Countryside and Rights of Way Bill

HL Deb 16 October 2000 vol 617 cc673-744

3.21 p.m.

The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Whitty.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Schedule 8 [Sites of special scientific interest]:

Baroness Miller of Chilthorne Domer moved Amendment No. 478: Page 96, line 30, at end insert— ("(3A) Conditions relating to an assent under subsection (3) may require the authority, where reasonably practicable and not involving excessive costs, to restore any damage to the notified interest caused by the operation or where practicable, to provide alternative habitats on land not included in a site of special scientific interest.").

The noble Baroness said: This is a moderate amendment which tries to close a loophole in Schedule 8 to the Bill. I believe that since the matter was discussed in the other place the Government have come to the conclusion that there is a loophole here as they have tabled a similar amendment, Amendment No. 481. I shall explain why I believe our amendment is superior.

Our amendment seeks to encourage the restoration of damage which results from the lawful activity of statutory undertakers where it is not reasonably practicable to provide replacement habitats. I understand that in the other place the measure was resisted as it was considered that it might involve statutory undertakers in unreasonable expenditure. We have therefore included the words "reasonably practicable" in our amendment.

However, should it not be reasonably practicable to restore damage to such sites, the Government's amendment makes no alternative suggestion. It is not at all clear from that amendment what would happen in such a case. However, our amendment includes the option of providing alternative habitats where it is not reasonably practicable to restore damage.

In relation to equity, I refer to the comments made by the noble Baroness, Lady Byford, on a previous occasion on her Amendment No. 477. As the Bill stands, we believe that there is a lesser duty on statutory bodies than on private landowners in this regard. We believe that our amendment would rectify that situation. I beg to move.

Baroness Farrington of Ribbleton

In response to the noble Baroness's comments on Amendment No. 478, perhaps I can start by speaking to government Amendments Nos. 479, 480 and 481. As the noble Baroness recognised, these also concern the restoration of SSSIs where a public body has carried out an operation in exercise of its functions and has complied with the requirements in the proposed new Section 28F of the 1981 Act to notify the agency and take account of its advice.

As noble Lords will be aware, the Bill includes a duty on public bodies, when carrying out any of their functions where this may affect an SSSI, to, take reasonable steps … to further the conservation and enhancement of the … features by reason of which the site is of special scientific interest". I hope that that answers one of the points raised by the noble Baroness.

When planning to undertake specific operations which are likely to damage a site of special scientific interest (whether on the site, or on other land, but where the operation may have a damaging effect on the special features), the public body is required under new Section 28F to inform the conservation agency. The agency then has the opportunity to advise on whether the operation should be carried out. In this event it can impose conditions requiring the operation to be carried out in a way that causes the least damage to the features. It may also advise on post-operation restoration. Where the agency has not assented to the operations, the public body may still carry them out but must do so in such a way as to give rise to as little damage as is reasonably practicable.

Government Amendments Nos. 479 to 481 make clear that where a public body undertakes operations to which the conservation agency has not indicated its assent and which are likely to cause damage to the SSSI, it is required to restore the special features that have suffered damage. It is an offence for the public body not to restore the site, so far as this is reasonably practicable. The test of practicability would be for the courts, but we would normally expect it to include some assessment of cost. A public body could not be expected to undertake restoration works which were excessively expensive. I believe that that deals with another point raised by the noble Baroness. All public bodies will be expected to seek to minimise the effect of their operations upon SSSIs from the perspective of the public interest both in the conservation of these special sites and in minimising costs to the public purse should damage occur.

Amendment No. 478, which stands in the name of the noble Baroness, Lady Miller of Chilthorne Domer, seeks to achieve a similar position but goes further in relation to a requirement for the provision of alternative habitats. We do not consider this justified. The Committee may know that under the habitats regulations relating to sites of international importance such as SPAs (special protection areas) and SACs (special areas of conservation), there is a requirement in certain circumstances for the Secretary of State to secure "compensatory measures". These would not always require the provision of alternative habitats. In any event, we believe it appropriate to maintain a distinction between international and European sites, which attract the highest levels of protection, and sites of national importance. I should nevertheless point out that in England and Wales, international sites will cover nearly 70 per cent by area of the SSSI series. I believe that the government amendments fully deliver the commitment we gave in another place. I therefore ask that Amendment No. 478 is not pressed.

Baroness Byford

On this occasion I support the government amendments, in particular Amendment No. 481 which mentions restoring a site to its "former condition"; namely, its condition at the time agreement was given to an operation being carried out rather than imposing an additional requirement to restore the site to another condition. The noble Baroness nods her head; I assume therefore that I have correctly understood the position.

As regards Amendment No. 478, which stands in the name of the noble Baroness, Lady Miller of Chilthorne Domer, I am not sure whether this means that in future the new Section 28E authorities would only be given approval for their work if it were reasonably practicable and did not involve excessive costs. I am not sure whether the amendment adds to the existing regulations and whether it precludes some work that is currently undertaken being done in the future.

3.30 p.m.

Baroness Miller of Chilthorne Domer

I do not believe that the amendment would preclude that. The main difference is this: if the costs of restoring the site are prohibitive but the work has to be done, an alternative habitat must be provided.

Between now and Report stage, will the Minister consider whether it would be acceptable for the conservation bodies to require an alternative habitat to be provided for SSSIs not covered by international agreements?

Baroness Farrington of Ribbleton

I have no reason to believe that any further consideration would produce the response that the noble Baroness seeks. I undertake to consider all the points raised during debate but do not hold out the hope that that can be interpreted as meaning that the Government will respond in any way. It is difficult. Offering to read and listen carefully to arguments has a special meaning in your Lordships' House which usually indicates that the Government are minded to respond positively. I do not think that I can say that.

It is important for the Committee to note that under new Section 28M(3) it is an offence for an authority to fail reasonably to restore, and it may be fined up to £20,000.

Baroness Miller of Chilthorne Domer

I thank the Minister for her reply. I appreciate that fact. However, as drafted, the Bill may cause statutory bodies to increase the costs so that they are excessive. Then they have to do nothing; they do not even have to provide an alternative.

I shall consider the point carefully before returning to it on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Farrington of Ribbleton moved Amendments Nos. 479 to 481: Page 96, line 36, leave out ("requirement") and insert ("requirements"). Page 96, line 49, leave out ("requirement is") and insert ("requirements are— (a)") Page 96, line 54, at end insert ("; and (b) that the authority restore the site to its former condition, so far as is reasonably practicable, if any such damage does occur.").

On Question, amendments agreed to.

Baroness Miller of Chilthorne Domer moved Amendment No. 482: Page 96, line 54, at end insert— ("( ) Where the Council concludes, on reasonable terms, that they cannot assent to the proposed operations (with or without conditions), they may require that the section 28E authority seek authorisation by a planning permission granted on an application under Part III of the Town and Country Planning Act 1990.").

The noble Baroness said: This amendment relates to procedure. If a disagreement between the statutory undertakers and the nature conservation agencies about an operation on SSSIs fails to be resolved, as drafted there is no provision in the Bill for a procedure satisfactorily to resolve that disagreement. If the conservation agencies cannot assent to a proposed operation, the amendment would allow them to require the statutory undertaker to apply for planning permission. That would put in place the procedure needed satisfactorily to resolve the issue.

The proposed operation would then be subject to normal planning procedures and the operation could be determined by the local planning authority. However, if the circumstances were truly exceptional—they may well be if we refer to SSSIs of particular value to the nation and internationally—the conservation agencies or other parties could request that the proposed operation be called in by the Secretary of State for his determination, and the normal public inquiry procedures would apply. I accept that that would be necessary only in extreme circumstances. However, given the rate at which SSSIs have been damaged, we must make some provision for extreme circumstances.

Perhaps I may cite examples provided by the RSPB. In the Dorset heathlands a local authority leased land to a parish council which wants to convert the heathland into urban parkland. It has been unable to resolve the situation with English Nature. English Nature strongly objects, but there is nothing in the Bill as drafted which will empower the agency to make representations to present its objections. I beg to move.

Lord Skelmersdale

In the case cited by the noble Baroness, there would be an appeal to the Secretary of State. English Nature can apply for a Section 28 order on the SSSI. The Secretary of State will determine that, usually very speedily.

Baroness Young of Old Scone

Underlying the amendment is a principle which it is valuable to explore but this is not the right amendment for that debate. In many cases the relationship between English Nature and the Section 28 authorities is excellent. Much is achieved by collaboration and cooperation. In circumstances of downright disagreement, a system is needed to resolve it. I do not believe that the proposal would work. It implies that the planning system would deal with issues which currently are not subject to, and would not helpfully be dealt with by, planning considerations. However, there is a point here which the noble Baroness rightly raises.

Baroness Carnegy of Lour

Would the system suggested by my noble friend Lord Skelmersdale work?

Lord McIntosh of Haringey

I recognise that there is a point underlying the amendment which goes further than the amendment itself. The idea of requiring a public body or statutory undertaker to seek authorisation through an application for planning permission would not work or achieve the objectives. The modern system of land use planning has established principles. They were established in the Town and Country Planning Act 1947 and they are based on the idea of an operation constituting development and then being subject to the planning regime. The amendment would say that "non-development activities" might be treated as though they were development.

The planning system is not structured to consider applications for non-development activities. How could a local planning authority consider such an application? It could not consider an operation that falls outside the definition of "development" and outside the scope of the planning system against, for example, development policies in local development plans and other material considerations. We do not propose in this part of the Bill to change the well-established definition of "development". Indeed, we would not do so in this Bill.

I acknowledge that public bodies, including statutory undertakers, may benefit from consents granted under their own enabling legislation and other permitted development rights; that is, operations that constitute "development" but for which an application under Part III of the Town and Country Planning Act 1990 is not required.

These consents and the regime for permitted development rights ensure that statutory undertakers are equipped to carry out their functions—their statutory duties. In exceptional circumstances, a local planning authority may consider that planning control should apply to permitted development. In these circumstances—I believe that these are the exceptional circumstances to which the noble Baroness, Lady Miller, referred—it is open to the local planning authority to make and submit to the Secretary of State an order under Article 4 of the Town and Country Planning (General Permitted Development) Order 1995 seeking to remove the particular development right and requiring an application for planning permission. I am not sure whether that answers the point raised by the noble Lord, Lord Skelmersdale, about a reference to the Secretary of State.

The Bill as drafted requires for the first time that the conservation agency is fully involved in the consideration and exercise of such consents. I stress the totally new provision of new Section 28F to which my noble friend Lady Farrington spoke in debate on the last group of amendments: the public body, in carrying out operations, must do so in such a way as to cause as little damage as reasonably practicable; and the public body must restore the land to its former condition so far as practicable. However, there must be a balance of interests. We have ensured that if such operations are imperative, the conservation agency retains a full opportunity to advise the public body on the operation and the best way to carry it out.

We are firmly committed to sustainable development. That involves carefully weighing all the issues, particularly the benefits to the public. In some cases, the duty of a statutory undertaker may need to override the nature conservation interest. The procedures allow for that. We have never sought to imply that SSSIs must be inviolable. Of course there will be difficult decisions, but we are talking about exceptional circumstances only. I expect statutory undertakers to work constructively with the agencies to ensure that their work is carried out without compromising the nature conservation interest. As the noble Baroness, Lady Young of Old Scone, has just made clear, the conservation agencies have good working relationships with public bodies and constantly seek to develop them further. I hope that the noble Baroness, Lady Miller, will not press the amendment.

