Northern Ireland Assembly Flax Flower Logo

AREAS OF SPECIAL SCIENTIFIC INTEREST

EXPLANATORY AND FINANCIAL MEMORANDUM

INTRODUCTION
  1. This Explanatory and Financial Memorandum relates to the Areas of Special Scientific Interest Bill. It has been prepared by the Department of the Environment (the Department) in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.
  2. The Memorandum needs to be read in conjunction with the Bill.

    3. BACKGROUND AND POLICY OBJECTIVES
  3. The purpose of the Bill is to introduce measures to allow for the better protection and management of Areas of Special Scientific Interest (ASSIs). These sites represent the finest examples of semi-natural habitat and species sites to be found in Northern Ireland due to their fauna, flora or geological/physiographical features. The proposed Bill will also satisfy the Programme for Government (PfG) commitment to have in place, by July 2003, a policy and legislative framework for the protection and management of these sites.
  4. The measures proposed in the Bill will replace the existing provisions pertaining to ASSIs in Part VI of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985. The Bill is also comparable to the legislative provisions introduced to protect ASSI equivalent sites in England and Wales (namely Sites of Special Scientific Interest) as part of the Countryside and Rights of Way Act 2000. It will also help address the requirements of European designated sites by satisfying the requirements of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna (the Habitats Directive) as transposed by the Conservation (Natural Habitats etc.) Regulations (Northern Ireland) 1995.
  5. The Minister has approved the policy proposals in relation to the Bill.

    6. KEY FEATURES
  6. The Bill seeks to establish provisions that will help to better safeguard, protect and manage ASSIs. This aim will be achieved by the following:
  1. The Department regards as essential the need to continue the partnership approach with owners and occupiers and will continue to foster good relations and co-operation at all times.

    2. CONSULTATION
  2. A full public consultation was carried out in two stages. In March 2001 the Department published "Partners in Protection", a review document setting out 20 key issues pertaining to ASSIs and sought comment to inform the Department's development of proposals.
  3. As a result of this consultation exercise a total of 35 comments were received with strong support for the introduction of measures from the majority of respondents. On the basis of comments received, the Department devised a number of proposals which were subject to a further round of public consultation. The second consultation produced 31 responses with the vast majority in favour of the proposals detailed.
  4. Officials made presentations to the Assembly's Environment Committee to assist its deliberations on the proposals throughout both consultation periods.

    5. OPTIONS CONSIDERED
  5. Three options were considered. The first was a "do nothing" option but this was discounted. The existing legislation is deficient in a number of key areas such as measures to avoid damage or deterioration to ASSIs from activities undertaken by landowners or the problems arising from third parties. Fines are also considered inadequate and an ineffective deterrent to protecting the integrity of sites. There could be an adverse impact on biodiversity and the Department's ability to meet its European and International commitments.
  6. The second option was a fundamental overhaul of existing legislation to include other nature conservation issues such as wildlife protection and marine conservation. This would be an extremely long and time consuming process leaving sites vulnerable until such time as the new legislation would come into effect. In addition the Department must ensure compliance as expeditiously as possible with its legislative requirements on European designated sites by improving our domestic ASSI legislation and subsequently amending the Regulations that transpose the EC Habitats Directive.
  7. The third option was to introduce measures solely to ensuring more effective protection and management ASSIs. The measures which the Department finalised following the extensive consultation process will secure that aim, in addition to maximising the value of habitats and related species, assisting the delivery of biodiversity targets for Northern Ireland and helping fulfil EC and international obligations.
  8. The Department proposes to proceed with the third option.

    9. OVERVIEW
  9. The Bill has 26 clauses and 2 Schedules.

COMMENTARY ON CLAUSES

Clause 1: Declaration of ASSI

This clause enables the Department to declare an Area of Special Scientific Interest. It also requires the Department to notify an ASSI declaration and allow for representations or objections to it. Subject to this the Department shall confirm (with or without modifications) the declaration or rescind it.

Subsection (1) allows the Department of the Environment, after consultation with the Council for Nature Conservation and the Countryside, to declare such areas by reason of their flora, fauna or geological, physiographical or other features.

Subsection (2) sets out what should be specified in a declaration:

Subsection (3) requires the Department to bring the declaration of an ASSI to the attention of each District Council in whose district the land lies wholly or partly and to every owner and occupier in the area.

Subsection (4) provides that the notification given by the Department shall set out the terms of the declaration and allow a minimum of three months for representations or objections to be made.

Subsection (5) requires the Department to publish in at least two newspapers circulating in the district, notice of the making of the declaration and also places where the declaration under subsection (1) may be inspected.

Subsection (6) requires that the Department within three months of the period referred to in subsection (4) shall confirm (with or without modifications) or rescind the declaration. The Department will notify its decision to each District Council in whose district the land lies wholly or partly and to every owner and occupier in the area.

Subsection (7) states that the power to confirm a declaration with amendments does not allow for the addition of operations or the extension of the area.

Subsection (8) states that a declaration under subsection (1) is effective from the time it is made by the Department.

Subsection (9) states that the confirmed declaration, with modifications, under subsection (6)(b)(i) shall have effect in its modified form from the date when it is so confirmed by the Department.

