Protected Species (UK)

Species are protected in Britain by the Wildlife and Countryside Act 1981 –

Schedule 5 sets out the lists of animals that are subject to the Section 9 criminalising of intentional killing, injuring or taking any wild animal. Scotland has a slight variant – intentional or reckless killing, injuring or taking any wild animal.

Schedule 8 sets out the lists of plants that are subject to the Section 13 criminalising of intentionally picking, uprooting or destroying any wild plant, and (not being an authorised person), intentional uprooting of any wild plant not included in Schedule 8.

Scotland has a slight variant – intentional or reckless picking, uprooting or destroying any wild plant or any seed or spore attached to any such wild plant, and (not being an authorised person), intentional or reckless uprooting of any wild plant not included in Schedule 8.

The intervention of EU law during the period of the UK’s membership of the EU has resulted in a separate list of protected species for animals and another one for plants – set out in 2017 Regulations, replacing earlier 2010 Regulations. The animals and plants in these lists are termed European Protected Species. They may be also represented in the 1981 Act lists.

Schedule 2 (of the 2017 Regulations) identifies those animals listed in Annex IV(a) to the pre-31st Dec 2020 European Habitats Directive which have a natural range which includes any area in Great Britain. Being listed in Schedule 2 does not necessarily mean the animal is rare in Britain per se, it means it is rare in Europe and yet can be found in Britain.

Regulation 43 of the 2017 Regulations criminalises the deliberate capture, injury or killing of any wild animal of a European protected species, the deliberate disturbance of wild animals of any such species, the deliberate taking or destroying the eggs of such an animal, and the damaging or destroying of a breeding site or resting place of such an animal.

This is a different offence to the 1981 Act offence, notably in respect of disturbance. Note: there are also 1981 Act offences relating to capture and selling not listed in this post.

Schedule 5 (of the 2017 Regulations) identifies those plants listed in Annex IV(b) to the pre-31st Dec 2020 Habitats Directive which have a natural range which includes any area in Great Britain. Again being listed in Schedule 5 does not necessarily mean the plant is rare in Britain, it means it is rare in Europe and yet can be found in Britain.

Regulation 47 of the 2017 Regulations states –

47.—(1) It is an offence deliberately to pick, collect, cut, uproot or destroy a wild plant of a European protected species.

(2) It is an offence for any person—

(a) to be in possession of, or to control,

(b) to transport,

(c) to sell or exchange, or

(d) to offer for sale or exchange,

anything to which this paragraph applies.

(3) Paragraph (2) applies to—

(a) any live or dead plant or part of a plant—

(i) which has been taken in the wild, and

(ii) which is of a species or subspecies listed in Annex II(b) (other than any bryophyte) or Annex IV(b) to the Habitats Directive; and

(b) anything derived from such a plant or any part of such a plant.

Again these are different offences to the two offences set out in the 1981 Act, notably in relation to cutting and collecting.

The above 2010 and then 2017 extension to disturbance and cutting and collecting is particularly relevant to land development. The current government stipulations on planning are here.

The legislation in Northern Ireland follows that of Britain, presently.

Please consider if your Cardinal system has sufficient Protected Species legislation in it.

Ban on Outdoor Use of Metaldehyde (UK)

Metaldehyde is used in slug pellets. It’s use is widespread.

Authorisation of Metaldehyde-containing products is regulated by EU law EC Regulation 1107/2009 (Plant Protection Products). This document is a retained law in Britain.

DEFRA announced in September 2020 it would not renew current authorisations for the outdoor use of mollusc-killer in the UK, where Metaldehyde is the active ingredient.

The details are here.

The effect of this decision is from 1st April 2022 Metaldehyde slug pellets should not be used outdoors.

Agriculture & Fisheries Bills (UK Brexit)

Exit day is Friday (11pm UK time)

The Brexit Agriculture Bill is already published and has a its Second Reading in February. The Brexit Fisheries Bill is being published later today.

The Agriculture Bill relates to England predominantly (and some provisions apply in Wales and Northern Ireland). It mainly deals with agriculture supports (phasing in a new changed basis for these supports that rewards nature and environmental protection), and government collection of data from economic actors in the food supply chain, in England. It enables England, Wales and Northern Ireland to set their own food marketing standards. Separate Agriculture Bills are expected in Scotland, Wales and Northern Ireland.

