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Baroness Jay of Paddington: My Lords, the noble Baroness suggests that it is my interpretation that this is an informal summit.

Noble Lords: Oh!

Baroness Jay of Paddington: My Lords, I did, indeed, say that, because that is the status of the preliminary meeting before the full Council takes place. As I said in my original reply to the Lord, Lord Strathclyde, that follows a procedure which has been long established over the past decade and a half; namely, that informal preliminary meetings take place which act as a precursor to the full European Council. The informal summit is not an invention of mine; that is the precise term which is used. The noble Baroness mentioned the Prime Minister's attitude. As the Prime Minister has made clear--I have heard my noble friend Lady Scotland repeat this on several occasions in your Lordships' House when the point has arisen--the text which was considered simply constitutes a declaration. The noble Baroness and other Members of your Lordships' House may disagree with that but that does not detract from his view.

Lord Peyton of Yeovil: My Lords, having listened to everything that the noble Baroness has said, are we

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right to conclude that, left to herself, she would almost certainly have made a Statement today, albeit on this informal matter, and that therefore she has been under irresistible pressure from elsewhere to abrogate the rights of your Lordships' House?

Baroness Jay of Paddington: No, my Lords, that is not the case.

Countryside and Rights of Way Bill

3.21 p.m.

The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

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

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Schedule 8 [Sites of special scientific interest]:

Baroness Miller of Chilthorne Domer moved Amendment No. 478:


    Page 96, line 30, at end insert--


("(3A) Conditions relating to an assent under subsection (3) may require the authority, where reasonably practicable and not involving excessive costs, to restore any damage to the notified interest caused by the operation or where practicable, to provide alternative habitats on land not included in a site of special scientific interest.").

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

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

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

In relation to equity, I refer to the comments made by the noble Baroness, Lady Byford, on a previous occasion on her Amendment No. 477. As the Bill

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stands, we believe that there is a lesser duty on statutory bodies than on private landowners in this regard. We believe that our amendment would rectify that situation. I beg to move.

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

As noble Lords will be aware, the Bill includes a duty on public bodies, when carrying out any of their functions where this may affect an SSSI, to,


    "take reasonable steps ... to further the conservation and enhancement of the ... features by reason of which the site is of special scientific interest".

I hope that that answers one of the points raised by the noble Baroness.

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

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

Amendment No. 478, which stands in the name of the noble Baroness, Lady Miller of Chilthorne Domer, seeks to achieve a similar position but goes further in relation to a requirement for the provision of alternative habitats. We do not consider this justified. The Committee may know that under the habitats regulations relating to sites of international

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importance such as SPAs (special protection areas) and SACs (special areas of conservation), there is a requirement in certain circumstances for the Secretary of State to secure "compensatory measures". These would not always require the provision of alternative habitats. In any event, we believe it appropriate to maintain a distinction between international and European sites, which attract the highest levels of protection, and sites of national importance. I should nevertheless point out that in England and Wales, international sites will cover nearly 70 per cent by area of the SSSI series. I believe that the government amendments fully deliver the commitment we gave in another place. I therefore ask that Amendment No. 478 is not pressed.

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

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

3.30 p.m.

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

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

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

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

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