Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
Environmental governance
Environmental targets
The Secretary of State may by regulations set long-term targets in respect of any matter which relates to—
the natural environment, or
people’s enjoyment of the natural environment.
The Secretary of State must exercise the power in subsection (1) so as to set a long-term target in respect of at least one matter within each priority area.
The priority areas are—
air quality;
water;
biodiversity;
resource efficiency and waste reduction.
A target set under this section must specify—
a standard to be achieved, which must be capable of being objectively measured, and
a date by which it is to be achieved.
Regulations under this section may make provision about how the matter in respect of which a target is set is to be measured.
A target is a “long-term” target if the specified date is no less than 15 years after the date on which the target is initially set.
A target under this section is initially set when the regulations setting it come into force.
In this Part the “specified standard” and “specified date”, in relation to a target under this section, mean the standard and date (respectively) specified under subsection (4).
The Secretary of State may not by regulations under this section make any provision which, if contained in an Act of Senedd Cymru, would be within the legislative competence of the Senedd.
The Secretary of State must by regulations set a target (“the PM 2.5 air quality target”) in respect of the annual mean level of PM 2.5 in ambient air.
The PM 2.5 air quality target may, but need not, be a long-term target.
In this section “PM 2.5” means particulate matter with an aerodynamic diameter not exceeding 2.5 micrometres.
Regulations setting the PM 2.5 air quality target may make provision defining “ambient air”.
The duty in subsection (1) is in addition to (and does not discharge) the duty in section 1(2) to set a long-term target in relation to air quality.
In this Part “the PM 2.5 air quality target” means the target set under subsection (1).
The Secretary of State must by regulations set a target (the “species abundance target”) in respect of a matter relating to the abundance of species.
The specified date for the species abundance target must be 31 December 2030.
Accordingly, the species abundance target is not a long-term target and the duty in subsection (1) is in addition to (and does not discharge) the duty in section 1(2) to set a long-term target in relation to biodiversity.
Before making regulations under subsection (1) which set or amend a target the Secretary of State must be satisfied that meeting the target, or the amended target, would halt a decline in the abundance of species.
In this Part “the species abundance target” means the target set under subsection (1).
meeting the existing target would have no significant benefit compared with not meeting it or with meeting a lower target, or
because of changes in circumstances since the existing target was set or last amended the environmental, social, economic or other costs of meeting it would be disproportionate to the benefits.
Regulations lower a target if, to any extent, they—
replace the specified standard with a lower standard, or
replace the specified date with a later date.
Regulations under section 2 may not revoke the PM 2.5 air quality target (but may amend it in accordance with this section).
For the purposes of this Part a target is met if the specified standard is achieved by the specified date.
A draft of a statutory instrument (or drafts of statutory instruments) containing regulations setting— must be laid before Parliament on or before 31 October 2022.
each of the targets required by section 1(2),
the PM 2.5 air quality target, and
the species abundance target,
It is the duty of the Secretary of State to ensure that—
targets set under section 1 are met,
the PM 2.5 air quality target set under section 2 is met, and
the species abundance target set under section 3 is met.
On or before the reporting date the Secretary of State must lay before Parliament, and publish, a statement containing the required information about the target.
The required information about a target is (as appropriate)—
that the target has been met,
that the target has not been met, or
that the Secretary of State is not yet able to determine whether the target has been met, the reasons for that and the steps the Secretary of State intends to take in order to determine whether the target has been met.
Where the Secretary of State makes a statement that the target has not been met the Secretary of State must, before the end of the 12 month period beginning with the date on which the statement is laid, lay before Parliament, and publish, a report.
The report must—
explain why the target has not been met, and
set out the steps the Secretary of State has taken, or intends to take, to ensure the specified standard is achieved as soon as reasonably practicable.
Where the Secretary of State makes a statement that the Secretary of State is not yet able to determine whether the target has been met the Secretary of State must, before the end of the 6 month period beginning with the date on which the statement is laid, lay before Parliament, and publish, a further statement containing the required information.
Subsections (3) to (6) apply to further statements under subsection (6) as they apply to a statement under subsection (2).
The purpose of the review is to consider whether the significant improvement test is met.
The significant improvement test is met if meeting— would significantly improve the natural environment in England.
any other environmental targets which meet the conditions in subsection (8) and which the Secretary of State considers it appropriate to take into account,
Having carried out the review the Secretary of State must lay before Parliament, and publish, a report stating—
whether the Secretary of State considers that the significant improvement test is met, and
The first review must be completed by 31 January 2023.
Subsequent reviews must be completed before the end of the 5 year period beginning with the day on which the previous review was completed.
A review is completed when the Secretary of State has laid and published the report.
The conditions mentioned in subsection (3)(b) are that—
the target relates to an aspect of the natural environment in England or an area which includes England,
it specifies a standard to be achieved which is capable of being objectively measured,
it specifies a date by which the standard is to be achieved, and
it is contained in legislation which forms part of the law of England and Wales.
In this section “England” includes— within the meaning of the Marine and Coastal Access Act 2009 (see section 322 of that Act).
the English inshore region, and
the English offshore region,
Environmental improvement plans
The Secretary of State must prepare an environmental improvement plan.
An “environmental improvement plan” is a plan for significantly improving the natural environment in the period to which the plan relates.
That period must not be shorter than 15 years.
An environmental improvement plan must set out the steps Her Majesty’s Government intends to take to improve the natural environment in the period to which the plan relates.
It may also set out steps Her Majesty’s Government intends to take to improve people’s enjoyment of the natural environment in that period (and if it does so references in this Part to improving the natural environment, in relation to that plan, include improving people’s enjoyment of it).
The Secretary of State’s functions in relation to environmental improvement plans are not exercisable in relation to the natural environment in Wales.
The document entitled “A green future: our 25 year plan to improve the environment” published by Her Majesty’s Government on 11 January 2018 is to be treated as an environmental improvement plan prepared by the Secretary of State under this section.
References in this Part—
to the first environmental improvement plan, are to that document;
to the current environmental improvement plan, are to the environmental improvement plan for the time being in effect.
The Secretary of State must prepare annual reports on the implementation of the current environmental improvement plan.
An annual report must—
describe what has been done, in the period to which the report relates, to implement the environmental improvement plan, and
consider, having regard to any data obtained under section 16, whether the natural environment has, or particular aspects of it have, improved during that period.
In considering the matters in subsection (2)(b) an annual report must consider the progress that has been made towards achieving—
The first annual report on the first environmental improvement plan may relate to any 12 month period that includes the day on which this section comes into force.
The first annual report on a subsequent environmental improvement plan must relate to the first 12 months of the period to which the plan relates.
Subsequent annual reports on an environmental improvement plan must relate to the 12 month period immediately following the 12 month period to which the previous annual report relates.
An annual report must be laid before Parliament before the end of the 4 month period beginning immediately after the last day of the period to which the report relates.
The Secretary of State must publish annual reports laid before Parliament under this section.
The Secretary of State must—
if the Secretary of State of State is required to revise the plan under section 11, or considers it appropriate to revise the plan as a result of the review, revise the plan.
The period to which a revised plan relates must end at the same time as the period to which the current plan relates.
The first review of the first environmental improvement plan must be completed by 31 January 2023.
The first review of a subsequent environmental improvement plan must be completed before the end of the 5 year period beginning with the day on which it replaces the previous plan (see section 13(4)).
Subsequent reviews of an environmental improvement plan must be completed before the end of the 5 year period beginning with the day on which the previous review was completed.
If as a result of a review the Secretary of State revises the environmental improvement plan, the Secretary of State must lay before Parliament—
the revised environmental improvement plan, and
a statement explaining the revisions and the reasons for them.
If as a result of a review the Secretary of State does not revise the environmental improvement plan, the Secretary of State must lay before Parliament a statement explaining that and the reasons for it.
The Secretary of State must publish the documents laid under subsection (6) or (7).
A review is completed when the Secretary of State has laid and published the documents mentioned in subsection (6) or (7).
References in this Act to an environmental improvement plan include a revised environmental improvement plan.
On the first review of the first environmental improvement plan, the Secretary of State must revise the plan so as to—
set at least one interim target in respect of each relevant matter, and
secure that there is at all times, until the end of the 5 year period beginning with the relevant date, an interim target set by the plan in respect of each relevant matter.
On any other review of an environmental improvement plan, the Secretary of State must make any revisions to the plan which are necessary in order to—
set at least one interim target in respect of any matter that has become a relevant matter since the previous review, and
secure that there is at all times, until the end of the 5 year period beginning with the relevant date, an interim target set by the plan in respect of each relevant matter.
On a review of an environmental improvement plan, the Secretary of State may revise or replace any interim targets set by the plan in respect of a relevant matter (subject to subsection (2)(b), where it applies in respect of the matter).
An interim target in respect of a matter must specify—
a standard to be achieved, which must be capable of being objectively measured, and
a date by which it is to be achieved.
The date must be no later than the end of the 5 year period beginning with—
for the first interim target in respect of a matter, the relevant date;
for subsequent interim targets in respect of a matter, the later of the relevant date and the date specified for the previous interim target.
The “relevant date” is the date on which the review is completed.
In reviewing an environmental improvement plan under section 10, the Secretary of State must consider—
what has been done to implement the plan in the period since it was published or (if it has been reviewed before) last reviewed,
whether Her Majesty’s Government should take further or different steps to improve the natural environment (compared to those set out in the plan) in the remainder of the period to which the plan relates.
In considering the matters in subsection (1)(b) the Secretary of State must consider the progress that has been made towards meeting—
In considering the matters in subsection (1)(c) the Secretary of State must consider whether Her Majesty’s Government should take further or different steps towards meeting those targets (compared to those set out in the plan).
The new period must begin no later than immediately after the end of the period to which the old plan relates.
At or before the end of the period to which the old plan relates the Secretary of State must lay before Parliament, and publish, the new plan.
The new plan replaces the old plan when—
it has been laid and published, and
the period to which it relates has begun.
A new plan prepared by the Secretary of State under section 13 must—
set at least one interim target in respect of each relevant matter, and
secure that there is at all times, until the end of the 5 year period beginning with the relevant date, an interim target set by the plan in respect of each relevant matter.
An interim target in respect of a matter must specify—
a standard to be achieved, which must be capable of being objectively measured, and
a date by which it is to be achieved.
The date must be no later than the end of the 5 year period beginning with—
for the first interim target set by the new plan in respect of a matter, the relevant date;
for subsequent interim targets set by the new plan in respect of a matter, the date specified for the previous interim target.
The “relevant date” is the first day of the period to which the new plan relates.
In this section references to the “new plan” are to be read in accordance with section 13.
In preparing a new plan under section 13 the Secretary of State must consider—
what has been done to implement the old plan,
whether Her Majesty’s Government should take further or different steps (compared to those set out in the old plan) to improve the natural environment in the period to which the new environmental improvement plan relates.
In considering the matters in subsection (1)(b) the Secretary of State must consider the progress that has been made towards meeting—
In this section references to the “new plan” and the “old plan” are to be read in accordance with section 13.
Environmental monitoring
The Secretary of State must make arrangements for obtaining such data about the natural environment as the Secretary of State considers appropriate for the purpose of monitoring—
whether the natural environment is, or particular aspects of it are, improving in accordance with the current environmental improvement plan,
The Secretary of State must lay before Parliament, and publish, a statement setting out the kinds of data to be obtained under subsection (1).
The first statement must be laid before the end of the 4 month period beginning with the day on which this section comes into force.
The Secretary of State may revise the statement at any time (and subsection (2) applies to any revised statement).
The Secretary of State must publish any data obtained under subsection (1).
Policy statement on environmental principles
The Secretary of State must prepare a policy statement on environmental principles in accordance with this section and section 18.
A “policy statement on environmental principles” is a statement explaining how the environmental principles should be interpreted and proportionately applied by Ministers of the Crown when making policy.
It may also explain how Ministers of the Crown, when interpreting and applying the environmental principles, should take into account other considerations relevant to their policy.
The Secretary of State must be satisfied that the statement will, when it comes into effect, contribute to—
the improvement of environmental protection, and
sustainable development.
In this Part “environmental principles” means the following principles—
the principle that environmental protection should be integrated into the making of policies,
the principle of preventative action to avert environmental damage,
the precautionary principle, so far as relating to the environment,
the principle that environmental damage should as a priority be rectified at source, and
the polluter pays principle.
The Secretary of State must prepare a draft of the policy statement on environmental principles.
The Secretary of State must consult such persons as the Secretary of State considers appropriate in relation to the draft statement.
The Secretary of State must lay the draft statement before Parliament.
If before the end of the 21 day period— the Secretary of State must produce a response and lay it before Parliament.
either House of Parliament passes a resolution in respect of the draft statement, or
a committee of either House of Parliament, or a joint committee of both Houses, makes recommendations in respect of the draft statement,
The Secretary of State must prepare and lay before Parliament the final statement, but not before—
if subsection (4) applies, the day on which the Secretary of State lays the response required by that subsection, or
otherwise, the end of the 21 day period.
The final statement has effect when it is laid before Parliament.
The Secretary of State must publish the statement when it comes into effect.
The “21 day period” is the period of 21 sitting days beginning with the first sitting day after the day on which the draft statement is laid under subsection (3).
“Sitting day” means a day on which both Houses of Parliament sit.
The requirements in subsections (1) and (2) may be met by the preparation of a draft statement, and consultation, before this section comes into force.
The Secretary of State may prepare a revised policy statement on environmental principles at any time (and subsections (1) to (9) apply in relation to any revised statement).
A Minister of the Crown must, when making policy, have due regard to the policy statement on environmental principles currently in effect.
Nothing in subsection (1) requires a Minister to do anything (or refrain from doing anything) if doing it (or refraining from doing it)—
would have no significant environmental benefit, or
would be in any other way disproportionate to the environmental benefit.
Subsection (1) does not apply to policy so far as relating to—
the armed forces, defence or national security,
taxation, spending or the allocation of resources within government, or
Wales.
Subsection (1) applies to policy relating to Scotland only so far as relating to reserved matters.
Section 14(2) of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (asp 4) (UK Ministers must have regard to guiding principles on the environment in making policies extending to Scotland) does not apply to policies so far as relating to reserved matters.
In this section “reserved matters” has the same meaning as in the Scotland Act 1998.
Environmental protection: statements and reports
This section applies where a Minister of the Crown in charge of a Bill in either House of Parliament is of the view that the Bill as introduced into that House contains provision which, if enacted, would be environmental law.
The Minister must, before Second Reading of the Bill in the House in question, make—
a statement to the effect that in the Minister’s view the Bill contains provision which, if enacted, would be environmental law, and
a statement under subsection (3) or (4).
A statement under this subsection is a statement to the effect that in the Minister’s view the Bill will not have the effect of reducing the level of environmental protection provided for by any existing environmental law.
A statement under this subsection is a statement to the effect that—
the Minister is unable to make a statement under subsection (3), but
Her Majesty’s Government nevertheless wishes the House to proceed with the Bill.
In making a statement under this section the Minister may in particular take into account the possibility that a Bill, by making provision that is different from existing environmental law, might provide for the same or a greater level of environmental protection.
For the purposes of this section—
references to environmental protection provided for by any existing environmental law includes any protection which could be provided for under powers conferred by the existing environmental law, and
in considering the effect of a Bill, any powers conferred by the Bill to provide for any environmental protection may be taken into account.
A statement under this section must be in writing and be published in such manner as the Minister considers appropriate.
“Existing environmental law”, in relation to a statement under this section, means environmental law existing at the time that the Bill to which the statement relates is introduced into the House in question, whether or not the environmental law is in force.
The Secretary of State must report on developments in international environmental protection legislation which appear to the Secretary of State to be significant.
“International environmental protection legislation” means legislation of countries and territories outside the United Kingdom, and international organisations, that is mainly concerned with environmental protection.
The Secretary of State must report under this section in relation to each reporting period.
The reporting periods are—
the 2 year period beginning with the day on which this section comes into force, and
each subsequent 2 year period.
A report under this section may consider— as the Secretary of State considers appropriate.
particular countries, territories or international organisations, or
particular aspects of environmental protection,
A report under this section must be laid before Parliament, and published, as soon as reasonably practicable after the end of the reporting period to which it relates.
The Office for Environmental Protection
A body corporate called the Office for Environmental Protection is established.
In this Act that body is referred to as “the OEP”.
Schedule 1 makes further provision about the OEP.
The principal objective of the OEP in exercising its functions is to contribute to—
environmental protection, and
the improvement of the natural environment.
The OEP must—
act objectively and impartially, and
have regard to the need to act proportionately and transparently.
The OEP must prepare a strategy that sets out how it intends to exercise its functions.
In particular, the strategy must set out—
how the OEP will further its principal objective,
how the OEP will act objectively and impartially, and
how the OEP will have regard to the need to act proportionately and transparently.
The strategy must also set out—
how the OEP intends to avoid any overlap between the exercise of its functions and the exercise by the Committee on Climate Change of that committee’s functions, and
how the OEP intends to co-operate with devolved environmental governance bodies.
The strategy must contain an enforcement policy that sets out—
how the OEP intends to determine whether failures to comply with relevant environmental law are serious for the purposes of paragraphs 7(1)(b) and (2)(b), 9(1)(b), 10(1)(b), 12(1)(b) and 13(1) and (6) of Schedule 3,
how the OEP intends to exercise its enforcement functions in a way that respects the integrity of other statutory regimes (including statutory provision for appeals),
how the OEP intends to avoid any overlap between the exercise of its functions under paragraphs 6 to 8 of Schedule 3 (complaints) and the exercise by the Northern Ireland Public Services Ombudsman of its functions, and
how the OEP intends to prioritise cases.
