Infrastructure Act 2015

Infrastructure Act 2015

2015 CHAPTER 7

Commentary on Sections

Part 4 – Environmental Control of Animal and Plant Species

Section 23: Species control agreements and orders

92. Section 23 inserts a new subsection 14(4A) in the Wildlife and Countryside Act 1981 providing for measures relating to species control agreements and species control orders to be contained in a new Schedule 9A. The provisions of Schedule 9A are described below.

Part 1 – Overview and interpretation

93. Paragraph 1 explains that the purpose of this Schedule is to enable species control agreements and orders to be made between environmental authorities and owners of premises, and for species control orders to be made by environmental authorities, to effect eradication or control of invasive non-native species. These measures also extend in more limited circumstances to animals which are no longer normally present in Great Britain; these are animals such as the wolf, lynx, beaver and brown bear that were once normally present in Great Britain but which became extinct.

94. Paragraph 2 defines “invasive” and “non-native”. Although there is no list of “invasive non-native species”, non-native species include those specified in Part 1 and Part 2 of Schedule 9 to the Wildlife and Countryside Act 1981, as well as any animal whose natural range does not include any part of Great Britain and which has been introduced or is present as a result of human activity.

95. Paragraph 2 also defines species which are no longer normally present in Great Britain as those specified in the new Part 1B of Schedule 9 to the Wildlife and Countryside Act 1981; or species whose natural range includes any part of Great Britain but where they have ceased to be ordinarily resident or a regular visitor to Great Britain in a wild state.

96. The proposed codes of practice (paragraphs 26 and 27 of the new Schedule) will set out circumstances where it may be appropriate to make an agreement or order. This will limit their use primarily to recently arrived species that are not widely established in England and Wales.

97. Paragraph 3 establishes that the Secretary of State, Natural England, the Environment Agency, the Forestry Commission in England and, in Wales, the Welsh Ministers and the Natural Resources Body for Wales will have powers to make species control agreements and orders.

98. Paragraph 4 defines the term “owner” as a freeholder, leaseholder or a person who exercises powers of management or control of the premises.

99. Paragraph 5 sets out the types of operations that may be agreed or ordered. Paragraph 5(2) clarifies that that a reference to “carrying out” operations in this Schedule also includes arranging for operations to be carried out by someone else. An owner or an environmental authority may wish to arrange for operations to be carried out by a contractor on their behalf.

Part 2 – Species control agreements

100. Paragraphs 6 and 7 describe the making and content of a species control agreement. Paragraph 6(3)(a) establishes the principle that before entering into a species control agreement, an environmental authority must be satisfied that the provisions of the proposed agreement are proportionate. Paragraph 6(3)(b) places an obligation on the environmental authority to be satisfied that where there may be more than one owner of the premises, the owner with whom the agreement is made is the most appropriate one.

101. In the case of species that are no longer normally present, paragraph 6(4) restricts species control agreements to animals which are present on premises without a licence under section 16(4)(c) of the 1981 Act (that is, a licence from Natural England or Natural Resources Wales which is required before such animals can lawfully be released into the wild). It also sets out that such species must be having a significant adverse impact on biodiversity, environmental, social or economic interests and the environmental authority must be satisfied that there is no appropriate alternative way of obviating that impact.

102. If an agreement relates to a dwelling, paragraph 6(5) provides that the only environmental authorities that may enter into such an agreement are the Secretary of State or the Welsh Ministers. The purpose of this restriction is to provide an additional check to ensure that such powers are used sparingly in relation to dwellings, and only as last resort.

103. Paragraph 8 requires an environmental authority to notify an owner when it considers that the owner has completed all the operations required by a species control agreement and the agreement is, therefore, no longer in effect.

104. Paragraph 9 limits the liability of the environmental authority for any operations carried out in accordance with a species control agreement to the owner with whom the agreement is made, rather than anyone who may hold a legal interest in the premises.

Part 3 - Species control orders

105. Paragraph 10 describes the circumstances where a species control order may be made. Paragraph 10(2)(a) allows an environmental authority to make a species control order where it considers that an owner has breached the terms of a species control agreement, but only after giving notice to that effect and allowing an owner a reasonable opportunity to rectify the alleged breach.

106. Paragraph 10(2)(b)(i) is designed to allow the environmental authority to make a species control order if it receives a categorical response from an owner that they will not enter into a species control agreement before waiting for the 42 day period set out in paragraph 10(2)(b)(ii) to expire. Paragraph 10(2)(b)(ii) allows the environmental authority to make a species control order where an owner has not entered into a species control agreement after 42 days, but only if it concludes that the owner is unlikely to enter into an agreement. This places the onus on the environmental authority to satisfy itself that an agreement is unlikely to be reached before making an order.

107. Paragraph 10(2)(c) allows an environmental authority to make a species control order where there is urgent necessity, without having to go through the process of offering a species control agreement. The circumstances where this may be appropriate will be set out in the proposed ministerial code of practice and will indicate that these emergency species control orders should only be made in exceptional circumstances. However, there may be legitimate circumstances where the environmental authority needs to eradicate a species as a matter of urgency, particular if it was concerned that any delay could result in the species becoming more widely established.