Subsection (10) states that if a declaration is rescinded under subsection (6)(b)(ii), it ceases to have effect as from the date it is rescinded by the Department.

Subsection (11) defines "ASSI" in the context of this legislation.

Clause 2: Variation of declaration

This clause enables the Department to vary the matters specified in the declaration, other than the area of land concerned, at any time after confirmation. In doing so the Department must inform the local council in whose district the ASSI is located and relevant owners or occupiers and allow them the opportunity to make representations or objections prior to confirming the variation (with or without modifications) or rescind it.

Subsection (1) enables the Department to vary the matters specified in the confirmed declaration.

Subsection (2) states that this cannot be used to vary the area of land comprising the ASSI.

Subsection (3) requires the Department to give notice to the District Council in whose district the land lies wholly or partly and to every owner and occupier affected.

Subsection (4) requires the Department to set out the terms of the variation in the notice sent out to the parties detailed in subsection (3) and allows them to make representations or objections within a period specified as not less than three months from the date of the giving of the notice.

Subsection (5) requires the Department to (a) consider any representations or objections; (b) within a further three months from the period specified in subsection (4)(i) confirm the variation (with or without modifications) or (ii) rescind it; and; (c) give notice to the persons mentioned in subsection (3).

Subsection (6) states that a variation under subsection (1) is effective from the date it is made by the Department.

Subsection (7) makes provision for instances when the Department confirms a variation under subsection (5)(b)(i) with modifications, the variation is effective in its modified form from the date it is so confirmed by the Department.

Subsection (8) states that if a variation is rescinded under subsection (5)(b)(ii), the variation ceases to have effect from the date it is rescinded by the Department.

Clause 3: Declaration of additional land

This clause enables the Department to increase the area of the ASSI. This will be subject to requirements similar to those outlined for declaration.

Subsection (1) allows the Department, after consultation with the Council for Nature Conservation and the Countryside, to increase the area of an ASSI and make a declaration to that effect if it is satisfied that the combined area of extra land and existing ASSI would be of "special interest" by reason of its fauna, flora, or geological or physiographical features.

Subsection (2) requires that the Department cannot make a declaration increasing the area of an ASSI until it has, as per clause 1(6), confirmed (with or without modifications) the declaration of the ASSI.

Subsection (3) states that a declaration under subsection (1) shall specify (a) the area of land the ASSI constitutes; (b) details on the original declaration under clause 1(1); (c) an explanation as to why the ASSI has been enlarged; and; (d) what, if any, of the matters specified in (c) are pertinent to the extra land.

Subsection (4) requires the Department to notify a declaration to (a) the District Council in whose district the extra land is situated as well as to (b) owners and occupiers of the extra land.

Subsection (5) provides that the notification given by the Department under subsection (2) shall set out the terms of the declaration and allow a minimum of three months for representations or objections to be made.

Subsection (6) requires the Department to publish in at least two newspapers circulating in the district, notice of the making of the declaration and also places where the declaration may be inspected.

Subsection (7) requires that the Department (a) within three months of the period specified in subsection (5) shall consider any objections or representations; (b) within three months of that time (i) confirm (with or without modifications) the declaration or (ii) rescind it; and; (c) notify those persons detailed in subsection (4).

Subsection (8) states that the power to confirm a notification with amendments does not allow for the addition of operations or the extension of the area.

Subsection (9) states that when a declaration under subsection (1) is served on an owner or occupier, the original declaration of the ASSI under clause 1(1) is effective as so amended.

Subsection (10) states that if a declaration under subsection (1) is confirmed with modifications under subsection 7(b)(i), the original declaration of the ASSI under clause 1(1) (as extended by the requirements of subsection (9)) is effective as so amended.

Subsection (11) states that if a declaration is rescinded under subsection (7)(b)(ii), it ceases to have effect from the date it is rescinded by the Department.

Clause 4: Denotification

This clause provides a power for the Department to denotify all or any part of an ASSI that is no longer of special interest. This will be subject to requirements similar to Declaration (clause 1) and Declaration of Additional Land (clause 3).

Subsection (1) allows the Department, after consultation with the Council for Nature Conservation and the Countryside, to denotify all or part of an ASSI where it is satisfied that the land is no longer of special scientific interest. The Department must notify any District Council in whose area the land is wholly or partially situated as well as owners and occupiers of that land.

Subsection (2) requires that the notification shall allow a minimum of three months for representations or objections to be made.

Subsection (3) requires the Department to publish in at least two newspapers circulating in the district, notice of the denotification and also places where a copy of the notification may be inspected.

Subsection (4) requires the Department, within 3 months of the period specified in subsection (2), to consider any objections or representations and the Department shall then withdraw or confirm (with or without modifications) the denotification.

Subsection (5) states that the land will continue to be protected until the denotification is confirmed as per subsection (4).

Clause 5: Duties of owners and occupiers of land included in ASSI

This clause provides that the owner or occupier of an ASSI shall not carry out any operations specified in the declaration under clause 1 as likely to damage the site unless notice is given to the Department of a proposal to carry out the operations and the Department gives its consent; or the works are carried out under the terms of an agreement with the Department; or under a management notice. The consent may be conditional and time limited. The Department may also, by notice given to the owner or occupier, withdraw or modify the consent in any way. The Department will be required to explain any refusal, modification or withdrawal of consent to the owner or occupier and refer to the right of appeal under clause 6.

