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Baroness Byford moved Amendment No. 200A:



("( ) In any of the circumstances referred to in subsections (1) and (2), the Council shall consider alternative options for securing the conservation of the flora, fauna or geological or physiographical features of the site, and shall discuss any such options with the persons referred to in subsections (1) and (2).").

The noble Baroness said: My Lords, in moving the amendment, I speak to Amendment No. 200B. As the Bill is drafted, it appears that English Nature and the Countryside Council for Wales could simply refuse consent for an operation notified to them and walk away from the issue. Such a strategy could potentially damage any possibility of developing a positive relationship with the owner or occupier. A disgruntled occupier could feel left in limbo.

Accordingly, it is important that at the same time that English Nature or the Countryside Council for Wales refuse, withdraw or modify a consent they also consider alternative options for conserving the special interest of the site and discuss these options with the owner or occupier.

The options could include doing nothing, seeking a mutually agreed grazier--for example, where the occupier no longer keeps livestock--or offering a management agreement to secure positive management. It is to be hoped that through such consideration and dialogue a positive working partnership can be established between the parties.

I turn to Amendment No. 200B. It is important that proper consideration is given to the interests of agriculture and forestry and economic and social interests by whoever is appointed to hear appeals. Under Section 28G any person who hears appeals will be bound by the requirement to,


    "further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest".

That duty must be counterbalanced by a duty to take account of the interests of those bringing appeals, which will often relate to agriculture, forestry or economic or social matters. If the conservation and enhancement duty is not effectively balanced, anyone making an appeal is likely to feel that the cards are stacked against them.

The amendment, which draws on the duty placed on English Nature and the Countryside Council for Wales by Section 37 of the Countryside Act 1968, provides for the necessary balance. I beg to move.

Earl Peel: My Lords, I support both amendments. On Amendment No. 200A, it would be unfortunate if the conservation authorities simply dismissed a consent from an owner or occupier without seriously considering an alternative option. I have no doubt that in most cases this will be considered. I can only speak from my experience when dealing with the regional officers of English Nature. They are extremely reasonable. I have no doubt that in most cases such an option will be considered. However, we have a duty to

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legislate for the unlikely. It is also important that owners and occupiers feel confident that the system is fair. It is unlikely that they will consider such an option unless it is a serious matter. We owe it to them to make the system fair and equitable.

On Amendment No. 200B, I understand that an owner or occupier who has been refused a consent under new Section 28F in Schedule 9 or who is aggrieved by the conditions attached to that consent may appeal to the Secretary of State. That seems fair and proper. However, as my noble friend pointed out, whoever is appointed to hear such appeals is bound under Section 28G,


    "to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest".

That is fine. I have no problems with that concept. However, coming back to fairness and reasonableness, whoever is responsible for hearing the appeal should have due regard for local economic and social needs. The terminology in the amendment appears in many Acts of Parliament, so there is already a precedent for it.

The words "due regard" hardly compete with the words,


    "to further the conservation and enhancement of".

The amendments would not seriously erode the principles behind the Bill. However, they would bring some reality to the decision-making process. As I said on the previous amendment, if an owner or occupier goes to the trouble of seeking a consent under Section 28F, he will have a good reason for doing so. It is only right and proper that his considerations should be given a fair hearing, alongside the obligations that the Bill places on the person conducting the hearing.

Lord Whitty: My Lords, I hope to be able to convince the noble Baroness that the amendments are unnecessary. Like her, we would prefer a partnership approach. When a landowner or occupier applies for a consent, he will already have before him the notification, which explains what is special about the land and what operations are likely to damage the special interests. He may also have the agency's statement of views on the management of the land. He should have approached the agency to discuss his plans and explore the options before making the application for consent. Even if he has not, there is still an opportunity for discussion should consent be refused or granted with onerous conditions that the owner or occupier is not happy with. That is why the provisions for making an appeal allow the agency and the owner or occupier to agree to extend the time limit.

There is plenty of scope for looking at the options. However, it is not appropriate to put the onus entirely on the conservation agency to come up with alternatives. Clearly, it would need to be prepared to discuss the options with the owner or occupier.

The code of guidance to the agencies, on which we are consulting, promotes positive partnerships and pre-application discussions. The consideration of

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alternatives will also be very helpful. English Nature will then be in a position to suggest ways of making the operation acceptable.

