Cynulliad Cenedlaethol Cymru

Pwyllgor Amgylchedd a Chynaliadwyedd

National Assembly for Wales

Environment and Sustainability Committee

Egwyddorion cyffredinol

Bil yr Amgylchedd (Cymru)

General principals of the

Environment (Wales) Bill

Ymateb gan Cyswllt Amgylchedd Cymru

Response from Wales Environment Link

EB 35

EB 35


Baltic House / Tŷ Baltic,  Mount Stuart Square / Sgwâr Mount Stuart,  Cardiff / Caerdydd,  CF10 5FH

( : 02920 497 509                                                š:      


Environment (Wales) Bill


June 2015


1.    Summary of Key Points and Recommendations



2.    Part 1: Natural Resources Management


2.1.               Biodiversity


2.1.1.   WEL welcomes the Welsh Government’s intention to introduce a strengthened biodiversity duty in Wales. This is necessary because policy commitments on biodiversity have not been delivered; the 2010 target to halt biodiversity loss, agreed under the Convention on Biological Diversity (CBD), was not met, and the biodiversity outcomes in the Wales Environment Strategy seem to have fallen by the wayside.


2.1.2.   Revised goals were set under the CBD in Aichi in 2010, which led to the following commitments in the EU Biodiversity Strategy:


·      A headline target for 2020: ‘Halting the loss of biodiversity and the degradation of ecosystem services in the EU by 2020, and restoring them in so far as feasible, while stepping up the EU contribution to averting global biodiversity loss’; and

·      the 2050 vision: ‘By 2050, European Union biodiversity and the ecosystem services it provides – its natural capital – are protected, valued and appropriately restored for biodiversity's intrinsic value and for their essential contribution to human wellbeing and economic prosperity, and so that catastrophic changes caused by the loss of biodiversity are avoided.’


We are well on the way to 2020 and we need redoubled commitment from Government if Wales is to deliver against this target and not repeat the failure to meet the target to halt the loss of biodiversity by 2010, which prompted the 2011 Sustainability Committee inquiry into biodiversity in Wales. The Committee recommended that interim targets be put in place to ensure the 2020 target is achieved, along with a fully funded and resourced biodiversity strategy. Neither of these recommendations has been taken forward and action for biodiversity is still woefully under-resourced. It does not appear that the Bill will change this.


2.1.3.   Even with a strengthened biodiversity duty, we are concerned there may be little improvement on the ground for biodiversity because the structure of this duty allows other considerations to take precedence in decision making. The new duty is only stronger in its requirement to report on progress, which in itself is not a guarantee that more action will be taken on the ground.


2.2. Requirement for Statutory Biodiversity Targets


2.2.1.   WEL has, for the past two years, strongly argued that biodiversity targets should be included in the Environment Bill. We believe that the Minister’s justifications for the inclusion of climate change targets apply equally to biodiversity, in particular that ‘including statutory targets will allow us to better evaluate progress […] and confirm achievable targets to work towards.’


2.2.2.   We believe that statutory targets for 2050 should be included, which achieve:


·     an increase in biodiversity compared with current levels; and

·     all protected sites to be in favourable condition (this is specified for 2026 under the Environment Strategy for Wales, so may be achievable as an interim target)


We believe there should be an interim target or targets, to be set within the National Natural Resources Policy.


2.3. Reporting and Measuring Progress on Statutory Biodiversity Targets


2.3.1.   Progress towards the biodiversity target should be measured with reference to a national biodiversity index. It is important that a species measure is used or we will not know whether the new management approach benefits biodiversity. The national biodiversity index would be an index specified by the Welsh Ministers, which is an accurate record of the population trends of species identified as being of principle importance for the purpose of maintaining and enhancing biodiversity in section 7 of this Bill (which replaces the old Section 42 of NERC 2006). We have been assured by Welsh Government officials that the existing s42 list will remain the relevant list under this new section; any future revisions of the list must apply the same rigorous, criteria-based approach.


2.3.2.   Reporting on progress towards the targets should form part of the five-yearly State of Natural Resources Report, with additional reporting required during the year of any interim target, but NRW should advise the Welsh Ministers annually on progress. This will allow the Assembly and other interested parties to hold the Government to account on progress in a transparent way.


