The habitats directive and the UK conservation framework and SSSI system

Transcription

1 The habitats directive and the UK conservation framework and SSSI system Research Paper 94/90 15 July 1994 The habitats directive is one of the most significant wildlife and habitats protection measures to be produced in the last ten years or even twenty years. It will be transposed into UK law by the Conservation (Natural Habitats, &c.) Regulations This paper considers the Regulations and reviews the existing UK conservation framework, including the SSSI system. Patsy Hughes Science and Environment Section House of Commons Library

2 CONTENTS Page I. Introduction 1 II. The international habitat conservation framework 5 A. Bern convention 5 B. Bonn convention 5 C. Ramsar convention 6 D. Biodiversity convention 7 E. Birds Directive 7 F. Habitats Directive Main Provisions Effects on Bird Directive 14 III. The UK habitat conservation framework 17 A. National Parks 17 B. Areas of outstanding natural beauty 17 C. Scotland: National Scenic Areas and Natural Heritage Areas18 D. Environmentally sensitive areas 18 E. Heritage coasts 18 F. National nature reserves 19 G. Local nature reserves 19 H. Marine Nature Reserves and the problem of subtidal protection 20 IV. The UK SSSI system 24 A. Selection and designation 24 B. Management and protection 25 C. Criticisms of the SSSI system Low penalties Voluntary basis Damage by third parties Nature and cost of management agreements Land use- the example of the Cairngorms 30

3 6. Off-site damaging activities Developments on SSSIs 31 D. Damage to SSSIs 34 V. The Conservation (Natural Habitats &tc.) Regulations 38 A. Procedures for UK implementation of Directives 1 38 B. Part II Conservation of natural habitats Site selection and registration Management agreements Control of potentially damaging operations: SNC0s Byelaws and compulsory purchase powers European marine sites 44 C. Part HI Protection of species 46 D. Part IV Adaptation of planning controls Requirement to consider effect on a European site Planning 48 Appendix 1 51 Special Protection Areas already designated under the Birds Directive Appendix 2 54 Potential Special Areas of Conservation Appendix 3 55 Acronyms 1

4 I. Introduction The Conservation (Natural Habitats, &c.) Regulations 1994, which have been laid under the European Communities Act 1972, transpose into UK law the EU Habitats Directive (Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora). The Habitats Directive was adopted on 21 May 1992 and is one of the most important pieces of wildlife legislation to be agreed in the last ten or even twenty years; it is the "main vehicle through which the EC is endeavouring to safeguard its precious natural heritage" 1. The Directive further implements and gives force at an EU level to the Bern Convention on the Conservation of European Wildlife and Natural Habitats, which was drawn up by the Council of Europe in September Loss of natural habitats has been partly a historical process in Europe, with, for instance, 90% of the woodland cover in the UK being lost over the past 5000 years 3. However, it is a continuing process which has accelerated over the past 50 years. Between 1984 and 1990 there was a net decrease of 23% in the length of hedgerows in the UK, and built up land increased by 4% 4. Most of the reforestation in the UK in recent years has been through an increase in conifer (5%), rather than broadleaf woodland (less than 1%). In Europe, perhaps 22% of higher plants, 52% of fish and 42% of mammal species are threatened 5. In the UK, 94 endemic animal species and 168 plant species are protected under the Wildlife and Countryside Act 1981, which reflects "the Government's concern for those species at risk" 6. The plant species richness of grasslands, woodland and arable fields in the UK has fallen significantly since 1978, and although species richness in moorlands has risen, this may be associated with disturbance 4. The Directive aims to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora 7. A Natura 2000 network of conservation sites will be established. They will contain specific habitat types and the habitats of vulnerable species. Habitat Directive sites will be known as special areas of conservation (SACs), but the network will also include the special protection areas (SPAs) already designated under 1 "The EU Habitats Directive" John Faulks, European Environment, Spring 1994 pp Manual of Environmental Policy: the EC and Britain Nigel Haigh, Institute for European Environmental Policy, 1992 and updated 3 Biodiversity The UK Action Plan Cm 2428 HMSO Countryside Survey 1990 Main Report Department of the Environment Special issue on Bern Convention, Naturopa newsletter No 4 (1993) Council of Europe 6 HC Deb 11 July 1994 c474w 7 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora OJ L 206, , p.7

