The cost to the transport sector from invasive non-native species in Great Britain has been estimated at circa £81 million per annum and the total cost to the economy at circa £1.7  billion per annum (endnote 1).  The draft Infrastructure Bill contains new powers which when  implemented will allow environmental authorities to compel landowners to take action on invasive  non-native species.

Quick summary

The Infrastructure Bill currently progressing through Parliament provides for new species control  agreements and orders.

Agreements may include provisions on the cost of proposed operations. The Bill also confers powers  on relevant authorities to recover their costs if they, instead of the landowner, carry out  operations pursuant to a species control order.

While much of detail on the new powers remains to be clarified, it seems fairly clear that any  landowners affected through environmental authorities using the new powers when implemented are  likely to incur direct and indirect costs.

The new powers are likely to affect particularly landowners of larger brownfield sites.

The Government is not proposing secondary legislation, but to clarify process and practice in a  detailed code of practice.

The Infrastructure Bill

Part 2, Clause 16 inserts a new subsection 14(4A) in the Wildlife and Countryside Act 1981 (the  1981 Act) providing for measures relating to species control agreements and species control orders  to be contained in a new Schedule 9A to the 1981 Act.

If implemented, Clause 16 will allow certain environmental authorities to take action to eradicate  or control invasive non-native species (INNS) that pose serious threats to biodiversity, other  environmental interests or social or economic interests.

Proposed Schedule 9 provisions - Definitions

Species is defined as any kind of animal or plant. A species is 'invasive' if, uncontrolled, it would be likely to have a significant adverse impact on,  biodiversity, other environmental interests, or social or economic interests. A species is defined  as 'non-native' if it is listed in Part 1 of Schedule 9 1981 Act, or in the case of a species of  animal, it is not ordinarily resident in, or a regular visitor to, Great Britain in a wild state.

The Environmental Authorities in relation to premises in England are: the Secretary of State most likely DEFRA, The Environment Agency, Natural England, and  the Forestry Commissioners. In relation to Wales it is the Welsh Ministers and Natural Resources  Wales.

The Owner means a person who is for the time being entitled to dispose of the fee simple of the  land, or a person in possession under a lease.

Species control operations are to do one or more: eradicate, control, prevent an invasive  non-native species from returning to premises.

The key provisions, as they are currently contained in the draft Infrastructure Bill are summarised  below.

Species Control Agreements

  • The Environmental Authority (EA), may enter into a species control agreement, with an owner  (where there are multiple owners the 'most appropriate one'), of any premises where an INNS is  considered to be present. The agreement will set out operations required to be carried out to  address INNS, by whom and in what timescale. It may include supplementary provisions e.g. it may  specify payments to be made to cover costs of the operations.
  • Before issuing an agreement the EA must consider the proportionality of a proposed agreement.
  • If, after 42 days (beginning with the day after the offer was made), no agreement is reached,  or an owner refuses to enter into any kind of agreement, or the terms of an agreement have not been  adhered to, or no owner has been identified in relation to the premises, the EA may then issue a  species control order, see below.
  • Only the Secretary of State in England and the Welsh Ministers in Wales may enter into an  agreement that relates to premises that consist of a dwelling.
  • An EA will not be liable to anyone with an interest in the premises, other than the owner who  entered into the agreement, for anything done by the EA pursuant to that agreement.

Species Control Orders

  • If no agreement is reached (see above), the EA may make a species control order.
  • If the EA has been unable to identify an owner having placed a site notice of its wish to enter  into an agreement for a minimum of 5 days it may then make an order. •   In exceptional circumstances, the EA may issue a species control order in an emergency without first offering a species control agreement. This is in circumstances where it considers that the making  of the order is urgently necessary.
  • Before making an order the environmental authority must consider the proportionality of the  proposed order.
  • An order must state that an owner is required to take action to eradicate, control or prevent  INNS, or that an EA proposes to do so, or, in certain cases, both.
  • Only the Secretary of State in England and the Welsh Ministers in Wales may make an order that  relates to premises that consist of a dwelling. Appeal
  • An appeal may be made by the owner of the affected premises to the First-tier Tribunal  (Environment), against the making of the order or against any provision of the order, within 28 days beginning  with the day on which notice of the order is given. The Tribunal may affirm the order, or direct  the EA to revoke or amend the order. It may suspend an emergency order. The Tribunal has power to make such order as it thinks fit.

Enforcement

  • If an order is not complied with, the EA will have the powers to carry out the operations  themselves, and to recover from the owner any expenses reasonably incurred.
  • Failure to comply with an order, without reasonable excuse, or intentionally obstructing  operations required or proposed under an order, will be an offence liable on summary conviction to  imprisonment not exceeding 51 weeks, or a fine, or both.
  • See also above, failure to reach or adhere to an agreement may lead to the EA making a species  control order.

Powers of Entry

  • Powers of entry are provided in relation to the determination, inspection and enforcement of  agreements and orders. In certain circumstances entry to premises must be authorised by warrant.
  • A person may not enter premises (under the relevant power) with a view to establishing whether  an invasive non-native species is present unless the EA has reasonable grounds for suspecting that  it is.

Compensation

  • The Secretary of State may make provision for compensation payable to the landowner in respect of financial loss resulting from a species control agreement, or the exercise of the powers of entry.

Code of Practice

  • The Secretary of State and Welsh Ministers must issue a code of practice concerning the application  and scope of species control agreements and orders. The Secretary of State must consult with the other EAs before issuing, revising or replacing the code, and the code must be appropriately published.

Use of the species control powers

The policy intention is that the new powers to make orders should be used in exceptional  circumstances; where a voluntary approach cannot be agreed and there is a clear and significant  threat from inaction. It is intended that they will be used primarily to support national or  regional eradication programmes where a voluntary approach has failed.

The Government has stated that the routine use of these powers would generally be considered  inappropriate for widespread species, such as Japanese knotweed. In situations where a landowner is  responsible for the release of an invasive species it is expected that the landowner would be  accountable for costs.

Comment

The detail of how the agreement and orders will work in practice will be left to a code of  practice. Preliminary thoughts are that, on the current drafting, there are likely to be some  practical issues that will need to be clarified including:

  • the definition of owner,
  • the determination of the 'appropriate owner',
  • costs associated with agreements and orders, and
  • clarification around the operation of the proposed power of entry and associated compensation and liability arrangements.

More clarity is needed in which circumstances it is envisaged that these powers might be used. The  Government has stated that the powers are not intended for widespread species. While it has not  been confirmed what the powers are intended to be used for a look on the GB non-native species  secretariat webpage reveals that species alerts have been issued in relation to the Quagga mussel,  Asian hornet, Killer shrimps, Water primrose, and Carpet Sea-squirt.

The draft Bill does not currently provide for registration of agreements and orders as land  charges. So no provision is currently designed to alert a potential purchaser of land subject to a  species control agreement or order.

Equally unclear is how compensation would be calculated in relation to the very extensive powers of  entry which the draft Bill provides. The Law Commission recommend calculation by reference to the  condition that the land or property was in immediately before the control operation, but not  including compensation for presence of the species. It is to be hoped that these and other matters  will be clarified in the promised code of practice.

During the debates on the provisions in the House of Lords in July the Government confirmed that it  intends to engage with stakeholders on the code of practice, and it did not rule out a full public  consultation. It undertook to confirm, prior to Report, the process of engagement (endnote 2).

The Committee stage is set to continue on 14 October 2014, but a date for the Report stage has not  yet been set.