The legal regime for nature conservation may be about to change dramatically now that Wales has enhanced law-making powers. The Natural Environment Framework (NEF), a major review of environmental law and policy initiated in September 2010 by the then Minister for the Environment, Housing and Sustainable Development, raised the possibility of a restructuring of environmental bodies in Wales and a move towards natural resource management based on the ecosystem approach and designed to deliver ecosystem services.1 If even some of the ideas being floated come to fruition, the result will be a different way of looking at biodiversity and the purpose and practice of nature conservation.
At the moment, however, Wales is not very different from the rest of the UK in the way it addresses nature conservation. This is partly because of a common heritage of legislation and policy over the last sixty years or more and partly because of the influence of European and international commitments, which take effect at the UK level. This chapter sets out the current framework for nature conservation law in Wales, covering both the substantive law and the institutional and policy frameworks, before going on to discuss the possible implications of the devolution settlement on the implementation of NEF reforms.
The evolution of UK nature conservation law
The modern regime for the protection of sites for nature conservation purposes has its origins in the reforming policies adopted by the incoming Labour government in the aftermath of the Second World War. Species protection measures have a much longer history and have been largely shaped by legislation for the protection of birds.
The nature conservation movement had its origins in nineteenth-century concerns over the exploitation of birds, which led to the enactment of several Acts to protect different species of birds, culminating in the Wild Birds Protection Act 1880. Numerous other bird protection Acts followed, culminating in the Protection of Birds Act 1967. Meanwhile there were few measures to protect other species, and for nearly 100 years birds were the main subject of species protection legislation. Attention was broadened in the 1970s with the passage of the Conservation of Wild Creatures and Wild Plants Act 1975. This was followed in 1981 by the Wildlife and Countryside Act, which set the scene for all subsequent wildlife law and is still the main source of domestic nature conservation law.
The protection of habitats did not arise directly from measures to protect species but was a development of the land use reforms introduced in the 1940s. Countryside protection followed a different path and has a longer history. Its origins lie in the aesthetic movement of the late nineteenth century and the desire to preserve beautiful things, including the natural environment, for posterity.
The two strands of habitat protection and countryside preservation were each included in the first piece of major nature conservation law, the National Parks and Access to the Countryside Act 1949. For the first time, measures were introduced for the designation of ‘protected areas’. There were two main types; nature reserves, which were designed to protect the scientific interest of sites, and national parks, which were designed to protect aesthetic values and provide a recreational facility for the public. These differences of objective are well illustrated by reference to the purposes of each protected area as stated in the Act as originally worded:
‘nature reserve’ means land managed for the purpose –
- of providing, under suitable conditions and control, special opportunities for the study of, and research into, matters relating to the fauna and flora of Great Britain and the physical conditions in which they live, and for the study of geological and physiographical features of special interest in the area, or
- of preserving flora, fauna or geological or physiographic features of special interest in the area,
or for both of those purposes.
[‘national parks’] are those extensive tracts of country in England and Wales as to which it appears to the [National Parks] Commission that by reason of –
- their natural beauty, and
- the opportunities they afford for open-air recreation, having regard both to their character and to their position in relation to centres of population,
it is especially desirable that the necessary measures shall be taken for the purposes [of preserving and enhancing their natural beauty and of promoting their enjoyment by the public].
