Section 5.2 - Environmental Protection

All PRoW will be managed so as to cause the least disturbance to the environment consistent with discharging the County Council's highway function.

5.2.1 Protected species and the disturbance of wildlife

Care must be taken during any maintenance works to prevent any disturbance or damage to declining or vulnerable species, many of which are legally protected. Officers should be aware of the legislation that covers the key species (birds, plants and animals) and what considerations they should take.

Where it is thought that work on a PRoW may affect an area of wildlife importance, ecological advice should be sought from the Hertfordshire Biological Records Centre (HBRC), in accordance with the adopted Hertfordshire Biodiversity Action Plan.

HBRC has developed various wildlife and habitat GIS themes; some of which can be accessed digitally through the County GIS system. The wildlife site coverage includes the most important ecosites which are regarded as being 'critical natural capital' in the County Structure Plan. Many districts have also incorporated these in their Local Plans. The purpose of this coverage is to alert planners and land managers to the wildlife importance of certain areas. In addition to important semi-natural habitats, HBRC has a separate GIS coverage for a range of protected and notable species. For example, the constraint areas associated with great crested newt habitats or badger setts.

Relevant Legislation

The WCA81 (amended 1985) provides protection for:

Birds [section 1]:

Birds afforded special protection are listed in Sch 1[WCA81]. All wild birds, their eggs and nests (while in use) are protected from injury or damage to their nest with the possible exception of pest species [WCA81]. Some rare birds have additional protection where it is an offence to disturb these birds whilst nesting or disturb their dependent young.

Birds which should not be disturbed at any time, currently known to be breeding in Hertfordshire are: Crossbill, Firecrest, Garganey, Hobby, Kingfisher, Barn Owl, Black-necked Grebe, Little Ringed Plover, Quail, Stone Curlew, Black Redstart, Woodlark, Cetti's Warbler, Marsh Warbler and Savi's Warbler. Other species which are probably now extinct as breeding species but have bred in Hertfordshire in the past are: Cirl Bunting, Corncrake, Red-backed Shrike, Bearded Tit, and Wryneck. Two specially protected species - Bittern and Dotterel- are associated with specific sites on passage or wintering.

Many other previously common birds are now in decline and best practice management procedures should be followed to help halt this decline. Procedures such as: management of hedgerows between November and February (the critical time for birds that use hedgerows and small trees is between March and August), ensuring strips of standing grass along hedgerows are left to provide nesting cover and avoiding the use of pesticides or herbicides on PRoW.

Animals [sections 9,10,22,24]:

Under the WCA81 certain animals listed in Sch 5 are given full protection, with selected forms of protection being given to animals listed in Schs 6 and 7. For the animals in Schedule 5 it is an offence to injure the animal or to damage, destroy or obstruct access to any structure or place used for shelter or protection or to disturb the animal in its shelter. The animals found in Hertfordshire covered by this provision are the Great Crested Newt, Bats, Hazel Dormouse and Otter. Other species listed on Sch 5 - Grass Snake, Slow worm and Common Lizard - receive limited protection in that it is an offence to intentionally injure them. If reptiles are encountered during clearance work measures would need to be taken to ensure they came to no harm. A recent amendment to the WCA81 in 1998 includes Water Voles which receive limited protection against disturbance and damage to their habitat.

The levels of protection and implications are complex and if any of these species are encountered during work on PRoW then it is strongly recommended that advice is sort from English Nature or the HBRC.

For instance Great Crested Newts spend the majority of the year on the terrestrial habitat and may be encountered hibernating or sheltering under logs alongside hedgerows perhaps up to 1km away from their breeding pond.

Although many bats roost in buildings they are also frequently encountered roosting inside the hollows of mature tree trunks and branches or within the ivy cover of trees. Certain species may also use bridges and tunnels.

Badgers are protected under the Protection of Badgers Act 1992 which has consolidated and replaced previous legislation. Work that disturbs badgers is illegal without a licence. English Nature has produced guidelines on the types of activities which it considers should be licensed within certain distances of sett entrances. (Badgers - Guidelines for developers 1995). For example using very heavy machinery within 30 metres, using lighter machinery within 20 metres or light work such as scrub clearance within 10 metres of an entrance to an active sett are all activities which could disturb badgers and therefore require a licence.

All wild plants [section 13].

Wild native plants are protected from being uprooted unless authorised by the land owner or an authorised agent. The specially protected plants are listed in Schedule 8 of the WCA81 and are afforded full protection. Very few of the plants listed in Sch 8 have been recorded in Hertfordshire in the last 50 years. However, although not subject to full statutory protection, the conservation of locally rare plants is considered to be of great importance. The HBRC holds information on the locations of Hertfordshire's scarce plants. Where the locations of locally rare plants are known they are being included in the GIS ecosites alert database.

Some of the protection has been enforced by the implementation of the Conservation (Natural Habitats &c.) Regulations 1994, and recently by Part III of the Countryside and Rights of Way Act 2000.

