4 Conservation Politics: SSSIs and the Law
I have in front of me a thick volume published by the then Department of the Environment and titled Wildlife Crime: A guide to wildlife law enforcement in the UK (Taylor 1996). Its purpose is to try and sort out the legal labyrinth of wildlife law as it stood in 1996, mainly for the benefit of policemen and other law enforcers. More than half of it is devoted to species – birds and their eggs, badgers, deer, seals and salmon, as well as the trade in endangered species. Lists of protected birds in their various grades and schedules take up seven pages, non-avian protected animals and plants another four. On the face of it, Britain’s wildlife looks well protected. But although protection laws may look like nature conservation, much of them are about animal welfare issues. Kindness to animals is an issue for the RSPCA. Conservationists are more concerned with the survival of populations and species than with individuals. However, the legal benefit enjoyed by our wild animals is decidedly mixed. The law has evolved, rather like the landscape, in an ad hoc way, and the result is chock-full of anomalies. Pat Morris (1993) has pointed out that while it is technically illegal to shine a torch at a hedgehog, you can squash one flat with your car without worrying about prosecution. An antique dealer risks a heavy fine for selling an old coat trimmed with pine marten fur, but the law does not help living martens very much. The badger is an exceptionally well-protected animal, but the Ministry of Agriculture slaughters thousands of them. Contrariwise, in the interests of the environment more deer need to be culled, but no one insists on it and so deer continue to multiply. In practice, the government nature conservation agencies spend remarkably little time on species protection. Unlike the US Fish and Wildlife Service, who carry guns and have the power to arrest, Britain’s wildlife agencies have no special powers of enforcement. They devote far more time to managing species under the Biodiversity Action Plan (see Chapter 11), but until 2000 the Plan had no basis in British law. The really important species laws boil down to two: the Wild Birds Protection Act of 1954 and its subsequent amendments, which protect virtually all wild birds, and the Wildlife and Countryside Act of 1981, which protects a lot of other rare animals and plants, mostly from imaginary threats, like collecting, and, more importantly, protects all species of bat, as if they were honorary birds. It is easy enough to protect a species on paper – you simply declare it protected – but quite another thing to bring a successful prosecution. In practice, most prosecutions are to do with birds and bats. Egg collectors, errant gamekeepers and careless timber treatment companies are the principal targets. Animal smugglers are dealt with under international codes enforced under EU regulations.
Protecting a species is pointless unless its habitat is protected too. As the law stood until recently, you could convict someone picking rare orchids in a meadow, but do nothing to prevent a developer or farmer from destroying both the meadow and its orchids. Hence, nature conservation in practice is directed at saving the habitat. Most land in Britain is privately owned and dedicated to some sort of productive use that is usually not nature conservation. In 1949, Government was persuaded by the principle that some portion of the land should be set aside for nature in the interests of at least that part of the population which cares about such things. The principle was not new. The Norman kings set aside land for game for their own selfish purposes. And as Professor Smout reminds us, the eighteenth-century enlightenment took the view that while most of the land is destined for agricultural improvement, some of it should be set aside to delight rather than for productive use – ‘most for man, a little for nature’ (Smout 2000). The contribution of twentieth-century conservationists has been to work out where the best spots for nature lie. The next stage is to see to it that these valuable areas are looked after in a way that ensures they stay valuable.
The Nature Conservancy and its successors evolved methodologies for grading semi-natural land according to its value for wildlife. These were based on attributes such as size (generally the bigger the better), diversity and ‘naturalness’ – based that is, on the quality of the habitat rather than on rare species in isolation. The original idea had been to preserve all the very best examples of woods, heaths, chalk downs and so on as nature reserves. However, that was never going to be enough, so an alternative to direct ownership (or at least proxy management) was needed. From 1949, the Nature Conservancy was allowed to ‘schedule’ any area of land of special interest ‘by reason of its flora and fauna, or geological or physiographical features’. These were (and are) called SSSIs or Sites of Special Scientific Interest. This clumsy term has caused much head-scratching. Here ‘Scientific’ really means ‘nature conservation’ in an adjectival sense. Every now and then someone suggests changing the name, but nothing has ever come of it for fear of adding to the confusion. In any case, until 1981, SSSIs did not amount to very much. The job of the Conservancy was to identify SSSIs, say why they were important and notify them to the local planning authority. In the case of a development requiring planning permission, the local authority would then decide whether to allow the development or refuse it. Of course the local authorities had their own plans and guidelines that were broadly in favour of SSSIs – but ‘the national interest’ always came first, and this could be interpreted in all sorts of ways. Moreover, the most common threats to SSSIs – agricultural improvement or tree planting – did not normally require planning permission. Altogether the Conservancy had been given a very poor hand. It could offer only pennies in compensation, while the ‘improvers’, by way of the Ministry of Agriculture and the Forestry Commission, could offer pounds.
The shrinking of a wildlife site. The Wye and Crundale Downs was recommended by the Wildlife Special Committee as a 1,500-acre (607-hectare) ‘National Reserve’ in 1947 as ‘a first-class example of typical Kentish chalk communities with many characteristic and rare plants and insects’. By 1970 the site had been reduced by ploughing to 415 hectares. Today it measures about 257 hectares (based on W.M. Adams, Nature’s Place).
It is not surprising then, that, before 1981, many SSSIs went under the plough or turned into spruce plantations. For example, in 1963 a farmer received a ploughing grant for the destruction of Waddingham Common SSSI, one of the best natural grassland sites in Lincolnshire. The farmer offered to leave a token acre unploughed. Representatives of the Nature Conservancy and the local wildlife trust insisted on five acres as a bare minimum. The farmer laughed; the entire site was ploughed (Sheail 1998). In Wiltshire, 15 out of 27 chalk grassland SSSIs were ploughed out of existence between 1950 and 1965. In Kent, most of Crundale Downs, proposed in ‘Cmd. 7122’ as a ‘National Reserve’, went the same way (see above). The Nature Conservancy was urged to do more to obtain the co-operation of owners and occupiers through moral persuasion backed by ‘suitable annual payments’. Unfortunately the cash-strapped Conservancy was unable to pay anybody very much, and certainly could not compete with grants for agriculture and forestry.
If anything, the situation worsened after Britain’s entry to the European Community in 1973. In 1980, the NCC’s chief advisory officer, Norman Moore, estimated that 8 per cent of all SSSIs had suffered damage during the past twelve months, of which the main causes were agricultural improvements and the ‘cessation of traditional practices’ (due mainly to agricultural improvements). There had, in previous years, been attempts to strengthen SSSI protection, but they had all failed. In 1964, Marcus Kimball MP had presented a Private Member’s Bill that would have imposed a mandatory period for negotiations over the fate of an SSSI, during which agricultural grant-aid would be withheld. The agriculture departments quashed that idea on the grounds that no one knew how many SSSIs would be designated, and that it would cause ‘unnecessary disruption to farm businesses’. The Conservancy seemed to agree, stating that it preferred doing things by voluntary means. Four years later, the 1968 Countryside Act offered another opportunity to strengthen SSSIs, but again it was lost, largely through resistance by the agriculture lobby. The Act did enable the Nature Conservancy to enter formal management agreements with owners, but gave it no extra cash to do so. Moreover it effectively restricted the incentive on offer to a laughable one pound per acre. Until this limit was waived in 1973, not a single agreement was made (Shearil 1998).