The legal framework for nature conservation in the UK has traditionally shown closer links with land use planning than with environmental law on pollution control. The reason for this can be traced back to the deliberations leading to the National Parks etc. Act, which forged the link between planning and conservation. The Act was passed just two years after the introduction of major planning reforms in the Town and Country Planning Act 1947. Both pieces of legislation were shaped by the recommendations of influential committees.2 The result is that the scope of nature conservation law has largely been determined by the need to consider scientific aspects of nature. It is a body of law to do with species, habitats, geology and landforms. The public interface with nature, in terms of scientific study and education, is also encompassed, but broader public involvement through recreation has been dealt with separately under a body of countryside law. More recently, the latter has drawn closer to the rural development agenda, thereby emphasizing the socio-economic aspects of countryside law and policy. When the new wave of pollution laws was being promulgated from the 1960s onwards, the focus was on public health and site inspections, with emissions standards and discharges qualities forming the basis for controls. The relationship with planning was left to planning guidance.3
Note that even at this early date there is already a difference in geographical coverage. Nature Reserves could be created in Great Britain, i.e. England, Scotland and Wales, whereas National Parks were restricted to England and Wales. Northern Ireland was not covered by the Act at all. The reasons for these differences lie in part in the deliberations of the specialist committees set up to advise the government on the desirability of establishing these new protected areas. The advisory committee for Scotland advised against National Parks because it was felt that they were not needed.4
The 1949 Act also provided for the creation of what was to become the most important site protection mechanism for nature conservation in the United Kingdom, the Site of Special Scientific Interest or SSSI.5 Section 23 imposed a duty on the newly created Nature Conservancy to notify the local planning authority that land in its area was, in the opinion of the Conservancy, of special interest by reason of its flora, fauna, or geological or physiographical features. The idea behind this measure was to alert planners to the presence of features of scientific interest that they might not otherwise be aware of so that their existence could be taken into account by planning authorities when making decisions on development proposals. This measure attracted very little attention during the passage of the Act through Parliament and certainly was not regarded as in any way controversial. This was presumably because the designation was seen as nothing more than a factual statement about the quality of the land; there was no duty on the local planning authority to act upon the information provided. Since then, the SSSI has been strengthened through a series of incremental legal changes. The link to the planning regime remains, however, and arguably has shaped policies for nature conservation ever since. In the immediate post-war years, which is when the National Parks etc. Act was passed, no one realized the extent of the land use changes that would result from the intensification of farming. Despite its name, the town and country planning regime has more to do with urban development than with land use in the countryside. For the most part, agriculture is either excluded from planning control or deemed to be permitted development and this has limited the effectiveness of nature conservation policies. The link with planning has even had important consequences for conservation in the marine environment, where SSSIs have been held not to apply because there is no planning jurisdiction.6
The National Parks etc. Act 1949 set the scene for regimes of site protection based on nature conservation and the protection of the countryside, and these evolved as two separate strands of law and policy, each with its own institutional arrangements. Table 5.1 lists the main legislative milestones in this evolution. The two policy threads of nature conservation and countryside have come together through the creation of combined agencies but integration of the law has not followed. Instead, modern concepts such as biodiversity and sustainable development have largely been bolted on to existing legal frameworks.
The European Community introduced its first conservation legislation in 1979 in the form of the Birds Directive. The need to implement this directive in the UK provided a strong imperative for the next major piece of domestic nature conservation legislation, the Wildlife and Countryside Act 1981. Amongst other things, this Act revolutionized the use of the SSSI designation and transformed it into the cornerstone of conservation policy. With few exceptions, all subsequent protected area mechanisms have been based on the protection provided through designation as an SSSI. Further changes to the SSSI have been made to increase the protection through the introduction of powers and duties that enable the SSSI to be used as the basis for land management regimes designed to deliver conservation outcomes.7 The main change to species protection law has been the addition of a duty on ministers to publish a list of species and habitats of ‘principal importance for the purpose of conserving biodiversity’. This was originally contained in s. 74 of the Countryside and Rights of Way Act 2000 but can now be found in ss. 41 and 42 of the Natural Environment and Rural Communities Act 2006. Nature conservation legislation enacted following devolution has reflected the changes in governance to a greater or lesser degree, as can be seen from the most recent statutes shown in Table 5.1. It is significant, in this respect, that the duty to publish biodiversity lists is directed separately to Welsh and English ministers.
The impact of European nature conservation law
The greatest influence on nature conservation law in the UK over recent years has undoubtedly been the obligation to implement the Birds and Habitats Directives. While this obligation is applied at a Member State level, it also has an impact at the sub-national level; the devolved administrations are held accountable for its implementation by the UK government and, on occasion, by the European Commission itself.
