The Butterfly The Bluebell and Bulldozer The Protection

The Butterfly, The Bluebell and Bulldozer – The Protection of SSSIs Under Criminal Law Presented by Rex Tedd QC & Bernard Thorogood

“. . . environmental crime, if established, strikes not only at a locality and its population, but in some measure too at the planet and its future. Nobody should be allowed to doubt its seriousness or to forget that one side of the environmental story is always untold”. Sedley L. J. [Foreword to Costing the Earth”]. 1

“Where . . . any area of land is of special interest by reason of any of its flora, fauna, or geological or physiographical features” WCA 1981 s. 28(1) 2

(a) The flora, fauna or geological or physiographical features by reason of which the land is of special interest. (b) Any operations appearing to Natural England to be likely to damage that flora or fauna, or those features. WCA 1981, s. 28(4) 3

The owner or occupier is entitled to seek Natural England’s consent to carry out any operation that would otherwise be prohibited. Notice of the proposal must be given to Natural England. If Natural England gives written consent (which may be subject to conditions and/or for a limited period), the owner or occupier may lawfully carry out the consented proposals. WCA 1981, s. 28 E (1)-(4). The operations may also be lawful under (a) an agreement under National Parks and Access to the Countryside Act, 1949 s. 16 (and other similar statutory provisions) or (b) a management scheme under s. 28 J. 4

(a) Each notification of a SSSI is “a local land charge” [s. 28(9)]. It will thus appear in a register which is searched, as a matter of routine, during the conveyancing process of purchase. (b) The purchaser may also be on notice by virtue of: (i) sale particulars. (ii) enquiries before contract. (c) The incoming owner’s responsibilities in respect of the SSSI do not depend upon actual knowledge of the existence, precise location or prohibited activities of the SSSI. They arise as an incident of his ownership. His position is protected by the existence of the local land charge, which puts him on notice. 5

“The owner or occupier [of the SSSI land] shall not . . . carry out, or cause or permit to be carried out . . . [any prohibited operation]” - s. 28 E(1). “A person who, without reasonable excuse, contravenes s. 28 E(1) is guilty of an offence. . . ” - s. 28 P(1). 6

“In this day and age, there areas of national life which are regarded as being of such importance that there must be an absolute prohibition against the doing of certain acts which undermine the welfare of society. The Wildlife and Countryside Act, 1981 is designed to protect the environment. That is an objective of outstanding social importance. In my judgment the provisions to which I have referred are intended by Parliament to be of strict application”. Stephen Brown L. J. Kirkland -v- Robinson 151 JP 377 7

(i) s. 28 P(6) “A person [i. e. not limited to an owner or occupier] who without reasonable excuse (a) intentionally or recklessly destroys or damages. . . and (b) knew that what he destroyed or damaged. . . was (ii) within a SSSI. . is guilty of an offence”. (ii) s. 28 P(6 A) - in similar terms to s. 28 P(6), but does not include a requirement that the Defendant knew that the damage was within a SSSI - also an offence, but lower maximum fine than s. 28 P(6). 8

“It is of the utmost public importance that our rivers should not be polluted. . . if this appeal succeeded and it were held to be the law that no conviction could be obtained under the Act of 1951 unless the prosecution could discharge the often impossible onus of proving that the pollution was caused intentionally or negligently, a great deal of pollution would go unpunished and undeterred to the relief of many riparian factory owners. . . The legislature no doubt recognised that as a matter of public policy this would be most unfortunate”. Lord Salmon Alphacell Ltd -v- Woodwood [1972] AC 824 9

The prosecution must prove, against the owner or occupier, to the criminal standard: (a) the existence of a SSSI. (b) notification that certain operations are prohibited in the SSSI. (c) a prohibited operation has taken place within the SSSI. [not necessary to prove damage was caused]. (d) the owner or occupier did an act which caused the prohibited operation to be carried out. [not necessary to prove the Defendant did something which was the immediate cause of the prohibited operation, but there must be a causal connection between the Defendant’s act and the prohibited operation that was carried out. 10

An owner or occupier causes the prohibited operations if: (a) he expressly or impliedly, directly or indirectly authorises others to go onto his land [not necessarily the SSSI] and carry out activities there, even if (b) (i) he has no actual knowledge of the SSSI (ii) he does not foresee that these persons would carry out any works in the area that in fact constitutes the SSSI. (c) those persons act outwith their authority. 11