Baroness Miller of Chilthorne Domer

The noble Baroness, Lady Young of Old Scone, helpfully pointed out that the underlying principle of the amendment was important and was not currently met in the Bill but that this was not the right vehicle to implement it. I accept that and shall go away and look at the issue further. Perhaps my local authority background is coming out too strongly. I should like to discuss the issue further with the noble Baroness. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 483 to 483B not moved.]

3.45 p.m.

Lord Glentoran moved Amendment No. 483C: Page 97, line 33, leave out ("may") and insert ("shall").

The noble Lord said: I shall speak also to Amendments Nos. 484 to 487. Management schemes are the only way to control operations on SSSIs. Given that management agreements are already part of the process, schemes of management would be helpful, even if they may not be over-popular.

Amendment No. 484 would remove the words "if they think fit" in the reference to actions by the council. It is not clear why the power granted to English Nature and the Countryside Council for Wales to make a management scheme is to be exercised only "if they think fit". That is an unusual drafting term. Usually, a statutory body is given either a duty, in which case the Bill would use the word "shall", or a power, in which case the Bill would use the word "may". It is not clear what the phrase adds to the understanding of the power granted. Presumably English Nature and the Countryside Council for Wales would exercise any power granted to them only if they thought that it was appropriate. What body would exercise a power if it did not think that it was a good idea to do so? That would be daft.

It would be helpful if the Minister could explain what value is added by the inclusion of the phrase in new Section 28H(1). It also appears in new Section 28I(1)(b), new Section 28J(4) in relation to the Secretary of State and new Section 28K(2). The same arguments apply. A consistent approach should be adopted in reviewing its utility in each case. I hope that the Minister will be able to explain the reasoning behind its inclusion. If his arguments are not persuasive, perhaps we can take it further on another occasion.

Amendment No. 485 would ensure that owners were consulted while the management scheme was being formulated instead of after it had been formulated. New Section 28H(3) requires owners to be consulted about a proposed management scheme. However, it appears that that consultation would take place after the scheme had been formulated, not before or during its formulation. There is therefore a risk that English Nature and the Countryside Council for Wales would prepare a scheme without informing an owner that they were doing so and would then consult the owner on a scheme to which they had had no input.

Three potential problems could then arise. The scheme could be incomplete because it failed to take account of current management practices, it could fail to take account of the economic realities of the land management business involved or, as an effective fait accompli, it could cause offence to owners, who might be concerned that their input was not wanted.

Those problems could be avoided if English Nature and the Countryside Council for Wales actively invited input from owners and occupiers to the preparation of a scheme. Such early involvement would help to build a better partnership with owners and would help English Nature and the Countryside Council for Wales in preparing the scheme, because owners and occupiers would be able to give them a clear idea of issues such as how the land was managed, how that management might change and what practical difficulties had to be overcome if the land was to be managed differently.

Spending time actively involving owners in formulating schemes should also work to the advantage of English Nature and the Countryside Council for Wales once they come to give owners the opportunity to make formal representations about a scheme under new Section 28H(7). If owners' concerns have been taken into account as far as possible in formulating the scheme, it is unlikely that they will wish to make formal representations. If, on the other hand, as the Bill currently suggests, owners are simply presented with a fait accompli in which they have not been actively involved, they are likely to make detailed representations, which could delay the finalisation of the scheme, because English Nature and the Countryside Council for Wales have to consider all such representations. I hope that the Minister will know from his experience that all good managements involve all those concerned when formulating plans and changes and will accept that the amendment is common sense. As those of us who have worked on the shopfloor and in the industrial world know, it makes it considerably easier if everybody is involved at the earliest possible stage.

Amendment No. 486 would provide for English Nature and the Countryside Council for Wales to seek external advice when preparing management schemes. I have a short brief from the National Farmers Union on the amendment, which would enable English Nature and the Countryside Council for Wales to tap into external sources of land management expertise or experience in preparing management schemes. While English Nature and the Countryside Council for Wales will often have a clear idea of conservation objectives for SSSIs, they may lack experience of the particular farming systems that can deliver those objectives. That brings to mind a discussion that we had late one night last week. Even where they have such experience in general, such as from managing livestock on national nature reserves, they are unlikely to have experience relevant to the particular locality or farming regime of the owner or occupier.

In contrast, owners and occupiers will often have a good idea of the management required. It is important that English Nature and the Countryside Council for Wales tap that expertise in consulting owners or occupiers about schemes under Section 28C(3). However, input from bodies such as the Agricultural Development Advisory Service, the Fanning and Rural Conservation Agency or the Fanning and Wildlife Advisory Group could be helpful in developing and refining schemes. In cases when English Nature and the Countryside Council for Wales lack experience, they should be encouraged to take advice from regular experts. The NFU stresses that the confidence of owners and occupiers in management schemes is essential to their success. The process must be as transparent as possible. The amendment would help to minimise any risk of misunderstanding about why the nature conservation body was proposing the particular management scheme.

As I have just outlined, Amendment No. 487 is also supported by the National Farmers Union. Again, this amendment gives the basic contents of a management scheme and relates to Section 28H(2). SSSI notifications, especially in relation to large sites, will often be vague about the particular interest and management of parts of the site under different owners or occupiers. On average, each SSSI involves eight different landholdings.

The management scheme provides an important opportunity to tailor the details of the notification, and the management objectives which flow from it, to the individual land management unit. That process should involve specifying which of the particular features of the SSSI occur on the landholding, what management regime the council considers is needed to conserve those features, which of the operations contained in the general list is relevant to the site, and which of the operations pose no threat to the site and, accordingly, have been consented to by English Nature and the Countryside Council for Wales.

The end product should be a scheme for managing the site which sets out clear, agreed objectives and seeks to keep the bureaucracy associated with the SSSI consent system to the absolute minimum, consistent with the conservation of the site. Such schemes should provide a sound basis for a positive working partnership between English Nature, the Countryside Council for Wales and SSSI owners and occupiers. That is what we on this side believe in. I beg to move.

Baroness Nicol

Perhaps I may make two brief points. First, with regard to Amendment No. 485, it is my understanding that, prior to the serving of a management scheme, there will have been full discussions with all the parties concerned in pursuit of a voluntary scheme. It is probably not necessary to go through all that again. Certainly, all parties concerned will be well aware of what is being proposed.

My second comment is in relation to Amendment No. 486. As the noble Lord, Lord Glentoran, admitted, we have covered this ground. It is perfectly clear that the power which he seeks is already available to the councils. Therefore, I cannot see the need for the amendment.

Earl Peel

I accept what the noble Baroness, Lady Nicol, said. So far as concerns Amendment No. 485, I am quite certain that she is right and that the proper consultation process will, indeed, go through. If that is not the case, then clearly it should be, and I hope that the Minister will confirm that.

I believe that my noble friend's Amendment No. 484, which would remove the words "if they think fit", would cause considerable difficulties for English Nature. Having to go back through every single site of special scientific interest would place an enormous and onerous task on that body. Having had the pleasure of serving on the council of English Nature and knowing how long such things take, we could be talking about many years. Therefore, I suspect that the Minister will reject the amendment robustly and, on this particular occasion, I would agree with him. However, I see that the noble Lord, Lord McIntosh, shakes his head.

My other point is that, if we are to remove the words "if they think fit", surely the whole of the SSSI would have to be brought into the management plan and not only, as the Bill stands at present, that part of it which is available to English Nature and CCW.

Lord Hardy of Wath

I endorse the point made by my noble friend Lady Nicol. I suggest to the noble Lord, Lord Glentoran, that his Amendment No. 486 may be too restrictive. The authority should be able to seek the advice of the people he mentioned. However, in some areas it should also be possible to contact for advice local organisations or individuals who are involved in conservation. As an example, I can think of a man in my own area who, until he died last year, knew more about botany in our county than anyone else. He was actually a dentist. He was not an expert in land management; nor was he involved in forestry or farming, although he knew a great deal about the subjects.

However, if there is to be a right to seek advice from farmers, foresters and land managers, the same right should also exist to contact individuals who are knowledgeable about a particular area. It is important to obtain their advice as well, as it may be more valuable than that which is forthcoming from people with expertise in the areas mentioned in the amendment.

Lord Skelmersdale

I believe that we are getting into a bit of a muddle. After all, the ecology of an area depends entirely on the farming methods of that area. Therefore, if English Nature quite rightly wants to prevent a new activity taking place, this is the right way to go about it. Unfortunately, in some parts of the country—my own in the south west being one, as I am sure the noble Baroness, Lady Miller, will be able to confirm—the staff of English Nature are not always as sensitive and as diplomatic as they might be. They give the impression to farmers that they are trying to turn back the clock and produce a different, older ecology than that for which they are enforcing SSSI status.

Baroness Young of Old Scone

I wish to make two brief comments about this group of amendments. The first may be of help to the Committee with regard to management schemes. I believe that we should be clear that under the Bill management schemes will be quite a long way down the road. The noble Lord, Lord Glentoran, was right to say that management is important to SSSIs. However, management schemes come into play only if there has been a failure to gain voluntary agreement. Indeed, voluntary agreement is by far the most common solution in relation to the management of SSSIs. Therefore, I hope that it will be seen that management schemes will be required only where there is a failure to agree.

I also want to make a point regarding the management of SSSIs being due entirely to the farming regime. A large number of SSSIs are dependent on farming management but a large number are also dependent on a whole variety of land uses—not least development use, the activities of statutory undertakers of water companies, and a variety of different activities other than farming. Therefore, although farming is extremely important, I should not want to say that the responsibility for SSSIs lies entirely with farmers. It is true that, in terms of operations on SSSIs, at present agriculture is by far the most damaging practice.

Baroness Miller of Chilthorne Domer

I can perhaps see a reason for further consideration of Amendment No. 485 because, although management schemes are a fairly long way down the road, it is reasonable that the "Council shall consult" the owners before such schemes are drafted. However, perhaps I may ask the noble Lord, Lord Glentoran, whether it is the intention of Amendment No. 483C that English Nature should consult on every site, including those that are satisfactory.

Lord McIntosh of Haringey

I do not want to undermine the importance of management schemes, although, as my noble friend Lady Young said, they are a long way down the road. The vast majority of SSSIs are dealt with by voluntary agreements rather than by management schemes as provided for in the Bill. However, they make an important contribution to the new scheme for SSSIs. They increase the emphasis on securing positive management, which will ensure that the site is in favourable condition.

However, it has generally been made clear in the debate that we cannot accept Amendment No. 483C, which would require management schemes in every case by inserting "shall" instead of "may". It may not always be necessary or desirable to have a management scheme on every site, whether the site is for farming practice or for the other uses to which my noble friend Lady Young referred. Indeed, a geological site which is simply a rock face may need no active management at all. Therefore, we have left the agency with the option to decide whether it considers it fit to impose a management scheme. To that extent, I cannot agree with the noble Lord, Lord Skelmersdale.

However, I was prepared, and am prepared, to accept Amendment No. 484, although the noble Earl, Lord Peel thinks those words should be retained. I am advised that the words "if they think fit" merely add emphasis to the permissive nature of the word "may". On reflection, it does not seem to us that those words are necessary. It does not mean that that could be applied only to the whole of an SSSI. It could apply to a part of an SSSI.

There is a slight complication in that the words "if they think fit" occur in two other places and they must be taken out on Report. But I am prepared to agree to Amendment No. 484.

The fundamental point about Amendment No. 482 is that there may already be voluntary agreements and the scheme may be unnecessary. If a land manager considers that a formal management scheme would be helpful, he should approach the conservation agency with a view to opening discussions.