Subsection (1) requires that an owner or occupier shall not carry out any operation listed in the declaration under clause 1(2) as likely to damage the site unless (a) notice is given to the Department of a proposal to carry out the operation and (b) the Department gives its consent or the works are carried out under the conditions of subsection (3).

Subsection (2) excludes public bodies, in the exercise of their functions, from the requirement of subsection (1).

Subsection (3) specifies the conditions under subsection (1)(b). They are: -

Subsection (4) states that a consent under subsection 3(a) may be conditional and for a limited period.

Subsection (5) requires the Department to give notice of a refusal of consent to the person who gave notice under subsection (1).

Subsection (6) states that the Department may, by notice to every owner or occupier of any land included in the ASSI or part of the ASSI to which a consent relates, either withdraw or modify the consent.

Subsection (7) requires the Department to give reasons for its decision in respect of consent granted subject to conditions or time limitations or a notice under subsections (5) and (6). It must also include notice of the matters set out in subsection (8).

Subsection (8) specifies these matters as the right of appeal under clause 6, the effect of subsection (9) and in the case of subsection (6) the effect of clause 10(1).

Subsection (9) states that a withdrawal or modification of a consent is not to take effect until either the expiry of the period for appealing against it or if an appeal is brought, its withdrawal or determination.

Clause 6: Appeals in connection with consents

This clause enables a person to appeal where he has been refused consent to carry out operations on an ASSI (this includes a deemed refusal where, after three months, the Department has neither granted nor refused consent). He can also appeal where he has been granted consent subject to conditions or where he is aggrieved by the modification or withdrawal of a consent. The appeal to the Planning Appeals Commission must be made within two months of the decision, or failure by the Department to decide.

Subsection (1) lists those persons who can appeal to the Planning Appeals Commission against a decision by the Department in respect of a consent.

Subsection (2) states that if the Department has not given a decision on a consent application under clause 5(1)(a) within 3 months of the date the application was made, a person may treat it as a refusal and appeal accordingly.

Subsection (3) states that an appeal must be made within two months in cases under clause 5(5) or (6) or in a case falling under subsection (2) within two months after the expiry of the three-month period referred to.

Subsection (4) states that upon determination of an appeal, the commission can either affirm a consent decision; overrule a decision refusing consent and direct the Department to give consent; quash all or any of those terms where the decision was as to the terms of a consent (be it an original or modified consent); or quash a decision where it pertains to the withdrawal or modification of a consent.

Clause 7: Management agreements

This clause deals with management agreements between the Department and owners or occupiers of land within ASSIs.

Subsection (1) provides that the Department may enter into a management agreement with the owner or occupier of any land included in the ASSI for securing that his land is managed as (or as part of) an ASSI.

Subsection (2) states that such an agreement may impose restrictions relating to the exercise of rights by persons bound by the agreement.

Subsection (3) details what a management agreement may contain including general management provisions such as operations carried out on the land and defrayment of costs for any of the management provisions in the agreement.

Subsection (4) provides that where a person having an estate in any land, by a management agreement grants, or agrees to grant, any rights with regard to the land, the grant or agreement of those rights shall be binding on persons deriving title from the grantor.

Subsection (5) provides that management agreements may be made irrevocably or subject to specified revocation or variation provisions.

Subsection (6) enables the Department to remove any inconsistency between the requirements of any provision of a development plan or order under the Planning (Northern Ireland) Order 1991 and an ASSI management agreement.

Clause 8: Management notices

This clause enables the Department to serve a management notice on the owner or occupier where it considers that the features, which make the site an ASSI, are being inadequately conserved or restored.

Subsection (1) states that where the Department has formulated a management agreement that is not being implemented effectively by the owner or occupier and as a result the features which make the land of special interest are not being adequately conserved or restored, the Department may serve a management notice.

Subsection (2) states that where the Department has been unable to conclude a management agreement on reasonable terms with the owner or occupier and the features which make the land of special interest are not being adequately conserved or restored, the Department may serve a management notice.

Subsection (3) states that for the purposes of this Act, a notice served under subsections (1) and (2) is referred to as a "management notice".

Subsection (4) defines a management notice as a notice requiring specified works and/or other associated requirements to be carried out by the owner or occupier on the land within a specified time period.

Subsection (5) states that the requirements specified in a management notice by the Department must be reasonable to ensure that the land is managed in accordance with the statement mentioned in clause 1(2).

Subsection (6) states that a management notice must include the effect of subsections (8) and (9) and clause 9.

Subsection (7) requires the Department to serve a copy of the management notice on every other owner or occupier of the land.

Subsection (8) states that if the requirements of the notice are not complied with within the specified time, the Department may enter the land and carry out the works or other requirements. It may also recoup any costs incurred from the owner or occupier.

Subsection (9) states that if an appeal is brought against a management notice and, upon the determination of the appeal, the management notice is affirmed (with or without modifications), subsection (8) will apply if necessary.

