inc SIMON JACKSON Nature conservation Fact sheet 14

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1 Nature conservation Fact sheet 14

2 Nature conservation 1. Protected sites and species Introduction There are many rivers, lakes and canals as well as animal and plant species that are protected within their own right or live within these habitats that have protected status under wildlifeconservation legislation. Habitat protection results from the special nature of the habitat and the types of wildlife that are present in that habitat. Where fisheries are situated within such habitats it can have a significant impact on the way the fishery is managed. In brief the following are the habitat and species protections presently in force:- 1.1 Special Areas of Conservation (SAC) SACs derive from European law and in particular the Habitats Directive. This Directive imposes on member states an obligation to prepare a list of sites of community importance that require protection by reference to habitat type or listed species. Implementation of these obligations in England and Wales is governed by the Conservation of Species and Habitat Regulations There are currently a total of 337 SACs in England and Wales; many of these consist of or include tidal or nontidal rivers and other water bodies. 1.2 European Protected Species Also deriving from the Habitats Directive is a protection of certain endangered animal species at European level. The protected species are listed at Schedule 2 of the 1994 Conservation (Natural Habitat) Regulations and include of relevance to water based habitats, otters. 1.3 Sites of Special Scientific Interest (SSSI) SSSI s are regulated under the Wildlife and Countryside Act 1981 as amended by the Countryside and Rights of Way Act They create a network of nationally protected sites which include numerous river corridors and other water based sites. 1.4 Protected Species in England and Wales The Wildlife and Countryside Act provides protection for a broader range of species than European legislation listing bird, animal and plant species that are protected backed by criminal sanctions. Fact Sheet No.14 1

3 2. European protected sites For the purposes of the Habitat Regulations and also the Wildlife and Countryside Act the appropriate authorities are Natural England in England and Natural Resources Wales in Wales. In this Fact Sheet these bodies are referred to throughout as Nature Conservation Bodies. Nature Conservation Bodies are charged in the Habitat Regulations with an obligation to comply with the Habitats Directive by identifying sites of community importance within England and Wales. Nature Conservation Bodies are given a range of powers in relation to SACs that have been notified. The 2010 Regulations give a power to Nature Conservation Bodies to enter into management agreements with a landowner whose land falls within or is adjacent to an SAC. Such agreements can impose obligations as to the use of that land, restrict the exercise of rights over that land and provide for the carrying out of work to the land. There is power to make payments to the landowner. Nature Conservation Bodies also have the power to prohibit activities that are likely to damage flora and fauna in an SAC. Specifically this Regulation applies where an area has been notified as a SSSI (see below). There is power to amend the notification of an SSSI to provide additional protection to reflect its status as an SAC. The restrictions on prohibited activities are backed up by criminal sanctions. An owner or occupier of land which forms part of an SAC will be guilty of an offence if that prohibited activity is carried out unless notice has been given to the Nature Conservation Body and one of three conditions has been satisfied. These are:- i) Written consent has been given for the operation by the relevant Nature Conservation Body; or ii) iii) The operation is carried out in accordance with the terms of an existing management agreement (see above); or Four months have passed since the notice was given to the Nature Conservation Body. In relation to the last condition, there is a provision for the landowner to agree with the Nature Conservation Body that a given operation does not breach the requirements of the notification. Where a person fails to comply with these requirements they commit an offence and can be liable to a fine not exceeding 2, Nature Conservation Bodies also have the power under the Habitat Regulations to create byelaws in relation to European Sites. Byelaws can:- i) Prohibit or restrict the entry into or movement within the site of persons, vehicles, boats or animals; ii) iii iv) Prohibit or restrict killing, taking molesting or disturbing living creatures; Contain provisions prohibiting the leaving of litter; Restrict the lighting of fires. Breach of a byelaw is a criminal offence. Fact Sheet No.14 2