I turn now to Amendment No. 485 which deals with consultation. I do not believe that the noble Lord, Lord Glentoran, has correctly interpreted the Bill and that is confirmed by what my noble friend Lady Nicol said. The Bill already requires a full and open consultative process—that is in Section 28H(3). The relevant owners must be consulted about the scheme before the notice is served. That acknowledges the value of their expertise and ensures that they have the opportunity to influence the drafting of the scheme to reflect their views on the appropriate management of the land.

But they will be given a further opportunity to make representations once the notice has been served, and that is in Section 28H(7). I do not see what Amendment No. 485 adds to that process. We have deliberately taken full account of land managers' views at all stages.

As regards Amendment No. 486, it is already open to the agency, where it considers it needs to draw on sources of expertise which are not available among its staff or council members, to seek specialist advice from elsewhere, including the appropriate use of consultants. I say that in the widest possible sense. I agree with the noble Lord, Lord Glentoran, that there may well be local expertise which is not available to the agency, although it has expertise at national and local level. I agree with my noble friend Lord Hardy that there may be people of whom one would never think whose expertise may be valuable. However, I should not write dentists into the Bill to take account of that point.

In any event, that power includes advice on land management and that is made clear in Section 132(2) of the Environmental Protection Act 1990. We shall encourage that practice wherever it is necessary and helpful. The agencies will ensure that staff dealing with SSSIs have the necessary training and access to guidance and good practice.

I turn now to Amendment No. 487. I acknowledge that the list of information which is given in the amendment is useful. But much of it will already have been available separately to landowners or occupiers, some of it, although not all of it, in the notification procedure. To repeat it here would simply burden them with more paperwork and give rise to complaints.

The management scheme is intended to be a clear, detailed and workable scheme for management of the land. It is put forward in the interests of building positive partnerships so that everybody is aware of how the nature conservation interests may best be conserved. It may include clarification of the operations which may damage some or all of the site, particularly where it addresses a single landholding within a larger SSSI and it may usefully cover consents for activities which the land manager may undertake.

I believe sincerely that the provisions in the Bill go far enough to ensure that the land management scheme can be effective and not overburdensome.

4 p.m.

Baroness Carnegy of Lour

The Minister says that statutory management schemes are a long way down the road and that voluntary schemes will be the norm. He indicated that the statutory schemes will come into force only when it is not possible to reach agreement. I can understand that.

But will the Minister tell the Committee what proportion of the acreage or hectarage of SSSIs the Government anticipate will be involved in statutory schemes? They must have thought about that because of the costs involved and so on. I should just like a picture of what will be the impact of the statutory schemes. Can he give the Committee any information in relation to that?

Lord McIntosh of Haringey

The short answer is as little as possible in terms of acreage and as few as possible in terms of the number of sites. We need that provision because there are occasions when voluntary agreements cannot be reached. It will be a measure of success of that part of the Bill that there should be as few as possible. However, it is not wise for me to anticipate exactly how many there will be.

Lord Glentoran

I accept the explanations and comments made by the noble Baroness, Lady Young, and the Minister on Amendment No. 483C. I am delighted that there is such a strong emphasis on voluntary agreements.

I thank the Minister for accepting Amendment No. 484. As regards Amendment No. 485, I apologise if I have misinterpreted the Bill to some extent. I shall read it again. In general, I accept the Minister's explanations in relation to Amendment No. 486. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Glentoran moved Amendment No. 484: Page 97, line 33, leave out (", if they think fit,").

On Question, amendment agreed to.

[Amendments Nos. 485 to 487B not moved.]

Lord Luke moved Amendment No. 488: Page 99, line 3, after ("agreement") insert ("under section 16 of the 1949 Act or section 15 of the 1968 Act").

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 489 and 490. New Section 281(2) provides that a management notice cannot be served on an owner or occupier unless English Nature or the Countryside Council for Wales is satisfied that it is unable to conclude, on reasonable terms, an agreement with the owner or occupier as to the management of the land in accordance with the management scheme.

The nature of the agreement is not specified. It is implied that the agreement would be under Section 16 of the 1949 Act or Section 15 of the 1968 Act but that is not clear. This amendment would clarify the situation. The amendment would also make it clear that EN/CCW had to be satisfied that it could not conclude a formal agreement under those provisions. If EN/CCW attempted to reach an informal agreement and the owner was unwilling, EN/CCW might argue that it could then proceed to a management notice without attempting to secure a formal agreement. I maintain that that would be unfair on the owner or occupier who should expect to be involved not only in informal discussions prior to the serving of a management notice but also in serious, formal negotiations over a formal agreement that would meet both the owner's needs and those of EN/CCW.

I deal now with Amendments No. 489 and 490. The Government have previously amended the Bill to remove references to management agreements on SSSIs being on terms reasonable to EN/CCW. The Government have accepted that such agreements should simply be on reasonable terms which can be assessed from the viewpoints of all parties, not simply on terms which appear to the council to be reasonable. That is a vast perspective which may devalue the perspective of the other party. We are grateful for that.

But there is another example in the Bill of undue bias towards the view of EN/CCW over that of the other party, who is the owner or occupier. That arises in new Section 281(4). That requires that the works of other matters specified in the management notice must appear to the council to be measures which it is reasonable to require, rather than simply measures which it is reasonable to require.

That is a biased approach. The amendment, by deleting the words "appear to the council", would restore a fair balance between the perspectives of EN/CCW and those of the owner or occupier.

Appeals against management notices under new Section 28J bring the implications of the current wording even more sharply into focus. As the Bill is worded, the issue in an appeal would simply be whether EN/CCW was reasonable to include the measures in the notice, and not whether the measures themselves were reasonable. Surely that would be far more difficult for an owner to contest effectively than the issue of whether it would be reasonable to require him to carry out the works on the SSSI land. The occupier would be faced with proving that EN/CCW staff had acted unreasonably and not that the works themselves were unreasonable.

A fairer appeal system would surely require that persons other than EN/CCW should be able to test whether the requirements of the notice—the work specified—were reasonable. As the Bill is drafted, it would deny that opportunity to owners and occupiers or any inspector appointed to hear the appeal. Accordingly, the Bill should be amended as I have suggested.

I turn to Amendment No. 490. New Section 281 provides that where a management notice has been served and the works required have not been carried out by a specified date, the council may enter the land and carry out the works itself. It also provides that the council may recover "any expenses reasonably incurred" in so doing from the owner or occupier on whom the notice was served.

It would not be unreasonable for EN/CCW to seek to recover from the owner any sum that it had previously given to the owner to carry out the works under a management agreement. If it recovers that money, the council should use it to fund its own costs in carrying out the work. The only cost that the council should be able to seek to recover over that amount should be any additional cost over and above the sum that it incurs.

Continually, the DETR has assured us that owners and occupiers would be required to pay only costs incurred over and above the sums offered under any management agreement. Amending the Bill as proposed would ensure that there was certainty on that point. I beg to move.

Baroness Young of Old Scone

I am slightly confused as to the intent of Amendment No. 490. I thought I understood it when I read it, but now that the noble Lord has spoken to it I am more confused. Perhaps I may describe the circumstances in which a management notice would be served and in which the costs of carrying out the works that had not been carried out by the owner and occupier would be sought from him.

Under the Bill there would be notification, consultation and eventually confirmation with regard to SSSIs. There would then be considerable discussion about reaching a voluntary management agreement. In the absence of an agreement being reached voluntarily, a management scheme would be drawn up and consulted upon. Eventually, if the management scheme was not accepted and work that was required was not carried out, a management notice would be served, giving a clear indication of the work needing to be carried out. If the work was still not carried out, action would be taken to seek the costs of such work, as the Bill describes.

One has to go a long way down the road before reaching that point. The number of owners and occupiers who would come into that category would be small. If such an owner or occupier did not agree with the management scheme, he could appeal. The circumstances described are of someone having gone through a number of stages, with consultation at each stage and with an eventual right of appeal to the Secretary of State, and still saying, "I am sorry; I will not do what the site now urgently requires and which has been agreed by a whole variety of bodies, including (potentially) the Secretary of State". We are talking about extreme circumstances. If I were not in your Lordships' House, I might use a word I sometimes use about a small number of people who come into that category!

I believe that it would be slightly unreasonable if the amount that was reclaimed from such an owner or occupier were to be offset by the amount of a management payment that he would have received if he had agreed to the management agreement. I believe that accepting this amendment would encourage the small proportion of owners and occupiers—the few bad apples—who give a bad name to the majority of landowners who work well with the conservation bodies and who really care about the conservation of their land, to behave as badly as they like until they finally run out of road. I urge the Minister to reject the amendment.

4.15 p.m.

Lord Whitty

My noble friend Lady Young has done half my job for me. It is clear that the procedures covered by this new section are end-of-the-line procedures. A management notice will be used in only exceptional circumstances. The agency will already have entered into discussions with the land manager about the appropriate management of the conservation interest; it will have discussed the con tent of a scheme; it will have served the management scheme with a further opportunity for the and manager to comment; and it must have offered to enter into a management agreement on reasonable terms. Only then may it serve a management notice if it has not been possible to reach such an agreement. Given that lengthy and clear process, which allows the opportunity for landowners and land managers to make representations throughout, let us now focus on what the appropriate formulation should be when such a situation arises.

If Amendment No. 488 were agreed to, we would have to deal with a situation where the agency will have offered an agreement using its existing powers under Section 15 of the Countryside Act or Section 16 of the National Parks and Access to the Countryside Act. They have no other powers in relation to agreements with owners and occupiers. In the majority of cases where work must be undertaken, the agreement will include the offer of a financial sum.

In relation to Amendment No. 490, I can assure the noble Lord that where the agency has subsequently served a management notice which is not complied with and, exceptionally, uses its powers to enter land, carry out work, and recharge its costs to the land manager, the amount to be recovered should indeed exclude any amount which had been offered under the management agreement for the work to be carried out. That is a matter for guidance rather than for the Bill itself.

Ministers are required to issue guidance on the terms of agreements and already we have issued for consultation a draft of Financial Guidelines on Management Agreements. A similar draft has been issued for Wales. Having taken account of the comments received, and having regard to matters raised in debates on this Bill, we shall issue final guidance once Part III of the Act comes into force. We have also issued a consultation paper on the terms of guidance to the agencies—Sites of Special Scientific Interest: encouraging positive partnerships—in which the issue addressed by Amendment No. 490 is covered in paragraph 51.

On the matter of the "reasonableness" of a management notice, which is covered by Amendment No. 489, as my noble friend said, that may be tested by appeal to the Secretary of State. That appeal would not be on the rather narrow grounds identified by the noble Lord, but on the grounds that the agency could not reasonably have reached its decision, which involves both process and substance. That is a standard procedure and more or less a standard form of words in legislation; for example, comparable references appear in planning legislation and in relation to enforcement notices issued by a planning authority, which must state the matters that appear to that authority to be included, such as those in relation to listed buildings. Likewise, such a provision appears in environmental legislation, where action may be taken where the enforcing authority "is of the opinion". In each case the body taking action must decide what appears to it to be reasonable. That is the situation here. There are ample precedents for that approach. There is also an appropriate means to test that decision, should an appeal be made.

Therefore, I hope that that is sufficient reassurance for the noble Lord that the rights of landowners and occupiers would be fully and appropriately protected in this almost last-resort procedure and covered by these provisions in the Bill, and that he will not press his amendment.

Lord Luke

I am grateful to the Minister for that explanation and for that of the noble Baroness, Lady Young of Old Scone, though I do not believe that the amendment would have provoked any owners to do what she suggested. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 489 and 490 not moved.]