2.4. Definition of Natural Resources


2.4.1.   Whilst landscapes are no longer included in the definition of natural resources, as they were in the White Paper, we believe they do have an important role to play in the implementation of natural resource management processes. Landscapes are defined in the European Landscape Convention as ‘an area, as perceived by people, whose character is the result of the action and interaction of natural and/or human factors.’ These important relationships should be recognised in the Bill, as landscapes provide the overarching context within which natural resource and ecosystems management take place. This is particularly the case in Wales’ Protected Landscapes, some of the most important ‘hot spots’ for ecosystems services. The opportunity these areas provide and their potential role as major deliverers of sustainable natural resource management (as recommended by the Independent Panel currently reviewing Designated Landscapes in Wales), should be recognised.


2.4.2.   We are concerned that an unintended consequence of this omission is that landscapes and seascapes, particularly those in Protected Landscape areas, may not be given the consideration and protection that they deserve within the provision of the Bill. Likewise, they may not be given sufficient consideration by NRW as part of their function to sustainably manage natural resources in Wales. The Minister should clarify how landscape and seascape protection, and their future stewardship, will be enhanced by the Bill and how the special circumstances and future role of Wales’ Protected Landscapes will be taken into account.


2.4.3.   In order to strengthen the definition of sustainable management of natural resources, we believe that Sections 3 (1) (a) and (b) should be amended to ‘contribute to’ the achievement of the objective in Section 3 (2) rather than ‘promote’, which our legal advice tells us is a weaker formulation.


2.4.4.   In order to ensure the objective in Section 3 (2) delivers for biodiversity we believe it should refer directly to biodiversity as well as ecosystem resilience, because:

·         species and habitats (biodiversity) are the fundamental components of ecosystems and as such are important indicators for the health of ecosystems: species declines may continue if attention is not paid at the appropriate scale for measurement of resilience;

·         inclusion of biodiversity in the objective, as well as ecosystems, makes the objective more consistent with the biodiversity and resilience of ecosystems duty in Section 6; and

·         inclusion of a reference to biodiversity makes the objective more consistent with Goal 2: A Resilient Wales, in the Well-being of Future Generations Act (WFG Act), which specifically refers to ‘a biodiverse natural environment with healthy functioning ecosystems’.


                        Section 26 of the Bill, or the explanatory memorandum, should clarify that the definition of ‘ecosystems’ is based on the Convention on Biological Diversity (CBD) definition: ‘a dynamic complex of plant, animal and microorganisms and their non-living environment interacting as a functional unit’.


2.4.5.   Section 4, Principles of sustainable management of natural resources, should recognise the importance of biodiversity as well as ecosystems. Some important principles are missing from this list, including management of ecosystems ‘within the limits of their functioning’ and considering the effect of management decisions ‘on adjacent and other ecosystems’. These are included in the CBD Principles. We also believe that inclusion of the precautionary principle would strengthen this section, and would be compatible with CBD Principle 9. It is important to include principles relating to the management of conflicts when making natural resource management decisions.


2.4.6.   Given our concerns that certain important principles are missing,we have concerns with some of the qualifying language employed. In sections 4 and 6, certain aspects of resilience are specified ‘in particular’. Applying the usual rules of statutory interpretation, this operates as a limiting factor, and precludes any other aspects of resilience from being included (sections 391 to 393 Bennion on Statutory Interpretation 5th Edition). If these sections are not amended to be comprehensive then we recommend the addition of the words ‘(but without limitation)’ after ‘in particular’. This would ensure that important factors are not excluded.


2.5. General Purpose of Natural Resources Body for Wales


2.5.1.   WEL is concerned that the new statutory purpose for NRW is weak. It requires NRW to ‘seek to achieve sustainable management of resources in relation to Wales’ but sustainable management of natural resources is defined as ‘using natural resources in a way and at a rate that promotes achievement of the objective’ in Section 3 (2). This means NRW’s purpose is essentially to ‘seek to achieve to promote’ the objective. The purpose could be strengthened by removing the words ‘seek to’, in combination with the amendments to the definition of sustainable management of natural resources suggested in paragraph 2.5.2.


