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The Regulation (EU 1143/2014) came into force in the UK on 1 January 2015 but the implementation proposals were only published on 9 January 2018. The Regulation aims to prevent or manage the introduction or spread of 49 specified invasive plant and animal species. It requires Member States to implement measures for prevention; early detection or rapid eradication; or, management of invasive species. Applying the “polluter pays” principle it also requires Member States to introduce penalties in domestic legislation that must be “effective, proportionate and dissuasive”. These can include warning letters as well as civil or criminal penalties.
The consultation proposes civil penalties of £1000 for individuals or £3000 for businesses as well as variable penalties for more serious breaches. Perhaps more significantly, the regulatory authorities will also be able to serve compliance and restoration notices, the latter of which in particular could lead to substantial costs in the event of a complex and significant infestation. The consultation also proposes to extend the existing criminal penalties under the Wildlife and Countryside Act 1981 relating to the release and/or sale of prohibited species to those species of Union concern listed under the Regulation.
The list of species includes a broad range of terrestrial and aquatic animals and plants, some of which are commonly occurring in the UK, such as the Grey Squirrel, Himalayan Balsam and Muntjac Deer. Japanese Knotweed, probably the most well-known and problematic invasive weed is perhaps notable in its absence from the list. However, knotweed is already subject to a strict regime of control under the Wildlife and Countryside Act 1981 as amended by the Infrastructure Act 2015. This introduced Species Control Agreements (SCA) and Orders (SCO) to enable regulatory authorities to require landowners or occupiers to deal with infestations of Japanese Knotweed. The SCA and SCO provisions would also apply to other invasive species on the EU list, so the regulatory authorities now have a potentially broader spread of enforcement measures at their disposal.
For landowners and developers the identification of invasive species should always be a matter for appropriate and thorough due diligence and investigation. Japanese knotweed is a recurring and potentially costly issue, but the new EU Regulation potentially casts the net and liability risk more widely. It will also be of relevance to businesses that import or trade in non-native species or individuals that keep them, as well as those working in zoos and aquaria and NGOs with an interest in protecting the environment from these species.
The consultation also acknowledges Brexit but unsurprisingly remains vague on the implications. As it stands under the current EU Withdrawal Bill the Regulation would be subsumed into domestic law, and as an enhancement of the existing Wildlife and Countryside Act at least in terms of criminal penalties and SCOs/SCAs it seems reasonable to assume that the final regime will remain largely in place post-Brexit.
The consultation document is available here and the consultation closes on 3 April 2018.This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.
10 January 2018
by Andrew Ryan