5 the Wild Birds Directive 79/409/EEC. However, during negotiations on the Habitats Directive it was decided to remove some of the protection afforded to SPAs as established by case law; please see section II.F.2. All Natura 2000 sites are termed European sites in the UK Regulations. The legislative and administrative provisions needed to meet the Directive's requirements had to be put in place by Member States by June In October 1993 the DoE/Welsh Office and the Scottish Office issued consultation papers concerning the Directive's implementation 8. The key existing terrestrial designation in the UK is the SSSI (Site of Special Scientific Interest) or the ASSI (Area of Special Scientific Interest) in Northern Ireland. Around 6000 SSSIs have been notified. A 1991 report for Wildlife Link 9 (the umbrella organisation for most of the UK's major conservation groups) concluded that SSSIs were failing to safeguard adequately Britain's finest wildlife sites. The National Audit Office recently reported English Nature/Nature Conservancy Council figures showing that since 1987, 869 cases of loss and damage to SSSIs have been recorded in England alone 10. In 1993, 40 SSSIs suffered long term damage, a higher number than in any previous year, and 107 suffered short term damage (expected to recover within 15 years). SSSIs cannot exist below low water mark, so the key marine designation is the marine nature reserve (MNR). Yet only two MNRs have ever been established in the UK, largely because of the procedures that conservation agencies have to observe before designation, especially consultation with local fishing communities 11. In a 1992 report which cited case studies to illustrate some of the problems associated with the SSSI and MNR systems, the World Wide Fund for Nature concluded 12 : "It is suggested that new legislation should be drafted which is sufficiently flexible to encompass protection for both marine and terrestrial sites in one designation....the UK Government could choose to implement the Directive in the most minimal way, avoiding the opportunity to review the mechanism for site safeguard in this country by tinkering with existing legislative and 8 Implementation in Great Britain of the Council Directive on the conservation of Natural Habitats and of Wild Flora and Fauna (92/43/EEC), The Habitats Directive. Consultation Papers, DoE/Welsh Office and Scottish Office, both 4 October SSSIs: A Health Check. A Report for Wildlife Link. T A Rowell, Wildlife Link, December Protecting and Managing Sites of Special Scientific Interest in England. National Audit Office, 11 May 1994 HMSO HC D Laffoley, J M Baxter, R J Bleakley and M Richards [in press] Marine Protected Areas in the United Kingdom: Past Experience and Future Opportunities. In: Proc. 2nd Int. Conf. on the Science and Management of Protected Areas, Dalhousie University, Nova Scotia, May The Habitats Directive: Time for Action WWF UK (World Wide Fund for Nature) November 1992

6 administrative structures. This is not good enough if we are to be sure of securing a future for the myriad of species and habitats which constitute our biodiversity". The former head of the Nature Conservancy Council, Sir William Wilkinson, has said 13 : "I think the Government should jump at the opportunity to legislate as part of its post-rio programme on biodiversity. Otherwise I see great pressure on nature conservation sites as the recession ends. We could see a flood of developments on SSSIs, unless they are turned from a system of notification, to one of protection." However, the Directive is being implemented by statutory instrument, not through new primary legislation, and the SSSI system will be used as the bedrock for the European site network. (The use of the European Communities Act 1972 to implement Directives is discussed in section V.A.) The RSPB has commented 14 : "The Government has clearly done as little as possible to meet the requirements of this Directive. The chance for the UK to take the lead in wildlife conservation in Europe has been sacrificed to expediency and Government in-fighting. By allowing the annual damage to hundreds of our best wildlife sites to continue, the Government shows that it is afraid to take its responsibilities to protect habitats seriously. Relying on a voluntary system to protect important marine areas is a disaster". However, just before the present Regulations were published, English Nature commented 15 : "Essentially, because Britain is in the vanguard amongst European nations in the way it protects its wildlife and natural features, the Directive is likely to bring few changes for England's land managers. Other countries will have to bring their legislation more in line with ours". The existing UK conservation framework consists of the Town and Country Planning Acts, the National Parks and Access to the Countryside Act 1949, and the Wildlife and Countryside 1981 (WCA), which implemented the Bern Convention at a UK level. With this "firm and well-established framework for safeguarding the natural heritage" 16 the Government considers that European sites, as SSSIs, will be "already subject to a wide range of controls to prevent their damage". The Government's view is that the current draft regulations 17 : 13 "Road to ruin for Britain's wildlife" New Scientist 11 September 1993 pp "Wildlife Protection Sacrificed" RSPB News Release 6 July English Nature Magazine No. 14 July 1994 p.4 16 HC Deb 6 July 1994 c244-5w 17 HC Deb 4 July 1994 c24-25w

7 "...comprise a thorough implementation package. They build largely on the existing extensive legislative basis which provides a strong framework for nature conservation in this country. They introduce some new provisions and apply existing legislation amended as required by the directive's obligations." This paper will consider whether the present Regulations meet the challenge of closing the perceived weaknesses in the present SSSI and MNR systems. The Regulations will be subject to the affirmative procedure, for approval by resolution of each House. Further regulations will be laid "in due course" to ensure that other activities for which statutory consents and permissions are required do not adversely affect protected sites. The Government will also produce planning policy guidance notes (PPG) for local planning authorities once the present regulations have been approved 18. Protection for SSSIs is often afforded by compensation payments being made to landowners or occupiers for profits foregone following notification. The SAC system will echo the SSSI system in favouring compensation and voluntary agreement rather than compulsion, since with the present Regulations, the Government is seeking to 19 : "continue to work as far as possible under the voluntary principle, seeking the involvement and active co-operation of those involved who live and work in rural areas and at sea". Under the Regulations, the nature conservation bodies will be obliged to offer compensation on the "relatively rare" occasions when management proposals are not consented to (ibid). The safeguarding of European sites may thus constitute a considerable drain on the budgets of the conservation agencies. This will add to the already considerable costs associated with protecting the UK's countryside through compensation for prohibitions. 18 HC Deb 6 July 1994 cc244-5w 19 The draft Conservation (Natural Habitats, &c.) Regulations 1994 Compliance cost assessment

