Laying down the law: Dealing with a knotty problem

7th August 2014

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Helen Rutherford

Ross Fairley warns developers to be wary of changes to the law on eradicating non-native invasive species

The mere mention of Japanese knotweed can send shivers down the spines of many property developers. However, recent publicity on the new powers to be given to environment regulators as a result of the Infrastructure Bill, currently in parliament, will have opened their eyes to other species, such as the zebra mussel, the “killer shrimp”, the Chinese mitten crab, Asian hornets or Brazilian rhubarb.

It is easy to trivialise the establishment of the species but we should not. To tackle this increasingly large and costly problem – both in financial terms (invasive species cost the EU about €12 billion a year in crop losses and damage to infrastructure, says the European commission) and the loss of important biodiversity and habitats – the EU reached a deal earlier this year on a new invasive species regulation.

Controlling measures

The EU’s regulation comes into force from January 2015 and will ban “intentionally or negligently importing, keeping, breeding, transporting, selling, growing or releasing species of EU concern”. Under the provisions, member states will have to analyse the pathways of introduction of potential and listed invasive species and take action to eradicate, control or contain them. The polluter will be forced to pay for this action. Member states are also required to impose dissuasive, effective and proportionate sanctions for breaches of the regulation.

Through the Wildlife and Countryside Act 1981 the UK has certain controls on species, such as Japanese knotweed. However, much of this regulation has revolved around controlling the spread of species as opposed to eradication. The Law Commission review of wildlife law in England and Wales, which was published in February, concluded that the existing legislation is not sufficient to control and eradicate invasive non-native species. The commission recommended the introduction of enhanced control procedures to allow environmental authorities and bodies to make species control orders.

The commission explained that the Environment Agency, for example, should first offer a species control agreement to the owner or occupier of the land or premises in question. Only when an agreement proves impractical or is not being properly performed should an order be imposed. In most cases, the law does not allow those charged with the management and control of wildlife to enter privately owned land or premises to carry out operations to manage or eradicate invasive non-native species without consent. However, the proposed change provides powers of entry to enable regulators to investigate or monitor a site, or to allow an order to be carried out.

The Infrastructure Bill puts the recommendations of the commission in place by amending the existing Wildlife and Countryside Act. A new schedule 9A will be inserted into the Act to empower environment authorities to enter into “species control agreements” (SCA) with owners of premises where the authority considers that an invasive non-native species is present. An agreement will detail what needs to be done to control or eradicate the species, who is going to do it and the time by which the actions need to be carried out. Further powers will be given to the environment authorities to make species control orders (SCO). So if the owner of a premises has failed to comply with or agree to an SCA, the authority can make an SCO. This can require the owner to carry out species control operations or can allow the authority itself to do so.

It is not entirely clear from the new provisions in the Wildlife and Countryside Act who will pay for this work. In some cases, it may be the environment authorities, but the owner could be responsible for the actions and the work. If the owner fails to comply with an SCO, they will be committing an offence and liable to a fine or imprisonment.

In practice

Clearly, there will be a much stronger legal requirement for authorities to deal with non-native species. How often SCAs and SCOs will be used will depend on how many species are listed as invasive and also on the resources the regulators can allocate to the problem.

However, owners, leaseholders and purchasers of land need to take this issue seriously. As many a developer will testify, the costs associated with the eradication and disposal of even a familiar invasive species, such as Japanese knotweed, can be significant. Equally importantly is the delay it can cause to redevelopment.

The proposed legal changes must also surely mean that further environmental studies will need to be carried out at the outset of the land acquisition process to assess the risk and it may in time lead to contractual indemnities and provisions being sought from purchasers or occupiers.

EU Regulation

The European commission set out its proposals last year for new legislation to prevent and manage invasive alien species (IAS), noting that there are more than 12,000 non-native species in Europe. Of these, about 15% are invasive and they are rapidly growing in number.

In April 2014, the European parliament backed the proposals. The legislation would require EU member states to ascertain the routes of introduction and spread of IAS and set up surveillance systems and action plans. Official checks at EU borders would also be stepped up. For widespread IAS, member states would have to draw up management plans.

They would also be responsible for determining penalties for breaches of the legislation. The proposals now need approval by the European council.

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