It was clear to many that something needed to be done if Britain were to have a system of nature conservation worthy of the name. In 1977-78, the Amberley Wild Brooks case (see Chapter 9), decided that, on occasion, conservation and amenity aims should outweigh agricultural production. The Government’s own review body advised that legislation would be necessary to reconcile agricultural production and countryside conservation. By then there was growing public concern about the diminishing quality of the countryside, epitomised by the piecemeal loss of moorland on Exmoor, despite its National Park status.
The Wildlife and Countryside Act – origins and arguments
When the Conservatives under Margaret Thatcher came to power in May 1979, they inherited the bare bones of a Wildlife Bill. A new law was needed to implement an uncontentious Euro-directive for Special Protection Areas for certain wild birds, and also to ratify the Council of Europe’s Berne Convention on wildlife and natural habitats. Beyond that, the review committee had advised that something had to be done about strengthening SSSIs, but no one was sure what. Enter Michael Heseltine, the flamboyant new Secretary of State for the Environment, who combined a ‘managerial’ broadbrush approach to government business with a genuine interest in wildlife. In his memoirs, Heseltine mentioned that one of his first acts had been to summon the chief executive of the RSPB – the most important figure in nature conservation by virtue of his then 400,000 members – and ask him what he would like Heseltine to do. ‘If I may say so,’ added the Secretary of State, encouragingly, ‘you are unlikely ever to find a minister more sympathetic than me.’ It seems to have been Michael Heseltine’s influence that assured the eventual passage of the Wildlife and Countryside Bill, despite opposition within Cabinet (which at that time contained several country landowners). However, after laying down broad principles on involving landowners in safeguarding SSSIs, he characteristically left the details to his officials, and most of the Parliamentary business to his deputy, Tom King.
Hurriedly, Department officials drew up a consultation paper on ‘the conservation of habitats’, based on the recommendations of the review committee and setting out what the Government proposed to do about SSSIs. The answer, it seemed, was not much. Great faith was placed in the beneficence of landowners and in ‘the voluntary process’. In the anticipated rare cases when this was not enough, the NCC could in future apply to the minister for an order, not to save the site but to purchase breathing space in which to continue negotiating. However, not all SSSIs would qualify for the order; indeed it seemed that it would apply only to an unspecified number of sites ‘of national or international importance’. This was probably not what the chief executive of the RSPB had asked for – it was more likely that it represented what the barons of the CLA and NFU were prepared to accept. At this stage, the NCC had not been asked at all.
It might seem surprising, therefore, that the NCC’s new chairman, Sir Ralph Verney, expressed himself broadly satisfied with this Lenten fare. His main complaint was a technical quibble over who should draw up the list of ‘sites of national or international importance’, his Council or the minister. On this point, Heseltine told him that it was politically impossible to impose further restraints on private landowners unless matters were handled directly by government. The NCC meekly replied that it hoped the minister would at least consult his statutory wildlife advisory body about all this, since only the NCC had the appropriate knowledge and experience to advise him. It pointed out that the NCC had spent nearly ten years reviewing and categorising Britain’s wild places, and really knew a lot about it.
From the standpoint of progressive, early twenty-first-century green legislation, this must sound like the Dark Ages. However, back in 1979, nature conservation had not yet assumed the public importance it has today. The Conservative Government was reluctant to tie the hands of private landowners with more regulatory red tape. The late Sir Ralph Verney was himself a Buckinghamshire landowner of ancient lineage, a past president of the Country Landowners’ Association and sometime chairman of the Forestry Commission, with a long record of meritorious service on government royal commissions and advisory committees. He listed his recreation in Who’s Who as shooting. Verney’s deputy was Viscount Arbuthnott, a Scottish aristocrat, Lord Lieutenant of Grampian Region, past president of the Scottish Landowners Federation, as well as a past chairman of the Red Deer Commission and an influential figure in rural matters generally north of the border. It would be hard to hold all these important jobs without an underlying philosophy, and inevitably their views on the countryside were a landowner’s perspective, imbued with concepts of stewardship and ‘balance’. NCC’s Council contained others that had interests in farming and forestry, soon to be joined by a right-wing MP, Sir Hector Monro, close to the levers of power. Verney saw the NCC’s role as ensuring that conservation was ‘properly integrated’ into a balanced rural land use. Some saw such views as an acknowledgement of the lowly place of nature conservation in the rural pecking order. Promotion of a single interest seemed respectable when it came from the Ministry of Agriculture or the Forestry Commission, but unacceptable in a less powerful quango like the NCC. Nor, as the NCC’s staff were well aware, did these comfortable notions of integration and stewardship sit easily with the well-documented losses of natural habitats.
The NCC’s acquiescence was also in part tactical. As Verney and most of his Council saw it, an important principle had already been established – that, as a result of a recent streamlining of capital grants on farms, farmers already had to give the NCC advance notice of agricultural improvements on SSSIs. That meant that changes in farm practice could at last be made subject to regulation. The door had at least opened, and, with the right kind of positive encouragement, the NCC might find itself in ‘a good position to orchestrate the proper evolution of the SSSI system’, they hoped.
By 1980, the voluntary bodies, or ‘non-governmental organisations’ (NGOs) as they were called, most significantly the RSPB and the Council for the Preservation of Rural England (CPRE), were becoming more assertive. Though hardly militant, they were learning how to apply pressure on the Government. As the Bill began its passage, the voluntary bodies thrashed out a common platform via a hitherto invisible focus group called Wildlife Link. An effective leader emerged in the radical and persuasive Labour peer, Peter Melchett. As one of the participants put it, ‘hours of gruelling discussion’ on Wildlife Link, each party representing a sizeable client group, ensured that ‘the right people knew what to ask for, what to fight for, and what to accept’ (Vittery 1982). Wildlife Link provided, among other things, a crash course in the art of political lobbying.
Outside events lent a helping hand. In October 1980, Marion Shoard’s The Theft of the Countryside was published. Although Shoard’s advocacy of planning controls on farming held little appeal outside the far left, her analysis of the ‘engine of destruction’ and its complete lack of public accountability, plus the piling up of ever larger mountains of surplus food, opened many people’s eyes to what was happening behind the keep-out signs. ‘SSSI’ became an everyday acronym (though few seemed to know what the hissing letters stood for). The Common Ground by Richard Mabey, also published that year – Mabey was soon to become a member of the NCC – was less angry in tone, but argued persuasively for a ‘land ethic’ that recognised the legitimate interest of the wider community in preserving a healthy, attractive countryside. He voiced the public demand for fields of wild flowers as well as fields of wheat. Yet another useful nudge came from within the NCC itself with a now famous article in New Scientist by David Goode (number two in NCC’s scientific team) demonstrating just how many downs, heaths and commons had vanished under the plough since the War. One of the latest had been Horton Common in Dorset, enclosed and rotovated in front of the television cameras.
