The Environment (Northern Ireland) Order 2002 | |
2002 No. 3153 - continued | |
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Article 15 provides the Department with the power to make regulations to implement the air quality strategy, and to implement UK obligations under the Community Treaties or other international obligations, or to make more detailed provision for the assessment or management of air quality. Article 16 provides the power to a relevant authority to make recommendations to a District Council in relation to any of its air quality functions. There is also a power given to the Department to issue guidance to a District Council or a relevant authority concerning a District Council's or a relevant authority's functions under Part III. Article 17 applies the provisions of Schedule 2. Article 18 provides a power for the Department to make grants or loans to any body or person carrying out work in relation to reviews, assessments, the drawing up of action plans, and the management of air quality. The Department will determine the amounts paid, and the terms and conditions for any payments, or repayments. Article 19 and Schedule 3 provide persons authorised by enforcing authorities with powers of entry and inspection for the purpose of carrying out functions under Part III. Article 20 deals with offences by a person who obstructs an authorised person in the exercise of his duties. It also states that it is an offence for a person without reasonable excuse to fail to comply with any requirement imposed under Article 19. Article 21 sets out the arrangements for disclosing information obtained under the provisions of Part III. It allows for information to be exchanged between the Department and a relevant authority for the purposes of carrying out any of their functions. It also provides that information shall not be given out if the information relates to a trade secret or is commercially confidential or if the Secretary of State decides that it is against the interests of national security. Article 22 enables regulations to be made to modify the provisions of Part III to enable the United Kingdom to give effect to any Community obligations or any international agreements. Article 23 applies, with the omission of certain words, the provisions of section 20(2) of the Interpretation Act (Northern Ireland) 1954 (c.33) relating to offences by a body corporate. Article 24 states that were a person commits an offence and it is due to the action of another person, that other person may be charged and convicted of an offence regardless of whether proceedings are taken against the first person. Article 25 sets out the rights and obligations of the Crown including Crown premises, in relation to the provision of Part III. Article 26 specifies those regulations, made under Part III which are to be subject to affirmative resolution and those which are to be subject to negative resolution by the Assembly. It also outlines the requirements of a direction given by the Department. Article 27 defines some of the key words and phrases used in Part III. PART IV: AREAS OF SPECIAL SCIENTIFIC INTEREST BACKGROUND AND POLICY OBJECTIVES 33. The purpose of Part IV of the Order is to introduce measures to allow for the better protection and management of Areas of Special Scientific Interest (ASSIs). These sites represent the finest examples of semi-natural habitat and species sites to be found in Northern Ireland due to their fauna, flora or geological/physiographical features. The provisions of this Part will also satisfy the Northern Ireland Executive's Programme for Government (PfG) commitment to have in place, by July 2003, a policy and legislative framework for the protection and management of these sites. 34. The provisions of Part IV will replace the existing provisions pertaining to ASSIs in Part VI of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985. The provisions are also comparable to the legislative provisions introduced to protect ASSI equivalent sites in England and Wales (namely Sites of Special Scientific Interest) as part of the Countryside and Rights of Way Act 2000. They will also help address the requirements of European designated sites by satisfying the requirements of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna (the Habitats Directive) as transposed by the Conservation (Natural Habitats etc.) Regulations (Northern Ireland) 1995. KEY FEATURES 35. The provisions of Part IV seek to establish provisions that will help to better safeguard, protect and manage ASSIs. This aim will be achieved by the following:
36. The Department regards as essential the need to continue the partnership approach with owners and occupiers and will continue to foster good relations and co-operation at all times. CONSULTATION 37. A full public consultation was carried out in two stages. In March 2001 the Department published "Partners in Protection", a review document setting out 20 key issues pertaining to ASSIs and sought comment to inform the Department's development of proposals. 38. As a result of this consultation exercise a total of 35 comments were received with strong support for the introduction of measures from the majority of respondents. On the basis of comments received, the Department devised a number of proposals which were subject to a further round of public consultation. The second consultation produced 31 responses with the vast majority in favour of the proposals detailed.
