HL Deb 11 October 2000 vol 617 cc464-96 1. In each provision specified in relation to each of the Acts set out below, for "the Nature Conservancy Council for England" or, as the case may be, "Nature Conservancy Council for England" there is substituted "English Nature"—
  1. (a) the National Parks and Access to the Countryside Act 1949: section 15A (meaning of "Nature Conservancy Council");
  2. (b) the Sea Fisheries Regulation Act 1966: in section 5A (byelaws under section 5 for marine environmental purposes), subsection (3)(a);
  3. (c) the Countryside Act 1968
    1. (i) in section 15 (areas of special scientific interest), subsection (6A), and
    2. (ii) section 37 (protection for interests in countryside);
  4. (d) the Conservation of Seals Act 1970: in section 10 (power to grant licences to kill or take seals), subsection (5);
  5. (e) the Import of Live Fish (England and Wales) Act 1980: in section 1 (power to limit the import etc. of fish and fish eggs), subsection (2);
  6. (f) the Highways Act 1980: in section 105B (procedure relating to environmental impact assessments), in subsection (8), paragraph (b) of the definition of "the consultation bodies";
  7. (g) the Animal Health Act 1981: in section 21 (destruction of wild life on infection other than rabies), subsection (9);
  8. (h) the Wildlife and Countryside Act 1981
    1. (i) in section 27 (interpretation of Part I), subsection (3A),
    2. (ii) in section 27A (construction of references to Nature Conservancy Council), paragraph (a), and
    3. (iii) in section 52 (interpretation of Part II), subsection (1);
  9. (i) the Inheritance Tax Act 1984: Schedule 3 (bodies receiving gifts for national purposes etc.);
  10. (j) the Agriculture Act 1986: in section 18 (designation and management of environmentally sensitive areas), subsection (2)(a);
  11. (k) the Channel Tunnel Act 1987
    1. (i) in Schedule 2, Part II (regulation of scheduled works), paragraph 5(3), and
    2. (ii) in Schedule 3 (planning permission), paragraph 17(4)(a);
  12. (l) the Norfolk and Suffolk Broads Act 1988
    1. (i) in section 1 (the Broads Authority), subsection (3)(b),
    2. (ii) in section 4 (conservation of areas of natural beauty), subsections (3)(a) and (5)(a),
    3. (iii) in section 5 (notification of certain operations within the Broads), subsection (4), and
    4. (iv) in Schedule 3 (functions of Broads Authority), paragraph 33(1)(c);
  13. (m) the Electricity Act 1989: in Schedule 9 (preservation of amenities and fisheries), paragraph 2(2)(a);
  14. (n) the Environmental Protection Act 1990
    1. (i) in section 36 (grant of waste management licences), subsection (7), and
    2. 465
    3. (ii) in section 128 (creation and constitution of the Nature Conservancy Council for England and the Countryside Council for Wales), subsections (1) and (2)(a);
  15. (o) the Deer Act 1991: in section 8 (licences for exemptions from sections 2 to 4 of the Act), subsections (1) and (4);
  16. (p) the Water Industry Act 1991
    1. (i) in section 4 (environmental duties with respect to sites of special interest), subsections (1) and (4),
    2. (ii) in section 5 (codes of practice with respect to environmental and recreational duties), subsection (4)(b), and
    3. (iii) in section 156 (restrictions on disposals of land), subsection (4)(c)(i);
  17. (q) the Land Drainage Act 1991
    1. (i) in section 61C (duties with respect to sites of special scientific interest), subsections (1) and (4), and
    2. (ii) in section 61E (codes of practice), subsection (4)(b);
  18. (r) the Transport and Works Act 1992: in section 6 (applications for orders relating to railways, tramways, inland waterways, etc.), subsection (7)(e);
  19. (s) the Protection of Badgers Act 1992: in section 10 (licences to do otherwise prohibited acts relating to badgers), subsection (4)(a);
  20. (t) the Environment Act 1995
    1. (i) in section 8 (environmental duties with respect to sites of special interest), subsections (1) and (4),
    2. (ii) in section 9 (codes of practice with respect to environmental and recreational duties), subsection (3)(b),
    3. (iii) in section 66 (national park management plans), subsection (7)(a), and
    4. (iv) in section 99 (consultation required before making or modifying certain subordinate legislation for England), subsection (2)(c);
  21. (u) the Channel Tunnel Rail Link Act 1996
    1. (i) in Schedule 6 (planning conditions), paragraph 27(4), and
    2. (ii) in Schedule 14 (overhead lines: consent), paragraph 7(4); and
  22. (v) the Greater London Authority Act 1999: in section 352 (the Mayor's biodiversity action plan), subsection (3)(a).
2. In the following enactments, the entry for the Nature Conservancy Council for England is omitted, and in the appropriate place there is inserted "English Nature"—
  1. (a) the Public Records Act 1958: in Schedule 1 (definition of public records), Part II of the Table in paragraph 3;
  2. (b) the Superannuation Act 1965: in section 39 (meaning of "public office"), paragraph 7 of subsection (1); and
  3. (c) the Parliamentary Commissioner Act 1967: Schedule 2 (departments etc. subject to investigation).
3. In Part III of Schedule 1 to the House of Commons Disqualification Act 1975 (which sets out offices the holders of which are disqualified from membership of the House of Commons), the entry for "Any member of the Nature Conservancy Council for England or the Countryside Council for Wales in receipt of remuneration" is omitted, and in the appropriate places there are inserted the following two entries—

On Question, amendment agreed to.

Schedule 8 [Sites of special scientific interest]:

Lord Glentoran moved Amendment No. 457B: Page 90, line 27, after ("opinion") insert ("as adduced by a person of recognised land management qualifications and expertise").

The noble Lord said: After the serious problem which my noble friend had with her amendment and the smart way in which the Minister quickly got out of it, let us move on to something concerning people.

In moving Amendment No. 457B, I wish to speak also to Amendment No. 458. It is the experience of some in the conservation field that those employed by the NCC as officers who undertake these assessment tasks, are not necessarily expert in the specific field. We feel that it would be more appropriate and probably cheaper for outside exerts to be used on an ad hoc basis. Furthermore, the initial assessment of a site for SSSI purposes or continuing monitoring should be by someone with specific expertise in flora, fauna, geology or geomorphology of that type exhibited in the SSSI. Following the previous discussion concerning these different sciences, the amendment seems very reasonable and sensible.

Amendment No. 458 seeks to amend new Section 28(3) enabling external scientific views to be sought by English Nature or the Countryside Council for Wales in considering confirmation. The amendment seeks assurances that English Nature or the Countryside Council for Wales will ensure that the best possible advice is available to them on issues or questions raised by owners and occupiers who object to notifications. While there is tremendous scientific expertise within the two organisations, English Nature and CCW, they do not pretend to have the monopoly of wisdom on all habitats or species. Questions about the scientific merits of notification may arise. Where English Nature or CCW consider that it would be helpful to seek advice from external experts—for example, academics or other natural reserve managers—they should do so. That will help to add credibility to the responses made by English Nature and the Countryside Council for Wales to owners and occupiers.

Three amendments are proposed in this group. They concern the removal of references to "enhancement" and "restoration". The basic aim of the amendments is to ensure that owners and occupiers of SSSIs can simply be required to conserve SSSIs, not to enhance or restore them. There is a concern that the Government are, by the back door, opening up the prospect that owners could be required to enhance or restore SSSIs at their own cost. That has never been part of the SSSI system before, which has simply required owners to conserve—that includes not to damage—SSSIs. Enhancement, where sought, has always been secured through management agreements, where the extra costs beyond conservation are covered by English Nature or the Countryside Council for Wales. It is stressed that the amendments would not in any way interfere with the provisions of Schedule 8 relating to restoration of SSSIs after they have suffered criminal damage.

Amendment No. 458A provides for English Nature and the Countryside Council for Wales to produce statements about management—

The Earl of Caithness

I thank my noble friend for giving way. I thought that we were dealing with Amendment No. 457B. My noble friend has now gone on to deal with Amendment No. 458A, which is the beginning of a different group.

Lord Glentoran

I apologise. I beg to move.

Baroness Nicol

It is my understanding that the Countryside Council for Wales and English Nature already have the power to go outside for advice when needed. I therefore wonder why this amendment has been tabled.

The Earl of Caithness

How nice to see the noble Baroness on her feet. The two of us have been discussing this issue for many years past. I fear that a good many of our arguments on Monday and today will be almost a replica of what we discussed in 1981. The crux of a sensible SSSI is the trust between the landowner and those affected by the SSSI and English Nature. If the system is to work properly, that trust is an integral and key part. But there is no reference in the new powers of English Nature to it consulting the owners and occupiers before making a decision. That is the whole point of Amendment No. 459.

