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Explanatory Notes to Natural Environment and Rural Communities Act 2006
2006 Chapter 16 |
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These notes refer to the Natural Environment and Rural Communities Act 2006 (c. 16) which received Royal Assent on 30 March 2006 NATURAL ENVIRONMENT AND RURAL COMMUNITIES ACT 2006 _________________ EXPLANATORY NOTES INTRODUCTION 1. These explanatory notes relate to the Natural Environment and Rural Communities Act which received Royal Assent on 30 March 2006. They have been prepared by the Department for Environment, Food and Rural Affairs ("Defra") in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the contents of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given. 3. In addition to these notes Defra has prepared four documents showing how certain Acts, or parts of Acts, have been amended by this Act. The Acts, or parts of Acts, are: Parts 1 to 3 of the National Parks and Access to the Countryside Act 1949; the Countryside Act 1968; the Wildlife and Countryside Act 1981; and Part 7 of the Environment Protection Act 1990. The documents are available on Defra's website, and are currently located at http://www.defra.gov.uk/rural/ruraldelivery/bill/default. 4. They are not published by authority and users should verify for themselves whether any provision contained in them is in force or whether it has been amended or repealed by subsequent legislation. SUMMARY 5. The Act is primarily intended to implement key aspects of the Government's Rural Strategy published in July 2004; it also addresses a wider range of issues relating broadly to the natural environment. 6. The Act establishes an independent body - Natural England - responsible for conserving, enhancing and managing England's natural environment for the benefit of current and future generations. Natural England brings together the functions of English Nature and certain functions currently performed by the Countryside Agency and the Rural Development Service (a Defra Directorate). Natural England will work in close partnership with other organisations and bodies that have a major role in relation to the natural environment, in particular the Environment Agency, the Forestry Commission, English Heritage and local authorities. 7. The Act also establishes the Commission for Rural Communities ("the Commission"). Some of its staff will come from the Countryside Agency. But several of its functions will be new. The Commission will be an independent advocate, watchdog and expert adviser for rural England, with a particular focus on people suffering from social disadvantage and areas suffering from economic under-performance. It will provide information, advice, monitoring and reporting to Government and others on issues and policies affecting rural needs. 8. The Act also reconstitutes the Joint Nature Conservation Committee and renames and reconstitutes the Inland Waterways Amenity Advisory Council (which becomes the Inland Waterways Advisory Council). 9. In line with the 2004 Rural Strategy, the Act extends both the Secretary of State's funding powers for functions within Defra's remit, and the ability to authorise other bodies to carry out those functions. Public bodies for which Defra is responsible are given the power to enter agreements to enable various other designated bodies to perform functions on their behalf. These various powers are intended to be used to simplify and devolve delivery arrangements and to improve their effectiveness and efficiency. 10. The Act makes provision in respect of biodiversity, pesticides harmful to wildlife and the protection of birds, and in respect of invasive non-native species. It alters enforcement powers in connection with wildlife protection, and extends time limits for prosecuting certain wildlife offences. It addresses a small number of gaps and uncertainties which have been identified in relation to the law on sites of special scientific interest. And it amends the functions and constitution of National Park authorities, the functions of the Broads Authority and the law on rights of way. BACKGROUND 11. The Government set out its proposals for the countryside in the Rural White Paper, published in November 2000. 12. Following the creation of Defra in June 2001, the Secretary of State for Environment, Food and Rural Affairs initiated a number of steps designed to improve the focus and delivery of rural policy. These were:
