Nature Conservation and Habitat Protection 1

Current nature conservation legislation in Great Britain derives from the National Parks and Access to the Countryside Act 1949. This Act, which distinguished between nature conservation and amenity protection (for human recreational pleasures), based nature conservation on scientific and ecological principles, with the overall aim of protecting habitats.

SSSIs and nature reserves

Two types of designated sites were formed, namely, the Site of Special Scientific Interest (SSSI) and the "nature reserve". Subsequently, the Wildlife and Countryside Act 1981 developed protection of SSSIs by establishing a mechanism for their notification and protection. The 1981 Act was in part introduced to implement the so-called "Birds" Directive (79/409/EEC) on the Conservation of Wild Birds, under which member states are required to designate Special Protection Areas (SPAs) for Great Britain, usually SSSIs.

Pursuant to section 28(1) of the 1981 Act, SSSIs are identifiable by the statutory nature conservation agency, English Nature, (or its counterparts Scottish National Heritage and the Countryside Council for Wales) on scientific criteria. The owners and occupiers of SSSIs are then required to notify to English Nature any "potentially damaging operations" which they intend to carry out. Following such notification English Nature then has a four month period in which it may attempt to enter into a management agreement with the owner/occupier, under which compensation may be payable to reflect any loss suffered for not carrying out the operations which may be potentially damaging to the environment. The Environmental Protection Act 1990 extended the applicability of such agreements to the owners of land adjacent to an SSSI.

For "sites of national importance", section 29 of the 1981 Act enables the Secretary of State to make a nature conservation order which gives English Nature rights of entry over the land in question and powers to require restoration, even against non-occupiers.

English Nature may also designate a site as a national nature reserve (see above), under which it will be managed by English Nature supported by a number of bye-laws either by agreement with the owner or much more rarely under powers of compulsory purchase.

Planning law also provides for the conservation of nature: development plans must take environmental issues into account and more specifically, Planning Policy Guidance Note No. 9 (PPG 9) entitled "Nature Conservation" sets out clear policies. Furthermore, English Nature is a statutory consultee for development on or adjacent to SSSIs.

Often, however, local politics and economic considerations override the ecological interest of an SSSI (see for example R -v- Swale BC, ex parte RSPB (1991)). The tension between environmental and economic/social interests goes to the heart of the principle of sustainable development.

Habitats Directive

The so-called "Habitats" Directive (92/43/EC) on the Conservation of Natural Habitats and of Wild Fauna and Flora (implemented by The Conservation (Natural Habitats Etc.) Regulations 1994 (SI 1994 No. 2716), now amended, see Update item 12.11) develops nature conservation further. The Habitats Directive requires the European Commission to set up a coherent ecological network throughout Europe called Natura 2000, based on sites referred to it by the member states. It is intended that a full list should be compiled by June 2004. Such sites will be SPAs and Special Areas of Conservation (SACs), the latter being designated under the Habitats Directive.

The Natura 2000 framework will confer considerable protection to SPAs and SACs. Under article 6(2) member states are required to take appropriate steps to avoid the deterioration of such sites and significant disturbance of the species for which the areas have been designated. Under article 6(3) any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect on a designated site shall be subject to appropriate assessment of its implications. Article 6(4) however provides an exception for a "plan or project" affecting a site which must be carried out for "imperative reasons of overriding public interest, including those of a social or economic nature". For so-called priority sites, however, this exception is more limited, and only three types of exception will be allowed, namely:

• considerations relating to human health or public safety;
• considerations relating to "beneficial consequences of primary importance for the environment" (not defined); or
• other reasons of overriding public interest but only if they are acceptable to the Commission.

The 1994 Regulations which implement the Habitats Directive (see above) reflect this basic level of protection under articles 6(2) and (3), but there is continued reliance on the SSSI protection procedures and planning law described above for nature conservation and habitat protection in the UK. Having said that, last month saw what was probably the first prosecution under the 1994 Regulations. A Suffolk man who cleaned out a pond on a common was fined £600 at Lowestoft for damaging a habitat of the protected Great Crested Newt. Furthermore, the RSPB and the WWF are seeking judicial review of the failure by the Government to designate an area of the Cairngorm Mountains in Scotland as a SAC to protect it against the construction of a ski lift. The results of that judicial review are not yet available.

It would appear therefore that EC legislation and in particular the Habitats Directive has helped strengthen nature conservation legislation in Great Britain, at least as far as priority sites are concerned.

Pamela Castle