Clause 9: Appeals against management notices

This clause enables any person who has been served with a management notice, to appeal against it to the Planning Appeals Commission. Notices may be quashed, varied or confirmed.

Subsection (1) states that a person who is served with a management notice, may within the period for appealing, appeal against the requirements of the management notice to the Planning Appeals Commission. The management notice does not take effect until the expiry of the period for appealing or, if an appeal is brought, its determination by the Commission or withdrawal.

Subsection (2) states that the period for appealing is two months beginning with the date the management notice is served.

Subsection (3) states that the Commission, upon determination of the appeal may confirm (with or without modification) or quash the management notice.

Clause 10: Payments by Department

This clause provides that if the Department withdraws or modifies an existing consent to carry out operations, it must offer a payment to an owner or occupier if he suffers loss as a result. The amount of the payment is to be determined by the Department in accordance with guidance given and published by the Department. Any disagreement between the Department and an owner or occupier as to the amount of payment will be referred to and determined by the Lands Tribunal. The clause also provides that the Department may make payments in respect of management agreements.

Subsection (1) requires the Department to make a payment to any owner or occupier who suffers loss due to the Department modifying or withdrawing a consent under clause 5(6).

Subsection (2) states that the Department may, if it thinks fit, make payment(s) to any owner or occupier under a management agreement.

Subsection (3) states that the amount of payment in either subsection (1) or (2) is to be determined in accordance with guidance given and published by the Department.

Subsection (4) states that any dispute between an owner or occupier and the Department over payments under subsection (1) will be referred to and determined by the Lands Tribunal.

Clause 11: Public bodies: general duty

This clause imposes a duty on "public bodies" in exercising their functions to take reasonable steps, consistent with the proper exercise of those functions, to further the conservation and enhancement of the special features of an ASSI. "Public bodies" referred to in the Bill are defined to include government departments in both Northern Ireland and the United Kingdom, district councils, statutory undertakers and other public bodies.

Subsection (1) states that a public body shall have the duty set out in subsection (2) in exercising their functions so far as the exercise of those functions is likely to effect the fauna, flora or geological, physiographical or other features by which an ASSI is of special scientific interest.

Subsection (2) states that the duty is to take reasonable steps, consistent with the proper exercise of the body's functions, to further the conservation and enhancement of the features by which the ASSI is of special scientific interest.

Subsection (3) defines "public bodies" as a Northern Ireland department, a department of the Government of the United Kingdom, a district council, a statutory undertaker (within the meaning of the Planning (Northern Ireland) Order 1991) or any other body established or constituted under a statutory provision.

Clause 12: Public Bodies: duties in relation to operations

This clause requires the public body to notify the Department when they propose to carry out operations in the exercise of their functions, which are likely to damage the features of any special interest of an ASSI. This applies equally to works outside an ASSI, which may affect that ASSI. The Department may refuse its assent, or assent to the operation (with or without conditions). Where assent is refused, or the conditions are not acceptable, the public body may proceed with the works provided that they give the Department not less than 28 days notice of the start of the operation. The notice must state how the body has taken into account any advice which the Department has given. It is a requirement that any such operations are carried out so as to cause as little damage as is reasonably practicable, and that the body restore the site to its former condition again, so far as is reasonably practicable if damage does occur.

Subsection (1) requires a public body, prior to commencement, to give notice to the Department of any operations that are likely to damage the special interest features of an ASSI.

Subsection (2) states that this applies even if the operations take place outside the ASSI.

Subsection (3) states that the Department itself may, in response to the notice under subsection (1), issue a notice saying that: -

(a) it does not assent to the operations; or

(b) assents to them (with or without conditions).

If the Department does not issue a response under (b) above within 28 days beginning with the date of the notice under subsection (1), it shall be treated as if the Department declined to assent.

Subsection (4) states that if the Department does not assent, or if the public body proposes to carry out the operations otherwise than in accordance with the Department's assent, the body shall: -

(a) not carry out the operations unless the condition specified in subsection (5) is satisfied; and

(b) shall comply with the requirements of subsection (6) when carrying them out.

Subsection (5) specifies the condition i.e. that the public body has, following the expiry of the 28 day period, notified the Department of: -

(a) the date on which it proposes to start the operations, and

(b) how it has taken into account (if at all) the written advice of the Department following the initial notice under subsection (1) .

Subsection (6) stipulates the requirements. These are: -

(a) that the public body carries out the operations in such a way as to cause as little damage as reasonably practicable to the ASSI (taking into account any advice received from the Department);

(b) that the public body restores the site to its former condition if any such damage occurs, so far as is reasonably practical.

Subsection (7) states that the requirements of this section do not apply to the Department of Environment.

Clause 13: Public Bodies: duties in relation to authorising operations

This clause applies where the public body has power to grant permissions, including authorisations or consents, for other parties to carry out operations (whether on or outside an ASSI) which are likely to damage the special features of an ASSI. Before granting any such permission they must give the Department not less than 28 days notice. Before making any decision the body must take into account the advice of the Department, which may include advice on conditions to be attached to the permission (clause 13 (5)(b)). If the body intends to grant permission against the advice of the Department, they must notify the Department and the permission must allow 21 days before the operations may commence. This would, for example, give the Department an opportunity to contact the applicant to discuss ways of mitigating any effects, or to offer a management agreement.

