Heath Burning Act 2003

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AT 15 of 2003

HEATH BURNING ACT 2003

Heath Burning Act 2003 Index


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HEATH BURNING ACT 2003

Index Section Page

1 Registration of heathland .............................................................................................. 5
2 The Register ..................................................................................................................... 5
3 Considerations, notices and reviews............................................................................ 5
4 Restriction on burning or destruction of heaths ......................................................... 6
5 Application for and grant of licence ............................................................................ 7
6 Action to prevent heath burning or destruction ........................................................ 8
7 Rehabilitation of registered heathland ........................................................................ 8
8 Appeals ............................................................................................................................ 9
9 Rights of entry upon land ............................................................................................ 10
10 Offences .......................................................................................................................... 11
11 Offences by bodies corporate etc ................................................................................ 12
12 Interpretation ................................................................................................................. 12
13 Regulations and codes ................................................................................................. 13
14 Powers of the Department ........................................................................................... 14
15 Repeals ........................................................................................................................... 14
16 Short title and commencement ................................................................................... 14
SCHEDULE 15

ENACTMENTS REPEALED 15
ENDNOTES 17

TABLE OF LEGISLATION HISTORY 17
TABLE OF RENUMBERED PROVISIONS 17
TABLE OF ENDNOTE REFERENCES 17

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c i e
HEATH BURNING ACT 2003

Received Royal Assent: 22 October 2003
Passed: 22 October 2003
Commenced: See endnotes
AN ACT
to make fresh provision for heath burning and for the management of
heathland.
1 Registration of heathland

In the interests of good heathland management the Department may decide to
enter particulars of the heathland on a register maintained at its offices for that
purpose and the Department shall have power to amend or delete such
particulars (a ‘registration decision’).
2 The Register

(1) The register —
(a) may be kept otherwise than in documentary form; and
(b) shall include a map on which shall be indicated the location of the
heath.
(2) The Department shall allow any person to inspect the register at its
offices free of charge during normal office hours and to take a copy of
any entry contained therein, and of any relevant extract from the map
referred to in subsection (1)(b), at such reasonable charge (if any) as the
Department may determine.
3 Considerations, notices and reviews

(1) In considering whether to enter, amend or delete particulars of heathland
on the register the Department may take into account —
(a) the preponderance and value of heath vegetation;
(b) any respect in which the heathland contributes to the
environment of which it forms part;
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(c) the provision of a sustainable and varied ecology and habitat for
wildlife;
(d) the provision of sustainable food sources for livestock and game;
(e) the desirability of its conservation, on the ground of
archaeological or historic evidence within its humic layers; and
(f) such other considerations as appear to the Department to be in the
interests of good heathland management.
(2) Before entering particulars of any heathland on the register, or amending
or deleting particulars of any heathland on it, whether under
subsection (1) or (4), the Department shall consult such persons as
appear to it to have special knowledge of, or interest in, the heathlands of
the Island.
(3) As soon as practicable after particulars of any heathland have been
entered on the register, or the particulars have been amended or deleted,
the Department shall serve a notice on the owner and the occupier of the
land comprising the heathland stating that such particulars have been
entered, amended, or deleted on the register (a ‘registration notice’).
(4) The owner or occupier of the land comprising the heathland, particulars
of which have been entered, amended or deleted on the register may
apply in the prescribed manner to the Department for a review to
restore, amend or delete the particulars of the heathland on the register.
(5) Upon a determination of a review under subsection (4) the Department
may confirm, restore, amend or delete the particulars on the register
made the subject of the review (a ‘review decision’).
4 Restriction on burning or destruction of heaths

(1) No person shall set fire to or destroy any registered heathland without a
licence granted by the Department under this Act.
(2) Any person who contravenes subsection (1) or causes or permits another
to contravene that subsection, is guilty of an offence and liable —
(a) on summary conviction to a fine not exceeding £5,000,
(b) on conviction on information, to a fine.
(3) A person shall be deemed to have committed an offence under
subsection (2) if vegetation growing upon registered heathland is set on
fire or destroyed through the act, neglect or default of such person,
notwithstanding that such person did not intend to commit such action.
(4) In proceedings for an offence under this section it shall be a defence to
prove that the action in question was taken in the exercise of a right, or in
the performance of an obligation, conferred or imposed by an enactment
other than this Act.
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5 Application for and grant of licence

