Commentary on Sections Part 4 – Environmental Control of Animal and Plant Species Part 3 - Species control orders
105.Paragraph 10 describes the circumstances where a species control order may be made. Paragraph 10(2)(a) allows an environmental authority to make a species control order where it considers that an owner has breached the terms of a species control agreement, but only after giving notice to that effect and allowing an owner a reasonable opportunity to rectify the alleged breach.
106.Paragraph 10(2)(b)(i) is designed to allow the environmental authority to make a species control order if it receives a categorical response from an owner that they will not enter into a species control agreement before waiting for the 42 day period set out in paragraph 10(2)(b)(ii) to expire. Paragraph 10(2)(b)(ii) allows the environmental authority to make a species control order where an owner has not entered into a species control agreement after 42 days, but only if it concludes that the owner is unlikely to enter into an agreement. This places the onus on the environmental authority to satisfy itself that an agreement is unlikely to be reached before making an order.
107.Paragraph 10(2)(c) allows an environmental authority to make a species control order where there is urgent necessity, without having to go through the process of offering a species control agreement. The circumstances where this may be appropriate will be set out in the proposed ministerial code of practice and will indicate that these emergency species control orders should only be made in exceptional circumstances. However, there may be legitimate circumstances where the environmental authority needs to eradicate a species as a matter of urgency, particular if it was concerned that any delay could result in the species becoming more widely established.
108.Paragraph 10(4) restricts species control orders to only those species no longer normally present which are present on premises without a licence from Natural England or Natural Resources Wales, which would be required before such animals can be lawfully released into the wild. It also sets out that such species must be having a significant adverse impact on biodiversity, environmental, social or economic interests and the environmental authority must be satisfied that there is no appropriate alternative way of obviating that impact.
109.Paragraph 10(5) restricts a species control order from being made in relation to any dwelling unless it is made by either the Secretary of State or the Welsh Ministers. The purpose of this restriction is to provide an additional check to ensure that such powers are used sparingly in relation to dwellings, and only as last resort.
110.Paragraph 11 sets out what detail must be contained within a species control order in different specified circumstances. This includes provision requiring the owner to carry out species control operations, provision stating that the environmental authority proposes to carry out operations, or both.
111.Paragraph 12 sets out the other details that must be included in all species control orders, such as the operations to be carried out and the time by which they must, or are proposed to be, completed.
112.Paragraph 13 sets out other provisions that may be included in a species control order in addition to that required under paragraphs 11 and 12. Paragraph 14 provides that, after a species control order is made, notice must be given to all owners of the premises concerned, and to the Secretary of State and the Welsh Ministers.
113.Paragraph 15 provides for a species control order to be revoked at any time by the environmental authority that made it. An environmental authority may wish to revoke a species control order if it was no longer required. For example, the species may no longer be present on the premises. An environmental authority may also wish to revoke a species control order if it was no longer fit for purpose. In these circumstances, an environmental authority may wish to offer a new species control agreement or make a new species control order, though the process would be required to start afresh.
114.Paragraph 16 provides for an owner of premises, which become subject to a species control order, to appeal to the First-tier Tribunal against either the making of the order or any provision contained within it. Paragraph 16(2) sets out what action the First-tier Tribunal may take in determining an appeal.
115.Paragraph 17 requires an environmental authority to notify an owner when it considers that the owner has completed all the operations required by a species control order and the order is, therefore, no longer in effect.
116.Paragraph 18 allows an environmental authority to carry out the operations itself should an owner fail to comply with the terms of the order where the owner has not rectified the breach within a week of being given notice by the authority of the existence of that breach. Paragraph 18(5) also allows the environmental authority to recover any costs of those operations, reasonably incurred, from the owner.
117.Paragraph 19 sets out the offences relating to the new regime. It will be an offence to fail to comply, without reasonable excuse, with a requirement of a species control order. It will also be an offence to intentionally obstruct a person from carrying out an operation required or proposed under a species control order.
118.Paragraph 20(1) removes any liability of an owner to any person when that owner is doing anything in accordance with a species control order. Paragraph 20(2) removes the liability of an environmental authority to any person with an interest in the premises for any action it, or an owner, carries out in accordance with a species control order.