8 II. The international habitat conservation framework Several international nature conservation conventions have been agreed, some with rather similar-sounding names and site designations. Sites already designated under some of the following agreements will be included in the Habitats Directive "Natura 2000" network. The Convention on International Trade in Endangered Species (CITES) and the actions of the International Whaling Commission (IWC) will not be discussed here, since these deal primarily with species, rather than habitat, protection. A. The Bern Convention The Habitats Directive strengthens at an EU level the Bern Convention on the Conservation of European Wildlife and Their Natural Habitats (September 1979). The Bern Convention aims to conserve wild flora and fauna, and to conserve their habitats. Its basic premise is that wild flora and fauna constitute a natural heritage which plays a vital role in maintaining biological balances. The Convention was implemented in the UK by the Wildlife and Countryside Act (1981). The 1979 Convention's original signatories were the Council of Europe member states, and it has been primarily concerned with Western and Continental European species and habitats. The question of extending the Convention to Northern African states has been discussed on several occasions, but with the political changes in Eastern Europe the emphasis has switched to including the Eastern European states. Any extension of the Convention to Eastern or North developing nations would necessitate financial assistance, and in 1992 the Convention's Central Secretariat was reported to be under-staffed and under-funded 20. Working groups produce population reports on given species, and the Bern Standing Committee issues recommendations. These may concern particular species, such as the wolf, or particular habitats; the Committee may recommend that a state designates an area of special conservation interest within its territory. However, implementation of the Convention has been the responsibility of the individual Contracting States and recommendations have been of a broad and advisory nature. The introduction of the Habitats Directive should increase greatly, in the EU at least, the protection given to habitats and species by the Bern Convention. B. The Bonn Convention The Bonn Convention on the Conservation of Migratory Species of Wild Animals, made in June 1979, aims to preserve listed threatened migratory species through sustainable utilisation 20 The Effectiveness of International Environmental Agreements. Ed. Peter Sand, UNCED, 1992

9 and conservation of habitat in the states through which the species migrate. This covers birds, various terrestrial and marine mammals, reptiles and fish. Immediate protection is offered through the convention to any migratory species threatened with extinction, and any species with an unfavourable conservation status is also afforded special attention. Various "Agreements" have been completed under this convention. The Agreements vary in the severity of their obligations and are open only to those "Range States" through which the species in question migrates. For example, Agreements on white storks in Europe and Africa, and Houbara bustard in the Gulf, are under consideration 20. In July 1993 the UK ratified the Agreement on the Conservation of Small Cetaceans in the Baltic and North Seas (ASCOBANS); perhaps 22 whale, dolphin and porpoise species are resident in or pass through Britain waters. The UK hosts the Secretariat for this Agreement at the Sea Mammal Research Unit at Cambridge 21. The UK sponsored the recent Agreement on the Conservation of Bats in Europe, also under the Bonn Convention. C. The Ramsar Convention The Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat, adopted in Iran in 1971, is global in scope. It was prompted by drainage and development over the past years causing a considerable reduction in the surface areas of wetlands in Europe and beyond. Some spectacular losses of wetlands have occurred; the Aral Sea, once the world's fourth largest lake, has shrunk by half, with over 90% of the water that used to reach the sea being diverted, much to irrigate cotton plantations. 40% of Japan's tidal flats have been destroyed since 1945 and Greek Macedonia has lost 94% of its wetlands since Any State may join the Ramsar Convention (there are 80 signatories), which is seen as being successful because it is voluntary in nature and relies on co-operation, rather than coercion or the threat of penalties 20. However, some signatories, such as Japan and Greece, have met the Convention's requirements less stringently than others. Contracting parties have to designate at least one national wetland site onto a List of Wetlands of International Importance, establish wetland reserves which may or may not be on the List, and promote the wise use of wetlands within their territories. Wetlands are defined as areas of marsh, fen, peatland, or water, whether permanent or temporary, with water that is flowing, static, fresh, brackish or salt. A Ramsar data base and monitoring procedure exist, and a "Wetland Conservation Fund" launched in 1990 seeks to assist developing countries implement the Convention. However, this has been running 21 Implementation of ASCOBANS. Department of the Environment January 1994 DEP "Can we stop the wetlands from drying up?" New Scientist, 2 July 1994 pp

