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CHAPTER FOUR NATURE CONSERVATION
Introduction
4.1 This chapter looks specifically at the Nature Conservation (Scotland) Act 2004 and the provisions therein dealing with Sites of Special Scientific Interest ( SSSIs). Roughly 10% of Scotland is covered by SSSIs and this proportion increases to 13% in northern Scotland, where it might be argued that, because of land ownership structures and crofting tenure, land reform has greater salience. The chapter sets the changing system of regulation of SSSIs within a wider framework of protection of sites of high nature conservation interest and biodiversity management and assesses these against the 'benchmarks' of greater diversity and increased participation as pursued as objectives of the land reform measures.
4.2 Since the designation of National Nature Reserves and Sites of Special Scientific Interest in the 1949 National Parks and Access to the Countryside Act, conservation interests have emerged as a major arena of rural policy. Over that time, there has been a shift of emphasis from protecting the 'jewels in the crown', the most special sites as designated under the 1949 Act and its successors (as National Nature Reserves ( NNRs) and Sites of Special Scientific Interest ( SSSIs)) to a much more broadly based view of biodiversity management embracing the application of conservation management to non-designated land. Although the interest in biodiversity management outwith designated areas still had grown rapidly in the UK in the 1970s and 1980s in the wake of realisation that changing land management practices were adversely affecting many species in more intensively managed land, the trend towards greater biodiversity management outside designated sites was scaled up by the United Nations Convention on Biodiversity of 1992, to which the UK government was a signatory. This heralded interest in biodiversity action planning at UK, Scottish and regional level within Scotland. Further, from roughly the same time a number of agri-environmental measures also began to address the environmental management of farmland.
4.1 In the initial 1949 legislation, there were no notification procedures required if land owners or managers wished to undertake changes in farming and forestry land management practices which might conflict with the bases for designation. The 1968 Countryside Act in England (and 1969 Act in Scotland) introduced scope for 'management agreements' to be used in SSSIs, but, given the absence of any requirement to notify land use changes which might damage the conservation interest, there was very little uptake.
4.2 The late 1970s was one of considerable antagonism between farming and conservation interests as a result of much unfavourable publicity over the adverse effects of modern farming and forestry on biodiversity, both in protected sites and in the wider countryside (Pennington 1996; Winter 1996). The resolution of these conflicts was attempted in the provisions of the Wildlife and Countryside Act of 1981. This created some fundamental changes in the management of SSSIs. The Act required the nature conservation authority to identify and notify landowners/occupiers of Potentially Damaging Operations ( PDOs) which specified actions that were perceived as likely to compromise the nature conservation interest of the site. Any contemplated PDO had to be notified by the owner/occupier to the nature conservation authority and a four month period was specified in which the implications of the PDO could be considered. This period allowed time for a decision by the nature conservation authority to either allow the operation to proceed or to enter into a process of determining a management agreement, or, as a least resort, to apply a Nature Conservation Order. The 1981 Act had specified a delay of several months before the designation came into force, which had allowed some unscrupulous owners to use that time to destroy the basis for designation. This loophole was removed in the Wildlife and Countryside (Amendment) Act (s.2.5) in 1985. The underlying principle of a management agreement was that the landowner or occupier should be compensated for opportunity foregone. In un-resolvable cases a procedure was identified under which a Nature Conservation Order could be imposed.
4.3 Even after the passing of the 1981 Act, there was much antagonism between landowners and nature conservation authorities over the 1980s and 1990s, as well as widespread criticism of the operational effectiveness of the 1981 Wildlife and Countryside Act. The underlying principle of the 1981 Act was to tighten the constraints on the landowner's or occupier's ability to manage land for agricultural or silvicultural purposes on designated sites as he/she thought fit and to put in place a set of procedures to compensate the owner for opportunity foregone, where potentially damaging agricultural or forestry operations were identified. In Scotland, the weaknesses of the 1981 Act were exposed by two prominent landowners, one in the southern Highlands and one in the northern Highlands, both of whom extracted significant compensation for foregoing the right to engage in potentially damaging operations on large areas of designated land. In both cases, the policy mechanism is considered to have triggered a search for compensation by the landowner.
4.4 It was argued with some conviction by landowners that some designations of SSSIs in Scotland in the wake of the 1981 Wildlife and Countryside Act proceeded with limited examination in detail of the nature conservation interest, especially in the late 1980s and early 1990s. The principal concern of the designating authorities was the likelihood of the existence of high scientific interest in areas where substantial and threatening land use change could reasonably be anticipated. Perhaps the greatest concern in this period was the loss of peat moorlands to forestry in the far north of Scotland, which generated a heated controversy because of both environmental consequences and the fiscal loopholes being exploited by super-rich people participating in the afforestation of the Flow Country by private forestry companies (Tompkins 1989).