In considering its enforcement policy the OEP must have regard to the particular importance of prioritising cases that it considers have or may have national implications, and the importance of prioritising cases—
that relate to ongoing or recurrent conduct,
that relate to conduct that the OEP considers may cause (or has caused) serious damage to the natural environment or to human health, or
that the OEP considers may raise a point of environmental law or Northern Ireland environmental law of general public importance.
In this section “relevant environmental law” and “Northern Ireland environmental law” have the meanings they have in Part 1 of Schedule 3 (see paragraphs 5 and 18(2) of that Schedule).
For the purposes of this Part, each of the following is a “relevant ombudsman”—
the Commission for Local Administration in England;
the Parliamentary Commissioner for Administration.
The OEP must—
arrange for the strategy prepared under section 23 to be laid before Parliament and the Northern Ireland Assembly, and
publish it.
The OEP may revise the strategy at any time (and subsection (1) applies to any revised strategy).
The OEP must review the strategy at least once in every review period.
“Review period” means—
in relation to the first review, the period of 3 years beginning with the day on which the strategy was first published, and
in relation to subsequent reviews, the period of 3 years beginning with the day on which the previous review was completed.
Before preparing, revising or reviewing the strategy, the OEP must consult such persons as it considers appropriate.
The Secretary of State may issue guidance to the OEP on the matters listed in section 23(6) (OEP’s enforcement policy), so far as relating to the OEP’s Part 1 enforcement functions.
The OEP must have regard to the guidance in—
preparing its enforcement policy, so far as relating to its Part 1 enforcement functions, and
exercising its Part 1 enforcement functions.
Before issuing the guidance, the Secretary of State must—
prepare a draft, and
lay the draft before Parliament.
If before the end of the 21 day period—the Secretary of State must produce a response and lay it before Parliament.
either House of Parliament passes a resolution in respect of the draft guidance, or
a committee of either House of Parliament, or a joint committee of both Houses, makes recommendations in respect of the draft guidance,
The Secretary of State may prepare and lay before Parliament the final guidance, but not before—
if subsection (5) applies, the day on which the Secretary of State lays the response required by that subsection, or
otherwise, the end of the 21 day period.
The final guidance has effect when it is laid before Parliament.
The Secretary of State must publish the guidance when it comes into effect.
The “21 day period” is the period of 21 sitting days beginning with the first sitting day after the day on which the draft guidance is laid under subsection (4).
“Sitting day” means a day on which both Houses of Parliament sit.
The Secretary of State may revise the guidance at any time (and subsections (4) to (10) apply in relation to any revised guidance).
The Department of Agriculture, Environment and Rural Affairs in Northern Ireland may issue guidance to the OEP on the matters listed in section 23(6) (OEP’s enforcement policy), so far as relating to the OEP’s Northern Ireland enforcement functions.
The OEP must have regard to the guidance in—
preparing its enforcement policy, so far as relating to its Northern Ireland enforcement functions, and
exercising its Northern Ireland enforcement functions.
The OEP’s “Northern Ireland enforcement functions” are its functions under paragraphs 6 to 15 of Schedule 3.
Before issuing the guidance, the Department must—
prepare a draft, and
lay the draft before the Northern Ireland Assembly.
If before the end of the 21 day period the Northern Ireland Assembly passes a resolution in respect of the draft guidance, the Department must produce a response and lay it before the Assembly.
The Department may prepare and lay before the Northern Ireland Assembly the final guidance, but not before—
if subsection(5) applies, the day on which the Department lays the response required by that subsection, or
otherwise, the end of the 21 day period.
The final guidance has effect when it is laid before the Northern Ireland Assembly.
The Department must publish the guidance when it comes into effect.
The “21 day period” is the period of 21 sitting days beginning with the first sitting day after the day on which the draft guidance is laid under subsection(4).
“Sitting day” means a day on which the Northern Ireland Assembly sits.
The Department may revise the guidance at any time (and subsections(4) to(10) apply in relation to any revised guidance).
The OEP and the Committee on Climate Change must prepare a memorandum of understanding.
The memorandum must set out how the OEP and the Committee intend to co-operate with one another and avoid overlap between the exercise by the OEP of its functions and the exercise by the Committee of its functions.
A person whose functions include functions of a public nature must co-operate with the OEP, and give it such reasonable assistance as it requests (including the provision of information), in connection with the exercise of its functions under this Act.
Subsection (1) does not apply to—
a court or tribunal,
either House of Parliament,
a devolved legislature,
the Scottish Ministers or the Welsh Ministers,
a person exercising a parliamentary function, or
a person whose only public functions are Scottish devolved functions or Welsh devolved functions.
A person whose public functions include Scottish devolved functions or Welsh devolved functions is only required to co-operate with the OEP by virtue of subsection (1) to the extent that co-operation is in relation to functions that are not Scottish devolved functions or Welsh devolved functions.
An implementation body is only required to co-operate with the OEP by virtue of subsection(1) to the extent that co-operation is in relation to functions of that body exercisable in or as regards Northern Ireland. In this subsection “implementation body” has the meaning it has in section 55 of the Northern Ireland Act 1998 (see subsection (3) of that section).
If the OEP considers that a particular exercise of its functions may be relevant to the exercise of a devolved environmental governance function by a devolved environmental governance body, the OEP must consult that body.
The OEP's scrutiny and advice functions
The OEP must monitor progress—
in improving the natural environment in accordance with the current environmental improvement plan,
The OEP must prepare a progress report for each annual reporting period.
A progress report for an annual reporting period is a report on progress made in that period in or towards the matters listed in subsection (1).
An annual reporting period is a period for which the Secretary of State must prepare a report under section 9 (a “section 9 report”).
In reporting on progress made in an annual reporting period, the OEP must consider—
the section 9 report for that period,
the data published by the Secretary of State under section 16 that relates to that period, and
any other reports, documents or information it considers appropriate.
A progress report for an annual reporting period may include—
consideration of how progress could be improved, and
consideration of the adequacy of the data published by the Secretary of State under section 16.
The OEP must—
arrange for its reports under this section to be laid before Parliament, and
publish them.
A progress report for an annual reporting period must be laid no later than 6 months after the section 9 report for that period is laid before Parliament.
The Secretary of State must—
respond to a report under this section, and
lay before Parliament, and publish, a copy of the response.
Where a report under this section contains a recommendation for how progress could be improved, the response must address that recommendation.
The response—
must be laid no later than 12 months after the report is laid, and
may be included in a section 9 report.
The OEP must monitor the implementation of environmental law.
The OEP may report on any matter concerned with the implementation of environmental law.
But the OEP must not monitor the implementation of, or report on, a matter within the remit of the Committee on Climate Change.
The OEP must—
arrange for its reports under this section to be laid before Parliament, and
publish them.
The Secretary of State must—
respond to a report under this section, and
lay before Parliament, and publish, a copy of the response.
The response to a report under this section must be laid no later than 3 months after the report is laid.
The OEP must give advice to a Minister of the Crown about— on which the Minister requires it to give advice.
any proposed change to environmental law, or
any other matter relating to the natural environment,
The Minister may specify matters which the OEP is to take into account in giving the required advice.
The OEP may give advice to a Minister of the Crown about any changes to environmental law proposed by a Minister of the Crown.
Advice under this section is to be given in writing to the Minister concerned.
The OEP must publish—
its advice, and
if the advice is given under subsection (1), a statement of the matter on which it was required to give advice and any matters specified under subsection (2).
The Minister concerned may, if the Minister thinks fit, lay before Parliament—
the advice, and
any response the Minister may make to the advice.
The OEP's enforcement functions
For the purposes of those sections, a reference to a public authority failing to comply with environmental law means the following conduct by that authority—
unlawfully failing to take proper account of environmental law when exercising its functions;
unlawfully exercising, or failing to exercise, any function it has under environmental law.
In this Part “public authority” means a person carrying out any function of a public nature that is not a devolved function, a parliamentary function or a function of any of the following persons—
the OEP;
a court or tribunal;
either House of Parliament;
a devolved legislature;
the Scottish Ministers, the Welsh Ministers, a Northern Ireland department or a Minister within the meaning of the Northern Ireland Act 1998.
A person may make a complaint to the OEP under this section if the person believes that a public authority has failed to comply with environmental law.
The OEP must prepare and publish a document which sets out the procedure by which complaints can be made.
A complaint under this section must be made in accordance with that procedure (as most recently published).
A complaint under this section may not be made by any person whose functions include functions of a public nature.
A complaint about a public authority may not be made under this section if—
the authority operates a procedure for considering complaints (“an internal complaints procedure”) under which the complaint could be considered, and
that procedure has not been exhausted.
A complaint under this section may not be made after the later of—
the end of the 1 year period beginning with the day on which the alleged failure that is the subject of the complaint last occurred, and
if the substance of the complaint was subject to an internal complaints procedure, the end of the 3 month period beginning with the day on which that procedure was exhausted.
The OEP may waive the time limit in subsection (6) if it considers that there are exceptional reasons for doing so.
The OEP may carry out an investigation under this section if it receives a complaint made under section 32 that, in its view, indicates that—
a public authority may have failed to comply with environmental law, and
if it has, the failure would be a serious failure.
The OEP may carry out an investigation under this section without having received such a complaint if it has information that, in its view, indicates that—
a public authority may have failed to comply with environmental law, and
if it has, the failure would be a serious failure.
An investigation under this section is an investigation into whether the public authority has failed to comply with environmental law.
The OEP must notify the public authority of the commencement of the investigation.
The OEP must prepare a report on the investigation and provide it to the public authority.
The OEP is not required to prepare a report until it has concluded that it intends to take no further steps under this Chapter in relation to the alleged failure to comply with environmental law that is the subject of the investigation.
The report must set out—
whether the OEP considers that the public authority has failed to comply with environmental law,
the reasons the OEP came to that conclusion, and
any recommendations the OEP may have (whether generally or for the public authority) in light of those conclusions.
The OEP may publish the report or parts of it.
If the public authority is not a Minister of the Crown, the OEP must also—
notify the relevant Minister of the commencement of the investigation, and
provide the relevant Minister with the report prepared under subsection (5).
In this Part “the relevant Minister”, in relation to a failure (or alleged failure) of a public authority to comply with environmental law, means the Minister of the Crown that the OEP considers appropriate having regard to the nature of the public authority and the nature of the failure.
Where a person makes a complaint to the OEP alleging that a public authority has failed to comply with environmental law, the OEP must keep the complainant informed about its handling of the complaint.
In particular, the OEP must—
notify the complainant if it does not intend to consider the complaint because the complaint was not made in accordance with section 32;
notify the complainant if it has concluded that it will not be commencing an investigation under section 33 in relation to the complaint;
notify the complainant if it commences an investigation under section 33 in relation to the complaint;
if such an investigation is commenced, notify the complainant—
where it provides a report under section 33(5) to the public authority that is the subject of the investigation, that it has provided it;
provide the complainant with a copy of any document published under section 33(9) in relation to any investigation in relation to the complaint.
The OEP may give an information notice to a public authority if—
the OEP has reasonable grounds for suspecting that the authority has failed to comply with environmental law, and
it considers that the failure, if it occurred, would be serious.
An information notice is a notice which—
describes an alleged failure of a public authority to comply with environmental law,
explains why the OEP considers that the alleged failure, if it occurred, would be serious, and
requests that the authority provide such information relating to the allegation as may be specified in the notice.
The recipient of an information notice must—
respond in writing to the notice, and
so far as is reasonably practicable, provide the OEP with the information requested in the notice.
The recipient of an information notice must comply with subsection (3) by—
the end of the 2 month period beginning with the day on which the notice was given, or
such later date as may be specified in the notice.
The written response to an information notice must set out—
the recipient’s response to the allegation described in the notice, and
what steps (if any) the recipient intends to take in relation to the allegation.
The OEP may—
withdraw an information notice;
give more than one information notice in respect of the same alleged failure of a public authority to comply with environmental law.
Where the OEP intends to give an information notice to a public authority in respect of an alleged failure to comply with environmental law which relates to emissions of greenhouse gases (within the meaning of the Climate Change Act 2008), the OEP—
must notify the Committee on Climate Change of its intention before it gives the notice to the authority, and
must provide that Committee with such information relating to the alleged failure as the OEP considers appropriate.
The OEP may give a decision notice to a public authority if—
the OEP is satisfied, on the balance of probabilities, that the authority has failed to comply with environmental law, and
it considers that the failure is serious.
A decision notice is a notice that—
describes a failure of a public authority to comply with environmental law,
explains why the OEP considers that the failure is serious, and
sets out the steps the OEP considers the authority should take in relation to the failure (which may include steps designed to remedy, mitigate or prevent reoccurrence of the failure).
The recipient of a decision notice must respond in writing to that notice by—
the end of the 2 month period beginning with the day on which the notice was given, or
such later date as may be specified in the notice.
The written response to a decision notice must set out—
whether the recipient agrees that the failure described in the notice occurred,
whether the recipient intends to take the steps set out in the notice, and
what other steps (if any) the recipient intends to take in relation to the failure described in the notice.
The OEP—
may not give a decision notice to a public authority unless it has first given at least one information notice relating to the failure of the authority to comply with environmental law that is described in the decision notice;
may withdraw a decision notice.
If the OEP gives an information notice or a decision notice to more than one public authority in respect of the same or similar conduct, it may determine that those notices are linked.
A Minister of the Crown may request that the OEP determine that information notices or decision notices are linked and the OEP must have regard to that request.
The OEP must provide the recipient of an information notice or a decision notice (a “principal notice”) with a copy of every information notice or decision notice which is linked to it (and such a notice is referred to in this section as a “linked notice”).
The OEP must provide the recipient of a principal notice with a copy of any relevant correspondence, relating to a linked notice, between the OEP and the recipient of that linked notice.
The OEP must provide the recipient of a principal notice with a copy of any relevant correspondence between the OEP and the relevant Minister that relates to a linked notice.
Subsection (5) does not apply where either the recipient of the principal notice or the linked notice is a Minister of the Crown.
If the OEP considers that an information notice or a decision notice relates to conduct that is the same as or similar to conduct that is the subject of a Northern Ireland information notice or Northern Ireland decision notice, it may determine that those notices are linked.
The OEP must provide the recipient of an information notice or a decision notice with—
a copy of every Northern Ireland information notice or Northern Ireland decision notice which is linked to it, and
a copy of any relevant correspondence, relating to such a notice, between the OEP and the recipient of that notice.
The obligation to provide a copy of any notice or correspondence under this section does not apply where the OEP considers that in the circumstances it would not be in the public interest to do so.
For the purposes of this section, correspondence is relevant if—
it is not correspondence in connection with an environmental review or any other legal proceedings (such as judicial review), and
Where the OEP has given a decision notice to a public authority it may apply to the court for an environmental review, but only if—
it is satisfied, on the balance of probabilities, that the authority has failed to comply with environmental law, and
it considers that the failure is serious.
An environmental review is a review of alleged conduct of the authority that is described in the decision notice as constituting a failure to comply with environmental law.
An application for an environmental review may not be made—
before the earlier of—
the end of the period within which the authority must respond to the decision notice in accordance with section 36(3), and
the date on which the OEP receives the authority’s response to that notice, or
before the expiry of any time limit which applies to the commencement of judicial review or other similar legal proceedings for questioning the alleged conduct.
Any restriction imposed by or under any other enactment on questioning the conduct of a public authority in legal proceedings does not apply to an environmental review.
On an environmental review the court must determine whether the authority has failed to comply with environmental law, applying the principles applicable on an application for judicial review.
If the court finds that the authority has failed to comply with environmental law, it must make a statement to that effect (a “statement of non-compliance”).
A statement of non-compliance does not affect the validity of the conduct in respect of which it is given.
Where the court makes a statement of non-compliance it may grant any remedy that could be granted by it on a judicial review other than damages, but only if Condition A or Condition B is met.
Condition A is that the court is satisfied that granting the remedy would not—
be likely to cause substantial hardship to, or substantially prejudice the rights of, any person other than the authority, or
be detrimental to good administration.
Condition B is that Condition A is not met but the court is satisfied that—
granting the remedy is necessary in order to prevent or mitigate serious damage to the natural environment or to human health, and
there is an exceptional public interest reason to grant it.
In deciding whether to grant a remedy the court must (subject to subsection (8)) apply the principles applicable on an application for judicial review; but this does not require the court to apply section 31(2A) of the Senior Courts Act 1981 (High Court to refuse to grant relief where the outcome for the applicant not substantially different) on an environmental review in England and Wales.
If, on an environmental review, the court has made a statement of non-compliance in respect of a public authority, and the statement has not been overturned on appeal, the authority must publish a statement that sets out the steps it intends to take in light of the review.
A statement under subsection (12) must be published before the end of the 2 month period beginning with the day the review (including any appeal) concludes.
In this section— “the court” means— in relation to an environmental review arising under the law of England and Wales or Northern Ireland, the High Court, or in relation to an environmental review arising under the law of Scotland, the Court of Session; “enactment” has the same meaning as in the European Union (Withdrawal) Act 2018; “the principles applicable on an application for judicial review” means, in relation to an environmental review, the principles that would apply on an application for judicial review in the jurisdiction under which the environmental review arises; “remedy” includes any relief or order.
The OEP may apply for judicial review, or a statutory review, in relation to conduct of a public authority (whether or not it has given an information notice or a decision notice to the authority in respect of that conduct) if—
the OEP considers that the conduct constitutes a serious failure to comply with environmental law, and
the urgency condition is met.
Section 31(2A), (3C) and (3D) of the Senior Courts Act 1981 (High Court to refuse to grant leave or relief where the outcome for the applicant not substantially different) does not apply to an application for judicial review made under subsection (1) in England and Wales.