10 extremely short of its funding target of $1m a year. It is hoped that the biodiversity convention may lead to the Ramsar convention being strengthened and receiving more money through the GEF. The UK signed the convention in 1973 and has designated 76 Ramsar sites. By November 1993 the UK had designated 69 sites, more than any other contracting party 23. A further 83 sites have been identified as being suitable for designation 24. D. The Biodiversity Convention The UK has just ratified 25 the UN Biodiversity Convention, which was agreed two years ago at the UNCED Earth Summit in Rio de Janeiro. The Convention came into force after the thirtieth signatory ratified. The UK produced its national Action Plan as required by the convention in January The Convention provides a framework for international action to protect species and habitats and will not be discussed in depth here (further information can be found in Library Research Paper 93/94 Biodiversity and in Biodiversity: the UK Action Plan). On announcing ratification, the Prime Minister said that the UK's record to date in meeting its Rio commitments was now second to none. The UK's overall goal under the Convention is: "To conserve and enhance biological diversity within the UK and to contribute to the conservation of global biodiversity through all appropriate mechanisms". On ratification of the biodiversity convention the Habitats Campaigner at Friends of the Earth commented 27 : "Now we've ratified it's time to change our own laws to protect what little remains of our grasslands, heathland, fens and ancient forests. Biodiversity is being hammered in Britain". E. The Birds Directive Directive 79/409/EEC on the conservation of wild birds is implemented in the UK by the Wildlife and Countryside Act (1981). Bird Directive SPAs will form part of the Natura 2000 network. The implementation of the Habitats Directive will reduce some of the protection 23 Biodiversity The UK Action Plan. HMSO January 1994 Cm HC Deb 16 May 1994 c w 25 World Environment Day- Prime Minister Announces Ratification of the Biodiversity Convention. DoE News Release 324, 3 June Biodiversity: the UK Action Plan. Cm 2428 HMSO "UK ratifies wildlife protection treaty". Independent, 4 June 1994 p.5

11 afforded to SPAs, which had been built up by case law, in particular the Leybrucht case (please see section II.F.2 below for further details). The Birds Directive arose from public concern over the annual hunting of migratory birds that was customary in southern Europe and northern Africa 28, and from scientific research conducted by the Commission which indicated that the number of species of European birds was falling and the population levels of some species were declining sharply. Since many European species are migratory it was recognised that the protection of wild birds was a transboundary problem entailing shared responsibility at European level 29. The Directive was based to a large extent on British legislation, providing general protection to all wild birds, giving extra protection to some, and allowing hunting of others; Britain is generally recognised as having had the most far-reaching bird protection of any European country before the Directive 2. The Birds Directive provides for the conservation, protection, management and control of naturally occurring wild birds, and also protects their eggs and nests. The general protection offered prohibits deliberate killing or capture, deliberate destruction or damage to nests and eggs, taking eggs in the wild and keeping these even if they are empty, the deliberate disturbance of birds particularly during the breeding and rearing period, and keeping birds belonging to those species which may not be hunted or captured. Significantly, Member States have also to preserve, maintain or re-establish a sufficient diversity and area of habitats so that bird populations are maintained. Particularly vulnerable bird species listed in Annex I of the Directive (175 species and subspecies are now listed, including many sea birds and most birds of prey) are the subject of special conservation measures regarding their habitat. The most suitable land and sea territories for these birds are classified special protection areas (SPAs). Similarly, breeding, moulting, wintering and staging areas are protected for regularly migrating species not listed in Annex I. Member States have to pay particular attention to wetlands. For SPAs, the Member States are obliged to 30 : "take appropriate steps to avoid pollution or deterioration of the habitats or any disturbances affecting the birds...and outside these protection areas Member States shall also strive to avoid pollution or deterioration of habitats". Member States may derogate from the general protection provisions in the interests of public health and safety, to control pests, or for various other reasons. The UK for instance permits the killing of 13 pest species, the taking into captivity of sick birds for nursing, or birds of 28 Manual of Environmental Policy: the EC and Britain, Nigel Haigh, IEEP 1992 and updated 29 Second report on the application of Directive 79/409/EEC on the conservation of wild birds /93 COM(93) 572 FINAL 7 December Article 4(4) of Council Directive on the conservation of wild birds (79/409/EEC) OJ L 103, p.1

12 prey for falconry 2. The directive allows for the hunting of certain species listed in its Annex II, under national legislation. Species listed in Annex II/1 (various game birds and several common duck and goose species) may be hunted throughout the Union, and species in Annex II/2 may be hunted only in those Member States indicated in a table. A recent proposal from France to amend the Directive 31 caused consternation in the British Press, amid allegations that the amendment was prompted by forthcoming European elections 32,33. The amendment seeks to define the discretion that Member States have to set the dates of hunting seasons, and would, in some cases, allow hunting during the return of migratory birds to their breeding grounds. The French see this as the application of subsidiarity, but the RSPB has said that the proposal is "crazy...the whole point of the directive was that birds are a common resource-they respect no boundaries" (ibid). The RSPB fear that breeding adult birds who have survived the winter and the bulk of their journey across Europe would be shot at the last moment, including species such as the greenshank and whimbrel which are threatened in the UK 34. The amendment was passed at the March 1994 meeting of the Council of Environment Ministers but on 19 April the European Parliament deferred consideration of the issue until after the European elections 35. In its second report on the directive 29, the Commission considered, inter alia, that in most cases, the national legislation which had been drawn up since 1981 on the hunting, sale and protection of birds and their habitats incorporated the spirit of the directive. In 1991 a total of 667 SPAs had been designated throughout the EC. The implementation of the directive had significantly contributed to improving the biological situation of most species, and several breeding species were no longer threatened with extinction in the EC, although the status of many of these species still gave considerable cause for concern (open grassland, meadow, moorland and scrub species in particular were still in decline and farming methods in the Community would have to be altered to address this problem). Despite the positive developments, the Commission noted that the directive was not yet fully implemented in all Member States. Denmark and Luxembourg had obtained the best results. The implementation problems concerned primarily the designation and protection of SPAs, derogations, and hunting activities. In France, Italy and Spain, deep-rooted hunting traditions still persisted. Control on hunting activities varied widely between countries; some states such as Greece and Italy had insufficient manpower and financial resources to control illegal hunting. 31 Proposal for a Council Directive amending Directive 79/409/EEC on the conservation of wild birds. 5947/94, 24 March Independent on Sunday 27 March 1994 "Gummer puts birds in line of French fire" 33 Daily Mail 28 March 1994 "Slaughter in the skies: Migrating birds face death to please French gun lobby" 34 Comment. RSPB Birds Magazine, Summer 1994 p.3 35 "Birds directive will have to wait for new Parliament" Europe Environment No. 431, 3 May 1994 p.3

