Invasive Species “Control Order” Proposals

At present in England and Wales, whilst it is a criminal offence to “cause to spread” invasive non-native species such as Japanese knotweed, there are no real controls on allowing to continue growing on your land if you already have it, However authorities in Scotland have for some time been able to apply “Control Orders” to existing infestations, and as a result of new European pressure, the Law Commission reviewed the Scottish approach during 2014, and made recommendations for the introduction of essentially similar legislation in England

The 74 page report makes 45 separate recommendations, starting from a recommendation that “there should be a power to make species control orders to control invasive non-native species in England and Wales modelled broadly on the procedure introduced by the Wildlife and Natural Environment (Scotland) Act 2011.”

In taking this approach, the Law Comission recommends that species that could be controlled by such an order should be BOTH:

  • Invasive – if not controlled would have an adverse effect on biodiversity, other environmental interests, or social or economic interests, AND
  • either an animal or plant not ordinarily resident in or a regular visitor to Great Britain, or one listed in Schedule 9 of WACA 1981

For such species, the recommended process would follow four distinct steps:

  1. Investigation – recommendations include powers to permit regulators to enter land (but not buildings) to establish whether or not a species is present that meets the tests above.
  2. Species Control Agreement – a voluntary agreement between the regulator and the landowner / occupier to carry out works to control or eradicate invasive non-native species. If an agreement is put into place and the works are carried out, the process would stop at this point.
  3. Species Control Order – a requirement for the landowner / occupier to carry out specific works to control or eradicate invasive non-native species.
  4. Enforcement – Should the works agreed in a Control Agreement or specifies in a Control Order not be carried out, the authority can carry out the works themselves, or arrange for them to be carried out.

The are also provisions for omitting the first two steps in emergency situations. However, some of the more interesting recommendations are tucked away within the report, including the recommendation that the cost of control or eradication should be borne by the public purse, except in instances where the situation has been made worse by wilful action or neglect by the landowner / occupier. Similarly, any proposed control actions should be proportional to the wider risk posed should the species remain unchecked on that site.

Overall, in the case of invasive plant species, I could see this being primarily used where infestations are spreading across boundaries, or in instances where plants have been spread through neglect of proper procedures. It will be interesting the see the final form of the legislation once implemented.


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