Strategic Environmental Assessment (SEA) of the Scottish Climate Change Bill: Consultation Proposals: Environmental Report

Summary of Proposed Muirburn Provisions within the Scottish Climate Change Bill:

As global warming has an increasing impact on weather patterns, the Scottish Government is consulting on whether there is a need to vary the dates during which land managers can carry out muirburn, as a measure to allow added flexibility in responding to climate change.

Muirburn, used to prevent uncontrolled wildfires and manage habitats is currently permitted from October 1 ^st to April 15 ^th; there are also relevant extension periods.

Rationale:

In the context of climate change there is an opportunity to allow added flexibility to respond to local seasonal change and weather conditions.

It is also possible that conditions may arise during the muirburn season in which muirburn would not be advisable.

There may be a case for provision to impose restrictions on the carrying out of muirburn in specific areas for specific periods of time during weather conditions where the likelihood of loss of control of fire, or the likelihood of significant damage to soils and vegetation through fire, is increased, eg. during or after extended or repeated periods of summer drought, combined with periods of low winter rainfall.

Risks of uncontrolled fire may increase after dry winters, however suitable controlled burning outwith currently specified periods may help to minimise risks.

Muirburn Related Legislation & Codes

Hill Farming Act 1946

http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1946/cukpga_19460073_en_1

The Act provides the restrictions and procedure which must be followed when making muirburn.

The making of muirburn is permitted in Scotland for land below 450m (1500ft) above sea level, between 1 October and 15 April inclusive. This may be extended to 30 April for the proprietor or on the authority of the proprietor. For land above 450m (1500ft), the muirburn season is the 1Oct to 30 April and this may be extended to 15 May for the proprietor or on the authority of the proprietor.

s.24 - Applies to the rights of tenants to undertake muirburn not withstanding any provision in their lease relating to Muirburn Regulation.

s.25 (a)à (d) - These sections lay down the regulatory framework applying to Muirburn and the related offences.

• Burning at night, between 1 hour after sunset and 1 hour before sunrise.
• Leaving a fire unattended.
• Being unable to control a fire or having not made provision for its proper.
• Causing damage to any woodland.
• Causing damage to neighbours' property.

The following acts are offences which are detailed under the code:

• Burning outwith the statutory burning season [Hill Farming Act 1946, s23].
• Burning at night, between 1 hour after sunset and 1 hour before sunrise [Hill Farming Act 1946, s25].
• Leaving a fire unattended [Hill Farming Act 1946, s25].
• Being unable to control a fire or having not made provision for its proper control [Hill Farming Act 1946, s25].
• Causing damage to any woodland [Hill Farming Act 1946, s25].
• Causing damage to neighbours' property [Hill Farming Act 1946, s25].
• Causing damage to a scheduled monument [Ancient Monuments and Archaeological Areas Act 1979, s2(2)a] .
• Failing to take fire safety measures in respect of harm caused by fire. Fire (Scotland) Act 2005, Part 3, s53 & s54.
• Carrying out burning on a Site of Special Scientific Interest, without consent from Scottish Natural Heritage, if burning has been notified as an 'Operation Requiring Consent' [Nature Conservation (Scotland) Act 2004, s19].
• Intentional or reckless harassment of birds listed in Schedule A1 of the Wildlife and Countryside Act 1981.
• Intentional or reckless damage to the natural features of a Site of Special Scientific Interest [Nature Conservation (Scotland) Act 2004, s19].
• Intentionally or recklessly disturbing or destroying the nests, eggs or young of breeding birds [Wildlife & Countryside Act 1981 (as amended), s1, Schedule 1 and Schedule A1] .
• Omitting to give the landlord and adjoining proprietors at least 24 hours written notice of the date, place and extent of intended muirburn [Hill Farming Act 1946, s24 and s25].
• Lighting a fire, or allowing a fire to spread, within 30 m of a road so as to damage the road or endanger traffic on it, without lawful authority or reasonable excuse [Roads (Scotland) Act 1984, s100(c)] .
• Creating smoke that is a nuisance to inhabitants of the neighbourhood [Clean Air Act 1993, s17, refers to an offence under the Public Health (Scotland) Act 1897].