Lord Glentoran moved Amendment No. 491: Page 99, line 33, leave out ("Secretary of State") and insert ("Lands Tribunal").

The noble Lord said: In moving Amendment No. 491, I shall speak also to Amendment No. 492. Amendment No. 491 concerns appeals against management notices and suggests that they be heard by the Lands Tribunal and not the Secretary of State. Before going into the detail of the amendment, I should say that I am well aware of the earlier debate in relation to the suitability of using the Lands Tribunal as an appeal court for this Bill. However, there are some pertinent arguments in this matter and the purpose of the amendment is to ask the Minister to agree to reconsider the appellate system generally before Report stage.

It is suggested that the Secretary of State is not well placed to hear appeals. In particular, the Secretary of State has a duty under new Section 28E, to take reasonable steps, consistent with the proper exercise of [his/her] functions, to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which [a] site is of special scientific interest".

Against that background, how can a Secretary of State properly adjudicate on an appeal against a management notice which will necessarily have been served with the aim of furthering the conservation and enhancement of an SSSI? If the Secretary of State upholds the appeal, he could be liable to judicial review for failing to honour his duty under new Section 28E. In practice, the Secretary of State is likely to avoid that possibility by rejecting appeals against notices as a matter of course. The right of appeal thus becomes totally meaningless.

A more independent person is needed to hear appeals. The amendment proposes that that might be the Lands Tribunal, which has the advantage of not being appointed by the same Secretary of State responsible for government policy on SSSIs and for the activities of the statutory agencies, English Nature and the Countryside Council for Wales. However, it is possible that the Lands Tribunal will also be caught by the duty under new Section 28E, which will lead to the same potential problem of conflicting interests and the desire to avoid judicial review by refusing appeals. Indeed, it may be the case that only the courts would be totally independent because they are not bound by the new Section 28E duty. If so, appeals should be heard by a judge in court.

Those issues need to be discussed and considered. In the light of the Human Rights Act, now in force, I believe, there is a general issue of whether the right to an independent hearing can be effectively exercised where the person hearing the appeal is not fully independent of the legislation under which the appeal is made. It is important that this Bill properly reflects the requirements of the human rights legislation.

Amendment No. 492 is in a similar vein and seeks to include within appeals against management notices appeals against the contents of a management scheme in so far as they are reflected in the notice. The Bill contains no formal mechanism for appealing against a management scheme. Owners and occupiers can merely make representations on a draft scheme, which must then be considered by the council as per new Section 28H(7). However, the council is not required to amend the scheme in the light of any comments or representations made on it.

An independent view on a management scheme can be sought only when an owner appeals against a management notice which gives effect to a scheme. If such an appeal can cover the details of the scheme as well as those of the notice, an effective safeguard is provided for owners. It makes sense to provide for appeals against schemes at the point at which they actually "bite" on owners and occupiers; that is, when a management notice is served. However, there is nothing specifically in the Bill to say that appeals against management notices will include appeals against management schemes, to the extent that the notice includes measures specified in the scheme. The amendment corrects that omission. I heard with considerable sympathy what the noble Baroness, Lady Young of Old Scone, said in relation to appeals and so forth. But appeals will arise and it is important that the Bill is correct and comes within the human rights laws.

Furthermore, I understand that members of the National Farmers Union are concerned that owners and occupiers will be restricted to appealing against requirements in a management notice as opposed to having a right of appeal against the imposition of the management scheme itself. Accordingly, they strongly support Amendment No. 492 as it seeks to link the management notice to the scheme as a whole. However, there is also anxiety about the perceived independence of the Secretary of State to hear appeals, given that the nature conservation bodies are his own statutory advisers on nature conservation matters. The NFU believes that the appeal procedure should be seen to be independent of politicians and quangos and urges Members of the Committee to press the Minister on the Government's intentions regarding the delegation of appellate functions to which paragraph 6 of Schedule 8 refers.

We therefore ask the Minister to think again on the appellate mechanisms before Report stage. I beg to move.

Earl Peel

I support my noble friend's amendment. There is no doubt about the significance and importance of the management agreements and the notices that go with them, not only from the point of view of the duties of English Nature and CCW, but also from the point of view of the person who has responsibility for managing the land. The management agreements and notices that follow could have a serious impact on the way the land is managed and how those responsible respond.

It is essential that appeals are heard in a thoroughly independent way. If the Secretary of State (or his appointee) is under a duty to conserve and enhance, as the Bill describes, how can he possibly be independent? And how can he be put in charge of the appeal procedure? Common justice alone, notwithstanding the human rights aspect, should ensure that Amendment No. 491 is accepted or considered seriously.

Baroness Carnegy of Lour

I shall be interested to hear the Minister's reply in relation to this human rights issue. I listened carefully to the arguments. Nobody would feel it was fair for the Minister of Agriculture, Fisheries and Food to decide whether or not a farmer could continue with his normal way of earning a living, despite the fact that he was doing damage. Equally, it would not be fair for the Secretary of State for the Environment, Transport and the Regions to do it. At the end of the day, conflicting interests arise in relation to these decisions.

I do not know what the answer is. But the "fair trial" point is extremely interesting. The whole subject interests me because it is cropping up in so many areas. It is not an exaggeration to say that this may turn into an issue. I therefore look forward to hearing the Minister's response.

4.30 p.m.

Baroness Miller of Chilthorne Domer

It is difficult to try to include the Lands Tribunal in the process because it was set up to deal with different issues—for instance, those between landlords and tenants—and therefore its membership may not be suitable. We are trying to ensure that the appeals are fair and that the public interest is adequately represented. I should be concerned if judges were involved because the process would then become very expensive and bound up with the courts.

We on these Benches understand concerns that the same department should not be judge and jury. An appeals procedure can adequately involve the Government through the inspectorate process and therefore I would resist any move towards including the Lands Tribunal in particular. I fear that it would represent only one section of the interests in the appeal.

Earl Peel

The noble Baroness acknowledged the fact that there needs to be independence in the procedure and then went on to say that it was important that it should be independent and that the public interest should be represented. However, in order for the system to be thoroughly independent it must be able to represent not only the public interest but also the interest of those responsible for managing the land.

The noble Baroness may be right in saying that the Lands Tribunal is the wrong vehicle, but I wonder whether she acknowledges the principle that it should be someone other than the Secretary of State or his representative within the department.

Baroness Miller of Chilthorne Domer

I shall be interested to hear the Minister explain which Secretary of State will be involved. The noble Lord, Lord Glentoran, wondered whether it would be MAFF or the Department of the Environment. Transport and the Regions and how they would tie in with equally difficult and contentious issues relating to development and control. Those are as controversial and difficult for owners of land and as difficult to resolve in the public interest as are the kind of issues which will be raised in respect of this legislation. There are not adequate procedures in place at present.

Lord Marlesford

My noble friend has highlighted a problem but I suspect that the solution proposed in the amendment may not be the right one. However, it is axiomatic that while one can have a review of a decision from within a hierarchy, an appeal against a decision cannot be fairly heard within that same hierarchy. Let us face it, in this context "Secretary of State" is another name for an official employed by him.

The noble Baroness mentioned the inspectorate, but in almost all cases an appeal against, say, a planning refusal by a local authority is made to a wholly separate and independent inspectorate which is not part of the local authority and in a sense cannot be said to be under the direct command of the Secretary of State.

The Minister must come forward with a solution—although perhaps not today—otherwise an element of unfairness will undermine many of the purposes of the Bill, which many of us support.

Lord McIntosh of Haringey

It is important to put this interesting debate in context. These amendments address the situation in which the conservation agency has served a management notice requiring the owner or occupier to take specific actions to conserve the SSSI, who then has the right to appeal against that notice.

We have discussed the role of management schemes, but the management notice is an important new tool for the agencies in pursuing the aim of ensuring that all SSSIs are brought into positive management scheme. But it is carefully targeted. It can be used only where there is a management scheme. The scheme will not have been made without preliminary discussions with those who work the land to ensure that what is included is reasonable and practicable. Furthermore, there is a right of appeal against the notice to the Secretary of State or to the National Assembly for Wales. I shall turn to that point in a moment.

The Secretary of State is an abstract concept. In legislation, there is only one Secretary of State; he is not described as "Secretary of State for the Environment, Transport and the Regions" or anything else in case the names of departments change. However, one of the ways the Government are described in legislation is "Secretary of State". Incidentally, he is always referred to as "he". When in Opposition, I once tabled amendments to refer to the Secretary of State as "it" on the ground that that was less sexist. I did not get very far, although I am assured that it is done in Oregon.

The Secretary of State, that abstract concept, is well used to balancing the many different statutory duties under which he works and is required to reach decisions. It is intended that the appeals procedures should be speedy and effective—that takes up the point made by the noble Baroness, Lady Miller—and that they should reduce unnecessary formality and keep cost and delay to a minimum. That is in everyone's interest. Such procedures will also allow for full and fair consideration of all the points raised by the conservation agencies and by owners and occupiers appealing against notices.

I do not doubt that as a court of law—and it is equivalent to a court of law—the Lands Tribunal provides an excellent service in the determination of issues relating to land law and valuation, which is the expertise of the Lands Tribunal and not the kind of considerations we are debating. But I do not believe that the body is appropriate for this type of appeal.

We envisage that planning inspectors in the Planning Inspectorate, whose independence was referred to by the noble Lord, Lord Marlesford, will normally be used in the determination of these appeals. In the vision statement, the Planning Inspectorate has reiterated the aim that the inspectorate should be, the prime source of impartial expertise for resolving disputes about the use of land, natural resources and the environment". It already does that, not only in judgments between one individual or organisation and another but, for example, in relation to conservation orders. They are closely comparable to the kind of appeals we are debating and the inspectorate should be ideal for the purpose. Inspectors chosen to hear the cases will have appropriate qualifications which enable them to understand and report on the issues raised. They will provide a report to the Secretary of State, who will issue his decision.

I was asked, as I have been on many occasions, about the European Convention on Human Rights. The position of planning inspectors was specifically examined by the European Court of Human Rights in the Bryan case in 1996. While the court established that a planning inspector is not an independent tribunal, planing legislation provides a means of challenging the decision in the High Court. The ECHR also found the scope of judicial review to be sufficient for the purpose of Article 6 of the European Convention on Human Rights. I am satisfied that determination by the Secretary of State fulfils the requirements under the Human Rights Act for a fair and impartial hearing.

As to the contents of the appeal, raised by Amendment No. 492, the management notice can only be served where an owner or occupier is not giving effect to a management scheme. It would be wholly unfair if the land manager could be required to take action without knowing beforehand what action he might be required to take. He will already have had several opportunities to influence the content of the management scheme, in particular under the consultation provisions in new Section 28H(3). I can assure the Committee that the agencies' staff will listen carefully to the views of those who live on or work the land. We covered that point in our debates on Amendment No. 483C.

Since the work specified in the notice must be work required to ensure the land is managed in accordance with the scheme, it is implicit that any appeal against the notice may address issues concerning whether the scheme is reasonable to the extent that the scheme is reflected in the management notice. If the appeal is allowed and the notice has no effect because the Secretary of State takes the view that the work is unreasonable or unnecessary, I would expect English Nature to look again at the management scheme and consider how it should be amended. That point was raised under new Section 28H(11) of the Bill which enables it to modify or cancel a scheme.

I hope that that deals with the points raised in the amendments.

Lord Peyton of Yeovil

I must confess to some disappointment with the Minister's reply. Unsurprisingly, he is obedient to the instructions contained in his brief—I am not sure whether it is instruction or advice—and is at least content to go along with the proposal that the appeal should go to the Secretary of State.

