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Sites of Special Scientific Interest in the UK: does the new regime for

their protection strike a fair balance between private rights and public

interests?

Edafe M. Ugbeta*

Abstract

As Sites of Special Scientific Interest (SSSI) represent the best wildlife

habitats and ecological sites in the UK, there is significant public interest in

protecting and managing them for the benefit of present and future

generations. These sites are a key component of the UK’s wider biodiversity

policy, both nationally and under its EU obligations. This paper examines the

new statutory regime governing the designation and management of SSSIs in

the context of the question of whether they strike a fair balance between

nature conservation interests and the burdens imposed on private owners of

designated land.

1. Introduction

One of the key environmental challenges facing the world today is the conservation of biological

diversity.1 With growing population and the attendant rise in human activity in response to the

demands for basic necessities of life, wildlife species and their natural habitats face the threats of

extinction in many regions across the world.2 Conscious of these realities, the international

community adopted the Convention on Biological Diversity in 19923 as an integral component

of the Rio Earth Summit. The UK and over 150 other countries signed up to the Convention and,

in so doing, expressed a shared commitment to take action within their national legal systems to

end the global loss of biodiversity.4

* LL.M (Kent) LL.B, B.L, Environmental lawyer and Senior Associate at Aluko & Oyebode, Nigeria:

emu3@kent.ac.uk 1 E. Fisher, B. Lange and E. Scotford, Environmental Law: Text, Cases and Materials (Oxford 2013) Ch.20, p.913;

see also H. Koketsu, ‘The Legal System of Nature Conservation in Japan: From the Viewpoint of Biodiversity’

(2007) Journal of Korean Law, pp. 183-196. 2 J.V. Yule, R. J. Fournier and P.L. Hindmarsh, ‘Biodiversity, Extinction and Humanity’s Future: The Ecological

and Evolutionary Consequences of Human Population and Resource Use’ (2013) Humanites, pp.147-159, also

available at <www.mdpi.com/journal/humanities> accessed on 13 June, 2015. 3 See the Preamble to the Convention on Biological Diversity available at <https://www.cbd.int/convention/>

accessed on 13 June, 2015. 4 See Art. 6 of the Convention

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Although the UK adopted its first biodiversity action plan in 1994 in compliance with Article 6

of the Biodiversity Convention,5 there was already in existence a number of national statutes

touching upon nature conservation, such as the National Parks and Access to Countryside Act

1949, the Countryside Act 1968 and the Wildlife and Countryside Act 1981.6 Indeed, one of

such national initiative for sustainable development and conservation of biodiversity which was

already in place under the National Parks and Access to Countryside Act 1949, and which

remains a key feature of national law to date, is the idea of designating ecological areas for

wildlife conservation as Sites of Special Scientific Interest (SSSIs).7

Whilst SSSIs are very pivotal in the overall scheme of the UK’s biodiversity policy,8 the

statutory provisions regulating their designation and management often give rise to conflicts,

particularly as the provisions place some form of restriction on the property rights of the owners

and occupiers of designated sites.9 In the England and Wales, for instance, the extant provisions

that relate to the designation and management of SSSIs have been subjects of challenge by

landowners, with questions regarding their proportionality having been raised.10 Some of these

challenges, as Trailer & Marina illustrates, have been exacerbated by the fact that the new

scheme, introduced by Countryside and Rights of Way Act (CROWA) 2000, radically departed

from the principles of voluntariness and compensation payments that characterized the earlier

regime.11

Against this background, this paper seeks to assess the new scheme providing for the

designation and management of SSSIs in England and Wales around the question of whether

they strike a fair balance between individual rights and public interests. In doing this, Section

Two of the paper provides a brief historical background of the earlier legislation in the context

of the problems it presented, and highlights the reforms introduced by CROWA 2000 along with

the revised ministerial guidance issued to give effect to the new provisions. Section Three

focuses on the question of whether the new provisions strike a fair balance between nature

conservation interests and private property rights. This involves drawing attention to specific

areas of conflict, such as the issues of the compatibility of the provisions with rights enshrined in

Article 1 of the First Protocol of the European Convention on Human Rights (ECHR) and

5 Biodiversity: The UK Action Plan (1994) available at <http://www.jncc.gov.uk/pages-5155> accessed on 15 June

2015. 6 M. Sunkin D.M. Ong and R. Wight, Sourcebook on Environmental Law (2

nd edn, Routledge 2001) p. 565.