4.5 In response to the criticism of precautionary designation, SSSIs in Scotland were subject to consideration by the Advisory Committee on SSSIs set up under the Natural Heritage (Scotland) Act 1991, where the owner or occupier of land was able to make representations to the committee about the grounds for designation (Reid 1994: 157). This appeal procedure was made available for existing as well as new designations.
4.6 In 1992, the Natura 2000 programme was launched by the European Union and this came into force in 1994 in the UK. Many SSSI sites were selected as Natura 2000 sites while retaining their SSSI status. This new designation gave such sites increased protection under European law. Studies suggest that designations of such sites may create employment, both directly through conservation management or indirectly through wildlife tourism ( e.g. Rayment 1997).
4.7 The policy structures for SSSIs created abundant scope for creating a system of high transaction costs of operationalising the policy through quasi litigious negotiation of management agreements. The desire on the part of landowners to avoid designation might induce them to challenge designations; and, even where there was a passive acceptance of the designation, there was scope for protracted negotiation over the level of compensation for opportunity foregone.
4.8 The powers of the Act and the way in which they were implemented thus had an inflammatory effect on landowners whose land management practices had long been distanced from planning control by the General Development Order which permitted agricultural, forestry and sporting land use changes without planning permission.
4.9 In the late 1990s, reforms were considered for the SSSI system, including a shift of emphasis from restraint to positive conservation. Under these proposals, rather than constraining landowners and compensating for opportunity foregone, grants were to be paid for enhancement of site value. The Natural Care scheme was launched in 2001 and offers financial help to support land managers to manage SSSIs in an enhanced way. Effective management is seen as essential to conserve special wildlife and geological features. However, it is thought that landowners had become more tolerant of the system by this time, not least by the modifications introduced in the 1991 Act and in the shifting rhetoric from Scottish Natural Heritage.
The land reform measures
4.10 The Nature Conservation (Scotland) Act 2004 reformed the procedures for designating and managing SSSIs. Part II Section 3 specifies the notification procedure for SSSIs and identifies the grounds for designation. Section 4 indicates the obligation for SNH to produce a site management statement, which should present the management needs in a way intelligible to a lay audience and might guide interventions, for example, through the Natural Care scheme. Subject to specified procedures, sites may be enlarged (Section 5). The principal change is in the rewording of the term Potentially Damaging Operation to Operations Requiring Consent. All SSSIs must be accompanied by a statement indicating Operations Requiring Consent (Section 6). Opportunities are also made available for the enhancement of the site's conservation value. Other sections of the Act deal with the land management obligations of public bodies with respect to nature conservation interests and collection of fossils from sites of geological interest.
4.11 The procedures for establishing a management agreement on land and for the back-stop measures relating to the imposition of a Nature Conservation Order remain virtually unchanged. S.28 of the Natural Heritage (Scotland) Act 2001 specifies that: 'a report submitted by SNH under section 10(2) (annual report) of the Natural Heritage (Scotland) Act 1991 (c.28) for any year must set out particulars of any land in relation to which a nature conservation order, amending order or revoking order has come into effect during that year.'
4.12 A major change in the 2004 Act is the replacement of the option to go to judicial review in the event of a major disagreement between the landowner and the owner or occupier of designated land with referral of a case to the Scottish Land Court (Section 18).
4.13 To a large degree, the changes introduced by the 2004 Act are tidying up measures rather than fundamental reforms. Of much greater importance is the developing rapprochement between the landowning community and Scottish Natural Heritage for which the 1991 Act had provided the foundations, Natural Care grants a symbol of a more positive orientation and the 2004 Act the 'mood music'. The legislative changes can be seen as a means of implementing a more open discursive approach but, in situations of conflict, the protection of the nature conservation interest is still given pre-eminence and, although a more discursive review process has been established, the backstop measure of the Nature Conservation Order is still firmly in place.
4.14 The Scottish strategy for conservation and enhancement of biodiversity ( SNH 2004) takes a more holistic view of biodiversity planning and a markedly more participatory approach compared to the management of designated sites. Indeed, one of the five main objectives is to 'increase awareness, understanding and enjoyment and engage many more people in biodiversity management'. The vision statement asserts that Scotland should be a world leader in conservation with 'everyone involved'.