It was these undeniable statistics of habitat loss that obliged the NCC to reconsider its position. In October 1980, Verney and his Council listened to a forceful presentation by Peter Melchett arguing that ministerial orders and ‘reciprocal notification’ should be available to all SSSIs, and not just to a selected few. The latter phrase meant that the landowner and the NCC would form what was, in effect, a contract. The NCC would inform each owner about the site’s special interest, and advise how this should be conserved, while the owner would agree to give advance notice of any intended operation that might damage it. In that event, the NCC would be expected to offer the owner a formal agreement, including compensation for any lost income incurred. The NCC was won round to Wildlife Link’s position. Within the week, Verney wrote to Heseltine to inform him of his Council’s U-turn on policy, and issued perhaps the bravest press release in conservation history. The NCC was now committed to the principle of ‘reciprocal notification’. Reportedly, the Department’s only reply was an acknowledgement postcard.
More than a year after discussions began, the scene moved from behind the closed doors of government offices to the theatre of Parliament. The Wildlife and Countryside Bill was introduced on 25 November 1980. But with an already crowded programme of business in the House of Commons, Government decided to send the Bill first to the House of Lords. From its point of view, this was a serious tactical mistake. Many hereditary peers were landowners, with a vested interest in the Bill’s outcome as well as much practical experience of matters in it. They had a great deal to say about it all. Over several weeks of debate, a thousand amendments were tabled, apparently a parliamentary record. Most of them were of course ephemeral, but provision for Marine Nature Reserves was added to the Bill by Lord Craigton, while Lord Sandford moved a key amendment to enable agriculture ministers to make grants to farmers for conservation purposes (he had in mind the recent ploughings and reseedings in Exmoor National Park). The most crucial amendment to the Bill, tabled by Lords Buxton and Onslow, called for reciprocal notification on all SSSIs. It failed – but by only two votes.
The second reading in the House of Commons on 27 April 1981 was introduced by Michael Heseltine in his first and, as it turned out, only speech on the Bill. The Government’s watering-down of the Lords amendments was badly received, and it seemed that this supposedly non-partisan Bill was now at risk of being ‘talked out’ by the Opposition. The main stumbling block was the Ministry of Agriculture, which had placed the NCC under considerable pressure to agree to a purely voluntary code, whereby a farmer would give the NCC due notice only if he felt like it (‘otherwise bad things might happen’, suggested the NCC’s parliamentary monitor). A second blizzard of amendments followed before the Bill entered its all-important Committee stage (no Conservative member who had spoken up for conservation during the second reading was allowed to serve on Committee). But with Labour MPs such as Tam Dalyell threatening to ramble on for hours about the colour of a goldeneye’s eye, the Committee began to run out of time, while the ‘queue here’ signs outside the Committee Room attested to the unusual public interest in this Bill. At the last minute, Government began to waver. In Cabinet, Heseltine won approval for reciprocal notification against reported opposition from the landowners William Whitelaw and Francis Pym, as well as from the Minister of Agriculture, Peter Walker. At the subsequent Report stage, concessions suddenly spilled out of Tom King’s hitherto tightly closed sack. Limestone pavements would be protected. Marine nature reserves could be set up. Above all, the Bill would now contain a clause requiring landowners to give advance notice of any ‘potentially damaging operation’ on an SSSI – the crucial change everyone had been pressing for. The original proposal of a Nature Conservation Order for ‘Super SSSIs’ would remain as a back-up power to facilitate negotiations, but, since the Bill did not define what a Super SSSI was, no one knew how many sites would qualify for it. And there was another catch. A new amendment introduced by the Government required all the costs of compensating landowners for ‘profit foregone’ to be met by the conservation agencies – within National Parks by the relevant park authority, otherwise by the NCC, whose annual income at that time was only £6 million. Not one penny of the then £176 million of annual grant-aid for farm improvement could, it seemed, be spared. As the Secretary of State for Agriculture explained, it was not the business of his Ministry to pay for nature conservation.
The Wildlife and Countryside Bill received royal assent on 30 October 1981. As drafted, it left a number of questions hanging, most notably on how management agreements on SSSIs would be paid for (Government’s financial guidelines on the subject were not forthcoming until early in 1983). What mattered, though, was that the rules had changed. Politicians could no longer afford to ignore public opinion. The dormant, mainly urban, electorate had woken up. The preservation of wildlife was henceforth a matter that concerned everyone.
The Act in practice
Nature conservation in Britain really came of age with the Wildlife and Countryside Act of 1981. In the usual way of modern legislation it was a portmanteau chunk of law, catching up previous piecemeal laws and laying down rules on everything from the tethering of bulls to the close season for snipe. The important bits were tucked away in the small print. Although the Act, with its numerous Parts, Sections and Schedules, takes up 128 printed pages, the vital sections on wildlife habitats (Sections 28 and 29) are covered in just four. They set out the new ground rules for ‘notifying’ SSSIs, bringing in government and the local authority, as well as the owner and occupier. They laid out the rights and responsibilities of the interested parties and allowed three months for negotiations before the site would be notified. Section 29 also introduced ‘special protection’ for certain areas of special scientific interest, but this amounted only to extended negotiating time, not to protection per se. By introducing a statutory mechanism on SSSIs, the Act did at least determine that SSSIs were now the main instrument of nature conservation in Britain. It did not halt the destruction and damage to SSSIs, but it did at least ensure that some SSSIs were looked after better. To a large extent it all hinged on the attitude of the owner or occupier, and the ability of the NCC to persuade him. Some farmers remained unpersuaded, especially in wetland areas such as the Somerset Levels and poor hill farms in Wales and Scotland. These quarrels were well publicised, and raised the level of public debate. Widespread interest and concern about our wild places led to the unprecedented growth of the voluntary conservation sector in the 1980s.
Winter-flooded fields on the Somerset Levels, a tranquil landscape bitterly fought over by conservationists and drainage men in the 1980s. (Natural Image/Bob Gibbons)
The Wildlife and Countryside Act extended the protection of wildlife habitats, but created more bureaucracy and regulation. Rather than attack the fundamental cause of wildlife damage – subsidised agriculture – the Act only sought to protect parcels of land ‘of special interest’. Even so, it may be doubted whether those who drafted and debated the Bill were fully aware of the scale of the task. In 1982, there were 2,670 SSSIs covering 1,367,000 hectares; by 2000 the number had grown to over 4,000 SSSIs in England alone, covering over a million hectares (6 per cent of the land surface), and involving 32,000 owners and occupiers. To read the debates in Hansard you would be forgiven for assuming that most SSSIs were field corners and small copses of negligible economic potential that any landowner would be happy to set aside for wildlife. In fact, they include entire river estuaries and vast tracts of upland. The Wash and the New Forest are SSSIs; so is 44,000 hectares of the North York Moors, much of the North Pennines and most of the Cairngorms. The first people whose lives were changed by the Act were civil servants, most notably the staff of the NCC, who were expected to make it all work. Any sense of exhilaration within the NCC was soon followed by the dawning horror that all existing SSSIs would need to be renotified under the new Act (Treasury lawyers insisted on it) as well as new ones designated under new guidelines. At first it was thought the job might take two years. In fact, it took nearly ten. As Morton Boyd put it in his memoirs, ‘a single notification was a piece of precise teamwork between scientists, land-use assessors, regional staff and council secretariat’ (Boyd 1999). It seems to be a uniquely British affliction to need to dot every i and cross every t when implementing the rules. Those of us charged with ‘renotifying’ SSSIs had 14 separate stages to cover for each SSSI, each one zealously vetted by officials at headquarters. Guidance papers on SSSI selection and procedure flew about from headquarters to the regional offices, the daddy of them all being a 288-page tome on SSSI selection, delivered rather late in the day in 1989 (most of the job had been done by then).