Endangering anyone's health or safety, including members of the public [Health and Safety at Work etc. Act 1974, s2 and s3, Management of Health and Safety At Work Regulations 1999 S.I. 3242].

s.26 - Sets conditions for notices required for Muirburn practice.

s.27 - Offences as to Muirburn and the associated fine tariff levels which can be imposed.

Principal legislation governing muirburn.

Covers the burning of all vegetation on moorland, including plants such as gorse.

It does not refer just to the burning of heather.

In Scotland, below 450 m (1500 feet) above sea level, muirburn is permitted only between the 1st October and 15th April inclusive.

This may be extended to 30th April on the authority of the proprietor or of the Scottish Government (through the Scottish Government Rural Payments & Inspections Directorate).

Above 450 m (1500 feet), the muirburn season is 1st October to 30th April, extendable as above to 15th May.

Generally, the Scottish Government does not encourage burning after the 15th April (or 30th April above 450 m).

The proprietor does not require the permission of the Scottish Government for the extension periods.

Unlike in England and Wales, there are currently no provisions for extensions before or after these dates by either the proprietor or the Scottish Government.

Gradual changes to Scotland's climate are likely to require increased flexibility with respect to dates that muirburn can be authorised.

Appropriate provisions within the Scottish Climate Change Bill could provide this flexibility.

Muirburn Code

http://www.scotland.gov.uk/Publications/2008/04/08154231/0

The cross compliance requirements of the Single Farm Payment ( SFP) require moorland to be maintained in Good Agricultural and Environmental Condition ( GAEC), and the Muirburn Code will be used as the standard expected of land managers.

The Code applies to all areas, regardless of altitude or type of vegetation.

It should not be seen as applying only to grouse moors, as the guidance applies equally to the management of all vegetation by fire.

The Code applies to farmers and all moorland managers and forms part of the compliance requirements for Single Farm Payments.

The code contains a number of situations where burning should not be carried out.

The code explains how to carry out burning, detailing the methods of safe burning.

The code provides details on how to prepare thoroughly before burning.

Changes in agricultural support are increasing the importance of this Code.

Through the use of GAEC, financial penalties could be applied to farmers and crofters in receipt of Single Farm Payment, if the Muirburn Code is breached.

Similarly, gradual changes to Scotland's climate are likely to require increased flexibility with respect to dates that muirburn can be authorised.

Appropriate provisions within the Scottish Climate Change Bill could provide this flexibility.

Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004

http://www.opsi.gov.uk/legislation/scotland/ssi2004/20040518.htm

Regulations outlining Cross Compliance measures including Statutory Management Requirements ( SMR) and Good Agricultural and Environmental Conditions ( GAEC) as pre-requisites for subsidies through the Single Farm Payment Scheme.

In order to continue to receive subsidies farmers must comply with a range of existing EU animal and plant health, animal welfare and environmental law, known as Statutory Management Requirements ( SMRs).

Farmers must also keep their land in Good Agricultural and Environmental Condition ( GAEC).

These latter conditions are mainly designed to ensure a minimum use of farm land, but Scotland has gone further than the minimum requirements by developing various codes of good practice, including the Muirburn Code, which is referenced under GAEC 6.

Full guidance details and relevant updates are available from the Scottish Government web pages on Cross Compliance, available at http://www.scotland.gov.uk/Topics/Agriculture/grants/Schemes/ccompliance

Gradual changes to Scotland's climate are likely to require increased flexibility with respect to dates that muirburn can be authorised.

Appropriate provisions within the Scottish Climate Change Bill could provide this flexibility.

Wildlife and Countryside Act (as amended) 1981

http://www.jncc.gov.uk/page-1377

Principal legislative mechanism for the protection of wildlife in Great Britain.

Requires any land that is identified as being of special interest by reason of any of its flora, fauna, geological or physiographical features to be classified as a Site of Special Scientific Interest ( SSSI) and afforded certain protection against damaging measures

s. 2 - This Section prohibits the intentional or reckless harassment of birds listed within the Act.

It is expected that the provisions of this legislation will not be affected by proposed provisions enabling flexibility with respect to the dates that muirburn can be authorised.