39. Three options were considered. The first was a "do nothing" option but this was discounted. The existing legislation is deficient in a number of key areas such as measures to avoid damage or deterioration to ASSIs from activities undertaken by landowners or the problems arising from third parties. Fines are also considered inadequate and an ineffective deterrent to protecting the integrity of sites. There could be an adverse impact on biodiversity and the Department's ability to meet its European and International commitments. 40. The second option was a fundamental overhaul of existing legislation to include other nature conservation issues such as wildlife protection and marine conservation. This would be an extremely long and time consuming process leaving sites vulnerable until such time as the new legislation would come into effect. In addition, the Department must ensure compliance as expeditiously as possible with its legislative requirements on European designated sites by improving Northern Ireland legislation on ASSIs and subsequently amending the Regulations that transpose the EC Habitats Directive. 41. The third option was to introduce measures designed solely to ensure more effective protection and management ASSIs. The provisions of Part IV which were finalised following the extensive consultation process will secure that aim in addition to maximising the value of habitats and related species, assisting the delivery of biodiversity targets for Northern Ireland and helping fulfil EC and international obligations. COMMENTARY ON ARTICLES Part IV contains 25 Articles Article 28 enables the Department to declare an Area of Special Scientific Interest. It also requires the Department to notify an ASSI declaration and allow for representations or objections to it. Subject to this, the Department shall confirm (with or without modifications) the declaration or rescind it. Article 29 enables the Department to vary the matters specified in the declaration, other than the area of land concerned, at any time after confirmation. In doing so the Department must inform the district council in whose district the ASSI is located and relevant owners or occupiers and allow them the opportunity to make representations or objections prior to confirming the variation (with or without modifications) or rescinding it. Article 30 enables the Department to increase the area of the ASSI. This will be subject to requirements similar to those outlined for declaration. Article 31 provides a power for the Department to denotify all or any part of an ASSI that is no longer of special interest. This will be subject to requirements similar to Declaration (Article 28) and Declaration of Additional Land (Article 30). Article 32 provides that the owner or occupier of an ASSI shall not carry out any operations specified in the declaration under Article 28 as likely to damage the site unless notice is given to the Department of a proposal to carry out the operations and the Department gives its consent; or the works are carried out under the terms of an agreement with the Department; or under a management notice. The consent may be conditional and time limited. The Department may also, by notice given to the owner or occupier, withdraw or modify the consent in any way. The Department will be required to explain any refusal, modification or withdrawal of consent to the owner or occupier and refer to the right of appeal under Article 33. Article 33 enables a person to appeal where he has been refused consent to carry out operations on an ASSI (this includes a deemed refusal where, after three months, the Department has neither granted nor refused consent). He can also appeal where he has been granted consent subject to conditions or where he is aggrieved by the modification or withdrawal of a consent. The appeal to the Planning Appeals Commission must be made within two months of the decision, or failure by the Department to decide. Article 34 deals with management agreements between the Department and owners or occupiers of land within ASSIs. Article 35 enables the Department to serve a management notice on the owner or occupier where it considers that the features, which make the site an ASSI, are being inadequately conserved or restored. Article 36 enables any person who has been served with a management notice, to appeal against it to the Planning Appeals Commission. Notices may be quashed, varied or confirmed. Article 37 provides that if the Department withdraws or modifies an existing consent to carry out operations, it must offer a payment to an owner or occupier if he suffers loss as a result. The amount of the payment is to be determined by the Department in accordance with guidance given and published by the Department. Any disagreement between the Department and an owner or occupier as to the amount of payment will be referred to and determined by the Lands Tribunal. The Article also provides that the Department may make payments in respect of management agreements. Article 38 imposes a duty on "public bodies", in exercising their functions, to take reasonable steps, consistent with the proper exercise of those functions, to further the conservation and enhancement of the special features of an ASSI. "Public bodies" are defined in paragraph (3) to include Northern Ireland and UK Government Departments district councils, statutory undertakers and other public bodies. Article 39 requires a public body to notify the Department when it propose to carry out operations in the exercise of its functions, which are likely to damage the features of any special interest of an ASSI. This applies equally to works outside an ASSI, which may affect that ASSI. The Department may refuse its assent, or assent to the operation (with or without conditions). Where assent is refused, or the conditions are not acceptable, the public body may proceed with the works