Pope.]

Mr. Meacher

I beg to move amendment No. 283, in page 87, line 47, at beginning insert "subject to subsection (4A),".

Mr. Deputy Speaker

With this it Will be convenient to discuss the following: Government amendments Nos. 284 to 286.

Amendment No. 50, in page 88, line 5, after "interest", insert— 'or the habitats or species upon which the notified interest depends in so far as such destruction or damage is likely to be significant in relation to the interest notified under section 28(1).'. Amendment No. 51, in page 88, line 5, at end insert— '( ) intentionally or recklessly disturbs any of the flora, fauna or geological or physiographical features by reason of which land is of special interest, in so far as such disturbance is likely to be significant in relation to the notification under section 28(1).'. Government amendment No. 287.

Amendment No. 138, in page 88, leave out lines 18 to 20.

Amendment No. 137, in page 88, line 22, at end insert—

'(10) Where an offence under any provision of this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(11) Where the affairs of a body corporate are managed by its members, subsection (10) above shall apply in relation to the acts or defaults of a member in connection with his functions of management as if he were a director of the body corporate.'.

Government amendments Nos. 288 and 289.

Amendment No. 52, in page 88, line 38, at end insert— '(2A) Subsection (1) applies even if the operation in respect of which a person is convicted of an offence under section 28M(2) or (3) did not take place on land included in a site of special scientific interest.'. Government amendments Nos. 277 to 280.

Mr. Meacher

Government amendments Nos. 283 to 285 relate to the question of a defence against prosecution for failure to follow procedures in section 28C of the Wildlife and Countryside Act 1981, as amended in schedule 8: notifying and obtaining the consent of the Nature Conservancy Council when proposing to carry out operations that are likely to damage the special interest in circumstances where those operations have received the permission or authorisation of a public body. A similar issue was debated in Committee, which I promised to consider. I have done so and the amendments are the result. They tackle a similar question, but we have approached it from a different angle.

Where a public body has issued a consent for works after fully involving the conservation agency, as required under section 28G, it is wholly appropriate that the recipient should be able to proceed with the activity without delay. We have already acknowledged in section 28M(4) that a planning permission will constitute a reasonable excuse to carry out the operation authorised by it. Indeed, that has been so for many years. Amendments Nos. 283 and 284 cover a section 28G consent, but amendment No. 285 ensures that, where both a planning permission and the permission of a section 28E authority are required, there is no reasonable excuse or defence if work commences before both have been obtained.

On Government amendment No. 286, I undertook in Committee to re-examine the effectiveness and proportionality of offences under section 28M(5) in relation to damage of the special features of SSSIs, but I emphasised that we did not want to create disproportionate offences. I remind the House that section 28M(5) introduces a wholly new offence to apply when any person intentionally or recklessly damages or destroys the special interest feature of an SSSI. That is intended primarily to catch third parties, with the proviso that they should be aware that the land is notified as an SSSI. In response to revisiting the offence, Government amendment No. 286 and consequential Government No. 287 seek to extend the offence to include intentional or reckless disturbance of fauna.

8.15 pm

Government amendments Nos. 288 and 289 would extend the courts' powers to order restoration of an SSSI. We discussed the issue of restoration extensively in Committee. I emphasised strong support for the general principle that damage should be subject to reinstatement. I confirmed that I would look further at whether a restoration order could be made in other circumstances—where the damaging activity has taken place on land that is not within the SSSI.

The provisions already allow the courts to order restoration where the damaging operation takes place on the SSSI. The amendments extend that to damaging operations away from the SSSI that nevertheless have an effect on the special features. In such circumstances, there may he a requirement for restoration either within or both within and outside the SSSI in order to restore the special features. I think that that meets the wishes expressed in Committee, and I ask, for that reason, that amendment No. 52 should not be pressed to a vote.

Government amendments Nos. 277 and 278 affect the exercise of powers of entry by conservation agencies. That is a sensitive issue. I am sorry that the hon. Member for Mid-Sussex (Mr. Soames) is not present to hear me register my appreciation of his anguish over it. We heard in Committee examples of insensitive exercise of powers of entry to private land—I am speaking somewhat euphemistically; I cannot imitate the hon. Gentleman's purple prose—by other public bodies.