When the ‘SSSI notification’ papers arrived at the farmhouse or agent’s office, reactions varied. Owners of large country estates and big farms, who had followed events closely and knew what to expect, broadly accepted the system and knew how to exploit it. Some people, especially in Scotland, expressed indignation at the language used. ‘Damaging activities’ implied misconduct, while ‘consent’ smacked of condescension, if not arrogance. Further resentment stemmed from the lack of any appeals procedure. The Government took the view that an SSSI statement was scientific fact enshrined in law, and therefore not open to a contrary opinion. Besides, if everybody appealed, the system would grind to a halt. Many farmers feared that SSSI designation would lower the land value, and saw themselves being deprived unjustly of their freedom of action. Farmers from the Somerset Levels were particularly angry, clubbing together to make a bonfire of their notification papers, along with an effigy of the NCC’s chairman and regional officer, and the local RSPB man. Their local MP, John Peyton, complained that Sir Ralph Verney had been unable ‘to keep his zealots and minions in any sort of check’. It took a visit from the minister and promises of compensation to calm things down. A scapegoat was found in the person of Sir Ralph who was effectively sacked for doing his job. A few landowners hurriedly sprayed or ploughed their special sites before they could be notified – small meadows being particularly vulnerable in this respect, since they were so easy to destroy. But these were not typical reactions. On most SSSIs, there was a measure of co-operation. ‘Loss and damage’ continued, but more often as a product of neglect or less than ideal practice than of wilful mismanagement. The Act worked passably well because the British are fundamentally law-abiding people. It would not have worked in a country such as France where small farmers are more militant, nor in a larger, wilder country such as the United States, where farming and nature conservation are geographically separated.
In the following years, the Wildlife and Countryside Act was tested in the courts through public inquiries and prosecutions. Test cases helped to resolve a matter that had been kept deliberately vague: that is, which SSSIs would qualify for a Nature Conservation Order under Section 29. Government, it seemed, preferred to take each case on its merits, while the NCC wanted a ministerial order made available to all SSSIs. The main benefit of such orders is that they could be extended until an agreement was reached, and, while they are in effect, deliberate damage to an SSSI meant the perpetrator could face conviction and a hefty fine. However, civil servants know better than to bother ministers too often with awkward matters, and it was tacitly accepted that Nature Conservation Orders would be served only in the most obdurate circumstances.
The first one was made in 1983, two years after the passage of the Act. Baddesley Common SSSI is one of the last remaining remnants of natural grassland, heath and bog on the coastal plain of Hampshire outside the New Forest. It came under threat when the estate of which it was a part was broken up and sold at auction. The local wildlife trust managed to purchase part of the Common, but the rest went to a former builder with farming aspirations. These had been encouraged by the land auctioneer who ‘painted encouraging pictures of a waving sea of corn’ (Tubbs, pers. comm.). The new owner forthwith gave notice of his intent to clear, drain and plough, and refused to negotiate. To gain time, the NCC applied for an order under Section 29, which was served by ‘the largest available’ ministry official. The builder appealed, and four months later a public inquiry was held. In July 1983, on the advice of the inspector, the Secretary of State upheld the order.
Baddesley Common near Southampton, rescued from the builders by the first Nature Conservation Order, served in 1983. Now a 50-hectare nature reserve owned by the Hampshire Wildlife Trust. (Hants and Isle of Wight Wildlife Trust)
That the Government was willing to invoke Section 29 on an ‘ordinary’ – that is patently non-Super – SSSI was encouraging. Less so was the amount of time taken up by this single case. Behind the order lay a lengthy succession of meetings, within NCC, with the landowner or his legal representative, with the Department, with the District Valuer, with legal counsel, amounting to some 55 man-days for the NCC. And Baddesley Common was but one SSSI among more than a hundred in Hampshire alone. Clearly, it would not take many Baddesley Commons to bring the system to a grinding halt, and perhaps bankrupt the NCC in the process.
Moreover, subsequent events suggested that Baddesley Common might have been an exceptional case, and that not all SSSIs, after all, would qualify for a Section 29 Order. Out of a total of 17 applications made by the NCC between 1983 and March 1985, three were refused on the grounds that the sites were ‘not of national importance’. Hence, short of compulsory purchase – which was theoretically available but ruled out on political grounds – there was nothing more the NCC could do to stop Brimham Rocks SSSI being turned into a pig farm, or Sherburn Willows SSSI being dug up to create ponds. Refusal to serve an order implied that the Secretary of State had a better understanding of what constituted a ‘nationally important’ SSSI than his official advisers (and, if that was the case, one might wonder why he bothered having advisers). The NCC stated bluntly in its annual report that, as far as it was concerned, ‘all SSSIs serve a national function and they are selected on that basis’. It also reminded Secretary of State that the legislation made no distinction between categories of SSSI. Legally they were all equally deserving. (Does the more forthright tone of NCC’s annual reports at this time have something to do with the fact that it was I that drafted them? I do not know the answer to this question.)
A further twist in the story concerned the case of West Mersea Meadow in Essex. Learning that the NCC intended to notify this small hay meadow, noted for its green-winged orchids, its owner, who had plans of his own to sell the land for housing, sprayed it with herbicide. To prevent further damage, the minister made a Section 29 Order just as soon as the NCC had notified the site, damaged as it was, as an SSSI. The owner objected, as was his right under planning law, and another public inquiry was held. This time it was the inquiry inspector who thought he knew what ‘national importance’ meant. In his view, West Mersea Meadows was not nationally important. The minister felt bound to concur, and withdrew the order. Perhaps it was all rather academic, since the orchids were dead in any case. The meadow was bulldozed away a few years later.
Other ambiguities in the Act were revealed during the handful of prosecutions held for wrongful damage to SSSIs during the 1980s. The first concerned a farmer who had damaged some natural grassland in Ulverscroft Valley SSSI in Leicestershire by spreading lime on it. He pleaded guilty, and was fined a hardly exemplary £200 (the maximum allowed under the Act was £2,000). Had he chosen to defend himself, he would probably have got off. Subsequent test cases showed that the Act as it stood was effectively toothless. One avenue of escape was that the NCC could not prove that an owner had been served with documents. In consequence, Gwynnydd yr Afon Fach SSSI was ploughed, Broadstone Meadow SSSI sown with swedes, and part of Aberlady Bay SSSI sprayed with weedkiller. The NCC held a moratorium on SSSI notification while its lawyers put the Act under the microscope. Their opinion was that the legislation was deficient, and the NCC’s only recourse was to ask for amending legislation. The minister found he was too busy, but Government gave tacit support to a Private Member’s Bill introduced by David Clark, the Opposition spokesman on the environment. This resulted in the Wildlife and Countryside (Service of Notice) Bill, which became law on 25 July 1985. It saved the NCC from having to serve every document by hand by a new procedure in which the service of SSSIs was linked with that of planning applications. This required a register to be maintained by the local authority and made available for public inspection. Furthermore, the landowner was now obliged to confirm receipt of SSSI notification papers. Of course the amending legislation did not apply to any SSSI notified between 1982 and 1985, but, to their eternal credit, this opportunity to torch them all without fear of prosecution was not taken by Britain’s landowners.