13. The Government published the full review of the Rural White Paper in January 2004, alongside a report called "Social and Economic Change and Diversity in Rural England" whose purpose was to develop the evidence base for rural policy. 14. The review by Lord Haskins was published in November 2003, having taken evidence from 350 organisations, authorities and groups and received comments from nearly 300 individual recipients of rural policy delivery. The Government gave its initial response to Lord Haskins' report in November 2003, agreeing with Lord Haskins that Defra's delivery structures are confusing and too bureaucratic and centralised, and accepting the thrust of his recommendations. Lord Haskins' review and the Government's response are currently available on the Defra website at: http://www.defra.gov.uk/rural. 15. The Government published its Rural Strategy in July 2004. This contained its detailed response to Lord Haskins' recommendations. It is currently available on the Defra website. 16. Meanwhile, since the publication of the Rural White Paper in 2000, there have also been wider policy papers and reforms that are relevant to rural policy and delivery. In particular, these include:
17. In its 2004 Rural Strategy, the Government made a commitment to publish a draft Bill in Spring 2005 to make the changes in the law needed to give effect to the Strategy. A draft Bill was duly published on 10 February 2005. (See the Draft Natural Environment and Rural Communities Bill, Cm 6460.) The Environment Food and Rural Affairs Select Committee carried out pre-legislative scrutiny of the draft Bill following its publication. The Select Committee published its report on the Rural Strategy and the draft Bill on 26 March 2005 (HC 408-I, 408-II 2004-2005). This report is available on the UK Parliament's website at: www.publications.parliament.uk/pa/cm200405/cmselect/cmenvfru/cmenvfru.htm. 18. The Government's response to the Select Committee's report was published in May 2005 (Cm. 6574) and is available on Defra's website. 19. In relation to rights of way, following its decision that it could not implement section 34A of the Road Traffic Act 1988 (introduced by Schedule 7 to the Countryside and Rights of Way Act 2000), the Government published a consultation paper in December 2003, in which it proposed a series of alternative measures for tackling problems arising from the use of rights of way by mechanically propelled vehicles. In response, the Government received more than 14,000 representations, approximately half of which were from motor vehicle users. After considering these, the Government set out its conclusions and legislative proposals in the 'Framework for Action' document, which was published in January 2005. The consultation paper and 'Framework for Action' are available on Defra's website, and are currently located at: www.defra.gov.uk/wildlife-countryside/cl/publicrow.htm. It is these proposals that gave rise to the main provisions of sections 66 and 67 of this Act. 20. The Act's rights of way provisions also respond to a judgment by the House of Lords (Bakewell Management Ltd v Brandwood [2004] UKHL 14, [2004] 2 AC 519) regarding the creation of rights of way for mechanically propelled vehicles. In that case the House of Lords held that a right of way may arise where mechanically propelled vehicles have used a route for a 20-year period, even where that use is illegal. The Act alters the law so that illegal use of this kind will not create public rights of way. 21. In relation to the criteria for designating National Parks and the meaning of "natural beauty", the Act's provisions also respond to the High Court judgment of 3 November 2005 in the case of Meyrick Estate Management Ltd v Secretary of State for Environment, Food and Rural Affairs [2005] EWHC 2618 (Admin) regarding the designation of land as part of the New Forest National Park. THE ACT Part 1: Natural England and the Commission for Rural Communities 22. Part 1 and Schedules 1 to 3 establish two new independent non-departmental public bodies ("NDPBs"), Natural England and the Commission for Rural Communities ("the Commission"). They also provide for the dissolution of two existing NDPBs, namely, English Nature and the Countryside Agency. 23. As mentioned in the summary, Natural England brings together the functions of the two existing NDPBs and the Rural Development Service ("RDS"). RDS's mainly regional staff of about 1500 will become employees of Natural England (and so will be public sector employees instead of being civil servants). Most of the functions that RDS staff have performed on behalf of the Secretary of State will still be carried out by them, but as employees of Natural England. This is because the intention is that any RDS functions that derive from legislation will be the subject of long term service delivery agreements made between the Secretary of State and Natural England under Chapter 1 of Part 8 of this Act. 24. Part 1 provides for the transfer of property, rights and liabilities in connection with the dissolution of English Nature and the Countryside Agency. This Part also confers power to make transfers in