Nature conservation duties: More appearance than substance

Environmental Law and Management

Volumn 17, Issue 4, 2005, Pages 162-168

  Roberts, Iain R ^a   Reid, Colin T ^a  

^a UNIVERSITY OF DUNDEE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION; IMPLEMENTATION PROCESS; NATURE CONSERVATION;

EID: 28144449931     PISSN: 10676058     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (118)

1. See generally CT Reid Nature Conservation Law (2nd edn W Green 2002).
2. For example, AL Pillai, CT Reid and AR Black 'Reconciling Renewable Energy and the Local Impacts of Hydro-electric Development' (2005) 7 Env L Rev 110.
3. Hydro-Electricity Development (Scotland) Act 1943 s 9(1).
4. For example, Pipe-lines Act 1962 s 43;
5. Cardiff Bay Barrage Act 1993 s 2(5).
6. For example, Electricity Act 1957 s 33;
7. Water Resources Act 1963 s 101(1).
8. For example, Electricity Act 1989 Sched 9 paral;
9. Coal Industry Act 1994 s 3(7);
10. Water Industry Act 1991 s 3.
11. For example, Forestry Act 1967 s 1 (3A), added by the Wildlife and Countryside (Amendment) Act 1985 s 4;
12. Sea Fisheries (Wildlife Conservation) Act 1992 s 1 (1).
13. For example, Countryside (Scotland) Act 1967 s 66;
14. Countryside Act 1 968 s 11.
15. Electricity Act 19S7 s 37;
16. Opencast Coal Act 19S8 s 3;
17. Pipelines Act 1962, s 43;
18. Water Resources Act 1963, s 101 (1);
19. Gas Act 1965 s 4(4).
20. National Parks and Access to the Countryside Act 1949 s 114(2), as originally enacted.
21. ibid, as amended by the Countryside Act 1968 s 21 (7).
22. The Cardiff Bay Barrage Act 1993 s 2 (4), uses the unusual phrase 'to develop or conserve flora or fauna, while the Enterprise and New Towns (Scotland) Act 1990, s 5(3) uses the purely protective phrase 'safeguarding the natural beauty'.
23. while the Enterprise and New Towns (Scotland) Act 1990, s 5(3) uses the purely protective phrase 'safeguarding the natural beauty'.
24. Agriculture Act 1986 s 17(1).
25. Water Act 1989 s 8(1);
26. Water Resources Act 1991 ss 2(2) 16(1);
27. Water Industry Act 1991 s 3(2);
28. Land Drainage Act 1991 s 12 (16 A(1);
29. Local Government etc (Scotland) Act 1994 s 65(2).
30. Natural Heritage (Scotland) Act 1991 s 1.
31. Countryside (Scotland) Act 1967 s 66, as amended by the Natural Heritage (Scotland) Act 1991, Sched 10 para 4(7).
32. National Parks (Scotland) Act 2000 s 1.
33. Natural Heritage (Scotland) Act 1991 s 1 (3);
34. National Parks (Scotland) Act 2000, s 35.
35. National Parks and Access to the Countryside Act 1949 s 5 (1), as originally enacted.
36. ibid, as amended by the Environment Act 1995 s 61 (2).
37. Nature Conservation (Scotland) Act 2004 s 1.
38. ibid s 2.
39. Countryside and Rights of Way Act 2000 s 74(1);
40. special regard is to be had to a list of organisms and habitats considered to be of principal importance (ibid s 74(2)), with further provisions on this list included in the 2005 bill.
41. In London, one of the functions of the Mayor is to prepare a London Biodiversity Action Plan: Greater London Authority Act 1999 s 352.
42. Natural Environment and Rural Communities Bill 20OS-06 HC Bill 38 (as amended in Standing Committee) cl 40.
43. Nature Conservation (Scotland) Act 2004 s 1 (2);
44. Countryside and Rights of Way Act 2000 s 75(7); Natural Environment and Rural Communities Bill (n 24) cl 40(2).
45. The Convention defines 'biological diversity'as 'the variability among living organisms from all sources, including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are a part: this includes diversity within species, between species, and of ecosystems'while'ecosystem'is defined as'a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit': Convention on Biological Diversity, 1992, art 2.
46. Countryside and Rights of Way Act 2000 s 74(7); Natural Environment and Rural Communities Bill (n 24) cl 40(3).