The Fisheries Bill is [update 30th Jan] publicised by the UK Government – it is not yet in the list of Bills. It sets up a new system for marine and coastal fisheries management, gives new powers to Devolved Governments, and includes a set of UK-wide objectives to manage fisheries stocks sustainably (and a new objective to move towards “climate-smart” fishing in UK waters). It gives new powers to the Marine Management Organisation to give advice and assistance on sustainable fisheries, marine planning, licensing and conservation overseas.

Further Blog posts will be issued on these matters in due course.

New SSSI for Tees Estuary (England)

Natural England has today confirmed its 2018 notification of the Teesmouth and Cleveland Coast Site of Special Scientific Interest (SSSI) – map area here. Citation is here.

The Tees Estuary is a unique environment where industrial facilities share the landscape with a wide range of coastal habitats which teem with wildlife.

There were previously seven SSSIs protecting parts of the Tees Estuary, which have now been merged and expanded into a single, landscape-scale SSSI, totaling nearly 3000 hectares (or 12 square miles).

The extensions have more than doubled the area of SSSI in the Tees Estuary. Additional areas of sand-dune, saltmarsh, mudflat, grassland, lagoons and estuarial waters are protected, along with the populations of breeding and wintering birds, the iconic population of harbour seals and sand-dune invertebrates.

The extended SSSI also continues to protect two areas of nationally-important geology, notably the mysterious prehistoric ‘submerged forest’, a part of which was exposed on the beach at Redcar after the ‘Beast from the East’ in 2018.

Natural England provides advice on day-to-day operations on the estuary ‘up front’ to set out how current activities can take place in a way that continues to allow wildlife to flourish. The advice is set out in the Memorandum of Understanding of the Tees Estuary Partnership, which has a vision to enhance both the economic and environmental assets of the area.

Per the Natural England press release – The approach embodies the ambitions set out in Defra’s 25 Year Environment Plan, which seeks to put people at the heart of nature by working closely with others and developing shared objectives at a landscape-scale.

The consultation on the SSSI took place alongside a consultation on the extension of the existing Special Protection Area (SPA) and Ramsar site to include additional marine, coastal and freshwater habitats and new bird species for protection. Following the consultation, Natural England will submit its recommendations on these extensions to DEFRA for consideration.

Natural England also designates the Teesmouth National Nature Reserve, and the long sandy beaches, and harbour seal haul-outs are integral and well-loved parts of the local landscapes.

[we welcome Tony Juniper to his role at Natural England, and hope for many more such announcements]

IPBES Report on Biodiversity Loss (International)

A new global report by the UN Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) published yesterday, finds that 1 million species are at risk of extinction — more than ever before in human history.

The Global Assessment Report on Biodiversity and Ecosystem Services, prepared by 145 leading experts from 50 countries, examines the causes of biodiversity and ecosystem change, the implications for people, as well as policy options and likely future pathways over the next three decades. It provides an integrated overview of where the world stands in relation to key international goals, including the Sustainable Development Goals (SDGs) and the Paris Agreement on climate change. In addition to including more than 15,000 scientific and government sources, the report also cites indigenous and local knowledge.

Beginning with the UN Secretary General’s Summit in September and running through the Convention on Biological Diversity (CBD) in 2020, governments are now asked to present commitments.

The media release is here.

The Convention timeline to 2020 is here.

A major UK contribution is the UK Government Commission of Prof Dasgupta, University of Cambridge, to lead a UK government review of the economics of biodiversity. I Blog posted before about this announcement, made recently by the Chancellor.

Information about this Commission is here.

New National Planning Policy Framework (England)

The long anticipated revision to the National Planning Policy Framework applicable in England has today (24th July) been published, here.

This replaces the 2012 Framework. The planning practice guidance to support the framework is also published online (here).

The Press Release is here.

The viability guidance is also updated – here.

25-yr Environment Plan (UK)

The UK issued a few moments ago, its long awaited 25-yr Environment Plan. The Plan is here.

I will update this post on the Blog here with the Plan key commitments, targets and schedules. Please note, the updates will not be sent as emails to your inbox (the original post is emailed). So make a note, to check back on the Blog post itself.