In another place on 13th June the right honourable Mr Meacher said how important it is to consult the owners and occupiers and those whose economy depends on the land on which the site lies. Why is there not something in the Bill to that effect? Similarly, when it comes to Amendment No. 460, we have the position that English Nature is prosecutor, judge, jury and defence in its own cause. The landowner has no recourse to any other body and English Nature is not required to present the results of its consideration of any appeal. That is defying natural justice. It is just an open confirmation of the Government's dislike of owners and occupiers, which has become increasingly apparent as the Bill has been discussed.

Baroness Young of Old Scone

Perhaps I may seek clarification on the intention behind Amendment No. 457B, which refers to, a person of recognised land management qualifications and expertise". Notification of SSSIs takes place on the basis of the special interest of the site in terms of its flora, faunaand—I hate to use the words—geological or physiographical features.

Having dealt with the "icals" I shall now turn to the "ists". It seems to me that a person of, recognised land management qualifications and expertise", may not possess exactly the right skills needed to identify a site due to its flora, fauna, geological or physiographical features. I am sure that many land managers may have a passing interest in physiography, but I would not expect them to be experts. The skills required in that circumstance are those related to nature conservation, in particular ecological, biological and geological skills. As I have said, I am a little confused by Amendment No. 457B.

Lord Glentoran

Perhaps I may respond to the noble Baroness. My amendment states specifically that the responsibility should be taken on by someone with specific expertise in the flora, fauna, geology or geomorphology of the type exhibited in the SSSI. The whole purpose of the amendment is to ensure that the person making the assessment should be someone with the specific and particular expertise that is required for that site.

Baroness Young of Old Scone

My understanding of Amendment No. 457B is that it specifies, as adduced by a person of recognised land management qualifications and expertise". That is why I am confused here. Most of the land management qualifications acquired these days would not necessarily require people to be experts in geology or to be conversant with the ecological and biological issues surrounding the flora and fauna.

Lord Glentoran

Perhaps I may help the noble Baroness. We are discussing here the selection of the person. What we are saying is that, a person of recognised land management qualifications and expertise", would recognise that there would be a need to employ a specialist in the field.

Lord McIntosh of Haringey

I do not think that the amendment does that, but I shall return to that point later.

These amendments concern the notification of an SSSI, which includes a statement from the conservation agency of its view as to the management of the land. They seek to ensure that people are consulted, that expert views are taken and objections responded to. I hope that I have represented the amendments fairly. We support those sentiments, but I believe that I can demonstrate that they do not need to be enshrined in law.

I shall turn first to Amendment No. 457B. The notification of an SSSI takes account of selection criteria published by the Joint Nature Conservation Committee. The justification for notification turns on a scientific judgment about the special features of a site. The agency is under a duty to notify the land if it considers that it is special by reason of the features on that land. The staff of English Nature are well qualified to make an assessment of whether a site is of special interest and I see no reason to restrict the qualification as suggested by the amendment which, as my noble friend Lady Young pointed out, refers only to, as adduced by a person of recognised land management qualifications and expertise". Requiring the decision to be taken by someone who is an expert in land management would overlook the need to involve ecologists, geologists, biologists and other specialists. There is nothing wrong with land management expertise, but it covers only one aspect of a range of specialties.

Amendment No. 458 is unnecessary because it is always open to the agency to take advice from another party if the relevant scientific expertise or experience is not available within the agency. That point was made entirely clear by my noble friend Lady Nicol.

As regards Amendment No. 459, it may not be appropriate in every case for discussions to be undertaken prior to notification of the land—for example, there may be a specific and imminent threat to the site and immediate notification may be essential. It would be quite inappropriate to introduce procedures which would allow damage to take place before a site could be notified. Noble Lords may recall a similar loophole in relation to the provisions originally included in the 1981 Act. Because of that loophole, it was necessary to produce an amending provision in 1985. Of course, in most cases where there is no specific and imminent threat, the agency will have entered into what it terms "pre-notification discussions" with owners and occupiers before the notification is served. They will then have had an opportunity to provide early views.

Subject to this, however, the views set out in the notification will be the views of the conservation agency, reached with the benefit of a wealth of experience and expertise, not only as advised by its staff but as considered by the members of its council. The views presented to the council will be drawn together by agency staff experienced in conservation management, but they will also be able to seek specialist advice where particularly difficult or technical issues arise, and will encourage them to do so wherever this is necessary.

Finally, turning Amendment No. 460, the notification of an SSSI includes an opportunity for representations to be made on any part of the package, including the statement of views on the management of the land. That is in Clause 28(3). The conservation agency is statutorily required to consider those views. Where it takes a decision after considering the views of owners and occupiers of land directly affected, it would be expected to give reasons for its decision, clearly demonstrating that the decision is proportionate and defensible. We would expect the agencies to follow this example and to explain to owners and occupiers, where this is the case, the reasons that it feels unable to amend or withdraw the notification. I hate to suggest it in the current climate of the law, but if they did not do so there is always the risk of judicial review.

11.15 p.m.

Earl Peel

Before the noble Lord sits down, perhaps I may take him back, very briefly, to Amendment No. 459. This is a very important amendment. As my noble friend Lord Caithness said, the relationship between the owners and the occupiers and the conservation agencies is very important and very special. It is a relationship that has been built up over the years and has, on the whole, worked extremely well.

I should be quite concerned if most land managers did not have the opportunity of being involved in a management statement that was being drawn up on their land. The noble Lord, Lord McIntosh, made the point—it is a valid one—that in special cases that would not be appropriate. Will the Minister consider coming back with an amendment on Report which would divide those two circumstances? Such an amendment would provide confirmation that, where possible, the land manager would be involved, and would differentiate between that situation and the situation where it was inappropriate for him to be involved because the conservation agency had to act as a matter of emergency.

Baroness Young of Old Scone

Perhaps I can help the noble Lord on a point of current procedure. It is true that in the majority of cases English Nature does consult at the pre-notification stage. It is only on the very rare occasion when there is a real threat to a site that that does not happen. But the whole process is amply surrounded by consultative processes and opportunities for landowners to comment. So even on the very rare occasion when a notification is made without consultation with the land- owner in difficult circumstances where there might be damage to a site, there is an opportunity for the landowner to comment at a stage after the notification has been served and before the confirmation is made. It is not that land owners have been locked out of this process; it is simply a matter of timing and when they are brought into the consultation.

The Earl of Caithness

If that is common practice and common courtesy at the moment, why can it not be on the face of the Bill? That would be incredibly reassuring to owners and occupiers of land.

The noble Lord, Lord McIntosh of Haringey, is overlooking the question of trust. It is all very well to say that there are lots of experts at English Nature—there might be. Equally, the landowner might have experts who take a totally contrary view. It would be quite wrong for this Bill to proceed and become an Act without there being a requirement on the face of the Bill for English Nature—except in exceptional circumstances—to consult the owners and occupiers of land.

Lord McIntosh of Haringey

These provisions have been in existence for almost 20 years. When they were originally written in the form that the amendment would provide—in other words, that there had to be consultation before notification—that did not work, and they had to be rewritten in 1985. If anyone can write to us citing specific examples where trust has broken down between a landowner and English Nature because of a lack of consultation in advance, we shall reconsider the matter. But I do not believe that that is the case. I believe, as I said originally and as the noble Baroness, Lady Young, confirmed, that in the vast majority of cases the agency does enter into pre-notification discussions. I am not aware of any difficulties. The amendment is unacceptable because it would re-open a loophole which had to be closed 15 years ago. I am not prepared to do anything at present other than to say that, if any difficulty were to be identified in correspondence—we are not aware of any—we should be prepared to cover it in guidance to the agency.

The Earl of Caithness

The noble Lord has answered the point with regard to the amendment. He has not answered my point about the possibility of refining the amendment so that a requirement for consultation, save in exceptional circumstances, is written on the face of the Bill. That is different from the 1981 Act, and it is a step forward. It takes us up to the position as it was remedied in the 1985 Act.

Lord McIntosh of Haringey

First, that would be an invitation to have recourse to the courts, as only the courts can decide what are "exceptional circumstances". Secondly, show me that it is necessary. No one is showing me that there is a problem and that such a provision is necessary.

Lord Glentoran

This has been a somewhat disjointed discussion. I do not think that I was out of order at the beginning, with all due respect to my noble friend Lord Caithness. On this side of the Committee we are not totally happy with the explanations. However, the two key points have been well made. At this stage, we shall read Hansard and re-think the matter. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 457C to 458ZA not moved.]

The Earl of Caithness moved Amendment No. 458A: Page 91, line 1, leave out ("and enhancement").

The noble Earl said: Again, there has been a total "mess up" in the groupings. This amendment is grouped with Amendment No. 457B. It is also the start of the next group, with a totally different subject. I should like to move this amendment, to which my noble friend Lord Glentoran started to speak! I hope that my noble friend will talk again on this important subject.

