The Infrastructure Act 2015 introduced species control agreements and species control orders to control invasive non-native species of plants and animals.
Under the Infrastructure Act 2015, the Secretary of State is obliged to issue a code of practice in relation to species control agreements and orders in England. The Welsh Ministers must do likewise in Wales. The government has now issued a consultation seeking views on a draft code of practice. The consultation closes on 28 February 2016.
In this article, we look at when species control agreements (SCAs) and species control orders (SCOs) can be made, and their implications for landowners and developers.
SCAs and SCOs can be made in respect of both plants and animals. Here, we are focussing on the effect of the provisions in relation to non-native species of plants, such as Japanese knotweed. Japanese knotweed is included in the list of non-native species of plants to which the provisions apply. Its presence can hamper the development or occupation of land.
The provisions of the Infrastructure Act 2015 are important as they give substantial new powers to the regulatory authorities to deal with invasive species by requiring landowners to actively manage any problems.
Previously, there was no specific mechanism to force landowners to deal with an infestation of knotweed. In theory, it would have been possible to obtain a civil injunction in limited circumstances under the Anti-social Behaviour, Crime and Policing Act 2014, or start civil proceedings (for example as nuisance or trespass). Each of these would need to be on the basis that knotweed had spread or was likely to spread to adjoining land. The new, specific powers under the Infrastructure Act 2015 will allow a regulatory authority to be proactive in addressing an infestation before the problem and cost of dealing with it increases.
If the environmental authority (the Secretary of State, the Environment Agency, Natural England or the Forestry Commissioners) considers that an invasive non-native species is present on the premises, it can enter into a SCA with the owner. Although an "owner" includes tenants and those with management responsibilities for the land, as well as the freehold owner, the environmental authority is obliged to satisfy itself that it is entering into the SCA with the most appropriate owner.
It is important to note that a SCA is consensual. If the owner does not want to enter into a SCA, it is not obliged to do so.
The SCA sets out what operations to control the species will be undertaken, by whom, and by what date.
A SCO can be made if:
Before making a SCO the environmental authority must be satisfied that doing so would be proportionate to the objective.
Additional protection is afforded to dwellings. If the proposed SCO relates to a dwelling, it can only be made by the Secretary of State.
The SCO will set out who must carry out the species control operations. This will either be the owner or the environmental authority. The SCO will also state what operations are to be carried out and by when they must be completed.
If a SCO is made, the environmental authority must give notice of it to all owners of which the environmental authority is aware. Notice must also be given to the Secretary of State.
If an owner fails to carry out its obligations under a SCO, the environmental authority must give notice requiring the owner to do so. If the owner fails to comply within a week of this notice, the environmental authority may carry out the works itself and recover the cost of so doing from the owner.
Failure to comply with a SCO is an offence. It is also an offence to intentionally obstruct someone who is trying to comply with a SCO. Both offences are punishable by imprisonment for up to 51 weeks, or a fine, or both.
Previously landowners were rarely under any obligation to act where an invasive species had taken hold. This was a particular problem for unoccupied brownfield sites where species such as knotweed could spread unchecked. Regulatory authorities will now be able to identify landowners and, if a SCA is not agreed (or complied with), it will be open to the authorities to serve SCOs and force action with the threat of criminal sanctions for non-compliance.
Japanese knotweed in particular has long been an issue because of the costs of treatment and removal. It would always be recommended that landowners or occupiers monitor their land portfolios to ensure that knotweed is identified and treated at the earliest opportunity. In many cases use of SCAs or SCOs will be seen as a last resort, but these new powers will provide further incentive for landowners to deal with invasive species.
The consultation on the draft code of practice is open until 28 February 2016.
TLT has a wealth of experience in advising clients on development sites where invasive non-native species are present and the redevelopment of brownfield sites generally.
For any further information on the implications of the consultation and new statutory provisions for development sites, contact Andrew Ryan on +44 (0)333 006 0967 or andrew.ryan@TLTsolicitors.com.
Contributor: Alexandra Holsgrove Jones
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2015. Specific advice should be sought for specific cases. For more information see our terms & conditions on www.TLTsolicitors.com