We’ve just sent this off to Natural England, who are consulting on how to improve the guidance for the EIA (Agriculture) Regulations.
This consultation has arisen as a result of the complaint we have taken to the European Commission, so I suppose it counts as a small victory for our campaign to strengthen the protection afforded to semi-natural grasslands outside SSSIs.
Improving the guidance will not make The Regulations any easier to implement, or any more effective, but they should at least clearly state what the Regulations can and cannot do.
The Grasslands Trust’s Response to Natural England’s consultation draft of the Public Guidance for the EIA (Agriculture) Regulations in England
The Grasslands Trust is the only charity in the UK whose sole purpose is to conserve grasslands of importance for their wildlife, landscape, cultural and community values. We are a registered UK Charity, formed in 2002 in response to the increasing awareness that wildlife- and heritage-rich grasslands are now the UK’s most rapidly declining and threatened habitats. We work with local communities to cherish their local grasslands; provide expert advice to grassland owners, statutory and voluntary sector organisations, on the value of grasslands and how best to manage them to benefit wildlife and heritage; purchase threatened grassland sites and support other organisation to purchase them; campaign to improve the policy environment for threatened grasslands; and raise the awareness of the public and decision-makers to the plight of grasslands in and beyond the UK. We work in partnership with a wide range of organisations to deliver our aims, from within the statutory, voluntary and local government sectors, to local communities and individual landowners
- 1. Context
The Grasslands Trust welcomes Natural England’s review of the guidance for landowners and the general public, concerning the application of the Environmental Impact Assessment (Agriculture) (England) Regulations (no. 2) 2006. This guidance document is very important, partly because the Regulation is complex and many aspects of it require clear definitions to enable it to function effectively as a mechanism to protect wildlife.
For the past five years, The Grasslands Trust has led a coalition of NGOs campaigning to highlight the weaknesses in the Regulation, both in terms of its effectiveness, and the success with which it has been implemented. This coalition has provided evidence to Defra, and subsequently to the European Commission, of wildlife sites and their biodiversity which have been damaged and destroyed without successful application of the Regulation.
- 2. The guidance
The draft Public Guidance is substantially the same as the previous set of guidance. The most significant change, and the reason that the guidance had to be revised, is that land under a restoration option within an agri-environment scheme is now regarded as uncultivated land. The intention of this clarification is welcome, that being to close the loophole which prevented action being taken following damage to Brock’s Common Local Wildlife Site in Devon. Unfortunately it will not, as it is based on the assumption that all land entered into re-creation options of agri-environment schemes, such as HK8 in the Higher Level Scheme (HLS), will not meet the uncultivated land test. In fact, there are examples where uncultivated land, for example Culm grassland that had been afforested, but is still uncultivated for the purposes of the Regulations, is entered into HK8. The guidance should state clearly that land in re-creation options of Agri-environment schemes should be assessed to determine whether it was “cultivated land” prior to being entered into those re-creation options.
There are a number of other issues which the guidance does not address, which The Grasslands Trust believes could be further clarified in this guidance. This further clarification would help to define the limits within which the Regulations can operate, as they are currently laid out.
- 3. Screening Notice
The Screening Notice mechanism has not been successfully used once in the five years since the Regulation was made law. This is in part due to a Defra decision in 2006 to revoke on appeal the first attempt by Natural England to use a Screening Notice. Defra determined that projects affecting sub-threshold semi-natural areas would not, by definition, be likely to have a significant effect on the environment. On this basis any projects that did have a significant effect on a sub-threshold semi-natural area would need to have special features that justified a Screening Notice being used. Under questioning from the European Commission, Defra has now agreed that this was an error. Yet in a recent written answer Farming Minister James Paice re-iterated that the Screening Notice could only be used where there a semi-natural area was of “particularly high environmental quality”. It is still very unclear to landowners, NGOs and general public how this Notice could be applied.
Two tests have to be passed before a Screening Notice can be made – firstly that the project “is likely to be carried out”; secondly that it is “likely to have a significant effect” on the environment.