If, on an application for judicial review or a statutory review made by virtue of subsection (1), there is a finding that a public authority has failed to comply with environmental law, and the finding has not been overturned on appeal, the authority must publish a statement that sets out the steps it intends to take in light of the finding.
A statement under subsection (4) must be published before the end of the 2 month period beginning with the day the proceedings relating to the application for judicial review or the statutory review (including any appeal) conclude.
Subsection (7) applies to proceedings (including any appeal) that—
are in respect of an application for judicial review or a statutory review, and
relate to an alleged failure by a public authority to comply with environmental law (however the allegation is framed in those proceedings).
If the OEP considers that the alleged failure, if it occurred, would be serious, it may apply to intervene in the proceedings (whether it considers that the public authority has, or has not, failed to comply with environmental law).
In this Part—
except in section 38, reference to an application for judicial review includes an application for the permission of the High Court or, as the case may be, the Court of Session to apply for judicial review;
“statutory review” means a claim for statutory review under—
section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990,
section 22 of the Planning (Hazardous Substances) Act 1990, or
section 113 of the Planning and Compulsory Purchase Act 2004.
Where the recipient of an information notice or a decision notice is not a Minister of the Crown, the OEP must—
provide the relevant Minister with—
a copy of the notice and,
a copy of any correspondence between the OEP and the recipient of the notice that relates to the notice (apart from correspondence sent by virtue of paragraph (b)), and
provide the recipient of the notice with a copy of any correspondence between the OEP and the relevant Minister that relates to the notice (apart from correspondence sent by virtue of paragraph (a)).
The obligation to provide a copy of any notice or correspondence under subsection (1) does not apply where the OEP considers that in the circumstances it would not be in the public interest to do so.
Where the OEP makes an application for an environmental review, judicial review or statutory review in which the relevant Minister is not a party, it must provide the relevant Minister with—
a copy of the application, and
a statement of whether the OEP considers the relevant Minister should participate in the review (for example, by applying to be a party).
Where the OEP gives an information notice or a decision notice, applies for an environmental review, judicial review or statutory review or applies to intervene in a judicial review or statutory review, it must publish a statement that—
states that the OEP has taken that step,
describes the failure (or alleged failure) of a public authority to comply with environmental law in relation to which that step was taken, and
sets out such further information as the OEP considers appropriate.
Subsection (1) does not apply if the OEP considers that in the circumstances it would not be in the public interest to publish a statement.
Information
No obligation of secrecy imposed by statute or otherwise prevents a person from—
providing information to the OEP in accordance with section 35(3)(b).
But nothing in this Part—
requires a person to provide the OEP with information that the person would be entitled to refuse to provide in civil proceedings on grounds of legal professional privilege (or, in Scotland, confidentiality of communications), or
requires a person to provide the OEP with information that the person would be entitled, or required by any rule of law, to refuse to provide in civil proceedings on grounds of public interest immunity.
No obligation of secrecy imposed by statute or otherwise prevents a relevant ombudsman from providing information to the OEP—
for purposes connected with the exercise of the OEP’s functions under section 33;
for purposes connected with the co-ordination of the OEP’s functions that relate to investigations under section 33 and the ombudsman’s functions that relate to investigations by the ombudsman.
Nothing in this Part requires or authorises a disclosure of information that would contravene the data protection legislation (but in determining whether a disclosure would do so, take into account the duties imposed and powers conferred by this Part).
In this section “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3(9) of that Act).
The OEP must not disclose—
correspondence between the OEP and a public authority that—
relates to a particular information notice or decision notice, or
is, or contains, such a notice.
Subsection (1) does not apply to a disclosure—
other than a disclosure of an information notice or a decision notice, made with the consent of the person who provided the information or correspondence;
made for purposes connected with the co-ordination of the OEP’s functions that relate to investigations under section 33 and a relevant ombudsman’s functions that relate to investigations by that ombudsman;
made for purposes connected with the co-ordination of the OEP’s functions that relate to investigations under paragraph 7 of Schedule 3 and the Northern Ireland Public Services Ombudsman’s functions that relate to investigations by the Ombudsman;
made to a devolved environmental governance body for purposes connected with the exercise of a devolved environmental governance function;
made for purposes connected with the protection of the natural environment in a country or territory outside the United Kingdom, to an authority of that country or territory, or an international organisation, that has functions in connection with the protection of the natural environment in that country or territory;
of information, or correspondence, that relates only to a matter in relation to which the OEP has concluded that it intends to take no further steps under this Chapter or Part 1 of Schedule 3.
A public authority must not disclose correspondence between the OEP and that, or any other, public authority that—
relates to a particular information notice , decision notice, Northern Ireland information notice or Northern Ireland decision notice, or
is, or contains, such a notice.
Subsection (3) does not apply to a disclosure—
made—
in the case of a disclosure of correspondence between another public authority and the OEP other than correspondence that is, or contains, an information notice , a decision notice, a Northern Ireland information notice or a Northern Ireland decision notice, with the consent of that authority and the OEP, or
in any other case, with the specific or general consent of the OEP;
made for purposes connected with responding to any information notice or decision notice;
made for purposes connected with any proceedings in relation to an environmental review, judicial review (which includes a review application) or statutory review.
The OEP may not give a person consent to disclose an information notice , a decision notice, a Northern Ireland information notice or a Northern Ireland decision notice unless that notice relates only to a matter in relation to which the OEP has concluded that it intends to take no further steps under this Chapter or Part 1 of Schedule 3.
If a public authority requests the consent of the OEP to disclose correspondence that relates only to a matter in relation to which the OEP has concluded that it intends to take no further steps under this Chapter or Part 1 of Schedule 3, the OEP may not withhold that consent.
If information referred to in subsection (1) and held by the OEP, or referred to in subsection (3) and held by a public authority, is environmental information for the purposes of the Environmental Information Regulations 2004 (S.I. 2004/3391) or the Environmental Information (Scotland) Regulations 2004 (S.S.I. 2004/520), it is held by that person, for the purposes of the application of those regulations to that information, in connection with confidential proceedings.
In this Part the “natural environment” means— and the natural systems, cycles and processes through which they interact.
plants, wild animals and other living organisms,
their habitats,
land (except buildings or other structures), air and water,
In this Part “environmental protection” means—
protection of the natural environment from the effects of human activity;
protection of people from the effects of human activity on the natural environment;
maintenance, restoration or enhancement of the natural environment;
monitoring, assessing, considering, advising or reporting on anything in paragraphs (a) to (c).
In this Part “environmental law” means any legislative provision to the extent that it—
is mainly concerned with environmental protection, and
is not concerned with an excluded matter.
Excluded matters are—
disclosure of or access to information;
the armed forces or national security;
taxation, spending or the allocation of resources within government.
The reference in subsection (1) to “legislative provision” does not include devolved legislative provision, except for the purposes of section 20.
“Devolved legislative provision” means—
legislative provision contained in, or in an instrument made under, an Act of the Scottish Parliament, an Act or Measure of Senedd Cymru, or Northern Ireland legislation, and
legislative provision not within paragraph (a) which—
if contained in an Act of the Scottish Parliament, would be within the legislative competence of the Parliament;
if contained in an Act of Senedd Cymru, would be within the legislative competence of the Senedd, or
if contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Assembly and would not require the Secretary of State’s consent.
The Secretary of State may by regulations provide that a legislative provision specified in the regulations is, or is not, within the definition of “environmental law” in subsection (1) (and this Part applies accordingly).
Before making regulations under subsection (5) the Secretary of State must consult—
the OEP, and
any other persons the Secretary of State considers appropriate.
Regulations under subsection (5) are subject to the affirmative procedure.
In this Part—“application for judicial review” is to be read in accordance with section 39(8);“current environmental improvement plan” has the meaning given by section 8(8);“decision notice” means a notice given under section 36;“devolved environmental governance body” means a person on whom a devolved environmental governance function has been conferred;“devolved environmental governance function” means a Scottish devolved function or Welsh devolved function that is similar to a function conferred on the OEP under this Part or Part 1 of Schedule 3 (functions of the OEP in Northern Ireland);“devolved function” means—a function exercisable in or as regards Wales that could be conferred by provision falling within the legislative competence of Senedd Cymru (see section 108A of the Government of Wales Act 2006); a function exercisable in or as regards Scotland, the exercise of which would be within devolved competence (within the meaning of section 54 of the Scotland Act 1998); a function exercisable in or as regards Northern Ireland that could be conferred by provision included in an Act of the Northern Ireland Assembly made without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998);“devolved legislature” means the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly;“environmental improvement plan” has the meaning given by section 8 (and see also section 10(10));“environmental principles” has the meaning given by section 17;“environmental review” has the meaning given by section 38;“first environmental improvement plan” has the meaning given by section 8(8);“improving the natural environment”, in relation to an environmental improvement plan, is to be read in accordance with section 8(5);“information notice” means a notice given under section 35;“judicial review” means—in England and Wales or Northern Ireland, an application to the High Court for judicial review, or in Scotland, an application to the supervisory jurisdiction of the Court of Session;“making” policy includes developing, adopting or revising policy;“met”, in relation to a target set under sections 1 to 3, has the meaning given by section 4(7);“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975;“Northern Ireland decision notice” means a notice given under paragraph 10 of Schedule 3 (functions of the OEP in Northern Ireland);“Northern Ireland information notice” means a notice given under paragraph 9 of Schedule 3;“OEP” has the meaning given by section 22;“parliamentary function” means a function in connection with proceedings in Parliament or a devolved legislature;“policy” includes proposals for legislation, but does not include an administrative decision taken in relation to a particular person or case (for example, a decision on an application for planning permission, funding or a licence, or a decision about regulatory enforcement);“policy statement on environmental principles” has the meaning given by section 17;“public authority” has the meaning given by section 31(3);“relevant Minister” has the meaning given by section 33;“relevant ombudsman” has the meaning given by section 23;“review application” has the meaning it has in Part 1 of Schedule 3 (see paragraph 12 of that Schedule);“Scottish devolved function” means a function exercisable in or as regards Scotland, the exercise of which would be within devolved competence (within the meaning of section 54 of the Scotland Act 1998);“specified date” and “specified standard”, in relation to a target set under sections 1 to 3, have the meaning given by section 1(8);“statutory review” has the meaning given by section 39(8).“Welsh devolved function” means a function exercisable in or as regards Wales that could be conferred by provision falling within the legislative competence of Senedd Cymru (see section 108A of the Government of Wales Act 2006).
Section 41(3) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) applies in relation to the laying of a document before the Northern Ireland Assembly under this Part, as it applies in relation to the laying of a statutory document under an Act of the Northern Ireland Assembly.
Environmental governance: Northern Ireland
Schedule 2 makes provision about— in Northern Ireland.
environmental improvement plans, and
policy statements on environmental principles,
Schedule 3—
makes provision about the functions of the OEP in, or as regards, Northern Ireland, and
amends this Act to reflect those functions.
Waste and resource efficiency
Producer responsibility
In Schedule 4—
Part 1 confers power on the relevant national authority to make regulations about producer responsibility obligations;
Part 2 confers power on the relevant national authority to make regulations about the enforcement of regulations made under Part 1.
In this section and that Schedule “relevant national authority” means—
in relation to England, the Secretary of State;
in relation to Wales, the Welsh Ministers or the Secretary of State;
in relation to Scotland, the Scottish Ministers or the Secretary of State;
in relation to Northern Ireland, the Department of Agriculture, Environment and Rural Affairs in Northern Ireland or the Secretary of State.
Regulations under Schedule 4 made by the Secretary of State may not contain provision that could be contained in regulations under that Schedule made by another relevant national authority, unless that authority consents.
Regulations under Schedule 4 that contain only provision for, or in connection with, the variation of targets specified in the regulations are subject to the negative procedure.
Otherwise, regulations under Schedule 4 are subject to the affirmative procedure.
The following are repealed—
the Producer Responsibility Obligations (Northern Ireland) Order 1998 (S.I. 1998/1762 (N.I. 16)).
Schedule 5 confers power on the relevant national authority to make regulations requiring the payment of sums in respect of the costs of disposing of products and materials.
In this section and that Schedule “relevant national authority” means—
in relation to England, the Secretary of State;
in relation to Wales, the Welsh Ministers or the Secretary of State;
in relation to Scotland, the Scottish Ministers or the Secretary of State;
in relation to Northern Ireland, the Department of Agriculture, Environment and Rural Affairs in Northern Ireland or the Secretary of State.
Regulations under Schedule 5 made by the Secretary of State may not contain provision that could be contained in regulations under that Schedule made by another relevant national authority, unless that authority consents.
Regulations under Schedule 5 are subject to the affirmative procedure.
Resource efficiency
In Schedule 6—
Part 1 confers power on the relevant national authority to make regulations about the provision of resource efficiency information;
Part 2 confers power on the relevant national authority to make regulations about the enforcement of regulations made under Part 1.
In this section and that Schedule “relevant national authority” means—
in relation to England, the Secretary of State;
in relation to Wales, the Welsh Ministers or the Secretary of State;
in relation to Scotland, the Scottish Ministers or the Secretary of State;
in relation to Northern Ireland, the Department of Agriculture, Environment and Rural Affairs in Northern Ireland or the Secretary of State.
Regulations under Schedule 6—
made by the Welsh Ministers, may contain only provision which, if contained in an Act of Senedd Cymru, would be within the legislative competence of the Senedd;
made by the Scottish Ministers, may contain only provision which, if contained in an Act of the Scottish Parliament, would be within the legislative competence of the Parliament;
made by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, may contain only provision which, if contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Assembly and would not require the Secretary of State’s consent.
Regulations under Schedule 6 made by the Secretary of State may not contain provision that could be contained in regulations under that Schedule made by another relevant national authority, unless that authority consents.
Regulations under Schedule 6 are subject to the affirmative procedure.
In Schedule 7—
Part 1 confers power on the relevant national authority to make regulations about resource efficiency requirements;
Part 2 confers power on the relevant national authority to make regulations about the enforcement of regulations made under Part 1.
In this section and that Schedule “relevant national authority” means—
in relation to England, the Secretary of State;
in relation to Wales, the Welsh Ministers or the Secretary of State;
in relation to Scotland, the Scottish Ministers or the Secretary of State;
in relation to Northern Ireland, the Department of Agriculture, Environment and Rural Affairs in Northern Ireland or the Secretary of State.
Regulations under Schedule 7—
made by the Welsh Ministers, may contain only provision which, if contained in an Act of Senedd Cymru, would be within the legislative competence of the Senedd;
made by the Scottish Ministers, may contain only provision which, if contained in an Act of the Scottish Parliament, would be within the legislative competence of the Parliament;
made by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, may contain only provision which, if contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Assembly and would not require the Secretary of State’s consent.
Regulations under Schedule 7 made by the Secretary of State may not contain provision that could be contained in regulations under that Schedule made by another relevant national authority, unless that authority consents.
Regulations under Schedule 7 are subject to the affirmative procedure.
Schedule 8 confers power on the relevant national authority to make regulations establishing deposit schemes.
In this section and that Schedule “the relevant national authority” means—
in relation to a deposit scheme relating to the purchase of products in England, the Secretary of State;
in relation to a deposit scheme relating to the purchase of products in Wales, the Welsh Ministers or the Secretary of State;
in relation to a deposit scheme relating to the purchase of products in Northern Ireland, the Department of Agriculture, Environment and Rural Affairs in Northern Ireland or the Secretary of State.
Regulations under Schedule 8—
made by the Welsh Ministers, may contain only provision which, if contained in an Act of Senedd Cymru, would be within the legislative competence of the Senedd;
made by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, may contain only provision which, if contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Assembly and would not require the Secretary of State’s consent.
Regulations under Schedule 8 made by the Secretary of State may not contain provision that could be contained in regulations under that Schedule made by another relevant national authority, unless that authority consents.
Regulations made by a relevant national authority under Schedule 8 are subject to the affirmative procedure if they—
are the first regulations under paragraph 1, or the first regulations under paragraph 5, made by the authority;
provide for conduct to be a criminal offence which is not a criminal offence under existing regulations made by the authority under that Schedule;
provide for conduct to be subject to a civil sanction (within the meaning given by paragraph 5(3) of that Schedule) which is not subject to a civil sanction under existing regulations made by the authority under that Schedule;
increase the amount or maximum amount of a fine or monetary penalty, or change the basis on which such an amount or maximum is to be determined.
Otherwise, regulations under Schedule 8 are subject to the negative procedure.
In this section “deposit scheme” has the meaning it has in Schedule 8.
Schedule 9 confers powers on the relevant national authority to make regulations about charges for single use items.
In this section and that Schedule the “relevant national authority” means—
in relation to England, the Secretary of State;
in relation to Wales, the Welsh Ministers;
in relation to Northern Ireland, the Department of Agriculture, Environment and Rural Affairs in Northern Ireland.
Regulations made by a relevant national authority under Schedule 9 are subject to the affirmative procedure if they—
are the first regulations made by the authority under that Schedule;
contain provision about charging for a new item;
provide for conduct to be subject to a civil sanction (within the meaning of paragraph 9(3) of that Schedule) which is not subject to a civil sanction under existing regulations made by the authority under that Schedule;
increase the amount or maximum amount of a monetary penalty, or change the basis on which such an amount or maximum is to be determined.
Otherwise, regulations under Schedule 9 are subject to the negative procedure.
A “new item” means an item in relation to which there are no existing regulations made by the relevant national authority under Schedule 9.
In Schedule 6 to the Climate Change Act 2008 (power to impose carrier bag charge) after paragraph 6 insert—
Managing waste
The Environmental Protection Act 1990 is amended as follows.
