New Measures to Tackle Invasive Species and Plants

Scotland
The final provisions of the Wildlife and Natural Environment (Scotland) Act 2011 (the 2011 Act) came into force on 2 July.  Among the final provisions to come into force are the remaining provisions under Part 2 of the 2011 Act which introduce new elements of the Wildlife and Countryside Act 1981 (the 1981 Act) relating to non-native species in Scotland.

In addition to the legislative provisions coming into force, 2 July also saw the statutory Code of Practice on Non-Native Species, a draft of which was consulted upon last year, come into effect.

The Scottish Government sees invasive animals, such as American mink and grey squirrels, and invasive plants, such as Japanese knotweed and Giant Hogweed, as a threat to the environment, to the economy, to health and to the way we live.  It is hoped that the new legislation and Code of Practice will help to tackle this threat.

Species Control Agreements and Orders

A key element of the new legislation will be the introduction of species control agreements (SCAs) and species control orders (SCOs).  The Scottish Ministers, SNH, SEPA and the Forestry Commissioners (the Relevant Bodies) will now be able to enter into agreements with owners or occupiers of premises to control or eradicate invasive animals or plants outwith their native range on the premises.  The Relevant Bodies will also be able to make an SCO where they are satisfied of the presence on premises of an invasive animal or plant outwith its native range and:
 
1.
they have offered to enter into an SCA, 42 days have elapsed since the date of the offer and the owner or occupier has refused or otherwise failed to enter into the SCA;
2. they have entered into an SCA with a person and that person has failed to comply with the terms of the agreement; or
3.
they have failed to ascertain the name or address of any owner or occupier of the premises after making reasonable efforts and affixing a notice to a conspicuous object on the premises stating that they wish to enter into an SCA.

They will also be able to make an emergency species control order which will expire 49 days after it is made where they consider that the making of an SCO is urgently necessary.
Section 14F of the 1981 Act specifies what an SCO must contain.  For example, an SCO must describe the premises to which it relates, be accompanied by a map delineating the premises, specify the invasive animal or plant and specify any operations which are to be carried out and any operations which must not be carried out.

Any owner or occupier of premises to which an SCO relates may appeal to the sheriff within 28 days of being given notice of the SCO if aggrieved by the decision to make the SCO or by the terms of the SCO.

A number of offences related to SCOs have also been created.  It is an offence for a person to:

1. fail to carry out, in the manner required by an SCO, an operation which they are required by the SCO to carry out;
2. intentionally obstruct any person from carrying out an operation required to be carried out under an SCO; or
3. without reasonable excuse, carry out, or cause or permit to be carried out, any excluded operation.

Where a Relevant Body considers that any operation required to be carried out by an SCO they have made has not been carried out within the required timescale, or in the the required manner, they will be able to carry out the operation or such further work as is necessary and recover any expenses reasonably incurred from the person required by the SCO to carry out the operation.

Powers of entry have also been given so that a person authorised by a Relevant Body can enter premises for various purposes, including to determine whether or not to offer to enter into an SCA, to ascertain whether any of the offences mentioned above is being, or has been, committed or to carry out an operation or other work in the circumstances set out above.  Notice may need to be given, depending on the purpose for which entry is sought, with the length of any notice period also determined by the particular purpose.

There are a number of other provisions related to powers of entry including the ability to seek a warrant for entry in some circumstances and a requirement for a Relevant Body to compensate any person who has sustained damage by reason of the exercise of powers of entry or a failure to leave the premises as effectively secured against unauthorised entry as they found the premises.

Other Provisions

Although the new legislation and Code of Practice came into force on 2 July, much of the detail will be found in subordinate legislation, some of which also came into force on 2 July.  Other legislative changes include the introduction of new offences such as releasing, or allowing to escape from captivity, any animal to a place outwith its native range and planting, or otherwise causing to grow, any plant in the wild at a place outwith its native range.

It is also interesting to note that the Code of Practice states that where a Relevant Body has undertaken operations or further work to enforce an SCO the Relevant Body will seek to recover costs, where it is fair and proportionate to do so, in accordance with a "polluter pays" principle.  In most cases the person from whom the Relevant Body will seek to recover costs will be the person who has actively released the invasive animal or plant.  However, the Code of Practice also suggests that they may seek to recover costs from an owner or occupier who, although not responsible for actively releasing it, has caused the non-native species to spread.

Conclusion

The most significant provisions of the final commencement order for the 2011 Act are those which provide for the introduction of SCAs and SCOs.

SCAs and SCOs can now offer a clear mechanism for, and allocate responsibility for, eradicating invasive animals and plants.  Japanese knotweed has been a particular problem in recent years.  A number of developments have been delayed, or have ground to a halt, on the discovery of Japanese knotweed on premises, with parties negotiating over how the Japanese knotweed should be eradicated, not to mention the potentially significant cost of eradicating.

It will be interesting to see whether SCAs and SCOs will be used to provide a clear method and allocation of responsibility for eradicating invasive species like Japanese knotweed and achieve the Scottish Government objective of tackling a threat to the Scottish economy.