On 29 September 2014 the European Council adopted a new EU Regulation 2013/0307 to prevent and manage the threat from invasive non-native species (such as Japanese knotweed).  In parallel with the new EU Regulation and following on from the 2014 Queen’s Speech and Law Commission recommendations published earlier in the year, new species control procedures have also been proposed in England and Wales by virtue of the provisions contained in the Infrastructure Bill with a view to addressing the increasing threat that invasive non-native species pose to biodiversity, property, infrastructure and the economy; and with a view to strengthening insufficient powers contained in the existing laws.

Why is this important?

Some 12,000 species in European countries are alien, of which roughly 10 to 15% are estimated to be invasive.  Species like Japanese knotweed, Giant hogweed, signal crayfish, Zebra mussels and muskrats impact human health, cause substantial damage to forestry, crops and fisheries, and congestion in waterways.  Japanese knotweed for example inhibits the growth of other plants, outcompetes native plants, and seriously damages infrastructure, with substantial economic implications.  Studies suggest that in England, Scotland and Wales, this one plant alone causes €205 million of damage each year.  It will therefore be crucial for property owners and also managers of property assets to have a good understanding of the impact that the new EU and domestic measures are going to have.  Specifically there is likely to be large variation in the budgetary requirements that will need to be allocated to the clear up and control of invasive alien species including Japanese knotweed.

EU Biodiversity 2020 Strategy

In 2011, the European Commission adopted a new Biodiversity Strategy for the EU.  The Biodiversity Strategy lays down specific targets and milestones designed to protect and improve Europe's biodiversity in the period to 2020.  The Strategy calls on Member States to impose tighter controls on invasive alien or non-native species of plants and animals by 2020 and the new EU Regulation 2013/0307 (the IAS Regulation) is the key legislative driver for such change.

IAS Regulation – key provisions

Within a year of the IAS Regulation coming into force the European Commission is to adopt an open list of invasive alien species that cause the most physical damage.  The list is to be drawn up in collaboration with Member States on the basis of comprehensive risk assessments and robust scientific evidence.  The list will be reviewed and updated every six years.  Species on the list will be restricted from being brought into the territory of the EU and from being kept, bred, transported to, from or within the Union, placed on the market, grown or released into the environment.  A surveillance system for early detection and measures for rapid eradication is also to be established.  Penalties will have to be levied by Member States if the Regulation is not complied with.  The Regulation also provides for a system of authorisations and permits to allow certain activities based on invasive alien species.

Great Britain – existing laws

Currently Scotland has strong legislation in place to control the Japanese Knotweed (see below re species control procedures).

Provisions in the Wildlife and Countryside Act 1981 (WCA) make it an offence in England and Wales to plant or cause to grow in the wild any plant listed in Part 2 of Schedule 9 such as Japanese knotweed.  This means that owners or occupiers are implicitly required to manage Japanese knotweed on their premises or land and put in place appropriate measures which would prevent it from spreading onto third party land.  This aspect of the law is rarely enforced however.

On 9 March 2010 the decision was taken to release into the wild a Japanese psyllid insect (in England) which has been licensed by the UK Government for biological control of the plant.

When in waste form (say when dug up or cut down) there are particular measures to be taken with regard to its management.  These are fairly well known by waste management contractors and real estate developers.  The onus is on the waste producer not to dispose of Japanese knotweed to an unlicensed site.  Once the knotweed reaches a licenced waste facility PAS 100:2011 requires the operator of that facility to identify the knotweed in the waste before composting as the legal ramifications of the plant finding its way into the composting stream can be significant.

Proposed species control procedures

In February 2014, as part of its final report Wildlife Law: Control of Invasive Non-native Species, the Law Commission recommended that an invasive species control procedure should be introduced to allow the relevant bodies to make Species Control Orders (SCOs) to control invasive non-native species in England and Wales.  The procedure would be modelled on the one introduced in Scotland by the Wildlife and Natural Environment (Scotland) Act 2011.  The proposed model includes a new system of entering into Species Control Agreements (SCAs) between the relevant local authority and the owner/occupier where the invasive species have been identified.  Failure to follow an SCA can then lead to an SCO being made.  Further non-compliance can then result in enforcement of the order with the relevant local authorities undertaking operations themselves or arranging for them to be implemented and recouping the costs of the works.  The Infrastructure Bill which is currently making its way through the committee stages in the House of Lords incorporates the Law Commission recommendations in Part 2 of the Bill.  The Bill lays down  provisions about species control agreements and orders by virtue of a new Schedule 9A which is to be inserted into the WCA.

Proposed offences and penalties

The Law Commission recommends the creation of three offences to support the invasive species control procedure:

  1. An offence for failing to carry out an operation required by the SCO without reasonable excuse.
  2. An offence of intentionally obstructing an authorised person carrying out an operation required by an SCO.
  3. An offence of carrying out, causing or permitting to be carried out, any operation excluded by the SCO, without reasonable excuse.

The offences are to be triable summarily only with a maximum of six months' imprisonment or a maximum fine of £40,000.

Comment

If the provisions in the Infrastructure Bill are implemented in England and Wales, they will bring the requirements for the control of invasive non-native species in line with those that already apply in Scotland and that are required to be implemented by the EU Regulation.  Whilst it remains to be seen how the new restrictions would work in practice, a lot would depend upon the existing use or intended use of sites as to how Japanese knotweed will be dealt with.  In some instances it may be possible to use a simple herbicide (perhaps over several growing seasons) in order to try to control the spread.  However, in other more pressing situations or where potential contamination from a herbicide would be unacceptable, the costs of removal of such controlled waste could be significant.  Independent advice to ensure that appropriate measures are taken and are appropriately costed may be required in many instances.

To access the Law Commission report click here

To access the Infrastructure Bill click here

To access the EU Regulation click here