4.15 The principal means of local engagement in biodiversity management is not through engagement with SSSIs but with local biodiversity planning. In this arena the then Scottish Executive co-financed a raft of initiatives which depend for their delivery on the engagement of local communities and a range of regional and local stakeholders. The agenda for action with regard to people in the Scottish biodiversity strategy suggests a wide range of measures for local engagement with biodiversity and conservation and links this public engagement to cross-cutting agendas in health, social justice, education, enterprise development and land management.
4.16 There is, however, a marked contrast between the technocratic top-down management of SSSIs (many of which have also been designated as Natura 2000 sites which are then subject to regulation at an EU level) and bottom-up public engagement in Local Biodiversity Action Plan ( LBAP) sites. Whilst the spirit of greater public involvement in biodiversity management is evident in recent Scottish policy, it is weakly expressed in the new regimes for managing SSSIs manifested in the Nature Conservation (Scotland) Act 2004, other than through an agenda of enhanced public education.
4.17 In summary, SSSIs are an important part of a wider programme and suite of policies to address biodiversity conservation. Even if in isolation they cannot be seen to deliver significantly into the land reform agenda, there are clearly a range of policies and processes relating to nature conservation which are associated with public engagement and greater diversity of ownership.
Methods
4.18 Three main approaches were adopted to inquire into the extent to which SSSI reform was perceived as land reform and the ways in which this might be explored. First a literature review was undertaken of the academic and other literature on the nature of the reform and their effects. Second, a number of key contacts were questioned either directly or by email about their perceptions of the contribution of the reform of designated nature conservation sites on the wider land reform objectives. Third, the interim findings were used as the basis for the determination of a draft set of indicators to assess the impact and outcomes of land reform. These were circulated at the workshop with a range of stakeholders and refined in the light of comments received.
Findings
Literature review
4.19 This section briefly explores the academic and wider literatures surrounding the policy relating to SSSIs and the evaluation of this particular policy instrument. More recent literature will be emphasised.
4.20 Over the 1980s there was a substantial literature dealing with the limitations of the 1981 Wildlife and Countryside Act and the particular problems associated with management agreements. Not only were they regarded as costly to implement but also there were suggestions that landowners could hold the nature conservation authority to ransom and draw down a management agreement and the associated financial reward by merely threatening what was known to be a potentially damaging operation (see for example, Cox, Lowe and Winter 1990, Winter 1997). The issue of transaction costs was explored by Falconer and Saunders (2002) who note the high transaction costs for SSSIs and that three different types of management agreement exist on English SSSIs, with very different associated costs.
4.21 In a Scottish context, the SSSI controversy in the Flow Country was explored by Mather (1993) who noted the significant antagonism between expert conservationists and local people and their representatives and argues that the whole episode illustrates scientific colonialism - the imposition of conservation policies on a reluctant local population by experts from outside the area with no real knowledge of land management practices. Mather concludes that there is 'the beginning of a paradigm shift in conservation, away from the classical scientific reserve model towards one in which sustainable use and the involvement of local people have more prominent roles' (1993).
4.22 Ten years on from Mather's work, Johnston and Soulsby (2006) returned to the same geographical area. They note the growing debate about local versus scientific knowledge. They note the continued dominance of scientific rather than local knowledge in site selection, but go on to note that 'local knowledge may not be sustainable knowledge' (165). The authors argue further that 'if conservation is to be successful, under the voluntary principle, new strategies for justifying and communicating conservation goals appear to be required' (167) including more interactive and participative communication strategies. They also recognise the desire for local communities to enhance development prospects rather than conserve what to them are biodiversity resources with no or only modest associated development opportunities.
4.23 Much of the concern over SSSIs in the 1990s surrounded the threat to sites, the effectiveness of monitoring, the need to move from a compensatory culture to a positive conservation culture and their limited use to enhance public understanding. The Royal Society has highlighted the importance of SSSIs as research resources and noted the need for a greater engagement with researchers and the case for wider public awareness of and access to SSSIs.
Diversity in land ownership
4.24 There is little doubt that there is greater diversity in land ownership in rural Scotland than at any time in the last fifty years. Although land ownership remains highly concentrated by any European standard, a wide range of styles of land management are now evident, with consequent if uncertain effects on biodiversity. These processes of changing patterns of landownership, with rising levels of ownership of land by environmental NGOs, with some examples of large-scale private estate purchase with strong conservation motives and with significant levels of amenity-driven farmland purchase in some parts of Scotland create a more variegated pattern of landownership and with it considerable scope for biodiversity enhancement from endogenous actions by land owners and occupiers.
