In 2014, the Welsh Government commissioned an independent review of designated landscapes in Wales. The Marsden report was published on 31 July 2015 and the Welsh Government asked the Future Landscapes Wales Working Group to explore its recommendations. The Group published its report, ‘Future Landscapes: Delivering for Wales’, on 9 May 2017. In this article, trainee solicitor Catriona Connor considers its findings and possible next steps.
What’s the legal background?
Nationally important landscapes are protected by designation either as a National Park under the National Parks and Access to the Countryside Act 1949 or as an area of outstanding natural beauty (AONB) under the Countryside and Rights of Way Act 2000. National Parks are managed by authorities under the Environment Act 1995.
In relation to Wales, the designations are made by Natural Resources Wales (NRW) and 25% of Welsh land is either a National Park or an AONB. The National Park Authorities (Wales) Order 1995 established authorities for the Brecon Beacons, the Pembrokeshire coast and Snowdonia.
There is a key difference between National Parks and AONBs. A National Park authority must have regard to two purposes when exercising its functions:
- conserving and enhancing the National Park’s natural beauty, wildlife and cultural heritage
- promoting opportunities for the general public to understand and enjoy its special qualities.
If these purposes conflict, conservation must be given greater weight under the ‘Sandford Principle’. As an AONB is designated for one purpose (conserving and enhancing natural beauty), there is no second purpose and therefore the Sandford Principle does not arise.
What was the Marsden report?
The Marsden report examined the role and function of Wales’ designated landscapes and how they should be managed. It firstly recommended that the distinction between National Parks and AONBs be removed, and that they be named ‘National Landscapes of Wales’.
Additionally, there should be a statutory duty to contribute to the delivery of three statutory purposes (conservation, human well-being and sustainable resource management) in relation to all landscapes, and the Sandford Principle should apply in all cases.
Secondly, the report recommended a new vision of the landscapes as ‘factories of well-being’, around which regional development and tourism are increased; coastal resource management is integrated; sustainable development is delivered; and health and well-being policies are updated.
To deliver this, it recommended a new governance framework with:
- increased accountability and local/regional representation
- a raised profile within the Assembly
- the incorporation of well-being and resource management planning within existing regimes
- strengthened links between NRW and local authorities
- simplified funding arrangements.
What did the Future Landscapes Wales Working Group report discuss?
The report states that designated landscapes will be the focus of sustainable development, and sustainable management of natural resources (‘SMNR’) principles, established under Welsh legislation.
What is sustainable development?
The Well-being of Future Generations Act 2015 places sustainable development duties on Welsh public bodies, including the Welsh Ministers, National Park authorities and NRW. The duties are interwoven and explained below.
Duty to set well-being objectives
The objectives are designed to maximise a public body’s contribution to achieving the well-being goals. The goals are:
- a prosperous Wales
- a resilient Wales
- a healthier Wales
- a more equal Wales
- a Wales of cohesive communities
- a Wales of vibrant culture and thriving Welsh language
- a globally responsible Wales
Duty to carry out sustainable development
- This means improving the economic, social, environmental and cultural well-being of Wales. This must include setting well-being objectives.
Duty to act in accordance with sustainable development principle
- The principle is that body must act in a manner which seeks to ensure that the needs of the present are met, without compromising the ability of future generations to meet their needs.
- To act in this manner, the body must take account of five factors:
- balancing short and long-term needs;
- integrating their well-being objectives with the well-being goals;
- collaborating with other bodies to achieve objectives;
- involving others in achieving the goals and ensuring diversity when doing so; and using resources to
- prevent problems, meeting their objectives and others’.
What is SMNR?
NRW is responsible for managing natural resources on behalf of the Welsh Ministers.. Accordingly, it is under additional SMNR duties under the Environment (Wales) Act 2016. The duties are connected to the well-being goals are:
Duty to pursue SMNR
- using natural resources in a way, and at a rate that promotes achievement of the objective
- taking other action to promote achievement of the objective
- not taking action which hinders achievement of the objective.
- The objective is to maintain and enhance the resilience of ecosystems and the benefits they provide, in order to:
- meet the needs of present generations without compromising the ability of future generations to meet theirs; and
- contribute to the achievement of the well-being goals in the 2015 Act
Duty to apply the principles of SMNR
The principles are to:
- manage adaptively (by planning, monitoring, reviewing and changing action)
- consider the appropriate spatial scale for action
- promote and engage in collaboration and co-operation
- make appropriate arrangements for public participation in decision-making
- take account of all relevant evidence and gather evidence in respect of uncertainties
- take account of the benefits and intrinsic value of natural resources and ecosystems
- take account of the short, medium and long term consequences of actions;
- take action to prevent significant damage to ecosystems
- take account of the resilience of ecosystems, in particular the following aspects:
- diversity between and within ecosystems
- the connections between and within ecosystems
- the scale of ecosystems
- the condition of ecosystems (including their structure and functioning)
- the adaptability of ecosystems.
What is the Group proposing?
The report proposes a new vision and governance principles, drawing on the Welsh legislation referred to above. These broadly reflect the Marsden report proposals. The vision emphasises community integration; local, regional and national co-operation and accountability; public engagement; and promoting the intrinsic value of landscapes.
The governance principles emphasise public participation; accountability; and integration with business, third sector bodies and academia. Examples of integration are green growth projects and the Sustainable Development Fund; existing agricultural payment schemes; the tourist industry; capital investment schemes; food supply chains and community-based renewable energy schemes. The report also sets out new financial resourcing opportunities.
Finally, the report states that bodies responsible for the landscapes will have an opportunity to exemplify and promote green growth as a means of fostering economic growth and development.
The report acknowledges that legislation is needed to better align the special qualities of National Parks and AONBs with the sustainable management duty in the 2016 Act. In the Assembly debate of 6 June 2017, Lesley Griffiths AM pleged to consult on whether legislation could be changed to support the Marsden report recommendations.
The debate became heated on the Sandford Principle. As noted above, there is no need to amend legislation to apply the Sandford Principle to AONBs because the only purpose which applies to them is conservation. However, the Assembly’s concern was that the Welsh Government’s commitment to green growth might lead it to abandon the Sandford Principle altogether, leaving National Parks vulnerable to new economic development policies.
What happens next remains to be seen, but David J Rowlands AM gave a stark warning: any legislation which removes the protection of the Sandford Principle would be scrutinised rigorously.