Biodiversity - meeting our '30 by 30' commitment on terrestrial and freshwater sites: consultation

Section Two: Proactive Management of Protected Areas and Other Important Areas for Biodiversity

Current scheme for managing Protected Areas

The focus for protected areas is the ‘natural features^[7]’ for which the sites were selected. The reason such sites are designated is to protect those features from loss or damage, mainly at the hands of people, rather than to prevent degeneration through natural processes, or to actively promote the recovery of biodiversity within the site. This protection from loss or damage is achieved for SSSIs on land through a process known as a consenting regime which sets out what is permitted in terms of the day-to-day management of land for landowners and land managers who own or have responsibility for a protected area. Management of the land in most cases means the farming, forestry or other land-management activities that are permitted, rather than care of the protected features.

In most cases, the appropriate management of protected areas is secured voluntarily by NatureScot and other public bodies working with landowners and managers to agree and implement the required management. If a land manager wishes to change the way that they manage a protected area (including increasing or decreasing stock numbers to change grazing density), they must apply for a Consent from NatureScot. If the proposed change is thought likely to be damaging, NatureScot will discuss putting in place a Management Agreement if the proposed change forms part of the established management of the land.

Management incentives from the Scottish Rural Development Programme (SRDP) support land managers to manage for biodiversity on protected areas. NatureScot can make individual Management Agreements to support management change which will restore or maintain protected features. This generally happens in cases which require specialised management not available through the SRDP’s agri-environment or forestry support.

In the event that efforts to reach a voluntary agreement fail, there are a range of enforcement mechanisms available under current legislation which reflects the national and international importance of the features identified for management of protected areas. This includes:

• Land Management Orders (LMOs) and Nature Conservation Orders (NCOs) which can be made under the Nature Conservation (Scotland) Act 2004 in relation to the management of land which forms part of a SSSI, land which is contiguous to, or NatureScot considers associated with, a SSSI, or any combination of these land types^[8].,
• There are also Agreements and Orders which can be made under other legislation, which is not the subject of this consultation, including the Deer (Scotland) Act 1996 in relation to the management of deer and the Wildlife & Countryside Act 1981 in relation to the control of invasive non-native species (INNS), and
• Ultimately, criminal proceedings to impose sanctions in the face of failure of other forms of enforcement or where wilful damage has occurred.

It is also possible in some circumstances for authorities to consider making Byelaws.

Powers to make a LMO enable NatureScot to secure management of land for the benefit of its natural features. This can only be done when a management agreement with NatureScot has been refused by an owner or occupier of the land. An LMO is, therefore, in effect a compulsory management agreement.

The issues

Whilst the existing protected areas system provides means by which specific damaging operations can be regulated, the present system can fail to deal with chronic pressures. Examples might include over- or under-grazing, or the spread of INNS, where the absence or withdrawal of management may be causing a slow decline in the condition or health of particular features on a site. Under the current legislative regime is that there is no general obligation on land managers to improve or restore features in unfavourable condition or to take action to prevent them from deteriorating to unfavourable condition.

Millennia of human intervention has had a profound effect on Scotland’s landscape through changes in land use, increase in herbivore numbers and invasive non-native species.

In practice, this means that most habitats identified as natural features in protected areas and / or habitats which support protected bird and animal species will require management intervention to remain in good condition. If such management is not in place, negative issues can occur, such as:

• Loss of biodiversity in open habitats due to colonisation by invasive species (both native (e.g. bracken) and non-native (e.g. Japanese knotweed)).
• Overgrazing, leading to a short-term loss of biodiversity and, in the longer term, serious threat to the ability of some habitats to sustain themselves due to the prevention of species regeneration (e.g. woodland).
• Loss of biodiversity due to management activity stopping or removal of grazing which can lead, for example, to the spread of coarse, tussocky grasses which shade out other species and impoverish once species-rich grassland.

Existing statutory provisions set out a proportionate process for securing the management of protected sites which can involve:

1) identification of a habitat, or species requiring protection and / or of problems being caused by inadequate management (e.g. overgrazing)

2) agreement with the land manager to undertake activities designed to maintain the habitat and / or manage the environmental factors causing a problem

3) in the event that an agreement is not implemented, imposition of an Order setting out conditions / actions which must be complied with by the land manager

4) in the event that those conditions are not complied with, criminal prosecution.

A lack of positive management on a site is unlikely to be classed as damage under current provisions. NatureScot are therefore reliant on voluntary agreements to put management arrangements in place, with the last resort being the Land Management Order if negotiations over the terms of the agreement break down, or the agreement is not followed. Negotiations for a Management Agreement can be protracted, during which time the issue of concern will not be addressed.

As a result, it is very unusual for the existing process to proceed beyond the second step outlined above; the practice has developed that voluntary agreements supported by grants and other incentive schemes to recompense land managers for their time are by far the most cost-effective means of securing the necessary management of the natural environment.

The use of Orders and / or criminal proceedings are considered to be the very last resort and in most instances it is not considered to be likely or desirable to change that position. However, recognising the national and international importance of the features for which sites are designated, and in light of the ongoing decline in biodiversity in Scotland, it appears that the current system could strike a better balance. We should therefore look at the range of interventions which are available under the current law and consider whether action can be taken to make them more effective, or to supplement what currently exists.

