Operations within SSSIs
Operations requiring consent
Although the notification is effective from the date it is served, it is still subject to formal confirmation. Operations requiring consent, or ORCs, are those activities that we believe could damage the natural features of an SSSI and for which we are responsible for giving consent. We may refuse consent to prevent an activity that could damage the natural features of an SSSI. If, in this way, we constrain ‘established management’ and cause you actual financial loss, we must offer you a management agreement. Consents which we issued in writing under the Wildlife and Countryside Act 1981 (as amended) are still valid and treated as if we had issued them under the Nature Conservation (Scotland) Act 2004. You do not need to contact us again about these.
On the basis of experience since 1981, we do not expect to refuse many consents. Where there is a risk of damage to the natural features of an SSSI, we will, in most cases, be able to agree with you that an operation would be acceptable if you carried it out in a particular way, or confined it to a certain area or season, and give you a conditional consent.
If you obtain consent from certain other regulatory authorities for activities on an SSSI, you do not need to obtain our consent. We will review all existing ORC lists by about 2011 and either take out operations for which other regulatory authorities give permission, or make clear which other regulatory authority you should consult.
SNH’s balancing duty
We must take appropriate account of
- actual or possible ecological and other environmental changes to the natural heritage
- the needs of agriculture, fisheries and forestry
- social and economic development
- archaeological and historical interests, and
- the specific interests of owners and occupiers and local communities.
We call this ‘the balancing duty’.
This duty cannot override our legal obligation to notify land as an SSSI where the scientific case has been made and approved by the relevant SNH Board. However, we must think about the balancing duty when we respond to applications to carry out or permit operations requiring consent. Every case has to be judged on its merits, weighing these considerations against possible damage to the natural features of the SSSI. Where an SSSI is also a Natura site, the extent to which we can take account of the balancing duty is severely limited.
What owners and occupiers must do
When we notify a new SSSI we will consent your land management that conserves and enhances the site’s natural features. If later, you propose to carry out, or permit to be carried out, a new operation (including stopping an existing operation) that is likely to damage or destroy the natural features of the SSSI and which is on the list of operations requiring consent, you must obtain consent from us before starting.
This is important because, if you act without consent or intentionally or recklessly damage an SSSI’s natural feature(s) you may be committing a criminal offence, and if found guilty, fined. If you are convicted of damaging the natural feature(s) of an SSSI, by carrying out an activity without consent, a court may also make you repair the damage at your own expense. If you farm on an SSSI, you may risk losing certain agricultural incentive payments if you carry out an activity on an SSSI without consent.
When applying for consent you should give us enough information about what you propose to do, when you propose to do it and the land on which it is to be carried out, so we can assess the likely impact, if any, on the natural features of the SSSI. To protect yourself from the risk of possible prosecution, you should tell your employees or contractors which operations require consent, so that you can apply to us, and we can deal with your application, before you plan to start. You are not, however, liable for the actions of unauthorised third parties, statutory undertakers and other public bodies.
After you have written to us, you may not then undertake an operation requiring consent unless we have agreed to it in writing, or it is in accordance with the terms of a management agreement or a land management order. Land management orders are explained later in this booklet. If, after four months, we have not given consent, this is deemed to be a refusal of consent. We can agree to extend this period, to allow further consideration.
You do not need consent from SNH for new operations if:
- planning permission has been granted
- permission has been granted by a regulatory authority
- it is an emergency operation and you tell us as soon as you can after the need becomes apparent or
- it is required under a management agreement with us or a land management order.
What SNH must do
We will give written consent for operations or work that can be done without damaging the site. Before doing so, we may need to ask you for more information on the proposal.
Where the proposed operation would damage the natural features of an SSSI, we will work with you to find ways to avoid this. If we cannot agree a satisfactory solution, we can refuse consent and you may not go ahead with it. If, in this way, we constrain ‘established management’ and cause you actual financial loss, we must offer you a management agreement. We do not need to offer you compensation if we refuse consent for a new project, but we may offer you a voluntary Natural Care scheme agreement to support the management needed to maintain the natural features of your SSSI.
Relationship to the planning system
Designation as an SSSI does not affect the need for planning consent for development, but the planning authority must consult SNH on applications which may affect an SSSI. We do not offer management agreements for operations which appear to need planning consent, unless the planning authority has decided that such consent is not necessary.
Relationship with certain regulatory public bodies
Certain regulatory authorities can permit some activities on or affecting SSSIs, having first consulted SNH and had regard to SNH’s advice. You will no longer have to obtain consent from SNH for those operations.
All regulatory authorities must consult us on applications, which may affect an SSSI and allow SNH 28 days to advise. If the regulatory authority decides to give consent against our advice, the work must not start for a further 28 days to give us time to review the situation.
Changing or taking away consent
We may modify or withdraw an existing consent following a review of the list ofoperations requiring consent if we think that the activity is damaging or will damage the natural features of an SSSI. We can also do this at other times, if the activity is damaging in a way we had not foreseen, and Scottish Ministers agree. If in changing your consent we prevent established management, we must offer you a management agreement to compensate for any loss of income this causes you.
Appeal against SNH decisions on consents and management agreements
There may be times when you are unhappy with a decision we have made. We would hope to resolve this by other means but, if this is not possible, you may then appeal to the Scottish Land Court about:
- our decision to refuse a consent
- a condition imposed in a consent
- a decision to withdraw or modify a consent
- a decision not to offer a management agreement, or
- the terms of a management agreement offered by SNH.
Land management orders
Where a change in management is needed to maintain, restore or enhance the natural features of an SSSI we will discuss this with you and offer to enter a management agreement. Where we cannot agree over a management agreement (or a concluded management agreement is not being complied with), we can ask for a land management order from Scottish Ministers. Where Ministers agree and make a land management order it will specify how the land must be managed to conserve the natural features of the land and may provide for SNH to make payments to the person carrying out the work.
Ultimately, if you do not comply with a land management order, we may carry out the necessary work and recover any additional costs from you.