Ms Lewsley (Deputy Chairperson)
Mr Armstrong
Mrs Carson
Mr Coyle
Mr Ford
Mr Molloy
Mrs Nelis
Mr Poots

Mr D Leonard )
Mr B Murphy ) Department of the Environment
Mr G Seymour )

The Deputy Chairperson: I welcome Mr Dermot Leonard, Mr Brian Murphy and Mr Graham Seymour from the Department of the Environment.

Mr Murphy: The Committee will have received a detailed blow-by-blow account of each clause. It might be helpful if I clump clauses together as they fall within the Bill for ease of reference.

Clauses 1 to 4 essentially deal with the entire declaration process, whether that is a declaration of a new area of special scientific interest (ASSI) or proposals to vary, add, subtract or revoke a designation. Clauses 5 to 10, and also clauses 14 to 19, deal with protection and management arrangements for ASSIs. Clauses 11 to 13 and clause 21 deal with obligations and requirements on public bodies and the responsibilities of the Crown.

The remaining clauses, 20 and 22 to 26, deal with general matters, transitional arrangements between the existing legislation and the Bill’s proposals, and appeals. That is a general overview of the Bill’s structure. Shall we start with clauses 1 to 4 and cover any questions or points of information as they arise?

The Deputy Chairperson: Yes.

Mr Murphy: Clause 1 deals with the Department’s powers to declare an ASSI. A new feature of the Bill puts a statutory obligation on the Department to notify publicly when an area has been declared. With the existing legislation, the clause allows for representations or objections. Those two additions place a requirement on the Department to provide a statement outlining how the site will be managed. The Department must also publish notice in newspapers. That is in response to concerns expressed during the consultation exercise.

Clause 2 is a variation of a declaration that will enable the Department to vary matters specified in it, other than areas of land concerned any time after the confirmation. In doing so, the Department must inform local councils, as well as the relevant owners or occupiers, to allow representations or objections before confirming that variation or rescinding it.

Clause 3 covers a declaration of additional land. It covers instances when additional land, which might attract ASSI designation, is drawn to the Department’s attention. It means that the Department can avoid a redesignation process, although the procedures are similar to those that are referred to in clause 1. The Department must go through the same process, but it is not as onerous or time- consuming. The Department is required to consult with the Council for Nature Conservation and the Countryside.

The Deputy Chairperson: How would the Department channel the representations? Three organisations have asked about consultation. How would the Department conduct that?

Mr Seymour: Can you explain the question?

The Deputy Chairperson: Representations have been made. For example, Lisburn City Council has indicated that it should be consulted on any enlargement proposal on each declaration. How will the Department conduct that consultation in future?

Mr Seymour: The arrangements will stay much as they are with regard to consultation, and will build on the present method. There is a period of time in which people can make scientific representations and objections before the Department can confirm an area as an ASSI. That principle ensures that, from the outset, the site is protected while the process takes place. The process is repeated in certain cases; for example, if the Department wants to declare additional land, or make any other variation that the opening clauses of the Bill refer to. The process is then repeated. Therefore the Department takes action, which is followed by a period of objection and representation. The Department then confirms the ASSI.

Mr Murphy: Clause 4 covers instances in which the Department wants to denotify part of an ASSI. There could be a variety of reasons for that. The clause enables the Department to do that. As Mr Seymour explained, the procedure of informing people of the Department’s intentions and taking objections is much the same. The difference is that at present the Department must denotify the entire site and redesignate it, whereas the clause enables the Department to say that if a field is no longer up to scratch, it can be taken out of the ASSI without having to revoke it and start the whole process again.

Mr Ford: I want to raise the issue of denotifying a larger area, which is referred to in clause 4, subsection 4. Clause 2, subsection 2, states that, in a confirmed declaration, the Department cannot vary an area of land in order to increase the amount of land that is included within it. Why is it logical, therefore, to make it possible to denotify a larger area than that which was originally denoted in the denotification proposal?

Mr Seymour: The Department’s lawyers have interpreted it in the way that the legislation has been drafted.

Mr Ford: Did the lawyers draft the Department’s wishes, or have they produced an interpretation that differs from those wishes?

Mr Seymour: They have drafted the fairest and most practical arrangement. If, during the course of consultation, it transpires that a slightly larger area should be denotified, the Department can do that without starting the process all over again. That seems a logical and practical way to proceed, rather than starting all over again because the Department may have made a minor error.