2.5.2.   The purpose in Article 4 (1)(a) refers specifically to sustainable management of natural resources in Wales. In Article 4 (1)(b), the application of the principles of sustainable management of natural resources is not confined ‘in relation to Wales’. Consequently, our legal advice tells us that NRW can take account of the resilience of ecosystems outside Wales, including (for example) diversity and connections between ecosystems in Wales and elsewhere, providing consistency with goal 7 of the WFG Act. This is not clear in the way the legislation is drafted, however.


2.5.3.   A specific reference to the WFG Act duty to set and meet well-being objectives could help avoid confusion for public bodies about the hierarchy of obligations between the SD duty and the duties established by sections 5, 6 and 7. It would also be useful to clarify the differing definitions used in regard to public bodies between the WFG Act and sections 6(6) and 11 of this Bill. This would clarify for the public bodies, as defined by the WFG Act, their responsibilities under this Bill. For example, the Natural Resources Body for Wales is not listed under section 6(6) as being subject to the biodiversity duty. It may be included as ‘a public body’ but this is not clear.


2.6. National Natural Resources Policy and the Area Statements


2.6.1.   The National Natural Resources Policy (NNRP) has no requirement for consultation on its content. Welsh Ministers are able to include anything that they consider relevant to the sustainable management of natural resources. Welsh Ministers are required to have regard to the State of Natural Resources Report (SoNaRR) in the production of this policy, but we are concerned that this does not provide sufficient safeguards to ensure that the NNRP will benefit the environment. The lack of provision for public consultation contravenes the Aarhus Convention on the right to participate in environmental decision-making.


2.6.2.   Once the NNRP is in place, it must be reviewed after each general election, but there is no specific time frame for review, and no requirement to take action if the policy is found to be in need of revision. It is important that this policy remains current, and that action is taken to deliver it. The Minister should clarify who will be responsible for delivering the NNRP, how progress will be reported on, and how the policy will drive action on the ground.


2.6.3.   Section 9(2) of the Bill states that the NNRP should include what Ministers consider should be done in relation to climate change. There is no explanation in the EM about what this means. The Minister should clarify what will be included in the NNRP on climate change, and how this will differ from the five-yearly reports setting out how each carbon budget will be delivered under Section 39 of the Bill. Will the NNRP focus on adaptation to climate change, for example? We note there is no other specific reference to adaptation to climate change in the Bill.


2.6.4.   There is no reference to the marine environment in section 9 or section 10, Area Statements. The Minister should clarify whether the NNRP will be used to inform policy on marine resource use in Wales or if it is the Welsh Government’s intention to develop this separately within the Wales National Marine Plan (WNMP). Should the former be the case, further consideration will need to be given to the timescale for the adoption and review periods of the WNMP and that of the NNRP and how these will integrate. It is also unclear whether Area Statements would pertain to the Welsh marine area or if this will be solely fulfilled by the WNMP. If the latter is the case, it must be clear how terrestrial Area Statements would interact with the WNMP and how the land – sea interface would be managed.


2.6.5.   We are concerned that section 10(1) appears to give NRW sole discretion on which areas of Wales require Area Statements. There is no requirement for consultation on the scale or type of area to be covered and no provision about the process to be followed when producing an Area Statement. There is also no timescale for when Area Statements must be produced, leading WEL to be concerned that, if no Area Statements were to be produced in the next few years, there would be no means of holding NRW to account for this. Furthermore, it is not clear what the actual product will look like: will it be akin to a spatial plan, and should it be subject to SEA and Habitats Regulations Assessment?


2.6.6.   The EM states the intention for priorities identified in Area Statements to be incorporated into the local well-being plans introduced by the WFG Act, but this appears to be optional, rather than a requirement. There is no overt link between Area Statements and Local Development Plans, which we feel is an important omission from the Bill. LDPs will have a significant impact on the implementation of Area Statements, as they control land use change which affects biodiversity, landscape and factors which influence flooding, soil quality and greenhouse gas emissions.

