Section 49: Registration etc. of certain captive birds

132.     This section amends section 7(3A) of the 1981 Act and makes it an offence to keep or have in one's possession any bird listed in Schedule 4 to the 1981 Act within 5 years of having been convicted of an offence under section 7(1) of the 1981 Act. Under section 7(1) it is an offence to keep or have in one's possession any bird included in Schedule 4 to the 1981 Act which has not been registered and ringed or marked in accordance with regulations made by the Secretary of State.

Invasive non-native species

Section 50: Sale etc. of invasive non-native species

133.     This section introduces a new section 14ZA into the 1981 Act.

134.     Under section 14ZA(1), it is an offence to sell, offer or expose for sale, or to have in one's possession or transport for the purpose of sale, any animal or plant to which the section applies or anything from which such an animal or plant can be propagated, such as an egg or a seed. Under section 14ZA(2) it is also an offence to publish or cause to be published any advertisement for the purchase or sale of these animals and plants.

135.     Section 14ZA(3) sets out the animals and plants to which the offences in section 14ZA(1) and (2) apply. These are live animals and plants which are included in section 14(1) or (2) of the 1981 Act (animals and plants which must not be released etc. into the wild) and which have been prescribed by an order made by the Secretary of State.

136.     Under section 14ZA(5) there is a defence available to these new offences where the accused took all reasonable steps and exercised all due diligence to avoid committing the offence.

Section 51: Codes of practice in connection with invasive non-native species

137.     This section introduces a new section 14ZB into the 1981 Act 1981 which gives the Secretary of State the power to issue codes of practice, or approve a code of practice issued by others, relating to non-native animal and plant species. It is intended that the codes will be used to provide recommendations, advice and information on how to stop the damage caused by non-native animals and plants.

138.     Failure to comply with such a code is not in itself an offence; however it may be used as admissible evidence in any criminal or civil proceedings and a court must take account of a failure to comply with the code where it considers this to be relevant. For example, in proceedings for the release of a non-native species prohibited under section 14(1) of the 1981 Act, compliance with the code could be used to decide whether the accused may rely on the due diligence defence contained in section 14(3).

Enforcement etc of provisions relating to wildlife

Section 52: Enforcement powers in connection with wildlife

139.     This section introduces Schedule 5, which inserts various new sections relating to enforcement into the 1981 Act, and applies enforcement provisions under the 1981 Act to the other four main Acts that deal with licensing for the protection of wildlife: the Destructive Imported Animals Act 1932, the Conservation of Seals Act 1970, the Deer Act 1991 and the Protection of Badgers Act 1992.

Part 1 of Schedule 5 - Amendments of the 1981 Act

140.     The Countryside and Rights of Way Act 2000 introduced for the first time the ability for wildlife inspectors to check for compliance with licences and enforce certain specified provisions of Part 1 of the 1981 Act alongside the police. Two new sections were introduced into the 1981 Act, sections 19ZA (enforcement: wildlife inspectors) and 19ZB (power to take samples).

141.     Part 1 of Schedule 5 inserts a number of new sections in the 1981 Act, which take the place of existing sections 19ZA and 19ZB (which are being repealed).

Police powers enhanced

142.     Schedule 5 amends the existing enforcement powers of the police in section 19 of the 1981 Act and, in a new section 19XA inserted in the 1981 Act, gives the police revised powers in connection with taking samples in place of their powers in section 19ZB(1) and (2). (In addition, Part 4 of Schedule 5 extends the police power of entry under warrant currently contained in section 19(3) of the 1981 Act to offences under other Acts. This is explained below.)

Wildlife inspector powers enhanced

143.     Wildlife inspectors are currently authorised under section 19ZA(1) of the 1981 Act. Under the Schedule 5 amendments, they will in future be authorised under a new section 18A. The powers of the inspectors currently found in sections 19ZA and 19ZB(3) and (4) are re-enacted and extended under new sections 18B and 18C for what are to be known as "Group 1 offences", and under new sections 18D and 18E for what are to be known as "Group 2 offences".