“The juxtaposition [of “occupier”] within owner shows. . . that the occupier is someone who, though lacking the title of an owner, nevertheless stands in such a comprehensive and stable relationship with the land as to be, in company with the actual owner, someone to whom the mechanism [of the Act] can sensibly be made to apply”. Lord Mustill Southern Water Authority -v- Nature Conservancy Council [1992] 1 WLR 775 12

(i) s. 28 P(1) “A person who without reasonable excuse contravenes s. 28 E(1) is guilty of an offence. . . ” (ii) “. . . where the Defendant. . . relies for his defence on any. . . excuse. . . the burden of proving the. . . excuse . . . shall be on him”. (iii)burden of proving reasonable excuse lies on Defendant. Standard of proof is “balance of probabilities”. (iv)“reasonable” connotes objective standard. 13

“. . . it is a reasonable excuse in any event for a person to carry out an operation (or to fail to comply with a requirement to send a notice about it) if. . . (b) the operation in question was an emergency operation particulars of which (including details of the emergency) were notified to Natural England so soon as practicable after commencement of the operation”. s. 28 P(4). 14

(i) Was the emergency foreseen, or foreseeable? (ii) The nature and gravity of the emergency, and its consequences. (iii) The nature and gravity of the further consequences sought to be avoided by the remedial action. (iv)The relationship between the operation carried out and the emergency [e. g. where unnecessary works, unrelated to the emergency, carried out]. (v) The available alternatives, including the opportunity to seek consent from Natural England in advance of the operations. 15

For contravention by the owner or occupier of s. 28 E(1): (a) on summary conviction, a fine not exceeding £ 20, 000. (b) on conviction on Indictment, a fine [unlimited]. s. 28 P(1) 16

s. 142(1) Purposes of sentencing include (a) punishment (b) reduction of crime by deterrence (d) protection of the public (e) reparation. s. 143(1) “In considering the seriousness of any offence, the Court must consider the offender’s culpability in committing the offence and any harm which the offence cause, was intended to cause, or might foreseeably have caused”. s. 164(2) “The amount of any fine. . . must be such as. . . reflects the seriousness of the offence”. s. 164(3)-(4) “In fixing the amount of any fine. . . a Court must take into account the circumstances of the case including, among other things, the financial circumstances of the offender. . . whether (this) has the effect of increasing or reducing the amount of the fine”. 17

Level of sentencing: 1. Natural England website - www. naturalengland. org. uk/ Section on Enforcement summarises decided cases, their key facts, and the sentences imposed. 2. Costing the Earth [2009]. Guidance for sentencers published by Magistrates’ Association. Applies only to summary convictions. Note (i) Part 3 – Assessing Seriousness in Environmental Offences (ii) Section 17. 8 - SSSI. Worked example given was of organising vehicle activities, and setting up off-road tracks (including artificial hills and hollows in SSSI). Suggested fine for owner, after trial - £ 9, 000 + Costs. 18

(i) Step 1 - determine offence category by reference to: (a) 4 categories of harm. (b) 4 categories of culpability [deliberate/reckless/negligent/low or no culpability]. (c) in consequence, 16 combinations of harm + culpability [e. g. negligent/harm category 2]. (ii) Organisations categorised by reference to annual turnover. Large = £ 25. 9+ million Medium = £ 6. 5+ million Small = £ 6. 5 million or below (iii) Sentencing “Grid” combining company size with harm/culpability. 19

Examples: (a) Large company [£ 25. 9+ million turnover]. Deliberate commission of offence. Harm = Category 1 [e. g. substantial adverse effect or damage to land]. Result (i) starting point £ 750, 000 (ii) range £ 270, 000 - £ 2 million. (b) Medium company [£ 6. 5+ million turnover]. Negligent commission of offence. Harm = Category 2 [e. g. significant adverse effect or damage to land; or to animal health or flora. Result (i) starting point £ 20, 000 (ii) range £ 7, 000 - £ 50, 000. 20

The Butterfly, The Bluebell and Bulldozer – The Protection of SSSIs Under Criminal Law Presented by Rex Tedd QC +44 (0) 845 210 5555 rt@no 5. com Bernard Thorogood +44 (0) 845 210 5555 bt@no 5. com