Local advice will likely be required when setting muirburn dates that maintain current provisions with respect to wildlife considerations, eg. nesting and breeding seasons.

Fire (Scotland) Act 2005

http://www.opsi.gov.uk/legislation/scotland/acts2005/asp_20050005_en_1

This Act operates in the situation where there is a failure to take fire safety measures in respect of harm caused by fire.

s53 - Duties of employers to employees

(1) Each employer shall ensure, so far as is reasonably practicable, the safety of the employer's employees in respect of harm caused by fire in the workplace.

(2) Each employer shall-

(a) carry out an assessment of the workplace for the purpose of identifying any risks to the safety of the employer's employees in respect of harm caused by fire in the workplace;

(b) take in relation to the workplace such of the fire safety measures as are necessary to enable the employer to comply with the duty imposed by subsection (1).

(3) Where under subsection (2)(a) an employer carries out an assessment, the employer shall-

(a) in accordance with regulations under section 57, review the assessment; and

(b) take in relation to the workplace such of the fire safety measures as are necessary to enable the employer to comply with the duty imposed by subsection (1).

(4) Schedule 2 makes provision as to the fire safety measures.

s.54 - Duties in relation to relevant premises

(1) Where a person has control to any extent of relevant premises the person shall, to that extent, comply with subsection (2).

(2) The person shall-

(a) carry out an assessment of the relevant premises for the purpose of identifying any risks to the safety of relevant persons in respect of harm caused by fire in the relevant premises; and

(b) take in relation to the relevant premises such of the fire safety measures as in all the circumstances it is reasonable for a person in his position to take to ensure the safety of relevant persons in respect of harm caused by fire in the relevant premises.

(3) If a person falls within subsection (1) other than by virtue of-

(a) having control to any extent of relevant premises in connection with the carrying on by the person (whether for profit or not) of an undertaking; or

(b) owning relevant premises

The Muirburn Code refers to the requirements of this Act.

Proposed provisions within the Scottish Climate Change Bill will pertain to flexibility of dates and not muirburn practice itself, which should always be carried out in line with the Code.

Clean Air Act 1993

http://www.opsi.gov.uk/ACTS/acts1993/ukpga_19930011_en_1

s.17 - This Act prohibits the Creation of smoke causing nuisance to inhabitants of the neighbourhood.

(1) Smoke other than-

(a) smoke emitted from a chimney of a private dwelling in a smoke control area;

(b) dark smoke emitted from a chimney of a building or from a chimney serving the furnace of any fixed boiler or industrial plant; or

(c) dark smoke emitted otherwise than as mentioned in paragraph (b) from industrial or trade premises within the meaning of section 2,

shall, if it is a nuisance to the inhabitants of the neighborhood, be deemed for the purposes of the [1897 c. 38.] Public Health (Scotland) Act 1897 to be a nuisance liable to be dealt with summarily in manner provided by that Act.

(2) In any proceedings brought by virtue of this section in the case of smoke emitted from a chimney, it shall be a defence for the person against whom proceedings are taken for contravention of any interdict or decree granted under section 22 or 23 of the [1897 c. 38.] Public Health (Scotland) Act 1897 for the prevention, removal, remedy or discontinuance of a nuisance to prove that the best practicable means are being or have been employed to prevent the nuisance.

(3) This section extends to Scotland only.

The Muirburn Code refers to the requirements of this Act.

Proposed provisions within the Scottish Climate Change Bill will pertain to flexibility of dates and not muirburn practice itself, which should always be carried out in line with the Code.

Roads (Scotland) Act 1984

http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1984/cukpga_19840054_en_1

s.100 - This section deals with damage caused to roads:

A person who without lawful authority or reasonable excuse-

(a) deposits anything whatsoever on a road so as to damage the road;

(b) paints or otherwise inscribes or affixes upon the surface of a road or upon a tree, traffic sign, milestone, structure or works on or in a road, a picture, letter, sign or other mark; or

(c) by lighting a fire within, or by permitting a fire for which he is responsible to spread to within, 30 meters of a road, damages the road or endangers traffic on it, commits an offence.

The Muirburn Code refers to the requirements of this Act.

