190.Paragraph 1 of Schedule 9 replaces section 28 of the 1981 Act with new sections 28 to 28R inclusive.
191.New section 28 revises procedures for notifying SSSIs. The measures include: affirming the duty of the conservation agencies to notify land of special interest; requiring notification (which must specify the features by reason of which the site is of special interest, and include a list of the operations likely to damage those features) to be given to owners and occupiers, the local planning authority, and the Secretary of State; publishing the notification in a local newspaper; and setting out the procedures and timetables to be followed (including the opportunity for representations to be made to and considered by the agencies) before a notification can be confirmed with or without modification;. The notification should also include a statement of the conservation agencies’ views about the appropriate management of the land. Paragraph 5(4) of Schedule 9 amends section 52 of the 1981 Act to provide that “occupier” includes commoners, defined in the section as persons with rights of common.
192.Section 28A enables the conservation agencies to vary the matters specified in the notification, other than the area of land concerned, at any time after confirmation. The agency must give notice to the owners and occupiers of the land affected, who may make representations. The amended notification may then be withdrawn or confirmed (with or without modifications).
193.Sections 28B and 28C enable the conservation agency to increase the area of a SSSI. Under s28C amendments may also be made to the notification of the original SSSI as respects the features of special interest, the operations likely to damage those features, and the statement of views about the management of the SSSI.
194.Section 28D provides a power for conservation agencies to denotify all or any part of a SSSI which is no longer of special interest. Where the power is to be exercised the agency must notify, amongst others, owners and occupiers and advertise the fact in a local newspaper. Representations may be made to the conservation agency and the agency may then withdraw or confirm (with or without modifications) the denotification. If they do neither, the proposal to de-notify will lapse after nine months. The land will continue to be protected until the de-notification has been confirmed.
195.Section 28E provides that the owner or occupier of a SSSI shall not carry out any operation listed in the section 28 notification as likely to damage the site unless notice is given to the conservation agency of a proposal to carry out the operations, and the agency give their consent or the works are carried out under the terms of an agreement with the agency, or under a management scheme or notice.
196.Consent may be granted subject to conditions and consent may be withdrawn or modified; however the agencies must give reasons for their decision. This section does not apply where the owner or occupier is a public body (defined under section 28G) carrying out its functions. The reason is that in these circumstances section 28H (see below) will apply.
197.Failure by an owner or occupier to follow the procedures in (1) and (2) above will be an offence under section 28P(1) but it is a defence if the operation is authorised by a planning permission granted on an application or by a permission or consent from a public body, where the procedures in section 28I below have been followed (section 28P(4)). It is also a defence where the operation was an emergency.
198.Section 28F enables a person to appeal where he has been refused consent to carry out works on a SSSI (this includes a deemed refusal where after 4 months the agency has neither granted nor refused consent), where he has been granted consent subject to conditions or where he is aggrieved by the modification or withdrawal of a consent. The appeal must be made within 2 months (or such longer period as is agreed in writing) of the decision or failure to decide, to the Secretary of State or the National Assembly for Wales in Wales, who may cause a hearing or local inquiry to be held into the appeal. The Secretary of State and National Assembly for Wales may make regulations specifying the procedures for appeals. There is power to award costs of the proceedings.
199.Section 28G imposes a duty on “public bodies” in exercising their functions to take reasonable steps, consistent with the proper exercise of those functions, to further conservation and enhancement of the special features on a SSSI. This applies where the public body is exercising its statutory functions on a SSSI or on land outside the SSSI where those functions affect a SSSI. “Public bodies”, referred to in the Act as section 28G authorities, are defined in subsection (3) to include Ministers, Government Departments, local authorities and statutory undertakers (whether in the public sector, or a privatised utility) and other public bodies.
200.Section 28H requires the public body to notify the conservation agency when they propose to carry out operations in the exercise of their functions, which are likely to damage the features of special interest of a SSSI. This applies equally to works outside a SSSI, which may affect that SSSI. The conservation agency 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, providing that they give the agency not less than 28 days notice of the start of the operation. That notice must state how the body has taken into account any advice which the agency 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 practical, if damage does occur.
201.Section 28I applies where the authority has power to grant permissions, including authorisations or consents, for other parties to carry out operations (whether on or outside a SSSI) which are likely to damage the special features of a SSSI. Before granting any such permission they must give the conservation agency not less than 28 days notice. Before making any decision the authority must take into account the advice of the conservation agency, which may include advice on conditions to be attached to the permission (section 28I(5)(b)). If the authority intends to grant permission against the advice of the agency, they must notify the agency and the permission must allow 21 days before operations may commence. This would for example give the agency an opportunity to contact the applicant to discuss ways of mitigating any effects, or to offer a management agreement.
202.Section 28J  sets out provisions for Management Schemes, which may be formulated by the conservation agencies. A management scheme will set out measures for conserving or restoring the special interest of the land. The conservation agency must consult the owners or occupiers of the land about a proposed management scheme. The agency may then serve notice of the proposed scheme on owners and occupiers who may make representations. Within 9 months, the agency must confirm (with or without modifications) or withdraw the scheme. The agency may cancel or propose modifications to a scheme at any time.
203.The management scheme is a new concept and is designed to provide a detailed statement of the measures required for positive management of the SSSI, which is available to owners and occupiers. It should provide greater detail than the statement of views about the management of the land served with the notification of a SSSI, and is designed to help secure that SSSIs remain in favourable condition. It may specify activities for which consent is given. It is also designed to help ensure that all parties are aware of the recommended management regime for conservation and restoration of the special features.
204.Section 28K enables a conservation agency to serve a management notice on the owner or occupier where (1) the agency has formulated a management scheme which is not being implemented, and as a result the features which make the land of special interest are being inadequately conserved or restored, and (2) the agency has been unable to conclude a management agreement, on reasonable terms, with the owner or occupier. A management notice is a notice requiring specified works (which it is reasonable to require to ensure the land is managed in accordance with a management scheme) to be carried out on the site. Section 28M(2) provides that the conservation agency may make payments for the costs of this work. They may also enter the land and carry out the works themselves, if the notice is not complied with, and may charge the costs to the owner or occupier.
205.Section 28L enables any person who has been served with a management notice, to appeal against it to the Secretary of State or the National Assembly for Wales as appropriate. Notices may be quashed, varied or confirmed. Procedures for appeals will be set out in regulations. There are provisions for hearings or local inquiries as in section 28F above.
206.Section 28M provides that the conservation agencies may make payments to an owner or occupier of land in relation to which a management scheme is in force. If they withdraw or modify an existing consent to carry out operations, they 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 conservation agencies in accordance with guidance given and published by Ministers (the Secretary of State, as respects England, and the National Assembly for Wales as respects Wales).
207.Section 28N gives the conservation agencies a compulsory purchase power in relation to land notified as a SSSI. This power is additional to that in section 17 of the National Parks and Access to the Countryside Act 1949 relating to nature reserves and additional also to that in the new section 15A of the Countryside Act 1968 inserted by section 75(4) of the Act. This new power may only be exercised where the agencies cannot secure an agreement for the management of a SSSI or where the terms of such an agreement have been breached in such a way that the land is not being managed satisfactorily. The agency may then either manage the land or dispose of it to ensure its future management.
208.Section 28P provides for offences. Subsection (1) makes it an offence for an owner or occupier to cause or permit damaging operations contrary to section 28E(1) without reasonable excuse. The penalty is a fine not exceeding £20,000 in the magistrate’s court or, on indictment, an unlimited fine. Subsection (2) makes it an offence for a public body, as defined in section 28G, to carry out operations in contravention of section 28H, without reasonable excuse. The penalty is the same. It will be a reasonable excuse in any event that a planning permission (granted on an application) has been granted for the operations, or that they were necessary as an emergency measure, or that a permission or consent for the operations has been granted in accordance with section 28I. Subsection (6) makes it an offence (carrying the same penalty) for any person intentionally or recklessly to damage or destroy the features which make a site of special interest or intentionally or recklessly to disturb fauna for which the site is notified, provided he knew that what was damaged, destroyed or disturbed lay within the SSSI. Subsection (7) provides for a similar defence of reasonable excuse. Failure to comply with a management notice is an offence under subsection (8) and attracts the statutory maximum fine (£5,000) or on indictment an unlimited fine. Proceedings for an offence under this section may only be taken by the conservation agency, unless the Director of Public Prosecutions consents otherwise.
209.Section 28Q requires the owner of an SSSI who disposes of any interest in the land, or who becomes aware that the occupation of the land has changed, to tell the conservation agency within 28 days. This will enable the agency to take steps to ensure the new owner or occupier is aware of the SSSI and the associated rights and requirements.
210.Section 28R gives a power to the conservation agencies to make byelaws on any SSSI and applies, with modifications, the provisions in section 20 of the 1949 Act (which relate to byelaws for nature reserves).
211.Paragraph 2 of Schedule 9 repeals section 29 and section 30 of the 1981 Act which enable the conservation agencies to make a Nature Conservation Order and provide for associated compensation. These powers are no longer required as the provisions in the Act (section 28 to section 28R) give full protection to SSSIs. Paragraphs 15 to 19 of Schedule 11 set out the transitional provisions in relation to these cases.
212.Paragraph 3 of Schedule 9 amends section 31 of the 1981 Act so as to enable the court to order restoration of a SSSI where a person has been convicted of damaging or destroying it under section 28P (1) or (6). The court may also order restoration of a SSSI where a public body (as defined by section 28G) has been convicted of an offence under section 28P(2) or (3), this applies whether the operation which damaged the special features took place on, or off, the SSSI.
213.Paragraph 7 of Schedule 9 provides for a new Schedule 10A to be inserted in the 1981 Act. The Schedule contains provisions relating to the appointment and powers of persons appointed under sections 28F(8) and 28L(10) to determine appeals in respect of consents and management notices.
Introduction Schedule 9 - Sites of Special Scientific Interest