It may well be that the Lands Tribunal is not the proper forum before which such an appeal is heard. I hope the noble Lord will reflect on the fact that not everybody shares the confidence of the authors of this Bill. There are worries that those who have designed the scheme are out of sympathy with the needs of the countryside. Those who take that view, of whom I am one, are unlikely to be happy with the notion that, the department having decided something, the Secretary of State is the one who, with the advice of those who have made the decision, hears the appeal. The department, which is a very difficult body to divide up into little pieces, will be on the side of the decision unless something has manifestly gone wrong.

I hope the Minister accepts that there is real dissatisfaction with the situation. It does not matter to me whether the Secretary of State is he, she or it, or the Minister has an attachment which limits his area of operation. I do not accept that the judgment and wisdom of Secretaries of State is always as immaculate as government supporters like to believe.

Lord McIntosh of Haringey

I am sorry to hear those comments, particularly in the light of their source. The noble Lord, Lord Peyton, who was a Minister in charge of a major part of what is now the Department of the Environment, Transport and the Regions, knows perfectly well the way in which legislation is formulated and how those on the Government Front Bench debate it. The noble Lord also knows perfectly well that in briefing meetings before the matter comes before the House of Lords, Ministers satisfy themselves that the arguments they put forward are not just plausible but convincing and right.

Lord Peyton of Yeovil

In view of the noble Lord's reference to my past, when I played a part in the great spongy heap then known as the "Department of the Environment" seeds of doubt began to be sown in my mind, and they have since flourished.

Lord McIntosh of Haringey

There is more joy in heaven when one sinner repenteth. Long may the noble Lord maintain his seeds of doubt! We have a job to do and we carry it out to the best of our ability. I have set out the reasons why we believe that the Planning Inspectorate is sufficiently independent for the purposes of these appeals. I also believe I have shown that when there was a direct challenge to the independence of the inspectorate the European Court of Human Rights found that the scope for judicial review was sufficient. Therefore, the planning legislation provides adequate means to challenge a decision in the High Court. I do not know that I can add to that.

Baroness Carnegy of Lour

Can the Minister tell the Committee who employs planning inspectors? If the employer is technically the Secretary of State for the Environment, Transport and the Regions are any of the inspectors on temporary contracts?

Lord McIntosh of Haringey

The taxpayer employs planning inspectors. I do not believe that the inspectors are on temporary contracts, but if I am wrong I shall write to the noble Baroness.

Baroness Carnegy of Lour

I did not hear the response of the Minister. Who employs them?

Lord McIntosh of Haringey

We pay for them as taxpayers. The employer is technically the accounting officer, but I do not believe that it matters.

Baroness Carnegy of Lour

Who is responsible for making the appointment? Surely, under the European Convention on Human Rights it does matter.

Lord McIntosh of Haringey

That is a different question from who employs them. As to their appointment, they are appointed by the Department of the Environment, Transport and the Regions.

4.45 p.m.

Lord Glentoran

We have had an interesting debate. While I accept the Minister's observations about Amendment No. 492 and the content of any appeal, to some extent the noble Baroness, Lady Miller, supported my point about the appellate procedure. My noble friend Lord Peyton made clear our worry, that of the NFU and, I am sure, many others. I said at the beginning of my remarks about this group of amendments that essentially Amendment No. 491 was a probing amendment to test the Government's view on the procedure. On that basis, I do not seek the opinion of the Committee. However, we shall return to this issue. We expect the Government to take another look at it, particularly bearing in mind that, as I understand it, the decision of the European Court of Human Rights to which the Minister referred was as long ago as 1996. These matters move on fairly quickly and one wonders where one is now.

We shall table another amendment at Report stage to deal with this matter. We hope that the Government will give the matter further thought and perhaps table their own amendment, which will save us from moving ours. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 492 not moved.]

Baroness Farrington of Ribbleton moved Amendment No. 493: Page 101, line 16, leave out from ("section") to end of line 19.

The noble Baroness said: In moving Amendment No. 493 I should like to speak also to Amendments Nos. 494 and 521. This is a group of technical amendments which correct references to the giving of advice by Ministers on the terms of management agreements entered into by the conservation agencies. Section 28K in Schedule 8 explains the circumstances in which the agency may make a payment to an owner or occupier of an SSSI. Amendment No. 493 deletes superfluous references in this section to agreements which are already covered in Section 50 of the 1981 Act. Section 28K(3) indicates that the amount of any payment is to be determined by advice given by the Secretary of State. To ensure consistency with existing references in Section 50, Amendment No. 494 provides for this advice to be given by Ministers (the Secretary of State and the Minister of Agriculture, Fisheries and Food). In Wales this guidance will be issued by the National Assembly. That function is transferred along with other provisions of the 1981 Act.

Amendment No. 521 refers to Section 50 of the 1981 Act. The amendment removes any reference to the circumstances in which agreements might be offered. Under the Bill these circumstances will become irrelevant. As a result, the agencies will now have a general power to make payments under Section 16 of the 1949 Act and Section 15 of the 1968 Act, but that will be subject to the ability of Ministers to provide guidance generally on payments. We have issued a consultation paper on revised draft guidance. That takes account of the principles for calculating payments to farmers to which we are required to have regard under the European Commission's Rural Development Regulation and the notification of management agreements as a state aid. We shall issue revised guidance taking account of the comments received and the debates in this House and in another place next year. I beg to move.

Baroness Byford

I thank the Minister for her explanation of Amendment No. 493. I accept that the point is covered in another section. Perhaps I may just ask for clarification. We have had a debate about the role of Secretary of State, who is a nameless figure—he, she or it—who moves around. Which Minister will be responsible in each department?

Baroness Farrington of Ribbleton

My understanding is that "the Ministers concerned" include the Minister of Agriculture, Fisheries and Food as well as the Secretary of State for the Department of the Environment, Transport and the Regions, where appropriate. But the use of the term "Minister" allows for an extension of that to "appropriate Minister" should that become relevant. I cannot foresee circumstances in which it would in this particular case. That is my understanding. Should that be wrong, I shall write to the noble Baroness and place a copy of the letter in the Library, particularly for the benefit of the noble Lord, Lord Peyton, who is listening very carefully.

Lord Peyton of Yeovil

I am obliged to the noble Baroness. I think that the word she is looking for is "convenience". The Secretary of State concerned will be decided according to the convenience of the Government.

Baroness Farrington of Ribbleton

I am quite sure that the Government always seeks to do things conveniently, but never inappropriately.

On Question, amendment agreed to.

Baroness Farrington of Ribbleton moved Amendment No. 494: Page 101, line 21, leave out ("Secretary of State") and insert ("Ministers").

On Question, amendment agreed to.

Lord Luke moved Amendment No. 495: Page 101, line 30, after ("agreement") insert ("under section 16 of the 1949 Act or section 15 of the 1968 Act").

The noble Lord said: In moving Amendment No. 495, I should like to speak also to Amendments Nos. 496, 497 and 497ZA. These amendments deal with the matter of compulsory purchase. I am grateful to the CLA and the NFU for their considerable input into the four amendments. New section 28L(2) provides that English Nature or CCW may compulsorily purchase land in an SSSI if they are satisfied that they are unable to conclude, on reasonable terms, an agreement with the owner or occupier as to the management of the land. The nature of the agreement is not specified. It is implied that the agreement would be under Section 16 of the 1949 Act, or Section 15 of the 1968 Act. But that is not clear. The amendment would clarify the situation.

The amendment would also make it clear that English Nature or CCW had to be satisfied that they could not conclude a formal agreement under these provisions. If English Nature or CCW attempted to reach an informal agreement and the owner was unwilling, English Nature or CCW might argue that they could then proceed to compulsory purchase, without attempting to secure a formal agreement. That would be unfair on the owner or occupier, who should expect to be involved not just in informal discussions prior to compulsory purchase, but also in serious formal negotiations over a formal agreement that would meet both the owner's needs and those of English Nature or CCW.

I turn now to Amendment No. 496. It is an important principle that before exercising any compulsory purchase powers any government body should seek to find alternative ways of achieving its objective. Depriving someone of their land and property in the interests of the state should always be viewed as a last resort.

Alternative options could include negotiating a management agreement, as provided for under new Section 28L(2)(a). A further option is voluntary purchase. However, although this option is mentioned in the draft financial guidelines in relation to SSSIs, it is not explicitly recorded as a prior condition for compulsory purchase in the Bill.

It is important, in safeguarding the interests of owners, that such a provision should be added to the Bill. The amendment would accordingly require English Nature or CCW not only to be satisfied that a management agreement could not be secured on the site, but also to have offered to purchase the site voluntarily before the body could exercise its compulsory purchase powers.

Amendment No. 497 seeks to tighten up the conditions under which English Nature or CCW could manage or dispose of land which it had compulsorily purchased. At present new Section 28L(4)(a) suggests that English Nature or CCW could simply "manage" the land itself. There is no reference to the land needing to be managed for the purpose of conserving the features of scientific interest which it contains. English Nature or CCW might accordingly decide to manage the land for other purposes, including income-earning purposes, which opportunities should properly be available to the owner of the land. English Nature or CCW might, for example, simply open the land up to recreational uses, for which it then charges a fee.

Similarly, new Section 28L(4)(b) enables English Nature or CCW to dispose of compulsorily purchased land on terms simply designed to ensure that the land is managed satisfactorily. What is there to stop English Nature or CCW selling land for high-value built development? The land would still presumably be managed satisfactorily in its new use.

The ability of English Nature or CCW to manage the land and to dispose of it should be related closely back to the primary function of conserving the flora, fauna and features of the site. If the land is to be managed by English Nature or CCW, it should be purely for the purpose of conserving its features. If it is to be sold by English Nature or CCW, it should be for the purpose of ensuring that its features can continue to be conserved appropriately. The amendment would achieve both purposes.

The amendment substitutes for the existing wording in new Section 28L(4)(a) and (b) the wording in new Section 15A of the Countryside Act 1968, which is introduced in Clause 66(3) of the Bill. Unlike the wording of new Section 28L(4), this wording ties in the purposes of management and of disposal closely to the conservation of the features of the land. It provides a useful model.

Amendment No. 497ZA is quite plain and seems to be fair and equitable. However, if the Government confirm that this situation is covered by Crichel Down principles, I shall he satisfied. I beg to move.

The Earl of Caithness

I rise to support my noble friend on these amendments, in particular Amendments Nos. 496 and 497ZA. With regard to Amendment No. 496, I agree with my noble friend that compulsory purchase should be very much a last resort. If we are to have nationalisation by the Government, or by a quango appointed by the Government, it should be very much a last-ditch performance. Therefore, a reasonable offer should have been made beforehand by the council. I am one of those in a minority, compared to noble Lords on the other side, who still believe that the private ownership of land is the best way to preserve the flora and fauna of our countryside. If that can be managed in partnership with appropriate management agreements, that is far better than compulsory purchase.

Amendment No. 497ZA is, as my noble friend has rightly said, the Crichel Down principle. That is engraved in every surveyor's heart as an important principle. I see the noble Lord, Lord McIntosh of Haringey, nodding. Perhaps it is already covered under other sections. I hope that he will be able to confirm that that is the case.

Baroness Miller of Chilthorne Domer

Given the contention that compulsory orders always engender, we are grateful to the Conservative Front Bench for putting down these amendments in order that the position may be clarified in principle. Although we are not sure that all the amendments are entirely necessary, we feel that they are helpful in ensuring that the situation is just and fair.

5 p.m.

