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Explanatory Memorandum to Environment (Northern Ireland) Order 2002

Commentary on Articles

Part IV contains 25 Articles

Article 28 enables the Department to declare an Area of Special Scientific Interest. It also requires the Department to notify an ASSI declaration and allow for representations or objections to it. Subject to this, the Department shall confirm (with or without modifications) the declaration or rescind it.

Article 29 enables the Department to vary the matters specified in the declaration, other than the area of land concerned, at any time after confirmation. In doing so the Department must inform the district council in whose district the ASSI is located and relevant owners or occupiers and allow them the opportunity to make representations or objections prior to confirming the variation (with or without modifications) or rescinding it.

Article 30 enables the Department to increase the area of the ASSI. This will be subject to requirements similar to those outlined for declaration.

Article 31 provides a power for the Department to denotify all or any part of an ASSI that is no longer of special interest. This will be subject to requirements similar to Declaration (Article 28) and Declaration of Additional Land (Article 30).

Article 32 provides that the owner or occupier of an ASSI shall not carry out any operations specified in the declaration under Article 28 as likely to damage the site unless notice is given to the Department of a proposal to carry out the operations and the Department gives its consent; or the works are carried out under the terms of an agreement with the Department; or under a management notice. The consent may be conditional and time limited. The Department may also, by notice given to the owner or occupier, withdraw or modify the consent in any way. The Department will be required to explain any refusal, modification or withdrawal of consent to the owner or occupier and refer to the right of appeal under Article 33.

Article 33 enables a person to appeal where he has been refused consent to carry out operations on an ASSI (this includes a deemed refusal where, after three months, the Department has neither granted nor refused consent). He can also appeal where he has been granted consent subject to conditions or where he is aggrieved by the modification or withdrawal of a consent. The appeal to the Planning Appeals Commission must be made within two months of the decision, or failure by the Department to decide.

Article 34 deals with management agreements between the Department and owners or occupiers of land within ASSIs.

Article 35 enables the Department to serve a management notice on the owner or occupier where it considers that the features, which make the site an ASSI, are being inadequately conserved or restored.

Article 36 enables any person who has been served with a management notice, to appeal against it to the Planning Appeals Commission. Notices may be quashed, varied or confirmed.

Article 37 provides that if the Department withdraws or modifies an existing consent to carry out operations, it must offer a payment to an owner or occupier if he suffers loss as a result. The amount of the payment is to be determined by the Department in accordance with guidance given and published by the Department. Any disagreement between the Department and an owner or occupier as to the amount of payment will be referred to and determined by the Lands Tribunal. The Article also provides that the Department may make payments in respect of management agreements.

Article 38 imposes a duty on “public bodies”, in exercising their functions, to take reasonable steps, consistent with the proper exercise of those functions, to further the conservation and enhancement of the special features of an ASSI. “Public bodies” are defined in paragraph (3) to include Northern Ireland and UK Government Departments district councils, statutory undertakers and other public bodies.

Article 39 requires a public body to notify the Department when it propose to carry out operations in the exercise of its functions, which are likely to damage the features of any special interest of an ASSI. This applies equally to works outside an ASSI, which may affect that ASSI. The Department may refuse its assent, or assent to the operation (with or without conditions). Where assent is refused, or the conditions are not acceptable, the public body may proceed with the works provided that they give the Department not less than 28 days notice of the start of the operation. The notice must state how the body has taken into account any advice which the Department has given. It is a requirement that any such operations are carried out so as to cause as little damage as is reasonably practicable, and that the body restore the site to its former condition again, so far as is reasonably practicable if damage does occur.

Article 40applies where a public body has power to grant permissions, including authorisations or consents, for other parties to carry out operations (whether on or outside an ASSI) which are likely to damage the special features of an ASSI. Before granting any such permission they must give the Department not less than 28 days notice. Before making any decision the body must take into account the advice of the Department, which may include advice on conditions to be attached to the permission by virtue of paragraph (5)(b). If the body intends to grant permission against the advice of the Department, it must notify the Department and the permission must allow 21 days before the operations may commence. This would, for example, give the Department an opportunity to contact the applicant to discuss ways of mitigating any effects, or to offer a management agreement.

Article 41 gives the Department a compulsory purchase power in relation to land which is an ASSI. This power may only be exercised where the Department cannot secure an agreement for the management of an ASSI or where the terms of such an agreement have been breached in such a way that the land is not being managed satisfactorily and it is necessary therefore for the protection of the special features of the ASSI. Where the Department has acquired the land it may also acquire land for the purpose of a means of access to that ASSI. The Department may then either manage the land or dispose of it to ensure its future management. The Department may also dispose of the land acquired if it no longer requires the land for the purpose it was acquired.

Article 42 states that the Department may carry out works and do such other things on land acquired under Article 41 if it considers such works etc necessary for the proper management of the land in accordance with the purposes for which the land was acquired.

Article 43 enables the Department to enter into agreement with any owner or occupier of land outside an ASSI in order to protect or enhance or prevent damage to or destruction of the special features inside the ASSI.

Article 44 provides the Department with the power to enter onto land for a range of specified purposes. These include assessing whether land should be declared as an ASSI; formulating a scheme for the management of an ASSI in order to conserve its special features; assessing the condition of the features on the site, and ascertaining whether an offence under Article 46 has been committed. It allows for entry to the land by vehicle or boat, and the person entering the land may take equipment or materials with him. The Department’s approach will normally be to seek access by agreement with the owner or occupier. The person entering the land must leave it as effectively secured as he found it and the Department will be liable to pay compensation for any damage caused by the exercise of the power of entry.

Article 45 gives a power to the Department to make byelaws on any ASSI. Before making any byelaws the Department shall consult the Council for Nature Conservation and the Countryside.

Article 46 provides for the creation of offences and penalties in connection with the contravention of the provisions of Part IV.

Article 47 enables a court, before which a person has been found guilty of an offence under Article 46 (which relates to the conservation of areas of special scientific interest), to require an offender to make good as far as is practicable the damage he has caused by his activities.

Article 48 places a duty on the Department and the Council for Nature Conservation and the Countryside and any other body with functions under Part IV to have due regard to the needs of agriculture, forestry and fisheries.

Article 49sets out the rights and obligations of the Crown in relation to the provisions of Part IV.

Article 50 lists the following items which are to be registered in the Statutory Charges Register; any declaration under Article 28(1), any management agreement under Article 34 or any related waiver and any management notice under Article 35.

Article 51provides for the application of the transitional provisions set out in Schedule 4.

Article 52defines some of the key words and phrases used in Part IV.

Part V: Supplementary

Article 53provides for the amendment and repeal of a number of statutory provisions consequent on the introduction of the provisions of the Order.

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