108. Paragraph 10(4) restricts species control orders to only those species no longer normally present which are present on premises without a licence from Natural England or Natural Resources Wales, which would be required before such animals can be lawfully released into the wild. It also sets out that such species must be having a significant adverse impact on biodiversity, environmental, social or economic interests and the environmental authority must be satisfied that there is no appropriate alternative way of obviating that impact.

109. Paragraph 10(5) restricts a species control order from being made in relation to any dwelling unless it is made by either the Secretary of State or the Welsh Ministers. The purpose of this restriction is to provide an additional check to ensure that such powers are used sparingly in relation to dwellings, and only as last resort.

110. Paragraph 11 sets out what detail must be contained within a species control order in different specified circumstances. This includes provision requiring the owner to carry out species control operations, provision stating that the environmental authority proposes to carry out operations, or both.

111. Paragraph 12 sets out the other details that must be included in all species control orders, such as the operations to be carried out and the time by which they must, or are proposed to be, completed.

112. Paragraph 13 sets out other provisions that may be included in a species control order in addition to that required under paragraphs 11 and 12. Paragraph 14 provides that, after a species control order is made, notice must be given to all owners of the premises concerned, and to the Secretary of State and the Welsh Ministers.

113. Paragraph 15 provides for a species control order to be revoked at any time by the environmental authority that made it. An environmental authority may wish to revoke a species control order if it was no longer required. For example, the species may no longer be present on the premises. An environmental authority may also wish to revoke a species control order if it was no longer fit for purpose. In these circumstances, an environmental authority may wish to offer a new species control agreement or make a new species control order, though the process would be required to start afresh.

114. Paragraph 16 provides for an owner of premises, which become subject to a species control order, to appeal to the First-tier Tribunal against either the making of the order or any provision contained within it. Paragraph 16(2) sets out what action the First-tier Tribunal may take in determining an appeal.

115. Paragraph 17 requires an environmental authority to notify an owner when it considers that the owner has completed all the operations required by a species control order and the order is, therefore, no longer in effect.

116. Paragraph 18 allows an environmental authority to carry out the operations itself should an owner fail to comply with the terms of the order where the owner has not rectified the breach within a week of being given notice by the authority of the existence of that breach. Paragraph 18(5) also allows the environmental authority to recover any costs of those operations, reasonably incurred, from the owner.

117. Paragraph 19 sets out the offences relating to the new regime. It will be an offence to fail to comply, without reasonable excuse, with a requirement of a species control order. It will also be an offence to intentionally obstruct a person from carrying out an operation required or proposed under a species control order.

118. Paragraph 20(1) removes any liability of an owner to any person when that owner is doing anything in accordance with a species control order. Paragraph 20(2) removes the liability of an environmental authority to any person with an interest in the premises for any action it, or an owner, carries out in accordance with a species control order.

Part 4 – Powers of entry

119. Paragraph 21 provides for new powers of entry to support these proposals. Paragraph 22(1) sets out the circumstances in which powers of entry will require a warrant from a justice of the peace before they can be exercised. This includes, for example, where the premises are unoccupied or admission is refused by the owner. Paragraph 22(1)(e) says that a warrant is required where giving notice would defeat the purpose of the proposed entry. This is to deal with the situation where an environmental authority was concerned that giving notice to the owner may result in them inappropriately disposing of the species, perhaps by transporting the animals elsewhere. Where the Secretary of State or the Welsh Ministers have made an order that relates to premises consisting of a dwelling, paragraph 22(1)(a) ensures that a warrant must be obtained in order to exercise a power of entry in relation to those premises.

120. Paragraph 23 establishes that at least 48 hours’ notice should be given to an owner before exercising the powers of entry.

121. Paragraph 24 sets out how and when the powers of entry may be exercised. Paragraph 24(1) establishes that a right of entry is exercisable at any reasonable time. Whilst the environmental authorities would ordinarily seek to exercise rights of access during normal office hours, there may be other times when the operations may be best carried out. For example, the best time for shooting operations, including minimising disruption, may be at dawn or dusk. Surveillance operations for some species may be necessary in the evening.

Part 5 - Supplementary

122. Paragraph 25(1) provides that the Secretary of State and the Welsh Ministers may make arrangements separately or jointly to compensate an owner in respect of financial loss resulting from a species control agreement or order, or the exercising of the powers of entry.

123. Paragraph 26 requires the Secretary of State to issue a code of practice for species control agreements and orders in relation to England and sets out what must be contained in it, including the appropriate standards of animal welfare that should be met in respect of species control operations. Paragraph 26(4) ensures the Secretary of State carries out a public consultation before issuing, revising or replacing the code of practice. Paragraph 26(5)(a) requires of the Secretary of State to ensure that the code of practice is publicised appropriately so that those people with a likely interest are made aware of it. Paragraph 26(5)(b) requires the Secretary of State to lay a copy of the code before Parliament.

124. Paragraph 27 imposes similar requirements on the Welsh Ministers as those on the Secretary of State in relation to a code of practice.

125. Paragraph 28(1) provides that a person is not liable to civil or criminal proceedings merely for a breach of the code. Paragraph 28(2) enables the code to be admissible in evidence in any civil proceedings. Where it appears to the court to be relevant, it must be taken into account in any such proceedings.

126. Subsections (4) to (6) of the section are consequential amendments disapplying certain sections in the Wildlife and Countryside Act 1981 to these provisions.