On the first test, it is not clear what level of evidence is required to prove that a project “is likely to be carried out.” This should be clarified. For Stop Notices and Remediation Notices, the standard of proof required is “on balance of probabilities” – what is the standard of proof for Screening Notices, and what does this translate to in practice? Evidently, from recent examples, landowners stating to witnesses verbally their intention to carry out an uncultivated land project on a semi-natural area are not sufficient for Natural England to act. It would be helpful if Natural England provided a range of examples of what standard of proof is required.
On the second test, Defra has clearly stated on more than one occasion that, by definition, a sub-threshold project will not have a significant effect on the environment. Natural England has the opportunity in this public guidance to lay out very clearly what it regards as likely significant effect in this context. Given that the only semi-natural areas that are currently within the scope of the Regulation are priority habitats, it is difficult to understand how the loss of priority habitat fragments below the threshold is not significant. The Independent Farming Regulation Taskforce (McDonald review) suggested that there was an element of gold-plating about the 2ha threshold. Yet England’s priority grassland habitats are known to be highly fragmented and a large proportion (nearly half of all surviving purple moor-grass/rush pasture for example) of sites outside SSSIs fall below this 2ha threshold. This issue needs further clarification in the guidance.
- 4. Definition of Semi-Natural
Natural England has attempted to clarify what constitutes “Semi-natural areas” within the Regulation, by introducing a table (A2) with descriptions and a comparison of priority habitat type to National Vegetation Classification (NVC) community. Whilst the descriptions are useful, the NVC coding is only of use to the specialist – it will mean nothing to the average landowner.
A more useful approach to identifying semi-natural areas would be that adopted within Environmental Stewardship in the HLS Farm Environment Plan handbook. This is a systematic approach to identifying habitats without using the NVC and is much more amenable to use by a moderately proficient naturalist. Indeed Natural England staff are using this approach to identify new additions to the lowland grassland inventory, rather than relying on the much more complex, expensive and potentially ambiguous NVC approach.
Landowners will struggle to find out whether an area which they wish to “cultivate” is semi-natural or not. One very good proxy for determining whether an area semi-natural or not is Local Wildlife Site status. We believe that LWS status should automatically trigger an ecological assessment to determine whether an area meets the tests for being “semi-natural” or not. This would avoid future cases such as that of Harrow Farm, Leicestershire in 2008 where an entire LWS-designated farm was cultivated and NE took no action.
One other issue that may require reappraisal is the requirement that semi-natural areas are by definition uncultivated, and that land cannot be determined to be uncultivated until at least 15 years since the last act of cultivation. Defra amongst other organisations is currently funding work carried out by the Centre for Agri-Environmental Research at the University of Reading, to develop a robust and repeatable methodology for assessing sites to determine when they have reached sufficient quality to be described as “priority habitat” or technically “habitats of principal importance” as defined in the NERC Act. These definitions underpin the definitions of semi-natural areas within the Regulations. If the methodology developed in this research programme is accepted, and once in use enables the identification of newly created sites for priority habitat, where that habitat has developed within 15 years since last cultivation, this will undermine the current definition of uncultivated land within the Regulations. At this point the definition of uncultivated land, using the 15 year test, will need to be revised.
- 5. Habitats for Priority Species
This is one of the major weaknesses in the definition of semi-natural areas. Quite arbitrarily (semi-natural is left undefined in the EIA Directive) Defra decided in 2006 that semi-natural areas were restricted to those defined according to the presence of an above-threshold area of priority habitat. This excludes sites that support priority species but which support either sub-threshold areas of priority habitat, or areas of habitat which do not meet the definitions of priority habitat laid out in the JNCC habitat definitions i.e. sub-threshold in terms of quality.
There is further confusion in the new guidance, in the notes at the bottom of page 9. These relate to habitats which might include grassland that would not qualify as semi-natural. These notes add confusion by defining Coastal Flood Plain Grazing Marsh as being semi-natural, even if it does not meet the (NVC) botanical tests, but if it supports “associated” species:
“coastal and floodplain grazing marsh…[that] also provides conditions for species associated with grazing marshes such as wintering or breeding birds, aquatic plants and ditch invertebrates should be considered as a semi-natural area.”