We have here another example of the Government trying to change the law—this time rather surreptitiously—and weight the current situation more against the landlord and the occupier of land. Let us be clear about this. It is a deliberate rather than surreptitious attempt by the Government to impose further burdens on landowners and occupiers of land when it comes to SSSIs.

Under the current law there is no requirement for a landlord to enhance an SSSI. If there were, it would be clearly stated on the face of the Bill. This is a slightly duplicitous way of ensuring that this extra requirement on a landlord is on the face of the Bill.

Should the provision go through into law, it is clear what would happen. English Nature would think that an SSSI needed to be enhanced; it would say so in a management agreement; and the landlord would be forced to meet the extra costs involved. Who would decide what was right in terms of an SSSI being enhanced or restored? What discussion would take place? The matter is fraught with difficulties and should be re-examined. It is an area where a lot of trust that has developed in the past and been built up could quite easily be shattered by an arrogant attitude on the part of one of the conservation authorities. I beg to move.

Baroness Byford

The reason that this difficulty has arisen is due to the fact that Amendment No. 458A appeared grouped with the previous set of amendments. That was an error. That is why my noble friend was mentioned in that respect. In other words, the amendment appears twice on the groupings list in that it is also grouped with Amendments Nos. 457B, 458, 459 and 460. As I said, that is a mistake and the amendment should only be listed in this group, containing Amendments 486A and 487B. I hope that that clarifies the situation.

The amendments tabled in my name and that of my noble friend deal with the question of enhancement. It is not a case of our being against enhancement but, if landowners are required to enhance their land, there must be requisite cash payments to go with it. It is not unreasonable to expect a land manager to conserve the features of an SSSI, but to ask him to enhance the land without a financial agreement is too much. Therefore, I support my noble friend's very good introduction to Amendment No. 458A.

I turn now to the remaining two amendments in this group. Amendment No. 486A deals with the removal of the provision for a management scheme set out in provisions for restoring SSSIs. Although it is reasonable for management schemes to set out the management required for conserving the features of an SSSI, it is not reasonable to require management to restore SSSIs. However, if it is, the Government need to indicate to the Committee at what stage that restoration should start. It would seem illogical to ask a landowner, for example, to restore a site to perhaps 1949 conditions, or whatever. But if we are talking about much more up-to-date times, this is perhaps acceptable.

There is a practical objection here. There is nothing in the Bill to state where any bench-mark would lie for assessing what "restoration" might be required. For example, should the site be restored to its condition on notification—which is one matter—or to its condition at any other time, assuming that there is some reliable information available on its connection with either date? Alternatively, is the restoration to be carried out to the state to which English Nature—

Baroness Miller of Chilthorne Domer

To enable me to understand fully what she is explaining, I wonder whether the noble Baroness could include in her remarks how this fits in with her earlier amendment that related to the Secretary of State requiring any person to enhance or restore any site where that appeared necessary.

Baroness Byford

I am afraid that, at the end of the day, this takes us back to the question of money. I do not have that amendment to hand at the moment, but I believe that the noble Baroness is talking about the biodiversity group of amendments.

Clearly the argument that both my noble friend and I are advancing is that to expect people to restore or enhance their land without giving any financial support is asking more than should be expected of landowners. Therefore, I do not have a difficulty with either of those issues because they both come back to the question of money in support of these schemes. That is what I am trying to convey. I must apologise to the noble Baroness. It is getting late, and I am probably not quite as clear in my delivery as I was when we started today.

We are talking about the requirement that an owner should be asked to improve or restore the land to a level at which it was not originally and, in fact, to enhance it. Unless some financial support is forthcoming, we believe that is an unreasonable imposition on land managers. As I say, it is not clear what bench-mark is established with regard to the conditions under which an SSSI should be restored. It is surely reasonable to be told those conditions prior to notification.

Previous amendments have argued that management schemes should not provide for SSSIs to be restored but simply conserved. To require private owners to restore SSSIs—even provided that a reasonable bench-mark condition for restoration could be established—would amount to an undue, inequitable and unjustifiable burden on owners and occupiers. As I said clearly initially, we are not against the measure but it should not impose an extra financial burden on landowners.

11.30 p.m.

Lord Rotherwick

As a land manager and owner of an SSSI I have had some interesting discussions with English Nature. I enjoy participating in those discussions. English Nature suggested that we restore the SSSI to the condition it was nearly 100 years ago. The area is an ancient forest. Over a century ago cattle would have grazed underneath the trees. However, an Act of Parliament was passed to stop that activity because of the damage that resulted to the SSSI. That seems to us justification for not returning the site to its former state.

I refer to the position of the landowner or land manager vis-à-vis English Nature. In the case I am discussing I believe that the landowner or land manager should not have to restore the site. The landowner has the quiet enjoyment of the land. If English Nature had insisted that we restored the site to its state of 100 years ago, we would not have that quiet enjoyment of the land. I believe that it is not just a matter of ensuring that English Nature provides funding for any restoration of SSSIs but also that English Nature should compensate the landowner for loss of enjoyment of the land.

I do not wish to cause controversy here as I have a good relationship with English Nature. However, it would be a sad day if more draconian management measures were imposed on landowners and many of them lost the incentive to care for the land as the majority of them do.

Earl Peel

I refer to Amendment No. 458A and the whole question of enhancement of land. I take a slightly different line from that of some of my noble friends. I welcome the opportunity to enhance SSSIs. That is a laudable objective. I go so far as to say that many of the biodiversity action plan proposals would not be achievable if we did not enhance sites of special scientific interest.

However, my noble friend Lady Byford is absolutely right to say that at the end of the day we return to the matter of finance. I cannot believe for one moment that the Government intend to invite owners of SSSIs to enhance their land without proper compensation being provided. Such compensation is only fair and just. My knowledge of the Bill is not sufficient for me to give a definitive answer. I cannot believe that that will be so. I welcome the opportunities for enhancing SSSIs wherever possible.

Amendment No. 487B relates to restoration. I believe that restoration is perfectly reasonable and right for any conservation agency to demand if wilful damage can be shown. But as noble Lords have said, we have to be extremely careful. Traditional operations on these sites could create damage without the owner realising it. It comes back to the question of sensitivity and the relationships between the conservation agencies and the owners. From my experience of English Nature I cannot believe that such a situation is likely to arise.

The Bill is unclear on how restoration will be dealt with. The issue has to be dealt with delicately. I seek confirmation from the Minister that if traditional land uses were responsible for degradation of a site, clearly the countryside agencies would deal with it with the necessary tact and care.

Baroness Young of Old Scone

Perhaps I may outline some of the good relationships between English Nature and landowners on restoration of land. That 40 per cent of our SSSIs are in unfavourable condition and show no signs of improving is a dreadful statistic. It would almost rip out the heart of the Bill if it did not address that appalling statistic.

In many cases at present landowners voluntarily enter into agreements with English Nature for restoration processes. English Nature is delighted to be able to help with funding where appropriate. I do not believe that the position would be significantly different in the future. The question of restoration is fundamental to the Bill. It involves discussion with landowners and agreements about the management required. The financial guidelines and guidance will set out in detail how such agreements should be reached, what will happen if agreements cannot be reached, how sums of money will be agreed and what will happen if they cannot be agreed. There is a clear and formal process, with people able to resolve difficulties about management action over restoration and the recognition that if heroic action is required it is essential that financial help is given.

Earl Peel

The noble Baroness said that 40 per cent of SSSIs were being damaged. I am sure she will acknowledge that the root cause of that damage is the somewhat unsatisfactory common agricultural policy.

Baroness Young of Old Scone

The noble Earl is correct that many of the reasons underlying the unsatisfactory condition of SSSIs relate to the common agricultural policy. I can give a list of about 20 other policies which are wreaking their worst.

Let us not use the word "damage" because in many cases SSSIs are not damaged. They are in unfavourable condition as a result of lack of appropriate management. In many cases management schemes may not be appropriate. The current informal arrangements with landowners through management agreements and wildlife enhancement schemes may be the most appropriate way forward. The more stringent requirements of management schemes and management notices are intended to be used where there is some difficulty about reaching agreement with landowners.

The noble Baroness, Lady Byford, raised the issue of a baseline with regard to restoration. An SSSI is notified for its special interest features. If those features are in an unfavourable condition at the time of notification, a commitment is made to get them into a favourable conservation condition. There will be no carte blanche. We will not be trying to get land back to the condition that it was in in, say, 1930 or 1825. Nobody is trying to recreate Constable landscapes or Hardy country. The provisions relate clearly to the condition of the specific features for which the area has been designated. The objective is strictly defined and restricted.