4 3. European protected species There are a number of such species but the water based animal particularly relevant to fisheries is the otter. Regulation 41 of the Habitat Regulations makes it a criminal offence to capture, injure or kill a protected animal or to disturb such a species or destroy a breeding site or resting place of that species. Nature Conservation Bodies may however grant licences in certain specified circumstances. These include preserving public health or containing the spread of disease and preventing serious damage to livestock or to fisheries. The notes on the Natural England website give some guidance as to when such a licence is needed and the procedure for obtaining one. Broadly speaking though, there is a prohibition on disturbing otters or damaging their habitat. Activities that may amount to an offence could include obstructing access to resting or sheltering places, disturbance of usual routes or cutting off access to habitats or significantly changing water quality which could all fall foul of the Regulations. If an activity is affected by the Regulations it is possible to apply for a mitigation licence. This will set out steps that can be taken to mitigate the harm that has been identified. In short it is strongly recommended that if you intend to carry out any work or commence or continue an activity that may affect otters, you should consult with Natural England or Natural Resources Wales and, if necessary, take specialist advice from an ecologist or fisheries management expert. If you are found guilty of an offence of the nature set out above the penalties on conviction are a fine or a prison sentence of up to six months. 4. Protected sites in England and Wales The statutory provision for the protection of Sites of Special Scientific Interest is contained in the Wildlife and Countryside Act 1981, sections 27 to 31, as extensively amended by the Countryside and Rights of Way Act It provides for the notification of SSSIs. Where SSSIs have been notified, owners and occupiers of that land are under a duty not to carry out or permit to be carried out any operation listed in that notification. This does not apply however where the Nature Conservation Body has been given notice of the intention to carry out that operation and has given its consent. The Nature Conservation Body has the power to create a management scheme. The Nature Conservation Body has to consult with affected owners and occupiers before giving notice of an intended scheme. This provides for a period of at least three months for owners and occupiers to make objections and representations. Within nine months of service of the notice the Nature Conservation Body can confirm the management scheme or withdraw it. There are further powers to cancel or modify such schemes. The Nature Conservation Body has the power to serve a notice on a landowner where it is believed that that landowner is not complying with a management scheme. There are additional powers for the Nature Conservation Body to enter onto land and carry out works if the notice is not complied with. There are further discretionary powers for payments to be made to landowners who are affected by a management scheme. Fact Sheet No.14 3

5 There are also powers for a Nature Conservation Body to enter into a management agreement with landowners and occupiers. In circumstances where the Nature Conservation Body is unable to negotiate such an agreement there are powers of compulsory purchase on reasonable terms. Section 28P of the Wildlife and Countryside Act contains a range of criminal offences in relation to SSSIs. Included at section 28P6(A) is an offence of intentionally or recklessly destroying or damaging flora or fauna based on which the SSSI notification was made. As with SACs there is power for Nature Conservation Bodies to make bylaws in relation to SSSIs. 5. UK Protected species The Wildlife and Countryside Act 1981 also provides for the protection of a greater range of species than are covered by the European protections referred to above. The list of protected animals is at Schedule 5 of the Act and includes fish species such as burbot (albeit these are arguably extinct), shad, twaite and allis shad as well as other water based species such as species of frogs, toads and newts. Schedule 1 contains details of protected birds and Schedule 8 of protected plants. A number of these birds and plants are likely to be found in or near the water environment. Sections 1-13 of the Wildlife and Countryside Act contains a range of criminal offences relating to the killing, injuring and disturbance of protected species of birds, animals and plants. Finally it is important to point out Section 14 of the Act. This makes it an offence to release or allow to escape into the wild any species of a kind not normally resident in or a regular visitor to Great Britain in a wild state. This section has obvious relevance to the introduction of non-native species into waters such as cat fish. As indicated at the start of this Fact Sheet, both in relation to protected sites and protected species the statutory protections set out above can significantly impact on the operation of fisheries. For example, Nature Conservation Bodies may wish to restrict stocking that would result in competition for protected species. As a general rule it is clearly preferable to engage with Natural England or Natural Resources Wales, and where appropriate the Environment Agency, to ensure that operation of the fishery is carried out in a way that is sympathetic to, and approved by, those bodies. Fact Sheet No.14 4

6 Please note that this fact sheet is intended to give general guidance on the stated area of law We cannot accept any responsibility for the consequences of relying on this fact sheet in relation to particular circumstances of which we are not aware. Should you require more information on any issues raised in this fact sheet or require advice on a specific issue please contact: Harrison Clark Rickerbys inc Simon Jackson Wye Valley Oswestry Hereford Overross House Ross Park, Ross-on-Wye HR9 7US The Office Tyn Celyn Llansilin Oswestry SY10 7JW Thorpe House 29 Broad Street Hereford HR4 9AR Call Esther Stirling: Harrison Clark Rickerbys inc Simon Jackson is a trading name of Harrison Clark Rickerbys Limited SJK Fact Sheet No.14 5

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