1.1 The workshop and this report were
commissioned on behalf of the Secretary of State by the European
Wildlife Division of the Department of Environment, Transport and
the Regions (DETR). The objective is to report on a workshop held
to obtain expert views as to the effectiveness of statutory regimes
for marine nature conservation.
1.2 The workshop was hosted by the DETR but
independently facilitated and led by David Tyldesley and
Associates, environmental planning consultants with the assistance
of Browne Jacobson, Solicitors. The Workshop was held on 7th
November and was attended by 29 people, 23 of whom represented 19
bodies with regulatory or statutory advisory functions in the
marine environment.
1.3 There are five basic types of statutory
regimes which potentially may affect or deliver marine nature
conservation. These are:
a] Specific Measures for Nature
Conservation;
b] Control of Plans and Projects;
c] Duties to Have Regard to Nature
Conservation;
d] Discretionary Powers to Help Nature
Conservation; and
e] Protection of Natural Resources.
1.4 Specific measures for nature conservation are
considered to be largely ineffective except for European Marine
Sites. However, there were widely varying views as to the
effectiveness of the Management Schemes for European Marine Sites.
SSSIs were likely to be a more effective measure than they have
been in the past if the changes proposed by the Government in the
Countryside and Rights of Way Bill are enacted. They could be used
more below mean low water.
Marine Nature Reserves were seen to be a failed initiative.
They were over-bureaucratic and unrealistically relied on complete
consensus before designation would be progressed; the legislation
was too prescriptive. Generally site designation approaches were
not favoured, there was a recognition that obligations for nature
conservation should extend throughout the marine environment.
Species protection was not considered to be effective in the
marine environment. It relied on a level of knowledge about the
species that did not generally exist and on levels of enforcement
that were unrealistic.
Regulating trade in endangered species, however, was excluded
from these criticisms.
1.5 Some controls over plans and projects in
the marine environment were considered to be very effective, in
particular the provisions of the Habitats Regulations in relation
to European Marine Sites. However, some felt that the Regulations
were over prescriptive and inflexible and there was inconsistency
in their application by different bodies. Others commended the
precautionary approach and felt this could be more widely adopted
in marine environmental controls.
The FEPA controls were also considered to work well. However,
the effectiveness of other regimes for nature conservation was seen
to be very variable, depending mainly on whether EIA was effective
in identifying nature conservation issues. Generally, the EIA
regime is seen as a good provision for nature conservation.
Key weaknesses in the regimes include the multiplicity of
controls and consenting regimes, the number of regulators, the lack
of a lead or coordinating regulator and overlapping
jurisdictions.
There is evidence that some bodies and users of the marine
environment take advantage of these weaknesses and interpret
legislation to suit their own needs. Other bodies are extremely
sensitive about the liability of legal challenge which can be
fostered by the extent of uncertainty.
The inadequate level of knowledge about marine ecology and the
effects of natural and induced change is seen as one of the biggest
problems in delivering nature conservation. Many also believe that
science is not being used in the most appropriate manner in the
assessment and control of proposals.
There was a widespread concern about the lack of an overall
framework, or guidance, in which activities can be assessed and
decisions can be made about the marine environment.
Other problems identified related to the legislation being
largely reactive and piecemeal.; the "least pain approach" adopted
in UK for tackling EU legislation; ownership of the sea bed;
devolution of government in Scotland and Wales; and the lack of
Integrated Coastal Zone Management.
1.6 Provisions imposing duties to have regard
to nature conservation were considered to be of limited
effectiveness for nature conservation because many bodies would do
so anyway. Those that would not be inclined to do so would find the
duty was very easily discharged and it was not an effective
requirement.
1.7 Discretionary powers to help nature
conservation are considered to be of limited effectiveness. The
Minister of Agriculture, Fisheries and Food has used some powers to
restrict certain types of fishing in the Wash. However, other
bodies with these powers rarely if ever have used them because they
would rely on Byelaws, which are seen as cumbersome, expensive and
difficult to enforce; or resources that are not available for
discretionary projects.
1.8 On the whole, controls to protect fish
stocks and prevent pollution are considered to be quite effective
in achieving their purposes but they are difficult to enforce at
sea. The multiplicity of regulation and regulators is, again, a
limiting factor in effectiveness. In 2002 the Common Fisheries
Policies will be amended so that environmental considerations will
be a prime objective. International shipping law is considered to
work relatively well. The EC Directives "bite hard" and all
contribute to the health of the seas.
1.9 In looking for solutions, there is a need
to define "nature conservation" and decide whether it needs to be
distinguished from general environmental conservation. There is a
need to consider marine biodiversity as a whole, not least because
it is an important indicator of the health of the seas.
There is a need for a Vision and to set Objectives through a
clear statement by government, nationally, as to what we are trying
to do for nature conservation. This should be supported by
comprehensive, strong and clear policy guidance, perhaps in a form
similar to the Planning Policy Guidance Notes.
1.10 The vision and strategy could:
a] set goals for stakeholders, programmes and
plans for change - including a framework in which development has a
positive role and activities can continue without unnecessary
restriction;
b] include the international, national and
regional perspectives;
c] mesh the devolved administrations;
d] address the need for better education and
understanding about the marine environment;
e] provide a clear context and justification for
legislative change;
f] provide the context for deciding what processes
/ procedures were necessary to deliver the strategy and thus how
existing ones may need to be changed.
A "duty of care" could be introduced for all sea users but it would
need to bite more effectively than the duties "to take account" of
nature conservation (see para 1.6 above).
1.11 A coordinating body was needed, capable of
overseeing the processes regulating and changing the marine
environment, enforcing the statutory provisions and encouraging all
parties to contribute to the implementation of the strategy in an
integrated way. It should be a multi-disciplinary body with an
understanding of the activities as well as the environment of the
sea. It could take responsibility for identifying the environmental
information needed and available. It could coordinate monitoring
and the acquisition of new information. It could provide a pool of
expertise on the marine environment available to all parties and an
advisory service in respect of environmental impact
assessment.
1.12 However, there was a wide range of views
as to how that body should be created, including a division of DETR
or MAFF, a merger of existing DETR and MAFF teams, a separate
statutory agency or an independent scientific organisation. Others
rejected the idea of a single coordinating body and felt that more
should be done to make existing systems work better before more
widespread change was contemplated.
1.13 There was considerable discussion in the
groups as to whether a designations approach was the most
appropriate means of achieving nature conservation in the marine
environment. Two potential alternatives to this were suggested
which are closer to a complete zoning, or English Nature's "Natural
Areas" approach, moving towards Integrated Coastal Zone
Management.