Report on a Workshop to review the effectiveness of statutory regimes for Marine Nature Conservation
(2000)
David Tyldesley and Associates in association with Browne Jacobson Solicitors

Summary

 
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.
 
 
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Please cite as: David Tyldesley and Associates in association with Browne Jacobson Solicitors, (2000), Report on a Workshop to review the effectiveness of statutory regimes for Marine Nature Conservation