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Lord McIntosh of Haringey: The short answer is as little as possible in terms of acreage and as few as possible in terms of the number of sites. We need that provision because there are occasions when voluntary agreements cannot be reached. It will be a measure of success of that part of the Bill that there should be as few as possible. However, it is not wise for me to anticipate exactly how many there will be.
Lord Glentoran: I accept the explanations and comments made by the noble Baroness, Lady Young, and the Minister on Amendment No. 483C. I am delighted that there is such a strong emphasis on voluntary agreements.
I thank the Minister for accepting Amendment No. 484. As regards Amendment No. 485, I apologise if I have misinterpreted the Bill to some extent. I shall read it again. In general, I accept the Minister's explanations in relation to Amendment No. 486. I beg leave to withdraw the amendment.
The nature of the agreement is not specified. It is implied that the agreement would be under Section 16 of the 1949 Act or Section 15 of the 1968 Act but that is not clear. This amendment would clarify the situation. The amendment would also make it clear that EN/CCW had to be satisfied that it could not conclude a formal agreement under those provisions. If EN/CCW attempted to reach an informal agreement and the owner was unwilling, EN/CCW might argue that it could then proceed to a management notice without attempting to secure a formal agreement. I maintain that that would be unfair on the owner or occupier who should expect to be involved not only in informal discussions prior to the serving of a management notice but also in serious, formal negotiations over a formal agreement that would meet both the owner's needs and those of EN/CCW.
I deal now with Amendments No. 489 and 490. The Government have previously amended the Bill to remove references to management agreements on SSSIs being on terms reasonable to EN/CCW. The Government have accepted that such agreements should simply be on reasonable terms which can be assessed from the viewpoints of all parties, not simply on terms which appear to the council to be reasonable. That is a vast perspective which may devalue the perspective of the other party. We are grateful for that.
But there is another example in the Bill of undue bias towards the view of EN/CCW over that of the other party, who is the owner or occupier. That arises in new Section 28I(4). That requires that the works of other matters specified in the management notice must appear to the council to be measures which it is reasonable to require, rather than simply measures which it is reasonable to require.
Appeals against management notices under new Section 28J bring the implications of the current wording even more sharply into focus. As the Bill is worded, the issue in an appeal would simply be whether EN/CCW was reasonable to include the measures in the notice, and not whether the measures themselves were reasonable. Surely that would be far more difficult for an owner to contest effectively than the issue of whether it would be reasonable to require him to carry out the works on the SSSI land. The occupier would be faced with proving that EN/CCW staff had acted unreasonably and not that the works themselves were unreasonable.
A fairer appeal system would surely require that persons other than EN/CCW should be able to test whether the requirements of the notice--the work specified--were reasonable. As the Bill is drafted, it would deny that opportunity to owners and occupiers or any inspector appointed to hear the appeal. Accordingly, the Bill should be amended as I have suggested.
It would not be unreasonable for EN/CCW to seek to recover from the owner any sum that it had previously given to the owner to carry out the works under a management agreement. If it recovers that money, the council should use it to fund its own costs in carrying out the work. The only cost that the council should be able to seek to recover over that amount should be any additional cost over and above the sum that it incurs.
Continually, the DETR has assured us that owners and occupiers would be required to pay only costs incurred over and above the sums offered under any management agreement. Amending the Bill as proposed would ensure that there was certainty on that point. I beg to move.
Baroness Young of Old Scone: I am slightly confused as to the intent of Amendment No. 490. I thought I understood it when I read it, but now that the noble Lord has spoken to it I am more confused. Perhaps I may describe the circumstances in which a management notice would be served and in which the costs of carrying out the works that had not been carried out by the owner and occupier would be sought from him.
Under the Bill there would be notification, consultation and eventually confirmation with regard to SSSIs. There would then be considerable discussion about reaching a voluntary management agreement. In the absence of an agreement being reached voluntarily, a management scheme would be drawn up and consulted upon. Eventually, if the management scheme was not accepted and work that was required was not carried out, a management notice would be served, giving a clear indication of the work needing to be carried out. If the work was still not carried out, action would be taken to seek the costs of such work, as the Bill describes.
One has to go a long way down the road before reaching that point. The number of owners and occupiers who would come into that category would be small. If such an owner or occupier did not agree with the management scheme, he could appeal. The circumstances described are of someone having gone through a number of stages, with consultation at each stage and with an eventual right of appeal to the Secretary of State, and still saying, "I am sorry; I will not do what the site now urgently requires and which has been agreed by a whole variety of bodies, including (potentially) the Secretary of State". We are talking about extreme circumstances. If I were not in your Lordships' House, I might use a word I sometimes use about a small number of people who come into that category!
Lord Whitty: My noble friend Lady Young has done half my job for me. It is clear that the procedures covered by this new section are end-of-the-line procedures. A management notice will be used in only exceptional circumstances. The agency will already have entered into discussions with the land manager about the appropriate management of the conservation interest; it will have discussed the content of a scheme; it will have served the management scheme with a further opportunity for the land manager to comment; and it must have offered to enter into a management agreement on reasonable terms. Only then may it serve a management notice if it has not been possible to reach such an agreement. Given that lengthy and clear process, which allows the opportunity for landowners and land managers to make representations throughout, let us now focus on what the appropriate formulation should be when such a situation arises.
If Amendment No. 488 were agreed to, we would have to deal with a situation where the agency will have offered an agreement using its existing powers under Section 15 of the Countryside Act or Section 16 of the National Parks and Access to the Countryside Act. They have no other powers in relation to agreements with owners and occupiers. In the majority of cases where work must be undertaken, the agreement will include the offer of a financial sum.
In relation to Amendment No. 490, I can assure the noble Lord that where the agency has subsequently served a management notice which is not complied with and, exceptionally, uses its powers to enter land, carry out work, and recharge its costs to the land manager, the amount to be recovered should indeed exclude any amount which had been offered under the management agreement for the work to be carried out. That is a matter for guidance rather than for the Bill itself.
Ministers are required to issue guidance on the terms of agreements and already we have issued for consultation a draft of Financial Guidelines on Management Agreements. A similar draft has been issued for Wales. Having taken account of the comments received, and having regard to matters raised in debates on this Bill, we shall issue final guidance once Part III of the Act comes into force. We have also issued a consultation paper on the terms of guidance to the agencies--Sites of Special Scientific Interest: encouraging positive partnerships--in which the issue addressed by Amendment No. 490 is covered in paragraph 51.
On the matter of the "reasonableness" of a management notice, which is covered by Amendment No. 489, as my noble friend said, that may be tested by appeal to the Secretary of State. That appeal would not be on the rather narrow grounds identified by the noble Lord, but on the grounds that the agency could not reasonably have reached its decision, which involves both process and substance. That is a standard procedure and more or less a standard form of words in legislation; for example, comparable references appear in planning legislation and in relation to enforcement notices issued by a planning authority, which must state the matters that appear to that authority to be included, such as those in relation to listed buildings. Likewise, such a provision appears in environmental legislation, where action may be taken where the enforcing authority "is of the opinion". In each case the body taking action must decide what appears to it to be reasonable. That is the situation here. There are ample precedents for that approach. There is also an appropriate means to test that decision, should an appeal be made.
Therefore, I hope that that is sufficient reassurance for the noble Lord that the rights of landowners and occupiers would be fully and appropriately protected in this almost last-resort procedure and covered by these provisions in the Bill, and that he will not press his amendment.
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