13 The Commission noted however that the deterioration and destruction of habitats presently pose more serious threats to the survival of wild birds in Europe than hunting as such. The UK was among 10 Member States which had not yet designated SPAs in sufficient number or size. Only Denmark and Belgium had almost fully complied with their obligations. The other Member States, "in particular Germany, Greece, France, Ireland, the Netherlands and the UK have not yet classified a sufficient number of SPAs. In some regions of the EC, such as Northern Ireland and Gibraltar, there are no SPAs at all". The UK blames the delay in its SPA programme in part on the Commission itself, for not producing promised formal guidelines and proposals for the selection of SPAs, leading the UK to instead give priority to renotifying SSSIs (which embrace important bird sites). The UK submits that since 1991 it has been working on an accelerated SPA programme 36. Presently, before Bird Directive SPAs can be designated, they must be notified as SSSIs to secure legal protection under the WCA. They may then be designated an SPA by the appropriate Secretary of State. The conservation agencies advise which areas which should be considered for designation, and consult with any land owners and with the local authority. However, whereas with SSSIs the conservation agencies are consulting on their own behalf, with SPAs they are consulting on behalf of the Secretary of State. If someone (for instance a landowner) wishes to object to the designation of an SPA, he would respond to the consultation letter sent to him by the conservation agency, who would probably try to resolve the matter informally by discussion. If the objection was not resolved this would be passed straight to the Secretary of State. (Conversely, objections to SSSI notification are, in the case of English Nature, eventually passed to a full meeting of EN's Council, appointed by the Secretary of State and including farmers, land managers and local authority officials.) The grounds for objection to an SPA are much broader than to an SSSI, since although notifications as SSSIs include a statement of the special interest of the site and a list of prohibited operations which would, in EN's view, damage the site, to some extent SPA designation predetermines land use and so social and economic factors have to be considered 37. The designation procedures for SACs are likely to be similar to those for SPAs. 36 Explanatory Memorandum on European Community Document: Second Report on the Application of Directive 79/409/EEC on the Conservation of Wild Birds. DoE, February source: English Nature, 3 May 1994

14 The UK has designated 86 SPAs, and 54 of these are in coastal locations 38, reflecting the importance of coastal habitat for birdlife. 151 potential SPAs have been identified and remain to be designated. 49 designated Ramsar sites are also wholly or partly SPAs, and 72 identified Ramsar sites are also potential SPAs. One major source of criticism is the failure of the UK to designate marine SPAs. This is largely because of constraints introduced by the 2 : "cumbersome procedures set out in the Wildlife and Countryside Act 1981 which [the nature conservation agencies are] obliged to observe before being able to designate Marine Nature Reserves - especially as regards consultations with local fishing communities". Further details can be found in section III. H. below. 38 HC Deb 16 May 1994 cc

15 F. The Habitats Directive 1. Main provisions The World Wide Fund for Nature (WWF) acknowledges that the UK played an active part in the adoption of the Habitats Directive (Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna), "the most significant piece of wildlife legislation to be agreed in the 1990s" 39. The Government has said that it "welcomed the adoption of the EC Habitats Directive" (in May 1992) which "represented a great step forward for nature conservation in the community". The draft Directive was considered in European Standing Committee A on 22 May The Directive aims to conserve biodiversity through maintaining or restoring habitats and species. It will do this by establishing a coherent European network of sites of conservation, which will be known as the Natura 2000 network. The sites will contain specific natural habitat types (listed in Annex I to the Directive) and species (listed in Annex II). Annex II includes "animal and plant species of community interest whose conservation requires the designation of special areas of conservation". "Of community interest" means species which are endangered (but not just because they are at the edge of their geographical range), vulnerable, rare, or endemic and needing particular attention. The Natura 2000 network is to include the special protection areas (SPAs) designated under the Wild Birds Directive, and Member States have also to propose a new list of sites, or special areas of conservation (SACs). The present UK regulations refer to SACs and SPAs together as European sites. Member States must select sites on the basis of the habitats and species present, using criteria set out in Stage 1 of Annex III to the Directive. These include the degree of representivity of the site, the area of the site compared to its total area in a Member State, the density of a species population at a site, and the isolation of that population. The lists of national candidate sites must be submitted to the Commission by June The Commission will then draw up a draft list of sites of Community importance, using criteria set out in Stage 2 of Annex III. These include the number of Annex I habitat types and Annex II species on each site, the situation of the site on migration routes, and the relative value of the site at national level. 39 The Habitats Directive: Time for Action WWF European Standing Committee A Protection of the Habitats of Wild Flora and Fauna (Documents Nos. 8149/88, 5807/90 and 4684/91) Wednesday, 22 May 1991

