Select Committee on European Communities Eighteenth Report



PART 2:  THE ISSUES AND THE COMMITTEE'S OPINIONS

Site selection and boundary issues

  24.  Many witnesses have argued that the UK Government, in relying on the existing system of SSSIs from which to select the Natura 2000 series, has approached the classification of SPAs and designation of SACs in a restrictive or minimalist manner. The Joint Nature Conservation Committee (JNCC) accepted this view, but assured us that science was the deciding factor in determining boundaries. The European Environment Agency's Nature Conservation Topic Centre (ENCTC) agreed that it was important that boundaries should reflect the special interest of sites, and cited examples where Member States had designated SPAs for reasons unconnected with the bird interest. However, ENCTC also commented that, compared with some other Member States, the UK had designated a small proportion of the national land area, and this was clearly an issue for consideration in evaluating the effectiveness and completeness of implementation of the Habitats Directive in the different parts of the United Kingdom.

  25.  Some Member States appear to have been less selective than the UK in relating SPAs and SACs to the distribution of species listed in the Annexes to the Birds and Habitats Directives. Other Member States that have designated a larger proportional extent of land have in some cases included buffer zones around core areas. There are clearly arguments on both sides. More extensive designation can give a more flexible approach when considering broad issues that may affect favourable conservation status, such as water pollution, wider land use planning issues, or restoration of habitats around core areas. The disadvantage as we see it is that there may be less clarity over the precise areas deserving of strict protection with the result that deterioration of important parts of the area could still occur.

  26.  These boundary issues are most acute where land under intensive agricultural use supports listed species in parts of their ranges, for instance for feeding or nesting. We were given examples by the RSPB concerning Greenland white fronted geese, nightjars and stone curlews amongst others. Such areas would not normally meet the guidelines for notification as SSSIs under the Wildlife and Countryside Act 1981. The areas may nevertheless be of national or international significance for wildlife and should therefore be eligible for classification as SPAs or SACs. In such cases, reliance on the land notified as SSSI will not be adequate to protect the special interest which qualifies the area as SPA or SAC. In such circumstances, core areas of qualifying (semi-natural) habitat should be notified as SSSIs (as now) to allow the operation of management agreements and other action to maintain favourable conservation status. In addition, we see considerable merit in declaring an enlarged area as SPA or SAC around a core SSSI to incorporate these essential feeding or nesting places within the boundary of the European site. This would ensure that the conservation interest is properly recognised within the planning system and by all competent authorities. This larger area could also qualify for enhanced payments under the agri-environment programme (see paragraphs 36-37) to aid its positive management.

  27.  Safeguards could thereby be applied at the level where any serious risk to the integrity of the area occurred. Declaration of an enlarged SPA or SAC would enable the local planning authority to prevent a major change of land use, for example from agricultural land to a commercial development, which would destroy the area's interest for birds. At the same time, other competent authorities, including Agriculture Departments and statutory nature conservation agencies, would be able to provide resources to ensure that the appropriate agricultural operations upon which the birds depend were encouraged. In this way the Government could meet the obligations set out in the Directives.

  28.  It is also important that competent authorities are mindful of the need to conserve the special interest of SPAs and SACs from potentially damaging activities outside the tightly defined boundaries. The approach which we have proposed, by notifying Natura 2000 sites that include land not of SSSI status, would alleviate pressures on the conservation resource in some cases. In others, rigorous attention by the competent authorities will be required to assess and avoid possible damaging impacts. We were impressed by the evidence given by the Environment Agency, who told us of the progress being made in the regulation of water abstraction and discharge consents and the operation of flood defences. This example could be usefully taken as a model by other competent authorities.

  29.  We are conscious that small or tightly defined boundaries around small or fragmented sites may not provide for restoration or expansion of the habitat. Examples would be the natural regeneration of a native pinewood, when the seedlings spread from the seeding pines, or the opportunity to restore a lowland heath. We are not persuaded from the evidence before us that this is occurring for all habitats, or in all parts of the UK.