UPDATE

Pledges :

(1) eliminate avoidable plastic waste by 2042,

(2) remove exceptions in England plastic bag regulations [the latest amendment to the EU Packaging and Packing Waste Directive stipulates measures on plastic bags by end 2018, plus the European Commission’s Plastics Strategy is announced next week – I will write a separate Blog post about it],

(2)(a) consultation in a charge for single-use plastic containers,

(3) protect ancient woodland and plant more trees, a new Tree Champion to be appointed after the National Planning Policy Framework is updated,

(4) retain strong targets for wildlife, water and air,

(5) “polluter pays” and “public money for public goods” as guiding principles for future farming policy (plus subsidy reform from 2024 (2022-2024 consultation) – this may be set out in the forthcoming Brexit Agriculture Bill),

(6) sustainable drainage to make cities safer from floods – new planning guidelines,

(7) healthcare that takes advantage of green prescriptions – preventative care that can make the most of “natural health service”,

(8) nature integrated in urban communities – net nature gain in new developments (possibly via the revamp of the National Planning Policy Framework,

(9) a new Watchdog to hold government to account – a new environment body to replace the activities of the EU’s Commission and Courts (this was an earlier DEFRA announcement – see recent Blog posts – the next step is consultation),

(10) nature targets (little detail),

(11) “leave the environment in a better state than they found it”, “the goals of our 25 year environment plan are simple: clean air, clean and plentiful water, plants and animals which are thriving, and a cleaner, greener country for us all. A better world for each of us to live in and a better future for the next generation.”,

(12) a miscellany of other pledges with little attached detail.

Note : the objectives in the plan itself add relatively little to the European and international commitments the UK is already signed up to.

But : the UK is meant to achieve good ecological status for all water bodies by the mid 2020s under the EU Water Framework Directive. The commitment in this 25-yr plan to achieve good water quality “as soon as practicable” is a lesser target.

Also : there is no mention of implementation of the forthcoming EU Circular Economy amendments to six existing Waste Directives.

Plus : there is no mention of the EU “precautionary principle’, particularly relevant to chemicals.

Invasive Alien Species (IAS) EU Regulation (update)

My post in 2013 on EU IAS is here.

16th April (today), the European Parliament is voting on the IAS Regulation. Progress is followed here.

In Scotland – The Wildlife and Natural Environment (Scotland) Act 2011 made a number of significant amendments to the provisions on invasive non-native species in the Wildlife and Countryside Act 1981 in Scotland.

– First, the 2011 Act amended section 14 of the Wildlife and Countryside Act 1981 as it applies in Scotland, so as to make it an offence to release an animal, or allow one to escape from captivity, to a place outside its native range or where the animal is of a type specified by the Scottish Ministers. It is also an offence to cause any animal outside the control of any person to be at a place outside its native range. There is a similar offence in relation to plants grown in the wild.

– The 2011 Act also introduced species control orders, a mechanism by which invasive species present on premises or land can be controlled with a view to preventing their spread into the wider environment.

The model adopted in Scotland comprises four basic stages:
(1) Investigation: the provisions allow the relevant body to enter land or premises for the purpose of investigating whether a species outside its native range is present on the relevant land or premises;
(2) Species control agreements (made between the relevant body and the owner or occupier of land or premises on which invasive non-native species are present) provide for operations to be carried out to control or eradicate invasive non-native species;
(3) Species control orders: if a species control agreement is not agreed or not carried out, the relevant body can make a species control order, specifying operations to control or eradicate invasive non-native species to be carried out on the premises or land in question;
(4) If the species control order is not complied with, the relevant body can itself carry out the operations – or arrange for them to be carried out.

In England and Wales – the Wildlife and Countryside Act 1981 makes it an offence to release, or allow to escape into the wild any animal which:
(1) is of a kind which is not ordinarily resident in and is not a regular visitor to Great Britain in a wild state; or
(2) is included in part 1 of schedule 9 to the Wildlife and Countryside Act 1981.

