9 CONTROL AGREEMENTS AND CONTROL ORDERS
9.1. This chapter explains how the Wildlife and Countryside Act 1981 provides for the control of invasive species. It includes information on why and how Species Control Orders can be used as well as information on the procedure involved and in what circumstances costs are likely to be recovered.
9.2. Sections 14D to 14O of the Wildlife and Countryside Act 1981 provide for species control orders.
9.3. As noted in Chapter 2, the most cost-effective way of dealing with the problems created by non-native species is to prevent these plants and animals from becoming established in the wild. If they have recently become established, the need is to rapidly control or remove them before they become a widespread problem.
9.4. Once they become widely established, full-scale eradication is only feasible or cost-effective in a small number of cases. However, there are some situations where control action is very important and can be effective in reducing future impact. These include:
- Where action can prevent an invasive animal or plant becoming established or spreading in new areas (at some distance from existing populations); or
- Where a strategic eradication programme is at risk, due to a landowner or occupier failing to participate or refusing access.
9.5. Species Control Agreements and Orders enable relevant bodies (Scottish Ministers, Scottish Natural Heritage, the Scottish Environment Protection Agency and the Forestry Commission Scotland) to set out measures that must be taken to control or eradicate an invasive non-native animal or plant. The lead responsibilities of these bodies are set out in Chapter 10.
Species Control Agreements
9.6. Where a relevant body is aware of a situation in which there is an invasive plant or animal outwith its native range where control is considered to be both viable and of sufficient priority, it must first attempt to make a Species Control Agreement with the owner or any occupier of the land (unless the situation is urgent in which case an Emergency Species Control Order can be made - see below).
9.7. A Species Control Agreement is a voluntary agreement that sets out the same information as a Species Control Order - what must be done by whom and by when in order to control an invasive non-native plant or animal. However, this is a voluntary agreement and there is no penalty for non-compliance (although it may result in a Species Control Order being made).
Species Control Orders
9.8. Species Control Orders can be made in the following circumstances:
- where 42 days have elapsed since the relevant body made the offer of a Species Control Agreement and the owner or occupier has not signed up to it;
- where the owner or occupier has refused or failed to enter into a Species Control Agreement;
- where the owner or occupier has entered into a Species Control Agreement but has failed to comply with the terms of that agreement;
- where the relevant body has been unable to find out the name or address of the owner or any occupier and has not therefore been able to offer into a Species Control Agreement;
- where the relevant body considers that the making of a Species Control Order is urgent in which case an emergency Species Control Order can be made (see below).
9.9. The relevant body must give notice in writing to the owner and any occupier that a Species Control Order is being made. The notice must have a copy of the Order attached and set out the reasons for making it. There is then a period of 28 days before the Order can come into force, during which time an appeal may be made (see below for more information on the appeals process). The Order will come into force either:
- 28 days after the date of the written notice, if no appeal is made (unless a later date is specified in the Order); or
- if an appeal is made, after it is determined by a sheriff or withdrawn.
9.10. A Species Control Order will:
- describe the premises to which the Order relates;
- be accompanied by a map showing the premises to which the Order relates;
- specify the type of invasive animal or plant to which the Order relates to;
- specify the operations to be carried out, who is to carry them out and how and when they should be carried out;
- specify operations that must not be carried out on the premises (for example, actions which might spread the species further);
- specify the date the Order will come into effect and the period over which it will have effect;
- set out the circumstances in which an appeal against the Order may be made.
9.11. The term premises has a wide definition and it can therefore apply to boats, marinas as well as land.
Emergency Species Control Orders
9.12. An Emergency Species Control Order may be made when the relevant body considers that the making of a Species Control Order is urgently necessary. The following are some hypothetical examples of what might be considered urgent situations requiring an emergency order:
- A boat is found to have the highly invasive carpet sea squirt ( Didemnum vexillum) on its hull and the boat owner is about to sail up the west coast of Scotland, thereby potentially spreading the sea squirt. An Emergency Species Control Order could be made to ensure the sea squirt is removed from the hull before the boat is allowed to sail.