Frequent victim: green-winged orchid, a signature species of old, unimproved meadows.
Another weakness in the Act was the three-month interval allowed between serving notice of an SSSI and its actual notification. The notorious ‘three month loophole’, designed to allow an owner time to comment and, if he wished to, to object, was abused by a few spiteful people who used the time to render the site ‘no longer of scientific interest’. By March 1985, at least 21 proposed SSSIs had been ‘deliberately destroyed or seriously damaged’ in this way. For example, Northampton Golf Club literally stripped Kingsthorpe Field of its special interest by hiring bulldozers to remove turf and topsoil. At Rhos Derlwyn-Fawr in Dyfed, a few busy days with a tractor and deep plough were enough to damage beyond reasonable hope of recovery this ten-hectare island of bog and natural grassland.
The time it took for an order to be served offered yet another loophole. For each ministerial order, the NCC needed to submit a detailed case. Where agricultural or forestry interests were affected, the ‘Min. of Ag.’ might need to be brought in, and all this could take weeks. The NCC could, in theory, offset the delay by applying for an order early in the process, but that could easily be presented in court as sharp practice and evidence of a cynical lack of faith in an owner’s intentions. Nor would it bode well for future relations. As with the service of documents, it took amending legislation, following the recommendation of a House of Commons Select Committee, to close the loophole. So hard was this particular legal knot to untie that the Bill’s sponsor, David Clark again, was obliged to use diagrams to explain his point.
The most serious drawback of all was the time it took to notify SSSIs to more than 20,000 owners and tenants. Bill Adams (1984) memorably likened the process to ‘walking to the moon’. Our legislators had either overlooked or misunderstood the historical nature of land tenure in Britain; for example, on commons, farmers may have rights over land without owning an inch of it. This made the system difficult to operate in places where ownership was shared, such as upland commons and river banks. Understandably, the NCC tended to leave the more complex cases till last, but until an SSSI had been notified under the Act, it lacked protection, with only the planning laws to fall back on. Despite the quadrupling of its budget between 1980 and 1989 from £9 million to £38 million (for how the money was spent, see p. 41), the NCC’s work was dominated by SSSIs throughout the 1980s.
Progress of SSSI notification in the 1980s
| Year | Number of SSSIs notified under 1981 Act | Total area (hectares) of SSSIs so notified |
|---|---|---|
| 1982-83 | 35 | 18,487 |
| 1983-84 | 1,079 | 229,823 |
| 1984-85 | 1,906 | 415,465 |
| 1985-86 | 2,828 | 690,158 |
| 1986-87 | 3,956 | 1,021,958 |
| 1987-88 | 4,398 | 1,190,183 |
| 1988-89 | 4,846 | 1,414,335 |
| 1989-90 | 5,264 | 1,618,641 |
| 1990-91 | 5,576 | 1,721,502 |
Source. Appendix 5a of NCC annual reports 1982-1991. The figures take account of all SSSI denotifications made during that time.
Total SSSIs in 2000
| Number | Area (hectares) | |
|---|---|---|
| England | 4,088 | 1,053,796 |
| Scotland | 1,458 | 990,809 |
| Wales | 1,010 | 225,454 |
Source. Agency annual reports 1999-2000.
The Act in retrospect
The Wildlife and Countryside Act formed the legal basis of nature conservation in Britain for 18 years. Was it a good Act? Did it help to save our wildlife and countryside? Any assessment must be relative. In 1982, the Act’s measures to increase protection for SSSIs seemed wonderful; in 2001 they seem pathetic. Critics included Friends of the Earth who spotted right away that the Act was addressing only the symptoms, not the cause, and condemned it from the start as ‘a wretched and dishevelled piece of legislation’ (Rose & Secrett 1982). It imposed regulatory machinery on conservation bodies while doing nothing to pay for it. Ann and Malcolm MacEwan claimed that ‘Ministers have sold Parliament a pig-in-a-poke’ by refusing to say how much money Government would provide as compensation for ‘profits foregone’ (MacEwan & MacEwan 1982). The Act was a dead end, leaving agriculture and conservation on a collision course, with no way of regulating the conflict except ‘by pouring money into a bottomless pit’. Oliver Rackham (1986) considered that the Act had only made things worse by neutralising the NCC and ‘bogging it down in the paperwork of administration. Its provisions for compensation are scandalously open to abuse…’.
By contrast, Government repeatedly insisted that the Act was working very well, and indeed, that it was the best, most forward-looking, wildlife legislation in the world. Sir Hector Monro, then at the Department of Environment, suggested that the ‘one or two’ problem cases should be set against ‘thousands of SSSIs all managed extremely well’. His colleague, Lord Caithness, claimed, against plenty of evidence to the contrary, that very few SSSIs had in fact suffered any damage. Neither of these statements was in fact true, but of course it depends on what you mean by ‘few’, ‘well’ and ‘damage’. The NCC made a reasonable job of making the legislation work, that is by managing to keep a lid on difficult cases, and keeping inquiries, prosecutions and other public embarrassments to a minimum. Farmers and landowners, while not liking it much, by and large went along with the Act, and by no means all of them demanded full payment for profits foregone (those that did tended to be wealthy ‘businessman-farmers’ who would have made a pile of money in any walk of life). The most notorious example of blatant profiteering was the Glen Lochay case, in which the new landowner, a wealthy businessman, ran rings around NCC, forcing it to pay heavy compensation for foregoing afforestation and agricultural improvement. Conservation bodies that owned land, such as the National Trusts and the county wildlife trusts, tended to be more supportive of the Act – and the NCC – than those that did not, such as Friends of the Earth and WWF-UK. The critics exaggerated their case. FoE’s claims that the Act would soon cost the taxpayer upwards of £20 million per year in compensation payments proved well wide of the mark; the average at that time was closer to £4 million. However, they were correct in pointing out that, since the details of management agreements were kept strictly confidential, neither they nor the taxpayer had any means of knowing whether or not they were getting value for money.
The Wildlife and Countryside Act did not prevent ‘damage’ to SSSIs. Much of this came from forces beyond the NCC’s control, notably agricultural subsidies, and more generally from the CAP’s encouragement to farmers to drag every last ounce of productivity out of the land. What was almost equally damaging was the neglect of land no longer in agricultural production, causing coarse grass and scrub to spread on heathland and natural grassland. Even protected land could be managed ignorantly or inappropriately; some of the National Trust’s properties, such as Hatfield Forest and Wimpole Hall, form classic case studies in weathervane management. The Act could not prevent local authorities from granting planning permission for developments that damaged or even destroyed SSSIs. Indeed, there the Act had done little to change the situation, and no compensation for ‘profits forgone’ was available for developments dealt with under planning law. Nor did the Act do anything about Interim Development Orders, open-ended planning permissions that enabled companies like Fisons to dig peat on SSSIs, or drainage cabals to suck the water out of wetlands, or aggregate companies to blast away chunks of the Mendips.