No examples—I checked this—have been brought to my attention of any insensitivity on the part of the conservation agencies, but we of course expect them, as we do any public body, to behave with propriety and, wherever possible, to act with the agreement of the owner or occupier of any land in which they have a statutory interest.

Government amendments Nos. 277 and 278 address the issue of a landlocked SSSI—where there is no access to it by routes that are open to the public. Other public bodies exercising powers of entry are able to enter adjoining land on the sole basis that it is necessary to do so in order to get to the landlocked land and carry out their functions. Government amendment No. 277 delivers that, and Government amendment No. 278 makes a minor technical amendment.

Government amendments Nos. 279 and 280 address some of the concerns expressed. It is difficult—I said this in Committee—to conceive of a body that is charged with the conservation of the natural environment causing damage in entering land, but should it inadvertently do so, it is of course wholly appropriate that the agency should compensate any person who has sustained damage. It may also be necessary to emphasise that land should be left as secure following entry as it was previously.

I hope that what I have just said demonstrates that amendment No. 137—my hon. Friend the Member for Croydon, Central (Mr. Davies), who tabled it, is present-is unnecessary. There should be no question of corporate bodies seeking to evade their responsibilities, either collectively or individually. I hope that, with that assurance, my hon. Friend will feel able not to press his amendment to a vote.

On amendment No. 138, I cannot accept that the decision on whether to prosecute should be removed from the hands of the statutory nature conservation advisers. Their posts have been specifically established to carry out nature conservation functions on behalf of the Government. They have specific powers and duties in relation to SSSIs, including the identification and notification of sites, the granting or withholding of consent for operations likely to damage the features and the preparation of, and support for, management schemes that will identify how best to maintain the features that make the site special. If they have those functions, they should also have the means of enforcement. I should add that other persons may prosecute, providing that the consent of the Director of Public Prosecutions has been obtained. Again, I hope that, on that basis, my hon. Friend the Member for Croydon, Central will not press his amendment to a vote.

Amendment No. 51 applies intentional or reckless disturbance to the general offence where it is significant in relation to the special interest feature. This applies disturbance more widely than the Government amendment, but qualifies the offence with a test of significance. How is the assessment of significance to be made?

Perhaps I am being a little cheeky when I say that I remember having lengthy discussions in Committee about what we meant by predominantly". Now the boot is on the other foot. Perhaps I will be told what is meant by "significant". The Government's approach to disturbance will be more readily enforceable, and more robust, than a test of significance in wider circumstances.

Amendment No. 50 may be based on a misapprehension about the SSSI citations—that is, the lists of the fauna or flora or geological or physiographical features, by reason of which the site is of special interest. The Bill includes a provision for the conservation agencies to amend the details of notification, including the list of features by reason of which the site is of special interest. I give an assurance that I will encourage English Nature to look carefully at any citations that do not fully reflect the features of interest on the SSSI, to ensure that they are appropriately updated, with the necessary opportunity for consultation, so that they fully reflect, and protect, the scientific importance of the site. On those grounds, I hope that the hon. Member for Somerton and Frome (Mr. Heath) will not press the amendment.

I apologise for speaking at such length, but I hope that I have explained the Government amendments and our position on the others.

Mr. David Heath

As the right hon. Gentleman said, I tabled amendments Nos. 50, 51 and 52. I acknowledge that amendment No. 51 is largely covered by Government amendments Nos. 286 and 287, for which I am grateful, and that amendment No. 52 is largely covered by Government amendments Nos. 288 and 289, for which I am equally grateful.

That leaves only amendment No. 50 to be discussed. As the right hon. Gentleman said, it refers to a test of significance. Why is the test of significance there? It is simply because the right hon. Gentleman told me in Committee that the amendment that I had tabled previously was insufficiently specific and would catch too many people. Because of the test of effectiveness and proportionality that he required, I introduced that qualification. However, the Minister and I are clearly working to the same ends, and I do not intend to press the amendment.

Mr. Geraint Davies (Croydon, Central)

I am reassured by my right hon. Friend the Minister, but for the record I shall set out the basic arguments.

Amendment No. 137 would bring the Bill into line with the Environmental Protection Act 1990 and make company directors, not just companies, personally liable for offences. According to the Department, more than 3,000 English and Welsh SSSIs are partially or wholly owned by commercial operations, and many more are subject to the actions of corporations such as utility companies. Company directors would take their responsibilities towards SSSIs more seriously if they were personally liable. Under other environmental legislation, where offences are committed directors are subject to legal redress.