- A type of crayfish is present within a set of ponds on land, close to a water course that does not contain any non-native crayfish. An Emergency Species Control Order could be made to ensure control is undertaken to prevent the crayfish infesting a river system.
9.13. An Emergency Species Control Order comes into force as soon as notice is given to the owner and any occupier of the land, and expires 49 days after it is made. An appeal can be made against an Emergency Species Control Order within 28 days of notice being given. The sheriff can decide whether or not to suspend the effect of the Order while the appeal is under way.
Offences and Entry
9.14. Section 14K of the 1981 Act makes it an offence to fail without reasonable excuse to carry out an operation required under a Species Control Order, to carry out an excluded operation, or to intentionally obstruct any person carrying out an operation required to be carried out under an order.
9.15. A relevant body may authorise a person, in certain circumstances, to enter premises to determine whether to enter into a Species Control Agreement or to make or revoke a Species Control Order. In addition they may enter premises or land to determine whether a Species Control Order offence has been committed or to carry out work identified in a Species Control Order.
9.16. The legislation provides that an authorised person may take someone else with them as well as machinery in order to assist them in exercising the power. For example, this may be an expert on control methods for the invasive plant or animal. If there is any damage caused by the authorised person or any person accompanying them, the relevant body must pay compensation.
9.17. If the relevant body finds that the operations required by the Species Control Order have not been carried out as required, or that banned operations have been carried out, the relevant body can take action to ensure the requirements of the Order are met. This may mean entering the premises and carrying out the operations themselves. In some cases more extensive action may be needed to remedy the effect of inadequate previous control, or of banned operations.
Recovery of costs and the "polluters pays principle"
9.18. The Bill enables relevant bodies to recover the costs of operations undertaken to enforce a Species Control Order. This power is discretionary and it is expected that this will depend on the particular circumstances. The intention is that costs will be recovered where it is fair and proportionate to do so, in accordance with the "polluter pays" principle. In others words, where it is clear that the person is responsible for the problem, particularly if they have actively released the animal or plant in question. There may also be other cases where it is fair to recoup some or all costs for example where the owner or occupier is considered to have caused the species to spread.
9.19. The following provides hypothetical practical examples of Species Control Orders that might be made and why costs may or may not be recouped:
- A population of American bullfrogs is detected in a series of ponds on private land
The landowner has admitted to releasing the bullfrogs but refuses access to their land. This is the only known population of bullfrogs in Scotland. The GB Risk Assessment for bullfrogs identifies them as high risk and notes that they may predate on, compete with, and pass disease on to native species. They are also known to be a vector of Batrachochytrium dendrobatidis, the causative agent for chytridiomycosis, a potentially catastrophic fungal disease of amphibians.
SNH consider that measures are required to prevent the bullfrogs spreading. A Species Control Agreement is refused and the landowner refuses access to land. A Species Control Order is made by SNH, which sets out the operations that SNH will undertake and the period over which this will take place. Costs are recouped from the land-owner on the basis of the polluter pays principle, as the owner has admitted the release.
- A catchment scale eradication programme is underway for giant hogweed in Argyll
A number of landowners/occupiers are identified in the catchment that have areas of giant hogweed on their land. SNH enters into voluntary Species Control Agreements with the various landowners and occupiers. One occupier fails to take action as specified in the Species Control Agreement, leaving an untreated and seeding population of giant hogweed which will rapidly spread into surrounding areas threatening the success of the whole programme. A Species Control Order is therefore made and the landowner abides by the terms of this Order, which allows access to SNH operatives to carry out control work. Costs are not recovered as it is considered disproportionate in the particular circumstances, having regard to the nature of the default, and the fact that the owner did not introduce the species to their land.
Right to Appeal
9.20. Owners and occupiers may appeal to a sheriff if they are aggrieved by the decision to make a Species Control Order or aggrieved by the terms of the Order. An appeal must be made within 28 days of being given notice (in writing by the relevant body) of the intention to make a Species Control Order.
9.21. The sheriff will determine the appeal and must either:
- Affirm the Order;
- Direct the relevant body to amend the Order;
- Direct the relevant body to revoke the Order; or
- Make any other Order as the sheriff sees fit.
9.22. Further appeal from the decision of the sheriff can be only on a point of law.