2.7. General Binding Rules


2.7.1.   WEL is disappointed to see that General Binding Rules, as proposed in the White Paper, have been omitted from the Bill. We strongly feel that these would be a useful tool if used appropriately. We support their use in order to tackle diffuse pollution, alongside other offences, as they have a significant impact upon biodiversity including both nationally and internationally important sites (e.g. SSSIs, and SAC). General Binding Rules could help tackle poor environmental practice that is difficult to capture under the current regulatory system – particularly poor land management practices in rural locations.


2.7.2.   The scale of poor land management practice is, as evidenced by NRW, the reason why many water bodies fail the Water Framework Directive in Wales. General Binding Rules have the potential to bring equity and proportionality to regulation for relatively minor, but widespread, poor practice. They have the potential to encourage more sustainable land management practices and key environmental outcomes. Therefore, we are disappointed that the legislative hook has not been included within the Bill that allows for criminal and civil sanctions. These include restorative orders, stop notices, prison sentences and fines to suit the offence (e.g. a leaking septic tank may cost thousands to repair and small fines may not be sufficient incentive to create the required operator response).


2.8. Power to suspend requirements for experimental schemes


2.8.1.   WEL is concerned about the power under Section 22 to allow Welsh Ministers, upon application of NRW, to suspend statutory requirements for experimental schemes. Whilst we understand that there may be good reason for needing this power, we believe that extra safeguards need to be included to ensure that any suspension of statutory requirements does not cause unacceptable risk of damage to the environment. We would like to see the following:


·         more rigorous requirement for consultation, with the Bill identifying certain statutory consultees who should always be consulted on certain types of schemes;

·         requirement for a risk assessment process to be developed; and

·         controls on the types of experimental schemes that can qualify.


As NRW will be able to use external persons to carry out experimental schemes, there should be full transparency about whom these ‘other persons’ are, so that any commercial or third party interests are declared.


3.    Part 2: Climate Change


3.1. Carbon Budgets


3.1.1.   WEL welcomes the introduction of statutory climate change targets in the Bill. We strongly believe that statutory targets will drive forward action on climate change in Wales. We have included some key points to note from WEL’s point of view on this section, but we would like to also state support for Stop Climate Chaos’ more detailed evidence on this part of the Bill.


3.1.2.   The EM does not clearly state that the provisions in the Bill will replace the Wales Climate Change Strategy, with its 3% annual emissions reduction targets. The Minister should clarify whether the current Climate Change Strategy will cease to operate or will continue until 2020 to meet the 40% reduction target set in the Strategy. We would like to see the 40% target retained as an interim target under the Bill. We believe that the strengths of the current strategy are that it disaggregates actions in areas of devolved competence from wider actions, enabling a focus on the effectiveness of Welsh Government policies. The Welsh Government also reports annually on progress with the strategy, which enables scrutiny and accountability.


3.1.3.   We believe the main advantages of the provisions laid out in the Bill are the requirement for the Welsh Government to set out proposals and policies for how each carbon budget will be met, and the requirement to set out compensatory measures if a budget is not met. Currently, reporting on progress of the Climate Change Strategy does not give a clear idea how Welsh Government policies are contributing to emissions reduction, because many of the indicators used to measure progress have incomplete data or do not relate directly to the actions detailed in the 2010 Delivery Plan. Also, the delivery plan has not been comprehensively reviewed for effectiveness or updated when programmes have come to an end, e.g. Sustainable Travel Towns.


3.1.4.   We have some points of concern with the detail of the provisions, particularly when comparing them to the UK Climate Change Act. The main ones are:


·         In Section 33 (3) the Welsh Ministers are given a power to ‘set a limit on the net amount of carbon units by which the net Welsh emissions account for a period may be reduced’ as a result of crediting or debiting carbon units. In the UK Act this is a duty. If a limit were not set, we are concerned there would be a risk that a large proportion of the budget could be met by trading carbon units rather than reducing emissions in Wales.

·         If Wales exceeds its carbon budget, Welsh Ministers must lay a report detailing proposals and policies to compensate for excess emissions in later budgetary periods. We welcome this provision, but believe it could be strengthened by including a deadline in the Bill.

·         We are concerned that there is no limit on the proportion of unused carbon budget can be carried forward to future budgets. If, for example, a carbon budget is easily met due to economic factors, rather than as a consequence of Welsh Government policies and actions, then the next budget could be much larger as a consequence, removing the motivation for further action. We believe this stores up problems for the future and we are already seeing the consequences of this with the current 3% annual target, with initial large reductions as a consequence of the economic downturn and subsequent rising emissions in recent years.


