Click here for the Welsh translationConsents for Recreational Activity on Designated Sites
The consents procedures described below apply mainly to England and Wales. Scottish Natural Heritage (SNH) and the Environment and Heritage Service of Northern Ireland deal with consent applications in Scotland (on Sites of Special Scientific Interest - SSSIs) and Northern Ireland (on Areas of Special Scientific Interest - ASSIs) respectively.
The consents procedures in Scotland are very similar to those in England and Wales. However these procedures must be read in the context of the access rights in Scotland, in which people have a right of access over most land in Scotland, as long as this is taken responsibly. This means that much recreational activity does not need the permission of the landowner and no SSSI consents need to be given to the landowner. Event organisers are given guidance on when the permission of landowners should be sought in the Scottish Outdoor Access Code. Recreational activities not covered by the access rights do still need permission of the landowner, and if on an SSSI the landowner might need consent from SNH to do these or allow them to happen on his land. Such activities might include motor rallying or clay pigeon shooting.
By careful planning, location and timing, it is often possible to combine recreational events with the conservation of SSSIs. However, there are legal provisions, which protect these nationally important wildlife and geological sites, which need to be complied with. By following the recommended procedures, these legal obligations can be discharged simply and efficiently.
Owners and occupiers of SSSIs, together with public and statutory bodies (including privatised utilities), have responsibilities to consult the relevant nature conservation authority (Natural England, Countryside Council for Wales - CCW, Scottish Natural Heritage - SNH) and may need consent before permitting operations that may damage the special conservation interests of SSSIs.
Each SSSI has a standard list of broad types of operations, formally identified (‘notified’) by the nature conservation authority. Many recreational activities may fall within these operations.
Information on the location of SSSIs, their special interests and the lists of operations are available from the websites of the appropriate nature conservation authority.
The websites allow details to be given for individual SSSIs and provides mapping tools which allow checks to be made to see if any SSSIs are located in the vicinity of the proposed events.
In addition to the specific duties to consult the nature conservation authority that apply to SSSI owners and occupiers, to public/statutory bodies and to utilities, individual members of the public are also liable to prosecution if they knowingly damage or disturb the special conservation features on a SSSI.
The legal provisions are contained in s28 of the Wildlife and Countryside Act 1981 as amended by the countryside and Rights of Way Act 2000 (in England and Wales) and sections 12-19 of the Nature Conservation (Scotland) Act 2004 in Scotland.
Bodies who are arranging recreational events on SSSIs will have to gain consent under different procedures, depending upon whether the organisers are:
a) A public body, statutory body or a statutory utility
(technically known as a ‘Section 28G Authority’ in England and Wales)
See below: Recreational activities on or affecting SSSIs organised by public or statutory bodies.
b) Operating in a purely private capacity
See below: Recreational activities on or affecting SSSIs.
Additional rules apply where the site is also designated as being of European importance.
See below: European Sites.
Recreational activities on or affecting Sites of Special Scientific Interest organised by public or statutory bodies
There are two different legal provisions, depending upon whether the organisers are actually doing any work on or affecting the Site of Special Scientific Interest (SSSI) (such as waymarking, arranging parking, erecting temporary facilities) or whether they are purely giving permission for the recreational activity on the SSSI, with no works on the ground.
Natural England’s/Countryside Council for Wales’s or Scottish Natural Heritage's local staff (contacts are available on the internet), can readily help organisers identify the correct legal procedure.
Public bodies have a particular statutory duty to exercise their functions to further the conservation and enhancement of SSSI.
Defra have published a helpful guide to management of SSSIs which covers the subject of consents.
Click here to go to http://www.defra.gov.uk/rural/protected/sssi/guidance.htm
Rules differ depending on whether the recreational activity involves:
- works on the ground - see below
or:
- no works on the ground - see below
Recreational Activities involving works on the ground
If works on the ground are involved, then the event will require ‘assent’ (consent in Scotland) from the relevant nature conservation body.
The formal procedure requires that notice be given to the nature conservation authority, setting out the details of the proposed event. It will then consider the proposal and may assent/consent, with conditions or advice as necessary, or can if necessary refuse to assent. This process has a statutory time limit of 28 days.
If the nature conservation body assents/consents and the organising body accepts all of its advice and conditions, the event may go ahead. If it were to refuse to give assent/consent, or if the organising body felt unable to accept all the advice or conditions, then if the organisers wish to press ahead, they must give a second formal notice to the nature conservation body. This notice must set out how they have taken account of the advice received.
The nature conservation body then has the opportunity to refer the case to the relevant government Minister or in extreme cases to seek judicial review or interim interdict in Scotland
(The Defra guidance – see above - gives further details on this.)
If the organisers fail to follow these procedures and damage is caused to the Site of Special Scientific Interest (SSSI), the organisers would be liable to prosecution under S28P of the 1981 Act (as amended) or s19 of the 2004 Act, but fortunately, this sort of disagreement is very exceptional.
