Non-native species: code of practice

5. The Planting of Non-Native Plants

Summary

What are the offences relating to non-native plants?

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 ^[42] :

• Plant in the wild - it is an offence to plant in the wild any plant outwith its native range
• Cause to grow in the wild - it is an offence to cause to grow in the wild any plant outwith its native range.

What does 'in the wild' mean?

'In the wild' encompasses both natural and semi-natural habitats in both rural and urban environments

What does 'plant' mean?

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.

What does 'cause to grow' mean?

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.

When can you plant non-native plants, or cause them to grow, in the wild?

An offence is not committed if the planting of a non-native plant in the wild is authorised by an Order made by the Scottish Ministers ^[43] or according to the terms of a licence issued by the appropriate authority ^[44] .

If you are in any doubt regarding whether the species you plan to plant is covered by either of the offences then don't plant. Take advice before acting

Introduction

5.1 This Chapter explains how the 1981 Act 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 a non-native plant should not be introduced into the wild, including:

• it may have a seriously adverse effect on other species, the environment or land use
• non-native plants may carry diseases for which native species have no immunity;
• non-native plants may supply a food source or habitat that sustains another non-native species, which would not otherwise survive in that location.

5.3 For these reasons the 1981 Act makes it a criminal offence to introduce non-native plants into the wild ^[45] . 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
• Cause to grow in the wild - it is an offence to cause to grow in the wild any plant outwith its native range.

5.4 A full description of each offence is set out below.

Planting non-native plants 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. It includes everywhere except the areas listed below. Although it is not an offence to plant or cause a non-native plant species to grow in these areas, it can be an offence to permit a non-native plant species to spread from such an area into the wild (see section on causing non-native plants to grow in the wild).

5.7 The below areas are exempted (designated as non-wild) based on the intensity and frequency of the management of the area. It is important to note that it is the certain species uses of land that causes that land to be designated as non-wild rather than whether the land is privately owned or not.

List 2 - Exempted (non-wild) areas.

(It should be noted that these are illustrative examples, much will depend on individual circumstances. ^[46] )

a) Agricultural, horticultural and forestry land and premises

• Areas used for commercial production of agricultural or biomass crops; fruit and vegetables; flowers, ornamental plants, including nurseries; seed growing;
• Areas used for Christmas tree production, nurseries for trees, arboreta and silvicultural research trial areas (provided all of these are regularly monitored);
• Areas of enclosed grassland, used for livestock grazing.

Other activities may also take place on parts of these exempt areas including the growing of trees to create appropriate habitats ( e.g. grazed woodland and wood pasture), creation of conservation headlands or uncropped margins, the planting of game cover crops and the planting of wild bird seed mixes.

b) Amenity locations:

• Amenity greenspace - landscaped areas providing visual amenity or separating different buildings or land uses for environmental, visual or safety reasons
• 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 does not include land maintained as a natural area for public recreation, such as Holyrood Park and large parts of 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 or trees 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.

c) Burial grounds

Including churchyards and cemeteries (provided these are regularly maintained).

d) Allotments and community growing spaces

Areas of land for growing fruit, vegetables and other plants, either in individual allotments or as a community activity.

e) 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.

(f) Roads and railways

Roadside verges and railway embankments in a built-up area. Elsewhere, verges and embankments are wild.

5.8 It is also essential that you take all reasonable steps and exercise due diligence to avoid causing a plant to grow in the wild, outwith their native range, when you are looking after plants (see section on causing non-native plants to grow in the wild).

5.9 An offence is not committed if the planting of a non-native plant in the wild is authorised by an Order made by the Scottish Ministers ^[47] or through a licence ^[48] . Planting of certain beneficial plants is allowed under such an Order. Further information on Orders can be found on the Scottish Government website and information on licences which have been granted can be obtained from Scottish Natural Heritage (see Chapter 10).

Causing non-native 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.

