Article written by John Bates
[“This material was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in the Journal of Planning and Environment Law Feb 2025 and is reproduced by agreement with the publishers. For further details, please see the publishers’ website.” ]
Section 40 of the Natural Environment and Rural Communities Act 2006[1] (NERC Act) provides in section 40(3) that:
“The action which may be taken by the authority to further the general biodiversity objective includes, in particular, action taken for the purpose of—
(a) conserving, restoring or otherwise enhancing a population of a particular species, and
(b) conserving, restoring or otherwise enhancing a particular type of habitat.”
This gives local authorities a function in respect of conservation works. In addition, Local Nature Recovery Strategies will “Take action – local partners work together with landowners and managers to create and enhance habitat for nature and environment and take other biodiversity-positive actions.”[2]
But how does an authority go about this? What powers does it have to take action to enhance the environment in this way, particularly on land it does not own or control? This article explores ways in which the law needs to be changed to give authorities the ability to carry out nature conservation works to meet the biodiversity objective.
Existing powers
In September 2023 UK 100 published Powers in Place: Nature. The Handbook of Local Authority Nature Recovery Powers. It deals with current powers at pages 16 to 19. Most of the powers cited are specific to a function being exercised, for example tree or hedgerow protection
There is a more general power in section 89 of the National Parks and Access to the Countryside Act 1949 That enables a local planning authority where it appears to it that land in its area is derelict, neglected or unsightly to carry out works on it to improve it. Works can be done on the authority’s own land or on land belonging to others if all those interested in that land consent. Section 89 has two major limitations. First it would have to be shown that the land is derelict, neglected or unsightly and there may be differing views as to that. Secondly, if one of those interested in the land refuses consent, the project cannot proceed.
The Open Spaces Act 1906 could be more helpful. Section 9 of the Act enables a local authority to undertake the entire or partial care, management, and control of any open space, whether any interest in the soil is transferred to the local authority or not. An ‘open space’ ” means any land, whether inclosed or not, on which there are no buildings or of which not more than one-twentieth part is covered with buildings, and the whole or the remainder of which is laid out as a garden or is used for purposes of recreation or lies waste and unoccupied”[3]
The difficulty with using the 1906 Act for nature conservation works is that the authority must be able to show that it manages and controls the land in question. In Naylor v Essex County Council[4] it was doubted that there was a distinction between management and control. However, management connotes exercising powers over the land such as mowing grass or clearing litter. Control is regulating the land by forbidding bonfires or driving vehicles across it. It is likely an authority would have to show both aspects are present before it can improve the land by doing conservation works on it.
There are also the flood risk management powers in the Land Drainage Act 1991. Section 14A[5] of that Act enables a district council or lead local flood authority where there is no such council to carry out works “for the purpose of maintaining or restoring natural processes.”[6] The works have to be for the purpose of managing a flood risk in the authority’s area[7] so that if it wishes to use this power for nature conservation purposes it would have to link them with works carried out for that purpose. The works also have to be in line with local flood risk management strategies which could include nature -based solutions.[8]
On the whole, there are no discrete existing powers for a local authority to carry out works on land it does not own or control to meet biodiversity objectives. If those objectives are to be met, a new power is needed to enable such works to be done.
Nature Conservation Works.
A broad definition of ‘nature conservation works’ could be “Works to conserve, restore or otherwise enhance the natural environment as defined by section 44 of the Environment Act 2021.” In that section the ‘natural environment’ is defined as “(a) plants, wild animals and other living organisms,
(b) their habitats,
(c) land (except buildings or other structures), air and water, and the natural systems, cycles and processes through which they interact.”
The works power would best be modelled on section 160 of the Water Industry Act 1991. That section enables water companies to lay pipes in land, keep them there, inspect, maintain or alter them and do other incidental works. Similar powers would be needed for nature conservation works. It would not be enough for the authority to carry out works and walk away. The works will need to be inspected to ensure they are flourishing and any problems encountered dealt with. They may also need to be altered to cope with the effects of climate change.