Subsection (1) states that this section applies where the permission of a public body is required before operations may be carried out.

Subsection (2) states that before permitting the carrying out of operations likely to damage the special interest features of an ASSI, a public body will give notice of the proposed operations to the Department.

Subsection (3) states that subsection (2) applies even to operations taking place outside the ASSI.

Subsection (4) requires a public body to wait until the expiry of the 28 day period before deciding whether to give permission for the operations, unless the Department has notified the public body in advance of this that it need not wait.

Subsection (5) requires that the public body take into account any advice received from the Department: -

(a) in deciding whether or not to permit the operations, and

(b) if it decides to do so, in deciding what (if any) conditions are to be attached to the permission.

Subsection (6) states that if the Department advises against permitting the operations or advises certain conditions be attached to the permission and the public body does not follow that advice, it shall: -

(a) give notice of the permission, and its terms, to the Department. This notice should include a statement of how (if at all) the public body has taken account of the Department's advice, and

(b) shall not grant permission allowing the operations to start for at least 21 days beginning from the date of the notice under (a) above.

Subsection (7) defines "permission" to operations in this section to include authorisation, consent, and any other type of permission.

Subsection (8) states that this section does not apply where the public body whose permission is needed is the Department of Environment.

Clause 14: Powers to acquire land

This clause gives the Department a compulsory purchase power in relation to land which is an ASSI. This power may only be exercised where the Department cannot secure an agreement for the management of an ASSI or where the terms of such an agreement have been breached in such a way that the land is not being managed satisfactorily. Where the Department has acquired the land it may also acquire land for the purpose of a means of access to that ASSI. The Department may then either manage the land or dispose of it to ensure its future management. The Department may also dispose of the land acquired if they no longer require the land for the purpose it was acquired.

Subsection (1) states that the Department may in accordance with the circumstances set out in subsection (2) make a vesting order in relation to all or any part of an ASSI.

Subsection (2) states that the circumstances are that the Department is satisfied that it is unable to conclude a management agreement with the owner or occupier or the Department has entered into a management agreement but is satisfied that it has been breached in such a way that the land is not being managed satisfactorily.

Subsection (3) states that the provisions of sections 97(2) and (3) in addition to schedule 6 of the Local Government Act (Northern Ireland) 1972 shall apply, subject to the modifications set out in Schedule 2 of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985, in respect of vesting orders under this section.

Subsection (4) allows the Department by agreement to acquire the estate of any owner or occupier of land in an ASSI.

Subsection (5) states that where the Department acquires land under subsections (1) and (4), it may also acquire land for the purpose of providing access to the ASSI.

Subsection (6) states that the Department may, if it considers it more expedient or appropriate that the land be managed or conserved in the public interest by any other person, convey any land acquired under this section to that person.

Subsection (7) states that the Department may dispose of any land acquired under this section where it is satisfied that the land no longer satisfies the purposes it was originally acquired for.

Subsection (8) states that a conveyance under subsection (6) or disposal under subsection (7) shall be in accordance with arrangements approved by the Department of Finance and Personnel and on such terms or conditions that the Department sees fit to impose. The Department may also impose restrictions on the use of the land conveyed or disposed and grant or reserve rights over the land.

Subsection (9) states that nothing in section 5 of the Stormont Regulation and Government Property Act (Northern Ireland) 1933 will effect any disposal by the Department of land acquired under this section.

Clause 15: Powers to carry out works etc.

This clause states that the Department may carry out works and do such other things on land acquired under clause 14 if it considers such works etc necessary for the proper management of the land in accordance with the purposes for which the land was acquired.

Clause 16: Powers of entry

This clause provides the Department with the power to enter onto land for a range of specified purposes. These include assessing whether land should be declared as an ASSI; formulating a scheme for the management of an ASSI in order to conserve its special features; assessing the condition of the features on the site, and ascertaining whether an offence under clause 18 has been committed. It allows for entry to the land by vehicle or boat, and the person entering the land may take equipment or materials with him. The person entering the land must leave it as effectively secured as he found it and the Department will be liable to pay compensation for any damage caused by the exercise of the power of entry.

Subsection (1) states that any person authorised in writing by the Department may enter any land for the purposes below subject to producing evidence, if asked for, that he is so authorised by the Department: -

(a) to determine whether a declaration should be made in respect of the land under clause 1(1);

(b) to assess the condition of the features of the land by which it has been so declared under clause 1(1);

(c) to ascertain whether a consent under clause 5(3)(a) has been complied with;

(d) to determine whether or not to enter into a management agreement in respect of the land;

(e) to formulate a management agreement for the land or determine whether an existing agreement should be modified;

(f) to ascertain if the terms of a management agreement have been complied with;

(g) to prepare a management notice for the land;

(h) to ascertain whether the terms of a management notice have been complied with;

(i) to carry out works or other things on land under clause 8(8);

(j) to determine whether to make a payment under clause 10;

(k) to determine any question in relation to acquisition of the land by agreement or compulsorily;

(l) to ascertain whether any offence under clause 18 is being or has been committed on, or in relation to, the land;

(m) to carry out operations on land under clause 19(5).