|1949||National Parks and Access to the Countryside Act||Covers nature conservation and countryside protection. Creates National Parks, Areas of Outstanding Natural Beauty, Nature Reserves, SSSIs and the National Parks Commission|
|1954||Protection of Birds Act||Lays foundation for all subsequent species protection|
|1967||Countryside (Scotland) Act||Establishes Countryside Commission Scotland|
|1968||Countryside Act||Replaces National Parks Commission with Countryside Commission|
|1972||Nature Conservancy Council Act||Replaces Nature Conservancy with Nature Conservancy Council|
|1975||Conservation of Wild Creatures and Wild Plants Act||Extends species protection measures to other species|
|1981||Wildlife and Countryside Act||Implements EU Birds Directive and Bern Convention. Introduces comprehensive species protection measures. Reforms SSSIs. Creates Marine Nature Reserves|
|1990||Environmental Protection Act||Replaces Nature Conservancy Council with English Nature, the Countryside Council for Wales and the Joint Nature Conservation Committee|
|1992||Natural Heritage (Scotland) Act||Replaces Nature Conservancy Council with Scottish Natural Heritage|
|2000||Countryside and Rights of Way Act||Reforms SSSI regime in England and Wales. Provides for Biodiversity Lists|
|2000||National Parks (Scotland) Act||Provides for the creation of National Parks and Marine National Parks in Scotland|
|2004||Nature Conservation (Scotland) Act||Amends SSSI provisions|
|2006||Natural Environment and Rural Communities Act||Merges English Nature and the Countryside Agency to create Natural England. Provides for Biodiversity Lists|
|2009||Marine and Coastal Access Act||Creates Marine Conservation Zones|
|2010||Marine (Scotland) Act||Creates Marine Protected Areas|
|2011||Wildlife and Natural Environment (Scotland) Act||Amends species protection measures and amends SSSIs|
The Birds Directive covers the protection, management and control of bird species and lays down rules for their exploitation. Article 2 requires Member States to take measures to maintain the populations of bird species at a level commensurate with ecological, scientific and cultural requirements, taking account of economic and recreational requirements. The duty applies to all species of birds that are naturally occurring in the wild state. The main measures prescribed for meeting the objectives of Article 2 are forms of habitat protection.8 Some species are singled out for special protection measures because they are considered to be rare or endangered.9 For these species, the directive requires Member States to create Special Protection Areas (SPAs). In addition to the habitat protection measures, Member States are required to establish a general system of protection for the birds themselves.
The need to implement the Birds Directive was one of the reasons for the enactment of the Wildlife and Countryside Act 1981. The habitat protection measures were delivered through a strengthened SSSI system, which proved to be one of the most controversial parts of the Act. Implementation of the species protection measures was less contentious. Part I of the Act contains protection measures for bird species. These were modelled on the existing measures in the Birds Acts, which were themselves a model for the European legislation.
The Habitats Directive extends the concept of wildlife protection from birds to other animals and plants. Like the Birds Directive, it provides for the protection of species and their habitats, but the details are somewhat different. Its aim is to contribute towards ensuring biodiversity through the conservation of natural habitats and wild fauna and flora. The measure of success is whether or not the features of interest are at a favourable conservation status. The definition of favourable conservation status is not straightforward but, in essence, conservation status is deemed to be favourable when the natural range and coverage of a natural habitat is stable or increasing and the natural range of a species is not reducing.10
In terms of habitat, it is one of the aims of the directive to establish a European network of protected areas, known as Natura 2000. The network is to comprise SPAs classified under the Birds Directive and Special Areas of Conservation (SACs) designated under the Habitats Directive. Designation of SACs is not simply a matter for the individual States; instead Member States submit proposals to the European Commission, which then makes the final decisions on which need to be designated. The directive lists the plant and animal species and habitat types for which SACs must be designated, and the final selection of sites is made on the basis of a number of detailed criteria.
The requirements for the protection of SACs are set out in Article 6. Article 6(1) states the basic requirement for Member States to establish the necessary conservation measures, including the use of appropriate management plans where necessary. Article 6(2) sets the standard for protection. It requires Member States to
take appropriate steps to avoid, in [SACs], the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of [the] Directive.
Article 6(3) sets out the procedures to be followed whenever there are plans that might affect an SAC. It states that:
any plan or project not directly concerned with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site …, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
If the assessment does indicate that there will be adverse effects, the plan or project may still proceed if it must be carried out ‘for imperative reasons of overriding public interest, including those of a social or economic nature’.11