It is also an offence to plant or cause to grow in the wild any plant listed in part 2 of schedule 9 to the 1981 Act. But there is no wider prohibition of planting or causing to grow plants not ordinarily resident in Great Britain. It is a defence to prove that all reasonable steps were taken and due diligence exercised in attempting to avoid the commission of one of the above offences. Activities otherwise prohibited can be permitted under a licence. The sale of species covered by the above provisions can additionally be restricted by order.

There are also other laws which regulate import of non-native species.

The species control regime in Scotland allows for operations to control or eradicate an invasive animal, plant or fungus present on land or premises, excluding dwellings. The procedure is built principally around two elements: species control agreements and species control orders.

These sophisticated mechanisms are not available in England and Wales, and this matter is being looked into by the UK Law Commission. It’s recent report (issued 11th February 2014) is here.

Biological Offsetting (England) – Update

I posted in September about DEFRA consultation – my post is here.

Consultation is now closed. Current information is found here.

The results of DEFRA analysis of public feedback will be posted here.

Biodiversity offsets are conservation activities that are designed to give biodiversity benefits to compensate for losses – ensuring that when a development damages nature (and this damage cannot be avoided) new, bigger or better nature sites will be created. They are different from other types of ecological compensation as they need to show measurable outcomes that are sustained over time.

Statements made at the House of Commons Debates – 9th January 2014 – are as follows:

“Mr Barry Sheerman (Huddersfield) (Lab/Co-op):
The Minister will know that this year is the 150th anniversary of the death of one of our greatest poets of the countryside, John Clare. He wrote a great deal about diseased trees—there was a plague of oak disease in his lifetime—and he was certainly a great defender of the English countryside. What does the Minister think John Clare would have thought of giving up our ancient woodland and replacing it with new growth?

Dan Rogerson:
I thank the hon. Gentleman for bringing a cultural dimension to our proceedings so early this morning. I share his concern, and that of John Clare, for ancient woodland, and that is why the guidance is very clear. In any discussions about development, the guidance we offer to all local authorities is very clear that ancient woodland should be protected.

Kerry McCarthy (Bristol East) (Lab):
I want to press the Minister on the issue of protecting our ancient woodlands. Today’s written ministerial statement talks about planting lots of new trees, but does he accept that that is no replacement for the destruction of ancient trees? The quantity of new trees will not be a substitute for the diversity and quality of such woodland.

Dan Rogerson:
The hon. Lady is absolutely right to point out that, given the maturity of such ecosystems, ancient woodland has a whole range of things that new planting cannot hope to replicate. That is why the planning guidance is absolutely clear that the hierarchy should protect ancient woodland.

Angela Smith (Penistone and Stocksbridge) (Lab):
Will the Secretary of State clarify how the remarks he made on allowing ancient woodland to be lost to development meet the spirit of his Department’s forestry policy statement which states categorically:“Protection of our trees, woods and forests, especially our ancient woodland, is our top priority”?

Mr Paterson:
I am absolutely delighted to be able to reassure the hon. Lady and the hon. Members for Huddersfield (Mr Sheerman) and for Bristol East (Kerry McCarthy) that the idea that biodiversity offsetting could be used as a means of imposing unwanted houses on ancient woodland is an absolute travesty. It is absolutely clear: all along we have always said that should we bring in offsetting—I made this clear to the all-party group—all the current protections of the planning regime and all the mitigation hierarchy remain. Only at the very last moment could offsetting be considered, and we have always said that some assets will be too precious to offset and—[Interruption.] Exactly, and that might well be ancient woodland.

The hon. Lady should look at examples of offsetting in countries like Australia, where there has been an 80% shift of planning applications away from fragile environments. Used properly, therefore, biodiversity offsetting could be a tremendous tool to protect those ancient woodlands which she and I value. As someone who has planted an arboretum over recent years, the idea that I am going to trash ancient woodlands is an absolute outrage to me personally.”

Invasive Alien Species EU Regulation

Proposal for new European Regulation on Invasive Alien Species (IAS) is today announced.

Remember once enacted, the EU Regulation will directly apply within all Member States (enactment of national implementing law is not required, although there may well be national law enacted eg relating to offences).

Here is the European Commission Press Release.

Here is the European Commission’s webpage giving further detail, access to the proposed Regulation in the different languages, and the background documents.

Here is the proposed EU Regulation.

Q&A is set out in the European Commission’s Memo on the topic.