Mr Ford: If you are proposing to notify an ASSI in the first instance, and on closer examination it appears that a slightly larger area should be included, might it not be possible to confirm a larger area? That seems to be equally logical. It should be variable in both instances or in neither.

Mr Seymour: The difference is that, if you notify a slightly larger area, the owner of the land would not have been able to make a representation to the Department, because he or she would not have been notified. I hope that that is logical.

Mr Ford: If the Department proposes to vary the denotification by increasing the area of concern, what opportunity is there for non-governmental organisations, such as conservation bodies, which may be interested in the site, to comment? If you receive representation, will you consult further with all interested parties on increasing the area covered by denotification?

Mr Seymour: In situations such as that, we would have to use our judgement. If it were extremely minor, for example part of a field, we would not restart the process. However, if we were under pressure to denotify a substantially larger area than we had anticipated, we would restart the process to enable a wider consultation.

Mr Ford: I am not sure, therefore, that I agree that secondary consultation on landowners should not be possible in the issue of a notification, which appears to be parallel to the process that you have just outlined.

Mr Seymour: Clauses 1 to 4 are intended to give us more flexibility, which I think they do. There are, perhaps, some nuances that we need to explore with the full working of the Bill. However, in totality, they give us better flexibility than provided for by the current arrangements, which offer us little opportunity to change anything without restarting the process.

Mr Murphy: Clause 5 begins to address the protection and management of ASSIs. It provides that the owner or occupier shall not carry out any operations specified in the declarations unless notice is given to the Department and the Department gives its consent. It goes on to say that the Department may also by notice withdraw or modify the consent. Of course, the Department is required to explain its reasoning, and it has introduced a right of appeal that was not there before.

Mr Poots: I have some concerns about the implementation of clause 5. When attempting to make a living, the farming community has had some bad experiences with the Environment and Heritage Service. Farmers have encountered some obdurate individuals with closed minds about the proposals. Ultimately, ASSIs are attractive because of the efforts of the rural communities, which have the interests of the areas at heart. However, as well as having the interests of the areas at heart, they must maintain a living and be able to justify their actions in those areas. Many people in the Department do not see the situation in that light. Therefore I am concerned about the clause and I do not have faith that the people who will implement the management plans will work in such a way that will allow individuals to make a living on the land. Should there, perhaps, be a presumption that someone in an ASSI should be allowed to develop his or her land unless the Department has specific reasons for them not to do so? I do not mean building bungalows; I mean the maintenance of their rural activity.

Mr Seymour: That opens the door to a situation we found ourselves in under the old legislation where we would be subject to applications for consent for operations that would clearly cause significant and serious damage to the protected site. We did not have the power to refuse those applications. All we could do was attempt to seek agreement through a management agreement and take it from there. We hoped to reach an agreement and offer some sort of compensation payments to the landowner. At any time during that process, we would have had the threat of damage to perhaps one of our best and most protected sites, which also qualify for designation under European legislation. That continuous threat of damage would influence the outcome of negotiations.

As with other forms of environmental legislation, such as listed buildings and monuments legislation, planning permission and so on, the Bill gives us the ability to state that an application is unacceptable and to refuse it. We would still pursue a management agreement, but it gives us the opportunity to refuse an operation that would clearly be very damaging.

I would obviously defend the decisions made by my colleagues in dealing with these applications. Even if a landowner feels aggrieved by our decision, the Bill offers the opportunity to go to appeal. The decision of that appeal will be final, and we will not be able to overturn it. If we lose on appeal because we have acted irrationally or unreasonably, the decision will stand.

Mr Poots: This is where we will beg to differ. You used the words "very damaging", but I suspect that there are case officers who refuse cases that may be "marginally damaging". A balance must be struck. There may be marginal damage caused to the ASSI, but it may ensure that the individual who owns that property is able to continue maintaining a living on the property whether through the establishment of a mushroom tunnel, an additional sheep house or whatever it happens to be. Great consideration must be given to someone’s ability to maintain the agricultural way of life, which is essential to the countryside.

Planning conditions set out strictly what you can and cannot do. Limited development is permitted for the agricultural community. The Bill will add to that. As I indicated before, if people from your Department go out with a closed mind, it will create tremendous difficulties. Where agricultural activity is being carried out, there should be a presumption to permit unless significant damage will be caused to the environment. In that case, your Department would be right to act.

