102.Section 16 makes a number of changes to section 7 of the 1996 Act. Section 7 provides for SNH to enter into control agreements with relevant owners and occupiers (defined as those who SNH consider to have a sufficient interest in, or control over the use of land, as to necessitate their involvement with deer management measures).
103.A control agreement is an agreement between relevant owners and occupiers of an area of land and SNH which sets out the area in question, the control measures to be undertaken, who is to undertake them, time limits for taking action and actions to be taken during each 12 month period for which the agreement has effect. A control agreement may relate to an area of land with several different owners or occupiers.
104.As with deer management plans, the principal change made to section 7 is, via its interaction with section 6ZB, the introduction of the nature restoration ground as a basis for seeking that the owners or occupiers of a particular area of land agree to and implement a control agreement. The grounds for intervention (contained in section 7(1) prior to its amendment) continue to be relevant by virtue of section 6ZA.
105.Subsection (3) of section 7 of the 1996 Act provides an additional ground for intervention where SNH consider that it is necessary for deer to be completely excluded from an area. Section 16(3) of the Act removes the requirement for SNH to have regard to the code of practice on deer management when considering whether this ground applies (but the overarching duty to have regard to the code when exercising its functions under the 1996 Act still applies15).
106.Section 16(4) of the Act replaces section 7(4) of the 1996 Act and streamlines the process for how SNH give notice and engage with the relevant owners and occupiers. Whereas under the previous process SNH had to give notice and then consult the owners and occupiers as to the measures that may be necessary before preparing an agreement (on the back of the agreed measures), the process now requires SNH to prepare a draft agreement first in order to provide a structured basis for the consultation. SNH does, however, have some latitude about how to approach this on each occasion. It could, for example, give notice and send the draft agreement at the same time or separately, depending on the circumstances. In some cases, there may already have been discussions around what is appropriate before the statutory process is started. However, the process must be done within three months of SNH forming a view under section 7(1) or (3) of the 1996 Act as to what measures should be taken.
107.The amendments in subsections (5) to (7) of the Act are consequential adjustments to section 7 necessitated by the other changes described above.
108.The new subsection (7A) of section 7 of the 1996 Act requires SNH to publish the outcome of a review under subsection (7) as soon as reasonably practicable after completing the review, and new subsection (8) deals with the situation where a review of the control agreement discloses that compliance with the agreement is insufficient. In those circumstances, SNH must either proceed with making a control scheme under section 8 or advise the Scottish Ministers why it is not appropriate to do so at the present time. For example, it may be that undertakings from the owners or occupiers or a variation of the agreement mean that taking the step of making a scheme is premature.
The Act Deer management plans, control agreements and control schemes Section 16 – Control agreements