The nature conservation bodies strongly recommend that recreational proposals which could affect SSSIs are discussed informally before formal notice is submitted. This preliminary discussion allows the measures necessary to conserve the SSSI to be agreed in advance and thus enables the formal procedures to be dealt with much more quickly and simply.
Recreational Activities Involving Only Access Permissions and No Works by the Organisers (see comment at the end for the Scottish perspective here)
This situation is dealt with under S28I of the 1981 Act (as amended). The Act sensibly provides that people can seek a single authorisation from a public body, incorporating the nature conservation body’s approval, without having to seek a separate permission from it.
This approval is obtained by the organisers giving notice to the nature conservation body. It will then considers the notice, will advise on whether the event would damage the SSSI and may suggest conditions that should be applied. This process has a statutory time limit of 28 days.
If the nature conservation body advises that the event will not harm the SSSI and the organising body accepts all its advice or conditions, the event may go ahead. If the nature conservation body were to advise against permitting the event, or if the organising body felt unable to accept all its advice or conditions then if the organisers wish to press ahead, they must give a second formal notice to the nature conservation body.
This notice must set out how they have taken account of its advice. The nature conservation body then has the opportunity to refer the case to the Secretary of State or in extreme cases to seek judicial review.
If the organisers were to fail to carry out this procedure and any damage resulted to an SSSI, the organisers would not themselves be liable, but the participants themselves could be liable.
Again, Natural England strongly recommends that recreational proposals are discussed informally before the formal notice is submitted. Apart from speeding and simplifying the formal procedure, this preliminary discussion allows more “joined-up Government” and reduces the risk of participants being exposed to litigation caused by a failure on the part of the organisers.
In Scotland the procedure is different. If the land to be used for public recreation is owned by a public body, then they must take into account their duty under s1 of the Nature Conservation (Scotland) Act 2004 to further the conservation of biodiversity in deciding whether to allow the event. No further consent is required from SNH in this situation.
Recreational activities on or affecting Sites of Special Scientific Interest - organisers are not public or statutory bodies
Where the organisers are operating as private individuals (i.e. not a statutory body or utility), then they are required to seek consent from the relevant nature conservation body before permitting any recreational activity on their land/water which is likely to damage the special interest. In Scotland landowners are required to apply for and obtain consent from SNH for this if the operation is on the list of Operations Requiring Consent (ORC list) before permitting recreation events.
The nature conservation body will consider the likely impact upon the SSSI and may consent, set conditions or refuse to consent, depending upon the likely impact on the SSSI.
Organisers have a statutory right to appeal to the Secretary of State, through written representations, a hearing or an inquiry, if consent is refused or if conditions are set. The event could not proceed until after the appeal decision had been reached.
The statutory timetables for these consent/appeal procedures are longer than those which apply to operations proposed by public bodies. The decision on whether to grant consent may take up to four months.
Two months are then available for an appeal to be lodged and the decision on the appeal, although not yet fixed by statute, may be a further six months. Again, the nature conservation bodies strongly recommend informal discussions before formal notice is submitted.
In Scotland SNH has 4 months in which to respond to an application for consent, after which it will be deemed to have been refused (although it is very rare for applications to lapse like this). Landowners have a statutory right to appeal to the Scottish Land Court if consent is refused or if conditions are set. The appeal must be lodged within 28 days, although there is no statutory time period for this to be determined. The event could not proceed until after the appeal decision had been reached.
These discussions can greatly speed and simplify the consent process, especially by avoiding the need to set complicated conditions.
European Sites
About 70% of SSSIs land is also covered by European designations (Special Protection Areas and Special Areas of Conservation).
Before permitting activities on such areas, all public and statutory bodies are required to establish whether there is likely to be a significant effect on the features of European interests.
If there is, an ‘appropriate assessment’ will be required, from which a judgement must be made to establish that there will not be adverse impact upon the integrity of the European site. These obligations are found in the Conservation (Natural Habitats etc) Regulations 1994 and subsequent amendments.
Where the organisers are private bodies, the responsibility for making these judgements falls to Natural England/Countryside Council for Wales. These judgements will be made by the relevant nature conservation body before any SSSI consent is issued, but will not alter the statutory SSSI consent timetable.
Where the organisers are public or statutory bodies, the responsibility will however fall to the organisers, although the nature conservation authority will have to be consulted over the appropriate assessment.
From experience, the nature conservation bodies and government strongly urge public bodies to discharge these European obligations before seeking formal assent or advice on the SSSI.
Once the European obligations have been met, the formal assent and advice can usually be dealt with very rapidly.
In contrast, if the formal SSSI assent or advice is sought before the organisers have discharged their European obligations, the SSSI procedures are likely to become unnecessarily lengthy and complicated.
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