Lord McIntosh of Haringey

Perhaps I may start by confirming that we fully accept the spirit of the amendments, although we think, as I shall show, that they are already provided for. Secondly, we agree with the noble Earl, Lord Caithness. Compulsory purchase orders are a matter of last resort. I say that not because of any philosophical views we may hold about public or private ownership of land, and why there should be public or private ownership of land, but because compulsory purchase is expensive and takes a long time and one does not do it unless one has to. Having said that, I want to attempt to show that the amendments are not necessary.

Amendment No. 495 deals with the actions which the agency should take prior to considering the compulsory acquisition of land. The only powers that the agency has to enter into these agreements are indeed those under Section 16 of the 1949 Act and Section 15 of the 1960 Act. But there is no need for the clause to repeat them. It is a fact of legislation, as any lawyer will confirm. It does not need to go on the face of the Bill.

Turning to Amendment No. 496, I am also clear that the matter of good practice where the agency fails to secure an agreement and remains deeply concerned about the condition of an SSSI is that it will try to negotiate voluntary purchase of the land. The agency sets aside a small amount of its grant-in-aid to support land purchase by voluntary conservation organisations. Compulsory purchase is an expensive and over-lengthy process. It would be inappropriate for public bodies to enter that process lightly, although in some cases, as is generally recognised, it may be the only option.

Amendment No. 497 suggests that the actions o f the agency in determining what to do on or with the land which it has acquired also need to be constrained in statute. We have heard reference to the difference between new Section 28L and the wording of Clause 66(3), which introduces new Section 15A of the Countryside Act. In contrast to the provisions we are discussing, one of the situations with which Clause 66(3) deals is where the agency may seek to acquire land outside a site of special scientific interest where the actions on that land are having a damaging effect on those special features. However, new Section 28L, which is the subject of this amendment, is different. This compulsory purchase power arises only where the agency is unable to secure the management of the land. Reference to "management" in the context of new Sections 28H to 28J relating to the satisfactory management of SSSIs follows the reference to "management schemes" which are for the conservation or restoration of species or habitats. So "management", as referred to in new Section 28L(4)(a) and (b), will be interpreted in the same way—manage to conserve or restore the flora, fauna, or geological or physiographical features of the SSSI—and could not be used for income-earning activities or high-priced development. Therefore, I do not think that Amendment No. 497 is necessary.

I turn to Amendment No. 497ZA. It seems unlikely that land in an SSSI purchased compulsorily will no longer be needed in future for that purpose. But a major disaster or catastrophe could occur so that the land at some point is no longer of SSSI quality. If that were the case, and there was no prospect of the special interest being restored, we would expect a public body to follow normal practice and offer the land back to the original owner or his heirs for purchase. That does not go quite as far as the Crichel Down commitment for which noble Lords asked me, but the question of whether the Crichel Down rules should be statutorily applied to bodies such as the conservation agencies forms part of a government review of compulsory purchase and compensation. A policy paper on that matter is due in the new year. We do not think it would be appropriate to amend this legislation pending a decision on whether the rules should be statutorily applied more widely.

To sum up, the statutory requirement of the Crichel Down rules does not at the moment apply to the agencies, but we would expect a public body to follow that normal practice and offer the land back.

I hope that I have given the noble Lord, Lord Luke, enough reassurance to enable him not to press the amendment.

The Earl of Caithness

I regret to say that I am not very reassured by the Minister's answer to Amendment No. 497ZA. I did not like the word "expect" when he said that he would "expect" the agency to offer back the land. I would want a stronger commitment than that. I am worried about the review of compulsory purchase as a whole. It would seem sensible that all conservation bodies and other bodies that acquire land compulsorily should be under a formal duty to offer it back, either to the previous owner or his heirs.

Lord Jopling

I wrote down precisely the same words as my noble friend Lord Caithness; namely, "we would expect" that the Crichel Down rules would be followed. I do not think that that is strong enough. I am very alarmed indeed by the Minister's use of those words. I am also alarmed that new guidelines covering the Crichel Down arrangements may come out within the next few months. I am filled with foreboding about that. I am old enough to remember all the fuss over the Crichel Down affair and the situation which emerged when the father of my noble friend Lord Crathorne was in charge of the Ministry of Agriculture and resigned because of the Crichel Down arrangements. It was the actions of the Official Opposition in another place which led to the resignation of Sir Thomas Dugdale. I am horrified to think that something may happen to erode those rules.

I hope that my noble friend on the Front Bench will not be satisfied with the Minister's explanation on Amendment No. 497ZA. I shall not be in the least disappointed if my noble friend decides to test the opinion of the Committee on the matter because, in view of the Minister's words, I think it is time to fire a warning shot.

Lord Williamson of Horton

When I started my career as a young officer in the Ministry of Agriculture two sets of principles had to be respected—the principles of Magna Carta and the principles of the Crichel Down case. Therefore, I am sympathetic to the points raised by the noble Lord, Lord Jopling, and the noble Earl, Lord Caithness. It is important that we should not allow a situation to arise where government and ministries are bound by the Crichel Down rules following that case. But the creation of more and more agencies, which is what is happening, means that the rules risk being diluted or even not respected outside government. I realise that there will be a review but I think that we need a fairly firm commitment in this case that the Crichel Down rules will be respected if land which has been compulsorily purchased is after all disposed of by an agency.

Lord Marlesford

The Government have got themselves into a slight timetable muddle. Unfortunately, the review will be published after the Bill is enacted. If that were not the case, I presume that the Government would take account in this legislation of the results of that review. Therefore, between now and Report, the Government should find some way of ensuring that, if the review decides that the Crichel Down rules should have some statutory backing, the Bill can be amended to give effect to that.

Lord McIntosh of Haringey

I should like to make two points in response to the contributions from the last few speakers. First, I should not want Members of the Committee to get the wrong idea about the review. It will not review the Crichel Down rules as applied to government. The noble Lord, Lord Jopling, used the word "erosion" while the noble Lord, Lord Williamson, mentioned "dilution". There is no question of any erosion or dilution of the Crichel Down rules. The review will concern whether the Crichel Down rules should be statutorily applied to bodies such as the conservation agencies; namely, whether those rules should be statutorily applied more widely than they are at present. It will be failsafe so far as concerns the Crichel Down rules themselves.

Secondly, in response to the point made by the noble Lord, Lord Marlesford, I do not think that it would ever he appropriate for myself or any other Minister to attempt to anticipate the eventual results of a review and further to make advance commitments as regards the Government's response. However, it is of course a matter of common sense that, if the review recommended that the Crichel Down rules should be extended statutorily to the conservation agencies and if the Government agreed with that view, then the Government would seek legislative means of achieving that.

Viscount Bledisloe

Can the noble Lord enlighten us on what possible justification there can be for the principle that if the Crichel Down rules apply to the Government they should not equally apply to a government-appointed agency? Is there any argument on this point or is this merely a fact of the passage of time?

Lord Bridges

Perhaps I may ask the noble Lord a related question. I understand that the Crichel Down rules refer explicitly to agricultural land. Land being held by a conservation agency perhaps might not fall into that category. Is it possible for the Minister to clarify that point?

Lord McIntosh of Haringey

All these issues will form parts of the subject matter of the review. It is the case that the Crichel Down rules have already been extended beyond agricultural land, but, as I have said, the review will consider all such matters.

Lord Luke

This has been an extremely interesting debate. I am happy with the Government's replies to Amendments Nos. 495, 496 and 497.

However, as regards Amendment No. 497ZA, I am grateful to all those who have spoken in favour of seeking a rather more solid commitment from the Government on this point. I take note of the Minister's words as regards the review which is to take place in January—I believe the Minister confirmed that—but the review itself does not solve the problem. As the Minister rightly pointed out, we do not know what will be the result of the review. The question of limiting compulsory purchase to a measure of last resort is extremely important. Furthermore, it is essential to ensure that, as the result of a compulsory purchase, the previous owner should receive a proper commitment if there is any diminution in the quality of the land—although that may or may not happen.

Baroness Hamwee

I am sorry to intervene, but I do not know what the noble Lord intends to do with his amendments. To my mind, we have not yet received an adequate response to Amendment No. 497ZA. That amendment seeks to ensure that the former owner will have first refusal to purchase the land. I am not sure whether I have heard on what terms such a first refusal would be granted. However, if the noble Lord intends to return to this matter at a later stage, perhaps it can be dealt with then.

Lord Luke

I beg leave to withdraw Amendment No. 495.

Amendment, by leave, withdrawn.

[Amendments Nos. 496 and 497 not moved.]

Lord Luke

As I have already indicated, I am not at all happy with the response given by the Minister. I beg leave to test the opinion of the Committee.

5.15 p.m.

On Question, Whether the said amendment (No. 497ZA) shall be agreed to?

Their Lordships divided: Contents, 92; Not-Contents, 113.

Division No. 1
CONTENTS
Allenby of Megiddo, V.	Goschen, V.
Arran, E.	Hanham, B.
Astor of Hever, L.	Henley, L.[Teller]
Beaumont of Whitley, L.	Hodgson of Astley Abbotts, L
Biffen, L.	Hogg, B.
Blaker, L.	Hooper, B.
Blatch, B.	Howe, E.
Bledisloe, V.	Hylton, L.
Boardman, L.	Jopling, L.
Bowness, L.	Kimball, L.
Brabazon of Tara, L.	Liverpool, E.
Bridgeman, V.	Luke, L.
Bridges, L.	Lyell, L.
Brittan of Spennithorne, L.	Marlesford, L.
Brougham and Vaux, L.	Masham of Ilton, B
Burnham, L. [Teller]	Monson, L.
Buxton of Alsa, L.	Montrose, D.
Byford, B.	Moynihan, L.
Caithness, E.	Murton of Lindisfarne, L.
Campbell of Alloway, L.	Northbrook, L.
Campbell of Croy, L.	Northesk, E.
Carlisle of Bucklow, L.	O'Cathain, B.
Carnarvon, E.	Oppenheim-Barnes, B.
Carnegy of Lour, B.	Park of Monmouth, B.
Clark of Kempston, L.	Pearson of Rannoch, L.
Courtown, E.	Peel, E.
Cox, B.	Peyton of Yeovil, L.
Craigavon, V.	Reay, L.
Cranborne, V.	Renton, L.
Crickhowell, L.	Renton of Mount Harry, L.
Cumberlege, B.	Roberts of Conwy, L.
Darcy de Knayth, B.	Rotherwick, L.
Dean of Harptree, L.	Sandwich, E.
Deedes, L.	Seccombe, B.
Dixon-Smith, L.	Selborne, E.
Elton, L.	Shaw of Northstead, L.
Erroll, E.	Shrewsbury, E.
Fookes, B.	Skelmersdale, L.
Gardner of Parkes, B.	Soulsby of Swaffham Prior, L.
Garel-Jones, L.	Stewart by, L.
Geddes, L.	Strange, B.
Glentoran, L.	Strathclyde, L.