the future between Natural England, the Commission and a Minister of the Crown. This power is exercisable for the efficient management of property, rights and liabilities. Part 2: Nature conservation in the UK 25. Part 2 and Schedule 4 reconstitute the Joint Nature Conservation Committee as a UK-wide organisation, and make other changes to its remit. Part 3: Wildlife etc. 26. Part 3 makes provision in respect of biodiversity, pesticides harmful to wildlife, the protection of birds and invasive non-native species. It also introduces Schedules 5 and 6 which make provision in relation to enforcement powers in connection with wildlife and time limits for proceedings in respect of certain wildlife offences. Part 4: Sites of special scientific interest 27. Part 4 addresses a small number of gaps and uncertainties which have been identified for sites of special scientific interest ("SSSIs"). Specifically it creates a new offence for certain authorities (broadly speaking, public bodies and their employees) to permit the carrying out of an operation which damages an SSSI without reasonable excuse. It also creates a related offence of intentionally or recklessly destroying or damaging an SSSI's flora, fauna, or geographical or physiographical features without reasonable excuse. 28. Part 4 also contains provisions dealing with the effects of failure to serve notices on all the correct persons when notifying or denotifying an SSSI. It empowers Natural England and the Countryside Council for Wales to put up notices and signs relating to SSSIs, and makes it an offence to intentionally or recklessly, and without reasonable excuse, damage, destroy or obscure those notices or signs. Part 5: National Parks and the Broads 29. Part 5 responds to the High Court judgment of 3 November 2005 in the case of Meyrick Estate Management Ltd v Secretary of State for Environment, Food and Rural Affairs [2005] EWHC 2618 (Admin), clarifying what factors may be taken into account when designating a National Park. 30. Part 5 also amends the functions and the constitution of National Park authorities and the functions of the Broads Authority, and enables emergency funding to be given to National Park authorities and the Broads Authority if need be. Part 6: Rights of way 31. Under current law, evidence of use by non-mechanically propelled vehicles of a route for a 20 year period or a dedication for such use gives rise to a public right of way for all vehicles and this public right of way can be recorded on the definitive map and statement as a byway open to all traffic. (The "definitive map and statement" is a document kept by a local authority which shows footpaths, bridleways, restricted byways and byways open to all traffic.). 32. In Bakewell Management Ltd v Brandwood [2004] UKHL 14, [2004] 2 AC 519, the House of Lords decided that a right of way may arise where mechanically propelled vehicles have used a route for the 20-year period, even where that use was illegal. Use of footpaths or bridleways by mechanically propelled vehicles has been illegal since the 1930's. Part 6 halts the implied creation of new public rights of way for mechanically propelled vehicles, preventing post-1930 use of a way by a mechanically propelled vehicle from giving rise to any future public right of way. 33. Part 6 also extinguishes existing public rights of way for mechanically propelled vehicles, where those rights are not already recorded on the definitive map and statement, although this is subject to certain exceptions. 34. Property owners and others with an interest in land may have been relying on unrecorded public vehicular rights of way for access to that land. Part 6 ensures that, if the public right of way for mechanically propelled rights is extinguished, these people are provided with a private right of way to access the land by mechanically propelled vehicle. 35. All claims made under Part 3 of the Wildlife and Countryside Act 1981 to establish new rights for mechanically propelled vehicles which were lodged before 20 January 2005 (in England) or 19 May 2005 (in Wales) will be preserved and dealt with under the old law. So also will applications that were lodged after the relevant date but have reached the stage of being determined by the surveying authority. So too will applications lodged by landowners who want to maintain access to their property by mechanically propelled vehicle. 36. Part 6 also amends provisions of the Highways Act 1980 that deal with the creation of public rights by a period of use. One purpose of the amendments is to make clear that use by non-mechanically propelled vehicles (such as pedal cycles) can still give rise to a new public right of way for non-mechanically propelled vehicles. Another is to clarify the date on which a public right to use a way is to be regarded as brought into question (for the purpose of calculating the length of the period of use, and thus whether or not a new public right of way has been created) in a case where the public right has been brought into question by an application to modify the definitive map and statement. 