(1) An application for a licence shall be made to the Department in writing
by a person having such interest in the registered heathland as enables
him, with or without the consent of another, to undertake the burning or
destruction of the registered heathland for which the licence is sought.
(2) On an application for a licence the Department may make a licensing
decision —
(a) to grant the licence subject to such conditions as the Department
may consider expedient in the interests of good heathland
management; or
(b) to refuse the licence.
(3) Before refusing a licence, or granting it subject to conditions, the
Department shall —
(a) consult such persons or bodies of persons as appear to it to have
special knowledge of, or interest in, the heathlands of the Island;
(b) consider any written representations made by the applicant;
(c) notify the applicant of its intentions and, if he so requests in
writing, give him an opportunity of making oral representations
to a person appointed by the Department for that purpose; and
(d) if the applicant makes representations in accordance with
paragraph (c), consider the report of the person so appointed.
(4) Where the Department refuses a licence, it shall notify the applicant of its
reasons for doing so.
(5) A licence —
(a) shall be in writing;
(b) shall specify —
(i) the registered heathland to which it relates,
(ii) the conditions subject to which it is granted; and
(c) shall remain in force for such period as may be specified.
(6) A condition subject to which a licence is granted shall remain in force
until it is complied with, notwithstanding the expiry of the period
specified under subsection (5)(c).
(7) If any person —
(a) sets fire to or destroys vegetation upon registered heathland in
pursuance of a licence, and
(b) fails to comply with a condition subject to which the licence was
granted,
he shall be guilty of an offence and liable —
(i) on summary conviction to a fine not exceeding £5,000,
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(ii) on conviction on information, to a fine.
6 Action to prevent heath burning or destruction

(1) Where it appears to the Department that —
(a) a person intends to burn or destroy vegetation upon registered
heathland, and
(b) a licence may be required therefor,
the Department may serve on him a stop notice in writing prohibiting
the burning or destruction of the vegetation upon such registered
heathland until the stop notice is withdrawn or the expiration of 14 days
beginning with the service of the notice, whichever is the sooner.
(2) Without prejudice to section 4, if any person on whom a stop notice has
been served contravenes the notice, or causes or permits another to
contravene the notice, he shall be guilty of an offence and liable —
(a) on summary conviction to a fine not exceeding £5,000,
(b) on conviction on information, to a fine.
(3) Without prejudice to subsections (1) and (2), if it appears to the
Department that —
(a) a person intends to burn or destroy vegetation upon any
registered heathland, and
(b) a licence may be required therefor, and
(c) action under subsection (1) is unlikely to be effective,
the Department may apply to the High Court for an injunction
restraining him or any other person specified in the application from so
doing.
(4) The Court may, on an application made under subsection (3) grant an
injunction and/or make such other order, on such terms, as it thinks just
and expedient.
7 Rehabilitation of registered heathland

(1) Where vegetation upon any registered heathland has been burnt or
destroyed without a licence in circumstances in which a licence is
required by section 4 or a condition attached to such a licence has been
breached, the Department may serve on the occupier of, or any person
having an interest in, the registered heathland a rehabilitation notice
containing any of the requirements mentioned in subsection (4).
(2) Without prejudice to section 4, but subject to section 8, if any person on
whom a rehabilitation notice has been served is in contravention of the
notice, or causes or permits another to be in contravention of the notice,
he shall be guilty of an offence and liable —
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(a) on summary conviction to a fine not exceeding £5,000,
(b) on conviction on information, to a fine.
(3) If any person is convicted of an offence under subsection (2), the
Department may itself execute the requirements contained in the
relevant rehabilitation notice and recover from that person the expenses
incurred by it in so doing.
(4) The requirements referred to in subsection (1) are —
(a) to carry out such works preparatory to heathland rehabilitation as
may be specified in the notice;
(b) to seed with or plant on the registered heathland such plants of
such species or description, and within such time as may be
specified; and
(c) to carry out such works for the protection and care of the
registered heathland under rehabilitation, and for such period, as
may be specified.
(5) The Department may —
(a) withdraw a rehabilitation notice served under subsection (1);
(b) vary or waive a requirement imposed under subsection (1); or
(c) extend the period for compliance with any such requirement.
8 Appeals

(1) The owner or occupier of, and any other person having an interest in
land comprising the heathland who is aggrieved —
(a) by a review decision taken by the Department —
(i) to enter particulars of any heathland on the register;
(ii) to amend particulars of any heathland on the register;
(iii) to delete particulars of any heathland on the register; or
(b) by a licensing decision taken by the Department —
(i) to grant a licence;
(ii) to refuse a licence;
(iii) to impose any condition upon the granting of a licence; or
(iv) to rescind a licence; or
(c) by the service of a rehabilitation notice under section 7(1),
may appeal to the Tribunal established under this section in such manner
as may be prescribed.
(2) A hearing of the Tribunal will be held in public unless the applicant
requires it to be held in private, however the Tribunal may determine
that notwithstanding the request of the applicant, it is in the public
interest for the proceedings to be held in public.
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(3) Applicants may appear in person or by their approved representative.
(4) The Tribunal may confirm, vary or reverse the decision of the
Department.
(5) The Department shall give effect to a decision of the Tribunal under this
section by making such alterations to the register as may be necessary
and by granting or refusing a licence or by imposing or amending
conditions on a licence.
(6) The Tribunal shall consist of —
(a) a chairman who shall be the High Bailiff; and
(b) one member who shall be nominated by the Wildlife Committee
established under section 1(2) of the Endangered Species Act 2010;
and1

(c) one member who shall be nominated by the Manx National
Farmers Union; and
(d) one member who shall be nominated by the Manx Game
Preservation Society.
(7) The term of office of a Tribunal member (other than the High Bailiff)
shall not exceed 3 years.
(8) A member of the Tribunal whose term of office expires shall be eligible
for reappointment.
(9) No defect in the appointment of a member of the Tribunal shall
invalidate the proceedings of the Tribunal in which he may have taken
part.
(10) An appeal from a decision of the Tribunal on a point of law shall lie to
the High Court.
(11) Regulations shall make provision with respect to appeal procedures
under this section.
9 Rights of entry upon land

(1) Any person duly authorised in writing by the Department may at any
reasonable time enter upon any land for any of the following purposes —
(a) ascertaining whether an offence has been, or is being, committed
under this Act;
(b) ascertaining whether any notice served or condition imposed
under this Act has been complied with;
(c) surveying it in connection with any proposal to grant a licence,
serve a notice or impose a condition under this Act;
(d) carrying out any works required under section 7(3).
(2) If it is shown to the satisfaction of a justice of the peace that —
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(a) admission to any land has been refused, or
(b) refusal of admission is apprehended; or
(c) the land is unoccupied; or
(d) the occupier of the land is temporarily absent; or
(e) application for admission would defeat the object of the entry,
and there is reasonable ground for entry upon the land for a purpose
mentioned in subsection (1), the justice may by warrant authorise a
person authorised by the Department to enter upon the land, by force if
need be.
(3) No warrant under subsection (2) shall be made on the ground mentioned
in subsection (2)(a) or (b) unless the justice is satisfied that notice of the
Department’s intention to apply for the warrant has been given to the
occupier.
(4) A warrant under subsection (2) shall continue in force until the purpose
for which entry is necessary has been satisfied.
(5) A person authorised under this section to enter upon any land —
(a) shall, if so required before or after entering on the land, produce
evidence of his authority to enter;
(b) may take with him on to the land such other persons and such
equipment as are necessary for the purpose in question;
(c) shall not, if the land is occupied, demand admission to the land as
of right unless notice of the intended entry has been served on the
occupier not less than 24 hours before the demand;
(d) shall, if the land is unoccupied when he enters or the occupier is
temporarily absent, leave the land as effectually secured against
trespassers as he found it.
(6) If a person intentionally obstructs another person in the exercise of a
power conferred on the other person by this section he shall be guilty of
an offence and liable on summary conviction to a fine not exceeding
£5,000.
10 Offences

(1) Proceedings for an offence under this Act shall not, without the consent
of the Attorney General, be instituted otherwise than by the Department.
(2) In any such proceedings before a Court of Summary Jurisdiction the
Department may appear by any officer authorised by the Department for
the purpose.
(3) Proceedings for an offence under this Act may be brought within a
period of 6 months from the date when the offence was discovered by
the Department, but no such proceedings shall be brought more than 2
years after the commission of the offence.
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(4) For the purposes of subsection (3), a certificate of the Chief Forestry
Officer of the Department as to the date on which such evidence as is
there mentioned came to his knowledge shall be conclusive evidence of
that fact.
(5) When imposing any penalty for an offence under this Act, the Court
shall have regard to any benefit accruing as a result of the offence to the
person convicted.
11 Offences by bodies corporate etc

(1) Where a body corporate is guilty of an offence under this Act and that
offence is proved to have been committed with the consent or
connivance of or to be attributable to any neglect on the part of, any
director, manager, secretary or other similar officer of the body corporate
or any person who was purporting to act in any such capacity he, as well
as the body corporate, shall be guilty of that offence and shall be liable to
be proceeded against and punished accordingly.
(2) Where the affairs of a body corporate are managed by its members
subsection (1) shall apply in relation to the acts and defaults of a member
in connection with his functions of management as if he were a director
of the body corporate.
(3) For the purposes of subsection (1), ‘body corporate’ includes a limited
liability company constituted under the Limited Liability Companies Act
1996 and, in relation to such a company, any reference to a director, or
other officer of a body corporate is a reference to a member and to the
company’s manager and registered agent.
12 Interpretation

In this Act —
“the Department
” means the Department of Environment, Food and
Agriculture;2

“good heathland management
” means the management of heathland through
the implementation of beneficial burning practices consistent with
section 36 of the Wildlife Act 1990;
“heathland
” and “heath
” mean open uncultivated ground characterised by a
preponderance of low herbage and dwarf shrubs and in particular, the
low herbage and dwarf shrubs included in the term ‘vegetation’ defined
in this section;
“licence
” means a licence of the Department required by section 4(1);
“licensing decision
” means a decision under section 5(2);
“the register
” means the register maintained under section 2(1);
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“registered heathland
” means heathland particulars of which are entered in the
register;
“registration decision
” means a decision under section 1;
“registration notice
” means a notice under section 3(3);
“rehabilitation notice
” means a notice under section 7(1);
“review decision
” means a determination under section 3(5);
“stop notice
” means a notice under section 6(1);
“vegetation
” means low herbage and dwarf shrubs and in particular Manx
Gorse (Ulex gallii), Common Heather (Calluna vulgaris), Fine-leaved heath
or Lesser Bell-heather (Erica cinerea) and Blaeberry (Vaccinium myrtillus).
13 Regulations and codes

(1) The Department may make such regulations as it considers are necessary
or desirable to carry the provisions of this Act into effect.
(2) Without prejudice to the generality of that power, regulations may —
(a) make provision with respect to the entry, amendment and
deletion of particulars on the register;
(b) prescribe the procedure for applications under section 3 for a
review and for the determination of such applications and such
regulations may make provision for the exercise of functions with
respect to those matters;
(c) exempt any person or class of persons from any of the provisions
of this Act.
(3) Regulations made by the Department under this section shall not come
into operation unless they are approved by Tynwald.
(4) The Department may by order approve any code of practice issued
(whether by the Department or not, and whether in the Island or
elsewhere) for the purpose of —
(a) giving practical guidance to persons engaged in agriculture and
forestry with respect to activities which may be detrimental to
registered heathland; and
(b) promoting what appears to it to be desirable practices by such
persons for avoiding or minimising damage to registered
heathland.
(5) A contravention of a code of practice as for the time being approved
under this section shall not by itself give rise to any criminal or civil
liability; but if, in any proceedings whether civil or criminal it is alleged
that a person has contravened a provision of this Act, a failure to comply
with a code of practice that at that time was approved may be relied
upon as tending to establish liability.
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(6) An order under subsection (4) and a code of practice approved under the
order shall be laid before Tynwald.
14 Powers of the Department

The powers conferred on the Department by this Act shall be in addition to and
not in derogation from any powers of the Department conferred upon it by or
under any other statutory provision.
15 Repeals

The enactments specified in the Schedule are repealed to the extent specified.
16 Short title and commencement

(1) This Act may be cited as the Heath Burning Act 2003.
(2) This Act shall come into operation on such day as the Department may
by order appoint.3

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SCHEDULE

ENACTMENTS REPEALED

Section 15
[Sch repeals the following Act wholly —
Heath Burning Act 1939
and the following Acts in part —
Statute Law Revision Act 1982
Fines Act 1986.]
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ENDNOTES

Table of Legislation History

Legislation Year and No Commencement






Table of Renumbered Provisions

Original Current






Table of Endnote References

1
Para (b) amended by Endangered Species Act 2010 Sch 4. 2
Definition of ‘the Department’ amended by SD155/10 Sch 3. 3
ADO (ss 1 to 14, s 16) 16/7/2004 (SD507/04); (s 15, Sch 1) 1/7/2006 (SD340/06).