47. Government of Wales Act 1998 s 121.
48. Planning and Compulsory Purchase Act 2004 s 39.
49. Railways Act 1993 s 4(1), as amended by Transport Act 2000 s 224;
50. Transport Act 2000 s 207
51. Local Government Act 2000 s 4.
52. Bird populations features as one of the 20 items in the list of UK Framework Indicators in One Future Different Paths: The UK's shared framework for sustainable development (Defra and others 2005) p 12,
53. while the longer list of 68 indicators identified in ch 7 of Securing the Future: The UK's Sustainable Development Strategy (2005 Cm 6467) also includes the state of priority habitats and species: see the list and progress reports at www.sustainable-development.gov.uk/ performance/ indicatorsindex.htm.
54. Countryside (Scotland) Act 1967 s 66.
55. Nature Conservation (Scotland) Act 2004 s 1.
56. Local Government in Scotland Act 2003 s 1.
57. Countryside (Scotland) Act 1967 s 67
58. Countryside Act 1968 s 11
59. 'The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given.' Lord Hoffmann in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at 780;
60. see generally HWR Wade and CF Forsyth Administrative Law (9th edn OUP 2004) pp 380-84.
61. Electricity Act 1957 s 37;
62. Opencast Coal Act 19S8 s 3;
63. Pipelines Act 1962 s 43;
64. Water Resources Act 1963 s 101(1);
65. Gas Act 1965 s 4(4).
66. Water Resources Act 1991 s 6(1);
67. Water Industry Act 1991 s 3(2);
68. Land Drainage Act 1991 s 12(1).
69. Water Industry (Scotland) Act 2002 s 53.
70. Countryside and Rights of Way Act 2000 s 74(1);
71. Nature Conservation (Scotland) Act 2004 s 1 (1).
72. Environment Act 1995 ss 6 (1) (Environment Agency), 34(2) (Scottish Environment Protection Agency).
73. For example, ibid ss 7(1) 32(1).
74. Agriculture Act 1986 s 17(1);
75. Sea Fisheries (Wildlife Conservation) Act 1992 s 1 (1).
76. In the same way as having regard to conservation is added to the obligations of bodies whose prime responsibilities lie elsewhere, obligations to take account of other factors are placed on the conservation bodies (eg Natural Heritage (Scotland) Act 1991 s 3 (1)(b)-(f)). The impression is that the relative status in political debate of economic and social concerns as opposed to concern for nature means that these factors weigh more heavily on the conservation bodies than the conservation obligations do on bodies whose main responsibilities relate to economic development.
77. For example, W Rees 'Frames of Reference and the Public Interest' in Wedderburn and Murphy Labour Law and the Community: Perspectives for the 1980s (IALS 1982);
78. A Fox, Research Paper 3: Industrial Sociology and Industrial Relations (HMSO 1960) (for the Royal Commission on Trade Unions and Employers' Associations);
79. Clegg 'Pluralism in Industrial Relations' (1975) 13 BJIR 309;
80. Arthurs 'Understanding Labour Law: The Debate over "Industrial Pluralism" (1985) 38 CLP 83;
81. Provis 'Unitarism, Pluralism, Interests and Values' (1996) 34 13JIR 473.
82. See, for example, those in notes 4, 5.
83. For example, Electricity Act 1957 s 33;
84. See notes 39-41.
85. Water Industry (Scotland) Act 2002 s 53.
86. Cuntryside and Rights of Way Act 2000 s 74(1);
87. See n 44.
88. Forestry Act 1967 s 1f(3A) (added by Wildlife and Countryside (Amendment) Act 198S s 4.
89. Agriculture Act 1986 s 17(1).
90. Sea Fisheries (Wildlife Conservation) Act 1992 s 1 (1).
91. The Forestry Commissioners are 'charged with the general duty of promoting the interests of forestry, the development of afforestation and the production and supply of timber and other forest products, including 'promoting the establishment and maintenance ... of adequate reserves of growing trees' (Forestry Act 1967 s 1 (2) (3)), which in the past led to activity that is now recognised as causing great harm to biodiversity.