144.     The "Group 2 offences" are those currently dealt with under sections 19ZA and 19ZB(3) and (4) of the 1981 Act. These offences mainly relate to licensing of captive, ringed and registered birds, and certain other licences for other animals and plants. Many captive birds are kept in dwellings, and therefore section 18D includes a power for inspectors to enter dwellings except in the case of enforcement of section 14 of the 1981 Act (introduction of new species etc.).

145.     The "Group 1 offences" are offences not covered by the existing powers of enforcement of the wildlife inspectors under Part 1 of the 1981 Act. These offences mainly deal with animals, birds and plants that are found in the wild and of which it is rare for any person to have possession or control.

146.     Offences in connection with all enforcement powers (whether in relation to the police or the wildlife inspectors) appear in new section 19XB; and these offences include obstructing a wildlife inspector acting in the exercise of his powers, not providing reasonable assistance, failure to make specimens available for inspection and falsely pretending to be a wildlife inspector.

147.     Finally, paragraph 5 of Schedule 5 amends section 21 of the 1981, which sets out the penalties for the offences in new section 19XB.

Part 2 of Schedule 5 - Enforcement of four other Acts

148.     The same officials authorised by the Secretary of State to act as wildlife inspectors under the 1981 Act will also monitor and enforce compliance with the four other main pieces of wildlife legislation in England and Wales mentioned above (the Destructive Imported Animals Act 1932, the Conservation of Seals Act 1970, the Deer Act 1991 and the Protection of Badgers Act 1992). This Part of Schedule 5 extends the enforcement powers available to the inspectors for "Group 1 offences" under the 1981 Act (as amended by this Act) to the others mentioned above, so that there is a common regime for enforcing these various pieces of wildlife legislation. This should make it simpler to train officials and issue appropriate authorisations for inspectors.

Part 3 of Schedule 5 - Codes of Practice

149.     The Secretary of State may issue a code that details how a wildlife inspector will conduct himself before, during and after he has entered premises under the powers under Part 1 of the 1981 Act or any of the four Acts mentioned above. The inspector must have regard to such code, and it will be admissible in evidence in any proceedings where it can be taken into account by a court.

Part 4 of Schedule 5 - Constable's search warrant power extended to certain other Acts

150.     Part 4 of Schedule 5 removes certain disparities between the four Acts' enforcement powers. Currently, only police have powers of entry under the Deer Act 1991 and the Protection of Badgers Act 1992 (except where there is a licence agreement that specifies that authorised officials of English Nature or the Secretary of State may enter the premises to monitor the terms of the licence). Authorised inspectors have certain limited powers of entry in connection with the enforcement of the Destructive Imported Animals Act 1932 (namely, police can seize wild musk rats, coypu and mink). Under the Conservation of Seals Act 1970 police have powers to stop and search persons that are suspected of an offence of killing or injuring seals without a licence, and authorised persons representing Secretary of State may enter land for the purpose of obtaining information relating to seals. Part 4 of Schedule 5 therefore extends police powers of entry under warrant found in section 19(3) of the 1981 Act to the investigation of offences under these other wildlife licensing Acts.

Section 53: Wildlife offences: time limit for proceedings

151.     This section introduces Schedule 6. Schedule 6 alters the present requirement to bring summary proceedings for certain offences concerning wildlife and habitats within six months of the commission of the offence. In relation to the legislation detailed in the Schedule, summary proceedings must be brought within six months of the acquisition of evidence sufficient in the prosecutor's opinion to warrant proceedings, and in any event within two years of the commission of the offence.

Section 54: Application of Part 1 of the 1981 Act to Crown

152.     This section introduces a new section 66A into the 1981 Act which, with specified exceptions, applies the provisions of Part 1 of the Act to the Crown. This is required by European law obligations under the Wild Birds Directive (79/409/EEC) and the Habitats Directive (92/42/EEC).

153.     Where the Crown, for example a government department, contravenes any provision of Part 1, it will not be criminally liable for the action (or lack of action) in question; rather it will be open to anyone with an interest in the contravention to apply to the High Court for a declaration that the activity was unlawful. However, Part 1 will apply to people in the service of the Crown, such as civil servants, as it applies to any other person. Part 1 will not apply to the Queen in her personal capacity and this includes Her Majesty in right of the Duchy of Lancaster and the Duke of Cornwall.