16 The Commission must draw up and agree its Community list of sites by June Once a site of Community importance has been adopted, the Member State has to designate that site a special area of conservation as soon as possible and within six years at the most, which is by So SACs must finally be designated to form the Natura 2000 network by the year However, as soon as a site is placed on the Community's draft list, it will be subject to Article 6, which provides protection for SACs. Article 6 requires Member States to establish the necessary conservation measures for SACs involving, if need be, appropriate management plans specifically designed for the sites and appropriate statutory, administrative or contractual measures. Member States have to take appropriate steps to avoid, in the SACs, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the site has been designated. Further: "Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives...the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned, and, if appropriate, after having obtained the opinion of the general public". However, if a plan or project must be carried out for reasons of over-riding public interest (including those of a social or economic nature as well as those involving public health and safety) the Member State must take all compensatory measures to ensure that the overall coherence of the Natura 2000 network is protected, and shall inform the Commission of compensatory measures employed. If a site includes a priority species and/or priority habitat type, then the only considerations that may be raised are those relating to human health or public safety, or of primary importance to the environment. Further to an opinion from the Commission, other "imperative reasons of overriding public interest" may be raised. Priority species are starred in the Annexes, and are habitats or species for which certain Member States have particular responsibility because a large part of that species' or habitat's natural range falls within their territory (see section V.B. for the UK's priorities). In essence then, this is providing a two-tier system; "ordinary" SACs may be over-ridden on social or economic grounds, but "priority" SACs may only be over-ridden on grounds of public health or safety.

17 2. Effect of Habitat Directive on Bird Directive SPAs SPAs designated under the Birds Directive were, until the implementation of the Habitats Directive, protected by a body of case law that meant they could only be over-ridden on grounds of public health and safety. Social or economic grounds were insufficient. In other words, they had been granted though the Courts similar protection to that which priority SACs will enjoy. The most important decision was taken by the European Court of Justice in 1991, and is commonly referred to as the Leybrucht case (C57/89). During the European Standing Committee debate on the draft habitats Directive, the then Minister for the Environment and Countryside, Mr Trippier, noted 41 : "...the recent European Court judgement in the Leybrucht case...made it clear that a special protection area was inviolable, with the rare exception consideration of a danger to public health. In my experience, that is unique in any planning consideration... We must consider the implications of the Leybrucht judgement. In our negotiations on the Habitats Directive, the Government aim to ensure that economic and social needs are taken into account..." During the negotiations on the Directive, the Commission was pressurised to 'introduce new clauses into the text of the habitats Directive in order to amend the birds Directive and blunt the impact of the Court's judgement. This occurred.' (Manual of Environmental Policy: the EC and Britain, Nigel Haigh, IEEP 1992 and updated, p.9.9-9). Hence from the date on which a Member State implements the Habitats Directive, SPAs will be violable on social or economic, as well as public health and safety grounds; the habitats Directive has effectively downgraded their degree of protection. One important anomaly and further blow to the bird cause is that because birds are of course covered by the Birds Directive, they are not listed in any of the Annexes to the Habitats Directive. Although to some extent it can be argued that this does not matter since they will be protected by SPAs, this also means that they cannot be identified and treated as priority species by the Habitats Directive 42,43 : "The best protected sites under the Habitats Directive are those which contain priority habitat types or which host priority species. However, the Birds Directive does not contain a priority system equivalent to that in the Habitats 41 ibid 42 Source: RSPB "The EU Habitats Directive" John Faulks, European Environment Spring 1994

18 Directive. Does that mean that none of the birds listed on Annex I of the Birds Directive is deserving of the highest protection as priority species?" Further protection measures for individuals and breeding sites are included for species listed in Annex IV to the Directive ("animal and plant species of community interest in need of strict protection"). As with the Birds Directive, some derogations will be allowed, for protecting the interests of, for instance, agriculture and nature conservation. However, certain types of killing and transport (listed in Annex VI) are prohibited. Some exploitation of species listed in Annex V ("animal and plant species of community interest whose taking in the wild and exploitation may be subject to management measures") is allowed, so far as exploitation is compatible with the species being maintained at a favourable conservation status. The species protection measures in the Habitats Directive, providing general protection to all species, giving extra protection to some, and allowing the sustainable exploitation of others, are thus very similar to those already enshrined in the Wildlife and Countryside Act 1981, which implemented the Birds Directive and the Bern Convention in the UK. During the European Standing Committee debate, Mr Trippier said that the Government's main points of anxiety were to ensure that member states could exercise proper judgement in the selection of sites, and that they would be obliged to take action on sites containing species or habitats in danger of extinction. Mr Trippier said the authority given to the Commission by the draft directive was important. Mr Win Griffiths noted that specific commitments to amend EC Directive 85/337/EEC on environmental impact assessment had been dropped from earlier versions of the habitats directive and asked the Minister how he envisaged the new environmental assessment and public consultation provisions (in Article 6) working. The Minister replied that: "I do not want to give the impression that in many cases economic and social considerations should override conservation. That would devalue the currency of the exercise. However, in rare circumstances, we want to preserve the right to weigh in the balance economic and social considerations." In response to a further question from Mr Griffiths concerning planning permission on SSSIs, the Minister pointed out that SSSIs were material planning considerations. The Minister gave an example to illustrate problems that might arise "if the SSSI designation gave so much protection that the land was virtually sterilised": "If I acted on behalf of the Nature Conservancy Council and approached the Hon. Gentleman, not only with a proposal to designate an area of his land an SSSI but to sterilise it, he would be entitled, through natural justice, to raise the matter in the High Court unless I was prepared to compensate him for the loss of his land...