4.    Part 3: Charges for Carrier Bags


4.1. WEL welcomes the proposal to raise a charge on all carrier bags. The average number of plastic carrier bags found on Welsh beaches in 2014 was over 80 items/km (MCS, 2014). We are aware that the ability to raise a charge on single use bags in Wales has produced a significant behavioural chance in reducing the amount of single use bags. That said, the more durable, longer-lasting ‘Bags for Life’ are less biodegradable and therefore have a greater impact on the environment. These should therefore be included in the charge, in order to ensure that single use bags are not displaced by other types of bags which are only used once. We would like to see a minimum pricing policy to encourage them to truly be used as a Bag for Life. This should be applied regardless of material to ensure a consistent policy. We suggest the minimum charge should be at least triple that of the single use bags.  This would make consumers clear that these have a larger environmental impact and also sends out a much stronger message that they should be reused.


4.2. WEL strongly disagrees with the proposal for the carrier bag levy to go to all charities. We would like to see the levy go to environmental charities and environmental improvement schemes given that the remit of these charities involves helping to support our natural environment and, in many cases, work to directly mitigate the negative impact of plastic carrier bags. We also advocate the need for Welsh-raised carrier bag money to go to environmental charities operating in Wales, given that Wales may not, in many cases, be directly benefitting from this charge.


5.    Part 4: Collection and Disposal of Waste


5.1. WEL supports the proposals relating to the collection and disposal of waste and agree that Ministers require these extra powers to require the separate collection of waste if they are to implement imminent EU requirements for the separate collection of metal, paper, plastic and glass, as some local authorities still collect these together. We also support the power to ban certain recyclable materials from incineration as it is important that materials are recovered rather than lost to the economy.


6.    Part 5 & 6: Fisheries for Shellfish and Marine Licensing


6.1. WEL agrees with the proposals to introduce charges for marine licensing, including for the reasons set out in Part 6, 72 (A) of the Bill; monitoring of an activity authorised by the license, and monitoring in accordance with complying to conditions attached to a licence. We also welcome provisions under Part 6, 79 for licensing authorities to request deposits on account of fees payable and provisions to charge a supplementary fee for activities undertaken by the licensing authority.


6.2. That said, it is currently unclear within Part 6 of the Bill who will be the beneficiary of fees charged for marine licensing where Welsh Ministers are the licensing authority. For instance, will fees be allocated to cost recovery of that specific function (i.e. cost recovery for environmental regulators such as the NRW) or could fees accrued be spent within other Welsh Government departments? We would welcome a clause that requires such fees to be directly reinvested back into the marine responsibilities of Welsh Government and NRW to remove any ambiguity. We believe this is important to enable sufficient resourcing for the Welsh Government and NRW marine teams to carry out all of their duties.


6.3. We believe there should be a requirement for commercial marine users to provide data collected as part of their application to the public domain once an outcome of a plan or project has been determined. It is well known that there is a paucity of data in the Welsh marine area and evidence gaps are resulting in regulator and developer uncertainty as well as resulting in risk of damage to areas of sea that are under-researched and/or under-monitored.


6.4. ‘Harm’ in section 76 is at present too narrowly drafted. This section 76 definition is important because it feeds into the new sections 73 and 74. The definition at s76 (a) should say ‘an adverse effect or risk of an adverse effect on the integrity of the site alone or in combination with other plans or projects’ to bring it in line with Article 6 (3) Habitats Directive. The suggested inclusion of the phrase ‘plans or projects’ would also then need to be explained in s76. We would suggest a new insertion into new s76 to read ‘Plan or project has the same meaning as under the Council Directive 92/43/EEC on the conservation of natural habitats of wild fauna and flora’.