37. Finally, Part 6 includes provision to enable National Park authorities to make traffic regulation orders and other orders regulating traffic, in relation to recorded byways, footpaths and bridleways and unsealed carriageways in National Parks. Part 7: Inland waterways 38. Part 7 re-constitutes the Inland Waterways Amenity Advisory Council by severing its administrative connections with British Waterways and setting it up as an independent body supported by Defra (or, in Scotland, by the Scottish Executive). Part 7 replaces the Council's existing statutory advisory functions with new, wider terms of reference enabling it to advise Government, navigation authorities and other interested persons about the inland waterways generally. The Council is renamed the Inland Waterways Advisory Council to reflect its new role. The Act does not change the Council's existing functions as a statutory consultee. Part 8: Flexible administrative arrangements 39. Chapter 1 of Part 8 enables the Secretary of State to make agreements with bodies listed in Schedule 7 ("designated bodies") for certain types of function to be performed by those bodies. Designated bodies also have the power to authorise other designated bodies by agreement to perform their functions. In both situations the relevant function must be either a Defra or Defra-related one that is compatible with the purposes of the receiving body. 40. As mentioned above, this Chapter will enable Natural England to be authorised to carry out activities currently carried out by the Rural Development Service on behalf of the Secretary of State. 41. Chapter 2 of Part, and Schedules 8, 9 and 10, confer power to establish boards for the purpose of helping to develop and promote agricultural and related industries. This Chapter also contains power to abolish certain existing agricultural levy bodies that are within Defra's remit (namely, the British Potato Council, the Home-Grown Cereals Authority, the Horticultural Development Council, the Meat and Livestock Commission and the Milk Development Council). These provisions are intended to enable action to be taken in the light of the Radcliffe Review of Agricultural and Horticultural Levy Bodies. This was published in October 2005, with document reference PB 11427, and is currently to be found at: www.defra.gov.uk/corporate/consult/levy-bodies/index.htm. 42. Chapter 3 confers a wide power to enable financial assistance to be given by the Secretary of State for any purposes connected with Defra activities. Part 9: Miscellaneous 43. Various Acts, apart from the Act dealing with the designation of National Parks, refer to areas of natural beauty. Section 99 clarifies what may be taken to contribute to natural beauty for the purposes of such references. This section was included in this Act as part of the response to the Meyrick case mentioned above. 44. Section 100 amends byelaw-making powers relating to flood defence and the drainage system more generally, so that they can take environmental matters into account. 45. Section 101 provides for the abolition of certain defunct statutory committees. Part 10: Final provisions 46. Part 10, as well as providing standard provisions in relation to transitional arrangements, commencement and extent, introduces two Schedules: Schedule 11 which contains minor and consequential amendments, and Schedule 12 which contains repeals. TERRITORIAL EXTENT 47. Section 108 deals with extent. 48. Part 1 (Natural England and the Commission for Rural Communities) extends to England and Wales only. But section 1(2) makes it clear that, except where expressly otherwise provided, Natural England's functions are exercisable only in relation to England. Similarly, the Commission's general purpose relates to England only. 49. Part 2 (nature conservation in the UK) extends to Scotland and Northern Ireland as well as England and Wales. 50. Part 3 (wildlife etc.), extends to England and Wales only, except that its amendments to the Wildlife and Countryside Act 1981 (including those in Schedule 5) extend also to the territorial waters adjacent to England and Wales, and section 52 and Schedule 6 (wildlife offences: time limits for proceedings) extend to any place to which the enactments amended by Schedule 6 extend. 51. Parts 4 (sites of special scientific interest), 5 (National Parks and the Broads) and 6 (rights of way) extend to England and Wales only. 52. Part 7 (inland waterways) extends to England and Wales, and Scotland. 