Baroness Miller of Chilthorne Domer

We would not be happy for the amendments to be carried. The statutory underpinning of the biodiversity action plan, which features in a later amendment tabled by the noble Baroness, Lady Byford, would become unaffordable if money was to be the bottom line in the enhancement and restoration of sites. These amendments contradict the aims of that statutory underpinning, which does not seem to have the financial bottom line that the noble Baroness has just implied that these amendments have. If that is the underlying idea, any statutory underpinning of biodiversity would be unaffordable and almost impossible to achieve.

Lord Whitty

I am amazed at the debate. The idea that we should not have a reference to enhancement when 40 per cent of SSSIs are in a deteriorating condition is amazing. Those who purport to represent those with an interest in SSSIs are being paranoid about the implications.

Lord Rotherwick

I hope that the Minister does not misunderstand us. Most of us commit a large percentage of our income to the enhancement, restoration and maintenance of our landscape. However, more than 22,000 people in the agricultural sector will lose their job this year, on top of more than 20,000 who lost their job last year. We are inhibited from doing all that we want to do by lack of funding. Most of us are already involved in schemes such as countryside stewardship and do our utmost to enhance the land. We are behind the idea, but we are frightened of being forced into something that we cannot control or finance.

Lord Whitty

This is pushing the situation. I get irritated by this and at this stage of the night I am entitled to express my irritation. Some people engaging in the debate have a direct financial interest in these matters. They are taking the opportunity to exaggerate the implications of what is only a notification procedure. It is a ludicrous exaggeration to say that it will cause unemployment in the agricultural sector.

The provisions are about notification. That must include the need for enhancement and restoration. It does not of itself impose any additional liability on the occupiers or owners. That is covered in the management scheme, as my noble friend Lady Young of Old Scone has said. The payments under any management agreement will identify the necessary actions. There are financial guidelines for that. They will include the costs arising to the land manager from the operations that are required under the agreement. The idea that landowners are threatened with huge new costs when we are only asking for SSSIs to be maintained in a reasonable condition and kept in the condition agreed when they were first identified as SSSIs is a distortion of the situation.

It is hoped that amicable agreements can be reached between the conservation agencies and the landowners. However, I do not believe that the situation is helped by spreading despondency among landowners by suggesting that that will impose a huge new cost on them. That is not the case. It is not the case under the current procedure and it will not be the case under this Bill. However, on the other hand, landowners have a clear responsibility to co-operate and reach agreements with English Nature and the Countryside Council for Wales.

I apologise for being slightly irate at this point. I believe that the debate has been distorted. Although the noble Baroness moved her amendment in a reasonable manner, I believe that part of the motivation behind her being requested to table it was not reasonable.

11.45 p.m.

Earl Peel

Perhaps I may try to put the noble Lord's mind at rest. I do not believe that there was anything behind this matter other than to try to establish whether enhancement—a word which has considerable ramifications—would be dealt with in a fair and equitable way. The noble Lord went on about landowners. However, let us also remember that many small farmers will be affected by this legislation. When they hear about English Nature being involved in enhancement schemes, they are bound to become concerned.

I listened carefully to what the Minister said and I am extremely grateful for the confirmation that he gave us.

Baroness Young of Old Scone

Perhaps the noble Earl will take heed of the encouraging discussions that we are having at present with a number of small farmers, particularly in the uplands. When they are poised on the brink of financial unviability as a result of the extremely serious situation in agriculture in the uplands, quite often the sight of English Nature coming over the horizon with a cheque in its hand is what keeps them from the wall. They are delighted to see us. It is in the spirit of the future of agriculture that farmers are diversifying into a whole variety of functions. Small farmers in particular are earning a living from a range of sources, some of which are in agricultural production but many of which are involved in the enhancement of conservation of the landscape for the future.

Earl Peel

I fully acknowledge what the noble Baroness says. Hill farmers have been kept going not only by schemes with which English Nature is involved but by various conservation schemes. The noble Baroness is absolutely right. However, the simple point that I wanted to make was that we are moving away from conserving to conserving and enhancing. That is a worrying concept, and I wanted to obtain confirmation from the Minister that no financial implications were involved. He explained the situation extremely well and I am most grateful to him. I am sure that we will be assured by what he said.

Baroness Byford

I thank the Minister. Unfortunately there was some confusion and this matter got off to a rather bad start. Upon reflection, the Minister may feel that he was mistaken in suggesting that my noble friends had not declared an interest. They said quite clearly that they have an interest. When the Minister looks at Hansard tomorrow, he will see that they referred to that. I believe that that is where the confusion lies. I declare that I have—

Lord Rotherwick

I have stated on a number of occasions that I am a land manager and owner. I want to add that this issue does not benefit us financially in any way. Where funds are received to help us in our management, they only help to subsidise what in many ways we are already doing.

Lord McIntosh of Haringey

I remind Members of the Committee that the Companion states that where there is an interest which is direct, pecuniary and shared by few others, noble Lords should exercise extreme caution in the contributions that they make to debate.

Baroness Byford

I thank the Minister for clarifying that. If it was not quite as correct as it should have been, I can only apologise. Certainly, speaking from the Dispatch Box I can say that we have land; none of it is SSSI land. There is no way I can benefit from it. I sometimes wish that we had SSSI land. We are riot so lucky.

All Members of the Committee will be extremely grateful for the contribution made by the noble Baroness, Lady Young of Old Scone. There has been understandable concern—and she will understand it because she deals with it all the time—on the part of those who manage land. They believe that the Bill asks extra of them. Earlier, the noble Baroness, Lady Miller, said that she found my position extraordinary, although she may not have used that word. I wish to set out how these things will be possible, whether in relation to this set of amendments or the very important amendments to be discussed on Monday.

At the end of the day, this will not all happen out of thin air. Those matters have to be financed. Therefore, I wanted to clarify the present position in relation to what English Nature and other organisations are expecting of those people who have SSSIs within their brief.

The Earl of Caithness

Perhaps I may remind the noble Lord, Lord Whitty, before he becomes thoroughly cross with me, that I have no direct interest or any indirect financial interest at all in this. It is some years since I was a land agent but I have talked to people in the profession and fellow surveyors.

I was grateful for what the Minister said. I was grateful too for what the noble Baroness, Lady Young of Old Scone, said. I should have been much happier if the Minister had said what the noble Baroness said. That would certainly have carried more weight in the Official Report.

But there are two points to make. There is a change in the law. The Minister is wrong to say that the law has not changed. There is a definite change from the 1981 Act. As I recall that Act, there is no requirement to enhance SSSIs. I am sorry if I did not make it clear when I spoke originally. I am in favour of enhancing SSSIs but the point which I perhaps did not bring out as clearly as I should have done is that I am concerned about the financial implications for the owners and occupiers of the land.

If the law is changing so that it imposes this extra duty on landowners, why is it not clearer under the Bill? Why is not included with the other obligations in the new Section 28E?

Lord Whitty

We are dealing here with notification. I should say that I accept what the noble Earl says about his own interest and I am grateful to him for clarifying that. I did not say that there was not any change in the law. I said that no direct liability arises from that change in the notification procedure. That is what is being dealt with here, whereas the later section deals with other matters in relation to the management of the SSSIs rather than the notification procedure as such.

The Earl of Caithness

But if the notification procedure comes within Section 28E—and it gives a list of authorities—surely the owners should be included in that. That makes it much clearer.

Lord Whitty

Section 28E refer to public bodies, which have a responsibility for enhancement. That is written into Section 28E.

The Earl of Caithness

I shall read with great care what the Minister said and reserve the right to return to this matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 459 and 460 not moved.]

Baroness Miller of Chilthorne Domer moved Amendment No. 461: Page 91, line 29, at end insert— ("(9A) The Council shall establish and maintain a list of sites of special scientific interest which shall contain such information as is prescribed by the Secretary of State.").

The noble Baroness said: The purpose of this group of amendments is to establish a full list of sites of special scientific interest, including associated information, and to require owners and occupiers to inform the nature conservation agencies of changes of ownership.

The noble Lord, Lord Bridges, referred to Schedule 8 as having draconian powers. It has strong powers for good reason. However, now that the schedules associated with SSSIs have such powers, it is right that the information as to who owns them, when they change hands, which public bodies own them is apparent. The public at large should have access to information regarding areas that are notified as SSSIs.

Amendment No. 461 would establish an up-to-date list of all notified land and include information to enable anyone to see what is required of them in relation to an SSSI. There are approximately 23,000 owners and occupiers of SSSIs in England and around 5,000 in Wales.

Lord Bridges

I thank the noble Baroness for giving way. The draconian powers to which I referred are not in this part of the schedule. They are in the denotification procedure in Section 28C(6). That is what I shall speak to when we reach that point. I did not refer to the matter about which the noble Baroness is speaking.

Baroness Miller of Chilthorne Domer

I apologise to the noble Lord. Nevertheless, with the enhanced powers under the Bill, it will be important for people to know what are SSSIs and what are not. The Bill needs to be clear about that.

