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Baroness Miller of Chilthorne Domer moved Amendment No. 500:



("2.--(1) Section 29 (special protection for certain areas of special scientific interest) is amended as follows.
(2) In subsection (1)(b), after "features" there is inserted "notified as being of special interest".
(3) Omit subsection (2).
(4) In subsection (3), omit "Subject to subsection (4),".
(5) Omit subsections (4), (5), (6), (7) and (10).
(6) After subsection (11) there is inserted--
"(12) This section does not apply to owners and occupiers of land which is a site of special scientific interest.".").

The noble Baroness said: In moving Amendment No. 500, I shall speak also to Amendment No. 501, which follows from it. Those Members of the Committee who have attended all the debates in Committee will remember the lengthy and interesting discussion that took place on the amendment of the noble Lord, Lord Williams of Elvel. This amendment seeks to make orders restricting the activities of third parties, to prevent damage to SSSIs and to require restoration of damage where such orders are contravened.

As the law currently stands, nature conservation orders are made under Section 29 of the Wildlife and Countryside Act 1981. Where third party activities on

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an SSSI are damaging to the notified interest, English Nature and the CCW can ask the Secretary of State to make an order prohibiting such activities on an SSSI with immediate effect, subject to a right of appeal, thus preventing from that moment any further damage. Anyone who ignores the order may be prosecuted and, if convicted, subjected to a fine and an order to restore the damage.

In paragraph 2 of Schedule 8, the Government propose to repeal Section 29 of the 1981 Act. As a result, no new nature conservation orders will be possible, the existing orders will cease to have effect, and the vexatious activities referred to by the noble Lord, Lord Williams of Elvel, will become even more widespread and difficult to control.

Nature conservation orders go further than the general offence in the Bill. An important feature of such orders is that they apply to the activity in general--in other words, the offence is one of breaching the order rather than causing damage in a particular instance. The orders as they now exist apply to everyone undertaking a particular activity which causes damage overall--in the previous debate we used the example of motor-cyclists using and damaging an area--but, as the Bill is drafted, it seems that in future it will be necessary to prove the offence against every single motor-cyclist causing damage. A general order could not be served against all those undertaking such an activity in a particular area.

The amendment seeks to preserve the nature conservation orders, which would be subject to appeal, as a last line of defence against damaging activities. It seeks to amend Section 29 so that orders would apply only to third parties. There are good reasons for keeping the orders: they will strengthen the protection afforded and the ability to serve a general order will save time, red tape and money. A general order can be served on anyone undertaking a banned activity; it would not be necessary to serve on individuals separate orders requiring a higher degree of proof of damage. I beg to move.

The Duke of Montrose: The first paragraph of Schedule 8 begins,


    "For section 28 of the 1981 Act",

and there follow paragraphs relating to that section. In paragraph 2, Section 29 has been orphaned from its parent Act and the Act is not mentioned. I shall never be able to understand parliamentary drafting, but I wonder whether that is an omission. All the other paragraphs refer to the Act to which they apply.

5.30 p.m.

Baroness Farrington of Ribbleton: The Government have been concerned to deal with issues of damage to SSSIs, whatever the source. We are aware that incidents of damage by persons other than owners and occupiers of land--so-called "third parties"--have arisen, and although they are by no means the most serious threat to the condition of SSSIs, nevertheless, where it occurs, damage can be serious. Nor has it always been easy for landowners to address problems,

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even where activities which are damaging the special features of the site are taking place without permission on their land, and causing problems.

We have already confirmed, in connection with Part I of the Bill, that normal access by walkers should not damage sites, but Clause 24 (power to make a direction) allows action to be taken to exclude or restrict access if there is likely to be a problem, as advised by the conservation agencies.

We took full soundings from a wide range of groups before deciding to include in the Bill a specific new provision. This creates an immediate offence of intentional or reckless damage to the features by reason of which the SSSI is of special interest; and following the debate in Committee in another place this was extended to include intentional or reckless disturbance to any fauna of special interest. This is modelled on the offence which already applies in relation to ancient monuments and significantly improves the protection afforded to SSSIs. It will allow the agencies to take immediate action against activities causing damage, or disturbing any special fauna--which includes birds. It carries with it a significant maximum fine of up to £20,000 in the magistrates' court; and where a person is found guilty of an offence, the court may make an order requiring restoration of the site to its former condition.

These measures are accompanied by changes to road traffic legislation, which will improve and strengthen the powers of the police to act against unauthorised use of land by vehicles. There are also existing powers in relation to prosecution for criminal damage: for example, court action was successfully taken recently where a third party was convicted of arson on a heathland SSSI that was important for smooth snakes and nesting nightjars.

We believe that, taken together, this is a significant but proportionate response to problems arising on SSSIs. However, I have noted the strong points that have been made and we are prepared to consider whether by-laws, which are the standard approach to avoiding damage by the public and are specifically designed for that purpose, would be appropriate in this case. Powers to make by-laws already apply in relation to European sites and national nature reserves and, if absolutely necessary on further reflection, this is an option we are prepared to consider.

The noble Duke, the Duke of Montrose, raised a question in relation to Section 29 of the 1981 Act. Section 29 of the 1981 Act will cease to have effect. I hope that that is clear. It is the best that I can do in the circumstances. If there is a lack of clarity, I hold myself responsible and I shall, of course, write to the noble Duke.

Baroness Miller of Chilthorne Domer: I thank the Minister for her reply. If it is the Government's intention to return on Report to the point about the by-law, perhaps any proposal might cover the points that I made. Our intention is to cover in the simplest way possible serial vexatious activity by lots of

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individuals. I shall reflect on the Minister's suggestion. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 501 not moved.]

Lord Luke moved Amendment No. 502:


    Page 103, line 17, after ("operations") insert ("which are reasonable, practicable and necessary").

The noble Lord said: It appears that this issue was not raised in Committee in another place, and it is important that restoration requirements are reasonable in all circumstances. I am grateful to the CLA for raising this subject and to the NFU for its input to this amendment.

A court may make an order requiring a person convicted of damaging an SSSI to carry out such operations as may be specified to restore the site to its former condition.

Depending on the circumstances of each individual case, such an order might not be reasonable, might not be practicable and, in certain limited cases, might not even be necessary. The amendment would ensure that any such restoration order would be fair by having to meet these criteria. I beg to move.

Lord Whitty: I am doubtful that there is any need to make specific reference to the consideration of these factors. I am confident that a court, when considering the operations that might be required under a restoration order, would fully consider what was reasonable, practicable or necessary. The provision in the Bill as drafted is in the same terms as Section 31 of the 1981 Act, which has generally operated satisfactorily for many years.

Under the Bill as drafted, the court would retain its discretion to consider, within the context of the facts of each case, the extent of the operations that might be appropriate under a restoration order. I should also point out that Section 31(4) of the 1981 Act, which will apply, enables the court to discharge or vary a restoration order where there has been a change of circumstances which has made compliance with the restoration order impracticable or impossible. So there is no need for this reference to be on the face of the Bill. I hope that the noble Lord will not pursue the amendment.


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