4.25 Sometimes the acquisition of land by NGOs has been supported by public money and there are many examples of substantial drawdown of public support for nature conservation on designated land within such landholdings. Equally, there are also large areas of land where a less scientifically based practical conservation is practised, sometimes in association with game management and sometimes independently of it. Further, there is a potential impact, which, from the expert perspective, is by no means always positive on nature conservation, arising as a by-product or co-product of land management practices. Where these practices involve new types of amenity livestock such as horses, there may be significant negative effects. Recent changes in farm policy resulting from decoupled farm payments might also have effects on inadvertent biodiversity provision in part through agricultural de-intensification and in part through the adoption of environmental measures under the Rural Development Plan for Scotland.
Community involvement in decisions
4.26 The extent of community involvement in decisions relating to SSSI designation, re-designation, review and management is limited. There is clear evidence from the pre-2004 situation that local communities felt disenfranchised by the process of decision making with respect to designations, especially with regard to what might be termed precautionary designations of large tracts of land in the northern mainland of Scotland 'threatened' by afforestation in the late 1980s. Since that time, it would appear that changes in attitude have occurred both in SNH and among landowners, with the former recognising a need to be more conciliatory in their approach and the latter more cognisant of the legitimacy of biodiversity conservation and management. The increased accountability for European-designated sites to the European Union might also have led to a more conciliatory approach by landowners and managers.
Findings from key informants
4.27 A number of key informants were contacted. These included those who had responded to consultations about the 2004 Act and others with a significant interest in the legislation surrounding designated sites.
4.28 Two SNH informants felt that whilst at first sight the 2004 Act might not seem relevant to the land reform agenda, they subsequently reflected that there were connections, one arguing that 'it echoes and mirrors some of the land reform stuff'. It changes the context of governance and whilst introducing some powerful backstop measures to protect sites which might be seen as taking power to control land use away from local communities, it has other components, particularly the site management statement, which engaged with a wider constituency of nature conservation interests.
4.29 A further area where change might be seen as positive is the willingness of the state to pay under the Natural Care scheme for enhancement of nature conservation interest on sites. Although most payments are modest this was seen as a positive incentive for the landowner to manage the site in the public interest rather than the 1981 Act's approach which was more concerned with constraining private landowners' freedoms to manage land as they wished.
4.30 The livelihoods framework was not known to one respondent but on explanation it was seen to raise some interesting questions about outcomes of the 2004 Act. A number of indicators were suggested. In relation to economic indicators, income generation from Natural Care Management Agreements was suggested as was the reduction in the number of ORCs (a proxy for reduced transaction costs). The number of appeals to the SSSI committee or the Land Court might indicate levels of trust. It was also indicated that a before and after survey existed on landowners' attitudes to SSSI interventions by had been undertaken by SNH which might yield useful information. A further issue in the development of trust was the requirement of single agency consent with regard to an ORC, with the scope for say SEPA making a decision without needing to refer it to SNH for final approval. In relation to environmental capital the proportion of sites in acceptable condition or some variant thereof would be an obvious indicator.
Findings from the workshop
4.31 The workshop reinforced the initial findings from key informants. It was reiterated that there were other facets of nature conservation policy which predated the land reform agenda but which fed into its objectives, particularly measures relating to local biodiversity planning.
4.32 Different stakeholder groups articulated a very different set of issues relating to SSSIs, with nature conservation interests asserting the importance of greater protection and landowning and land management interests extolling the need for equity and balance between landowning and nature conservation interests and a need to set land management for nature conservation within an understanding of other changes in land use.
4.33 When each arena of reform was discussed, it was argued by several stakeholders representing NGOs and government interests in the environment that environmental impacts should be considered as part of the overall appraisal of land reform measures alongside the social and economic impacts. The number of representative bodies was small, so there is a need to consider the views of other environmental groups on this issue. However, it should be stressed that they were not seeking an environmental evaluation in isolation so much as an evaluation covering the three pillars of sustainable development.
4.34 A number of observations were obtained from workshop delegates. First it was noted that SNH expect a decline in management agreements between SNH and site owners/occupiers following the launch of Rural Development Contracts - which will replace the Natural Care Scheme. As new scheme SRDP grants come in and replace most of the least complex agreements, the more complex agreements will decline in number, but will be associated with potentially higher costs of reactive/ involuntary/ compensation agreements. ( SNH pers comm.)