Coastal Floodplain grazing marsh qualifies as semi-natural if it provides conditions for species associated with grazing marshes – the implication being it is not necessary to prove that a species is actually present, just that the conditions are provided. But this is inconsistent with the approach taken to wood-pasture or orchard areas, where the grassland element is uncultivated but not semi-natural. An area of priority wood-pasture or orchard habitat does not qualify as semi-natural overall even if it supports priority species. The same logic applies to semi-improved grasslands which do not qualify as semi-natural on habitat grounds, even though they support priority species.
The Grasslands Trust believes that grasslands and other habitats that support priority species should be regarded as “semi-natural areas” even if they do not qualify as such on grounds of habitat quality or extent.
- 6. Scrub
The approach to the management of scrub is unclear in the guidance. Scrub as a habitat qualifies as semi-natural according to the Regulations and the guidance. But the guidance (paragraph 34) states that clearing scrub does not qualify as cultivation. Yet cultivation is defined as an operation that would “increase the agricultural productivity of the land”. Clearing scrub is an operation which will unambiguously increase the agricultural productivity of the land because more land is available to produce herbage for grazing animals. This inconsistency needs to be resolved. One problem with tying the definition of semi-natural to the JNCC priority habitat definitions, is that scrub has no priority habitat status or definitions. This is problematical – clearly some scrub communities and species do have priority status e.g. juniper, certain upland scrub communities, or southern mixed scrub. Under this approach a patch of juniper scrub could be cleared without requiring EIA if the sward underneath the juniper did not qualify as priority grassland habitat from its own botanical composition. There is also the risk that scrub may fall between the EIA (Agriculture) and EIA (Forestry) Regulations.
- 7. Cultivation
There are some anomalies within the definition of cultivation which could be clarified, to aid landowners, contractors and the general public, to understand how and when the Regulations apply.
- 8. Herbicide use
Paragraph 32 states that, spraying of herbicide qualifies as an uncultivated land project. Yet paragraph 34 states that herbicide application does not qualify as cultivation. There appears to be a contradiction between these two positions.
- 9. Fertiliser
Paragraphs 40-42 seek to explain that low levels of fertiliser use eg farm yard manure do not cause land to change its status from uncultivated to cultivated if the semi-natural status of the area is maintained. It should also be made clear that, under certain circumstances, application of chemical fertiliser eg basic slag or rock phosphate, will also not alter the uncultivated status of the land if the semi-natural status of the area is maintained.
- 10. EIA application to equine or camelid grazing; afforestation and development
We understand that land that is grazed by equines and camelids may or may not fall within the scope of the EIA (Agriculture) Regulations, depending on whether the animals are fed and housed or not. It is important that this guidance clearly states to what extent the EIA (Agriculture) Regulations cover equine and camelid – grazed land.
Equally, it is important for the public to understand how EIA (Agriculture) relates to EIA (Forestry) and the Town and Country Planning (EIA) Regulations, so that the gaps between the various EIA regulations are closed.
The guidance should also clarify how the Regulation applies to overgrazing, and in particular GAEC 9 overgrazing.
- 11. Permanent Pasture
Proposals from the European Commission on Reform of the Common Agricultural Policy published on 12th October 2011 include changes to the rules governing the protection of Permanent Pasture. These changes propose that Permanent Pasture shall be maintained at the holding level, based on the amount of Permanent Pasture present in the base year 2014. This is a substantial change from the current rules, which operate at the Member State or Regional level. Farmers (other than small farmers and organic farmers) receiving Single Payment will be required to maintain their Permanent Pasture (with a maximum of 5% reduction from the base area within the timescale of the CAP Regulation) in order to receive the full Single Payment, including the 30% “greening” element.
Farmers currently have to declare the areas of their holding which fall into the category of Permanent Pasture on their Single Payment Form. Farmers who do not wish to be restricted in future by the new rules may decide to cultivate their Permanent Pastures between now and the base year. Although the majority of the ca 4 million hectares of Permanent Pasture in England is improved grassland, a substantial element (1.3 million ha according to Countryside Survey) is semi-improved grassland of varying biodiversity value, and most of the relict 100,000ha of priority grassland habitat will have been mapped as Permanent Pasture on holdings receiving Single Payment.