Subsection (2) states that the powers conferred by subsection (1) to enter land for any of the purposes detailed, includes power to enter any other surrounding land for those same purposes.

Subsection (3) states that more than one person may be authorised to enter land for any of the purposes under subsection (1).

Subsection (4) states that, in respect of land which is occupied, the Department: -

(a) is required to give at least 24 hours notice to enter land; or

(b) can demand admission as of right if its purpose is to ascertain if an offence under clause 18 is being, or has been, committed on or in relation to the land.

Subsection (5) states that a person acting in accordance with the power of entry conferred under subsection (1) may use a boat or vehicle to enter the land; be accompanied by a constable; take with him equipment or materials needed for the purpose for which he is entering the land; or take samples of the land and of anything on it.

Subsection (6) requires a person authorised under subsection (1) to enter the land, which is unoccupied or from which the occupier is temporarily absent, to leave the land upon departure as secure against unauthorised entry as he found it.

Subsection (7) states that it is the duty of the Department to compensate any individual who has sustained damage as a result of the exercise of the power conferred by subsection (1) by a person authorised under that subsection. Compensation will also be paid in cases of failure by that person (so authorised to enter the land under subsection (1)) to comply with the requirements of subsection (6). However, neither will apply where the damage is attributable to the fault of the person who sustained it.

Subsection (8) states that any dispute in respect of a person's entitlement to compensation under subsection (7) shall be referred to and determined by the Lands Tribunal.

Clause 17: Powers to make byelaws for ASSI

This clause gives a power to the Department to make byelaws on any ASSI. Before making any byelaws the Department shall consult the Council for Nature Conservation and the Countryside.

Subsection (1) states that the Department may make byelaws for the protection of an ASSI.

Subsection (2) provides that byelaws may prohibit or restrict the use of ASSI land by traffic of any description or the use of mechanically-propelled vehicles on watercourses or their shores if they lie within the land. They may regulate or prohibit the lighting of fires or the taking of soil, turf, sand or minerals of any description. They may also make provisions that ensure that the conduct of persons does not interfere with the enjoyment of the land by others.

Subsection (3) requires the Department to consult the Council for Nature Conservation and the Countryside before making any byelaws in respect of ASSIs.

Subsection (4) states that byelaws made under this section must not interfere with the rights of any owner or occupier of land to which the byelaws relate. Neither should they interfere with the exercise of any public right of way or the exercise of any statutory function by a public body in relation to the land.

Subsection (5) states that the Department may authorise persons to enforce the byelaws made under this section.

Subsection (6) states that any person authorised under subsection (5) may, after warning, remove or exclude a person from any land included in an ASSI who commits an offence against the byelaws made in respect of the ASSI or is reasonably suspected of doing so.

Clause 18: Offences

This clause provides for offences.

Subsection (1) makes it an offence for an owner or occupier to cause or permit damaging operations contrary to clause 5(1) without reasonable excuse. The penalty is a fine not exceeding £20,000 in the magistrate's court or, on indictment, an unlimited fine.

Subsection (2) makes it an offence for a public body to carry out operations in contravention of clause 12(1), without reasonable excuse. The penalty is the same as subsection (1) (but note caveat in clause 21(3)).

Subsection (3) makes it an offence for a public body which, having complied with the requirements of clause 12(1), fails to comply with clause 12(4)(b), without reasonable excuse. The penalty is the same as subsections (1) and (2) (but note caveat in clause 21(3)).

Subsection (4) states that with regard to subsections (1), (2) and (3) a reasonable excuse is: -

(a) subject to subsection (5), if the operation was authorised by a planning permission or permitted by a public body acting in accordance with clause 13;

(b) the operation is an emergency operation which was notified to the Department as soon as practicable after the operation has started.

Subsection (5) states that if an operation requires both a planning permission and the permission of a public body, subsection 4(a) does not provide a reasonable excuse unless both have been obtained.

Subsection (6) makes it an offence (carrying the same fine as per subsections (1), (2) and (3)) for any person, intentionally or recklessly, to damage, destroy or disturb features which make a site of special scientific interest. Provided he knew that what was damaged, destroyed or disturbed lay within the ASSI.

Subsection (7) provides for a similar defence of reasonable excuse as per subsection (4) for an offence under subsection (6).

Subsection (8) provides for a similar defence of reasonable excuse as per subsection (5) for an offence under subsection (6).

Subsection (9) states that failure to comply with a management notice is an offence and attracts the statutory maximum fine (currently £5,000) or, on indictment, an unlimited fine.

Subsection (10) makes it an offence for any person who intentionally obstructs a person acting in the execution of power of entry. The penalty is a fine not exceeding level 3 on the standard scale.

Subsection (11) makes it an offence to contravene any byelaw made under clause 17 or to obstruct a person authorised to enforce such byelaws. The penalty is the same as subsection (10) above.

Subsection (12) states that in determining any fine to be imposed on a person convicted of an offence under this section, the court shall have regard to any financial benefit which may have, or appears likely to have, accrued to the person following the offence.