Mr Murphy: I understand the difficulty, and I am sure that Graham Seymour and his colleagues also understand that. Our difficulty is that the legislation requires us to do these things. The Bill’s emphasis is on conservation. If you take it through to the European dimension, the presumption is also towards conservation. We recognise that that presents difficulties in relation to the individual who owns the land. The bias in the legislation is towards conservation.

Mr Poots: Will there be guidance notes to accompany the legislation?

Mr Seymour: Yes, there will be.

Mr Poots: Perhaps my difficulty could be dealt with in the guidance notes as opposed to dealing with it in legislation. It is a genuine concern in the rural community.

Mr Molloy: The question of who owns the land is clearer now that the EU legislates for it. The EU does not seem to be as interested in conservation and planning controls in other countries as it is here. We tend to implement and enforce the legislation more rigidly than other places.

Farmers have generally protected sites of particular interest. However, some farmers find it hard to understand certain issues. A listed building or a monument is visible, but the protection of land and gravel is not as clear. Little effort has been put into explaining the urgency of protecting some sites, which have been dug around and left like pinnacles, and which create difficult conditions for farmers to work around. Therefore there must be more consultation.

The right of appeal is useful, but will it deal with extending existing ASSIs? Is there a right of appeal for existing sites whose character has changed?

Mr Seymour: The right of appeal in the Bill is confined to two issues. There is no right of appeal at the point of declaration. First, when the Department refuses to allow a landowner to carry out an operation, he can appeal against that decision. Secondly, there is a right of appeal against management notices served by the Department, but that would be used sparingly.

That is appropriate, because only when the Department receives an application from a landowner to carry out an operation can it see what impact the designation will have on that person. At any stage before that, the impact is hypothetical. The appeal mechanism applies in relation to a consent application for a particular activity.

The Deputy Chairperson: With regard to Mr Poots’s question, when will the guidance notes be available? Will the Committee receive a copy?

Mr Seymour: Yes. There is no difficulty with that. The Department must produce guidance when the legislation is passed. The Bill changes the relationship between the Department and landowners, so we will want to disseminate the information as quickly as possible. The Department will not write guidance until the Bill comes into force, in case changes are made to the legislation as it passes through the House. However, the Department will endeavour to write it quickly and send it to the Committee.

Mr Ford: With regard to clause 5, the Department’s notes mention consent for potentially damaging operations outside the ASSI. Specific reference is made to the Department’s preferring to seek a management agreement in such cases, although it is different in the case of public authorities. What is the provision for a management agreement? Should clause 7 not spell out that a management agreement applies beyond the boundaries of the ASSI that may be affected, so that it is clearly seen as an overall management practice for the ASSI and not as a stand-alone agreement?

Mr Seymour: The Department did not feel that it was necessary to mention that in the Bill. It already has the power to draft a management agreement with a landowner within an ASSI, which includes land that sits outside the ASSI. That is entirely voluntary. If the landowner is happy to bring land that falls outside the designated area into an agreement — for which the Department will pay — it can be done. That provision is contained in the old legislation, the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985, which is not being changed. Therefore the draftsmen felt that there was no need to spell it out in the Bill.

Mr Ford: It would have made a more logical statement on the management of ASSIs if that had been included in clause 7, which refers only to owners and occupiers of land within ASSIs. It may be that a different owner or occupier across the march ditch is having the impact, and the management agreement should, therefore, be included in clause 7 if we are seeking a coherent management plan for ASSIs.

Mr Seymour: We could refer that back to our legal people to see whether there is a case for doing that. The power exists because this is what we are doing all the time. However, I am not sure whether including that in the Bill would make it clearer.

Mr Murphy: It is something that we will examine. The power exists to do it, and it gives us a much wider power, I suspect, than if it were written into this part of the Bill. There may be occasions when a person would want to enter into an agreement with someone who is not adjacent to an ASSI. It is a much more general power. We already have the power to do that, and it gives us the flexibility that we need, and, therefore we, thought that we did not need to specify it.

Clause 6 deals with the right of appeal referred to in clause 5.

Clause 7 reiterates the existing legislation to enable us to enter into the management agreements that Mr Seymour has referred to.

Clause 8 has powers to deal with neglect or inappropriate management of ASSIs, and is important, not just in terms of what we do but in how we stave off possible infraction proceedings from Europe. It goes to the heart of the protection aspects, and it allows us to take steps to ensure the protection of ASSIs.

The whole tenor of the Bill, and our approach to it, is always to seek agreement.