  30.  It is essential that the statutory nature conservation agencies select sufficient numbers of sites as SPAs or SACs by using agreed scientific criteria, and with all the relevant data to hand. We recognise that, for many plants or animals, knowledge of their distribution and conservation needs is still imperfect. Links with the NGOs and scientific institutions must be well developed to ensure that new or emerging data are available. From the evidence we received, we consider that more could be done to harness the knowledge of the NGOs and research institutions. Furthermore, we consider the statutory nature conservation agencies should inform those bodies who make a reasoned and scientifically supported case for site selection why (in the case of a rejection) the agency is not recommending the site (or a portion of it) for classification as SPA or SAC. This will help understanding and lead to a more robust, well supported outcome.

  31.  We also consider that the Government and the devolved administrations of the UK should set out their reasons, properly argued on the basis of science, should they decide to overrule or ignore the advice of EN, SNH, CCW or CNCC on the classification of appropriate SPAs and SACs. In the interests of transparency, the agencies' advice must be publicly available at the time it is passed to the Government. Science should be the deciding factor when making decisions on the classification of SPAs and SACs, not social or economic criteria—which are to be considered on their merits if a development proposal should arise at a later stage.[13]

  32.  Greater thought should be given to the percentage of a protected species' national population or a listed habitat which should be included in areas classified as SPA or SAC. The JNCC considered that 50% (as used by WWF) was an arbitrary figure, but JNCC does not appear to have its own targets. In Germany it has been reported that a quota of 20-40 per cent of a natural habitat would be practicable, depending on the amount or size of the areas in a Member State's territory. Such targets need to be set, not only to determine whether more SPAs or SACs that should be classified, but also to identify the effort and resources required to address the needs of these protected habitats and species in the wider countryside (as required by the Directives). We would envisage that for species or habitats concentrated in small areas the target would be higher than for thinly dispersed species. The information could also help to target habitats and species which require restoration measures and to identify the appropriate lead agencies. We are concerned that this is not well co-ordinated at present, although the UKBAP process may assist.

  33.  With these important provisos we accept that the UK Government's approach to site selection has developed from a logical standpoint, although we were surprised that the production of scientific criteria in Europe and the UK to guide this process has been so protracted. Indeed the initiative taken by Birdlife International in developing criteria for "Important Bird Areas" has served to fill a vacuum left by the Commission and some Member States after the adoption of the Birds Directive in 1979. Birdlife and other NGOs deserve credit for this work.

Dispersed species

  34.  Many witnesses raised with us the conservation status of animals and plants outside the protected area network. Biodiversity in the wider countryside is obviously under pressure, with many species in rapid decline in terms of both range and numbers. Research has identified farmland birds such as skylarks, lapwings and corn buntings, but the same problem affects many insects, plants and mammals, e.g. bats. It is true that some more adaptable species have profited from the changes in land use encouraged by land use planning policies and the Common Agricultural Policy (CAP). However such species are already widespread and are not known to be at risk. We were told that the decline in farmland wildlife was also of concern to the farming and land-owning community.

  35.  DETR officials and the Minister for the Environment (The Rt Hon Michael Meacher MP) stated they expected the UK Biodiversity Action Plan to address the concerns of wildlife conservation in the wider countryside. We note however that the UKBAP has no statutory underpinning (see paragraphs 50­51). Agriculture is the predominant land use over most of the UK and thus the conservation of biodiversity is inextricably linked with farming policy and practice. Agriculture can benefit wildlife: for example, the maintenance of many of the habitats listed in Annex I of the Habitats Directive depends upon appropriate grazing and farming practices. Overall, however, the trend to more specialised and intensive farming and grassland management has adversely affected many species and their habitats. The reform of the CAP so that farmers are encouraged to manage their land in ways which benefit biodiversity is thus essential if the Natura 2000 sites are not to be left as "islands" within an increasingly hostile farmed landscape.

  36.  In the uplands, the problem of over-grazing by stock, and in some lowland areas the abandonment of grazing, pose special questions which require substantial policy changes to address them. We share the disappointment of many witnesses that the reform of the CAP—as agreed as part of Agenda 2000—has not produced answers to these problems. However the agri-environment measures, which can begin to address these shortcomings, will become compulsory for all Member States, and livestock subsidies will shift to area-based payments. These offer opportunities on which the UK Government should build.