Where it did have a positive and lasting effect was in creating a new land ethic based on co-operation between conservation agency and owner/ occupier. Much of our wildlife depends for its survival on grazing animals, regular, low-key maintenance and the harvest, the thousand and one activities of a traditional farm. It was easy for desk-bound conservationists and civil service mandarins to think of SSSIs as being cared for by the NCC, but in fact the NCC looked after nothing except its office buildings and a minority of its National Nature Reserves. Its arts were advice and persuasion, backed by science, a small amount of practical expertise and a pocket full of small change. In 1980, as in 1880, the quality of Britain’s wildlife depended in the last analysis on what farmers and landowners did. That the 1880s were a much better time for wildlife than a century later was nobody’s fault. The system has changed from one dependent on labourers and carthorses to another ruled by the agro-chemical industry, crop breeding and machines. Turning the clock back is not an option. For one thing there are hardly any labourers or carthorses left.
In retrospect, the Wildlife and Countryside Act could indeed be pilloried as a leaky, badly draughted piece of legal gobbledegook, easily undermined by any competent lawyer. But this did not matter particularly, since it was intended to work through persuasion, not compulsion. What undid it more was the slow progress on notifying SSSIs – a defect of process rather than law – and the lack of sufficient resources to tempt farmers into entering long-term, positive agreements. On occasion, the Act was used in ways that were never intended, for example as the basis for a land-use strategy in some upland areas. There, unsurprisingly, it failed. To suggest that the Act’s overall effect was to assure that things got worse more slowly sounds cynical, but it was still something. However, it also increased the polarity between SSSI land and ‘wider countryside’. By the 1990s, it was possible, in the English lowlands at least, for a trained eye to identify with a fair degree of certainty which land is an SSSI and which is not. This is the gauge both of the Act’s success and of its limitations.
Offham Down and after
Pressure to plug the many remaining loopholes in the Wildlife and Countryside Act built up during the 1990s, as depressing (if confusing) statistics of SSSI loss and damage continued year on year. In 1997, nearly half (45 per cent) of the SSSIs in England were in ‘less than ideal’ condition, according to English Nature. Evidently some progress was made, for by 2000 this proportion had fallen to a third. Some 300 SSSIs were being damaged every year, claimed Friends of the Earth. Despite this (and as before), the wildlife agencies seemed less than enthusiastic about asking for new legislation, preferring instead to pin their faith on good relations with owners and occupiers. There were a number of possible reasons for this. Agency culture in the 1990s was deeply non-confrontational. Prosecutions were time-consuming and, even if successful, there was little ‘wildlife gain’. English Nature’s chief executive, for one, saw no point in them. In his view, better results were obtained by working in ‘partnership’ with landowners than by shaking a worm-riddled stick at them. When, in 1995, Friends of the Earth drafted a wildlife bill to strengthen the protection of SSSIs – doing the agencies’ job for them as they saw it – English Nature’s ambivalent response was to offer a minimum of necessary tacit support while publicly doubting whether it would serve any useful purpose.
By the mid-1990s, some of the voluntary bodies had become dedicated students of wildlife law. The Worldwide Fund for Nature (WWF-UK) commissioned a report by Terry Rowell, SSSIs: A Health Check (Rowell 1993), reviewing the effectiveness of SSSI protection, and analysing its limitations. WWF summarised its recommendations in a ten-point plan to strengthen SSSIs, which was later worked up into a draft Wildlife Bill by Friends of the Earth. Launching the Bill in 1994, the former NCC chairman, Sir William Wilkinson, reminded the press that SSSIs were not what they seemed: ‘I should like to set to rest the serious and widely held misconception that SSSI designation confers actual protection. In fact it does nothing of the sort. It acts as a feeble tripwire. It sets up a negotiating process, and the final decision rests with Government’. Also at issue was the billions spent through the CAP each year on supporting activities that damaged wildlife, compared with the scant few millions available to help wildlife and protect SSSIs. FoE’s Wildlife Bill aimed to safeguard SSSIs by improving incentives for positive management and restoration, while making it more difficult for wrongdoers to escape prosecution. It wanted to extend the Section 29 ‘Stop Order’ to all SSSIs, to scrap the landowner’s automatic right to compensation for ‘profits foregone’ and to extend protection to include third-party damage. A Conservative MP, James Couchman, agreed to sponsor it as a private member’s bill. Of course, the bill, like most private member’s bills, ran out of time after passing through the Commons in 1997, but it formed a useful marker, and enabled the FoE to cry ‘I told you so’ every time another SSSI was lost. Even so, the prospect of such a bill reaching the statute book seemed as far off as ever. It was at this point that, in May 1997, as a general election approached, Justin Harmer, a Sussex farmer, decided to plough up an SSSI.
In 1996, the European Union had announced a subsidy of £591 per hectare for planting flax, grown to produce one of those mysterious vegetable oils for which the modern world seems to have an insatiable appetite. Perhaps through some oversight or crossed wire, the subsidy was available for any land suitable for growing flax, not excluding protected land such as SSSIs. At Lewes, that historic town sitting snugly in a declivity of the South Downs, the local office of English Nature had been trying to negotiate a management agreement with Mr Harmer over the future of Offham Down, part of the chalk escarpment running west of the town from Offham to Clayton, and designated as an SSSI because of its rare plants, birds and insects. But nothing English Nature was able to offer him could equal the EU’s generous bounty for flax-growing. The four months allowed by law for negotiations passed without agreement, and reluctantly English Nature had to let him plant his flax. It could have asked the minister to make a ‘stop order’ under the familiar Section 29. For some reason, it did not do so. Publicly, EN claimed that this particular bit of the SSSI did not meet the necessary national standard. Privately it admitted that, since the owner flatly refused to negotiate, it saw no purpose in prolonging negotiations. Compulsory purchase was ruled out on the grounds that, since there was no public access to the site, management to conserve it would be impossible. And so the farmer climbed into his tractor and began ploughing the virgin chalk turf with its cowslips and early butterflies. Most of the work was done at night to avoid confrontation with protesters. Soon Offham Down was striped with muddy plough lines, ‘as if a giant clawed beast had swiped at the hill’ (Phillips 1998).
There the matter might have rested, without much publicity or fuss, had it not coincided with the 1997 general election campaign. Ever quick to spot an opportunity, Friends of the Earth, with the help of Sussex Wildlife Trust, held a press conference on the public bridleway overlooking the mutilated SSSI, to show the media how Britain’s wonderful wildlife laws worked in practice. The outgoing Secretary of State, John Gummer, found himself staring at news headlines, and a mountain of mail full of words like ‘ludicrous’ and ‘crazy’ about a place he had probably never heard of. By all accounts, Gummer practically ordered English Nature to ask him for a stop order, which he duly granted. Mysteriously, it turned out that Offham Down was of national importance after all, on the basis of certain plants, such as bastard toadflax and round-headed rampion, which EN had suddenly realised were there (round-headed rampion is in fact found on practically every chalk hillside in the county – its local name is ‘Pride of Sussex’!).