In section 30 (definitions of authorities), after subsection (4) insert—
In section 33ZA (fixed penalty notices), in subsection (12) omit the definition of “English waste collection authority”.
For section 45A substitute—
In section 46(2) (receptacles for household waste) for the words from “subject to” to the end substitute—
In section 47(3) (receptacles for commercial or industrial waste) at the end insert “, but an English waste collection authority may require separate receptacles or compartments of receptacles to be used for the purposes of complying with section 45AZB so far as it applies to waste of the kind in question.”
In section 160A(2) (regulations and orders) (as inserted by section 63), in the Table, at the appropriate place insert—
In section 108(15) of the Environment Act 1995 (powers of entry), in the definition of “pollution control functions” in relation to a waste collection authority, in paragraph (a) for “, 45A” substitute “to 45AZD”.
The Environmental Protection Act 1990 is amended in accordance with subsections (2) and (3).
After section 34C insert—
In section 160A(2) (regulations and orders) (as inserted by section 63), in the Table, at the appropriate place insert—
In section 41(1) of the Environment Act 1995 (powers to make charging schemes) after paragraph (d) insert— .
The Waste and Contaminated Land (Northern Ireland) Order 1997 (S.I. 1997/2778 (N.I. 19)) is amended as follows.
After Article 5F insert—
In Article 82 (regulations etc) after paragraph (1A) insert—
The Environmental Protection Act 1990 is amended in accordance with subsections (2) to (4).
After section 62 insert—
In section 75 (meaning of “waste” etc) for subsection (8A) substitute—
In section 160A(2) (regulations and orders) (as inserted by section 63), in the Table, at the appropriate place insert—
In section 41(1) of the Environment Act 1995 (power to make charging schemes), before paragraph (d) insert— .
In section 114 of the Environment Act 1995 (delegation or reference of appeals etc), in subsection (2)(a)(iii) before “, 78L” insert “62ZA(6)(d)”.
The Waste and Contaminated Land (Northern Ireland) Order 1997 (S.I. 1997/2778 (N.I. 19)) is amended as follows.
In Article 30 (special provision with respect to hazardous waste)—
in paragraph (1), for the words from “regulations” to “disposal” substitute “the Department may, by regulations, make provision for, about or connected with the regulation”;
in paragraph (2)—
before sub-paragraph (a) insert— ;
in sub-paragraph (a), after “hazardous waste” insert “or any other activity in relation to such waste”;
after sub-paragraph (g) insert— ;
after that paragraph insert— ;
after paragraph (3) insert—
In Article 82 (regulations etc) after paragraph (1C) (as inserted by section 59) insert—
Section 141 of the Environmental Protection Act 1990 (power to prohibit or restrict the importation or exportation of waste) is amended in accordance with subsections (2) to (8).
In the heading—
for “prohibit or restrict” substitute “regulate”;
after “waste” insert “or the transit of waste for export”.
For subsection (1) substitute—
For subsection (3) substitute—
Omit subsection (4).
In subsection (5)—
omit paragraph (a);
after that paragraph insert— ;
in paragraph (b) omit “prescribed in or under the regulations”;
after paragraph (b) insert— ;
in paragraph (d), for the words from “to” to the end substitute “, with or without modifications, to section 108(4) of the Environment Act 1995 (powers of entry and seizure) on persons authorised by the Secretary of State or a waste regulation authority;”;
in paragraph (e), for “authorities under the regulations” substitute “waste regulation authorities”;
after paragraph (f) insert— ;
after paragraph (g) insert—
After subsection (5A) insert—
In subsection (6), at the appropriate places insert— ; ; ; .
In section 41 of the Environment Act 1995 (power to make schemes imposing charges)—
in subsection (1), for paragraph (d) substitute— ;
after subsection (1) insert—
In regulation 46 of the Transfrontier Shipment of Waste Regulations 2007 (S.I. 2007/1711), omit paragraph (1).
The Environmental Protection Act 1990 is amended as follows.
After section 160 insert—
In section 45B omit subsection (3).
In section 78M omit subsection (7).
In section 161 (regulations, orders and directions)—
for the heading substitute “Directions”;
omit subsections (1) to (4).
Waste enforcement and regulation
The Environment Act 1995 is amended as follows.
In section 41(1) (powers to make charging schemes) after paragraph (m) insert— .
In section 56(1) (interpretation)—
in the definition of “environmental licence”, in the application of Part 1 of the Act in relation to an appropriate agency—
in paragraph (j) for the words from “WEEE” to the end substitute “waste operation (within the meaning of those Regulations),”;
omit paragraphs (l) to (o);
in the definition of “environmental licence”, in the application of Part 1 of the Act in relation to the Scottish Environment Protection Agency, omit paragraphs (l) to (o).
In the Waste and Contaminated Land (Northern Ireland) Order 1997 (S.I. 1997/2778 (N.I. 19)), after Article 76 insert—
Until the repeal of Article 3 of the Producer Responsibility Obligations (Northern Ireland) Order 1998 (S.I. 1998/1762 (N.I. 16)) (“the 1998 Order”) by section 50 of this Act is fully in force, Article 76A(2)(c) of the Waste and Contaminated Land (Northern Ireland) Order 1997 (S.I. 1997/2778 (N.I. 19)) has effect as if the reference to Schedule 4 to this Act included a reference to Article 3 of the 1998 Order.
The Waste Management Licensing Regulations (Northern Ireland) 2003 (S.R. (N.I.) 2003 No. 493) are amended as follows.
In regulation 17 (exemptions from waste management licensing), in paragraph (4)—
in sub-paragraph (b) for “and the fee (if any) required under regulation 18(12) have” substitute “has”;
after sub-paragraph (b) insert
In regulation 18 (registration in connection with exempt activities)—
in paragraph (3)(d) for “a payment of any fee in respect of each place where any such exempt activity is being carried on” substitute “payment, in respect of each place where any such exempt activity is being carried on, of any fee that may be required under regulation 20B”;
in paragraph (9) for “and 47” substitute “, 47 and 49 to 52”;
in paragraph (11)(b) for “specified in accordance with paragraph (12)” substitute “required under regulation 20B”;
omit paragraph (12).
After regulation 20A insert—
Schedule 10 amends legislation about enforcement powers in relation to waste and other environmental matters.
Article 27 of the Waste and Contaminated Land (Northern Ireland) Order 1997 (S.I. 1997/2778 (N.I. 19)) (power to give directions) is amended as follows.
In paragraph (2) omit the words from “with a view” to the end.
After paragraph (2) insert—
In paragraph (3) for “paragraph (1) or (2)” substitute “this Article”.
In paragraph (4), for “of treating or disposing of” substitute “in relation to”.
After paragraph (4) insert—
In paragraph (5) for “paragraph (1) or (2)” substitute “this Article”.
In paragraph (6) for “paragraph (1) or (2)” substitute “this Article”.
In paragraph (7) for the words from “, where” to the end substitute “pay any costs mentioned in paragraph (4) or (4A).”
For paragraph (8) substitute—
Part 4 of the Environmental Protection Act 1990 is amended as follows.
In Section 88 (fixed penalty notices for leaving litter), for subsection (11) substitute—
After section 88A insert—
In section 98(1A) (definition of appropriate person), in paragraph (b) for “National Assembly for Wales” substitute “Welsh Ministers”.
The Environmental Protection Act 1990 is amended as follows.
In section 33ZA (fixed penalty notices relating to depositing, treatment or disposal of waste: England)—
in subsection (10), for the words from “the period” to the end substitute “a period specified by the authority.”;
after that subsection insert—
In section 33ZB (fixed penalty notices relating to depositing, treatment or disposal of waste: Wales)—
in subsection (10), for the words from “the period” to the end substitute “a period specified by the authority.”;
after that subsection insert—
In section 34ZA (fixed penalty notices relating to transfer of household waste: England)—
in subsection (9), for the words from “within” to the end substitute “before the end of a period specified by the authority.”;
after that subsection insert—
In section 34ZB (fixed penalty notices relating to transfer of household waste: Wales)—
in subsection (8), for the words from “the period” to the end substitute “a period specified by the authority.”;
after that subsection insert—
In Schedule 1 to the Pollution Prevention and Control Act 1999, in paragraph 4 (permits)—
the existing text becomes sub-paragraph (1);
after that sub-paragraph insert—
In Article 2(2) of the Waste and Contaminated Land (Northern Ireland) Order 1997 (S.I. 1997/2778 (N.I. 19)), in the definition of “the Department”, for “the Department of the Environment” substitute “the Department of Agriculture, Environment and Rural Affairs”.
To the extent that immediately before the commencement of this section a reference in that Order to “the Department” was to be read as being or including a reference to a department other than the Department of Agriculture, Environment and Rural Affairs (by virtue of Article 9(1) of the Departments (Transfer of Functions) Order (Northern Ireland) 2016 (S.R. (N.I.) 2016 No. 76) or otherwise), it is to continue to be so read.
Air quality and environmental recall
Air quality
Schedule 11 contains amendments of Part 4 of the Environment Act 1995 (air quality).
Schedule 12 makes provision—
for imposing financial penalties for the emission of smoke in smoke control areas in England,
about offences relating to the sale and acquisition of solid fuel in England,
for applying smoke control orders to vessels in England, and
for authorised fuels and exempted fireplaces to be listed in Wales.
Environmental recall of motor vehicles etc
The Secretary of State may by regulations make provision for, about or connected with the recall of relevant products that do not meet relevant environmental standards.
A “relevant product” is a product specified or described in the regulations.
Only the following types of product may be specified or described in the regulations—
a mechanically propelled vehicle;
a part of a mechanically propelled vehicle;
an engine that is, or forms part of, machinery that is transportable (including by way of self-propulsion);
a part of such an engine, or any other part of such machinery that is connected with the operation of the engine.
A “relevant environmental standard” means a standard that— and the regulations may provide that a reference in the regulations to a standard is to be construed as a reference to that standard as it has effect from time to time.
by virtue of any enactment, a relevant product must meet,
is relevant to the environmental impact of that product, and
is specified in the regulations,
In subsection (4)(a) “enactment” has the same meaning as in the European Union (Withdrawal) Act 2018.
In subsection (4)(b) “environmental impact”, in relation to a relevant product, includes any impact on the environment caused by noise, heat or vibrations or any other kind of release of energy or emissions resulting from the use of the product.
Regulations under subsection (1) are subject to the affirmative procedure.
Regulations under section 74(1) may make provision for, about or connected with a power of the Secretary of State to give a compulsory recall notice to a manufacturer or distributor of a relevant product.
A “compulsory recall notice” is a notice that requires the recipient of the notice to organise the return of a relevant product to the recipient, or to any other person specified in the notice, from persons who have been supplied (whether or not directly by the recipient) with the product.
Provision for the Secretary of State to give a compulsory recall notice in relation to a relevant product must not permit the giving of such a notice unless the Secretary of State has reasonable grounds for believing the product does not meet a relevant environmental standard.
The regulations may provide that, where a relevant product forms part of another product, a compulsory recall notice may require its recipient to organise the return of that other product (whether or not it is a relevant product).
The regulations may provide that a compulsory recall notice may impose supplementary requirements on its recipient.
The regulations may confer a power on the Secretary of State to give a recipient of a compulsory recall notice a further notice (a “supplementary notice”) that imposes supplementary requirements on its recipient.
The following are examples of supplementary requirements—
to secure that at least a specified proportion of products subject to a compulsory recall notice that are manufactured or distributed by the recipient are returned in accordance with the notice;
to publicise a compulsory recall notice;
to provide information to the Secretary of State;
a prohibition on supplying, or offering or agreeing to supply, a product subject to a compulsory recall notice;
to pay such compensation to a person who returns a product subject to a compulsory recall notice as may be specified;
to make other specified arrangements for the purpose of mitigating the effect of returning a product on the person who returns it;
to destroy, or arrange for the destruction of, a returned product;
to take steps to modify, or arrange for the modification of, a returned product for the purpose of ensuring that the product complies with relevant environmental standards;
to organise the return of a returned product to the person who initially returned it;
to otherwise dispose of the product in such manner as may be specified.
In subsection (7) “specified” means specified, or described, in a compulsory recall notice or a supplementary notice.
The regulations may—
make provision about appeals against a decision to give a compulsory recall notice or a supplementary notice;
make provision about the withdrawal of compulsory recall notices and supplementary notices (including provision about the effect of withdrawal).
Regulations under section 74(1) may impose a duty on a manufacturer or distributor of a relevant product to notify the Secretary of State if the person has reason to consider that the product does not meet a relevant environmental standard.
The regulations may confer a power on the Secretary of State—
to require the provision of information by a manufacturer or distributor of a relevant product for the purpose of enabling the Secretary of State to consider whether, or how, to exercise a power to give a compulsory recall notice or a supplementary notice;
to require the provision of samples of relevant products by such a manufacturer or distributor for that purpose.
The regulations may make provision for, about or connected with the enforcement of requirements imposed by or under the regulations including provision—
for, about or connected with the designation of a person to exercise functions in connection with the enforcement of the requirements (“the enforcement authority”);
for the functions of the enforcement authority to be exercised on its behalf by persons authorised in accordance with the regulations;
requiring the provision of information by a manufacturer or distributor of a relevant product for purposes connected with the enforcement of the requirements;
requiring the provision of samples of relevant products by such a manufacturer or distributor for those purposes;
for, about or connected with the imposition of financial penalties by the enforcement authority;
for the amount of financial penalties to be determined by the enforcement authority in accordance with the regulations;
for such a determination to be made by reference to factors specified in the regulations which may include, for example, the turnover of a business or the costs of complying with the requirement being enforced (and the regulations may provide that the amount of a financial penalty may exceed the amount of those costs);
about appeals against the imposition of a financial penalty.
The regulations may confer powers on the enforcement authority— where the authority has reasonable grounds for suspecting that the manufacturer or distributor has failed to comply with a requirement imposed by or under the regulations.
to enter the premises of a manufacturer or distributor of a relevant product;
to take documents or records from those premises (or make copies of such documents or records);
to take samples of relevant products found on those premises,
The regulations may make provision about warrants in connection with any power conferred by virtue of subsection (4).
In sections 74 to 76— “compulsory recall notice” has the meaning given by section 75(2); “distributor” has the meaning given by regulations under section 74(1), but may only include a person acting in the course of business; “manufacturer” has the meaning given by regulations under section 74(1) which may define that term by reference (in particular) to— a person’s involvement in the manufacture of a relevant product, or a person’s relationship with a person involved in the manufacture of a relevant product; “relevant environmental standard” has the meaning given by section 74(4); “relevant product” has the meaning given by section 74(2); “supplementary notice” has the meaning given by section 75(6).
Water
Plans and proposals
Chapter 1 of Part 3 of the Water Industry Act 1991 (general duties of water undertakers) is amended as follows.
In section 37A (water resources management plans)—
in the heading omit “: preparation and review”;
in subsection (3)(b) omit from “(also” to the end;
in subsection (4)—
at the beginning insert “Section 39F contains provision about”;
omit “is set out in section 37B below”;
in subsection (6) omit the words after paragraph (c);
omit subsection (8);
omit subsection (10).
Omit sections 37B and 37C (water resources management plans: publication and provision of information).
In section 37D (water resources management plans: supplementary)—
in subsection (1), in the words before paragraph (a), for “, 37AA or 37B” substitute “or 37AA”;
in subsection (3)—
in paragraph (a) for “to 37C” substitute “and 37AA”;
omit paragraph (b) (and the “and” before it).
In section 39B (drought plans)—
in the heading omit “: preparation and review”;
in subsection (4)(b) omit from “(also” to the end;
for subsection (5) substitute— ;
in subsection (6)—
in paragraph (c) omit from “in accordance” to the end;
omit the words after paragraph (c);
omit subsection (7);
in subsection (9), in the words before paragraph (a), omit from “(including” to “above)”.
Omit section 39C (drought plans: provision of information).
After section 39D insert—
In the Water Industry Act 1991, after section 94 insert—
Storm overflows
In Part 4 of the Water Industry Act 1991 (sewerage services), after Chapter 3 insert—
In Chapter 4 of Part 4 of the Water Industry Act 1991 (as inserted by section 80 above), after section 141D insert—
In Chapter 4 of Part 4 of the Water Industry Act 1991, after section 141DA insert—
In section 213 of the Water Industry Act 1991 (power to make regulations) in subsection (1), for “or 105A” substitute “105A, 141DA or 141DB”.
In Chapter 4 of Part 4 of the Water Industry Act 1991, after section 141DB insert—
The Secretary of State must prepare a report on—
the actions that would be needed to eliminate discharges from the storm overflows of sewerage undertakers whose areas are wholly or mainly in England, and
the costs and benefits of those actions.
The Secretary of State must publish the report before 1 September 2022.
The report must be laid before Parliament once it is published.
Regulation of water and sewerage undertakers
In the Water Industry Act 1991, after section 27 insert—
Part 2 of the Water Industry Act 1991 (appointment and regulation of undertakers) is amended as follows.
After section 12 insert—
For the italic heading before section 13 substitute— .
In section 13 (modification by agreement), before subsection (1) insert—
Before section 17 insert— .
In paragraph 35(3) of Schedule 4 to the Enterprise and Regulatory Reform Act 2013 (CMA Panels), in the definition of “specialist utility functions”, after paragraph (c) insert— .
In section 216 of the Water Industry Act 1991 (service of documents) after subsection (4) insert—
Abstraction
In the Water Resources Act 1991, after section 61 insert—
In section 27 of the Water Act 2003 (withdrawal of compensation for certain revocations and variations), after subsection (3) insert—
Omit paragraph 30(4) of Schedule 8 to the Water Act 2014.