However, there is no need to specify that informal process in the Bill. Each case is different. Alternative ways of carrying out the proposed operation, potential enterprises or suitable conservation options will vary widely. The agency should not be forced to consider alternatives only when an owner or occupier is seeking to carry out operations listed on the notification as likely to damage the special interest features of the site. It would also be impractical to burden the agency with such a general duty. The requirements to consider alternatives are built into the guidance under the Bill. The amendment would place too rigid a formulation on the agency.

As the noble Earl, Lord Peel, said, the phraseology of Amendment No. 200B is already contained in earlier Acts. When considering appeals, the Secretary of State will have regard to the requirements of Section 37 of the Countryside Act 1968, which states that in the exercise of their functions under that Act, the 1949 Act and the Wildlife and Countryside Act 1981,


    "it shall be the duty of every Minister ... to have due regard to the needs of agriculture and forestry and to the economic and social interests of rural areas".

As the appeals under this provision would come under the 1981 Act, as amended by this Bill, that duty will already apply. Therefore, the amendment is unnecessary and I hope that the noble Baroness will not pursue it.

Baroness Byford: My Lords, I am grateful for that latter clarification. Before I finally withdraw the amendment, perhaps I may ask the Minister a question. He mentioned the code of guidance. Is that already covered in the Bill or will it be dealt with later? I was not aware of it.

Lord Whitty: My Lords, I am not sure that I can point to the provision in the Bill under which it comes. However, we are currently consulting on the draft paper. If it is not in the Library, it probably should be, and I shall ensure that the noble Baroness receives a copy of it before Third Reading.

Baroness Byford: My Lords, I am grateful to the noble Lord--not for more reading but for his response. It worried me that, as we go through the Bill, we keep discussing matters which, we are told, we shall come to but which are not relevant at present. However, if the Minister says that the code of guidance is being dealt with, I shall certainly have a look at it. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 200B not moved.]

[Amendment No. 201 had been withdrawn from the Marshalled List.]

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Baroness Miller of Chilthorne Domer moved Amendment No. 201A:


    Page 115, line 39, at end insert--


("( ) Where the Council does not assent to the proposed operation or assents to the proposed operation but with conditions, any dispute between the Council and a statutory undertaker shall be determined by a person appointed for the purpose--
(a) by an agreement between the Council and the section 28G authority; or
(b) failing such an agreement, by the Secretary of State,
and on any such reference the person so appointed may confirm the decision of the Council or give the section 28G authority such directions as he thinks appropriate.").

The noble Baroness said: My Lords, this amendment returns to the problem that we had in Committee in relation to a disagreement between the conservation bodies under the Section 28G authority about an operation likely to damage an SSSI. Our amendment would allow either party formally to seek the view of the Secretary of State before the operation proceeded.

In Committee, I tabled an amendment which sought to use the planning process to resolve the issue. However, given my explanation and the reply from the noble Lord, Lord McIntosh, I was persuaded that that was perhaps not the correct route to take. But I believed that the principle was worthy of pursuit. Therefore, in tabling this amendment I suggest the simpler route of an appeal to the Secretary of State.

If we leave the Bill as it is, there will be no mechanism to ensure a satisfactory outcome. English Nature's briefing on this amendment states that it believes that,


    "whilst such a provision would be useful it is not necessary to add it to the face of the Bill itself, as enshrining it in statute may constrain attempts to reach a mutually acceptable solution".

I fully accept that. However, if an acceptable solution was not reached, the problem would remain.

English Nature goes on to say that, although it supports the principle, it believes that,


    "this useful provision would be better incorporated into the Code of Guidance Ministers are preparing, which already provides explicit guidance for statutory authorities in paragraph 60".

English Nature states:


    "Ministers expect that all public bodies, in deciding to go ahead against English Nature's advice, will clearly demonstrate how they have weighed the balance between differing interests".

The question that I must return to is: what if those bodies have not satisfactorily demonstrated how they have weighed the balance? Will the matter then be left in stalemate? English Nature may decide that it can appeal directly to the Minister. However, could the Section 28G authority appeal in the same way? Although such cases may not be frequent, I believe that when they occur they are likely to be difficult. Without a clear mechanism, they are likely to waste public time and money in a resolution that could, if our amendment were followed, be resolved easily. I beg to move.


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