7 S. Bell, D. McGillivray and O.W. Pedersen, Environmental Law (8

th edn, Oxford 2013) p.724-725.

8 J. Holder and M. Lee, Environmental Protection, Law and Policy (2

nd edn, Cambridge 2007) pp. 618-619.

9 R (Trailer & Marina (Levin) Ltd v Secretary of State for the Environment & Another [2004] EWCA Civ 1580; see

also Boggis v Natural England [2009] EWCA Civ 1061. 10

See Fisher v English Nature [2004] EWCA Civ 663. 11

See T. Allen, ‘Case Law Analysis: Human Rights and Regulatory Takings’ [2005] Journal of Environmental

Law, 245-264; see also J. Lowther, ‘Case Commentary: SSSI Compatibility with Article 1 of the First Protocol to

ECHR’ [2005] 17 ELM, pp. 24-26.

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payment of compensation for consequent losses and the fairness of the designation procedures.

Overall, the paper argues that the new provisions respect a fair balance between the interests at

stake, since they were adopted to safeguard SSSIs in the public interest and, more importantly,

the interference with the rights of landowners under the new regime is limited to control of use,

rather than expropriation or deprivation of ownership.12

2. Overview of the legislative Provisions for the Designation and Management of SSSIs

(a) Initial Provisions.

This section begins by considering the legislation that introduced the SSSI system and some of

its successes and inadequacies. As indicated earlier, the current system under UK law of

designating the areas of land for wildlife habitat conservation as SSSIs was first introduced by

the National Parks and Access to the Countryside Act 1949.13 However, the designation of land

as SSSIs under this Act had no legal consequences because the owners of SSSIs were not

restricted in the uses to which they may put their land,14 and there was no obligation to notify

landowners of SSSIs – the Act merely required SSSIs to be notified to local planning authorities

to enable them consider the importance of such sites in planning matters.15

The Countryside Act which was adopted 1968 generally retained the key concepts of the SSSIs

system established under the 1949 Act. However, it introduced a scheme enabling the

conservation body to pay compensation to landowner or occupiers16 in return for entering into

management agreements that impose restrictions upon potentially damaging operations in

relation to profits forgone or loss of capital value of the land.17 This idea of compensation

payment to landowner, introduced under the 1968 Act, contributed largely to the problems that

characterized the SSSI scheme prior to the reforms introduced by CROWA 2000. Notably,

during that period, because landowners were entitled to compensation for profit forgone where

they signed up to management agreements that restricted the activities that could be carried out

on their land, there was a general problem of encouraging owners or occupiers of land to claim

an intention to develop (real or fictitious) in order to increase the compensation payable,

12

See Trailer & Marina (n.9) paras. 68-71. 13

K. Bishop, A. Phillips and L.M. Warren, ‘‘Protected Areas for the Future: Models from the Past’’ [1997] 40:1

Journal of Environmental Planning and Management, 81-110, at 92. 14

Allen (n.11) 247. 15

Bell, McGillivray and Pedersen (n.7) 725-726. 16

See s.15 Countryside Act 1968; see also Defra, Sites of Special Scientific Interest: Encouraging Positive

partnerships (Defra Publications 2003) p.41 available at< www.defra.gov.uk> accessed on 16 June, 2015. 17

Holder and Lee (n.8) p. 620.