Water quality
The Secretary of State may by regulations amend or modify any legislation to which this section applies for the purpose of—
making provision about the substances to be taken into account in assessing the chemical status of surface water or groundwater;
specifying standards in relation to those substances or in relation to the chemical status of surface water or groundwater.
This section applies to —
the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 (S.I. 2017/407);
the Water Environment (Water Framework Directive) (Northumbria River Basin District) Regulations 2003 (S.I. 2003/3245);
the Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004 (S.I. 2004/99);
the Groundwater Regulations (Northern Ireland) 2009 (S.R. (N.I.) 2009 No. 254);
the Water Framework Directive (Classification, Priority Substances and Shellfish Waters) Regulations (Northern Ireland) 2015 (S.R. (N.I.) 2015 No. 351);
the Water Environment (Water Framework Directive) Regulations (Northern Ireland) 2017 (S.R. (N.I.) 2017 No. 81);
any regulations modifying that legislation made under or by virtue of the European Union (Withdrawal) Act 2018.
Regulations under subsection (1) may also, in connection with provision made under subsection (1)(a) or (b), amend or modify legislation to which this section applies so as to make provision—
setting objectives in relation to the substances about which the provision is made, or in relation to the chemical status of surface water or groundwater (including objectives to maintain specified standards or to achieve specified standards by specified dates);
about how objectives set by the regulations are to be met, including provision requiring, or otherwise relating to, measures to be taken to achieve those objectives;
requiring, or otherwise relating to, the monitoring or assessment of any matter relating to the chemical status of surface water or the chemical status of groundwater;
about the classification of bodies of water according to their chemical status or any matter relating to their chemical status.
Regulations under this section may not contain provision that could be contained in— unless those Ministers or that Department consents.
regulations made by the Welsh Ministers under section 90, or
regulations made by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland under section 91,
Regulations under this section may not contain provision applying to that part of a Scottish cross-border river basin district which is in Scotland, unless the Scottish Ministers consent.
Before making regulations under this section the Secretary of State must consult—
if the regulations apply to England (or part of England), the Environment Agency;
if the regulations do not require the consent of the Welsh Ministers but apply to any part of a Welsh cross-border river basin district, the Welsh Ministers;
if the regulations do not require the consent of the Scottish Ministers but apply to any part of a Scottish cross-border river basin district, the Scottish Ministers;
any persons or bodies appearing to the Secretary of State to represent the interests of those likely to be affected by the regulations.
A “Scottish cross-border river basin district” is a river basin district which is partly in England and partly in Scotland.
A “Welsh cross-border river basin district” is a river basin district which is partly in England and partly in Wales.
Regulations under this section are subject to the negative procedure.
The Welsh Ministers may by regulations amend or modify any legislation to which this section applies for the purpose of—
making provision about the substances to be taken into account in assessing the chemical status of surface water or groundwater;
specifying standards in relation to those substances or in relation to the chemical status of surface water or groundwater.
This section applies to —
the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 (S.I. 2017/407);
any regulations modifying that legislation made under or by virtue of the European Union (Withdrawal) Act 2018.
Regulations under subsection (1) may also, in connection with provision made under subsection (1)(a) or (b), amend or modify legislation to which this section applies so as to make provision—
setting objectives in relation to the substances about which the provision is made, or in relation to the chemical status of surface water or groundwater (including objectives to maintain specified standards or to achieve specified standards by specified dates);
about how objectives set by the regulations are to be met, including provision requiring, or otherwise relating to, measures to be taken to achieve those objectives;
requiring, or otherwise relating to, the monitoring or assessment of any matter relating to the chemical status of surface water or the chemical status of groundwater;
about the classification of bodies of water according to their chemical status or any matter relating to their chemical status.
Before making regulations under this section the Welsh Ministers must consult—
the Natural Resources Body for Wales;
if the regulations apply to any part of a river basin district which is partly in Wales and partly in England, the Secretary of State;
any persons or bodies appearing to the Welsh Ministers to represent the interests of those likely to be affected by the regulations.
Regulations under this section may contain only provision which, if contained in an Act of Senedd Cymru, would (disregarding paragraphs 8(1)(c) and 11(1)(a) and (c) of Schedule 7B to the Government of Wales Act 2006) be within the legislative competence of the Senedd.
Regulations under this section are subject to the negative procedure.
The Department of Agriculture, Environment and Rural Affairs in Northern Ireland may by regulations amend or modify any legislation to which this section applies for the purpose of—
making provision about the substances to be taken into account in assessing the chemical status of surface water or groundwater;
specifying standards in relation to those substances or in relation to the chemical status of surface water or groundwater.
This section applies to—
the Groundwater Regulations (Northern Ireland) 2009 (S.R. (N.I.) 2009 No. 254);
the Water Framework Directive (Classification, Priority Substances and Shellfish Waters) Regulations (Northern Ireland) 2015 (S.R. (N.I.) 2015 No. 351);
the Water Environment (Water Framework Directive) Regulations (Northern Ireland) 2017 (S.R. (N.I.) 2017 No. 81);
any regulations modifying that legislation made under or by virtue of the European Union (Withdrawal) Act 2018.
Regulations under subsection (1) may also, in connection with provision made under subsection (1)(a) or (b), amend or modify legislation to which this section applies so as to make provision—
setting objectives in relation to the substances about which the provision is made, or in relation to the chemical status of surface water or groundwater (including objectives to maintain specified standards or to achieve specified standards by specified dates);
about how objectives set by the regulations are to be met, including provision requiring, or otherwise relating to, measures to be taken to achieve those objectives;
requiring, or otherwise relating to, the monitoring or assessment of any matter relating to the chemical status of surface water or the chemical status of groundwater;
about the classification of bodies of water according to their chemical status or any matter relating to their chemical status.
Before making regulations under this section the Department must consult any persons or bodies appearing to the Department to represent the interests of those likely to be affected by the regulations.
Regulations under this section may contain only provision which, if contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Assembly and would not require the Secretary of State’s consent.
Regulations under this section are subject to the negative procedure.
The Secretary of State may by regulations amend or modify the Solway Tweed Regulations in accordance with this section.
The “Solway Tweed Regulations” means the Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004 (S.I. 2004/99).
The regulations may provide for a function under the Solway Tweed Regulations which is exercisable (to any extent)— to be exercised (to any extent) in another of those ways.
by the Secretary of State and the Scottish Ministers jointly,
by the Secretary of State and the Scottish Ministers concurrently, or
only by the Secretary of State or the Scottish Ministers,
The regulations may provide for a function under the Solway Tweed Regulations which is exercisable (to any extent)— to be exercised (to any extent) in another of those ways.
by the Environment Agency and SEPA jointly,
by the Environment Agency and SEPA concurrently, or
only by the Environment Agency or SEPA,
The regulations may make provision changing the geographical area in relation to which a function under the Solway Tweed Regulations is exercisable (or is exercisable by a specified person).
The regulations may also provide—
for a function within subsection (3) to be exercisable only with the consent of, or after consultation with, the Secretary of State or the Scottish Ministers;
for a function within subsection (4) to be exercisable only with the consent of, or after consultation with, the Environment Agency, SEPA, the Secretary of State or the Scottish Ministers.
The Secretary of State may make regulations under this section only with the consent of the Scottish Ministers.
Regulations under this section are subject to the negative procedure.
In this section “SEPA” means the Scottish Environment Protection Agency.
In sections 89 to 92— “groundwater” has the same meaning as in the Water Framework Directive; “river basin district” means an area identified as such by or under any legislation to which the section in question applies; “surface water” has the same meaning as in the Water Framework Directive; “Water Framework Directive” means Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy.
Land drainage
Section 37 of the Land Drainage Act 1991 (apportionment of internal drainage board’s drainage expenses) is amended in accordance with subsections (2) and (3).
In subsection (5), in the words before paragraph (a), after “shall” insert “, subject to subsection (5ZA)”.
After subsection (5) insert—
In section 65(2) of that Act (regulations) after “Subject to” insert “section 37(5ZH)”.
Section 83 of the Environment (Wales) Act 2016 (which amends the Land Drainage Act 1991) is amended as follows.
In subsection (2)—
for paragraph (a) substitute— ;
in paragraph (b)—
for the inserted subsection (5A) substitute— ;
in each of the inserted subsections (5B) and (5C) for “The regulations” substitute “Regulations under subsection (5A)”;
for the inserted subsection (5D) substitute—
For subsection (3) substitute—
The Land Drainage Act 1991 is amended as follows.
In section 41 (rates charged by reference to annual value of agricultural land and buildings), in subsection (2), at the end insert—
After section 41 insert—
In section 42 (determination of annual value)—
in subsection (4) after “under this section” insert “or under regulations under section 41A(1) above”;
in subsection (5) after “subsections (1) and (2) above” insert “or under regulations under section 41A above”.
In section 45 (appeals against determinations of annual value)—
in subsection (1) after “determination under” insert “regulations under section 41A above or a determination under”;
in subsection (3)(b) after “determination under” insert “regulations under section 41A above or a fresh determination under”;
in subsection (7) after “determination under” insert “regulations under section 41A above or a determination under”.
In section 65(2) (regulations) after “section 37A(6) and (7),” insert “section 41A(13) and (14) and”.
The Land Drainage Act 1991 is amended as follows.
After section 37 insert—
In section 65(2) (regulations) after “and (5E),” insert “section 37A(6) and (7),”.
In section 70 (confidentiality of information obtained by Environment Agency and Natural Resources Body for Wales)—
the existing provision becomes subsection (1);
after that subsection insert—
In section 72(1) (interpretation), at the appropriate places insert— ; ; ; ; .
Nature and biodiversity
Biodiversity gain in planning
Schedule 14 makes provision for biodiversity gain to be a condition of planning permission in England.
Schedule 15 makes provision about biodiversity gain in relation to development consent for nationally significant infrastructure projects.
The Secretary of State may by regulations make provision for and in relation to a register of biodiversity gain sites (“the biodiversity gain site register”).
A biodiversity gain site is land where—
a person is required under a conservation covenant or planning obligation to carry out works for the purpose of habitat enhancement,
that or another person is required to maintain the enhancement for at least 30 years after the completion of those works, and
for the purposes of Schedule 7A to the Town and Country Planning Act 1990 the enhancement is made available to be allocated (conditionally or unconditionally, and whether for consideration or otherwise) in accordance with the terms of the covenant or obligation to one or more developments for which planning permission is granted.
Regulations under this section must provide for the information in the register to be accessible to members of the public.
Regulations under this section may in particular make provision about—
the person who is to establish and maintain the biodiversity gain site register (who may be the Secretary of State, Natural England or another person);
circumstances in which land is or is not eligible to be registered;
applications to register land in the register;
the information to be recorded in relation to any land that is registered;
amendments to the register;
removal of land from the register;
fees payable in respect of any application under the regulations.
Provision under subsection (4)(c) may in particular include provision about—
who is entitled to apply to register land in the biodiversity gain site register;
the procedure to be followed in making an application;
the information to be provided in respect of an application;
how an application is to be determined;
appeals against the rejection of an application;
financial penalties for the supply of false or misleading information in connection with an application.
Provision under subsection (4)(d) may in particular require the recording of the following in relation to any land registered in the biodiversity gain site register—
the location and area of the land;
the works to be carried out on the land and the habitat enhancement to be achieved by them;
information about the habitat of the land before the commencement of those works;
the person who applied to register the land and (if different) the person by whom the requirement to carry out the works or maintain the habitat enhancement is enforceable;
any development to which any of the habitat enhancement has been allocated;
the biodiversity value (for the purposes of Schedule 7A to the Town and Country Planning Act 1990 or Schedule 2A to the Planning Act 2008) of any such habitat enhancement in relation to any such development.
Regulations under this section may amend subsection (2)(b) so as to substitute for the period for the time being specified there a different period of at least 30 years.
Regulations under this section making provision under subsection (4)(g) or (5)(f) are subject to the affirmative procedure.
Other regulations under this section are subject to the negative procedure.
The Secretary of State must keep under review—
the supply of land for registration in the biodiversity gain site register;
whether the period specified in subsection (2)(b) or in paragraph 9(3) of Schedule 7A to the Town and Country Planning Act 1990 can be increased under subsection (7) or paragraph 9(4) of that Schedule without adversely affecting that supply.
In this section “development”, “habitat enhancement”, “planning obligation” and “planning permission” have the same meanings as in Schedule 7A to the Town and Country Planning Act 1990.
The Secretary of State may make arrangements under which a person who is entitled to carry out the development of any land may purchase a credit from the Secretary of State for the purpose of meeting the biodiversity gain objective referred to in Schedule 7A to the Town and Country Planning Act 1990 or Schedule 2A to the Planning Act 2008.
A credit is to be regarded for the purposes of that Schedule as having such biodiversity value as is determined under the arrangements.
The arrangements may in particular include arrangements relating to—
applications to purchase credits;
the amount payable in respect of a credit of a given value;
proof of purchase;
reimbursement for credits purchased for development which is not carried out.
In determining the amount payable under the arrangements for a credit of a given value the Secretary of State must have regard to the need to determine an amount which does not discourage the registration of land in the biodiversity gain sites register.
The Secretary of State must publish information about the arrangements, including in particular the amount payable for credits.
The Secretary of State may use payments received under arrangements under this section for the following purposes (only)—
carrying out works, or securing the carrying out of works, for the purpose of habitat enhancement (within the meaning of Part 7A of the Town and Country Planning Act 1990) on land in England;
purchasing interests in land in England with a view to carrying out works, or securing the carrying out of works, for that purpose;
operating or administering the arrangements.
The references to works in subsection (6) do not include works which the Secretary of State is required to carry out apart from this section by virtue of any enactment.
The Secretary of State must publish reports relating to the discharge of the Secretary of State’s functions under subsections (1) and (6).
A report must relate to a period not exceeding a year which—
in the case of the first report, begins on the date on which Schedule 7A to the Town and Country Planning Act 1990 comes into force in relation to any development (within the meaning of Part 3 of that Act), and
in the case of any subsequent report, begins on the day after the last day of the period to which the previous report related.
A report must set out—
the total payments received under arrangements under this section in the period to which the report relates,
how those payments have been used, and
where those payments have been used for the purpose of carrying out or securing the carrying out of works for the purpose of habitat enhancement, the projected biodiversity value of the habitat enhancement at such time or times after completion of the works as the Secretary of State considers it appropriate to specify.
Biodiversity objective and reporting
Section 40 of the Natural Environment and Rural Communities Act 2006 (duty to conserve biodiversity) is amended in accordance with subsections (2) to (7).
In the heading, after “conserve” insert “and enhance”.
For subsections (A1) and (1) substitute—
In subsection (2) for “subsection (1)” substitute “subsections (1) and (1A)”.
After subsection (2) insert—
For subsection (3) substitute—
After subsection (5) insert—
In section 41 of that Act (biodiversity lists and action (England))—
in subsection (1), after “conserving” insert “or enhancing”;
in subsection (3) for “and (2)” substitute “and (1A)”.
After section 40 of the Natural Environment and Rural Communities Act 2006 insert—
Local nature recovery strategies
There are to be local nature recovery strategies for areas in England.
Together the local nature recovery strategies are to cover the whole of England.
The Secretary of State is to determine the areas within England to which individual local nature recovery strategies are to relate.
The area of a local authority, other than a county council, may not be split between local nature recovery strategies.
Section 40(2A) of the Natural Environment and Rural Communities Act 2006 (duty to conserve biodiversity) makes provision about the duties of public authorities in relation to local nature recovery strategies.
A local nature recovery strategy for an area (“the strategy area”) is to be prepared and published by the responsible authority.
The responsible authority for a local nature recovery strategy is such one of the following authorities as is appointed by the Secretary of State—
a local authority whose area is, or is within, the strategy area;
the Mayor of London;
the mayor for the area of a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009;
a National Park authority in England;
the Broads Authority;
Natural England.
A local nature recovery strategy is to be reviewed and republished from time to time by the responsible authority.
The Secretary of State may by regulations make provision about the procedure to be followed in the preparation and publication, and review and republication, of local nature recovery strategies.
Regulations under this section may, for example, include provision—
requiring the provision of information by a local authority whose area is, or is within, the strategy area but which is not the responsible authority;
for a local nature recovery strategy to be agreed by all of the local authorities whose areas are within the strategy area;
for the procedure for reaching such agreement and for the resolution of disagreements (including resolution by the Secretary of State or by a public inquiry);
for consultation, including consultation of members of the public;
for the times at or after which a local nature recovery strategy is to be reviewed and republished.
Regulations under this section are subject to the negative procedure.
A local nature recovery strategy relating to an area (“the strategy area”) is to include—
a statement of biodiversity priorities for the strategy area, and
a local habitat map for the whole strategy area or two or more local habitat maps which together cover the whole strategy area.
The statement of biodiversity priorities referred to in subsection (1)(a) is to include—
a description of the strategy area and its biodiversity,
a description of the opportunities for recovering or enhancing biodiversity, in terms of habitats and species, in the strategy area,
the priorities, in terms of habitats and species, for recovering or enhancing biodiversity (taking into account the contribution that recovering or enhancing biodiversity can also make to other environmental benefits), and
proposals as to potential measures relating to those priorities.
A local habitat map referred to in subsection (1)(b) is a map identifying—
national conservation sites in the strategy area,
any nature reserves in the strategy area provided under section 21 of the National Parks and Access to the Countryside Act 1949, and
other areas in the strategy area which in the opinion of the responsible authority—
are, or could become, of particular importance for biodiversity, or
are areas where the recovery or enhancement of biodiversity could make a particular contribution to other environmental benefits.