Mr Poots: In clause 8, I am concerned about the ability of individuals to ensure that the management agreements are carried out. Will they have adequate financial support to carry out such activities? I am referring to older people who have been living on farms for many years and who physically may not be able to carry out the work, and who could not get other people to do the work for them. Will the Department be heavy-handed and carry out activities to retain the site and then send a large bill to someone who may not be in a position to pay it? I would be concerned that a sledgehammer might be used to crack a nut in a situation that should be handled reasonably and sensitively.

There may be other reasons for damage, such as overgrazing and so forth, that would be simpler to deal with. However, I would be concerned that older people would end up suffering, perhaps having to sell their property.

Mr Seymour: That would be done only as a last resort. In all instances the Department will try to resolve any difficulties through management agreements. In those cases in which a landowner may be aged or unable to do some of the work required, we can draft the agreement in a way that allows the Department to carry out the work if necessary, or to find other ways of doing it, perhaps by bringing in a voluntary organisation. There is flexibility in drafting agreements so that landowners can be helped to carry out work that is beneficial to the site.

We would only serve a notice in extreme cases in which, for example, a landowner allowed a ditch to be blocked, or conversely, has put drains into a bog, affecting the whole site, or in which a landowner was absent or impossible to contact and where the Department thought that it had to act. As Mr Murphy has explained, this legislation is particularly important where it refers to sites that have been declared as European sites. We could not allow a situation for which we did not have the legislation to deal with those cases. However, they will be few and far between.

Mr Murphy: In discussions about this matter among ourselves and with the Ulster Farmers’ Union, we had difficulty in envisaging a situation in which we would force someone to pay who could not pay. It is in our interest to have the site protected. It is much more likely that, if necessary, the Department will pick up the bill or do the work itself, rather than impose a penalty on landowners.

The Deputy Chairperson: Can that work the other way? In the situation that Mr Poots outlined, in which elderly people cannot maintain the land, can they approach the Department for help so that that land does not deteriorate to the point where it would cost much more?

Mr Seymour: We would be delighted if that were the case, particularly under our new management of sensitive sites (MOSS) scheme. We can draft an agreement that helps them to help us.

The Deputy Chairperson: Can most of that be reflected in the guidance notes?

Mr Seymour: Yes. It is not something that can be easily reflected in the Bill, but it will be put in the guidance notes.

Mr Molloy: The current wording is draconian and repressive towards those with whom it intends to deal. It talks about charging the farmer. If the Department, or some other body, could do the work, that must be written into the Bill. The implementation of that could be open to interpretation by different officers. Some will deal with it by agreement, and others will use a sledgehammer. The wording of the legislation as it stands leaves it open to the harshest interpretation. If there is an opportunity to get the Department to make agreements to do the work, that must be reflected in the Bill, so that both options are available.

Mr Seymour: The Bill reflects the Department’s options and puts the emphasis on seeking agreement. Even though we are not likely to use it, we think that it is important that the Bill gives the Department the power to recover costs. There might be circumstances in which a landowner is perfectly capable of paying for work to be done. The power is discretionary; as Mr Murphy said, we cannot envisage going down that road very often, but from the Department’s perspective on the use of public money, it is important to have that redress.

Mr Murphy: That is covered in the Bill.

Mr Leonard: Please correct me if I have taken Mr Molloy up wrong. When an elderly landowner approaches the Department to seek an agreement, clause (7)(3)(b) provides for an agreement to be drawn up in such a way that allows the Department to meet jointly any costs incurred on any works that would be carried out.

Mrs Nelis: I have concerns. It is unnecessary to include this clause: others will adequately protect the management agreement. It shifts responsibility. The Department decides which areas are of special scientific interest and agrees compensation with the landowners. Care and maintenance are the Department’s responsibility. This clause shifts the emphasis, putting the onus on the landowner to maintain and conserve that land. That responsibility should rest with the Department, and there is no reason for the inclusion of this clause.

Mr Seymour: It will be used only sparingly in circumstances in which agreement cannot be reached and in which activity — whatever that is — seriously threatens to damage the site’s special features. That power is necessary to deal with such circumstances, albeit rarely.

Mr Murphy: The other aspect is sensitive and we do not want to labour it. The European Union took infraction proceedings against the United Kingdom because that power did not exist in legislation. The UK conceded the point and made provision in the Countryside and Rights of Way Act 2000. We are committed to avoiding similar infraction. In any case, it must be done.

The Deputy Chairperson: Perhaps Mr Murphy will consider some of the issues raised today and respond to them next week. Thank you very much.

26 September 2002  / Menu / 3 October 2002 (ii)