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particularly where agricultural improvement grants have been forgone.18 There was also the

difficulty of the conservation agency having to pay huge sums as compensation to landowners

who had considerable negotiating power,19 and a classic illustration may be seen in Cameron v

Nature Conservancy Council20 where the claimant was awarded £555,000 compensation, an

amount exceeding the value of his land.

The Wildlife and Countryside Act 1981,21 amongst other things, implemented the Bern

Convention22 and, in doing this, it consolidated and amended earlier national legislation, with the

general aim of overcoming the failings which were present in system.23 However, it made only

very limited impact because it retained the principles of voluntariness and compensation

payments that weakened its precursors.24 For example, the notification of an SSSI under the

1981 Act did not provide absolute protection as there were no restrictive measures that stopped

landowners from carrying out damaging activities once the four-month period open to the

conservation agency to negotiate had expired, providing due notice was given to the

conservation agency.25 Likewise, management agreements could not be imposed on landowners

if they were unwilling to give consent to agreements, and they were not legally restrained from

carrying out damaging operations on SSSIs after the nine-month period available to the

conservation agency to negotiate an agreement.26

These limitations, in addition to a further defect that the provisions did not cover damage caused

to SSSIs by third parties,27 led to Lord Mustill’s famous description of the SSSI provisions as

‘toothless’.28 The ineffectiveness of the original legislation to protect SSSIs was again

highlighted in the statistics from a 1994 report by the National Audit Office which indicated that

between 1987 and 1993 more than one-fifth of SSSIs in England had suffered damage.29 These

data, along with other official reports and independent findings30 which reaffirmed that SSSIs

were not adequately protected from damage by the legislative provisions supporting them,

18

Bill Howarth, The Protection of Habitats under National Law (Lecture Notes on Conservation and Natural

Resources Law, Session 3 Spring 2014, Kent Law School) p. 2 19

Holder and Lee (n.8) p.621. 20

[1991] SLT, 85; see also Thomas v Countryside Council of Wales [1994] 4 All ER 853. 21

See Part II of the Wildlife and Countryside Act 1981. 22

Convention on Conservation of European Wildlife and Natural Habitats (Bern, 19.IX.1979) 23

Bell, McGillivray and Pedersen (n.7) 725-726. 24

Ibid, p.726; see also K.V. Last, ‘‘Habitat Protection: has the Wildlife and Countryside Act 1981 made a

Difference?’’ [1999] Journal of Environmental Law, pp. 15-34. 25

P. Hughes, The Habitat Directive and the UK Conservation and SSSI System (House of Commons Library 1994)

pp.25-26. 26

Holder and Lee (n.8) 620. 27

Hughes (n.25) p.28. 28

Southern Water Authority v Nature Conservancy Council [1992] 1 WLR 775, at 778 para. 30. 29

National Audit Office, Protecting and Managing SSSIs in England (HMSO 1994). 30

See WWF-UK, A Muzzled Watchdog? Is English Nature Protecting Wildlife? (1997); see also Last (n.24) pp.18-

34.

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highly informed the reform of the SSSI system by CROWA 2000, the enhanced protection of

sites having been offered as a pre-election promise in 1997.31

(b) Current Provisions

In a bid to overcome the above-mentioned shortcomings which largely accounted for the

ineffectiveness of the SSSI system as discussed above, the Wildlife and Countryside Act was

radically amended by new provisions introduced under Part III of CROWA 2000.32 The

amending provisions, in conjunction with the revised ministerial guidance33 adopted to give

effect to the reforms brought by CROWA, gave a new lease of life to the SSSI system in many

respects. Specifically, the new provisions changed the focus of the SSSI legislation from the

voluntary approach which wrecked the previous legislation to one that is ‘‘more regulatory and

increasingly legalistic’.34 One of the legal consequences of the new regime is that SSSI

notifications are absolute and provide immediate protection for designated sites in that once an