Swinfen, L.	Waddington, L.
Tenby, V.	Wade of Chorlton, L.
Trefgarne, L.	Weatherill, L.
Vivian, L.	Williamson of Horton, L
NOT-CONTENTS
Acton, L.	Hunt of Chesterton, L.
Ahmed, L.	Hunt of Kings Heath, L.
Alli, L.	Islwyn, L.
Amos, B.	Janner of Braunstone, L.
Andrews, B.	Jay of Paddington, B. (Lord Privy Seal)
Archer of Sandwell, L.
Bach, L.	Jeger, B.
Barnett, L.	Judd, L.
Bassam of Brighton, L.	Kennedy of The Shaws, B.
Berkeley, L.	King of West Bromwich, L.
Bernstein of Craigweil, L.	Kirkhill, L.
Billingham, B.	Lea of Crondall, L.
Blackstone, B.	Lipsey, L.
Bragg, L.	Lockwood, B.
Brennan, L.	Lofthouse of Pontefract, L.
Brett, L.	Macdonald of Tradeston, L.
Brooke of Alverthorpe, L.	McIntosh of Haringey, L. [Teller]
Brookman, L.
Brooks of Tremorfa, L.	McIntosh of Hudnall, B.
Burlison, L.	MacKenzie of Culkein, L.
Carter, L. [Teller]	Mackenzie of Framwellgate, L
Castle of Blackburn, B.	Mallalieu, B.
Christopher, L.	Mason of Barnsley, L.
Clarke of Hampstead, L.	Massey of Darwen, B.
Clinton-Davis, L.	Merlyn-Rees, L.
Cocks of Hartclifle, L.	Mishcon, L.
Cohen of Pimlico, B.	Mitchell, L.
Crawley, B.	Molloy, L.
Davies of Coity, L.	Morris of Manchester, L.
Dean of Thornton-le-Fylde, B.	Nicol, B.
Dixon, L.	Orme, L.
Donoughue, L.	Patel of Blackburn, L.
Dormand of Easington, L.	Peston, L.
Evans of Parkside, L.	Pitkeathley, B.
Evans of Temple Guiting, L.	Prys-Davies, L.
Evans of Watford, L.	Rendell of Babergh, B.
Falconer of Thoroton, L.	Rogers of Riverside, L.
Farrington of Ribbleton, B.	Serota, B.
Faulkner of Worcester, L.	Shepherd, L.
Filkin, L.	Shore of Stepney, L.
Fitt, L.	Simon, V.
Gale, B.	Stone of Blackheath, L.
Gibson of Market Rasen, B.	Strabolgi, L.
	Symons of Vernham Dean, B.
Gilbert, L.	Taylor of Blackburn, L.
Goldsmith, L.	Thornton, B.
Gould of Pottemewton, B.	Turner of Camden, B.
Graham of Edmonton, L.	Varley, L.
Gregson, L.	Walker of Doncaster, L.
Hardy of Wath, L.	Warner, L.
Harris of Haringey, L.	Wedderburn of Charlton, L.
Harrison, L.	Whitty, L.
Haskel, L.	Wilkins, B.
Hayman, B.	Williams of Elvel, L.
Hogg of Cumbernauld, L.	Williams of Mostyn, L.
Howells of St. Davids, B.	Winston, L.
Howie of Troon, L.	Woolmer of Leeds, L.
Hughes of Woodside, L.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.26 p.m.

[Amendments Nos. 497A to 498 not moved.]

[Ammendment No. 498A had been renumbered as Amendment No. 497B.]

Baroness Farrington of Ribbleton moved Amendment No. 499: Page 103, line 2, at end insert—

("Change of owner or occupier.

1. 28N.—(1) This section applies where the owner of land included in a site of special scientific interest—
1. (a) disposes of any interest of his in the land; or
2. (b) becomes aware that it is occupied by an additional or a different occupier.
2. (2) If this section applies, the owner shall send a notice to the Nature Conservancy Council before the end of the period of 28 days beginning with the date on which he disposed of the interest or became aware of the change in occupation.
3. (3) The notice is to specify the land concerned and—
1. (a) in a subsection (1)(a) case, the date on which the owner disposed of the interest in the land, and the name and address of the person to whom he disposed of the interest; or
2. (b) in a subsection (1)(b) case, the date on which the change of occupation took place (or, if the owner does not know the exact date, an indication of when to the best of the owner's knowledge it took place), and, as far as the owner knows them, the name and address of the additional or different occupier.
4. (4) A person who fails without reasonable excuse to comply with the requirements of this section is guilty of an offence and is liable on summary conviction to a fine not exceeding level 1 on the standard scale.
5. (5) For the purposes of subsection (1), an owner "disposes of" an interest in land if he disposes of it by way of sale, exchange or lease, or by way of the creation of any easement, right or privilege, or in any other way except by way of mortgage.").

On Question, amendment agreed to.

Baroness Miller of Chilthorne Domer moved Amendment No. 500: Page 103, line 3, leave out paragraph 2 and insert—

1. ("2.—(1) Section 29 (special protection for certain areas of special scientific interest) is amended as follows.
2. (2) In subsection (1)(b), after "features" there is inserted "notified as being of special interest".
3. (3) Omit subsection (2).
4. (4) In subsection (3), omit "Subject to subsection (4),".
5. (5) Omit subsections (4), (5), (6), (7) and (10).
6. (6) After subsection (11) there is inserted—

(12) This section does not apply to owners and occupiers of land which is a site of special scientific interest.".").

The noble Baroness said: In moving Amendment No. 500, I shall speak also to Amendment No. 501, which follows from it. Those Members of the Committee who have attended all the debates in Committee will remember the lengthy and interesting discussion that took place on the amendment of the noble Lord, Lord Williams of Elvel. This amendment seeks to make orders restricting the activities of third parties, to prevent damage to SSSIs and to require restoration of damage where such orders are contravened.

As the law currently stands, nature conservation orders are made under Section 29 of the Wildlife and Countryside Act 1981. Where third party activities on an SSSI are damaging to the notified interest, English Nature and the CCW can ask the Secretary of State to make an order prohibiting such activities on an SSSI with immediate effect, subject to a right of appeal, thus preventing from that moment any further damage. Anyone who ignores the order may be prosecuted and, if convicted, subjected to a fine and an order to restore the damage.

In paragraph 2 of Schedule 8, the Government propose to repeal Section 29 of the 1981 Act. As a result, no new nature conservation orders will be possible, the existing orders will cease to have effect, and the vexatious activities referred to by the noble Lord, Lord Williams of Elvel, will become even more widespread and difficult to control.

Nature conservation orders go further than the general offence in the Bill. An important feature of such orders is that they apply to the activity in general—in other words, the offence is one of breaching the order rather than causing damage in a particular instance. The orders as they now exist apply to everyone undertaking a particular activity which causes damage overall—in the previous debate we used the example of motor-cyclists using and damaging an area—-but, as the Bill is drafted, it seems that in future it will be necessary to prove the offence against every single motor-cyclist causing damage. A general order could not be served against all those undertaking such an activity in a particular area.

The amendment seeks to preserve the nature conservation orders, which would be subject to appeal, as a last line of defence against damaging activities. It seeks to amend Section 29 so that orders would apply only to third parties. There are good reasons for keeping the orders: they will strengthen the protection afforded and the ability to serve a general order will save time, red tape and money. A general order can be served on anyone undertaking a banned activity; it would not be necessary to serve on individuals separate orders requiring a higher degree of proof of damage. I beg to move.

The Duke of Montrose

The first paragraph of Schedule 8 begins, For section 28 of the 1981 Act", and there follow paragraphs relating to that section. In paragraph 2, Section 29 has been orphaned from its parent Act and the Act is not mentioned. I shall never be able to understand parliamentary drafting, but I wonder whether that is an omission. All the other paragraphs refer to the Act to which they apply.

5.30 p.m.

Baroness Farrington of Ribbleton

The Government have been concerned to deal with issues of damage to SSSIs, whatever the source. We are aware that incidents of damage by persons other than owners and occupiers of land—so-called "third parties"—have arisen, and although they are by no means the most serious threat to the condition of SSSIs, nevertheless, where it occurs, damage can be serious. Nor has it always been easy for landowners to address problems, even where activities which are damaging the special features of the site are taking place without permission on their land, and causing problems.

We have already confirmed, in connection with Part I of the Bill, that normal access by walkers should not damage sites, but Clause 24 (power to make a direction) allows action to be taken to exclude or restrict access if there is likely to be a problem, as advised by the conservation agencies.

We took full soundings from a wide range of groups before deciding to include in the Bill a specific new provision. This creates an immediate offence of intentional or reckless damage to the features by reason of which the SSSI is of special interest; and following the debate in Committee in another place this was extended to include intentional or reckless disturbance to any fauna of special interest. This is modelled on the offence which already applies in relation to ancient monuments and significantly improves the protection afforded to SSSIs. It will allow the agencies to take immediate action against activities causing damage, or disturbing any special fauna—which includes birds. It carries with it a significant maximum fine of up to £20,000 in the magistrates' court; and where a person is found guilty of an offence, the court may make an order requiring restoration of the site to its former condition.

These measures are accompanied by changes to road traffic legislation, which will improve and strengthen the powers of the police to act against unauthorised use of land by vehicles. There are also existing powers in relation to prosecution for criminal damage: for example, court action was successfully taken recently where a third party was convicted of arson on a heathland SSSI that was important for smooth snakes and nesting nightjars.

We believe that, taken together, this is a significant but proportionate response to problems arising on SSSIs. However, I have noted the strong points that have been made and we are prepared to consider whether by-laws, which are the standard approach to avoiding damage by the public and are specifically designed for that purpose, would be appropriate in this case. Powers to make by-laws already apply in relation to European sites and national nature reserves and, if absolutely necessary on further reflection, this is an option we are prepared to consider.

The noble Duke, the Duke of Montrose, raised a question in relation to Section 29 of the 1981 Act. Section 29 of the 1981 Act will cease to have effect. I hope that that is clear. It is the best that I can do in the circumstances. If there is a lack of clarity, I hold myself responsible and I shall, of course, write to the noble Duke.

Baroness Miller of Chilthorne Domer

I thank the Minister for her reply. If it is the Government's intention to return on Report to the point about the by-law, perhaps any proposal might cover the points that I made. Our intention is to cover in the simplest way possible serial vexatious activity by lots of individuals. I shall reflect on the Minister's suggestion. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 501 not moved.]

Lord Luke moved Amendment No. 502: Page 103, line 17, after ("operations") insert ("which are reasonable, practicable and necessary").

The noble Lord said: It appears that this issue was not raised in Committee in another place, and it is important that restoration requirements are reasonable in all circumstances. I am grateful to the CLA for raising this subject and to the NFU for its input to this amendment.

A court may make an order requiring a person convicted of damaging an SSSI to carry out such operations as may be specified to restore the site to its former condition.

Depending on the circumstances of each individual case, such an order might not be reasonable, might not be practicable and, in certain limited cases, might not even be necessary. The amendment would ensure that any such restoration order would be fair by having to meet these criteria. I beg to move.

Lord Whitty

I am doubtful that there is any need to make specific reference to the consideration of these factors. I am confident that a court, when considering the operations that might be required under a restoration order, would fully consider what was reasonable, practicable or necessary. The provision in the Bill as drafted is in the same terms as Section 31 of the 1981 Act, which has generally operated satisfactorily for many years.

Under the Bill as drafted, the court would retain its discretion to consider, within the context of the facts of each case, the extent of the operations that might be appropriate under a restoration order. I should also point out that Section 31(4) of the 1981 Act, which will apply, enables the court to discharge or vary a restoration order where there has been a change of circumstances which has made compliance with the restoration order impracticable or impossible. So there is no need for this reference to be on the face of the Bill. I hope that the noble Lord will not pursue the amendment.

Lord Luke

I am grateful to the Minister for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Farrington of Ribbleton moved Amendment No. 503:

Page 103, line 21, at end insert— (" . In section 32 (duties of agriculture Ministers with respect to areas of special scientific interest), in subsection (1), for "land notified under section 28(1)" there is substituted "land included in a site of special scientific interest".").

The noble Baroness said: This amendment is one of a group of technical and consequential amendments which incorporates some minor changes.