19 If there were a course of appeal that a landowner could take if his land was sterilised, a whole series of appeals would take place. Consequently, fewer SSSIs would be designated. And that would not achieve the objective, which we all share of providing more protection where possible". The Government committed itself in 1992 to meeting the two year deadline set by the Directive to have in place the legislative and administrative provisions necessary for implementation and to "developing criteria for site selection with a view to submitting the UK's national list of sites in accordance with the Directive - by 1995" 44. Indeed, the UK intends to meet all of the Directive's deadlines This Common Inheritance, 2nd year report HMSO 1992, Cm Biodiversity The UK Action Plan. Cm 2426 HMSO 1994

20 III. The UK habitat conservation framework The Secretaries of State for the Environment, Scotland and Wales, will be responsible for designating future SACs in England, Scotland and Wales respectively. In this, they are advised by the statutory nature conservation bodies; English Nature (EN), Scottish Natural Heritage (SNH) and the Countryside Council for Wales (CCW). These are the successors to the Nature Conservancy Council or NCC. In Northern Ireland, the Department of the Environment for Northern Ireland (DoE/NI) assumes a similar role. The Joint Nature Conservation Committee (JNCC) oversees and co-ordinates. As well as designating sites as required by international obligations, the UK has its own habitat and wildlife designations. These can be considered as falling into two broad categories; those designed to provide larger-scale protection of landscape (National Parks, AONBs, NSAs and NHAs in Scotland, ESAs and heritage coasts) and smaller-scale protection of habitat or species (SSSIs, NNRs, LNRs and MNRs). A. National Parks It is not within the scope of this paper to consider in detail the issues presently surrounding National Parks. The ten National Parks in England and Wales were designated during the 1950s following the National Parks and Access to the Countryside Act 1949 and the Norfolk and Suffolk Broads and the New Forest enjoy similar status and are National Parks in all but name. A major report on the national parks system, Fit for the Future (also known as the Edwards report after its chairman, Professor Ron Edwards) was produced in 1991 by the national parks review panel for the Countryside Commission. Its main conclusion was that there should be a new National Parks Act to create strong, independent national park authorities in each national park, more accountable to local people. The report was generally welcomed and since then the Government has confirmed its intention to create national park authorities for all of the parks on several occasions 46. Following the failure of a Private Members Bill introduced into the Lords by Lord Norrie this session, the Countryside Commission has urged the Government to find time for legislation to protect these "jewels in the crown of our landscape" 47. B. Areas of outstanding natural beauty (AONBs) AONBs were provided for under the same 1949 Act as National Parks, and are also designated by the Countryside Commission or the Countryside Council for Wales, and confirmed by the relevant Secretary of State. The 40 AONBs, covering nearly 14% of 46 HC Deb 30 June 1993 c.519w 47 Government Urged: Find Time for National Parks Countryside Commission News Release 94/21 23 May 1994

21 England and Wales 48, are essentially landscapes of distinctive character and fine natural beauty, often in more lowland areas than National Parks, and which are not quite suitable for National Park status. The Department of the Environment (Northern Ireland) also designates AONBs (Northern Ireland). C. Scotland: National Scenic Areas (NSAs) and National Heritage Areas (NHAs) NSA is the principal landscape protection category in Scotland and includes the areas originally proposed as National Parks for Scotland before it was decided not to extend the system to that country. 40 NSAs were designated following the Countryside Commission for Scotland report Scotland's Natural Heritage in Sites lie mainly in the north and west of the mainland and in the Islands and cover 12.5% of land and inland water area in Scotland. A 1987 review revealed that the designation was perceived as not being effective, and that NSA development plan policies were few in number and had little consistency. NSAs are further protected where they coincide with SSSIs or NNRs. For instance, Assynt- Coigach NSA contains 10 SSSIs and 2 NNRs. Where these is such a coincidence of landscape and scientific interest, such areas could be suitable for consideration as NHAs 49. NHAs were introduced in 1991 and are intended to provide added protection to wildlife as well as landscape. Although NHAs could "easily supplant" NSAs, it has been stressed that they are not a substitute for National Parks, and the possibility remains that National Parks could be established in Scotland 49. D. Environmentally sensitive areas (ESAs) These are designated under the Agriculture Act 1986 by the Minister for Agriculture. They are areas of national environmental significance where particular farming practices are pivotal in environmental conservation and where a change in these practices could therefore pose a major threat to the environment. ESAs are based on voluntary management agreements with farmers, who are offered a five year agreement that awards them annual payments provided they follow a prescribed set of farming practices. These include positive works (maintaining hedgerows, hedges and barns) and prohibitions (on use of fertilisers, drainage works and levels of grazing) 49. E. Heritage Coasts Heritage coasts in England and Wales are not statutorily protected but are selected stretches of fine undeveloped coastline which are defined by local authorities in their development plans, and for which management plans are developed by local authorities in conjunction with 48 Areas of Outstanding Natural Beauty in England and Wales. Countryside Commission, CCP 276, Protected landscapes in the United Kingdom Countryside Commission, 1992