It is imperative that Natural England provide public guidance on the protection of Permanent Pasture under the EIA (Agriculture) Regulations within this public guidance document and that this guidance be forcefully promoted through the farming and other press and social media. Landowners must not be able to claim that they were not aware of the requirements of the EIA (Agriculture) after they had cultivated grasslands with biodiversity, heritage or other values, in order to avoid being caught by the new CAP Permanent Pasture rules.
- 12. How can better information about these small sites be gathered to ensure that significant impacts on uncultivated or semi-natural land area averted?
“ We understand the need to protect even small valuable pieces of biodiverse grassland, but the current approach does not appear to adequately separate these from the many more bits of grassland that do not have the same value. We do however recognise that the EIA Regulations form only part of the approach to the protection of important grassland
We think Natural England should establish a better way to identify these valuable sites to enable their protection. The upcoming review of the guidance on the use of the Regulations provides an opportunity to do so and we would encourage all stakeholders to participate fully.” (Recommendation 6.93 Striking a Balance; report of the independent farming regulation task force 2011)
The Grasslands Trust supports the view of the Independent Farming Regulation Taskforce, which recognises the need to protect all of the surviving resource of biodiverse grasslands, which we would take to include both semi-natural grasslands as defined within the EIA (Agriculture) Regulations, semi-natural grasslands falling outside the definitions currently being used within the EIA Regulations that support priority species, and semi-natural grasslands that meet the tests for priority habitat status being developed by CAER, as mentioned earlier.
One of the major problems with implementing the EIA (Agriculture) Regulations is that landowners are unaware of the value of the semi-natural grasslands on their land, and the Regulations make the identification of those grasslands onerous to achieve. All too often it is impossible to determine whether a grassland is semi-natural or not, before it has already been subject to an uncultivated land project. After the project, there is no proof that the area was semi-natural, so not only is the area lost, but no sanctions can be applied.
One solution to this would be to develop a comprehensive inventory of semi-natural grasslands (as defined above). There are already good quality data sets available for some counties in England from the long-established and better resourced local record centres. These should be incorporated much more effectively into the lowland grassland inventory and other NE inventories. Local Wildlife Sites, for example, should be included in the inventory in full, because it is unrealistic to expect those who are managing local site systems to have the resources to distinguish between priority habitat areas within LWS’s and non-priority habitat areas within those sites. This distinction is not available for all SSSIs so it is unreasonable to expect it to be available for the far more meagrely resourced LWS’s. In any case, such a distinction is only a snapshot for the time of survey, and will change as a result of changes in site management and natural factors.
Those counties where local wildlife sites systems do not have comprehensive coverage of semi-natural grasslands should be targeted for more survey. Species data for sites of priority species also need to be incorporated into the lowland grassland inventory and other inventories.
A first step in this project would be to undertake a gap analysis of local site systems to identify those areas/counties where targeted survey effort is needed.
A public campaign could then be launched to gather information on previously unknown grassland sites. Bringing together a range of NGOs, statutory bodies and local authorities, a campaign could provide a large quantity of data on sites to be added. A verification process would need to be developed to ensure that data quality was sufficient to meet the requirements of the Regulations.
Such an inventory is required for reasons above and beyond EIA
- To meet the targets laid out in Biodiversity 2020, a much improved baseline and reporting framework is needed for priority grasslands.
- To identify valuable grasslands within the new planning framework.
Director of Conservation
 22ha of Purple Moor-grass/rush pasture priority habitat in Brocks Common County Wildlife Site was damaged by cultivation in 2008. A stop order was obtained by Natural England but this was overturned on appeal, as the site had been in a Countryside Stewardship Restoration Option, and was therefore technically cultivated land.
 Pers comm. between Miles King (TGT) and Peter Burgess Devon Wildlife Trust 6th October 2011.
 Letter from Defra to The Grasslands Trust 27th October 2010
 J. Paice written answer 6th September 2011 HC Deb, 6 September 2011, c377W.
 Eg Jock’s meadow, Bishops Itchington, Warwickshire – correspondence between TGT and NE June 2011.
 Defra letters to TGT October 2010, 7th December 2009,
 Striking a Balance: Independent Farming Regulation Taskforce 2011.
 Data from Natural England quoted in letter from a coalition of NGOs to Hilary Benn 1st July 2009.
 Rodwell, J et al (1991-2000). British Plant Communities volumes 1-5. Cambridge University Press.