SSSI has been notified, landowners are legally prevented from carrying out activities likely to

cause damage to a site, except with the consent of Natural England.35 Additionally, the

compensation scheme under the new provisions limits the payment of compensation for

management agreements to only positive management of sites, which implies that loss of profits

forgone or capital value for prohibited activities that site owners could have carried out but for

the prohibition are no longer to be compensated.36 In adopting the new provisions, Parliament

assessed what was a balanced interference with the property rights of landowners and ‘it was

thought no longer to be appropriate that a landowner should receive compensation for

threatening to do an act which would be harmful to nature conservation interests’.37 The

compensation arrangement also allows for compensation to be paid in respect of profits that are

lost from activities been undertaken, along with an incentive payment.38

3. Do the new provisions strike a fair balance between Public Interest in Nature

Conservation and Private Interests of Landowners?

In the light of the changes introduced by the new provisions under CROWA and the revised

ministerial guidance issued under it, controversies have continued to ensue between site owners

31

Holder and Lee (n.8) 625. 32

Bell, McGillivray and Pedersen (n.7) 725-726. 33

See Department of Environment, Transport and the Regions, Guidelines on Management Agreement Payments

and Other Related Matters, 2001. (hereafter called Ministerial Guidelines 2001), p. 3. 34

Bell, McGillivray and Pedersen (n.7) 725. 35

Section 28E WCA; see also Natural England, SSSIs: England’s Special Wildlife and Geological Sites (2008)

pp.4-11; Fisher v English Nature (n.10), para.13 36

See Ministerial Guidance 2001 (n.33) paras. 2.1, 3.5 and 3.6; See also Trailer and Marina (Leven) Ltd v The

Secretary of State for Environment, Food and Rural Affairs & English Nature [2004] EWHC 153, paras. 33-97. 37

See Ouseley J in Trainer & Marina (n.36) para. 34. 38

ibid, para. 95.

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and the nature conservation agencies touching upon the compatibility of the new provisions with

the rights guaranteed under the Human Rights Act (HRA) 1998 and the European Convention on

Human Rights (ECHR).39 In this section, some specific areas which have generated litigation

would be examined in drawing the inference that the new regime strikes a fair balance between

the general interests in conservation of habitats and the private interests of site owners.

One area which has generated litigation, in relation to the question of proportionality, is the wide

powers available to the conservation agencies under section 28 of the 1981 Act40 to identify

notify and confirm any area of land as an SSSI, even if the area of land affected of land is very

massive.41 This was particularly the case in Fisher v English Nature where the respondent,

pursuant to its powers under sections 28(1) and (5) of the 1981 Act, notified and confirmed

13,335.700 hectares of the appellants’ Breckland Farmland as an SSSI because it comprised

nesting sites for seasonal breeding population of stone-curlew. The Court of Appeal, having first

weighed the challenge of the appellants against the current SSSI provisions and their history,

affirmed the judgment by Lightman J. which dismissed the appeal; the court reasoned that

English Nature’s decision to confirm the notification of a larger area of the appellants’ land as an

SSSI (in order to protect the potential nesting sites for the stone-curlew), to the extent that it

satisfied the statutory scheme under section 28 of the 1981, was not irrational, unlawful or

disproportionate under Article 1 of the First Protocol to the ECHR.42

It is important to note that, in addressing the question of proportionality in relation to appellants’

rights contained in the First Protocol to the ECHR, the court stated thus:

... [U]nder Article 1 a fair balance must be struck between the

general interest and the interest of any property owner. But in

considering questions of proportionality under Article 1 the

European Court of Human Rights has made it plain that states enjoy

a wide ‘margin of appreciation’ in this area relating to the control of

the use of land in the public interest for environmental reasons, and

that the controls prescribed or interferences involved must be

without any reasonable foundation if the court is to regard them as

disproportionate: Fredin v Sweden [1991] 13 EHRR 784.43

Remarkably, this question came up again in Trailer and Marina where the appellant challenged

the new SSSI provisions on the ground that they contravened its right to the peaceful enjoyment

39

See J. McEldowney and S. McEldowney, Environmental Law (1st edn, Pearson 2010) pp. 246-249.