  37.  We were impressed at the reported popularity with farmers and landowners of the various agri-environment schemes operating in the UK—Environmentally Sensitive Areas (ESAs), Countryside Stewardship, the Scottish Countryside Premium Scheme (CPS), Tir Gofal, etc—which offer payments for sympathetic farming practices that benefit biodiversity. However witness after witness complained that the money available was simply not sufficient to meet demand, let alone the management needed to address the action for species and habitats listed in the UKBAP and in the Annexes to the two Directives. Indeed we were told that the agri-environment schemes often had to compete with the production-based subsidies from the CAP, thus exacerbating the "funding gap". We concur with Mr Elliot Morley, the responsible Minister in MAFF, that all landowners and occupiers have a moral duty of stewardship and care for biodiversity. However, where action involves loss of income or recurring extra expenditure this should be eligible for support through agri-environment measures.

Sites of Special Scientific Interest

  38.  The UK has 50 years' experience of statutory nature conservation based on the SSSI system. Site designation was originally introduced under the National Parks and Access to the Countryside Act 1949. The objective of notification was to draw the attention of planners and developers to sites of nature conservation importance. Forestry and agriculture, however, were not seen as threats to SSSIs and therefore forestry and farming operations were left outside the scope of the Act. Just as the 1992 Biodiversity Convention contains a set of positive objectives; the Birds and Habitats and Species Directives also clearly define the objectives of site selection and designation. We note that DETR is actively pursuing the strengthening of domestic wildlife legislation. We concur with the opinion of those witnesses who have recommended that, as a first step, measures should be enacted so that nature conservation becomes an explicit statutory purpose of SSSIs. We hope the Scottish Executive will similarly improve legislation in Scotland.

  39.  The Government, the devolved administrations and the statutory nature conservation agencies would thereby be under an explicit duty of care towards SSSIs, with a view to ensuring that SSSIs are well managed and contribute fully to the targets set in the UKBAP. The "competent authority" approach adopted in the Habitats Regulations 1994 should be expanded to cover all SSSIs. We would expect the UK Government and the administrations in Scotland, Wales and Northern Ireland to set a clear example in this regard.

  40.  In the late 1970s damage to SSSIs was considerable; by comparison relatively few cases of long term damage to SSSIs are now reported. The 1981 Wildlife and Countryside Act has therefore largely succeeded in slowing the well attested loss of SSSIs to development, forestry planting or agricultural operations. Losses however are still reported and many sites are at risk. Problems of neglect, and the need for positive management of sites to maintain their nature conservation interest, are matters of considerable concern. SSSIs should act as reservoirs to aid the recovery of biodiversity in the wider countryside. Unless this problem is addressed, the loss of biodiversity will continue.

  41.  At present, SSSIs are reasonably well protected against adverse effects of development requiring planning permission or other forms of consent. None the less, English Nature has reported that as many as 30 per cent of the SSSIs in England do not currently enjoy favourable conservation status, and has estimated that it would cost up to £20 million to bring them into good condition. Under the 1981 Act, the statutory nature conservation agencies have the ability to enter into management agreements with willing owners and occupiers. These agreements, however, are voluntary; and although the nature conservation agencies can apply for "Section 29 orders" (to encourage further negotiations with owners and occupiers where disputes over the management of SSSIs occur), the procedure has been described judicially as "toothless"[14]. In the absence of voluntary restraint from landowners or occupiers, damage by deliberate activities can only be delayed—or in the last resort the land can be purchased outright using compulsory purchase powers. The statutory agencies are also unable to intervene where unfavourable status is the result of mere neglect, or where owners or occupiers ignore requests for voluntary action to undertake the level management which the site requires.

  42.  Although the statutory nature conservation agencies can have recourse to the ultimate sanction of compulsory purchase, use of this power creates antagonism and is expensive. The fact that it has very rarely been used emphasises its inutility. In relevant cases, we strongly recommend that the agencies should be given the power to make what might be termed "Management Orders", which could be issued by the relevant territorial minister following a request from the statutory conservation agency. Such orders would allow the agencies to take action to prevent the loss of biodiversity interest from an SSSI suffering neglect, or a refusal by the owner or occupier to undertake proper management.