6.5. We believe that section 74 could be significantly improved: under s5B(1) as inserted by section 74 the Welsh Ministers have a discretion to serve a site protection notice if ‘harm’ to a EMS has occurred or is likely to occur. We would argue that it would be appropriate for the power to be triggered not only when ‘harm’ has occurred or is likely to occur, but also where harm may occur (as appears to be desired, according to the EM). Therefore we would suggest that the language in 5B(1) be altered to read: ‘if it appears [...] that harm to a European marine site has occurred or may occur.’ This wording lessens the evidential burden of harm that the Welsh Ministers must prove before they act.


6.6. As currently worded, there is no criminal offence created if a person fails to abide by the steps set out in the site protection notice as envisaged in s5B(2). There is only a power under s5D(1) for the Welsh Ministers to do what the site protection notice states and to recover costs from the person responsible. This is ineffective as the Welsh Ministers will not wish to take this financial risk. A criminal offence therefore must be created.


6.7. Sections 5B(2) and 5B(4)(c) refer to a site protection notice requiring the grantees to ‘take steps’, but this needs to be expanded to cover ‘ceasing any stated activities’. Furthermore, there is an appeal mechanism where site protection notices have been served (s5C). However, the provisions are silent as to:

·         the time limit by which the appeal must be brought. This must be addressed (an appeal period of 28 days is normal); and

·         whether the steps/prohibitions in the site protection notice remain in force pending the outcome of the appeal. The latter is essential so as to ensure protection of the European marine site.


6.8. New section 75 contains a mechanism whereby an Order made by the Welsh Ministers can be varied or revoked, which is helpful, but this ability depends on the Welsh Ministers first serving a site protection notice and that notice not being appealed or any appeal being complete. Whilst the intent is sound, it is likely to be a delayed process since delays will occur by the relevant person bringing an appeal. There are ‘review’ provisions in Part 6 of Conservation Regulations 2010 (see regulations 63/64). Under regulation 63 when a European site/European marine site is designated, any existing consent for a plan or project must be reviewed. The review must be carried out under ‘existing statutory procedures’ or, if none exists, under directions from the ‘appropriate authority’. It would be very helpful if the new legislation could include a separate ‘statutory procedure’ for variation or revocation of an Order in circumstances required under reg 63/64, which did not involve the risk of significant delays under the section 75 procedure. An amendment is needed to section 5E to say, in essence, that ‘where we are dealing with a reg 63 situation then the power to vary/revoke is not dependent on first serving a site protection notice’. 


6.9. Although we broadly support the proposals for marine licensing and shellfisheries with the Bill, legislation to sustainably manage the marine environment in Wales already exists and has done so for many years through the provisions within the EU Birds and Habitats Directives, EU Marine Strategy Framework Directive, and more recently, through the adoption of the Marine and Coastal Access Act (England and Wales). The Marine and Coastal Access Act (MACA) provides the legislative tools to effectively manage fisheries in Welsh inshore waters within their environmental limits and in a sustainable way. WEL believes that the greatest benefit to the protection and sustainable development of the Welsh marine area will only be realised through the timely and effective implementation of existing legislation. The Welsh Government is committed to delivery of a review of fisheries bye-laws to new regulation orders under MACA by 2015, and WEL believes that delivering this commitment is a priority, if Wales is to secure sustainable fishing practices now and in the future.


Wales Environment Link (WEL)is a network of environmental, countryside and heritage Non-Governmental Organisations in Wales, most of whom have an all-Wales remit. WEL is officially designated the intermediary body between the government and the environmental NGO sector in Wales. Its vision is to increase the effectiveness of the environmental sector in its ability to protect and improve the environment through facilitating and articulating the voice of the sector. 



The following WEL members support this document:



Afonydd Cymru

Amphibian and Reptile Conservation

Bat Conservation Trust

Buglife Cymru

Butterfly Conservation Wales

Campaign for the Protection of Rural Wales / CPRW

Keep Wales Tidy

Landscape Institute Wales / Sefydliad Tirwedd Cymru

Llais y Goedwig

Marine Conservation Society

Oxfam Cymru

Plantlife Cymru

RSPB Cymru

Vincent Wildlife Trust

Wildlife Trusts Wales

WWF Cymru


Ymddiriedolaeth Genedlaethol / National Trust














Registered Charity Number /  Rhif Elusen Gofrestredig: 1022675

Chair / Cadeirydd :  Bill Upham                            Director / Cyfarwyddwraig :  Susan Evans