Meanwhile, even before the stop order arrived, protesters had invaded the site, set up camp and had begun to turn back the turves, to which downland plants still clung, thereby coining a new word – ‘unploughing’ – in the lexicon of land management. Soon it turned into a media festival of unploughing, involving hundreds of volunteers, working in long lines to restore the down with their bare hands. Once the stop order had been served, the farmer himself good-humouredly joined in. The Opposition environment spokesman, Michael Meacher, turned up to claim that none of this would have happened under a Labour government. Two days later, Tony Blair, asked about the Offham incident at a fortuitous public meeting in East Sussex, scented the public mood: ‘You asked me about SSSIs and the crazy situation just near here where you’ve got a farmer being paid European Union money to effectively tear up a place that’s of particular scientific and natural interest. This is completely crazy. It’s a crazy situation…’ It would not happen under a Labour government, he added. Strengthening SSSIs had been Labour policy since 1994, and ‘ensuring greater protection for wildlife’ now became a manifesto pledge. Blair’s words undoubtedly helped to make legislation a more urgent priority once he was installed in Downing Street. Most conservationists now see this impressive example of ‘people power’ as the event that led to the Countryside Act and a significant strengthening of the protection afforded to SSSIs. Meacher was appointed Environment Minister in John Prescott’s restructured Department of the Environment, Transport and the Regions (DETR). One of his first acts was to instruct English Nature to withdraw its permission for Justin Harmer to plough Offham Down and part of the nearby Offham Marshes. Meacher also promised a comprehensive review of wildlife legislation since 1982, and a consultative green paper. A green paper sounded like a green light.
‘Giant claws scraping at the hill’. The ‘unploughing’ commences at Offham Down. (FOE)
Breakthrough: the ‘CROW Bill’
To help Michael Meacher with his green paper, and to draw public attention to what they saw as the main issues, the 22 principal voluntary wildlife bodies, acting through Wildlife and Countryside Link, produced a document they called the Wildlife Charter. Published on 17 November 1997, it outlined the kinds of legal measures they considered necessary if the new Government was to meet its manifesto commitment ‘to improve protection for wildlife’. The Charter covered a lot of ground, with the deft use of magic words such as ‘biodiversity’ and ‘sustainability’, but more or less repeated the proposals for SSSIs made in FoE’s Wildlife Bill. The House of Commons obligingly tabled an early day motion in which 292 thoroughly lobbied MPs of all parties expressed support for the Charter. Meanwhile, FoE broke another taboo by launching an interactive website on SSSIs, Wild Places!, an illustrated public database of Britain’s 6,000 plus SSSIs, complete with details of over 2,000 incidents of loss and damage in England and Wales. Thousands of electronically aware people were thereby able to study the latest SSSI casualties: Selar Farm, in South Wales, obliterated by a coal mine; Porth Ceiriad Dunes, also in Wales, partly levelled by the owner’s bulldozers; another wetland site ploughed and reseeded by a farm tenant, the owner, Severn-Trent Water, having apparently forgotten to tell him the land was an SSSI. Some 2,000 people logged on to FoE’s website during its first month’s operation.
The promised consultative paper, SSSIs – Better Protection and Management, was eventually published in September 1998. It showed a Government receptive to the ideas in the Wildlife Charter, if offering rather less than was demanded, and at an uncertain date. There was agreement on the need to strengthen SSSIs by revising planning guidelines, closing legal loopholes and increasing penalties; and, more importantly, by offering better incentives for ‘positive’ management. The ‘ransom money’ of profits foregone would be scrapped. Views were invited on a range of other issues, including responsibility for limestone pavements and whether upland commoners should be regarded as tenants.
These proposals applied only to England and Wales. The parallel green paper in Scotland, People and Nature: a new approach to SSSI designations in Scotland, took a broader line, emphasising the claimed differences between Scotland’s wilder countryside and England’s (the differences are not in fact national but physical: between upland and lowland). Scotland is even more keen to stress local accountability, and to demand a much greater say by local communities in their own affairs. In 2001, the Scottish Executive set out the devolved government’s proposals in a glossy consultation document, The Nature of Scotland: a policy statement, which proposed ‘substantial reform to the way in which we protect and manage our most special natural places’. There would be ‘less bureaucracy’ and an appeals procedure. The document also held out the possibility of a shake-up of the system of protection in favour of the European system of SPAs and SACs, although this would require new legislation. Introducing the Government’s proposals to the new Scottish Parliament in 1999, the late Donald Dewar doubted whether the sites designated by the European Union need all be notified as SSSIs. He didn’t like the term SSSI anyway, and thought it should be replaced by a more ‘people-friendly’ name.
Sites of Special Scientific Interest (SSSIs) in Scotland (from Scottish Natural Heritage. Facts and Figures 1999/2000
In England and Wales, the voluntary bodies responded to the green paper with a ten-point ‘Wildlife Challenge’, calling on Tony Blair to introduce comprehensive new wildlife laws in the next Queen’s Speech. It contained the by now familiar demands on SSSIs in a context that included common standards across the UK (a worried reference to Scotland’s separatist tendencies) and a clearly defined purpose for nature conservation law (whose absence hitherto is a fine example of how the trees have managed to disguise the wood these past 30 years). It also reminded Government of the absence of similar proposals for that perpetual Cinderella of nature conservation, Northern Ireland.
Late in 1999, Government announced that it would introduce a Countryside Bill to Parliament. But with so many Bills crowding Parliamentary time, it decided to combine wildlife protection measures with the introduction of a statutory right to roam. This linked proposals that had become uncontentious with a radical measure that could expect a much bumpier ride, especially in the House of Lords. Many feared this could still scupper the Bill. Moreover, some backbench Labour MPs were bent on making the mix still more controversial by trying to graft onto the Bill their pet issue, the banning of hunting with hounds. Eventually they were bought off by being promised a free vote on a Hunting Bill in the next session.
The attempted hijack by anti-hunting campaigners was the most exciting moment in what, compared with the passage of the Wildlife and Countryside Bill 20 years earlier, was a rather uneventful parliamentary journey. The immensely complicated measures on SSSIs in the Countryside and Rights of Way Bill (‘CROW’ Bill) were tucked away near the back in Part 3 on Nature conservation and wildlife protection. The Bill was first read in March 2000, and, to the surprise of many, duly reached the statute books six months later. In the Commons, there was little opposition to the proposals on SSSIs since the Conservatives chose to direct their fire on the right-to-roam part. The reformed House of Lords had rather more to say, but mostly on the detail rather than the principle. Lord Buxton was against imposing prison sentences on gamekeepers caught poisoning protected species. Lord Ferrers expressed astonishment that anyone should want to protect noxious creatures such as stag beetles and adders. About 300 amendments were tabled, mainly about access. There was, however, one surprise gift – a new clause that gave statutory backing for Biodiversity Action Plans, thanks entirely to pressure from the voluntary bodies.
