As we all know, Brexit will soon be upon us, as we are for the moment in the transition period. To avoid unpicking a plethora of legislation, the Withdrawal Act retained all EU driven legislation and subsequent regulation – for now.
But what is the position once we have left the transition period? The Withdrawal Act has paved the way for the UK to modify all legislation. The key species and habitats legislation carried over is the Conservation of Habitats and Species Regulations 2017 (as amended). Until the end of 2020, this legislation and any legal decisions relating to it remain in effect and provide case law precedent. After 2020, legal challenges to the Regulations could change their interpretation in the UK. However, Parliament could amend or enact new legislation from 2021 which could alter the Regulations and their interpretation.
In addition, the Secretary of State can modify the Schedules of EPS plant and animal species and can modify habitats and species in the Directive Annexes.
If the Regulations remain unchanged, the extant domestic and European case law still has effect; however, the Supreme Court has the power to over-ride these, and this power may be extended to lower courts. And any CJEU decisions made after 2020 are no longer binding in the UK, although a judge in the UK could refer to these in making a judgement.
Key portions of the Conservation of Habitats and Species Regulations 2017 are:
What to look out for:
1.Expect an evolving situation based on new court challenges to the Regulations. The Supreme Court or lower courts could interpret regulations differently to established case law. After January, new interpretations would be over-riding;
2.The government may issue guidance which changes the way the Regulations are interpreted
3.Also, look out for measures in Parliament to replace or substantially amend the 2017 Regulations
When it comes to protected areas, bigger (and inter-connected) is always better! This is especially poignant considering the British Trust of Ornithology’s State of Nature Report 2019, which highlighted the severe decline in the quantity and variety of natural habitats (and species) since 1970. So, it came as inspiring news when DEFRA officially announced the creation of the Purbeck Heaths National Nature Reserve (NNR), Dorset - making Purbeck Heaths the UK’s first “super sized” NNR in March 2020.
The new created Purbeck Heaths NNR consists of three existing NNRs (Stoborough Heath, Hartland Moor, and Studland & Godlingston Heath) and the lands between them. The size of the original protected area has increased by a staggering 340% from 976 ha to 3,311 ha. This is the result of the combined and coordinated efforts of seven conservation partners and numerous landowners, including Natural England, Rempstone Estate, Forestry England, Dorset Wildlife Trust, National Trust, RSPB and the Amphibian and Reptile Trust. The aim of this enterprise is to restore natural processes across the landholding and thereby increase the inter-connectivity and resilience of the landscape to the climate crisis and anthropogenic threats.
Eleven UK priority habitats can be found within the new NNR, ranging from coastal dunes and salt marshes to wet and dry lowland heaths and deciduous woodland. The super NNR provides a refuge for 450 rare and protected species including: sand lizards, smooth snakes, Dartford warblers, osprey, small pearl-bordered fritillary butterflies, southern damselflies, marsh gentians, butterfly orchids and 12 native bat species to name but a few. In fact, there are so many species which inhabit Purbeck Heaths that it contains the most species-rich 10 km² area in the entire UK!
Typically, in the past, protected areas have been managed on a site-based approach with a small number of stakeholders; the new NNR is now managed on a landscape level. The management of Purbeck Heaths involves removing non-native pine plantations and active grazing of the landscape by cattle and pigs which create open space and new opportunities for rare and diverse heath land plant species to propagate and spread.
The idea behind Purbeck Heaths NNR has not emerged out of a vacuum. The new NNR embodies the ethos behind the Lawton Report (2010) whereby Prof. John Lawton made the critical argument for protected areas in England to be “bigger, better, more joined up” if they are to persist into the future. In 2017 Natural England highlighted in their National Nature Reserve Report the great opportunity for landowners’ and NNRs to work together to enlarge and protect England’s Natural Capital network. Finally, the efforts to create and improve the resilience of the Purbeck Heath landscape encapsulates the UK Government’s 25 Year Plan (2019) to ensure that, “we leave the environment in a better state from when we found it”...
The efforts taken to create and managed Purbeck Heaths NNR are inspiring and in these times of uncertainty and increased concern for the natural world, provide hope that other protected areas across the country (however small, numerous and disjointed) could potentially follow suit and build a more resilient and connected natural environment for both nature and people.
Natural England (2017) National Nature Reserves – The heart of Conservation in the 21st Century (http://publications.naturalengland.org.uk/publication/6291868196798464)
Prof. Lawton, John. (2010) Making Space for Nature: A review of England’s Wildlife Sites and Ecological Network. The Lawton Report. (https://webarchive.nationalarchives.gov.uk/20130402170324/http://archive.defra.gov.uk/environment/biodiversity/documents/201009space-for-nature.pdf)
BTO (2019) State of Nature Report (https://www.bto.org/sites/default/files/publications/state-of-nature-2019-report-uk.pdf)
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