Government Amendment No. 503 amends the reference to SSSIs in Section 32 of the Wildlife and Countryside Act 1981. Amendment No. 513 amends the reference to SSSIs within the definition of a sensitive area in the Harbours Act 1964. The purpose of both is to include land notified under the new Section 28AA or AB on variation of a boundary, as well as SSSIs notified under Section 28(1).

Amendments Nos. 504 to 508 are technical amendments which clarify the definition of "a notification" in the 1981 Act to include notifications which have been modified or varied under the various procedures in the Bill.

Amendment No. 514 merely corrects a typographical error in the Bill, which refers to "simplified planning development" rather than "simplified planning zone".

Government Amendment No. 551 deletes a superfluous reference to Section 29 of the Wildlife and Countryside Act 1981. The Committee may recall that we have already discussed the question of orders under Section 29 in the context of Amendment No. 500. I have explained that the Bill repeals this provision but provides appropriate alternative means of addressing problems which may arise on SSSIs. As a consequence of the repeal of Section 29, Section 30 of the 1981 Act (which provides for compensation where an order under Section 29 is made) is also being repealed, as can be seen in Part III of Schedule 11.

Government Amendment No. 552 inserts a further minor consequential repeal—this time to a reference to the Trusts of Land and Appointment of Trustees Act 1996. This Act substituted "trusts of land" for "trusts for sale" in Section 30 of the 1981 Act, in relation to England and Wales. As part of the normal tidying-up exercise, we also need to repeal amendments to the main repealed amendment. That is the reason for government Amendment No. 552. I beg to move.

On Question, amendment agreed to.

Baroness Farrington of Ribbleton moved Amendments Nos. 504 to 508: Page 103, line 28, at end insert— ("( ) In subsection (2), after "district planning authority" insert "and, in sections 28 to 28B, shall also be construed in accordance with section 28(11);"."). Page 103, line 33, at end insert— ("(d) extended under section 28AA(2), or (e) extended with modifications by virtue of section 28AA(7),"). Page 103, line 34, leave out ("in subsection (1), and in sections 28 to 28M,"). Page 103, line 36, leave out from first ("as") to end of line and insert ("thus altered"). Page 103, line 36, at end insert— ("( ) References to a notification under section 28(1) or 28(5)(b), or to a local land charge existing by virtue of section 28(9), shall be construed in accordance with section 28AB(9).").

On Question, amendments agreed to.

Schedule 8, as amended, agreed to.

Clause 67 [Consequential amendments relating to s. 66]:

5.45 p.m.

Baroness Farrington of Ribbleton moved Amendment No. 509: Page 42, line 37, at end insert— ("( ) Schedule (Transitional provisions and savings relating to sites of special scientific interest) (which makes transitional provisions and savings relating to the coming into force of section 66) has effect.").

The noble Baroness said: This amendment introduces a new schedule ("after Schedule 9") setting out the transitional arrangements for SSSIs, as we move from the existing provisions of the 1981 Act to those provided by this Bill. The transitional arrangements make clear what will happen to sites affected by those existing provisions when this Bill comes into force. Noble Lords will have noted that the provisions are necessarily detailed: they have to provide for all situations that may exist in relation to existing SSSIs. We believe that they provide a suitable balance between the rights of owners or occupiers, and the new powers that the Bill gives to the conservation agencies, but we have throughout been mindful of the need to protect the special interests for which these sites have been notified.

It may be helpful to the Committee if I highlight the major features. First, we need to ensure that an SSSI notified under the old legislation continues as an SSSI under the new; and that all the rights and obligations in this new legislation apply to it. That is achieved in paragraph 2 of the schedule. Where an SSSI has been notified under the 1981 Act, but that notification has not yet been confirmed, these provisions will ensure that the process will continue.

Secondly, if a consent to an operation was given under the old legislation, that consent will still stand (paragraph 8(1)(b) provides for this). The conservation agency will be able, if necessary, to apply its new power to withdraw or modify that consent. But where that occurs, the same provisions concerning the right of appeal, and the making of payments, will apply as elsewhere in the Bill when consents are withdrawn or modified.

Thirdly, where an offence takes place on an SSSI, the legislation in force at the time of the offence will be that which applies. The new offences in Section 28M are not retrospective. By the same token, the requirement on public bodies to carry out operations giving rise to as little damage as possible and to restore any damage will not apply where operations have already started when the Bill's provisions come into force.

Fourthly, where a person gives notice of intent to carry out an operation listed as potentially damaging, the agency has four months under the existing legislation either to give consent or to offer a management agreement. Unfortunately, the agency has been able to do neither on occasions. In those cases, the owner or occupier has been free to go ahead with that operation, and the result has sometimes been damage to the SSSI. For those cases, we now propose providing the conservation agencies with the power to serve a "stop notice", which gives them the opportunity to look again at sites where damage is being caused to the special interest. This allows the application to those sites of the same powers to withdraw or modify consent, to which I have already referred. Similarly, there is a right of appeal to the Secretary of State and a requirement on the agency to make a payment where the owner or occupier suffers loss as a consequence of the notice.

Fifthly, noble Lords will be aware that, under Section 29 of the 1981 Act, the conservation agency was able to apply to the Secretary of State for a nature conservation order to suspend the four-month period, during which a management agreement might be negotiated. In view of the increased powers available to the agencies under this Bill, such orders are no longer required. However, any land protected by an order when this Bill comes into force will continue to be protected under the new provisions. Accordingly, we have provided a power for the agencies also to serve a stop notice in appropriate circumstances. Again, the rights of the owner or occupier are protected by a right of appeal against the notice.

Finally, we consider it appropriate to bring some certainty to the situation where, having previously given notice of intent of operations under the 1981 Act and being free to go ahead in the circumstances that I have already explained, an owner or occupier has not yet carried out the work. These may be operations that could damage the SSSI and they may have resulted from notices issued by owners as yet uncertain about future plans. We do not believe that these should have an extended life. Therefore, if they are not implemented within three years of this part of the Act coming into force, we propose that they should cease to have effect. Should the owner or occupier wish to undertake the potentially damaging activity at a future date, he would, under the new provisions, be able to apply to the agency for consent in the normal way.

It is also important for me to say something briefly about the application of these provisions to Wales. Amendments Nos. 543A, 543B and 543C ensure that the functions of Ministers in respect of the transitional schedule are devolved to the National Assembly for Wales. The main provisions in the Bill are devolved by Clause 73. This is consistent with the devolution of the existing provisions in the 1981 Act, which has already taken place under the Transfer of Functions Order 1999. It means that the Assembly will, for example, be able to determine appeals arising from a refusal of consent. But the transitional provisions are included in a separate and free-standing schedule to this Bill. In order that the Assembly may determine appeals arising on the transitional provisions—for example, in appealing against a stop notice—we need to make separate reference to the schedule in the Transfer of Functions Order. That is what the amendments will achieve.

Perhaps I may also mention a point here that noble Lords may intend to return to later when we discuss Amendment No. 515B: the means of service of a stop notice. Service of notices under the 1981 Act is provided for through Section 329 of the Town and Country Planning Act 1990, as applied by Section 70A of the 1981 Act. This contains provisions for personal service where necessary. I am grateful to the noble Baroness for tabling the amendment because it has caused us to have some doubts as to whether the wording of the schedule properly attracts the provisions of the Town and Country Planning Act. Certainly that is our attention. We shall, therefore, consider the point again and, if necessary, bring forward an amendment on Report. I beg to move.

Baroness Byford

I thank the Minister for going through such a big group of amendments. In fact, it is so big, it is difficult to respond to it.

Baroness Farrington of Ribbleton

I appreciate that point. If any Member of the Committee wishes to write to me when they have considered the group, I shall endeavour to reply as quickly as possible. I appreciate the complex inter-relationship that is involved. As I say, if Members of the Committee wish to write to me, I shall be only too happy to respond.

Baroness Byford

My comments were not intended as a criticism; I stated a fact. I have several queries with regard to the noble Baroness's response. I shall read Hansard and return to the matter. The measures have a number of implications which I am anxious not to overlook. As the noble Baroness is aware, some of my subsequent amendments comprise probing amendments to these measures. I was glad to hear her clarify that a landowner or land manager of an SSSI who wishes to modify it will be given three years in which to do so but after that time will be able to resubmit his application. As I say, because of the length of the Minister's response, I think that it is much better that I return to the matter at a later stage.

Lord Peyton of Yeovil

We are discussing Amendment No. 515, are we not?

Noble Lords

All of the amendments in the group.

Lord Peyton of Yeovil

It seems to me to be appropriate to make some comments at this stage. I warmly congratulate the noble Baroness on staying awake during her speech which, through no fault of hers, was not full of interest. It was a terrible recital to have to make. I felt some sympathy for the noble Baroness. However, I have to tell her that not even the charm and good manners with which she normally speaks in this Chamber could invest that material with any charm, although that was not her fault.

As I understand it, the whole of this schedule is now up for discussion. I should like to be told if I am wrong. Putting it as civilly as I can, I think that it is a fairly revolting monster which was heaved at Parliament as an afterthought. I always find it rather objectionable when Ministers, some of whom are possessed with extremely bad ideas, come to this Chamber and— on this occasion—empty their slop pail all over the statute book. It makes a nasty, disagreeable mess. I do not think that any amount of tidying up of which this Chamber is capable will be adequate.

The first point I want to make on this monster schedule is the following. How much prior consultation has there been with the army of people who are concerned in some way or other with sites of special scientific interest? I do not believe that there has been any great amount of consultation. As I understand the measure, it is designed to create bodies and powers and to pass about the powers in a rather high-handed fashion. I hope that the Minister will tell me immediately if he thinks that I have in any way misunderstood the situation. As I see it, this constitutes the major opportunity for us to discuss the schedule in detail. I seek guidance on that. But it seems to me that it would be wrong if we were expected to accept it in the form of an amendment and then say no more. I ask the Minister for guidance on this matter.

Baroness Farrington of Ribbleton

I apologise if my concentration made my delivery rather pedantic.

Lord Peyton of Yeovil

It had nothing to do with the delivery; it was the material that was at fault.

Baroness Farrington of Ribbleton

We issued a consultation paper in September 1998. The issues covered in the transitional provisions which the group of amendments encompass take forward the matters that were raised. Although the technical procedure for achieving the objective of this group of amendments is necessarily complex—for which I apologise—the issue is a simple one; namely, how to equate the existing provisions with the provisions in the Bill during the interim period before the Bill is enacted.

The other important point to place on record is that there has been extensive discussion on the SSSI provisions with the National Assembly for Wales, including the extent of the transfer of functions. The Assembly fully supports the proposed arrangements. I apologise again for the detail of the means of achieving what is a necessary, short-term transitional objective.

On Question, amendment agreed to.

Clause 67, as amended, agreed to.

Baroness Byford moved Amendment No. 510: After Clause 67, insert the following new clause—

cc714-21
1. COMPULSORY ACQUISITION OF LAND BY NATURE CONSERVANCY FOR ESTABLISHMENT OF NATURE RESERVES 3,286 words, 1 division
cc721-31
2. SCHEDULE 11 words
c721
1. Interpretation 136 words
c722
2. Notifications given under old section 28 79 words
c722
3. Modification of operation of new section 28 221 words
c722
4. Modification of operation of section 28A 104 words
cc722-5
5. Modification of operation of section 28C 1,914 words
cc725-31
6. Compensation and grants 2,686 words
cc731-44
3. STATUTORY UNDERPINNING OF THE BIODIVERSITY ACTION PLAN 6,705 words