22 the Countryside Commission. 44 Heritage Coasts covering 1,493 km of coastline have been designated. One-third of Heritage Coast is in the ownership of the National Trust. F. National Nature Reserves (NNRs) EN, CCW and SNH have statutory powers under the National Parks and Access to the Countryside Act 1949 or under the Wildlife and Countryside Act 1981 to establish, maintain and manage land of national importance as nature reserves. The Department of the Environment (Northern Ireland) manages NNRs (Northern Ireland). NNRs are intended to ensure the long term survival of a representative series of key wildlife habitats and species. More than 300 NNRs have been designated 50. They vary widely in size, from Blelham Bog in Cumbria (two hectares) to The Wash (nearly 10,000 hectares). In England, EN owns more than a quarter of NNR land and three quarters is held under lease or nature reserve agreement. A Nature Reserve Agreement can be made allowing an "approved" voluntary conservation body such as the RSPB or any private landowner or occupier to designate a NNR. EN spent 5 million on NNRs in , including salaries for 100 staff; over 800 voluntary wardens are also used by EN. The work planning and management of NNRs is undertaken largely at a local level so regional variations in practice occur. To address this, EN are developing a new NNR policy to integrate site management. They also intend that all NNRs should have approved and current plans prepared in a common format, to be reviewed every five years. EN will also produce a review of their reserve holdings by April 1995 and will produce an annual report on NNRs 51. NNRs are also notified as SSSIs (see below), and they can be thought of as SSSIs with a "clearly stated national level of importance" 52. G. Local Nature Reserves (LNRs) Local Nature Reserves (LNR) may be designated by local authorities on land belonging to them (or land which they acquire), under the National Parks and Access to the Countryside Act The Act states that the land declared a LNR must be "special" in a local context and must be managed to preserve or enhance its natural features. Hence the local authority, in declaring a LNR, is also undertaking to manage that site and to protect its natural features from any substantial damage. 50 Digest of Environmental Protection and Water Statistics No.16 DoE 1994 HMSO 51 Protecting and Managing Sites of Special Scientific Interest in England. National Audit Office, 11 May 1994 HMSO HC SSSIs: A health check. A report for Wildlife Link. T A Rowell, Wildlife Link December 1991

23 English Nature has recently produced a comprehensive guide 53 for local authorities to help them carry out their duties with respect to LNRs. This stresses that "site objectives" (the role the site will play in helping to fulfil the local authority's nature conservation strategy) should ideally be decided before the site is declared a LNR, and certainly before a management plan for the site is drawn up. A brief "LNR summary plan" describing the site and its main objectives and management options should be produced and this should be reviewed, usually after five years. Guidance on managing different habitats (woodland and scrub, lowland heath, upland moor, grassland, raised bog, fen and swamp, standing water and coastlands) and on fulfilling objectives (conservation, education, public enjoyment, research) is provided by the guide. On 31 March 1994, there were 393 LNRs 54. H. Marine Nature Reserves (MNRs) and the difficulty of sub-tidal protection All terrestrial SACs to be designated under the Habitats Directive will have been notified as SSSIs 55 (ASSIs in Northern Ireland). For marine sites, at present the only statutory nature conservation mechanism specifically designed for below low-water mark is the MNR. Compared to over 300 NNRs, only two MNRs have been designated; at Lundy in the Bristol Channel and at Skomer in Pembrokeshire. English Nature estimates that 500,000 hectares of marine habitats are in need of active conservation measures, and acknowledges that "marine conservation is a decade or more behind its land-based counterpart" 56. Around one-fifth of the licences offered by the Department of Trade and Industry in the last round of offshore oil exploration licensing cover areas "earmarked for marine protection". For instance, an exploration licence held by Amoco extends to Chesil Beach, behind which lies Britain largest saline lagoon, the Fleet. The Chesil and Fleet SSSI has been called one of five "really outstanding" places for marine conservation by English Nature's chief executive. Exploration areas off the Welsh coast impinge on Cardigan Bay (one of two or perhaps three sites around the UK with resident bottlenose dolphin populations) and Ramsay, off St David's Head, home to the largest colony of grey seals in England and Wales. The DTI has given its assurances that stringent controls will be exercised over environmentally sensitive sites and says that most companies have demonstrated environmental awareness 57. MNRs may be designated between the high water mark and the territorial limit by the Secretary of State under the Wildlife and Countryside Act 1981 on the advice of EN, CCW 53 Managing LNRs Local Nature Reserves English Nature English Nature Facts and Figures Information Guide Spring HL Deb 24 February 1994 WA "Road to ruin for Britain's wildlife" New Scientist, 11 September 1993 pp ibid.