5. THE RELEASE OF NON-NATIVE PLANTS
5.1 This chapter explains how the Wildlife and Countryside Act 1981 controls the introduction of non-native plants into the wild. It explains a number of key terms which are used in the legislation. It also sets out practical examples which help to explain what type of activity may or may not result in a criminal offence being committed.
5.2 There are many reasons why plants (whether native or non-native) should not be introduced into the wild, including:
- the climate and habitat may not be appropriate for its survival;
- diseased plants may infect wild populations which have no immunity against certain diseases;
- non-native plants may supply a food source or habitat that sustains another non-native species, which would not otherwise survive in that location;
- those that do survive may establish and become invasive.
5.3 For these reasons the 1981 Act makes it a criminal offence in specific circumstances to introduce non-native plants into the wild. There are two specific ways in which a criminal offence may be committed:
- Plant in the wild - it is an offence to plant in the wild any plant outwith its native range 12
- Cause to grow in the wild- it is an offence to cause to grow in the wild any plant outwith its native range 13.
5.4 A full description of each is set out below.
Planting in the wild
5.5 Planting includes placing or setting seeds, seedlings or plants (or parts of plants) into a medium from which they can grow. This includes placing an aquatic plant (or propagating parts of that plant) into water.
5.6 The term "in the wild" encompasses both natural and semi-natural habitats in both rural and urban environments.
5.7 There are a number of areas that are not considered to be in the wild and these are outlined in the table below. Although it is not an offence to plant or cause a non-native species to grow in these areas, it may be an offence to permit a non-native species to spread from such an area into the wild.
Table 2 - Circumstances in which a type of plant is not considered to be growing in the wild
a) Agricultural and horticultural land and premises
Areas used for commercial production of agricultural crops, fruit and vegetables, flowers, ornamental plants and trees, including nurseries, seed growing and Christmas tree production. Includes the reseeding of grassland for extensive grazing.
b) Forest or woodland areas
Forestry under Forestry Commission Scotland ( FCS) and other approved schemes which contribute to the Scottish Forestry Strategy in addition to woodland being grown for commercial cropping.
- all managed woods where planting is authorised by FCS;
- specific grant support approved by FCS or other bodies, for example under the Scottish Rural Development Programme;
- approved design plans for management of the National Forest Estate;
- felling licenses where replanting conditions are attached;
- Environmental Impact Assessment (Forestry) Regulation approvals for afforestation projects.
c) Amenity locations:
- Amenity greenspace - landscaped areas providing visual amenity or separating different buildings or land uses for environmental, visual or safety reasons
- Roadside verges are in a built-up area. Elsewhere, verges are wild.
- Public parks and gardens - areas of land normally enclosed, designed, constructed, managed and maintained as a public park or garden. These may be owned or managed by local authorities, charities (such as the National Trust for Scotland) or community groups. This includes semi-natural areas within designed landscapes but does not include land maintained as a natural area for public recreation, such as Holyrood Park and many country parks.
- Civic space - squares, streets, car parks and waterfront promenades, predominantly of hard landscaping that provide a focus for pedestrian activity, but may include plants in containers or beds.
- Play space for children and teenagers - areas providing safe and accessible opportunities for children's play, usually linked to housing areas.
- Sports areas - large and generally flat areas of grassland or specially designed surfaces, used primarily for designated sports.
d) Burial grounds
Including churchyards and cemeteries.
e) Allotments and community growing spaces
Areas of land for growing fruit, vegetables and other plants, either in individual allotments or as a community activity. (Most allotments are owned by the local authority but they can also be owned by individual allotment associations.)
f) Private gardens
This is normally defined as the garden ground around someone's house, within the curtilage of their property - usually surrounded by a wall, hedge or fence or some form of demarcation. Gardens also include areas of lawn, flowerbeds, greenhouses and vegetable or fruit gardens.
5.8 It is essential that you take all reasonable steps and exercise due diligence when you are looking after plants.
5.9 An offence is not caused if the planting of a non-native plant in the wild is authorised by an order made by the Scottish Ministers 14 or through a licence 15. Further information on orders and licences which have been granted can be obtained from the Scottish Government by e-mailing firstname.lastname@example.org or telephoning 0131 244 1621.
Causing plants to grow in the wild
5.10 Causing a plant to grow in the wild means that the plant becomes present in the wild as a direct result of someone's actions, even though they did not specifically plant it there. Some examples of actions that may cause a plant to grow in the wild include:
- a management technique that resulted in the spread of the plant (such as strimming Japanese knotweed);
- the planting of a non-native plant in a place other than the wild (such as a garden) with the result that the plant spreads into the wild (such as a native forest adjacent to the garden);
- the inappropriate disposal of plant material (fly-tipping), leading to plant growth 16.
5.11 It is important, therefore, that you take reasonable steps when planting in an exempted (non-wild) area to prevent plants spreading into the wild. Reasonable steps are discussed in more detail below along with measures that can be taken to prevent an offence occurring.
5.12 You should be aware of the risk of anything you plant in an exempted (non-wild) area, such as a garden or field, spreading to the wild. Areas in which efforts are not made to control the particular species which grow, such as road verges and boundary hedges, may act as stepping stones to wild areas.
5.13 It is essential that you take all reasonable steps and exercise due diligence when you are looking after plants. Some practical examples are set out below.
5.14 A company moving materials such as soil that contains or may contain plants should follow good practice guidance ( www.netregs.gov.uk ); otherwise they could be responsible for a plant contained within the material spreading to a new location outwith its native range.
5.15 There are a number of steps you could take to avoid the situation where non-native plants that you are responsible for end up growing in the wild.
- In an exempted area, such as a garden or amenity ground, you should consider whether the non-native plant is providing any benefit (such as financial or aesthetic). If it isn't, then you could consider using a native species instead.
- The location of the exempted (non-wild) area can also be important. For example, you may need to take more care with non-native species if you are planting in an area close to the countryside than in the middle of a town.
- Within exempted (non-wild) areas, non-native species should not be planted in or along watercourses or other transmission corridors where seeds or plant fragments are likely to be spread over long distances.
5.16 Where non-native plants have been planted in exempted areas, reasonable steps should be taken to reduce the risk of these plants spreading into the wild. The appropriate management will depend on the circumstances and the plants in question, but could include:
- monitoring to detect spread of non-natives toward wild land;
- removing regeneration of non-native species that are spreading from exempted areas;
- using root barrier fabrics to contain the spread of plants with strong rhizome systems
- preventing or reducing seed production by deadheading plants after they have flowered or using sterile varieties
5.17 Put simply, the key need is to manage an exempted area responsibly and prevent the spread of non-native plants into the wild. In this way, you will avoid committing any offence, or will be able to demonstrate that you have exercised due diligence.
5.18 If you are not responsible for planting something in an exempted area (if for example it has spread from neighbouring land, or was present before you became the owner of the land) then inaction to prevent further spread is not considered to be causing the plant to be in the wild.