154.     Powers of entry for enforcement purposes granted to police constables and wildlife inspectors under sections 18A to 19XA of the 1981 Act will not apply to premises occupied by the Crown. For example, there will be no rights of entry for the purposes of enforcing the 1981 Act over land occupied by the Ministry of Defence.

Part 4: Sites of special scientific interest (SSSIs)

Section 55: Offences in connection with SSSIs

155.     This section introduces two new offences concerning SSSIs.

156.     Subsection (2) provides that where a section 28G authority (as defined in section 28G of the 1981 Act - broadly speaking, any public body or its employees), fails to comply with its obligations under section 28I of the 1981 Act (notification to Natural England or, as the case may be, the Countryside Council for Wales, before permitting operations likely to damage an SSSI, etc.), it commits an offence unless it had a reasonable excuse. Emergency situations qualify as a reasonable excuse, provided notification is given as soon as practicable after the permission was given.

157.     Subsection (3) provides a new offence of intentionally or recklessly destroying or damaging the listed features of a SSSI or disturbing its listed fauna, without reasonable excuse. This offence is in addition to that in section 28P(6) of the 1981 Act. The difference between them is that commission of this new offence does not require knowledge that what was destroyed, damaged or disturbed was within an SSSI. Accordingly, it carries a lesser penalty.

158.     Subsection (5) provides that the court's powers to make a restoration order under section 31 of the 1981 Act also apply to convictions under the new offence created by subsection (3).

Section 56: Denotification

159.     This section amends section 28D of the 1981 Act to allow the relevant conservation body to denotify a site of special scientific interest, or part of a site, where it is "not" of special interest. Before this amendment, denotification could only take place if a site, or part of it, was "no longer" of special interest.

Section 57: Effect of failure to serve certain notices

160.     This adds a new section 70B to the 1981 Act.

161.     Subsections (1) and (3) of section 70B provide that where, in relation to a piece of land, a relevant conservation body has taken all reasonable steps to serve on every owner and occupier one of the notices listed in subsection (2), but has failed to do so, the notice will remain valid. Section 70B applies to notices served both before and after the Act comes into force.

162.     Subsection (4) of section 70B makes provision for calculating the time when a notice is deemed to have been served under section 28 to 28Q of the 1981 Act. A notice is deemed to have been served when the relevant conservation body has taken the last of the reasonable steps in subsection (1).

163.     Subsection (5) requires a relevant conservation body to serve a notice on an owner or occupier of land when it becomes aware that it has failed to do so.

164.     Subsection (6) provides that owners and occupiers are not liable for anything they have done or have omitted to do before section 70B comes into effect (paragraph (a)). Even once section 70B has come into effect, the fact that a notice is deemed to be valid under subsection (3) does not in itself render them liable for offences under subsections 28P(1) and 28Q(4) until they have been served with a copy of the notice (paragraph (b)).

Section 58: Notices and signs relating to SSSIs

165.     This section adds a new section 28S to the 1981 Act, conferring a general power on Natural England (or, in Wales, the Countryside Council for Wales) to erect, maintain and remove signs or notices about an SSSI, on land included in that SSSI. (The application of section 28S to Wales is achieved by section 27AA of the 1981 Act, inserted by paragraph 78 of Schedule 11.) Under section 28S, it will be an offence to, without reasonable excuse, intentionally or recklessly take down, damage, destroy or obscure such a sign or notice.

166.     Subsection (2) ensures that the powers of entry to land provided by section 51 of the 1981 Act will be available for the purposes of putting up, etc. signs under section 28S.

Part 5: National Parks and the Broads

Section 59: Criteria for designating National Parks

167.     This section clarifies the requirements that are contained in section 5 of the National Parks and Access to the Countryside Act 1949 for designating land in a Park by adding a new subsection (2A) which aligns the criteria with the purposes as set out in section 5(1) of that Act. When considering the natural beauty of land, Natural England may take into account its wildlife and cultural heritage. Additionally, when considering the opportunities that extensive tracts of land afford for open-air recreation, Natural England may take into account the extent to which it is possible to promote opportunities for the understanding and enjoyment of their special qualities by the public. This clarification seeks to reinstate the working assumptions that had been made by those involved in the designation process prior to the decision in Meyrick Estate Management Ltd v Secretary of State for Environment, Food and Rural Affairs [2005] EWHC 2618 (Admin).