There will need to be powers of entry for the authority’s officers or contractors to go on to the land to see what needs to be done, to carry out the works, to inspect them once they are in place and to do any additional works. Usually, powers of entry distinguish between entry on domestic property and on other land. That distinction should be maintained for these types of work.
There is always going to be someone who objects to works being carried out on their land. They will need to have a right to appeal any notice served on them either about the proposed works or notice of entry to carry them out. The appeal could be to the magistrates’ court, the first-tier tribunal or the Upper Tribunal (Lands Chamber). A reasonable time for making an appeal might be within 28 days of the date the notice was served on the appellant.
If the appeal fails and the owner still refuses access, there will have to be a procedure for the authority to obtain a warrant for entry. Given the sensitive nature of this type of works, there might also need to be a criminal offence of interference with the works. Such an offence might need to be intentional interference rather than a strict liability offence as agricultural operations, for example, may interfere with the works without any intention by the farmer to do so. Alternatively, it could be an offence to interfere with the works “without reasonable excuse;” it being for the prosecution to show that there was no reasonable excuse.
The works may adversely affect the owner’s land either during the course of their being carried out or more permanently. There would need to be compensation payable to anyone who suffers loss or damage due to the works.
Planning permission
Generally, most nature conservation works will require planning permission as an engineering or other development under section 55 (1) of the Town and Country Planning Act 1990. This can be time consuming, costly and there is a lack of skilled officers to manage biodiversity matters.[9]
A new class of development in the General Permitted Development Order 2015[10] (GPDO) for “Nature Conservation” would make the process much easier. A new part in the GPDO would be better than an addition to another like Part 12 “Development by Local Authorities” as nature conservation works could be carried out by other bodies such as the Environment Agency.
Nature Recovery Strategies will mainly be implemented by county councils. It might be helpful if it was a condition of any nature conservation works proposal that the relevant county council be consulted. That might be best affected for planning applications by a new category in Schedule 4 of the Development Management Procedure Order 2015.[11]
Maintenance of works
There is a theory that if an authority carries out works on someone else’s land, those works, once done, belong to the landowner on the basis of the maxim “what is in the soil belongs to the soil.” Therefore, the landowner becomes responsible for maintaining the works.
This is not the case in respect of easements to lay pipes etc.. through the land of others. In Carter v Cole[12] the Court of Appeal set out the principles in these circumstances in a case involving rights of way. It pointed out that once the way exists, the servient owner is under no obligation to maintain or repair it. While the dominant owner may have no obligation to maintain or repair it either, that owner can do so and has rights of access to enable works to be done.
In the case of nature conservation works one way forward might be a conservation covenant for the maintenance of the works as provided for by Part 7 of the Environment Act 2021. That would give the local authority supervision of the way in which the landowner maintains the works but it may have to meet the costs of such maintenance. Alternatively, if the landowner is left to maintain the works, the costs of anything done could be claimed under the compensation provisions of the legislation introducing nature conservation works.
Conclusion
The biodiversity objectives and the increasing extent of local authority functions for nature conservation are vital if we are to maintain the natural environment. But by themselves they are not enough. Local and other authorities need powers to carry out and maintain such works. Planning requirements for them should be easier to fulfil to remove barriers to their implementation.
[1] As amended by Environment Act 2021, s. 102.
[2] Local Nature Recovery Strategy – statutory guidance (March 2023) para. 11.
[3] Open Spaces Act 1906, s.20.
[4] [2014] EWHC 2560 (Admin)
[5] As added by the Flood and Water Management Act 2010.
[6] S. 14A (9) (e)
[7] S. 14A (1) – (6)
[8] See UK 100 Powers in Place :Nature at 2.7 p.48.
[9] UK 100 Powers in Place: Nature p.42
[10] SI 2015 / 596
[11] SI 2015 / 595
[12] [2006] EWCA Civ 398