  43.  The activities of third parties on SSSIs are also largely outside the scope of the Wildlife and Countryside Act, despite its subsequent amendment. The powers and sanctions contained in Section 28 of the Wildlife and Countryside Act do not apply to third parties, although some significant safeguards are available under the Habitats &c Regulations 1994 for SPAs and SACs. The Environment Agency is reviewing existing consents which might impact on the Natura 2000 series, although we are concerned at the slowness of the process. However, for those SSSIs which remain outside the Natura 2000 series, few safeguards exist to protect against third parties.

We agree with the statutory nature conservation agencies and NGOs on the need for improved measures to control damaging activities by third parties—for example motor bike scrambling or walkers with dogs out of control—perhaps with powers for the statutory nature conservation agencies to act in cases of default.

  44.  In cases where deliberate damage to an SSSI occurs in contravention of Section 28 of the Wildlife and Countryside Act 1981, we recommend that the courts should have powers to order the restoration of the site at the perpetrator's expense or, if that is physically impossible, to order other compensatory measures. We believe these might have a more deterrent effect than fines. At present such sanctions can be applied by the courts only where a "Section 29" order has been contravened.

  45.  We were told that CCW and SNH will be unable to report on the status of SSSIs in Wales and Scotland until 2006. We are concerned that this could mean that deterioration occurs unnoticed during the intervening period, and we regret this major gap in the task of monitoring SSSIs (and hence of some Natura 2000 sites). Although this is now the responsibility of the devolved administrations, we wish to draw attention to a severe underfunding problem, which we believe should be addressed urgently.

  46.  We consider that the nature conservation agencies should maintain frequent and regular contact with the owners and occupiers of SSSIs in order to build trust and understanding about the management regime required and to ensure that problems are spotted and dealt both sympathetically and early. Again, the staffing available to all the agencies does not appear to permit a programme of visits at sufficient frequency to be developed. This will inevitably lead to sites being managed through accident or ignorance in ways which may damage their scientific interest. We were told this was also a matter of concern to landowners and farmers.

Biodiversity in the wider countryside

  47.  We consider that the Government and its agencies, the NGOs and partners from the private sector can be justly pleased with the progress made in drawing up a UK Biodiversity Action Plan, with the production of many action plans for threatened species and habitats. The adoption of clear targets and monitoring progress against these milestones will be a touchstone for conservation work in future. However, as has been pointed out, biodiversity objectives will not be achieved without a wide range of complementary policies, especially in the fields of agriculture and forestry, other countryside policies, devolved and regional planning for sustainable development, air quality, protection of the aquatic environment and fisheries policy.

  48.  The support and enthusiasm, of both central and devolved government across all parts of the UK, for biodiversity work must be maintained if the positive response which the work has generated is to achieve the desired results. Funding for biodiversity work will be necessary for many years to come and it has been estimated that £40 million per annum is needed to implement the plans fully. We were impressed by the way in which local authorities had actively embraced biodiversity work at a local level alongside Local Agenda 21 initiatives. There has also been much useful joint working with commerce and industry. This valuable work could be jeopardised if resources are not steadily increased to meet the challenge and to encourage the local and national partnerships established to date. Additional resources for this could be channelled through the statutory nature conservation agencies or through their collaborators in the various specific biodiversity action plans.

  49.  The Birds Directive (Articles 1(1), 3(1) and 3(2)) and the Habitats Directive (Articles 2(2) and 3(1)) both require conservation measures for the listed species and habitats in the wider countryside. Indeed, Article 10 of the Habitats Directive requires measures to protect hedgerows and other features and to use land use planning and development policies to encourage the management of features "of the landscape" which are of major importance to wild fauna and flora. We are concerned that the transposition of these requirements of the Directives has not been implemented effectively or in a co-ordinated way. We note that the Minister for the Environment has high hopes for achieving this through the UKBAP, but we consider its application will inevitably suffer if it is perceived to be an entirely voluntary process.