Amendment No. 470 would make it a requirement that any owner or occupier must inform the statutory nature conservation agencies when they sell, transfer or otherwise dispose of land within an SSSI. That would enable the agencies to maintain an up-to-date list and to approach the new owner to talk about site management. That is equally important to ensure that potential owners are aware of the sort of responsibilities they are taking on and are able to discuss management agreements at an early stage.

Amendment No. 498 would make the failure to inform the agencies under this section an offence. In the final analysis, it would be easy to ensure that the list is up to date and as full as possible. I beg to move.

Lord McIntosh of Haringey

If it is convenient for the Committee, I should like first to speak to the government amendment in this group and then to the other amendments.

Amendment No. 499 adds another section to Schedule 8; that is, Section 28N. It sets out a clear procedure for ensuring that the conservation agencies are notified in writing when the ownership or occupation of an SSSI changes. It addresses concerns expressed by farmers and landowners that information about notification of SSSIs is not always readily available to new purchasers. Many recognise how important it is that discussion about management of notified land takes place at an early stage. The amendment places the duty to inform the agency on the owner when disposing of any of his or her interest in the land or when he or she becomes aware that it is occupied by an additional or different occupier. There have been instances in the past where a new landowner or occupier has carried out damaging operations in ignorance of the fact that the land was an SSSI. As well as being concerned to protect the SSSI, this amendment also seeks to protect the interests of a new owner or occupier and means that the conservation agency will be able to contact new owners or occupiers, explain the details associated with the notification and discuss the management of the site.

While prospective purchasers should in fact identify an SSSI notification in a pre-purchase search, by virtue of the obligatory local land charge entry, there have been cases where it has been alleged that this has not happened. Also, an occupier, or short-term licensee, may not carry out such formal investigations and this amendment seeks to address that situation. Because we believe it to be important that the agency is fully informed, we have provided for an offence of not complying with the provision without reasonable excuse, but we have set the level of fine proportionately at level 1; that is, only £200.

Amendments Nos. 470 and 498 address the same issue, but they differ. Amendment No. 470 places the duty on both the owner and the occupier to notify the conservation agency. I see no reason to extend the duty beyond the owner, who holds the superior interest and will therefore be more appropriately responsible for notifying any change of occupier. Amendment No. 498 imposes a penalty of up to £1,000 and makes the offence indictable where the owner or occupier fails to notify the conservation agency. I believe we should keep the penalty proportionate to the offence and level 1, as proposed in the government amendment, is more suitable.

I turn back to Amendment No. 461 proposed by the noble Baroness, Lady Miller. The amendment would require the conservation agencies to maintain a list of SSSIs, containing information prescribed by the Secretary of State. The Government are fully committed to greater openness about SSSIs and the new provision requiring that new SSSI notifications should be published in a local newspaper helps fulfil that commitment. We have also stated in our public consultation paper on the draft SSSI code of guidance that we will expect English Nature to make information readily available, in a variety of formats, on the extent and location of SSSIs and the reasons they are considered special. However, I am not convinced that this should be subject to a statutory requirement.

Of course, the fact that land is notified as an SSSI should be recorded on the local land charges register. Steps are already being taken by English Nature. For instance, it is already publishing both the citation—the description of the features which are special—and the digital boundaries of SSSIs on its web site, which is, after all, publication of a list. Checking its website, or requesting further details from English Nature about a specific site, is a simple next step enabling anyone to discover the status of a site. I am not clear what the existence of a "list" would add to that.

We should also exercise some caution and consider where there are special interest features that are particularly fragile or rare or endangered species. If there is a perceived risk or threat, the agencies must have some discretion as to whether information about those sites should be readily available. We had disputes in Europe with the habitats directive when it was originally said that a list of all the sites should be made available. But it was recognised in due course that for particularly vulnerable sites it was not a good idea to make them public. On that basis I hope that the noble Baroness will not press her amendment.


Baroness Miller of Chilthorne Domer

I thank the Minister for that response. If his intention is eventually to create a full national list, I suggest Amendment No. 499 will take a long time to come into effect. The land will have to have changed hands for that to happen. But I hear the Minister's reply and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 462: Page 91, leave out lines 30 to 33.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 463: Page 91, line 34, leave out second ("and") and insert ("to").

The noble Lord said: Amendments Nos. 463 to 465 may look rather daunting. However, their intent is simple. It is to allow the conservation agencies to make adjustments to SSSIs in the light of new information or further knowledge.

Amendment No. 464 seeks to enable the conservation agencies to rationalise existing SSSIs by making essentially minor extensions to them. The amendment is not open-ended. It provides that the power can only be used where the additional land is adjacent to the SSSI and where it can be combined with that SSSI to form an area of land of SSSI quality by the reason of the flora and fauna of the original SSSI. In other words, if we tried to use this provision to make major extensions, we would inevitably be changing the character of the SSSI and it would not work. Existing owners and occupiers of the SSSI are not affected. But the owners of the adjacent land are given full rights to make representations or objections.

Amendment No. 465 enables the conservation agencies to enlarge the area of an SSSI in rather wider terms to Amendment No. 464 but there are additional safeguards. The amendment provides that where the conservation agencies consider that an area of land together with an existing SSSI forms a larger area which is of SSSI quality, it may establish a new SSSI for the whole area. This is so even if the flora, fauna and special features of the combined area are different from those of the original SSSI. However, the conservation agencies will be required to give notice to all the owners and occupiers of the combined area, so the owners and occupiers of the original SSSI will be notified. All owners and occupiers are given the right to make representations and objections as though the area is a new SSSI. Therefore, no one is being deprived of his normal rights under Section 28.

In relation to a boundary amendment to reduce the area of land covered by the notification, the agency would use the de-notification procedures in new Section 28B of Schedule 8, which may be applied to all or part of a site. It is common sense for the agencies to be able to make these changes. Notifying adjacent land as a separate SSSI could lead to confusion for all concerned. However, we have also sought to protect the interests of owners and occupiers of the land by making sure that the agency must notify the relevant people and by providing those persons with the opportunity to make representations about the changes. Any representations which are not subsequently withdrawn would be considered by the agency's council before the notification is confirmed. I beg to move.

The Earl of Caithness

I have two brief questions to ask the Minister. Why in Amendment No. 464 is the present landowner not consulted, yet a neighbouring landowner would be consulted? As my noble friend the Duke of Montrose pointed out earlier, adjacent land is affected by an SSSI so why is it necessary to have Amendment No. 464? The noble Lord, Lord McIntosh, earlier asked me to give evidence to support my request so perhaps I may ask the same of him. What evidence does he have that English Nature requires this power?

Lord McIntosh of Haringey

The answer to the noble Earl's first question is that by definition Amendment No. 464 cannot change the characteristics of the existing SSSI. Therefore, there can be no legal obligation to consult the owners of the existing SSSI. There will be no change in the regime that applies to them.

As regards his second question about examples, English Nature advises us that there are occasions when the SSSI will be improved without being changed by addition of a modest amount of adjacent land.

Baroness Young of Old Scone

Perhaps I may help by giving an example of that last point. If, for example, a riverine SSSI is notified and eventually confirmed, as many as 400 owners and occupiers can be involved. That will be subject to the length of the river and the fact that small parts of people's land are contiguous to it.

If any change to the boundary of an SSSI is required there must be a process of going back to all 400 landowners, even though they might be 20 miles away down the river. That would be the case even to take only a small parcel of land which was omitted on the first occasion because there was insufficient information about its quality or because, frankly, people got it wrong.

The proposal is put forward in order to try to take the burden off landowners. We want to avoid anyone who is not discommoded by an extension having to read through the whole consultation process again. Therefore, I hope that the proposal will be seen as positive rather than negative.

Lord Bridges

As the noble Lord, Lord McIntosh of Haringey, referred to new Section 28C perhaps this is a convenient moment to express my anxieties about the present drafting. The problem, which does not arise directly as a result of any particular amendment, concerns the withdrawal of a notice of consent. The Shellfish Association of Great Britain has alerted me to a difficulty which may arise in the area where I live. I do not own a fishery and shellfish disagree with me. However, that activity takes place on the river surrounding the place where I live, and I am somewhat concerned by the provision as presently drafted.

The village of Orford in which I live was a medieval port. In the 13th century Henry III gave the then Borough of Orford a charter in which he conveyed to it the rights of several fishery. Orford became a rotten borough in the 18th century. It was disfranchised under the Great Reform Bill and, under the subsequent Municipal Corporations Act, its assets were transferred to a town trust, which continues to this day. The trust controls the fishery in a serious way and is registered with the Charity Commissioners. It employs a bailiff and a committee deals with the fishery. That committee meets twice a year to receive a report from the bailiff. As far as I know, its affairs are carried on very properly.