A local habitat map which does not relate to the whole of the strategy area must relate to the area of one or more local authorities within the strategy area.
The Secretary of State may issue guidance as to—
information to be included in a local nature recovery strategy pursuant to the requirements in subsections (1) to (3), and
any other matters to be included in a local nature recovery strategy.
A responsible authority must have regard to the guidance when preparing a local nature recovery strategy.
The Secretary of State must lay before Parliament, and publish, the guidance.
For the purpose of assisting responsible authorities in their preparation of local nature recovery strategies, the Secretary of State must prepare and publish a national habitat map for England.
The national habitat map must in particular identify—
national conservation sites, and
other areas that in the opinion of the Secretary of State are of particular importance for biodiversity.
The Secretary of State may from time to time review and republish the national habitat map.
The Secretary of State must inform a responsible authority of any area in the authority’s strategy area which falls within subsection (5).
An area falls within this subsection if in the Secretary of State’s opinion—
the area could be of greater importance for biodiversity, or is an area where the recovery or enhancement of biodiversity could make a contribution to other environmental benefits, and
the area could contribute to the establishment of a network of areas across England for the recovery and enhancement of biodiversity in England as a whole.
The Secretary of State must provide a responsible authority with any other information—
that is held by the Secretary of State, and
that the Secretary of State considers might assist the authority in preparing a local nature recovery strategy.
“Local authority” means—
a county or district council in England;
a London borough council;
the Common Council of the City of London;
the Council of the Isles of Scilly.
“National conservation site” means—
a site of special scientific interest, within the meaning of Part 2 of the Wildlife and Countryside Act 1981;
a national nature reserve declared in accordance with section 35 of that Act;
a Ramsar site, within the meaning of section 37A of that Act;
a marine conservation zone designated under section 116 of the Marine and Coastal Access Act 2009;
a European site, within the meaning of regulation 8 of the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012).
Conservation
Natural England may prepare and publish a strategy for improving the conservation status of any species of fauna or flora.
A strategy under subsection (1) is called a “species conservation strategy”.
A species conservation strategy must relate to an area (the “strategy area”) consisting of—
England, or
any part of England.
A species conservation strategy for a species may in particular—
identify areas or features in the strategy area which are of importance to the conservation of the species,
identify priorities in relation to the creation or enhancement of habitat for the purpose of improving the conservation status of the species in the strategy area,
set out how Natural England proposes to exercise its functions in relation to the species across the whole of the strategy area or in any part of it for the purpose of improving the conservation status of the species in the strategy area,
include Natural England’s opinion on the giving by any other public authority of consents or approvals which might affect the conservation status of the species in the strategy area, and
include Natural England’s opinion on measures that it would be appropriate to take to avoid, mitigate or compensate for any adverse impact on the conservation status of the species in the strategy area that may arise from a plan, project or other activity.
Natural England may, from time to time, amend a species conservation strategy.
A local planning authority in England and any prescribed authority must co-operate with Natural England in the preparation and implementation of a species conservation strategy so far as relevant to the authority’s functions.
The Secretary of State may give guidance to local planning authorities in England and to prescribed authorities as to how to discharge the duty in subsection (6).
The Secretary of State must lay before Parliament, and publish, the guidance.
A local planning authority in England and any prescribed authority must in the exercise of its functions have regard to a species conservation strategy so far as relevant to its functions.
In this section—“England” includes the territorial sea adjacent to England, which for this purpose does not include—any part of the territorial sea adjacent to Wales for the general or residual purposes of the Government of Wales Act 2006 (see section 158 of that Act), or any part of the territorial sea adjacent to Scotland for the general or residual purposes of the Scotland Act 1998 (see section 126 of that Act);“local planning authority” means a person who is a local planning authority for the purposes of any provision of Part 3 of the Town and Country Planning Act 1990;“prescribed authority” means an authority exercising functions of a public nature in England which is specified for the purposes of this section by regulations made by the Secretary of State.
Regulations under subsection (10) are subject to the negative procedure.
Natural England may prepare and publish a strategy for—
improving the conservation and management of a protected site, and
managing the impact of plans, projects or other activities (wherever undertaken) on the conservation and management of the protected site.
A strategy under subsection (1) is called a “protected site strategy”.
A “protected site” means— to the extent the site or zone is within England.
a European site,
a site of special scientific interest, or
a marine conservation zone,
A protected site strategy for a protected site may in particular—
include an assessment of the impact that any plan, project or other activity may have on the conservation or management of the protected site (whether assessed individually or cumulatively with other activities),
include Natural England’s opinion on measures that it would be appropriate to take to avoid, mitigate or compensate for any adverse impact on the conservation or management of the protected site that may arise from a plan, project or other activity,
identify any plan, project or other activity that Natural England considers is necessary for the purposes of the conservation or management of the protected site, and
cover any other matter which Natural England considers is relevant to the conservation or management of the protected site.
In preparing a protected site strategy for a protected site, Natural England must consult—
any local planning authority in England which exercises functions in respect of an area—
within which any part of the protected site is located, or
within which a plan, project or other activity that Natural England considers may have an adverse impact on the conservation or management of the protected site is being, or is proposed to be, undertaken,
any public authority in England—
that is undertaking, or proposing to undertake, a plan, project or other activity that Natural England considers may have an adverse impact on the conservation or management of the protected site,
the consent or approval of which is required in respect of a plan, project or other activity that Natural England considers may have an adverse impact on the conservation or management of the protected site, or
that Natural England considers may otherwise be affected by the strategy,
any IFC authority in England which exercises functions in respect of an area—
the conservation or management of which Natural England considers may be affected by the strategy, or
the sea fisheries resources of which Natural England considers may be affected by the strategy,
the Marine Management Organisation, where—
any part of the protected site is within the MMO’s area, or
Natural England considers any part of the MMO’s area may otherwise be affected by the strategy,
the Environment Agency,
the Secretary of State, and
any other person that Natural England considers should be consulted in respect of the strategy, including the general public or any section of it.
In subsections (4) and (5), a reference to an adverse impact on the conservation or management of a protected site includes—
in relation to a European site, anything which adversely affects the integrity of the site,
in relation to a site of special scientific interest, anything which is likely to adversely affect the flora, fauna or geological or physiographical features by reason of which the site is of special interest,
in relation to a marine conservation zone, anything which hinders the conservation objectives stated for the zone pursuant to section 117(2) of the Marine and Coastal Access Act 2009, and
any other thing which causes deterioration of natural habitats and the habitats of species as well as disturbance of the species in the protected site, in so far as such disturbance could be significant in relation to the conservation or management of the protected site.
A person whom Natural England consults under subsection (5)(a) to (e) must co-operate with Natural England in the preparation of a protected site strategy so far as relevant to the person’s functions.
The Secretary of State may give guidance as to how to discharge the duty in subsection (7).
The Secretary of State must lay before Parliament, and publish, the guidance.
A person must have regard to a protected site strategy so far as relevant to any duty which the person has under—
the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012),
sections 28G to 28I of the Wildlife and Countryside Act 1981, or
Natural England may, from time to time, amend a protected site strategy.
The duty to consult a person under subsection (5) also applies when Natural England amends a protected site strategy under subsection (11) so far as the amendment is relevant to the person’s functions.
In this section— “England” has the meaning given in section 109; “European site” has the meaning given in regulation 8 of the Conservation of Habitats and Species Regulations 2017; “IFC authority” means an inshore fisheries and conservation authority created under section 150 of the Marine and Coastal Access Act 2009; “local planning authority” has the meaning given in section 109; “marine conservation zone” means an area designated as a marine conservation zone under section 116(1) of the Marine and Coastal Access Act 2009; “MMO’s area” has the meaning given in section 2(12) of the Marine and Coastal Access Act 2009; “public authority” has the meaning given in section 40(4) of the Natural Environment and Rural Communities Act 2006; “sea fisheries resources” has the meaning given in section 153(10) of the Marine and Coastal Access Act 2009; “site of special scientific interest” means an area notified under section 28(1) of the Wildlife and Countryside Act 1981.
In section 10 of the Wildlife and Countryside Act 1981 (exceptions to section 9 of that Act), in subsection (1)—
in paragraph (a), omit the final “or”;
at the end insert .
In section 16 of that Act (power to grant licences), in subsection (3)—
in paragraph (h), omit the final “or”;
at the end insert .
In that section, after subsection (3A) insert—
In that section, in subsections (5A)(c) and (6)(b), after “two years,” insert “or in the case of a licence granted by Natural England five years,”.
In that section, in subsection (9)(c), after “to (e)” insert “or (j)”.
In the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012), in regulation 55(10), for “two years” substitute—
Habitats Regulations
The Secretary of State may by regulations amend the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012) (the “Habitats Regulations”), as they apply in relation to England, for the purposes in subsection (2).
The purposes are—
to require persons within regulation 9(1) of the Habitats Regulations to exercise functions to which that regulation applies— instead of exercising them to secure compliance with the requirements of the Directives;
to comply with requirements imposed by regulations under this section, or
to further objectives specified in regulations under this section,
to require persons within regulation 9(3) of the Habitats Regulations, when exercising functions to which that regulation applies, to have regard to matters specified by regulations under this section instead of the requirements of the Directives.
The regulations may impose requirements, or specify objectives or matters, relating to—
improvements to the natural environment which relate to biodiversity and are set out in an environmental improvement plan.
The regulations may impose any other requirements, or specify any other objectives or matters, relating to the conservation or enhancement of biodiversity that the Secretary of State considers appropriate.
Regulations under this section may also, in connection with provision made for the purposes in subsection (2), amend other provisions of the Habitats Regulations, as they apply in relation to England, which refer to requirements, objectives or provisions of the Directives.
In making regulations under this section the Secretary of State must have regard to the particular importance of furthering the conservation and enhancement of biodiversity.
The Secretary of State may make regulations under this section only if satisfied that the regulations do not reduce the level of environmental protection provided by the Habitats Regulations.
Before making regulations under this section the Secretary of State must lay before Parliament, and publish, a statement explaining why the Secretary of State is satisfied as mentioned in subsection (7).
Before making regulations under this section the Secretary of State must consult such persons as the Secretary of State considers appropriate.
Regulations under this section may not come into force before 1 February 2023.
In this section— “the Directives” has the same meaning as in the Habitats Regulations (see regulation 3(1)); “England” includes the territorial sea adjacent to England, which for this purpose does not include— any part of the territorial sea adjacent to Wales for the general or residual purposes of the Government of Wales Act 2006 (see section 158 of that Act), or any part of the territorial sea adjacent to Scotland for the general or residual purposes of the Scotland Act 1998 (see section 126 of that Act); “environmental improvement plan” has the same meaning as in Part 1.
Regulations under this section are subject to the affirmative procedure.
The Secretary of State may by regulations amend Part 6 of the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012) (the “Habitats Regulations”) (assessment of plans and projects) as they apply in relation to England.
In making regulations under this section the Secretary of State must have regard to the particular importance of furthering the conservation and enhancement of biodiversity.
The Secretary of State may make regulations under this section only if satisfied that the regulations do not reduce the level of environmental protection provided by the Habitats Regulations.
Before making regulations under this section the Secretary of State must lay before Parliament, and publish, a statement explaining why the Secretary of State is satisfied as mentioned in subsection (3).
Before making regulations under this section the Secretary of State must consult such persons as the Secretary of State considers appropriate.
In this section “England” has the same meaning as in section 112.
Regulations under this section are subject to the affirmative procedure.
Tree felling and planting
Schedule 16 makes amendments to Part 2 of the Forestry Act 1967 in relation to the enforcement of the power to control the felling of trees in England.
After section 96 of the Highways Act 1980 insert—
Use of forest risk commodities in commercial activity
In Schedule 17—
Part 1 makes provision about the use of forest risk commodities in commercial activity,
Part 2 makes provision about enforcement, and
Part 3 contains general provisions.
Regulations under the following provisions of Schedule 17 are subject to the affirmative procedure—
paragraph 1;
paragraph 2(4)(c);
paragraph 5 (except for paragraph 5(2)(b) and (5));
paragraph 7;
Part 2.
Regulations under the following provisions of Schedule 17 are subject to the negative procedure—
paragraph 3;
paragraph 4;
paragraph 5(2)(b) and (5).
Conservation covenants
Creation of conservation covenant
For the purposes of this Part, a “conservation covenant agreement” is an agreement between a landowner and a responsible body where—
the agreement contains provision which—
is of a qualifying kind,
has a conservation purpose, and
is intended by the parties to be for the public good,
it appears from the agreement that the parties intend to create a conservation covenant, and
the agreement is executed as a deed by the parties.
The reference in subsection (1)(a) to provision of a qualifying kind is to provision—
requiring the landowner—
to do, or not to do, something on land in England specified in the provision in relation to which the landowner holds a qualifying estate specified in the agreement for the purposes of the provision, or
to allow the responsible body to do something on such land, or
requiring the responsible body to do something on such land.
For the purposes of subsection (1)(a)(ii), provision has a conservation purpose if its purpose is—
to conserve the natural environment of land or the natural resources of land,
to conserve land as a place of archaeological, architectural, artistic, cultural or historic interest, or
to conserve the setting of land with a natural environment or natural resources or which is a place of archaeological, architectural, artistic, cultural or historic interest.
In this Part— a reference to conserving something includes a reference to protecting, restoring or enhancing it; “qualifying estate” means— an estate in fee simple absolute in possession, or a term of years absolute granted for a term of more than seven years from the date of the grant and in the case of which some part of the period for which the term of years was granted remains unexpired; a reference to “the qualifying estate”, in relation to an obligation under a conservation covenant, is to the estate in land by virtue of which the condition in subsection (1)(a)(i) was met in relation to— if the obligation is not an ancillary obligation, the provision giving rise to the obligation, or if the obligation is an ancillary obligation, the provision giving rise to the obligation to which it was ancillary; (and for this purpose “ancillary obligation” means an obligation under provision falling within section 118(2)(b)); “natural environment”, in relation to land, includes— its plants, animals and other living organisms; their habitats; its geological features.
A conservation covenant is so much of a conservation covenant agreement as is given statutory effect by this section.
The following provisions of a conservation covenant agreement have statutory effect as a conservation covenant—
provisions in respect of which the conditions in section 117(1)(a) are met, and
provisions ancillary to any provision falling within paragraph (a).
If the agreement includes provision for public access to land to which other provision of the agreement (being provision which meets the conditions in section 117(1)(a)) relates, the provision for public access is to be treated as ancillary to that other provision.
In this Part—
references to an obligation under a conservation covenant are to an obligation of the landowner or the responsible body given statutory effect by this section as part of the conservation covenant, and
references to the land to which an obligation under a conservation covenant relates are, in the case of an obligation given statutory effect by this section by virtue of being ancillary to another provision, to the land to which the obligation under the other provision relates.
The following are responsible bodies for the purposes of this Part—
the Secretary of State;
bodies which are designated under this section (referred to in this Part as “designated bodies”).
The Secretary of State may, on the application of a local authority or other body, designate it as a responsible body for the purposes of this Part.
The Secretary of State may only designate a local authority if satisfied that it is suitable to be a responsible body.
The Secretary of State may only designate a body that is not a local authority if satisfied that it—
meets the condition in subsection (5), and
is suitable to be a responsible body.
The condition is that—
in the case of a public body or a charity, at least some of its main purposes or functions relate to conservation, or
in any other case, at least some of the body’s main activities relate to conservation.
The Secretary of State may revoke a designation by notice to the body concerned if—
the body has applied to the Secretary of State for its designation to be revoked,
the Secretary of State is satisfied that the body is not suitable to remain as a responsible body, or
in the case of a body other than a local authority, the Secretary of State is satisfied that the body does not meet the condition in subsection (5).
The Secretary of State may determine the criteria to be applied in deciding whether a body is suitable to be or to remain a responsible body (which may include criteria relating to the body’s connection with the United Kingdom).
The Secretary of State must publish (and keep up to date)—
a document setting out the criteria applicable for the purposes mentioned in subsection (7), and
a list of the bodies who are designated under this section.
In this section— “charity” means a charity registered under the Charities Act 2011 or an exempt charity (within the meaning of that Act); “conservation” means conservation of— the natural environment or natural resources of land, places of archaeological, architectural, artistic, cultural or historic interest, or the setting of land with a natural environment or natural resources or which is a place of archaeological, architectural, artistic, cultural or historic interest; “local authority” means— a county or district council in England; a London borough council; the Common Council of the City of London; the Council of the Isles of Scilly.
Effect of conservation covenant
A conservation covenant is a local land charge.
For the purposes of the Local Land Charges Act 1975 the originating authority, as respects a conservation covenant, is the person by whom an obligation of the landowner under the covenant is enforceable.
In section 2 of the Local Land Charges Act 1975 (matters which are not local land charges), the references in paragraphs (a) and (b) to a covenant or agreement made between a lessor and a lessee do not include a conservation covenant.
In its application to a conservation covenant, section 10(1) of the Local Land Charges Act 1975 (compensation for non-registration or defective official search certificate) has effect as if—
in the words preceding paragraph (a), the words from the beginning to “but” were omitted,
paragraph (a) (non-registration) were omitted, and
in paragraph (b), for the words from “in existence” to the end there were substituted the words “registered in that register at the time of the search but was not shown by the official search certificate as so registered”.
An obligation under a conservation covenant has effect for the default period, unless the covenant provides for a shorter period.
The default period for the purposes of subsection (1) is—
if the qualifying estate in relation to the obligation is an estate in fee simple absolute in possession, a period of indefinite duration, and
if the qualifying estate in relation to the obligation is a term of years absolute, a period corresponding in length to the remainder of the period for which the term of years was granted.