Subsection (13) states that proceedings for an offence under this section may only be taken by the Department, unless the Director of Public Prosecutions for Northern Ireland consents otherwise.

Clause 19: Restoration following offences under section 18

This clause enables a court, before which a person has been found guilty of an offence under clause 18 (which relates to the conservation of areas of special scientific interest), to require an offender to make good as far as is practicable the damage he has caused by his activities.

Subsection (1) relates to persons convicted under the offences stipulated in clause 18(1), (2), (3) and (6) and provides that the court, in addition to any other way of dealing with the offender, may make an order requiring him to carry out, within such period as may be specified in the order, such operations for the purpose of restoring the land to its former condition.

Subsection (2) explains that the time period specified under subsection (1) will not run until the time for giving notice of appeal has expired or such an appeal has been determined.

Subsection (3) gives the Court the power to rescind or vary the order, on application by the person against whom it was made, in light of a change in circumstances.

Subsection (4) makes it an offence to fail to comply with a restoration order and provides penalties on summary conviction of a fine not exceeding level 5 on the standard scale with a further fine of up to £100 for each day during which the offence continues after conviction.

Subsection (5) provides that if operations to restore the land have not been carried out as ordered within a specified period, the Department has the power to enter the land, carry out the operations and recover reasonable expenses from the person against whom the order was made.

Clause 20: Matters affecting agriculture, forestry and inland fisheries

This clause places a duty on the Department, and the Council for Nature Conservation and the Countryside and any other body with functions under the Act to have due regard to the needs of agriculture, forestry and fisheries.

Subsection (1) states that it shall be the duty of the Department, the Council for Nature Conservation and the Countryside and any other body with functions under this Act to take into account the needs of agriculture, forestry and fisheries.

Subsection (2) requires the Department, in the exercise of its functions under the Act, to have due regard to representations made by the Department of Agriculture and Rural Development on behalf of persons engaged in agriculture, forestry or fisheries, or in the case of inland fisheries, the Department of Culture, Arts and Leisure.

Subsection (3) states that nothing in this Act renders unlawful any action under the Diseases of Animals (Northern Ireland) Order 1981.

Clause 21: Application to the Crown

This clause provides that the Crown will be bound to the full extent authorised by the constitutional laws of Northern Ireland.

Subsection (1) states that subject to the provisions of this section, this Act binds the Crown to the full extent authorised or permitted by the constitutional laws of Northern Ireland.

Subsection (2) provides that clauses 5 to 10 of the Bill will not apply to the Crown as owner or occupier of any land.

Subsection (3) provides that the Crown will not be criminally liable but the High Court may on the application of the Department, declare unlawful any act or omission of the Crown which contravenes any provision of the Bill.

Subsection (4) states that, if it appears in the interests of national security appropriate for him to do so, the Secretary of State may certify that any power of entry under clause 16 of this Bill may not be exercised on land held or used by, or on behalf of, the Crown.

Subsection (5) states that any reference in this section to the Crown includes Her Majesty's Government in the United Kingdom.

Clause 22: Statutory charges

This clause lists the following items which are to be registered in the Statutory Charges Register any declaration under clause 1(1), any management agreement under clause 7 or any related waiver and any management notice under clause 8 of the Bill.

Clause 23: Transitional provisions, amendments and repeals

This clause deals with transitional arrangements, amendments and repeals.

Subsection (1) provides that Schedule 1, which contains the transitional provisions, shall have effect.

Subsection (2) amends Article 16(1)(a) of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 to include reference to clause 14 of this Bill.

Subsection (3) amends Article 18(1)(b)(iii) of the Planning (Northern Ireland) Order 1991 to refer to clause 1 of this Bill.

Subsection (4) provides that the statutory provisions in column 1 of Schedule 2 are repealed to the extent specified in column 2 of the Schedule.

Clause 24: Commencement

This clause deals with the commencement of the Act.

Subsection (1) provides that the provisions of the Act will come into force on such day or days as the Department may by order appoint.

Subsection (2) states that such an order may contain transitional provisions if the Department considers them necessary.

Clause 25: Interpretation

This clause deals with interpretation.

Subsection (1) defines the meaning of specific words used in the Bill.

Subsection (2) states that where a declaration has been modified under clause 1(6), varied under clause 2(1), varied with modifications under clause 2(5), extended under clause 3(1) or extended with modifications under clause 3(7), any reference to it in any statutory provision will be to the declaration as altered.

Clause 26: Short title

This clause gives the title of the Act. The proposed legislation will be known as the Areas of Special Scientific Interest Act (Northern Ireland) 2002.

Schedule 1: Transitional provisions

This Schedule provides the transitional arrangements for existing areas of special scientific interest, existing consents, operations, management agreements, compensation, public bodies duties and offences and restoration orders under the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985.

Paragraph 1 states that references to "the 1985 Order" in this Schedule are references to the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985. Nothing in this Schedule prejudices the application of section 28 or 29 of the Interpretation Act (Northern Ireland) 1954.

Paragraph 2 states that any declaration made under Article 24 of the 1985 Order will be as if it was a declaration made under clause 1 once the Act comes into effect. The Department shall also provide, within five years of clause 1 coming into force, a statement of their views on an existing declaration as per clause 1(2). The Department shall consider any objections or representations made and will then confirm their statement or their revised statement.