40 As amended by CROWA 2000

41 See Fisher v English Nature (n.10) para.102; see also R (Aggregate Industries Ltd v English Nature [2003] Env

LR 3.<http:www.jncc.defra.gov.uk/pd> 42

ibid, Wall LJ paras. 148-150. 43

ibid, paras.106.

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of its possessions under Article 1 of the First Protocol to the ECHR to the extent that the SSSI

notification prevented it from undertaking any boating and fishing activities on its Canal without

compensation. Both the court of first instance and the Court of Appeal rejected this contention,

and held that the reforms introduced by the 2000 Act and the compensation consequences are

compatible with Article 1 of the First Protocol to the ECHR.44 Importantly, in arriving at its

decision the Court of Appeal observed that, in order to assess whether a legislative measure

which controlled the use of property strikes a fair balance between the protection of private

rights and public interests, the right approach is ‘provided that the state could properly take the

view that the benefit to the community outweighed the detriment to the individual’ and where

that is the case, a fair balance would be struck without any necessity for compensation.45

Again, in R (Aggregate Industries Ltd) v English Nature, the new SSSI regime was called to

question in relation to the compatibility of the procedure for notifying and confirming SSSIs by

Natural England with the rights under Article 6 of ECHR. The claimant argued that, since the

Council of English Nature confirms notifications issued by its own officers, the process could

not be impartial and independent as required under Article 6 of ECHR. Relying largely on Lord

Hoffmann’s decision in Alconbury,46 the court held that the procedure for notification and

confirmation of SSSIs under the new provisions conforms to the human rights provisions under

Article 6 of ECHR and that there are a number of procedural safeguards available to landowners

under section 28 of the 1981 Act, in addition to court’s power of judicial review.47

The assessment of the new SSSI provisions and the conclusions reached by the courts in the

above cases appear to have conclusively answered, in the affirmative, the query this paper set

out to investigate.48 Indeed, as the second paragraph of Article 1 of the First Protocol to the

ECHR clearly indicates, the right to private property does not impair the state’s freedom to adopt

such measures as it deems necessary to control the use of land, if the public interest so

demands.49 In the discussion above, we have observed that there is widespread public interest in

the protection and management of SSSIs for various reasons, including the fact that they

conserve the best of the UK’s wildlife habitats and ecological sites. There is no question,

therefore, that the controls introduced by the new provisions were necessary in order to provide

44

Trailer & Marina (n.9) paras. 59-72. 45

ibid, paras. 57-58. 46

R (Alconbury Development Ltd) v Secretary of State for the Environment, Transport & the Regions & Other

Cases [2001] UKHL 23. 47

Aggregate Industries (n.41) paras. 108-109. 48

See particularly Trailer & Marina (n.9) paras. 41-72. 49

Alconbury (n.46) para.72.

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stronger protection for SSSIs in the overall public interest,50 considering the fact that previous

legislation failed to provide the needed protection.

The outstanding question, therefore, is to assess whether the degree of interference with the

property rights of site owners through the form of control adopted by the new provisions is

proportionate. In this connection, it is not arguable that the changes introduced by the new

provisions with regard to the restrictions imposed on ‘operations likely to damage’ substantially

curtail or restrict the property rights of landowners.51 These restrictions, however, amount to

control of use and not deprivation of ownership or expropriation.52 Consequently, in appraising

whether the provisions respect a fair balance between the relevant interests, compensation terms

are not, necessarily, relevant since restrictions on the use of property may be imposed without

compensation under the second paragraph of Article 1 of the First Protocol, if the public interest

so requires.53 In any case, the provisions contain a scheme for compensation, though limited to

profits lost from activities ongoing at the time of notification and for activities that constitute

positive acts of management.54

Though it is conceded that the new provisions prohibit the payment of compensation to

landowners for prohibited operations, it is argued that this cannot justify an argument that they

do not strike a fair balance. This is because the provisions are not outside the margin of

appreciation available to the State to determine how public funds should be applied,55 and as