Section 60: Procedure for orders designating National Parks

168.     This section makes various amendments to the 1949 Act.

169.     Subsections (2) and (3) bring up to date the terminology describing the types of principal local authority that must be consulted on the designation or alteration of National Park boundaries. As well as updating old terminology, the subsections include a new requirement to consult parish councils in England and community councils in Wales.

170.     Subsection (4) repeals section 9(2) of the 1949 Act. Section 9(2) enabled regulations to be made allowing proceedings preliminary to orders designating and varying National Parks to be taken concurrently with proceedings required in connection with development plans.

171.     Subsection (5) amends Schedule 1 to the 1949 Act to make it clear that only objections by principal councils (and not parish or community councils) trigger an automatic public inquiry into National Park designation or boundary amendment. This will, for example, prevent an objection by a single parish council automatically triggering a public inquiry into the designation of a National Park or amendment to a National Park boundary.

Section 61: Members of National Park authorities

172.     This section amends various provisions of Schedule 7 to the Environment Act 1995 relating to the membership of National Park authorities. The precise make-up of each National Park authority is set individually by secondary legislation. However, the general mix of members of each authority must be in keeping with a basic formula which is set out in Schedule 7 to the 1995 Act. Subsections (1) and (2) simplify the basic formula so that any composition in which (in Wales) local authority members outnumber "national" members or (in England) local authority members and parish members together outnumber "national" members will be possible. "National" members are the members who are not local authority or parish members. They are appointed by the Secretary of State.

173.     Subsections (3) to (5) allow councillors (or chairs of parish meetings) who are waiting to be re-appointed or replaced on a National Park authority following an election, to nevertheless continue to act as National Park authority members, subject to an upper limit of three months. The subsections are intended to minimise interregnums between members.

174.     Subsection (6) allows "national" members of National Park authorities to be appointed for up to four years at a time rather than the current three years. This brings them into line with local authority and parish members who normally serve four-year terms.

Section 62: Expenditure by National Park authorities

175.     The Environment Act 1995 added a provision to the 1949 Act which stated that National Park authorities should not incur "significant" expenditure in support of their socio-economic duty. This has caused uncertainty and therefore section 62 removes this qualification.

Section 63: Notification of agricultural operations on moor and heath in National Parks

176.     This section transfers the power from the Secretary of State to a National Park authority to make an order under section 42 of the Wildlife and Countryside Act 1981. An order so issued places a temporary prohibition on ploughing, and on other specified agricultural or forestry operations on moor or heath in National Parks, and may be issued if those operations are likely to affect the land's character or appearance.

Section 64: Functions of Broads Authority and others in relation to the Broads

177.     This section amends the Norfolk and Suffolk Broads Act 1988. It aligns the wording of the first two purposes of the Broads Authority and other relevant authorities with that of the first two purposes of the National Parks. The purposes of the different areas had previously shared common wording until the National Park purposes (in section 5(1) of the 1949 Act) were amended in 1995.

Section 65: Emergency financial assistance

178.     This section adds any National Park authority and the Broads Authority to the list of bodies in section 155(4) of the Local Government and Housing Act 1989. This gives these authorities the ability to apply to a fund for emergency assistance following a natural disaster.

Part 6: Rights of way

Section 66: Restriction on creation of new public rights of way

179.     This section limits the creation of new public rights of way for mechanically propelled vehicles. It will prevent use over a period of 20 years by any vehicle from giving rise to a public right of way for mechanically propelled vehicles in the future. Instead, new public rights of way for mechanically propelled vehicular rights will be created only if they are expressly provided for or if they relate to a road intended to be used by mechanically propelled vehicles and constructed for that purpose under an enactment.

180.     Subsection (2) is intended to ensure that where there is illegal use of a way by mechanically propelled vehicles, that use cannot give rise to "lower" public rights of way (such as footpath, bridleway or restricted byway rights).

