The Infrastructure Bill (part 2)
In a previous life I was a landscape architect and environmental consultant before becoming a lawyer. So my eye is always drawn to legal changes that would have been of interest to me in those professions.
One such forthcoming change is tucked away in Part 2 section 16 of the Infrastructure Bill, which will amend the Wildlife and Countryside Act 1981(WCA) and make provision for the removal or control of invasive non-native species by control agreements.
Essentially the agreements will be between owners or occupants and any one of a number of environmental authorities such as the Secretary of State, Environment Agency, Natural England or respective Welsh bodies. The agreements will have to relate to:
- Firstly, a species (animal or plant);
- Secondly, that is “invasive”. In other words likely to have a significant adverse impact on either biodiversity, other environmental, social or economic interests; and
- Thirdly, a “non-native” species. In other words either those listed in Schedule 9 Parts 1 or 2 of the WCA or, in the case of an animal, wild species not ordinarily resident or regular visitors to Britain.
The Bill distinguishes the use of the terms “premises”, “land” and “dwelling”. Agreements are to be between authorities and owners of premises consisting of land but where premises consist of a dwelling, agreements may only be entered into by the Secretary of State or Welsh Ministers. A dwelling is a building or structure or any part thereof occupied mainly as a dwelling.
It will be at the relevant environmental authority’s determination whether a species is invasive and non-native and therefore whether a control agreement should be entered into. Powers of entry will be available to allow such determination. Agreements may provide for proportionate operations to be undertaken, identify the party responsible to carry out works, set the timing of operations as well as payment provisions. Importantly, liability for an environmental authority is limited.
Owners that fail to comply with or refuse an offer to enter an agreement or fail to enter one after 42 days will face the spectre of a species control order setting out proportionate requirements. Orders may be appealed within a 28 day period and failure to comply with an order will carry criminal liability.
These provisions will be of most interest to major private and public landowners in England and Wales and will add another mechanism for dealing with land in addition to civil sanctions that have been heavily promoted over the last few years in environmental circles and through planning conditions.
The provisions must be accompanied by a code of practice which I would expect to reflect those currently used in Scotland which already has similar provisions in place. We will have to wait and see.