Ouseley J. puts it, ‘the issue of whether public money should be available to compensate a

landowner for not carrying out an operation which is harmful to the public interest is clearly a

matter for its [Parliament’s]56 judgement’.57 Moreover, from the case-law of the ECtHR which

was extensively considered by the Court of Appeal in Trailer & Marina, there is no rule of law

which prescribes that a legislative regime governing the use of property in the public interest

should have compensation provisions in order to respect a fair balance under Article 1 of the

First Protocol.58 In the court’s evaluation, a fair balance would be struck, even without a

mechanism for compensation, if in adopting the legislation, the state properly made the

determination that the benefit to the general public overrides the detriment to the individual

landowner.59 In this respect, it is writer consideration that new provisions’ objective to provide

50

Trailer & Marina (n.36) paras. 51-61. 51

Trailer & Marina (n.9) paras. 65. 52

ibid, para. 45. 53

Hoffmann LJ in Alconbury (n.46) paras. 72; see also Trailer & Marina (n.9) para. 57-58. 54

Ouseley J Trailer and Marina (n.36) paras. 94-95. 55

Mellacher v Austria [1989] 12 EHRR 391 56

Word in bracket added for clarity. 57

Trailer and Marina (n.36) para. 96. 58

Trailer and Marina (n.9) paras. 49-58. 59

ibid, para 58.

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greater protection for SSSIs is a benefit to the general public which far outweighs the

unavailability of compensation to landowners for not carrying out operations likely to cause

damage to the public interest, if at all that is a detriment to landowners.

Turning to the question of the incompatibility of the new provisions with the fair hearing

protections under Article 6 of the ECHR, it is argued that the new provisions are compliant

with the rights contained in Article 6 and strike a fair balance between the relevant interests.

This is because section 28 of 1981 Act provides a range of procedural safeguards for landowner

to challenge SSSI notifications, such as the opportunity to make reasoned objections and

detailed representations, the right to appeal to the Secretary of State against a refusal of

consent, the opportunity to ask for notifications to be varied or de-notified, plus the High

Court’s powers of judicial review.60

4. Concluding Remarks

As the above discussion shows, even though private property rights are protected under Article

1 of the First Protocol to the ECHR, these rights are seriously qualified by what public interest

requires. Under the second paragraph of that Article, the state retains the right to control the use

of property, even without payment of compensation, if the public interest so demands. This

general rule fits into the context of the new SSSI provisions to the extent that the restrictions

imposed on ‘activities likely to damage’ following the notification of an SSSI relate to control

of use, and these controls are necessary so that SSSIs are protected from likely damage by site

owners in the public interest. Historically, SSSIs suffered deliberate destruction by site owners

because of the gaps that existed in the legislation relating to them, and it was deemed legitimate

and in the public interest to adopt new legislative provisions in order to provide better

protection and management for existing and future sites.

However, as demonstrated above, the new provisions introduced by CROWA 2000 have been

challenged by landowners who considered that the provisions unfairly interfered with their

Convention rights, notably the right to the peaceful enjoyment of one’s possessions under

Article 1 of the First Protocol to the ECHR. With some of the challenges resulting in court

cases, such as Fisher, Trailer and Marina and Aggregate, the UK courts have had the

opportunity to weigh the new provisions against the relevant Convention rights of landowners,

and held that the provisions respect a fair balance between the private rights of landowners and

nature conservation interests. These existing decisions of the UK courts, particularly that of

the Court of Appeal in Trailer and Marina which was handed down about a decade ago, should

60

See Aggregate Industries (n.41) paras. 104- 109

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have at this moment laid to rest the issue of whether the new provisions strike a fair balance

between the relevant interests.

In these circumstances and having regard to the totality of the observations above, it is argued in

the final analysis that the provisions for the designation and management of SSSIs in England

and Wales strike a fair balance between the public need for conservation of SSSIs and the

burdens that have been imposed upon private owners of designated land.