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Various legal and government guidance frameworks exist, including the Wildlife & Countryside Act 1981, The Conservation of Habitats and Species Regulations and the National Planning Policy Framework. These set out the responsibilities of Local Authorities and agencies, and determine how the beach at Hoylake, officially called Mersey Narrows and North Wirral Foreshore, is managed.

THE ROLE OF NATURAL ENGLAND
Hoylake enjoys the following international designations which are “notified” by Natural England in order to protect these sites and to encourage good management and net gains in biodiversity:

• Site of Special Scientific Interest (SSSI)
• Wetland of International Importance (RAMSAR)
• Special Protection Area (SPA)
• Red Rocks also enjoys Special Area of Conservation (SAC) status.

For Hoylake beach, Natural England are required to maintain:

• A site “Notification” (note the dates when these were last updated)
• A description and list of reasons for designating the site (the “Citation”)
• A list of “operations likely to damage the special interest” of an SSSI (the ORNEC list)
• A summary of Views about Management (the VAM)
• Up to date reports on the “condition” of the site.

Key extracts:

• The citation: “An area of intertidal sand and mudflats and embryonic saltmarsh which is of considerable importance as a feeding and roosting site for passage and wintering flocks of waders, wildfowl, terns and gulls. The embryonic mixed saltmarsh is formed principally from common saltmarsh-grass Puccinellia maritima and glasswort Salicornia europaea, together with some common cord-grass Spartina anglica.”
• The ORNEC list: includes “Application of pesticides, including herbicides (weedkillers)”
• VAM: “Management... should allow the system to be dynamic and retain the flexibility to respond to associated changes such as the movement of physical features within the system, e.g. migrating subtidal sandbanks.”
• Site condition: “Unfavourable: Declining”: Bar-tailed Godwit numbers have declined due to disturbance and they have been displaced from the roost at North Wirral Foreshore and move to other sites during high tide.”

THE ROLE OF WIRRAL COUNCIL (WMBC)
Section 28G of the Wildlife & Countryside Act requires WMBC to: “take reasonable steps, consistent with the proper exercise of the authority’s functions, to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest.”

Section 28H of the Act requires WMBC to:

• Obtain “assent” from Natural England for any activity that would be “likely to damage the special interest” of the SSSI.
• Undertake a “Test of Significance” in order to identify whether proposed operations are likely to have a “significant effect” on a site.
• Undertake an “Appropriate Assessment” in order to justify the activities being proposed.
• Obtain a license from the Environment Agency for “the use of herbicides to control the growth of weeds near to a water body”.

The beach management agreement of 2010-2015
For this agreement, Wirral Council:

• Obtained “assent” from Natural England for spraying (and raking) since this was activity that would be “likely to damage the special interest” of the SSSI.
• Undertook a “Test of Significance” which concluded that operations were likely to have a “significant effect”.
• Undertook an “Appropriate Assessment” in order to justify the activities being proposed.
• Obtained a license from the Environment Agency for “the use of herbicides to control the growth of weeds near to a water body”.

Natural England’s Assent
“Spraying with Roundup, a glyphosate based weed killer, has been deemed the best option for managing common cord grass at Hoylake beach, as physical removal (excavation of material) may lead to further spread of the species and, as test digging has shown, leaves the rhizome behind. Rotoburying is not possible at this location due to the soft sediment; smothering techniques and grazing are unsuitable at this location due to its use as an amenity beach and burning is not effective.”

However, and crucially, they said in conclusion: “Natural England also brings to your attention that, as a Section 28G body of the Wildlife & Countryside Act 1981 (as amended), you are required to take reasonable steps, consistent with the proper exercise of your functions to further the conservation and enhancement of the SSSI.” (defined more clearly by the WCA as “flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest”).

The dilemma
This concluding statement appears to put WMBC between a rock and a hard place, since it is simply not possible to simultaneously achieve the objectives of the Beach Management Agreement which directly result in the ongoing suppression of saltmarsh and dune succession, while satisfying their S28G duties under the Wildlife and Countryside Act to “conserve and enhance” the SSSI; while securing net gains in biodiversity – a key objective of the National Planning Policy Framework (NPPF).

Remember also “Management... should allow the system to be dynamic and retain the flexibility to respond to associated changes such as the movement of physical features within the system, e.g. migrating subtidal sandbanks.”

Beach management from 2016-2021

• WMBC commissioned AECOM to undertake  a Habitat Regulations Assessment (HRA)
• This was submitted to Natural England on 31st March 2016
• It weighed up the “likely damage” to the “special interest” of the SSSI (destruction of an embryonic mixed saltmarsh) against the benefit gained from ongoing suppression of Spartina, stating: “If left uncontrolled the spread of [Spartina] may result in a loss of open habitat for overwintering waders”.
• The HRA did not include any site-based analysis of projected impact on Spartina as a consequence of known beach level rise, nor any analysis of other geomorphological, tidal and sedimentary conditions in order to assess this level of risk.
• The Beach Management Agreement was therefore based on an extremely poor evidence base.
• Despite this, Natural England gave assent to the spraying of Glyphosate until 2021.