An obligation of the landowner under a conservation covenant is owed to the responsible body under the covenant.
Subject to the following provisions, an obligation of the landowner under a conservation covenant binds—
the landowner under the covenant, and
any person who becomes a successor of the landowner under the covenant.
In subsection (2)(b) “successor” (in relation to the landowner under the covenant) means a person who holds, in respect of any of the land to which the obligation relates—
the qualifying estate, or
an estate in land derived (whether immediately or otherwise) from the qualifying estate after the creation of the covenant.
An obligation of the landowner under a conservation covenant ceases to bind the landowner under the covenant, or a person who becomes a successor of that landowner, in respect of—
land which ceases to be land to which the obligation relates,
in the case of the landowner under the covenant, land in relation to which the landowner ceases to be the holder of the qualifying estate, or
in the case of a successor, land in relation to which the successor ceases to be the holder of the qualifying estate or of the estate derived from the qualifying estate, as the case may be.
Subsection (2)(b) does not apply if—
the obligation is positive and the person becomes a successor by virtue of holding a term of years absolute granted for a term of seven years or less from the date of the grant,
the conservation covenant was not registered in the local land charges register at the time when the successor acquired the estate in land concerned, or
the successor’s immediate predecessor was not bound by the obligation in respect of the land to which the successor’s interest relates.
In the case of a conservation covenant relating to land in an area in relation to which section 3 of the Local Land Charges Act 1975 (as substituted by paragraph 3 of Schedule 5 to the Infrastructure Act 2015) does not yet have effect, the reference in subsection (5)(b) to the local land charges register is to the appropriate local land charges register.
The reference in subsection (5)(b) to the time when the successor acquired the estate in land concerned is, if the successor acquired that interest under a disposition which took effect at law only when registered in the register of title kept under the Land Registration Act 2002, to be read as a reference to the time when the disposition was made.
In subsection (5)(c) the successor’s “immediate predecessor” is, unless subsection (9) applies, the successor’s immediate predecessor in title.
If the successor is the first holder of an estate in land which is derived from another estate in land (whether the other estate is the qualifying estate or an estate derived, immediately or otherwise, from it) the successor’s immediate predecessor is the holder of that other estate when the derived estate was created.
Subject to the following provisions, an obligation of the responsible body under a conservation covenant is owed—
to the landowner under the covenant, and
to any person who becomes a successor of the landowner under the covenant.
In this section “successor” (in relation to the landowner under the covenant) means a person who holds, in respect of any of the land to which the obligation relates—
the qualifying estate, or
an estate in land derived (whether immediately or otherwise) from the qualifying estate after the creation of the covenant.
An obligation of the responsible body under a conservation covenant ceases to be owed to the landowner under the covenant, or to a person who becomes a successor of that landowner, in respect of—
land which ceases to be land to which the obligation relates,
in the case of the landowner under the covenant, land in relation to which the landowner ceases to be the holder of the qualifying estate, or
in the case of a successor, land in relation to which the successor ceases to be the holder of the qualifying estate or of the estate derived from the qualifying estate, as the case may be.
Subsection (1)(b) does not apply if the obligation is ancillary to an obligation of the landowner under the covenant which does not bind the successor.
Breach and enforcement
A person bound by a negative obligation under a conservation covenant breaches the obligation by—
doing something which it prohibits, or
permitting or suffering another person to do such a thing.
A person bound by a positive obligation under a conservation covenant breaches the obligation if it is not performed.
In proceedings for the enforcement of an obligation under a conservation covenant, the available remedies are—
specific performance,
injunction,
damages, and
order for payment of an amount due under the obligation.
On an application for a remedy under subsection (1)(a) or (b), a court must, in considering what remedy is appropriate, take into account any public interest in the performance of the obligation concerned.
Subject to subsection (4), contract principles apply to damages for breach of an obligation under a conservation covenant.
In the case of breach of an obligation of the landowner under a conservation covenant, a court may award exemplary damages in such circumstances as it thinks fit.
For the purposes of the Limitation Act 1980, an action founded on an obligation under a conservation covenant is to be treated as founded on simple contract.
In proceedings for breach of an obligation under a conservation covenant it is a defence to show—
that the breach occurred as a result of a matter beyond the defendant’s control,
that the breach occurred as a result of doing, or not doing, something in an emergency in circumstances where it was necessary for that to be done, or not done, in order to prevent loss of life or injury to any person, or
that at the time of the breach—
the land to which the obligation relates was, or was within an area, designated for a public purpose, and
compliance with the obligation would have involved a breach of any statutory control applying as a result of the designation.
If the only reason for the application of subsection (1)(c) was failure to obtain authorisation, the defendant must also show that all reasonable steps to obtain authorisation had been taken.
The defence under subsection (1)(c) does not apply if the designation was in force when the conservation covenant was created.
The defence of statutory authority (which applies in relation to the infringement of rights such as easements by a person acting under statutory authority) applies in relation to breach of an obligation under a conservation covenant.
In this section— “authorisation” means any approval, confirmation, consent, licence, permission or other authorisation (however described), whether special or general; “statutory control” means control imposed by provision contained in, or having effect under, an Act.
Discharge and modification
The responsible body under a conservation covenant and a person who holds the qualifying estate in respect of any of the land to which an obligation of the landowner under the covenant relates may, by agreement, discharge from the obligation any of the land in respect of which the person holds that estate.
Subsection (3) applies to—
the responsible body under a conservation covenant, and
a person who is a successor of the landowner under the covenant by virtue of holding an estate in land which—
is an estate in respect of any of the land to which an obligation of the landowner under the covenant relates, and
is derived (whether immediately or otherwise) from the qualifying estate.
Those persons may, by agreement, discharge the estate in land mentioned in subsection (2)(b) from the obligation in respect of any of the land to which the obligation relates.
Any power under this section is exercisable by agreement executed as a deed by the parties which specifies—
the obligation to which the discharge relates,
the land to which the discharge relates, and
the estate in land by virtue of which the power is exercisable.
A person to whom an obligation of the responsible body under a conservation covenant is owed by virtue of the person holding an estate in land may, by agreement with the responsible body, discharge the obligation, so far as owed in relation to that estate, in respect of any of the land in respect of which the person is entitled to the benefit of the obligation.
The power under this section is exercisable by agreement executed as a deed by the parties which specifies—
the obligation to which the discharge relates,
the land to which the discharge relates, and
the estate in land by virtue of which the power is exercisable.
A person bound by, or entitled to the benefit of, an obligation under a conservation covenant may, by agreement with the responsible body under the covenant, modify the obligation in its application to any of the land in respect of which the person is bound by, or entitled to the benefit of, it.
The power under subsection (1) does not include power to make a change which, had it been included in the original agreement, would have prevented the provision of the agreement that gave rise to the obligation being provision in relation to which the conditions in section 117(1) were met.
The power under this section is exercisable by agreement executed as a deed by the parties which specifies—
the obligation to which the modification relates,
the land to which the modification relates, and
the estate in land by virtue of which the power is exercisable.
If an obligation under a conservation covenant is modified by an agreement under this section, the modification binds—
the parties to the agreement, and
any person who, as respects any of the land to which the modification relates, becomes a successor of a person bound by the modification.
In subsection (4)(b) “successor of a person bound by the modification”, means a person who holds, in respect of any of the land to which the modification relates—
the estate held by the person bound by the modification when the modification was agreed, or
an estate in land derived (whether immediately or otherwise) from that estate after the modification is agreed.
Schedule 18 makes provision about the discharge or modification of an obligation under a conservation covenant on application to the Upper Tribunal.
Where any proceedings by action or otherwise are taken to enforce an obligation under a conservation covenant, any person against whom the proceedings are taken may in such proceedings apply to the High Court or the county court for an order giving leave to apply to the Upper Tribunal under Schedule 18 and staying the proceedings in the meantime.
No application under section 84(1) of the Law of Property Act 1925 (which enables the Upper Tribunal on application to discharge or modify a restriction arising under covenant or otherwise) may be made in relation to an obligation under a conservation covenant.
Replacement etc of responsible body
The responsible body under a conservation covenant may appoint another responsible body to be the responsible body under the covenant, unless the covenant otherwise provides.
The power under subsection (1) is exercisable by agreement executed as a deed by the appointor and appointee.
In the case of a conservation covenant registered in the local land charges register, an appointment under subsection (1) only has effect if the appointor supplies to the Chief Land Registrar the information necessary to enable the Registrar to amend the registration.
In the case of a conservation covenant relating to land in an area in relation to which section 3 of the Local Land Charges Act 1975 (as substituted by paragraph 3 of Schedule 5 to the Infrastructure Act 2015) does not yet have effect—
the references in subsection (3) to the local land charges register and the Chief Land Registrar are to the appropriate local land charges register and the authority responsible for that register, but
subsection (3) does not apply to an appointment by that authority.
Appointment under subsection (1) has effect to transfer to the appointee—
the benefit of every obligation of the landowner under the conservation covenant, and
the burden of every obligation of the responsible body under the covenant.
Appointment under subsection (1) does not have effect to transfer any right or liability in respect of an existing breach of obligation.
A body appointed under subsection (1) as the responsible body under a conservation covenant must notify its appointment to every person who is bound by an obligation of the landowner under the covenant.
Subsections (2) and (3) apply if a body which is the responsible body under a conservation covenant ceases to be a designated body.
The body ceases to be the responsible body under the conservation covenant.
The following transfer to the Secretary of State—
the benefit of every obligation of the landowner under the covenant, and
the burden of every obligation of the responsible body under the covenant.
Subsection (3) does not have effect to transfer any right or liability in respect of an existing breach of obligation.
If subsection (3) has effect in relation to a conservation covenant, the Secretary of State becomes custodian of the covenant until—
an appointment under section 131(1) by the Secretary of State has effect in relation to the covenant, or
the Secretary of State makes an election under subsection (6) in relation to the covenant.
If custodian of a conservation covenant, the Secretary of State may elect to be the responsible body under the covenant by giving written notice of election to every person who is bound by an obligation of the landowner under the covenant.
The Secretary of State may, as custodian of a conservation covenant—
enforce any obligation of the landowner under the covenant, and
exercise in relation to the covenant any power conferred by this Part on the responsible body under the covenant.
In relation to any period as custodian of a conservation covenant, the Secretary of State has no liability with respect to performance of any obligation of the responsible body under the covenant.
Miscellaneous
If the responsible body under a conservation covenant acquires an estate in land to which an obligation under the covenant relates (whether an obligation of the landowner or of the responsible body under the covenant)—
the acquisition does not have effect to extinguish the obligation,
section 122(2)(b) applies to the body as it would apply to any other person acquiring the estate in land in the same circumstances, and
any obligation of the responsible body under the covenant continues to bind the body in accordance with this Part.
Subsection (2) applies if a term of years absolute which is the qualifying estate in relation to an obligation under a conservation covenant is deemed to be surrendered and re-granted by operation of law.
The court or Upper Tribunal may on the application of any person interested declare—
whether anything purporting to be a conservation covenant is a conservation covenant,
whether any land is land to which an obligation under a conservation covenant relates,
whether any person is bound by, or entitled to the benefit of, an obligation under a conservation covenant and, if so, in respect of what land,
what, upon the true construction of any instrument by means of which an obligation under a conservation covenant is created or modified, is the nature of the obligation.
No application under section 84(2) of the Law of Property Act 1925 (which enables the court on application to make declarations about restrictions under instruments) may be made in relation to an obligation under a conservation covenant.
In this section “the court” means the High Court or the county court.
A designated body must make an annual return to the Secretary of State stating whether, during the period to which the return relates, there were any conservation covenants under which an obligation was owed to it as the responsible body.
If there were any such conservation covenants, the annual return must—
state the number of conservation covenants;
state, for each conservation covenant, the area of the land in relation to which the body was owed any obligation as the responsible body.
The annual return must also give any information that is prescribed under subsection (4).
The Secretary of State may by regulations make provision about annual returns to be made by a designated body.
The provision which may be made under subsection (4) includes, in particular, provision—
prescribing information to be included in an annual return (but see subsection (10)), and
provision as to the period to which an annual return is to relate and the date by which an annual return is to be made.
Subject to any provision made as mentioned in subsection (5)(b)— are such period and date as the Secretary of State may direct.
the period to which an annual return is to relate, and
the date by which an annual return is to be made,
On giving a direction under subsection (6) the Secretary of State must take all reasonable steps to draw the direction to the attention of each responsible body affected by it.
A direction under subsection (6) may be varied or revoked by a further such direction.
Regulations under subsection (4) and directions under subsection (6) may make—
provision of general application, or
provision applicable only to one or more particular responsible bodies or to responsible bodies of a particular description.
Any information prescribed for inclusion in an annual return made by a designated body must be information about or connected with—
the designated body;
its activities over the period to which the return relates;
any conservation covenant under which an obligation was owed to it as the responsible body during that period;
the land in relation to which it was owed such an obligation.
Regulations under this section are subject to the negative procedure.
Supplementary
Schedule 19 makes provision about the application of this Part to Crown land.
The following Table sets out expressions defined or explained in this Part for general purposes.
Schedule 20 makes consequential amendments relating to this Part.
Miscellaneous and general provisions
Regulation of chemicals
Schedule 21 confers powers to amend the REACH Regulation and the REACH Enforcement Regulations 2008.
Concurrent functions in Wales
Schedule 7B to the Government of Wales Act 2006 (general restrictions on legislative competence of Senedd Cymru) is amended as follows.
In paragraph 9(8)(b) (exceptions to restrictions relating to reserved authorities)—
omit the “or” at the end of paragraph (v);
after paragraph (vi) insert
In paragraph 11(6)(b) (exceptions to restrictions relating to Ministers of the Crown)—
omit the “or” at the end of paragraph (v);
after paragraph (vi) insert
General provisions
The Secretary of State may by regulations make provision that is consequential on this Act or regulations under this Act.
The Welsh Ministers may by regulations make provision that is consequential on—
a provision within section 147(4) (provisions to be commenced by Welsh Ministers), or
regulations under this Act made by the Welsh Ministers.
The Scottish Ministers may by regulations make provision that is consequential on—
a provision within section 147(5) (provisions to be commenced by Scottish Ministers), or
regulations under this Act made by the Scottish Ministers.
The Department of Agriculture, Environment and Rural Affairs in Northern Ireland may by regulations make provision that is consequential on—
a provision within section 147(6) (provisions to be commenced by the Department), or
regulations under this Act made by that Department.
The Department for the Economy in Northern Ireland may by regulations make provision that is consequential on regulations under this Act made by that Department.
Regulations under this section may amend or repeal provision made by or under any legislation (whenever passed or made).
Regulations under this section are subject to the affirmative procedure if they amend or repeal any provision of—
an Act of Parliament,
a Measure or Act of Senedd Cymru,
an Act of the Scottish Parliament, or
Northern Ireland legislation, ...
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Regulations under this section to which subsection (7) does not apply are subject to the negative procedure.
Regulations under this section—
made by the Welsh Ministers, may contain only provision which, if contained in an Act of Senedd Cymru, would be within the legislative competence of the Senedd;
made by the Scottish Ministers, may contain only provision which, if contained in an Act of the Scottish Parliament, would be within the legislative competence of the Parliament;
made by a Northern Ireland department, may contain only provision which, if contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Assembly and would not require the Secretary of State’s consent.
Regulations under this section made by the Secretary of State may not contain provision that could be contained in regulations under this section—
made by the Welsh Ministers, unless the Welsh Ministers consent;
made by the Scottish Ministers, unless the Scottish Ministers consent;
made by a Northern Ireland department, unless the department consents.
A power to make regulations under any provision of this Act includes power to make—
supplementary, incidental, transitional or saving provision;
different provision for different purposes or areas.
Regulations under this Act made by— are to be made by statutory instrument.
the Secretary of State, or
the Welsh Ministers,
A power of a Northern Ireland department to make regulations under this Act is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).
Where regulations under this Act made or to be made by the Secretary of State—
are subject to the negative procedure, the statutory instrument containing them is subject to annulment in pursuance of a resolution of either House of Parliament;
are subject to the affirmative procedure, they may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.
Where regulations under this Act made or to be made by the Welsh Ministers—
are subject to the negative procedure, the statutory instrument containing them is subject to annulment in pursuance of a resolution of Senedd Cymru;
are subject to the affirmative procedure, they may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, Senedd Cymru.
Where regulations under this Act made or to be made by a Northern Ireland Department—
are subject to the negative procedure, they are subject to negative resolution within the meaning given by section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) ;
are subject to the affirmative procedure, they may not be made unless a draft of the regulations has been laid before and approved by a resolution of the Northern Ireland Assembly.
See sections 28 and 29 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10) for the meaning of “the negative procedure” and “the affirmative procedure” in relation to regulations under this Act made or to be made by the Scottish Ministers.
Any provision that may be made by regulations under this Act subject to the negative procedure may be made by regulations subject to the affirmative procedure.
This Act binds the Crown, subject to subsection (2).
An amendment or repeal made by this Act binds the Crown to the same extent as the provision amended or repealed.
There is to be paid out of money provided by Parliament—
any expenditure incurred under or by virtue of this Act by the Secretary of State, and
any increase attributable to this Act in the sums payable under any other Act out of money so provided.
In Part 1 of this Act (environmental governance)—
the following provisions extend to England and Wales—
section 28 (monitoring and reporting on environmental improvement plans and targets);
the remaining provisions extend to England and Wales, Scotland and Northern Ireland.
Part 2 of this Act (environmental governance: Northern Ireland) extends to Northern Ireland, except that—
in Part 1 of Schedule 3, paragraphs 16 and 17(7) extend to England and Wales, Scotland and Northern Ireland;
an amendment or repeal made by Part 2 of Schedule 3 has the same extent as the provision amended or repealed.