Supporting the 30x30 Network Outwith Protected Areas

Outwith protected areas, there is now a substantial body of evidence which demonstrates a wider and sustained decline in biodiversity in Scotland and we should also therefore look at whether the range of tools available to address this is adequate.

We have considered the necessity for additional protection mechanisms to incentivise and enforce activities to secure or require the restoration of nature in areas important for biodiversity. This could also allow land managers to request measures be put in place to provide a governance structure to secure longer term management for biodiversity where initial investment had been made in nature restoration. Such mechanisms could also involve, for example, additional powers for NatureScot to facilitate various measures for the purposes of enhancing the natural environment. The Scottish Government believes that such powers would be proportionate and necessary to allow intervention where required to enhance the natural environment and enable the adaptation of land management to achieve a more biodiverse and climate resilient Scotland.

Such powers could be separate and in addition to the existing intervention powers available to NatureScot. They could be used as a complementary element in addition to current provisions or as a stand-alone intervention, focused on helping us meet our biodiversity and climate targets, rather than identifying ongoing damage and preventing further damage. We will also consider the way in which any new protection mechanism interacts with the existing intervention powers and will give consideration to whether existing powers may benefit from modification to compliment the creation of any new power.

Proposal: Clarifying Existing Protected Areas Provisions on Land

We propose to amend the existing provisions for Land Management and Nature Conservation Orders to clarify their purpose and if necessary strengthen them through clarifying their role in addressing slow deterioration over long periods, such as addressing the threat of invasive non-native species spreading over native habitats such as woodlands. This would ensure that it is beyond doubt that the provisions are able to enforce active management of natural features in protected areas (whether protected habitats in their own right or habitats which support protected species), including where restoration is required.

We would welcome views on this proposal.

Question 2: Should the Scottish Government clarify the existing powers that require management and restoration of protected areas, to make it clear that this requirement also covers protected areas that are experiencing slow deterioration over a long period of time (e.g. invasive non-native species spreading over native habitats such as woodlands)?

• Agree
• Somewhat agree
• Neither agree nor disagree
• Somewhat disagree
• Disagree
• Unsure

Please explain the reasons for your response:

Proposal: Additional means to require, incentivise and enforce activities to secure nature restoration off protected areas

We propose to identify a means of identifying areas on land where there are significant gains to be made in meeting biodiversity and climate objectives through specifying particular management actions. These may often relate directly to, or work alongside, other nature restoration projects. The aim would be to enable NatureScot to work with landowners and managers, setting a regulatory environment. Where appropriate, there would be access to financial support and advice.

The purpose would be to enable necessary management actions to secure restoration of nature across a specified area of land, covering one or more landholdings, to be prescribed by NatureScot under a single legally enforceable direction. Such mechanisms already exist in relation to protected areas and consideration will therefore be given to the need for an additional mechanism or the amendment of an existing mechanism.

Nature restoration in this context would encompass a wide range of objectives including but not limited to tree planting, encouraging natural regeneration, peatland restoration, water management, or natural capital enhancement. The actions could include, for example, the removal of non-native conifer regeneration from native habitats adjacent to plantations, peatland restoration or to foster collaborative working amongst multiple landowners on a site to address widespread issues. Actions prescribed by NatureScot could act as a qualifying criterion for financial or other support.

The primary criterion for such a mechanism would be where NatureScot assessed that there are significant benefits to be achieved through nature restoration over a specified area and that active management will be a key factor in securing those benefits. There would be a defined and transparent process for selecting a relevant area, including publication of assessment material, consultation with interested parties and Ministerial approval.

The mechanism would be active for a specified period of time. There would be set reviews of the progress made during the period it was active. There would be provision to adjust the agreed conditions in terms of their duration or geographical scope. There would also be an appeal process.

We will consider the need for appropriate sanctions in the event of a failure to comply with a required action, for example a direct intervention by NatureScot or those they authorise to complete specified tasks with recourse to cost recovery from landowners. Non-compliance with an action requirement under such a mechanism would be an offence, in a similar way as any refusal or wilful failure to comply with any requirement of a LMO is an offence under section s.36 of the Nature Conservation (Scotland) Act 2004.

The purpose of this mechanism / intervention would be to enable nature restoration over a wide area. It is recognised that to achieve this, land managers may, in some circumstances, need access to financial support and advice. The Scottish Government has a variety of financial schemes for management of the natural environment including support for forestry and peatland restoration and anticipates the development of an active biodiversity credit market. If we were to proceed with this proposal, we would ensure that advice is provided on the available financial support throughout the active period of the mechanism / intervention, which would include information on existing schemes and any new financial support.

Question 3: Should the Scottish Government expand the existing powers to enforce and incentivise management and restoration of protected areas, to cover other land in situations where it has been identified to have significant benefits to be achieved through nature restoration?

These powers would be subject to the following conditions:

• Such areas would be identified through a defined and transparent process, including publication of the assessment material, consultation with interested parties, and Ministerial approval.
• The intervention would only be active for a specified period of time.
• There would be mandatory reviews of the progress made during the period it was active.
• The agreed conditions of the intervention could be adjusted in terms of their duration or geographical scope.
• There would be an appeal process.
• Advice would be provided on the available financial support throughout the active period of the intervention.

• Agree
• Somewhat agree
• Neither agree nor disagree
• Somewhat disagree
• Disagree
• Unsure

Please explain the reasons for your response: