Access to information request – Partial release – Request No RFI 3031 regarding all records of, and documents related to, NE Board discussions on SSSI, SPA, SAC designation programmes, ‘gate zero’ and changes in strategy and approach from the present day back to the beginning of 2011
Many thanks for your letter and enclosures dated 14th August 2015 regarding the above.
Your letter confirmed that some of the information I requested was withheld as it falls under Regulation 12(4)(e) (internal communications) and/or Regulation 12(5)(g) (environmental information) of the EIRs. You may be aware that I have requested an internal review of the decision to withhold this information.
While awaiting the outcome of that review, I seek clarification about the development and implementation of Gate Zero and request further information under the EIRs on the basis of the documentation provided (see below).
It would appear that the first reference to Gate Zero appears in document NEB 49 13 (January 2015), which states:
“5.1.1 – To improve the governance, we are establishing a control mechanism, a Gate Zero, to offer the Natural England Leadership Group (NELG) greater insight and assurance around the population of the designations programme for the year from the pipeline of potential sites. (See section 7.)”
Section 7 then states:
“7.1 In planning for the move to a more strategic basis for selecting sites for designation, we have identified the need to put in place stronger governance arrangements. In the past year, we have shared a Designations forward look with Executive Board on an approximately 6 monthly basis and we now need to build on this.
7.2 We are establishing an additional control mechanism, currently termed Gate Zero”.
Following a section of redacted text, section 7 continues:
“7.4 Implementing Gate Zero and managing the current programme of work: We will establish and embed Gate Zero over the coming months and plan to return to the Board in autumn 2015 with a Designations forward look that is informed by our Conservation Strategy and our evidence. In the meantime, however, we do have a body of sites already in hand worked up in accordance with our Designations Strategy and a statutory duty to fulfil. Our discretion in timing of some of these cases is very limited, and there are others where we have already invested heavily over several years.”
However, the text is so heavily redacted that it is impossible to discern what Gate Zero is and how it is intended to govern the future notification of SSSIs.
Some indication of Gate Zero’s role is provided in Annex A to document NEB 49 13, which confirms the fifteen steps to be taken in the notification of SSSIs. Step 3 confirms: “Case considered by NELG (Gate 0) for inclusion in Designations pipeline”. Annex C of that document then provides the statutory context for SSSI notification. Section 28 of the Wildlife & Countryside Act 1981 (as amended) provides that NE is under a statutory duty to notify any area of land (including intertidal areas and estuarial waters) which in its opinion is of special interest by reason of any of its flora, fauna, or geological or physiographical features . NE maintains that it has discretion in applying that duty, but also recognises that “unless we use this lever to achieve policy outcomes, we will have failed in our duty”.
Annex C of document NEB 49 13 then sets out the pre-notification steps, which again includes reference to the fact that the case is considered by NELG (Gate Zero) for inclusion in the Designations pipeline (step 3). This step follows site survey and initial assessment by Area Team but precedes informal consultation with interested parties.
I am concerned that Gate Zero represents a new step in the designation process, which appears to have no basis in statute or published policy. It would appear to operate as some sort of initial filter, thus removing sites which may otherwise qualify for SSSI notification from the designations pipeline. I would be grateful if you could explain how Gate Zero operates in relation to NE’s statutory duty to notify land which in its opinion is of “special interest” by reason of its wildlife (habitats and species) or geology.
Requests for further information
Table 2 of document NEB 49 13 refers to six (6) Category 1 sites on which the delivery of international obligations is dependent, and are judged to have passed Gate Zero (details then provided in Annex D). Please confirm:
• that the first six sites included in Annex D of document NEB 49 13 (Forward Look to Designations activity currently in the programme) are the six sites referred to in Table 2 (above); and
• whether any site(s) for which the delivery of international obligations is/are dependent were excluded from this list on the basis that they were judged not to have passed Gate Zero. If so, please provide a list of those site(s) and the reasoning for their exclusion.
Table 2 then refers to Terrestrial International Sites (SPA, SAC, Ramsar) and Marine International Sites (mSPA). Please confirm:
• that these sites comprise the remaining sites listed in Annex D of document NEB 49 13 respectively;
• whether any Terrestrial International Sites and/or Marine International Sites were excluded from the list in Table 2 as they were judged not to have passed Gate Zero. If so, please provide a list of those site(s) and the reasoning for their exclusion.
I also request the following information under the EIRs in so far as they address gate zero or any equivalent procedure:
• Any record of conversations held between NE staff and the Board on the Designations Strategy as reported in paragraph 2.1 of document NEB BR29 02;
• Any background papers (including factual information and statistical analyses) prepared for a workshop in May 2011 to discuss the Designations Strategy and any minutes, action points or notes arising from the workshop (again referred to in paragraph 2.1 of document NEB BR29 02);
• Document NEB PU27 o4 – principles underpinning the Designations Strategy;
• Any minutes, action points or notes arising from meetings held with stakeholders (NGOs, land managers and statutory partners) during March and April 2012 to discuss the draft Designations Strategy as reported in paragraph 3.2 of document NEB BR29 02;
• The final version of the Designations Strategy and stakeholder comments presented to the NE Board Meeting in May 2012 as reported in section 4 of document NEB BR29 02. Please also confirm whether the document presented to the Board in May 2012 differs from the published Designation Strategy (NE353(1) available on the link provided in paragraph 4.3 of document NEB 49.13);
• The detailed briefing on the “designation’ stage” of Sites of Special Scientific Interest as referred to in paragraph 3.1 of document NEB BR44 07 (June 2014). Please also provide copies of any supporting documentation, including factual or statistical information/analyses;
• The membership of, and agreed Terms of Reference for, the Designations Programme Board;
• The membership of, and any terms of reference for, the national designations team (as referred to in paragraph 5.1.2 of document NEB 49 13). Please also confirm the relationship, if any, between the national designations team and the Designations Programme Board;
• The strategic standard 5.1.3 for SSSIs on the NE Intranet (as referred to in paragraph 5.1.3 of document NEB 49 13);
• Any information provided by the Natural England Science Advisory Committee (NESAC) to the Series Reviews during spring 2015 (as referred to in paragraph 7.1 of document NEB 49 13) and Summer 2015 (as referred to in paragraph 1.3 of document NEB 52 03, April 2015). Please also explain the inconsistency in paragraph numbering between pages 4 and 5 of document NEB 49 13;
• The notes on Selection guidelines referred to in the Legal/ Statutory context section of Annex C (SSSIs – Statutory and policy context, and selection and designations steps) of document NEB 49 13; and
• Any information on the development and implementation of Gate Zero (i.e. request not confined to papers presented to, or discussed by, NE Board Meetings).
Finally, paragraph 7.4 of document NEB 49 13 confirms that an Autumn NE Board meeting will consider a “Designations forward look”. Please could you confirm when that meeting took place/will take place and provide copies of any information relating to Gate Zero within the documentation presented to the Board.
Please do not hesitate to contact me if you need any clarification with regard to any of these requests for information. Otherwise, I look forward to hearing from you shortly and, in any event, within 20 working days from the date of receipt of this request.