Countryside and Rights of Way Act 2000

Part III of the Act strengthens the law relating to nature conservation and the protection of wildlife and includes provisions for the conservation of biodiversity and the protection of SSSIs.

5.2.2 Sites of archaeological or historic interest

Those involved in the maintenance, or any other work, on a PRoW should be aware that there are many sites, structure and features in the landscape which are important elements of the historic landscape. The definition of the 'historic environment' is very broad and can include buried evidence of prehistoric settlements, field boundaries, trackways, 20th century defence structures and the fabric and form of existing towns and villages.

These remains are valued both locally and nationally and it is the policy of the local authorities in Hertfordshire that they should be conserved as environmental and community assets. It is important, therefore, that all those involved in the management of the landscape should act in such a way as to contribute to the stewardship of the historic environment.

Relevant Legislation

There are a great many pieces of legislation which relate to the protection and conservation of the historic environment, however, the following is a brief review of the legislation which is most relevant to PRoW:

Ancient Monument & Archaeological Areas Act 1979.

Under this Act, archaeological sites of national importance can be designated as Scheduled Ancient Monuments. As such, it is a criminal offence to damage, remove, or alter a Scheduled Monument or to undertake works such as flooding or tipping.

Although only a small percentage of archaeological sites are afforded statutory protection, it is both national and local policy that such remains should be conserved where possible and unnecessary damage avoided.

Planning (Listed Buildings and Conservation Areas) Act 1990.

Under this act it is an offence to cause the demolition of a listed building or alteration which would affect it architectural or historic interest, unless such works have been authorised by the Local Planning Authority.

Best practice

When undertaking maintenance or other works on a PRoW, the following aspects should be considered:

It is best to consult with the Historic Environment Unit when carrying out major works to avoid damaging archaeological or historic features. In all cases officers must ensure that works do not affect a Scheduled Ancient Monument or a Listed Building. The Historic Environment unit can be contacted for a view as to whether works on a PRoW are likely to affect archaeological remains and advice can also be provided as what mitigation or avoidance measures should be taken. The Sites & Monuments Record (SMR) contains information on buried remains, historic structures (e.g. pillboxes, mills, maltings, milestones) and landscape features.

With regard to Listed Buildings and Conservation Areas, advice can be obtained from the Conservation Officer based within the District Council. Where there is not such an officer, advice can be obtained from BEAMS (Built Environment Advice and Management Service) which is part of the Hertfordshire Building Preservation Trust. BEAMS also maintain a database of the listed buildings of the County which can be accessed by Rights of Way staff.

Works adjoining Scheduled Monuments

Where works are proposed on or near a scheduled ancient monument, English Heritage must be consulted in advance, and an application for Scheduled Monument Consent may need to be submitted. The Historic Environment Unit has details of all such sites in the county, and holds copies of the Schedule maps which show the extent of the Scheduled area. [Limited access to the SMR can be gained in the rights of way unit, under 'Site Status']. Full details should be obtained from the Historic Environment Unit.

This consultation must take place if any works are to take place within the area of the Scheduled Monument or its vicinity, affecting the setting of the Scheduled Monument. Such impact could extend over a considerable area beyond the official boundaries of the Scheduled Monument.

It is a criminal offence to damage a Scheduled Monument, or to carry out any works without obtaining Scheduled Monument Consent.

The consultation should be addressed to the Inspector for our area, currently Mrs. Deborah Priddy, East of England Region, English Heritage, 62-74, Burleigh Street, Cambridge, CB1 2DJ.

5.2.3. Chemicals on PROW

The County Council will avoid the use of herbicides or pesticides in discharging its own maintenance function on PRoW. However, it is accepted that many landowners will still choose to use chemicals as the method of choice for controlling pests on farmland. Such application is governed by the Health and Safety at Work Act 1974 and the Food and Environment Protection Act 1985. The following guidance is provided by HSC/MAFF (1999) and offers advice on how to comply with the law. Officers should be aware of this guidance and report any incident involving people and pesticides to the Health and Safety Executive (HSE) local area office.

Deliberate application of a pesticide to a PRoW is likely to expose those who use the path to a health risk, particularly until the spray has dried. It is the landowners responsibility to ensure that PRoW should not be oversprayed when treating an adjacent crop. Landowners or occupiers currently have no powers to temporary close PRoW and so should not use pesticides where such a risk exists.

The Countryside and Rights of Way Act 2000 amended s135A and s135B of the Highways Act 1980, which allow a landowner to temporarily divert a PRoW where works are likely to cause danger to users of a right of way. This is a fairly onerous system including notices in newspapers and unlikely to be used for occasional spraying activities. Provisions of the Countryside and Rights of Way Act 2000 [s57] may change this and enable a landowner to temporarily divert a PRoW where works are likely to cause danger to users of a right of way.

Where a PRoW crosses or runs alongside a field, the use of notices, warning people of spraying and advising that they keep to the path, should always be considered. However, such notices cannot prohibit use of a PRoW. If, despite warning notices, members of the public exercise their statutory right to use the PRoW spraying should temporarily stop. Landowners and occupiers should always remove notices when they are no longer appropriate.