provided that they give the Department not less than 28 days notice of the start of the operation. The notice must state how the body has taken into account any advice which the Department has given. It is a requirement that any such operations are carried out so as to cause as little damage as is reasonably practicable, and that the body restore the site to its former condition again, so far as is reasonably practicable if damage does occur. Article 40 applies where a public body has power to grant permissions, including authorisations or consents, for other parties to carry out operations (whether on or outside an ASSI) which are likely to damage the special features of an ASSI. Before granting any such permission they must give the Department not less than 28 days notice. Before making any decision the body must take into account the advice of the Department, which may include advice on conditions to be attached to the permission by virtue of paragraph (5)(b). If the body intends to grant permission against the advice of the Department, it must notify the Department and the permission must allow 21 days before the operations may commence. This would, for example, give the Department an opportunity to contact the applicant to discuss ways of mitigating any effects, or to offer a management agreement. Article 41 gives the Department a compulsory purchase power in relation to land which is an ASSI. This power may only be exercised where the Department cannot secure an agreement for the management of an ASSI or where the terms of such an agreement have been breached in such a way that the land is not being managed satisfactorily and it is necessary therefore for the protection of the special features of the ASSI. Where the Department has acquired the land it may also acquire land for the purpose of a means of access to that ASSI. The Department may then either manage the land or dispose of it to ensure its future management. The Department may also dispose of the land acquired if it no longer requires the land for the purpose it was acquired. Article 42 states that the Department may carry out works and do such other things on land acquired under Article 41 if it considers such works etc necessary for the proper management of the land in accordance with the purposes for which the land was acquired. Article 43 enables the Department to enter into agreement with any owner or occupier of land outside an ASSI in order to protect or enhance or prevent damage to or destruction of the special features inside the ASSI. Article 44 provides the Department with the power to enter onto land for a range of specified purposes. These include assessing whether land should be declared as an ASSI; formulating a scheme for the management of an ASSI in order to conserve its special features; assessing the condition of the features on the site, and ascertaining whether an offence under Article 46 has been committed. It allows for entry to the land by vehicle or boat, and the person entering the land may take equipment or materials with him. The Department's approach will normally be to seek access by agreement with the owner or occupier. The person entering the land must leave it as effectively secured as he found it and the Department will be liable to pay compensation for any damage caused by the exercise of the power of entry. Article 45 gives a power to the Department to make byelaws on any ASSI. Before making any byelaws the Department shall consult the Council for Nature Conservation and the Countryside. Article 46 provides for the creation of offences and penalties in connection with the contravention of the provisions of Part IV. Article 47 enables a court, before which a person has been found guilty of an offence under Article 46 (which relates to the conservation of areas of special scientific interest), to require an offender to make good as far as is practicable the damage he has caused by his activities. Article 48 places a duty on the Department and the Council for Nature Conservation and the Countryside and any other body with functions under Part IV to have due regard to the needs of agriculture, forestry and fisheries. Article 49 sets out the rights and obligations of the Crown in relation to the provisions of Part IV. Article 50 lists the following items which are to be registered in the Statutory Charges Register; any declaration under Article 28(1), any management agreement under Article 34 or any related waiver and any management notice under Article 35. Article 51 provides for the application of the transitional provisions set out in Schedule 4. Article 52 defines some of the key words and phrases used in Part IV. PART V: SUPPLEMENTARY Article 53 provides for the amendment and repeal of a number of statutory provisions consequent on the introduction of the provisions of the Order. SCHEDULES Schedule 1 relates to the provisions of Part II of the Order. Part I lists the specific purposes for which the power in Article may be used and Part II provides supplementary provisions. Schedule 2 relates to the provisions of Part III and sets out detailed procedural instructions relating to consultation requirements, exchange of information, joint exercise of district council functions, public access to information and fixed penalty offences. Schedule 3 relates to the provisions on powers of entry in Part III and sets out detailed procedural instructions for the issue of warrants, obtaining information which may be admissible evidence, securing premises and compensation. Schedule 4 provides a number of transitional provisions in connection with the ASSI provisions of Part IV of the Order. Schedule 5 provides for a number of minor and consequential amendments consequent on the introduction of the Order. Schedule 6 provides for a number of repeals consequent on the introduction of the Order. |
Crown copyright 2004
Prepared: 21 January 2004