53. All of Part 8 (flexible administrative arrangements) extends to England and Wales. Chapter 2 (powers to reform agricultural etc. bodies) extends also to Scotland and Northern Ireland. Chapter 3 (financial assistance) extends also to Northern Ireland, but it should be noted that that Part does not confer power to give financial assistance in respect of devolved matters. 54. In Part 9 (miscellaneous), section 98 (byelaws relating to land drainage) extends to England and Wales only and section 99 (abolition of certain agricultural etc. committees) extends to the whole of the United Kingdom. 55. Part 10 (final provisions) extends to England, Wales, Scotland and Northern Ireland as appropriate. Amendments, repeals and revocations in Schedules 11 and 12 have the same extent as the provision to which they relate, or as provided in the Schedules. COMMENTARY ON SECTIONS Part 1: Natural England and the Commission for Rural Communities Chapter 1: Natural England Constitution and general purpose Section 1: Constitution 56. This section establishes Natural England, dissolves the Countryside Agency and English Nature and introduces Schedule 1. 57. Schedule 1 sets out the constitution of Natural England, and includes provisions about its status, membership, chief executive and other employees, pay and pensions, procedure, accounts and annual reports. 58. The functions of English Nature and the Countryside Agency are transferred to Natural England, subject to the provisions of the Act. An example of a function that is not transferred is the function of the Countryside Agency under section 1 of the Miscellaneous Financial Provisions Act 1983, under which the Agency was under a duty to further social and economic development in rural areas. 59. Natural England may have functions which are not spelt out in Part 1. For example, it may have functions under legislation amended by Schedule 11, or under European Community schemes or EC Regulations. Section 2: General purpose 60. Subsection (1) sets out that Natural England's general purpose is to ensure that the natural environment is conserved, enhanced and managed for the benefit of present and future generations, thereby contributing to sustainable development. The terms "natural environment" and "benefit" are not defined but are meant to be broad and encompassing, going wider than the specific purposes listed in subsection (2), so that the natural environment could be found in towns in open spaces as well as in the countryside. The reference in subsection (1) to sustainable development indicates that Natural England is meant to seek solutions which, while achieving environmental benefits, also provide long-term economic and social benefits, and avoid untoward economic and social impacts. 61. Subsection (2) lists specific matters covered by the general purpose. Those matters include ones which have been purposes of the Countryside Agency and English Nature and aims of the Rural Development Service. Subsection (2) is not intended to be a comprehensive or hierarchical list. Natural England will also be able to pursue anything which falls within its general purpose as set out in subsection (1). 62. Subsection (2)(a) provides that the general purpose includes promoting nature conservation and protecting biodiversity. "Nature conservation" is defined in section 30 as the conservation of flora, fauna or geological or physiographical features. 63. Subsection (2)(b) sets out a purpose of conserving and enhancing the landscape. This includes, but goes wider than, conserving the natural beauty of the landscape. It could for example cover conserving field boundaries (such as hedgerows and dry stone walls), and monuments, buildings and sub-surface archaeological features which contribute to the landscape. Natural England will be able to conserve and enhance the English landscape for aesthetic, cultural and historic purposes as well as those carried out for habitat protection purposes. 64. Subsection (2)(c) and (d) provides that Natural England's general purpose includes securing the provision and improvement of facilities for the study, understanding and enjoyment of the natural environment, as well as encouraging open-air recreation and promoting access to the countryside and open spaces. These purposes are similar to the purposes of the Countryside Agency and English Nature under the National Parks and Access to the Countryside Act 1949 ("the 1949 Act"), the Countryside Act 1968 ("the 1968 Act") and the Wildlife and Countryside Act 1981 ("the 1981 Act"). 65. Subsection (2)(e) provides that Natural England's general purpose includes contributing to social and economic well-being through management of the natural environment. 66. Subsection (3) makes clear that the purpose in subsection (2)(e) may be carried out by working with local communities. | |
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