There are case studies, including one on the acid spill in the Tees estuary in 1999. A massive spill of acid polluted Greenabella marsh, which is a roosting site for over-wintering birds and a habitat for seals. The company responsible for the chemicals is now subject to legal action by the Environment Agency. Individual directors would also be subject to action.

Had the damage occurred not as a result of pollution but as a result of mismanagement such as ploughing or building, directors would not be liable. In the case of SSSIs, directors may be less likely to consider the implications of breaking the law if they were not personally accountable. Ultimately, it is an empirical question whether there are disparities in the behaviour of companies. I have been reassured by my right hon. Friend that the Bill's provisions are sufficient and that my amendment may not be necessary. I shall keep an eye on the situation.

The purpose of amendment No. 138 was to bring SSSI prosecutions in line with species offences. In the case of such offences, prosecutions can be taken by the wildlife agencies or by third parties, with the consent of the Crown Prosecution Service. The Law Commission recommended in its 1998 report "Consents to Prosecutions" that such consents should be abolished.

Some 45 per cent. of England's 4,000 SSSIs are in an unfavourable condition, and every year hundreds suffer loss and damage. According to the information available to me, English Nature has taken only one prosecution for an SSSI offence—in May 1997—and papers were laid before the courts in four other cases. English Nature may be unwilling to take prosecutions from the wildlife agencies, which have been anxious to build positive, not punitive, relationships with landowners. There is a danger, therefore, that neglect of SSSIs could become commonplace. The proof of the pudding is in the eating, and I am reassured by my right hon. Friend's words.

Mr. Meacher

I believe that my hon. Friend is reaching the end of his comments and may helpfully ask leave to withdraw the amendment. Before he does so—if he does so—may I say that he is right: neglect is the major problem with SSSIs, but damage is done by commercial and other interests. I assure my hon. Friend that section 69 of the Wildlife and Countryside Act 1981 already applies a provision in relation to offences by bodies corporate in virtually the same terms as his amendment No. 137. That will apply in relation to offences under new section 28A.

What my hon. Friend seeks to achieve is already in statute. I support his view that there are insufficient prosecutions, although the number is gradually increasing, and that where convictions are secured, the penalties are not adequate to provide an effective deterrent. I support my hon. Friend, but the objective is already covered by existing statute.

Mr. Davies

I thank my right hon. Friend for that helpful intervention. Other parties should have the right to take a prosecution where the wildlife agencies fail to do so. Although they have the teeth, the question is whether they will bite. I hope that we will keep a monitoring brief. When public attention is focused by the enactment of the Bill, I hope that the wildlife agencies will act through the courts to bring offenders to justice. If not, we can return to the matter. I beg to ask leave to withdraw the amendment.

Mr. Deputy Speaker

Order. There is no need for the hon. Gentleman to withdraw, because at the head of the group is a Government amendment.

Amendment agreed to.

Amendments made: No. 284, in page 87, line 49, after "1990" insert— 'or permitted by a section 28E authority which has acted in accordance with section 28G'. No. 285, in page 87, line 54, at end insert— '(4A) If an operation needs both a planning permission and the permission of a section 28E authority, subsection (4)(a) does not provide reasonable excuse unless both have been obtained.' No. 286, in page 88, line 5, after "interest," insert— 'or intentionally or recklessly disturbs any of those fauna.'. No. 287, in page 88, line 6, leave out "or damaged lay" and insert— ', damaged or disturbed was'. No. 288, in page 88, line 33, leave out— 'the land on which it was carried out' and insert— 'a site of special scientific interest'. No. 289, in page 88, line 37, leave out from "operations" to end of line 38 and insert— '(whether on land included in the site of special scientific interest or not) as may be so specified for the purpose of restoring the site of special scientific interest to its former condition."'. No. 290, in page 89, line 11, at end insert— '.In section 67 of the 1981 Act (application to Crown), after subsection (1) there is inserted— (1A) An interest in Crown land, other than one held by or on behalf of the Crown, may be acquired under section 28L, but only with the consent of the appropriate authority."".—[Mr. Meacher.

Forward to