  50.  Furthermore it can be difficult for Ministers to consider these issues effectively unless they have appropriate statutory authority to do so. To withhold a grant or a planning consent in the interests of biodiversity conservation may be subject to legal challenges if the relevant Minister is deemed to have exceeded his statutory powers. We note that the Agriculture Act 1986 contains provisions, in section 17, which allow Agriculture Ministers to "endeavour to achieve a reasonable balance" between the interests of agriculture and the conservation of flora and fauna (biodiversity). Similarly the Forestry Acts were amended by the Wildlife and Countryside (Amendment) Act 1985 to provide for a "reasonable balance between" forestry planting and the supply of timber and the conservation and enhancement of flora, fauna and features of special interest. Where the interests of SPAs and SACs are concerned, the 1994 Habitats Regulations set out the overriding requirements of the Birds and Habitats Directives for all competent authorities. However outside the designated areas we believe that the statutory backing for the Directives and biodiversity conservation is much less clearly transposed into UK law. For the avoidance of doubt, this must be addressed.

  51.  We therefore recommend that the Biodiversity Action Plan process is put on a statutory basis so that it can be accorded proper weight in decisions taken by local authorities and statutory nature conservation agencies, and at the level of policy and plan-making in each of the constituent parts of the UK. This could be reinforced by acceptance on the part of central and devolved government and their statutory agencies of an explicit collective responsibility for furthering the conservation of biodiversity.

Habitat restoration and re-establishment

  52.  Both Directives contain explicit reference to the need to restore certain natural habitats and wild species to a favourable conservation status in the Community. This is recognised in The 1994 Habitats Regulations for England and Wales and in Circular 6/1995 for Scotland. The status of biodiversity is recognised on a global scale as being in decline and under threat. We have received evidence from Birdlife International that within the EU many bird species, including many of these listed in Annex I of the Birds Directive, are in decline in Europe, despite the measures taken under the Directive. In the second part of our inquiry we will investigate further whether these declines are mirrored for other groups, but the evidence available to us so far appears to confirm the position. Given the clear references to, and duties for, restoring and re-establishing destroyed biotopes,[15] we are surprised that to date no statutory programme of evaluation to identify the priority species and habitats for action in the UK has occurred. Indeed, officials from the DETR questioned whether the restoration requirements applied to habitats beyond degraded raised bogs. Mr Meacher helpfully clarified the point and accepted that the United Kingdom did have a duty to undertake this restoration work, and that this would be planned as part of the UKBAP process. If the UK intends to fulfil its obligations via the UKBAP, then this further supports our contention that it is necessary to place the plan on a statutory footing, so that the necessary actions (and expenditure) can be properly sanctioned. We are in no doubt that for some scarce species and habitats programmes to restore the quality and extent of the available habitat is required. The well documented loss of wetlands, peatlands, and lowland heaths in the UK since the war attest to the damage that has occurred and the need therefore to expand and restore what remains to meet biodiversity requirements.

Marine conservation

  53.  The JNCC and DETR agree that progress in identifying and classifying SPAs and SACs in the marine and coastal environment has been slow. To some extent this is exacerbated by the fact that the SSSI designation does not extend below the low water mark and thus the history of site notification that exists on land is absent. Secondly, the survey of marine and coastal waters poses special challenges. Thirdly, the Habitats Directive, which lists several marine and coastal biotopes, requires clarification to assist its application to the UK's extensive and important coastline.

  54.  Many witnesses complained about the slow rate of progress in classifying marine sites. Indeed, even under the Birds Directive, which has existed for 20 years, and where knowledge is now well advanced, there are still no marine SPAs. Furthermore, we were concerned that marine institutions and the work of fishery experts may not have been effectively harnessed by JNCC and the conservation agencies.

  55.  We remain to be convinced that SPAs and SACs classified in the marine environment will receive adequate statutory protection. The process of identifying and classifying such areas is still at an early stage but greater clarity as to how such areas will be managed (and by whom) and protected from inappropriate use is required in domestic law.

