Email this article The Law of Nature Conservation - Christopher P. Rodgers
2013, 337pp., Hardback, ISBN 978-0-19-954313-7
Oxford University Press
Reviewed by: Brian Jack [1]
Some may have previously regarded nature conservation law as something of a niche area of the law. If that is the case then, hopefully, that is no longer the case. Like all areas of environmental law, nature conservation law has become integrated into the broader economy. Development plans, whether they be for a fracking well, a high speed railway, a housing development or even an off shore wind farm may well be directly affected by protective measures introduced by national or European Union nature conservation laws. Additionally, for landowners, nature conservation measures have also become a central aspect of the European Union's Common Agricultural Policy. Nature conservation law therefore plays a major role in regulating the manner in which we both protect and manage large areas of both the countryside and, increasingly, marine waters.
In the Law of Nature Conservation, Rodgers focuses principally upon English law, whilst also highlighting some of the differences of approach that have evolved under devolution in Scotland, Wales and, to a more limited extent, Northern Ireland. As the author notes in the preface, 'most disputes about nature conservation are really disputes about access to economic or other resources', he therefore goes beyond purely legal analysis to frame the discussion within economic, policy and property right contexts. For example, the opening chapter explores how these issues influenced the evolution of nature conservation law as well as the choice of regulatory measures it deploys. The opening chapter and final chapter (Chapter 8) also examine the way that differing property rights models impact upon nature conservation law. Between these chapters, the book examines a range of topics. These include nature conservation governance, the identification of protected areas, the menu of measures available to protect wildlife habitats inside and outside these protected areas, the protection afforded to individual plants and animals belonging to vulnerable species and recent developments in nature conservation law concerning marine conservation.
In examining the governance of nature conservation the author examines the role of statutory conservation agencies, such as Natural England, as well as that of the Joint Nature Conservation Committee and the wide range of governmental bodies that have nature conservation functions. He also acknowledges the role played by environmental NGO's, highlighting in particular the contribution made by the National Trust and the Wildlife Trusts. The author's analysis also explores the obligations that governmental bodies have to promote conservation in general and sustainable development in particular.
Measures in relation to protected areas are examined over two chapters. Chapter 3 examines the United Kingdom's own policy measures, whilst chapter 6 analyses the impact of European Union law. As mentioned earlier, chapter 3 focuses primarily on England. In so doing it provides an account of the broad range of nature conservation designations that exist- providing commentary on Sites of Special Scientific Interest, Nature Reserves, National Nature Reserves, Local Nature Reserves, Limestone Payment Orders, National Parks and Areas of Outstanding Natural Beauty. As might be expected, given their impact upon private land and their position as the United Kingdom's primary nature conservation measure, greatest attention is paid to the process of identifying and protecting Sites of Special Scientific Interest. In doing so, the author examines the impact of the reforms introduced by the Countryside and Rights of Way Act 2000 and of case law. Chapter 6 complements this analysis by introducing readers to the Wild Birds and Habitats Directives. The discussion covers both the legal obligations imposed by the directives and the role of the Conservation of Habitats and Species Regulations 2010 in implementing those obligations into national law. The role of development controls and the implications of the Habitats Directive for planning law are also considered.
In addition to the chapters on national and European designations, chapter 4 examines the management of wildlife habitats. It covers a broad range of issues. On the one hand it explores the role of the management agreement, primarily in relation to the management of Sites of Special Scientific Interest and European Sites, and their evolution from agreements compensating landowners for profits foregone to measures paying for positive land management. In addition it also examines the role that the European Union's Common Agricultural Policy plays in protecting and supporting the management of wildlife habitats in both protected sites and the countryside as a whole. The author also addresses the role that town and country planning and the Environmental Liability Directive have in protecting nature conservation sites.
In addition to the protection of habitats, the book also details the legal protection provided to individual plants and animals that belong to vulnerable species. Once again this spans two chapters, with chapter 5 setting out the protection provided under national law and chapter 6 providing a briefer overview of the protection afforded, under the Wild Birds and Habitats Directives, by European Union law. Indeed the more comprehensive coverage of the measures introduced by national law is underlined by the fact that the chapter goes so far as to cover tree preservation orders and the legal protection afforded to hedgerows under the Hedgerow Regulations 1997.
Sites of Special Scientific Interest are a terrestrial concept. However, as the United Kingdom has discovered to its cost before the European Court of Justice, the Wild Birds and Habitats Directives also extend into the marine environment. The importance of this area has been significantly increased by the introduction of the European Union's Marine Strategy Framework Directive and the Marine and Coastal Access Act within the United Kingdom. The author examines each of these measures in chapter 7 of the book. His focus is principally upon their implications for the designation and protection of marine conservation zones within United Kingdom waters.
Perhaps the principal challenge that the author has had to face has been the continuing evolution that nature conservation law has been undergoing. As mentioned, the book addresses the growing importance of measures protecting marine habitats. There has also been much recent discussion about further legal reform of the United Kingdom's land based nature conservation laws. Unfortunately, as the author notes in the preface, the more recent Law Commission consultation paper on wildlife law reform was published after the book went to press. However, the book does provide analysis of the potential impact of the proposals set out in DEFRA's 2011 natural environment white paper.
Overall, the book provides a comprehensive account of nature conservation law, focusing primarily on English law and on the implications of the European Union's Wild Birds and Habitats Directives. It is likely to quickly establish itself as a core reference book on these areas. Equally, the author's decision to ground the work within the social and economic contexts within which our national nature conservation laws evolved mean that readers can expect to learn not just how the law works in particular areas, but also why it does so.