An evaluation, in light of Brexit, of the extent that the EU has been responsible for improving the habitat conservation regime in England and Wales

Conservation efforts in Britain originated in the nineteenth century; when Wordsworth described the Lake District as “a national property in which every man has a right and interest who has an eye to perceive and a heart to enjoy.”1 Since, an abundance of national and international legislation has been passed intending to protect the natural environment and the species inside it. This essay will explore the current habitat conservation regime of England and Wales, evaluating the extent to which the European Union has enhanced the current system. In doing so, this paper shall first outline the international framework before analysing the evolution of the current regime of Sites of Special Scientific Interest. I will then evaluate the Natura 2000 network in order to assess the effect that the EU has had on the domestic habitat conservation system. This discussion will ultimately conclude that whilst the EU has had a positive impact, the system is not doomed to fail following Brexit if the UK government avoid the disparagement of conservational measures.

However, this system was still heavily criticized. Karren Morrow discusses how SSSIs were afforded only very limited protection. 31 Morrow explains that one of the extended obligations to the occupier under s28 was that they were now required to notify English Nature that they intended to carry out a PDO 32 . Following notification, a four month period of negotiating a management agreement would commence; however, should an agreement not be made, the occupier was free to carry out the operation. 33  all that English Nature could do was try to persuade him not to. 35 Though without powers of enforcement, "all that EN could do was to sit by and watch another SSSI being raped for commercial interest" 36 when the landowner progressed to ignore the advice of English Nature.
Mr Breed also discussed how SSSIs were not protected from third party damage, for example, fly tipping 37 . However, Last claims that damage to SSSIs under the 1949 Act occurred at 13% of the sites, compared to the period of 1984-1997 whereby this statistic decreased to 3.7% 38 . Thus, illustrating a strengthened level of protection to these areas following the WCA; potentially due to the EU's Directive.
Ultimately, the effect that the WCA had on the SSSI system is polarising. Whilst some criticise the lack of enforcement options available for English Nature, others would contend that this is "unjustified." 39 With regards to the EU, the RSPB contend that the changes made under the WCA, "driven by the Birds Directive, led to a marked improvement; 40 "as by the 1990s, the area of SSSI lost per year had fallen below 0.005% and the area subject to short term damage to 2-3% per year. 41  CRoW significantly enhanced s28 WCA 1981. One change was that although previously English Nature (now Natural England 45 ) did not have the right to prevent a landowner from carrying out a PDO, s28E now obligated Natural England to consent to these operations before they could be undertaken 46 , attracting a fine of up to £20,000 if contravened (s28P 47 ).
However, although some would deem this a legislative improvement, Morrow refers to these measures as "draconian" 48 ; questioning the extent that nature conservation law should come into conflict with private property rights 49 .
For example, in R (Fisher) v English Nature 50 , "the claimants, who owned a large private estate, sought judicial review in respect of English Nature's change of policy leading to the imposition of an SSSI designation on intensely farmed arable land in order to protect a migratory species." 51 The claimants argued an alleged devaluation in their land through the loss of freedom of action. They argued that the SSSI designation "was an interference in their private property rights" 52 ; although this failed because the control imposed by the designation was not disproportionate. However, Morrow re-iterates that whilst "the changes appear marked, in practice their impact is likely to be ameliorated by the fact DEFRA and Natural England take the view that voluntary managements should be used as a matter of preference" 53 over compulsive restriction.
Another improvement to the regime is the ability to be convicted of causing third party damage to an SSSI. Under s28P(6) 54 ,this provision makes it an offence to intentionally or recklessly destroy, damage or disturb any of the flora, fauna, or geographical feature by which the land is of special interest, when knowing that what he destroyed, damaged or disturbed was within a site of special scientific interest. If the person commits the same level of damage but is unaware that what they destroyed was protected as an SSSI, then they are only subject to a fine not exceeding Level 4 on the Standard Scale, opposed to the more severe punitive measures which will be taken when the offender was aware of the land's protected status. (s28P(6A) WCA). 45  This has relevance when assessing the results of a study conducted by Booth, Gaston and Armsworth 55 . This research involved the questioning of visitors at various SSSIs on whether or not they were aware of the site's protected status. 56 Less than one third of participants were aware that they were within an SSSI 57 . This means that when damage is committed, it is more likely that the offenders will face a smaller fine because the majority of the population will be unaware that the land damaged was subject to protection. Furthermore, this supports the need for the government and conservation bodies to promote much more education into the legislative regime protecting wildlife as the majority of the UK are clearly oblivious to the law; Therefore, this section highlights how many of the flaws of the old SSSI have been amended without EU involvement. However, Christie does claim that "around three quarters of the SSSI system are also subject to higher international designations. 61 " Consequently, the next section shall analyse the extent that these international designations are responsible for the improvements. In England and Wales, the Natura 2000 sites are significantly protected domestically as SSSIs. 90 Therefore, the majority of the SSSIs are subject to the aforementioned protections seen under Article 6 of the Habitats Directive.
Currently, although the SSSI regime has improved markedly since 1949, the RSPB believe it is not strong enough without the additional protections offered by the Directives. Their 2015 report states that "the standard of protection for sites only subject to national protection remains lower than that afforded to Natura 2000 sites." 91  The benefits of this scheme were discussed during a House of Lords debate of 2003 whereby it was stated that LIFE had "enabled improvements to be made to many Heathland SSSIs 98 ". Therefore, the EUs financial assistance has improved the habitat preservation regime.
However, Lynda Warren explains how recently, there has been a "move towards a more holistic approach in which the conservation of special sites and the protection of threatened species are just part of a wider agenda for managing biodiversity" 99 through a desire to provide "ecosystems goods and services" 100 . Therefore, Warren is implying that UK legislatures are Northumbria University -ISSN 2632-0452 -All content CC-BY 4.0 Kingdom. 108 This provision shows that the UK still intend to follow the legislative measures enacted via the Habitats Directive and therefore the legislative protections under Article 6 will still be in place, ultimately retaining the strengthened levels of protections to SSSIs and European sites; accordingly, this proposal will be welcomed by the RSPB. Finally, leaving the European Union means that internationally, we are only bound by the "toothless" Bern Convention which "lacks the enforcement machinery" of the European Union as discussed above 113 . Therefore, the success of the habitat conservation regime after Brexit is dependent on how seriously the government are willing to prioritise habitat protection. This links to the economic debate too; Warren claims that there needs to be a "step change in our approach to wildlife conservation, from trying to hold on to what we have, to one of large scale habitat restoration. 114 " For example, this may be achieved in a similar way to the USA; Trochet and Schmeller discuss how "in the US, bird protection has been recently modified and