4.35 New access arrangements were flagged as a possible indicator but access, car park and interpretation provision are really only currently relevant to NNRs and a few other sites mostly owned/managed by NGOs or LAs as reserves etc. and only likely ever to be promoted at a relatively small proportion of sites - due to physical issues, remoteness, wishes of private and other owners, resources, impacts on the protected natural features of the sites and public safety concerns ( SNH pers comm). SNH are in the process of developing in-house databases which will contain much of the information sought in relation to indicators. However, there remain some significant gaps relating to some social and economic impacts, particularly those relating to the wider economic impacts of conservation land management on tourism and the wider community recognition of the importance of conservation sites in local identity.
Summary and conclusions
4.36 In terms of the two core principles of diversity and engagement/participation invoked by the LRPG, the changes introduced in 2004 are likely to have had a very modest effect. The changes in designation and management procedures do not significantly add to the diversity of forms of landownership and occupancy in Scotland. Most of the procedures were there in similar form prior to the 2004 Act and the new provisions revise rather than fundamentally modify the scope for new SSSIs, scope for expansion or removal of SSSIs and a series of management procedures. There is certainly more scope for landowners to challenge the basis of designation by 2004, but much of the scope for this was provided by the 1991 Natural Heritage (Scotland) Act.
4.37 There is little in the old or the new measures dealing with SSSIs that could be seen to enable greater community engagement in decisions about how sites are to be managed. The system is dominated by structures which largely cede decision-making poweres regarding designations to scientific experts. Appeal procedures to the land court provide recourse to a less overtly scientific expertise for some review procedures but these actions would proceed regardless of any local discourses on the values of nature or natural places.
4.38 In terms of the contribution of the reformed SSSI system to sustainable rural development, it can be argued that a previously contentious arena of policy which had aroused much antagonism between land owners/occupiers and nature conservation interests has been largely resolved. In some situations, it seems likely that there are discernible benefits to rural development in that: transaction costs of policy negotiation have been reduced; incomes may be supported by positive conservation management, property values may be enhanced by biodiversity interest in land; commercial enterprise (such as ecotourism) can be connected to biodiversity values; public understanding may be enhanced; and more open social and policy networks have emerged between owners and occupiers and nature conservation interests. It is also to be hoped that the new system delivers enhanced biodiversity protection and management and this should be evidenced in the enhanced proportion of sites under favourable or unfavourable improving conservation status. 6
References
Cox, G., Lowe, P. & Winter, M. (1990) The Voluntary Principle in Conservation, Chichester: Packard.
Falconer, K. and Saunders C. (2002) Transactions Costs for SSSIs and Policy Design, Land Use Policy, 19, 157-166.
Johnston, E. and Soulsby, C. (2006) The role of science in environmental policy: an examination of the local context. Land Use Policy. 23, 161-169
Mather, A.S. (1993) Protected areas in the periphery: conservation and controversy in northern Scotland, Journal of Rural Studies, 9940 371-384
National Audit Office (1994) Protecting and Managing Sites of Special Scientific Interest in England. London HMSO
Pennington, M. (1996) Conservation and the countryside: by quango or market,IEA Studies on the Environment No 6
The Royal Society (2007) http://www.royalsoc.ac.uk/displaypagedoc.asp?id=6205
Rayment, M. (1997) Working with Nature in Britain: Case Studies of Nature Conservation, Employment and Local Economies.RSPB and Birdlife International, Sandy, Beds
Roberts, D. et al. (2001) Nature Conservation Designation and Land Values, Scottish Executive Central Research Unit, Countryside and Natural Heritage Research Programme Research Findings No 22
Scottish Executive (2004) Scotland's Biodiversity: it's in your hands, Scottish Executive: Edinburgh.
Tomkins, S. (1989) Forestry in Crisis, Croom Helm, London
Winter, M. (1996) Rural politics: policies for agriculture forestry and the environment, Routledge : London
Annex 4.1 Contacts and questions
List of organisational key contacts
Scottish Natural Heritage (3)
RSPB (1)
NFUS (1)
Scottish Estates Business Group (1)
Scottish Land and Business association (1)
The National Trust for Scotland was contacted but no telephone interview was undertaken.
Questions asked of key contacts
To what extent do you regard the SSSI designation and management proposals of the Nature Conservation (Scotland ) Act 2004 as belonging to the suite of land reform measures?
What are the principal ways, if any, in which SSSIs post 2004 Act, add to the diversity of land ownership in rural Scotland?
What do you regard as the scope for public engagement with decisions in the SSSI designation and management process port 2004?
Do the post-2004 arrangements impact on Scottish rural livelihoods in any ways (beneficial or adverse) and if so are the new arrangements an improvement on the earlier arrangements? Please specify why you think this to be the case.
If you were to seek to measure the benefits of the new SSSI procedures (regardless of whether you see them as a land reform measure) what would you see as the most important things to measure?
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