Section 67: Ending of certain existing unrecorded public rights of way

181.     This section extinguishes (subject to stated exceptions) unrecorded rights of way for mechanically propelled vehicles. This extinguishment prevents these rights being used to add new byways open to all traffic to the definitive map and statement for an area.

182.     Some of the exceptions are set out in subsection (2). Exception (a) ensures that existing rights of way for mechanically propelled vehicles are not extinguished if the main lawful use of the way for 5 years preceding commencement has been use for mechanically propelled vehicles. Exception (b) ensures that unclassified and other minor roads are not brought within the scope of the extinguishment. Exceptions (c) and (d) are identical to the exceptions in section 61. Exception (e) ensures that a where rights were created by a qualifying period of use by mechanically propelled vehicles during a period prior to 1 December 1930, those vehicular rights are not extinguished.

183.     Some more exceptions are set out in subsection (3). These exceptions relate to cases where an application to record a public right of way for mechanically propelled vehicles has already been lodged. Under paragraph (a), all applications made under Part 3 of the 1981 Act to record rights for mechanically propelled vehicles which were lodged before the relevant date will be preserved and dealt with under the old law. The relevant date is 20 January 2005 (in England) and 19 May 2005 (in Wales) (see subsection (4)). Where such applications have been lodged after the relevant date and have reached the stage of being determined by the surveying authority they will also be processed under the existing law (see paragraph (b)), as will applications in situations where landowners need the public right of way for mechanically propelled vehicles in order to access their property (see paragraph (c)).

184.     In addition, subsection (5) ensures that where an unrecorded public right of way for mechanically propelled vehicles is relied upon at the time of commencement to enable access to land to be obtained by a person with an interest in the land or by a lawful visitor to that land, that public right becomes a private right of way for mechanically propelled vehicles for the benefit of that land. (This will only be relevant if subsection (3)(c) does not apply.)

185.     This section does not apply to areas in London where there is no definitive map and statement.

Section 68[a]: Presumed dedication of restricted byways and use by pedal cycles etc.

186.      Section 31 of the Highways Act 1980 enables a public right of way to be treated as having been created as a result of a period of use for 20 years. This section amends section 31 of the 1980 Act so as to ensure that use of a way by a non-mechanically propelled vehicle (such as a pedal cycle) is capable in appropriate circumstances of giving rise to a public right of way for non-mechanically propelled vehicles (a restricted byway).

Section 69[b]: Presumed dedication and applications under section 53(5) of the 1981 Act

187.     This section also amends section 31 of the Highways Act 1980. This time, the purpose is to clarify the application of section 31 in cases where an application is brought to modify the definitive map and statement so as to show a public right of way. Under section 31, the period of use is calculated by reference to the time when the right of the public to use the way is brought into question. Section 69[c] amends section 31 so as to make clear that, where the right of the public to use the way is brought into question by an application to modify the definitive map and statement, the date on which right of the public is brought into question is to be treated as being the date on which the application is made.

Section 70: Supplementary

188.     Subsection (1) amends section 53(3) of the 1981 Act. The purpose of this amendment is to allow the recording on the definitive map and statement for the area of a newly discovered right of way which is a restricted byway.

189.     Subsections (2) to (7) amend section 34 of the Road Traffic Act 1988. Section 34 makes it an offence to drive a mechanically propelled vehicle on a footpath, bridleway or restricted byway. The amendments create a limited exception for a person who has an interest in land or is a visitor to land and who drives on a restricted byway which came into being under the Countryside and Rights of Way Act 2000 and which before it became a restricted byway was in use for obtaining access to land. Subsection (7) clarifies that the phrase "visitor to the land" does not include those exercising their public rights in relation to access land under section 1 of the Countryside and Rights of Way Act 2000, or other public rights of access listed in section 15(1) of that Act.

190.     Subsection (8) recognises that the new section 34A of the Road Traffic Act 1988, which was to be inserted by Schedule 7 to the Countryside and Rights of Way Act 2000 is not going to be brought into force, by repealing the relevant provision in Schedule 7. The Government announced in a written Parliamentary statement of 9 December 2003 (Hansard Vol. 415 Col. 80WS) that it would not be implementing section 34A. This is on the basis that the provision appears incompatible with Article 6(2) of the European Convention on Human Rights.