Under the new legislation, the agencies can at last refuse consent for any operation likely to damage an SSSI. The discredited ‘profits foregone’ regime was replaced by one emphasising positive management (by 1998, 84 per cent of management agreements issued by English Nature were of this kind, with only 16 per cent based on compensation – though they absorb 30 per cent of the total costs). On problem sites, the agencies can now issue a ‘management notice’, requiring remedial action on pain of prosecution and bringing their powers in line with those of the Environment Agency. Maximum fines have been increased to £20,000 in a Magistrates Court and an unlimited fine in a Crown Court. The CROW Act also irons out most of the remaining ambiguities and nonsenses over SSSIs. Agency staff at last have the right to enter and inspect SSSIs (although they are expected to ask nicely first). They are required to make a simple statement about preferred site management to owners. The legal power to denotify SSSIs is made explicit, and the process defined. Public bodies and statutory undertakers such as water companies and port authorities henceforth have a ‘duty to take reasonable steps’ to protect SSSIs ‘consistent with the proper exercise’ of their primary functions, and are encouraged to consult English Nature over their management. The CROW Act does not override the planning laws; local authorities can still allow someone to build a shopping mall on an SSSI, but they are supposed to consult the wildlife agency first, and to inform it if they intend to ignore the agency’s advice (at which point, the agency would, one hopes, be having an urgent word with the minister). In keeping with the contemporary preoccupation with human rights and ‘natural justice’, everybody has a right to appeal about everything. However, the Act does its best to outline the respective duties of owners and occupiers, local authorities, statutory undertakers, wildlife agencies and other public bodies, in the hope that ignorance will no longer form an excuse for inaction. ‘The thrust of the Act,’ it explains, ‘is on co-operation, not confrontation.’ ‘We continue to place a high priority on building effective partnerships with owners and occupiers’ commented English Nature, and ‘seek to manage SSSIs by agreement.’ The law still does nothing to override previous planning permissions given for mineral and peat extraction – the loophole that enabled peat companies to dig up Thorne Moor. It has little to say about marine conservation other than initiating another review. Even so, it represents a huge improvement.
The CROW Act applies equally to all SSSIs, big or small. Hence the old Section 29 Order, together with the still undefined ‘super sites’, is now redundant and has been scrapped. But while SSSIs now have equal status as sites of national conservation importance, some sites will nonetheless be more equal than others because SSSIs are the chosen legal instrument in Britain for enabling European and international decrees, notably Ramsar sites (q.v.) and European SPAs and SACs. Hence, an SSSI that is also an SPA, SAC or Ramsar site (see below) will inevitably count for more than a plain SSSI. Moreover, it seems probable that SSSIs in Scotland may come to mean something different to what they mean in England and Wales, and probably under a different name. Never mind. The Government now dares to set itself the target of 95 per cent of SSSIs in a favourable condition by the year 2010 – and to achieve this it will have to do something about overgrazing and peat exploitation, currently the biggest causes of SSSI damage. What really matters, is that, for the first time in their half-century existence, Sites of Special Scientific Interest have become protected sites.
Euro-conservation
At the start of the new Millennium, habitat protection in Britain was in a state of transition between national and European systems. This section will deal briefly with the European Union’s system, called Natura 2000, and what it means in practice. First, however, let us touch on an international convention that requires Britain to establish protected sites. This is the Ramsar Convention, named after the town in Iran where the parties first met, or the Convention on Wetlands of International Importance Especially as Waterfowl Habitat. It requires signatory nations to compile a list of ‘Ramsar sites’, get them designated, and report back to a special Ramsar Bureau. The Convention defines wetland widely, as meaning almost any wild wet place, natural or artificial, including estuaries, lakes, washes, reservoirs and bogs, so long as it has a rich wildlife or assemblages of rare species, especially birds. In Britain, we deal with this by designating Ramsar sites as SSSIs. This causes no particular problems since they are selected on the same basis. Even so, progress was slow, probably because no one could see much point in the exercise. Most of our ‘Ramsars’ are already protected by something else. By 2000, there were 149 UK sites on the Ramsar list covering 676,000 hectares, plus another 59,000 hectares in the UK’s Overseas Territories and Dependencies. Another, more recent, international agreement is the World Heritage Convention, which runs a fund to establish World Heritage sites of cultural or natural importance. So far (2001) only St Kilda and the Giant’s Causeway have made the grade in the UK as natural sites, though the Caithness and Sutherland peat flows and the Cairngorms have been put forward as candidates. This designation is more likely to produce better public facilities than better conservation.
Slow train to Ramsar 1970-2000. Britain has about one per cent of the world’s notified wetland sites. (JNCC)
Much more important is the developing European system of protected site designation, the Natura 2000 network. This is based on two Directives, the Conservation of Wild Birds, made in 1979, and the Conservation of Natural Habitats and Wild Flora and Fauna (‘the Habitats Directive’) in 1994. The first of these requires member states to designate ‘Special Protection Areas’ (SPAs) to conserve the habitats of certain birds, such as nightjar or stone curlew, that are rare or declining in Europe, or of migratory species of birds. Since British estuaries are used by large numbers of passage waders and geese, many of them have been made SSSIs and Ramsar sites and SPAs. Altogether some 230 SPAs have been designated, covering 11,165 square kilometres, or 4.6 per cent of the land surface. The Habitats Directive requires Britain to set up a more comprehensive series of ‘Special Areas for Conservation’ to protect a long list of habitats and species (other than birds) of special interest, both on land and in the sea. These are known as SACs. There will be about 500 SACs, covering 21,658 square kilometres, or 8.4 per cent of the land surface. Together, SPAs and SACs will form part of the trans-European network of sites, Natura 2000, chosen on similar criteria. In theory the same system of site selection and protection will operate throughout the European Union, from Britain to Portugal and Greece. The Habitats Directive requires SACs to be maintained in ‘favourable conservation status’, and protected against harmful developments except in cases of ‘overriding public interest’. Under British law, all Natura 2000 sites have first to be notified as SSSIs. The increased protection for SSSIs under the CROW Act will, it is hoped, cover the EU requirements, but positive management will have to be achieved by negotiation and agreement on the individual sites – another job for the country agencies.
In 1999, the European Commission began a process known as ‘moderation’ to consider whether the candidate SACs submitted by member states, including Britain, would meet the requirements of the Directive adequately. For many habitats and species, Britain’s candidate list, drawn up by the JNCC, fell well short. For example, there were not enough designated rivers to protect otter and Atlantic salmon. Fortunately the Regulation was amended in 2000 so that candidate SACs (cSACs) are now protected as if they were already SACs. But there is a lot of work to be done even to reach candidate stage, and public consultation on SACs has dominated the recent site protection work of all three British nature conservation agencies. By the time the process is complete, there are likely to be at least 300 SACs, many of them very large. The very biggest are National Park-sized, notably ‘Caithness and Sutherland Peatlands’ at 143,539 hectares and the Moray Firth at 151,352 hectares. Some ‘lucky’ sites may end up being Ramsars and SPAs and SACs and SSSIs – and, in some cases, National Nature Reserves as well! To outsiders, at least, this looks like gross bureaucratic overkill. It is one of the prices we pay for the ambiguities of modern life: a nation state which is also part of a European Union, allied to the twist of changing circumstances.
What matters, of course, is not the labelling but what the labels achieve. SACs, in particular, form a potentially powerful conservation tool because they must be maintained favourably, which in turn requires adequate incentives for occupiers and managers. Through its projected targets for SSSIs, the Government is now committed to this process, which will require reforms to the CAP (for example, on stock-rearing subsidies) and national legislation (for example, removing old planning permissions for minerals, with or without compensation). A widespread fear is that SACs may strip away resources from ‘ordinary’ SSSIs, and this does indeed seem likely to happen in Scotland. This would be highly undesirable. Not only do SACs cater for a smaller range of habitats and species than the SSSI series, but they are chosen on European criteria, and hence omit a lot of wildlife and wild places that happen to matter to us (for example, most of my county’s downs and woods). Concentrating entirely on the European system would produce a grotesque distortion of nature conservation in practice. This will surely become an issue for the near future. The story, it seems, is never over.