  56.  The difficulties of transposing the Habitats Directive to the marine environment around our coastline should be clarified by active dialogue between JNCC, DG XI and the relevant EEA topic centre. We accept that workable definitions of some important marine habitats in UK waters are difficult to derive from Annex I of the Habitats Directive. Moreover, we understand from the Nature Conservation Topic Centre that there is no prospect of modifying the Annexes until the Natura 2000 series is in place (based on existing texts). Urgent ways of making progress must therefore be found. We support the action of JNCC in identifying areas worthy of protection, such as sea lochs, marine reefs and cetacean sites. The Directives set minimum levels of protection to be achieved. The UK Government should act now to interpret the requirements positively, and to go further than the existing specifications.

  57.  At present there is no instrument equivalent to the SSSI which can offer protection to conservation interests below the low water mark. Progress in establishing Marine Nature Reserves (MNRs) under Sections 35 and 36 of the Wildlife and Countryside Act has been disappointing. Although concerned to ensure that MNR proposals are fully discussed locally, we do not consider that any small group of individuals should indefinitely block progress in safeguarding key sites in an area of UK's most distinctive and precious natural heritage. The prospect of establishing MNRs was rightly hailed as one of the great achievements of the 1981 Act. Sadly, the provisions have been declared by JNCC to be almost unworkable. We applaud the effort that has gone into the establishment of voluntary marine reserves. However, we believe that a new approach to protect sites in the marine environment is now required. The time has come to review the relevant provisions of the Wildlife and Countryside Act. Better legislation to provide workable and effective protection for important areas of nature conservation interest in the marine environment is needed as a matter of urgency.

Coastal zone planning

  58.  We received evidence from a number of port and other commercial interests concerned that the Directives might further delay the already extensive process of consultation and evaluation that applies to developments in estuaries and coastal areas. We were surprised at the large number of consenting bodies which operate in the coastal zone—local authorities, the Scottish Environment Protection Agency, the Environment Agency, MAFF, English Nature, Scottish Natural Heritage, the Countryside Council for Wales and many others. However the complexity of this consenting process largely pre-dates the Birds and Habitats Directives. UK estuaries and "soft" coasts are recognised as being of considerable conservation interest, particularly for birds which use them as staging or wintering areas on their long migrations. Unsurprisingly many are already classified as SPAs or SACs. The need to evaluate and assess port and related development within estuaries is therefore critical to meeting the obligations in the Directives and the UKBAP. Furthermore, even if major shipping channels were excluded from the relevant SPA or SAC, as some witnesses have suggested, activities within the channel such as major dredging works could clearly impact on nearby protected areas. They would thus still require evaluation to comply with the 1994 Habitats Regulations.

  59.  Accordingly we encourage all those with interests in the coastal zone to work together and pool ideas and resources and thus speed up the decision making process. Scottish Natural Heritage's firths initiatives, and English Nature's estuary forums, in which the relevant interests already work together, could be further developed by the production of management plans to guide decision-making. This should ensure a more orderly and (it is to be hoped) speedier decision-making process.

The implications of devolution in the UK

  60.  Following the establishment of devolved administrations in Wales, Scotland and Northern Ireland, implementation of the Directives and biodiversity policy in those parts of the UK passes to the Scottish Parliament and to the Assemblies for Wales and (once operational) Northern Ireland. This has the advantage of allowing local solutions and ideas to be developed for promoting nature conservation and biodiversity. We see this as an important step.

  61.  However, we are concerned that devolution might create difficulties for the UK Government in seeking to implement consistent policy and standards in regard to its duties under the Directives and the Biodiversity Convention. Already we have noted that CCW and SNH cannot report on the status of SSSIs until 2006. Furthermore, although English Nature has had a budget increase for these matters, SNH has received extra money for National Parks and countryside access measures only. These are desirable objectives, but underfunding of biodiversity programmes in one or more of the administrations could jeopardise the performance of the UK as a whole. Similarly we note with concern that the Scottish Office consultation paper on the future of SSSIs, People and Nature,[16] can be read as suggesting a considerable reduction in the number of SSSIs, despite the fact that the guidelines for SSSI selection are co-ordinated under statute by JNCC. On the other hand, we welcome the commitment to protecting SSSIs which features in the accord between the ruling coalition partners in the Scottish Assembly, "Partnership for Scotland", although as yet no proposals to give effect to it have been announced.