5.11 Some examples of actions that may cause a plant to grow in the wild include:

• a management technique that results 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 woodland adjacent to the garden);
• failing to take proper steps to prevent a non-native plant, which is growing in a place other than the wild such as a garden, from spreading into the wild (such as a native woodland adjacent to the garden);
• the inappropriate disposal of plant material (fly-tipping), leading to plant growth ^[49] .

5.12 It is important, therefore, that you take all reasonable steps and exercise all due diligence when planting in an exempted (non-wild) area, or otherwise dealing with non-native plants, to prevent them spreading into the wild. This is discussed in more detail below along with measures that can be taken to prevent an offence occurring, beginning with some practical examples:

A gardener clearing out their pond should take care when disposing of plant material to ensure it does not spread out of their garden into rivers or lochs. Guidance on suitable disposal such as composting can be found on the Scottish Government website.

An individual participating in watersports such as angling, canoeing, yachting or wild swimming should take precautions to ensure they do not transfer plants from one river, canal, loch or coastal area to another. Guidance on suitable biosecurity measures, such as cleaning equipment, can be found on the Scottish Government website.

A company moving materials such as soil that contains or may contain plants should follow good practice guidance (in the Environment and Efficiency section of www.business.scotland.gov.uk); otherwise they could be responsible for a plant contained within the material spreading to a new location outwith its native range.

5.13 There are a number of steps you could take to avoid the situation where non-native plants that you are planting in an exempted (non-wild) area end up growing in the wild.

• In an exempted area, such as a garden or amenity ground, you should consider whether the use of a native plant would be more suitable, bearing in mind the risk of anything you plant spreading into the wild. Non-native plants known to spread rapidly, for example by producing highly mobile seed, should be avoided.
• 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 wild land or alongside a watercourse which flows through and out of an exempted area into the wild.
• Within exempted (non-wild) areas avoid non-native species in or along watercourses, or other transmission corridors, where seeds or plant fragments are likely to be spread over long distances.

5.14 Where non-native plants have been planted in exempted areas, all reasonable steps should be taken, and all due diligence exercised, 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 the 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.

5.15 Put simply, it is necessary to responsibly manage an exempted (non-wild) area to prevent the spread of non-native plants into the wild. In this way, you should be able to demonstrate that you have taken all reasonable steps and exercised all due diligence to avoid committing an offence in the event that a non-native plant spreads to the wild.

5.16 If you own both the exempted (non-wild) land and the wild land and a non-native plant spreads from the exempted land to the wild land, you will still need to demonstrate that you have taken all reasonable steps and exercised all due diligence to prevent this spread. The fact that you own both pieces of land is not a defence.

5.17 Whilst ownership of wild land is not relevant to the offence of causing a plant to grow in the wild, it would clearly be good practice to work in collaboration with neighbours to control or eradicate a non-native species or to seek to prevent its spread onto a neighbour's land.

Summary of chapters 6, 7 and 8

Keeping invasive species

It is an offence under the 1981 Act ^[50] to keep invasive animals or plants of a type specified in an Order made by the Scottish Ministers.

The keeping of species listed in such an Order may be allowed under licence ^[51] .

Selling invasive species

It is an offence under the 1981 Act ^[52] to

• sell
• offer or expose for sale;
• have in your possession, or transport, for sale;
• publish, or cause to be published, any advertisement for the purchase or sale;

any invasive animals or plants of a type specified in an Order made by the Scottish Ministers.

The term "sale" includes the hire, bartering and exchange of goods.

The sale etc of species listed in such an Order may be allowed under licence ^[53] .

Notification of invasive species

The 1981 Act ^[54] enables the Scottish Ministers to make an Order creating the requirement to notify the presence of any invasive non-native plant or animal These Orders may specify the types of invasive animals or plants that must be notified, the persons (or types of person) who must make a notification, and in what circumstances.

The duty to notify in such an Order may only be conferred on a person (or type of person) who has or should have knowledge of, or is likely to encounter, the animal or plant to which the Order relates ^[55] .