However, it is possible that English Nature may, for some reason, become concerned about the fishery. If so, the procedure to be followed worries me. New Section 28C(6) provides that the council may withdraw the consent or modify it in any way. An appeal against that decision is to the Secretary of State. I very much hope that that will not happen, but if it does I question whether that is the right way for the appeal to be referred. I would have thought it more appropriate for the rights conveyed under a royal charter granted 650 years ago to be referred to a court rather than the Secretary of State.

The Secretary of State has a close relationship with the agency since he funds it and appoints its members. In those circumstances, I do not believe that the Secretary of State has the right degree of independence to make a withdrawal of such a fundamental right. I do not expect the Minister to be able to answer this question completely today, but I should be grateful if he would give it attention, possibly with a view to slight amendment at a later stage. This is a matter of natural justice in the context of a long-standing right.

Lord McIntosh of Haringey

We try to anticipate, as far as possible, questions that may arise from amendments. When they do not do so it is a little more difficult to deal with. I hope that the noble Lord, Lord Bridges, will allow me to write to him on this matter.

The Duke of Montrose

I am grateful to hear the response of the Minister to Amendment No. 465. I believe that I am now a little wiser on the subject than I was. The Minister said that, under Amendment No. 465, if an SSSI was extended its nature might be changed and owners would be notified. Does it mean that all the existing management agreements would fall and fresh ones would have to be introduced to cover the stipulations in the new SSSI?

Lord McIntosh of Haringey

It is most unlikely that the change we anticipate in Amendment No. 465 will necessitate the renegotiation of management agreements. However, if it did so, in the light of the principles of natural justice I am sure that it would be possible to find a way to do that.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 463A: Page 92, line 17, 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 Earl said: In moving Amendment No. 463A I should like to speak also to Amendment No. 487A. I hope that both noble Lords opposite have received calls to join the English cricket side; they are better at defence than the team appears to be. So far they have said "no" to everything that we have put to them today.

Lord McIntosh of Haringey

In the course of proceedings at Committee stage we have been criticised by the noble Baroness, Lady Byford, for being too receptive and running the risk of an overextended Report stage.

Baroness Byford

I should like to put the record straight. When Members of the Committee are not in the Chamber at the right moment sometimes there is misunderstanding. I am grateful for what Ministers have tried to do. However, I said earlier that if noble Lords opposite accepted our amendments the Report stage would be even shorter. However, I suggest that we move on.

Lord McIntosh of Haringey

Or much worse!

The Earl of Caithness

I hope that on this occasion the Minister will just be able to say, yes. I know that the noble Lord has beside his bed Section 31 of the Land Compensation Act 1961, in particular the section on withdrawal of notices to treat. It is common justice and an established principle that, where a statutory body serves a notice and commences proceedings and then withdraws, compensation should be available. That is the purport of the amendment. I beg to move.

12.15 a.m.

Lord Whitty

Despite the indication of my noble friend Lord McIntosh of our generosity, I do not think that this is standard practice. My understanding of what occurs in planning procedures, which is a parallel situation, is that there would be no reimbursement of costs in connection with making representations or opposing notifications. The costs of an application or of objecting to a planning application are not paid. Possibly we are at cross-purposes.

In terms of land management, there was an argument about the costs which might apply in relation to making substantive changes to the SSSI. But in terms of making applications, I do not think that is standard practice. In this context management schemes, although a new statutory provision, are in essence confirmation of existing management statements on conservation. So I do not think that a new situation arises. There is currently no provision for reimbursement and there is no case for providing any in the future. I hope the noble Lord will not pursue the amendment.

The Earl of Caithness

There are precedents. Certainly the Land Compensation Act is one. I will seek further advice and return to this at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendments Nos. 464 and 465: Page 92, line 23, at end insert—

("Notification of additional land.

28AA.—(1) Where the Nature Conservancy Council are of the opinion that if land adjacent to a site of special scientific interest ("the extra land") were combined with the site of special scientific interest ("the SSSI"), the combined area of land would be of special interest by reason of any of its flora, fauna, or geological or physiographical features, the Council may decide to notify that fact. (2) If they do so decide, the persons whom they must notify are—

  1. (a) the local planning authority in whose area the extra land is situated;
  2. (b) every owner and occupier of any of that extra land; and
  3. (c) the Secretary of State.

(3) No such notification may be given until after notice has been given under section 28(5)(b) confirming (with or without modifications) the notification under section 28(1) relating to the SSSI.

(4) Subsections (2) and (3) of section 28 shall apply for t he purposes of this section as they apply for the purposes of that section.

(5) A notification under subsection (2)(b) shall also specify—

  1. (a) the area of land constituting the SSSI;
  2. (b) what (as at the date of the notification under subsection (2)(b)) is specified or contained in the section 28(1)(b) notification relating to the SSSI by virtue of section 28(4); and
  3. (c) the reasons why the Council is of the opinion referred to in subsection (1).

(6) In addition, the notification under subsection (2)(b) shall include a statement—

  1. (a) saying whether or not anything among the matters specified in the notification by virtue of subsection (5)(c) is particularly relevant to the extra land; and
  2. (b) if any such thing is of particular relevance, specifying which.

(7) Subsections (5) to (7) of section 28 apply in relation to a notification under subsection (2) of this section as they apply in relation to a notification under subsection (1) of that section, as if references to "subsection (1)" in section 28(5) to (7) were references to subsection (2) of this section.

(8) As from the time when a notification under subsection (2)(b) is served on the owner or occupier of any land, the notification under section 28(1)(b) shall have effect as if it included the notification under subsection (2)(b).

(9) As from the time when there is served on the owner or occupier of any land which has been notified under subsection (2)(b) a notice under section 28(5)(b) (as applied by subsection (7) of this section) confirming the notification under subsection (2)(b) with modifications, the notification under section 28(1)(b) (as extended by virtue of subsection (8) of this section) shall have effect in its modified form.

(10) A local land charge existing by virtue of section 28(9) shall be varied in accordance with a notification under subsection (2) or under section 28(5)(b) as applied by subsection (7) of this section.").

Page 92, line 23, at end insert—

("Enlargement of SSSI

28AB.—(1) Where the Nature Conservancy Council are of the opinion that any area of land which includes, but also extends beyond, a site of special scientific interest ("the SSSI") is of special interest by reason of any of its flora, fauna, or geological or physiographical features, the Council may decide to notify that fact.

(2) If they do so decide, the persons whom they must notify are—

  1. (a) the local planning authority in whose area the land (including the SSSI) is situated;
  2. (b) every owner and occupier of any of that land (including the SSSI); and
  3. (c) the Secretary of State.

(3) Subsections (2) to (8) of section 28 apply to a notification under subsection (2) of this section as they apply to a notification under subsection (1) of that section, as if references to "subsection (1)" and "subsection (1)(b)" in section 28(2) to (8) were references to subsection (2) and subsection (2)(b) of this section respectively.

(4) No notification may be given under subsection (2) until after notice has been given under section 28(5)(b) (or section 28(5)(b) as applied by subsection (3)) confirming (with or without modifications) the notification under section 28(1) (or subsection (2)) relating to the SSSI.

(5) As from the time when a notification under subsection (2) is served on the owner or occupier of any land included in the SSSI, the notification in relation to that land which had effect immediately before the service of the notification under subsection (2) shall cease to have effect.

(6) A notification under subsection (2)(b) of land in England and Wales shall be a local land charge; and, to the extent that any such land was the subject of a local land charge by virtue of section 28(9), that local land charge shall be discharged.

(7) A notice under section 28C(1)(a) and a consent under section 28C(3)(a) given before a notification under subsection (2)(b) continue to have effect.

(8) The enlargement of a site of special scientific interest under this section does not affect anything done under section 28H to 28J.

(9) Any reference to—

  1. (a) a notification under section 28(1) (or any of its paragraphs) shall be construed as including the corresponding notification under subsection (2);
  2. (b) a notification under section 28(5)(b) shall be construed as including a notification under that provision as applied by subsection (3); and
  3. (c) a local land charge existing by virtue of section 28(9) shall be treated as including one existing by virtue of subsection (6).").

On Question, amendments agreed to.

[Amendment No. 466 not moved.]

Baroness Byford moved Amendment No. 467: Page 93, line 36, at end insert— ("(d) that the operation has been carried out in accordance with the terms of an agreement with a section 28E authority which has acted in accordance with section 28G").

The noble Baroness said: This amendment relates to agreements with bodies other than English Nature and CCW. I beg to move.

Baroness Wilcox

I wish to speak to Amendment No. 497B. The amendment overcomes a shortcoming in the Bill that may have the effect of denying foreshore fishermen their livelihood. New Section 28M(6) of the Bill makes it an offence for a third party to damage, destroy or disturb the features of an SSSI. That fills a loophole in the current legislation. Unfortunately, the Bill makes any damage, destruction or disturbance an offence and does not take account of the magnitude of harm or the legitimacy of the activity causing it. As it reads, it will have the effect of making legitimate activities illegal.

Fishermen have gathered cockles and mussels from our shores for generations and continue to do so within many SSSIs. However, the effect of new Section 28M(6) would be to make their activities illegal—perhaps they disturb the oyster catchers or because the cockles and mussels they are gathering are features of the SSSI. For example, the largest mussel bed in Morecambe Bay lies within the South Walney and Piel Channel Flats SSSI, and mussels are listed by English Nature as a feature of that site. In its present form the Bill would make the removal of any mussels from this SSSI an offence.

I would submit that the Bill is not intended to make legitimate activities illegal; rather it is intended to protect SSSIs from harm. The amendment I have proposed would not weaken SSSI protection but would give nature conservation agencies and other statutory bodies the option of managing third party activities so that they can take place without causing undue harm to the SSSI. I hope that the Government will be able to accept the amendment.

The Earl of Caithness

Amendment No. 497A is grouped with Amendment No. 467. The amendment seeks to ensure that owners and occupiers who are farming in accordance with a statement given under new Section 28(4) are not subject to prosecution. As the Bill stands, it appears that they might do so quite unwittingly in carrying out normal farming occupations; for instance, making hay from a flower meadow, grazing livestock or heather burning. It would be wrong for owners and occupiers to be put in jeopardy of prosecution for carrying out something perfectly normal. Inevitably, the mere fact of burning heather will damage the SSSI temporarily, but the result will be much better, stronger and newer heather in the future.

Lord Whitty

Amendment No. 497A adds, for owners, an excuse of acting in accordance with the statement of views about management of the land issued with the SSSI notification. It is unlikely that the activities would be on the list of operations likely to damage the site. It would be odd if they were. It is also inappropriate to add this proviso since the statement of management views is a broad, high-level statement which will not be sufficiently comprehensive to describe individual operations. It is not intended to constitute a consent for activities, and there may be a question of degree which would need to be determined. That should be the subject of discussion between the parties.

While I would not rule out the use of new Section 28M(6) against an owner or occupier who exceeded the authorisation given to him, in most cases it would be unreasonable for the conservation agency to assume that if a prosecution could not be made under new Section 28M(1), because of reasonable excuse, then it could take action under new Section 28M(6). I hope the noble Earl is following that. I am not entirely sure that I am.

I turn to Amendment No. 497B. With regard to the commission of an offence where a damaging activity is taking place under the terms of an agreement, such matters should have been the subject of separate consideration by the conservation agencies. If they have not consented, individually or through the terms of a management scheme, to the terms of the operation, or if it is being carried out in a way which damages the special interest, that is not a good reason to provide a defence against prosecution.

But we can look further at the question of agreements reached with other public bodies. I am aware that liaison takes place at various levels between the agencies and MAFF and its agencies and local officers. That includes consideration at a strategic level, when developing the schemes; at a local level, where officials from relevant bodies meet to discuss regional conservation issues; and at an individual level on particular agreements. We want to encourage that. I am also clear that the conservation agencies will be seeking to reduce the number of occasions on which formal consent will be required. That is in their interest, as well as the interests of owners and occupiers.

I hope I can assure noble Lords that Ministers will be encouraging the agencies to minimise the amount of time lost on bureaucratic discussions and maximise the time spent on actually improving the condition. We need to minimise the scope for disagreement and uncertainty here, as well as to avoid undertaking prosecutions where that can possibly be achieved.

We shall consider the arguments that have been put forward, but I hope that noble Lords will not seek to press these amendments.

Baroness Byford

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 468: Page 93, line 43, leave out from first ("to") to end of line 44 and insert ("every owner and occupier of any of the land included in the site of special scientific interest, or the part of it to which the consent relates—").

The noble Lord said: This government amendment is clarificatory, along with its associated amendments, Amendments Nos. 469, 471, 472 and 473. These amendments concern the situation where an owner or occupier has given notice to the agency that they wish to carry out operations on the list of potentially damaging operations which accompanies the notification of a SSSI. If the agency refuses consent or grants a consent with conditions which are not acceptable to the applicant, then an appeal may be made to the Secretary of State.

Amendments Nos. 468 and 469 relate to the situation where consent has been granted in the past, but the conservation agency now considers that the operation is too damaging and should not be permitted or that it should be modified. This may be due to changed circumstances, or the long-term effects of the operation may be more damaging than the agency previously thought. The agency must then serve the notice withdrawing or modifying the consent on all of the present owners and occupiers of the land covered by the consent.

Noble Lords will appreciate that the original notice of intent to carry out the operation may have been given by a previous owner or occupier. Amendment No. 469 specifies all of the information that owners and occupiers must be given with the notice withdrawing or modifying the consent. That explains their rights of appeal, when the notice comes into effect, and, where a person incurs loss as a consequence of the withdrawal or modification, that the agency shall make a payment.

Amendments Nos. 471, 472 and 473 alter the reference to "a person" to read "an owner or occupier". That has been done for internal consistency. I beg to move.

Lord Glentoran

Perhaps I may speak briefly to Amendment No. 476. This seeks to ensure that inspectors hearing appeals should have appropriate land management experience. We feel that it is important for the effective hearing of appeals that those appointed not only understand the legislation relating to SSSIs but also understand the management issues arising out of SSSIs. This could require an understanding, for example, of farming or forestry issues or perhaps one of the many other scientific disciplines which we discussed in an earlier debate.

The amendment would require the person hearing the appeal to have such expertise.

Lord Whitty

Of course we all wish to ensure that those hearing appeals are in a position to make a considered judgment. The Secretary of State has at his disposal the whole of the planning inspectorate, which can call upon a wide variety of qualifications. Many of its members are land agents or qualified in the environmental sciences and so forth. For each appeal, an inspector with the relevant expertise will be allocated to it. I believe therefore that the objectives of the noble Lord's amendment will be met by the procedures that are to be put in place.

The noble Lord may also be relieved to know that the Bill already allows the Secretary of State to appoint an assessor to sit with the inspector if that proves to be necessary. That would cover any other problems which may arise, because the assessor would be fully competent to cover any further technical issues. I hope that that meets the noble Lord's requirements.

Lord Glentoran

I thank the Minister for that reassurance. We hope that, when drafting the regulations relating to appeals, the Government will agree to take these points on board.

On Question, amendment agreed to.

Lord Whitty moved Amendment No. 469: Page 94, leave out lines 2 to 5 and insert ("matters set out in subsection (7A). (7A) The matters referred to in subsection (7)are—

  1. (a) the rights of appeal under section 28D;
  2. (b) the effect of subsection (8); and
  3. (c) in the case of a notice under subsection (6), the effect of section 28K.").

On Question, amendment agreed to.

[Amendment No. 470 not moved.]

Lord Whitty moved Amendments Nos. 471 to 473: Page 94, line 14, leave out ("a person") and insert ("an owner or occupier"). Page 94, line 16, leave out ("a person") and insert ("an owner or occupier"). Page 94, leave out lines 20 to 22 and insert—

  1. ("(c) an owner or occupier who is aggrieved by the modification of a consent;
  2. (d) an owner or occupier who is aggrieved by the withdrawal of a consent,").

On Question, amendments agreed to.

[Amendments Nos. 474 to 476A not moved.]

12.30 a.m.

Lord Roberts of Conwy moved Amendment No. 476B: Page 95, line 54, at end insert— ("(3) Unless otherwise required pursuant to the provisions of another statutory provision, the duty to further the enhancement of flora, fauna or geological or physiographical features in subsection (2) shall not require a statutory undertaker to remove or alter any apparatus, plant or equipment whatsoever installed or kept installed by that statutory undertaker pursuant to its statutory obligations, powers or duties over, under, in or on any ground where the ground is within a site of special scientific interest or where the ground is in the vicinity of such a site.").

The noble Lord said: This is a probing amendment intended to elicit confirmation from the Government that the obligation on companies holding licences under the Electricity Act as Section 28E authorities to further the conservation and enhancement of the features of an SSSI will not require them to move their electric lines and electrical plant to another location or to place the lines or plant underground. I do not think there is any doubt that a company holding one or more licences under the Electricity Act 1989 will be a statutory undertaker and so will be a Section 28E authority.

The concern of the companies arises from the use of the word "enhancement" in Section 28E and how it may be interpreted. The ordinary meaning of the word implies an increase in the obligations which the companies currently have to preserve SSSIs and the imposition of a positive obligation on them to improve the appearance of the SSSI. This is likely to result in claims that the companies should remove lines on or in the vicinity of SSSIs or place them underground.