  62.  We consider that the guidelines for the selection of SSSIs should continue to be the responsibility of JNCC for Great Britain. We recognise that alternative guidelines for ASSIs in Northern Ireland are appropriate. However, the selection process for the Natura 2000 sites should be applied in a consistent manner across the UK. Those responsible in central and devolved government should assure themselves that standards are being met and that progress is sufficient to meet the UK's European and international obligations. It is essential that, as the lead department, the Department of the Environment, Transport and the Regions establishes effective interdepartmental procedures to ensure compliance on a UK­wide basis with the standards for SSSIs and classification of Natura 2000 sites.

  63.  This will require an audit process, independent of the statutory nature conservation agencies, to gauge performance and to compare outcomes against UK policy and standards in England, Scotland, Wales and Northern Ireland. The JNCC is not empowered to do this and, as a joint committee of the agencies, is not appropriate. Mr Meacher said, of himself, "the buck stops here". It is therefore the responsibility of DETR to ensure that it puts in place the proper institutional structure, with adequate transparency to engage public confidence.

Other issues arising from our inquiry

  64.  As we have explained in paragraphs 2-3, the main focus of our Final Report, to follow later this year, will be the progress toward Natura 2000 and the implementation of the 1992 Convention on the wider European front. The inquiry has, however, brought out a number of issues of a more detailed and domestic nature which, although not directly affecting the main conclusions and recommendations of our Interim Report, will require further discussion. These include the implications of rising sea levels, flood defence policies, "managed retreat" as an alternative to habitat restoration or re-creation, the Common Fisheries Policy, and possibly some further points about the transposition of the Directives into UK law. We propose to deal with these in the Final Report.

Conclusion

  65.  We conclude with a note of warning. We were pleased to learn from Ministers of the Government's positive commitment to promoting biodiversity, and not least its determination to press for more rational Community policies on agricultural support in the context of Agenda 2000. However, this may be the last opportunity the United Kingdom has for introducing improved wildlife and countryside legislation before the Commission carries out the review of Member States' compliance with the Habitats and Species Directive. We are concerned that without a demonstrable commitment to strengthening the national statutory protection available to Natura 2000 sites the UK may be found wanting.


13  In relation to the Birds Directive, the Court of Justice has consistently held that ecological requirements do not have to be balanced against the economic and recreational requirements when SPAs are declared (see, in particular: Case C-355/90 Commission of the European Communities v Kingdom of Spain (the "Santoña Marshes" case), [1993] ECR I­4221; Case C-44/95 Regina v Secretary of State for the Environment (ex parte Royal Society for the Protection of Birds) (the "Lappel Bank" case), [1996] ECR I­3805; and Case C-3/96 Commission of the European Communities v Kingdom of the Netherlands (the "Netherlands" case), [1998] ECR I­3031). In the case of the Habitats Directive, whilst Article 2(3) recognises that measures taken under the Directive should take account of economic, social and cultural requirements, Article 4(1) and Annex III make it clear that the selection of SACs is to be based on ecological and scientific criteria. In the "Lappel Bank" case, Advocate-General Fennelly identified a "close link" between the two Directives. In his view the identification of SACs under the Habitats Directive should be on the basis of the ecological criteria listed in Annex III and relevant scientific information (Opinion, at paragraphs 70-71). Consideration of "imperative reasons of overriding public interest" (Article 6(4), which by virtue of Article 7 applies also to the Birds Directive) arises only if a development proposal comes forward at a later stage, once the SPA has been classified or the SAC has been formally designated. Back
14  Per Lord Mustill in Southern Water Authority v Nature Conservancy Council [1992] 3 All ER 48 at p 484. Back
15  An environmental region characterised by certain conditions and populated by a characteristic community of wild organisms or biota. ("Biota" = plants, animals and other organisms occupying a place together.) Back
16  People and Nature: A New Approach to SSSI Designations in Scotland, The Scottish Office, 14 September 1998 Back

 
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