Paragraph 3 provides that a notice given under Article 25(1) of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 shall have effect as given under clause 5(1)(a) of the Bill. Similarly a consent given under Article 25 (1) or (2) of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 shall have effect as if it were a consent given under clause 5(3)(a) including the accompanying provision of clause 5 (7) of the Bill.

Paragraph 4 provides that clause 5 of the Bill will not apply in relation to the carrying out of any operation which commences lawfully before that section is in force.

Paragraph 5 provides that right of appeal does not apply to a consent refused under Article 25 (1) or (2) of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985. Additionally, a right of appeal cannot be taken under clause 6(1)(b) of the Bill where the consent takes effect under paragraph 3 (1)(b) of the Schedule.

Paragraph 6 provides that an agreement in force under Article 24(8)(a) of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 will have effect as a management agreement under clause 7 of the Bill. A management notice under clause 8 (1) of the Bill will not apply to an agreement entered into under Article 24(8)(a) of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985.

Paragraph 7 provides that compensation provisions will still apply to a notification received as mentioned in Article 26(1)(a) or to an extension mentioned in Article 26(2) of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 which occurs before the repeal date of that Article.

Paragraph 8 provides that the duty on public bodies as set out in clause 12 of the Bill will not apply to operations commenced before that section comes into force.

Paragraph 9 provides that the provisions on offences and restoration as set out in clause 18 of the Bill will not apply to an offence committed before that section comes into force.

Schedule 2: Repeals

This schedule makes some consequential repeals of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 and the Nature Conservation and Amenity Lands (Amendment) (Northern Ireland) Order 1989. The important amendment is the repeal of Part VI of Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 which dealt with Areas of Special Scientific Interest.

FINANCIAL EFFECTS OF THE BILL

  1. The Department considers that it has sufficient resources in place to implement most aspects of the current legislation governing ASSIs. These resources are also considered sufficient to enable the Department to commence a programme of introducing the provisions detailed in the Bill. The Department recognises that it would have some discretion towards the deployment of the provisions detailed in the Bill and that there are no new forms of regulation being proposed.
  2. It can be anticipated that the Department would be urged to make use of the new measures detailed in the Bill as time progresses, particularly where it needs to act decisively in order to protect sites of European and international importance from the threat of damage.
  3. The Bill contains provisions for appeals in respect of the refusal of consent to carry out notifiable operations in addition to management notices dealing with neglect or inappropriate management. Costs in respect of these cannot be quantified as the Department cannot reliably estimate the number of appeals that may arise.
  4. For the above reasons the Department will seek to bid for modest additional resources so that it would be in a position to implement the provisions of the Bill at the earliest opportunity.

    5. EFFECTS ON EQUAL OPPORTUNITY

  5. No evidence of adverse or differential impact in relation to any of the groups mentioned in section 75 of the Northern Ireland Act 1998 has been identified.

    6. HUMAN RIGHTS ISSUES

  6. The Bill is considered compatible with Human Rights obligations. In particular the Department considers that the appeals mechanisms associated with the provisions pertaining to refusal of consent and management notices as satisfactory to ensure compliance with the European Convention on Human Rights.

    7. EQUALITY IMPACT ASSESSMENT
  7. A full screening exercise has been undertaken and there is no evidence that this Bill will have any impact on equality issues. The declaration of ASSIs (and their subsequent management and protection) is based solely on scientific criteria with regard to the nature conservation quality of the land. The Department does not consider a full Equality Impact Assessment to be necessary.

    8. SUMMARY OF THE REGULATORY APPRAISAL
  8. The Bill has been subject to a full Regulatory Impact Assessment. In summary the Bill may, in a small number of cases, impact on owners or occupiers in terms of ceasing activities that may damage the important features of an ASSI. It is expected that this will be offset (as per the provisions of clause 10 of the Bill) by payments to landowners who enter into management agreements or payments in instances where an owner or occupier suffers loss arising from the withdrawal or modification of a consent.
  9. The appeals procedure may entail costs to owners or occupiers should they seek legal representation.
  10. However for the vast majority of owners and occupiers, the proposals will have little impact. The Bill should help clarify the responsibilities of the Department on the one hand and owners and occupiers on the other. The Bill balances greater regulation of owners and occupiers with assistance for better management and represents the most equitable outcome for those who own or manage ASSI land and for the taxpayer. The Bill will help deliver the Department's aims of improving the protection of ASSIs, meet its obligations under the Habitats Directive, provide improvements in terms of value for money, strengthened partnerships and better enforcement and monitoring. In this way the Bill can help attain the key PfG target to ensure improved protection of ASSIs and in a manner conducive to continuing good relations between government and ASSI landowners and occupiers.

    11. SECRETARY OF STATE'S CONSENT
  11. The Secretary of State has consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill.

    12. LEGISLATIVE COMPETENCE
  12. At Introduction the Minister of the Environment had made the following statement under section 9 of the Northern Ireland Act 1998:

    "In my view the Areas of Special Scientific Interest Bill would be within the legislative competence of the Northern Ireland Assembly."