I understand that the Department of the Environment has said that there was no intention that companies should have to remove their electric lines or place them underground. The amendment qualifies the word "enhance" so that it is clear that there is no requirement for a company, as a statutory undertaker, to remove any of its overhead or underground electric lines or electrical plant on, under or over an SSSI or in the vicinity of an SSSI.

The amendment recognises that there may be grounds in a particular case for an electric line to be moved. In such circumstances, the same principle should apply as in any other case where there is a request to remove an electric line and the procedures in the Electricity Act 1989 for considering such a request should apply. The qualification of the duty to enhance an SSSI is made subject, therefore, to a limitation that it does not prevent the consideration of the merits of retaining a line in situ under Schedule 4 to the Electricity Act 1989 or any other statute. I beg to move.

Baroness Byford

I speak to Amendments Nos. 477, 483 and 483AA, which are in this group.

Amendment No. 483AA is a probing amendment. It seeks to include the words, and shall take into account the conditions imposed by any existing management agreement". Amendment No. 477 would require Section 28E authorities which carry out works on SSSIs—for example, utility companies laying pipelines—to notify English Nature and CCW not only of those operations which they consider would be likely to damage the site but of any operation listed in the site notification papers as being likely to damage it. It requires such bodies to have more regard to the list of operations included in the notification than the Bill presently requires.

It is an issue of equity. There is a lesser duty on statutory undertakers who undertake works on SSSIs than there is on owner-occupiers who undertake works on SSSIs. The duty on the undertakers is to give written notice to English Nature or CCW before carrying out any operations likely to cause damage on an SSSI. In contrast, the duty on owners and occupiers under Section 28C(1) is to give written notice to English Nature or CCW before carrying out any operations specified in the notification.

Amendment No. 483 complements the early amendment to the proposed new Section 28F(1), relating to new Section 28E authorities that carry out work on or affecting SSSIs; in Section 28G(2) the focus is on the Section 28E authorities which authorise operations on or affecting SSSIs. I commend the amendments to the Committee.

Baroness Wilcox

I rise to speak to Amendment No. 483A. I proposed the amendment to overcome an administrative problem created by the Bill.

Under the Bill as drafted, subsection (4) of new Section 28G would require any statutory body to wait for 28 days after consulting the council before issuing any permission. This 28-day delay must be respected, even if the council should inform the statuary body that it has no objection to the proposal in less than 28 days.

I submit that the purpose of this part of the Bill is not to introduce unnecessary delays into the administrative process but to ensure that the council is allowed ample time to formulate its response to a consultation.

My amendment would still defend the right of the council to take up to 28 days to respond, but it would also allow statutory bodies to issue permissions promptly if the council should respond more swiftly.

I feel that this amendment would retain the effect of this part of the Bill without adding an unnecessary bureaucratic burden.

I turn to my Amendment No. 483B. The amendment seeks to make the Bill more efficient in its implementation. Subsections (1) to (6) of proposed new Section 28G require statutory bodies to consult the council before issuing any permissions relating to activities likely to harm the SSSI. These sections provide an important safeguard for SSSIs, and I welcome them.

Unfortunately, the process set out in new Section 28G is "blind". 1t requires consultation over all permissions, even where they relate to benign aspects of an activity. To take an example, the North Western and North Wales Sea Fisheries Committee issues approximately 60 authorisations a year to fishermen, enabling the use of metal stakes to secure nets on the shore anywhere in its district. This SFC has over 140 SSSIs within its district, and coastal fishing is listed as an, operation likely to damage the special interest", of many of them. However, the risk of a metal stake damaging the features of these SSSIs is, at best, remote. The Bill would thus require the North West and North Wales Sea Fisheries Committee and the council to undertake a vast number of ultimately pointless consultations.

As I read this part of the Bill, it is not intended to create unnecessary work for administrative bodies. It is intended to ensure that activities that pose a real threat to an SSSI are subject to scrutiny.

My amendment would allow the council and statutory bodies the option of agreeing to exempt certain permissions from the Section 28G consultation process. This will allow them to focus their energies on the permissions that do need to be scrutinised.

In suggesting the amendment, I have been mindful of the need to ensure that SSSIs are properly protected. The second part of my amendment requires any consultation agreements to be written down, and enables the council to call for the review of such agreements if it is concerned that exempted permissions might affect the SSSI. I commend the amendments to the Committee.

Baroness Young of Old Scone

Perhaps I may comment on Amendments Nos. 477 and 483 tabled by the noble Baroness, Lady Byford. The noble Baroness's concern was that a more onerous requirement was being laid on owners and occupiers than on public authorities. It is almost the other way round; in fact, it is diametrically the other way round. The Bill places far more strenuous requirements on public authorities in terms of thinking more widely about operations which might damage an SSSI rather than the very limited list in the notification. It might even not be their activities on the SSSI, which is all that is specified by the notification. It could well be activities adjacent or in another place that would, for example, have a downstream effect on the SSSI. The Bill places slightly more onus on public authorities than on owners and occupiers.

Lord Whitty

We do not really believe that most of these amendments would add anything; indeed, they are probably unnecessary and could, in some cases, be counter productive. However, the one amendment that I should like to take away and reconsider is Amendment No. 483A, which deals with a body being able to authorise an operation before the expiry of 28 days. I can envisage situations where that might be helpful. I am grateful to the noble Baroness for bringing the matter to our attention. I can at least undertake that we shall seriously consider bringing forward an amendment at the next stage to meet that point.

Amendment No. 476B seeks to qualify the general duty imposed upon public bodies by expressly prohibiting the application of the duty as a means to require a statutory undertaker to remove or alter any apparatus, plant or whatever installed pursuant to its statutory obligations. This amendment is unnecessary because the duty imposed by new Section 28E—subsections (1) to (2)—is in the nature of a general duty consistent with the proper exercise of the statutory functions. It must, therefore, be consistent with the latter. Where a statutory undertaker has apparatus or equipment, as mentioned in this amendment, on an SSSI in pursuit of those functions, there will be no question of the undertaker being required to remove those items if they are there for that purpose.

Amendments Nos. 477 and 483 would require a public body to notify the conservation agency where it proposes to carry out an operation that is specified in an SSSI notification, or where it assesses the operation "may damage" the SSSI. I believe that the Bill, as drafted, already catches the operations listed within the notification. New Sections 28F and 28G are already drafted to catch both the operations likely to damage the site, and any activities that might take place off site but which might nevertheless have a detrimental effect on the SSSI.

However, the list provided with a notification—to which this amendment attempts to refer—is the list of operations that might be undertaken by an owner or occupier and for which he may be seeking consent. They are not targeted at all the operations that a public body might undertake either on or off the SSSI. Therefore, it would not be helpful to cross-refer to the list of operations relating to an owner or occupier.

In relation to the other parts of those amendments, I can offer reassurance that, as a matter of good administrative practice, the agencies already provide public bodies with copies of SSSI notifications. We recognise the importance of ensuring that they are fully aware of the location and nature of these important sites.

I have dealt with Amendment No. 483A. However, in relation to Amendment No. 483AA the crucial matter to be taken into account by the statutory undertaker, or any other public body, is the advice expressly given to it by the conservation agencies, as required under new Section 28G(5). It must be for the conservation agency to consider how far it needs to reflect in that advice any conditions in any management agreement. Indeed, it would be unreasonable to expect the statutory undertaker to try to take into account matters in the management agreement as the undertaker would not be party to that agreement. Therefore, the obligation rests with the conservation agency.

Amendment No. 483B provides an exemption from the Section 28G procedure where the conservation body and the public body enter into a written agreement. I understand the motivation behind the amendment; namely, to avoid multiple consultations and unnecessary bureaucracy. It would be sensible for public bodies that regularly undertake particular activities on or affecting SSSIs to draw up in advance the terms under which they will operate a number of those operations. However, the terms of the amendment reinforce my concerns about tying public bodies to the operations likely to damage list which applies to owners and occupiers. That might actually preclude the public body and the agency from reaching an understanding covering particular activities that might be assessed as operations that are not likely to damage.

Therefore I think that it would be sensible for the agency and the public bodies to behave in the way that the noble Baroness, Lady Wilcox, seeks. But this amendment would preclude them from doing so by cross-reference to a list which is not appropriate in those circumstances. I hope that the noble Lord, Lord Roberts, will not press his amendment, and that I have explained my position on the other amendments in the group.

Lord Roberts of Conwy

With regard to Amendment No. 476B, I am grateful for the Minister's reassurance that companies will not be required to remove their electricity lines or plant in the vicinity of SSSIs or place them under ground. I am sure that I speak for my noble friend Lady Wilcox when I say that she too is grateful for the reassurance that she received that the Minister would reconsider the 28-day period. In view of that reassurance I shall not press the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 477 not moved.]

Lord McIntosh of Haringey

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at fifteen minutes before one o'clock.