92. National Parks and Access to the Countryside Act 1949 s 5, as substituted by the Environment Act 1995 s 61 (1).
93. National Parks (Scotland) Act 2000 s 1.
94. National Parks and Access to the Countryside Act 1949 s 11 A(2), as inserted by the Environment Act 1995 s 62(1 ) - this duty applies to all 'relevant authorities, not just to the park authorities;
95. National Parks (Scotland) Act 2000 s 9(6).
96. The principle takes its name from the Report of the National Park Policies Review Board (1974) chaired by Lord Sandford.
97. Council of National Parks v Pembrokeshire Coast National Park Authority [2005] EWCA Civ 888;
98. see J Pearlman and D Pearlman-Hougie 'National Park Purposes as a Material Consideration' [2005] JPL 890.
99. Where there are detailed case-studies of decisions, the basic picture revealed in the analysis of the Cow Green Reservoir in Teesdale and the other instances discussed in R Gregory The Price of Amenity. Five Studies in Conservation and Government (Macmillan Press 1971 ) remains accurate, revealing a complex mixture of perceptions, values and motives, affecting more than the individual case, that contribute to the final determinations, with generally phrased legal obligations having at best a minimal role.
100. Environmental Protection Act 1990 ss 128-30;
101. Natural Heritage (Scotland) Act 1991 Part 1.
102. Natural Environment and Rural Communities Bill (n 24) Part 1.
103. Nature Conservation (Scotland) Act 2004 s 1.
104. ibid s 2(7).
105. For example, in relation to the Environment Agencies; Environment Act 1995 s 40.
106. For example, Wilson v IBA 1979 SC 351.
107. In England and Wales there is the (remote) possibility of asking the Attorney General to intervene by means of a relator action (Wade and Forsyth (n 37) pp 578-85).
108. 'The courts are neither a debating club nor an advisory bureau': Lord Justice Clerk Thomson in Mcnaughton v Mcnaughtons Trustees 1953 SC 387 at 392.
109. See n 37.
110. R v Secretary of State for the Environment, ex parte RSPB (C-44/95) [1996] ECR I-3805;
111. on the issue of interim remedies see the earlier stages of the case, noted at (199S) 7 JEL 245 and especially the comment by JDC Harte at pp 276-77.
112. For example, in Patmor Ltd, Petitioners 1987 SLT 492 a casino whose business would be affected by a rival casino opening nearby did not have title to challenge the licensing decision authorising the new enterprise simply because it would be financially affected, but did have title on the basis that it had made representations when the rival's application was advertised and the public given the opportunity to comment.
113. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd, [1995] 1 WLR 386 at 393 and 395 (Rose LJ).
114. For example, in WWF-UK v Secretary of State for Scotland [1999] Env LR 632, there is in the 82 pages of the report virtually no discussion of the substantive conservation issues that lay behind the dispute arising from the plan to build a funicular railway in the Cairngorms, and where these do arise they are sidelined as a 'difference of opinion ... about the conclusions which should be drawn from the assessment' which 'does not entitle the court to intervene' (Lord Nimmo Smith at p 686).
115. Environmental Assessment (Scotland) Bill (SP Bill 38 session 2 (2005)) ss 4-8.
116. Directive 2001/42/EC, as implemented by the Environmental Assessment of Plans and Programmes Regulations 2004, SI 2004/1633.
117. 'Parliament has become fond of imposing duties of a kind which, since they are of a general and indefinite character, are perhaps best to be considered as political duties rather than as legal duties which a court could enforce.' Wade and Forsyth (n 37) p 589.
118. Convention on Access to Information, Public Participation in Decision-Making and Access to justice in Environmental Matters (1998).