Proposed provisions within the Scottish Climate Change Bill will pertain to flexibility of dates and not muirburn practice itself, which should always be carried out in line with the Code.

Health and Safety at Work Act 1974

http://www.hse.gov.uk/legislation/hswa.pdf

Prohibits the endangering anyone's health or safety, including members of the public.

The main section applicable is s.2:

s.2 - (1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.

The Muirburn Code refers to the requirements of this Act.

Proposed provisions within the Scottish Climate Change Bill will pertain to flexibility of dates and not muirburn practice itself, which should always be carried out in line with the Code.

Nature Conservation (Scotland) Act 2004

http://www.opsi.gov.uk/legislation/scotland/acts2004/20040006.htm

The Act sets out provisions relating to biodiversity duties, including Notification of SSSIs, Nature Conservation Orders to prohibit an operation, Land Management Orders for SSSIs to ensure conservation, restoration or enhancement.

The overall aim is wildlife protection.

s.16 - An owner or occupier of land within a site of special scientific interest must not carry out, or cause or permit to be carried out, an operation requiring consent on the land.

s.19 - This section is applicable to cases of Intentional or reckless damage to the natural features of a Site of Special Scientific Interest:

(1) Any person who intentionally or recklessly damages any natural feature specified in an SSSI notification is, subject to subsection (2), guilty of an offence.

(2) Any person who does anything which would, but for this subsection, amount to an offence under subsection (1) is not guilty of the offence if it is shown that-

(a) the act was the incidental result of a lawful operation,

(b) the person who carried out the lawful operation-

(i) took reasonable precautions for the purpose of avoiding carrying out the act, or

(ii) did not foresee, and could not reasonably have foreseen, that the act would be an incidental result of the carrying out of the lawful operation, and

(c) that person took such steps as were reasonably practicable in all the circumstances to minimise the damage caused.

The Muirburn Code refers to the requirements of this Act.

Proposed provisions within the Scottish Climate Change Bill will pertain to flexibility of dates and not muirburn practice itself, which should always be carried out in line with the Code.

The Conservation (Natural Habitats, &c.) Regulations 1994

http://www.opsi.gov.uk/si/si1994/uksi_19942716_en_1.htm

The Regulations require that "competent authorities" consider the implications of any plan or project on European sites.

48.-(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which-

1. is likely to have a significant effect on a European site in Great Britain or a European offshore marine site (either alone or in combination with other plans or projects), and
2. is not directly connected with or necessary to the management of the site,

shall make an appropriate assessment of the implications for the site in view of that site's conservation objectives.

The Muirburn Code refers to the requirements of this Act.

Proposed provisions within the Scottish Climate Change Bill will pertain to flexibility of dates and not muirburn practice itself, which should always be carried out in line with the Code.

The Conservation (Natural Habitats & c.) Amendment (Scotland) Regulations 2004

http://www.opsi.gov.uk/legislation/scotland/ssi2004/20040475.htm

These Regulations amend the Conservation (Natural Habitats, &c.) Regulations 1994.

The provisions in these Regulations relating to site protection bring European sites into line with the protection regime set out in Part 2 of the Nature Conservation (Scotland) Act 2004.

Further protection is given to European protected species through amendments to Part III of the 1994 Regulations which reflect the provisions relating to species protection contained in Part I of the Wildlife and Countryside Act 1981.

The Muirburn Code refers to the requirements of this Act.

Proposed provisions within the Scottish Climate Change Bill will pertain to flexibility of dates and not muirburn practice itself, which should always be carried out in line with the Code.

Ancient Monuments and Archaeological Areas Act 1979

s2 (2) a

http://www.historic-scotland.gov.uk/ancient_monuments_and_archaeological_areas_act_1979.pdf

Law relating to ancient monuments, making provision for the investigation, preservation and recording of matters of archaeological or historical interest and for the regulation of operations or activities affecting such sites or matters.

s.2 - The section operates as to make it an offence to cause damage to a scheduled monument.

The Muirburn Code refers to the requirements of this Act.

Proposed provisions within the Scottish Climate Change Bill will pertain to flexibility of dates and not muirburn practice itself, which should always be carried out in line with the Code.