In Part 3 of this Act (waste and resource efficiency)—
the following provisions extend to England and Wales, Scotland and Northern Ireland—
section 63 (procedure for regulations under the Environmental Protection Act 1990);
the following provisions extend to England and Wales and Northern Ireland—
the following provisions extend to England and Wales—
section 60 (hazardous waste);
section 68 (littering enforcement);
section 71 (waste regulation: amendment of Northern Ireland Order) extends to Northern Ireland;
an amendment or repeal has the same extent as the provision amended or repealed, except where contained in a provision for which a different extent is provided by this subsection.
In Part 4 of this Act (air quality and environmental recall)—
an amendment or repeal has the same extent as the provision amended or repealed, except where contained in a provision for which a different extent is provided by this subsection.
In Part 5 of this Act (water)—
section 84 (report on elimination of discharges from storm overflows) extends to England and Wales;
section 90 (water quality - powers of Welsh Ministers) extends to England and Wales;
section 91 (water quality - powers of Northern Ireland Department) extends to Northern Ireland;
section 92 (Solway Tweed river basin district) extends to England and Wales and Scotland;
an amendment or repeal has the same extent as the provision amended or repealed.
Part 6 of this Act (nature and biodiversity) extends to England and Wales, except that—
the amendments made by Schedule 15 (biodiversity gain in nationally significant infrastructure projects) have the same extent as the provisions amended, and
Part 7 of this Act (conservation covenants) extends to England and Wales.
This Part (miscellaneous and general provisions) extends to England and Wales, Scotland and Northern Ireland.
The following provisions of this Act come into force on the day on which this Act is passed—
section 63 (procedure for regulations under the Environmental Protection Act 1990);
The following provisions of this Act come into force at the end of the period of 2 months beginning with the day on which this Act is passed—
section 56 (carrier bag charge) so far as relating to England and Wales;
section 58 (electronic waste tracking);
section 70 (regulation of polluting activities);
section 88 (water abstraction in England);
section 97 (disclosure of HMRC information).
The following provisions of this Act come into force on such day as the Secretary of State may by regulations appoint —
Part 1 (environmental governance);
section 57 (separate collection of waste);
section 60 (hazardous waste), so far as relating to England;
section 62 (transfrontier shipments of waste);
section 64 (charging powers), so far as relating to the Environment Agency;
section 68 (littering enforcement), so far as relating to England;
in section 69 (fixed penalty notices), subsections (2) and (4) and subsection (1) so far as relating to those subsections;
section 83 (reduction of adverse impacts of storm overflows);
section 94 (valuation of other land in drainage districts: England);
section 96 (valuation of agricultural land in drainage districts), so far as relating to internal drainage districts which are wholly or mainly in England;
Part 6 (nature and biodiversity);
Part 7 (conservation covenants).
The following provisions of this Act come into force on such day as the Welsh Ministers may by regulations appoint—
section 60 (hazardous waste), so far as relating to Wales;
section 64 (charging powers), so far as relating to the Natural Resources Body for Wales;
section 68 (littering enforcement), so far as relating to Wales;
in section 69 (fixed penalty notices), subsections (3) and (5) and subsection (1) so far as relating to those subsections;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
section 95 (valuation of other land in drainage districts: Wales);
section 96 (valuation of agricultural land in drainage districts), so far as relating to internal drainage districts which are wholly or mainly in Wales.
The following provisions of this Act come into force on such day as the Scottish Ministers may by regulations appoint—
section 64 (charging powers), so far as relating to the Scottish Environment Protection Agency.
The following provisions of this Act come into force on such day as the Department of Agriculture, Environment and Rural Affairs in Northern Ireland may by order appoint—
Part 2 (environmental governance: Northern Ireland);
section 56 (carrier bag charge) so far as relating to Northern Ireland;
section 59 (electronic waste tracking: Northern Ireland);
section 61 (hazardous waste: Northern Ireland);
section 65 (waste charging: Northern Ireland);
section 67 (enforcement powers: Northern Ireland);
section 71 (waste regulation: amendment of Northern Ireland Order);
section 91 (water quality: powers of Northern Ireland Department);
An order under subsection (6) may not appoint a day for the coming into force of the following provisions of Schedule 3 (OEP’s Northern Ireland functions), unless the Secretary of State consents—
paragraphs 16 and 17(7);
Part 2.
The power to make an order under subsection (6) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).
An order under subsection (6) may not be made unless a draft of the order has been laid before and approved by a resolution of the Northern Ireland Assembly.
A power to make regulations or an order under this section includes power to appoint different days for different purposes or areas.
The Secretary of State may by regulations make transitional or saving provision in connection with the coming into force of any provision of this Act.
The Welsh Ministers may by regulations make transitional or saving provision in connection with the coming into force of any provision within section 147(4) (provisions to be commenced by Welsh Ministers).
The Scottish Ministers may by regulations make transitional or saving provision in connection with the coming into force of any provision within section 147(5) (provisions to be commenced by Scottish Ministers).
The Department of Agriculture, Environment and Rural Affairs in Northern Ireland may by regulations make transitional or saving provision in connection with the coming into force of any provision within section 147(6) (provisions to be commenced by Department).
Regulations under this section—
made by the Welsh Ministers, may contain only provision which, if contained in an Act of Senedd Cymru, would be within the legislative competence of the Senedd;
made by the Scottish Ministers, may contain only provision which, if contained in an Act of the Scottish Parliament, would be within the legislative competence of that Parliament;
made by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, may contain only provision which, if contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Assembly and would not require the Secretary of State’s consent.
Regulations under this section made by the Secretary of State may not contain provision that could be contained in regulations under this section—
made by the Welsh Ministers, unless the Welsh Ministers consent;
made by the Scottish Ministers, unless the Scottish Ministers consent;
made by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, unless the Department consents.
Any provision which could be made by regulations under this section made by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland may be made by an order made by the Department under section 147.
A power to make regulations or an order under this section includes power to make different provision for different purposes or areas.
This Act may be cited as the Environment Act 2021.
The Office for Environmental Protection
The OEP is to consist of—
a Chair (who is to be a non-executive member),
a Northern Ireland member (who is to be a non-executive member),
at least two, but not more than five, other non-executive members,
a chief executive (who is to be the accounting officer), and
at least one, but not more than three, other executive members.
The members are to be appointed by the Secretary of State , the Northern Ireland Department and the OEP in accordance with paragraphs 2 and 3.
When exercising their functions of appointment the Secretary of State and the OEP must ensure, so far as practicable, that the number of non-executive members (including the Northern Ireland member) is at all times greater than the number of executive members.
The Chair is to be appointed by the Secretary of State acting jointly with the Northern Ireland Department, other than the first Chair who is to be appointed by the Secretary of State.
The Northern Ireland member is to be appointed by the Northern Ireland Department after consulting the Secretary of State and the Chair.
The other non-executive members are to be appointed by the Secretary of State after consulting the Northern Ireland Department and the Chair.
The Northern Ireland Department must appoint as the Northern Ireland member a person with experience of—
Northern Ireland environmental law (within the meaning of Part 1 of Schedule 3),
environmental science in Northern Ireland, or
environmental regulation in Northern Ireland.
The Secretary of State must, in appointing non-executive members, have regard to the desirability of the members (between them) having experience of—
law (including international law) relating to the natural environment,
environmental science,
environmental policy, and
investigatory and enforcement proceedings.
A person may not be appointed as a non-executive member if the person is an employee of the OEP.
The chief executive is to be appointed by the non-executive members of the OEP, other than the first chief executive who is to be appointed by the Chair.
The other executive members are to be appointed by the OEP.
The Secretary of State and the Northern Ireland Department must be consulted before a person is appointed as chief executive.
An executive member must be an employee of the OEP.
The Secretary of State may appoint a person as an executive member to act as chief executive of the OEP (“an interim chief executive”) until the appointment of the first chief executive by the Chair under paragraph 3(1).
Where the OEP has fewer members than are needed to hold a meeting that is quorate (see paragraph 11(2)), an interim chief executive may incur expenditure and do other things in the name and on behalf of the OEP.
In exercising the power in sub-paragraph (2), an interim chief executive must act in accordance with any directions given by the Secretary of State.
Neither paragraph 3(4) (requirement that executive members are employees) nor paragraph 5(2) (requirement that members are not civil servants) apply to an interim chief executive.
A member of the OEP holds and vacates office in accordance with the terms of the member’s appointment, subject to the provisions of this Schedule.
A person may not hold office as a member of the OEP if the person is employed in the civil service of the State.
A non-executive member must be appointed for a fixed term of no more than 5 years.
The Secretary of State must, in determining the length of a non-executive member’s term, have regard to the desirability of securing that the appointments of non-executive members (including the Northern Ireland member) expire at different times.
The Northern Ireland Department must, in determining the length of a Northern Ireland member’s term, have regard to the desirability of securing that the appointments of non-executive members expire at different times.
The previous appointment of a person as a non-executive member does not affect the person’s eligibility for re-appointment.
A non-executive member ceases to be a member of the OEP upon becoming its employee.
A non-executive member, other than the Northern Ireland member—
may resign from office by giving notice to the Secretary of State, and
may be removed from office by notice given by the Secretary of State, after consulting the Northern Ireland Department, on the grounds that the member—
has without reasonable excuse failed to discharge the member’s functions, or
is, in the opinion of the Secretary of State, unable or unfit to carry out the member’s functions.
The Northern Ireland member—
may resign from office by giving notice to the Northern Ireland Department, and
may be removed from office by notice given by the Northern Ireland Department after consulting the Secretary of State, on the grounds that the member—
has without reasonable excuse failed to discharge the member’s functions, or
is, in the opinion of the Northern Ireland Department, unable or unfit to carry out the member’s functions.
The OEP must pay its non-executive members such remuneration and allowances as the Secretary of State may determine.
If a person ceases to be a non-executive member, other than by reason of their term of office expiring, and the Secretary of State determines that the person should be compensated because of special circumstances, the OEP must pay compensation of such amount as the Secretary of State may determine.
The Secretary of State must consult the Chair before making a determination under this paragraph.
The OEP may—
appoint employees on such terms as it determines, and
make such other arrangements for the staffing of the OEP as it determines.
The terms of the first chief executive’s appointment are to be determined by the Chair.
The OEP must pay its employees such remuneration as the OEP may determine.
The OEP must pay, or make provision for paying, to or in respect of a person who is or has been an employee of the OEP, such sums as the OEP may determine with the approval of the Secretary of State in respect of pensions, allowances and gratuities.
In the Superannuation Act 1972 (“the 1972 Act”), in Schedule 1 (kinds of employment to which a scheme under section 1 of the 1972 Act can apply), in the list of “other Bodies”, at the appropriate place insert—
The OEP must pay to the Minister for the Civil Service, at such times as the Minister may direct, such sums as the Minister may determine in respect of any increase attributable to sub-paragraph (5) in the sums payable out of money provided by Parliament under the Superannuation Act 1972.
The OEP may do anything (other than something mentioned in sub-paragraph (2)) it thinks appropriate for the purposes of, or in connection with, its functions.
The OEP may not—
accept gifts of money, land or other property, or
form, participate in forming, or invest in, a company, partnership, joint venture or other similar form of organisation.
The OEP may establish committees.
A committee may include persons who are not members of the OEP (whether or not they are employees of the OEP).
A member of a committee who is neither a member nor an employee of the OEP is not entitled to vote at meetings of that committee.
The OEP may pay such allowances as it may determine to any person who—
is a member of a committee, but
is neither a member, nor an employee, of the OEP.
The OEP may delegate any of its functions (other than a function mentioned in sub-paragraph (4)) to—
a member of the OEP,
any of the OEP’s employees authorised for that purpose, or
a committee of the OEP.
The OEP must prepare a document that sets out its policy on how its functions may be appropriately delegated (a “delegation policy”).
A function is delegated under this paragraph to the extent, and on the terms, that the OEP determines in accordance with its delegation policy.
The OEP may not delegate the following functions—
approving the strategy under section 23(3) (or a revision of it);
deciding whether to give an information notice or a Northern Ireland information notice;
deciding whether to give a decision notice or a Northern Ireland decision notice;
deciding whether to apply for an environmental review (see section 38);
deciding whether to apply for judicial review or a statutory review, or to intervene in proceedings that relate to a judicial review or a statutory review (see section 39);
deciding whether to make a review application (see paragraph 12 of Schedule 3) or an application for judicial review by virtue of paragraph 13(1) of that Schedule or to intervene in proceedings that relate to a judicial review (see paragraph 13 of that Schedule);
approving a delegation policy under sub-paragraph (2);
approving a report on the exercise of the OEP’s functions under paragraph 13(1) or a statement of accounts under paragraph 14(2).
The OEP may determine its own procedure, subject to sub-paragraph (2), and the procedure of its committees.
A meeting of the OEP is not quorate unless—
there are at least three members present, and
a majority of the members present are non-executive members.
The validity of any proceedings of the OEP is not affected by any vacancy among its members or by any defect in the appointment of such a member.
The Secretary of State and the Northern Ireland Department must , between them, pay to the OEP such sums as they consider are reasonably sufficient to enable the OEP to carry out its functions.
The Secretary of State , or the Northern Ireland Department, may provide further financial assistance to the OEP (including by way of grants, loans, guarantees or indemnities) subject to such conditions as the Secretary of State , or that department, may determine.
As soon as reasonably practicable after the end of each financial year the OEP must prepare a report on the exercise of its functions during that financial year.
The OEP must—
arrange for its report to be laid before Parliament and the Northern Ireland Assembly, and
publish it.
The OEP must keep proper accounts and proper records in relation to them.
The OEP must prepare a statement of accounts in respect of each financial year in the form specified by the Secretary of State.
A statement of accounts must include an assessment by the OEP of whether, in the financial year to which the statement relates, the Secretary of State and the Northern Ireland Department provided it with sufficient sums to carry out its functions.
The OEP must send a copy of each statement of accounts to the Secretary of State , the Northern Ireland Department and the Comptroller and Auditor General as soon as reasonably practicable after the end of the financial year to which it relates.
The Comptroller and Auditor General must—
examine, certify and report on the statement of accounts, and
send a copy of the certified statement and the report to the Secretary of State , the Northern Ireland Department and the OEP.
The OEP must arrange for the laying before Parliament and the Northern Ireland Assembly of a copy of—
its certified statement of accounts, and
the Comptroller and Auditor General’s report on its statement of accounts.
In this Schedule “financial year” means—
the period beginning with the date on which the OEP is established and ending with 31 March following that date, and
each successive period of 12 months.
The OEP is not to be regarded—
as a servant or agent of the Crown, or
as enjoying any status, immunity or privilege of the Crown.
The OEP’s property is not to be regarded as property of, or property held on behalf of, the Crown.
Service as a member, or as an employee, of the OEP is not service in the civil service of the State.
In exercising functions in respect of the OEP, the Secretary of State and the Northern Ireland Department must have regard to the need to protect its independence.
In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975, at the appropriate place insert—
In Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975, at the appropriate place insert—
In Part 2 of the Table in paragraph 3 of Schedule 1 to the Public Records Act 1958 (definition of public records), at the appropriate place insert—
In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (other public bodies), at the appropriate place insert—
In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments subject to investigation), at the appropriate place insert—
In Part 1 of Schedule 19 to the Equality Act 2010 (authorities subject to the public sector equality duty), under the heading “Environment, housing and development”, at the appropriate place insert—
In this Schedule “the Northern Ireland Department” means the Department of Agriculture, Environment and Rural Affairs in Northern Ireland.
Improving the natural environment: Northern Ireland
Environmental improvement plans
The Department must prepare an environmental improvement plan.
An “environmental improvement plan” is a plan for significantly improving the natural environment.
The plan may—
relate to a period specified in the plan, or
be of no specified duration.
An environmental improvement plan must set out—
the steps that the Department intends to take to improve the natural environment, and
any steps that any other Northern Ireland department intends to take to improve the natural environment.
It may also set out steps that any Northern Ireland department intends to take to improve people’s enjoyment of the natural environment (and if it does so references in this Schedule to improving the natural environment, in relation to that plan, include improving people’s enjoyment of it).
In preparing an environmental improvement plan, the Department must consult such other Northern Ireland departments as it considers appropriate.
The Department must lay before the Northern Ireland Assembly, and publish, an environmental improvement plan before the end of the 12 month period beginning with the day on which this paragraph comes into force.
References in this Schedule to the current environmental improvement plan are to the environmental improvement plan for the time being in effect.
The Department must prepare annual reports on the implementation of the current environmental improvement plan.
An annual report must—
describe what has been done, in the period to which the report relates, to implement the environmental improvement plan, and
consider, having regard to any data obtained under paragraph 5, whether the natural environment has, or particular aspects of it have, improved during that period.
Annual reports on an environmental improvement plan must relate to—
the 12 month period beginning with the day on which the plan is published, and
each subsequent 12 month period.
An annual report must be laid before the Northern Ireland Assembly before the end of the 4 month period beginning immediately after the last day of the period to which the report relates.
The Department must publish annual reports laid before the Northern Ireland Assembly under this paragraph.
The Department must—
review the current environmental improvement plan in accordance with this paragraph, and
if the Department considers it appropriate as a result of the review, revise the plan.
The first review of an environmental improvement plan must be completed before the end of the 5 year period beginning with—
if it is the first environmental improvement plan, the day on which it is published, and
otherwise, the day on which it replaces the previous plan (see paragraph 4(6)).
Subsequent reviews of an environmental improvement plan must be completed before the end of the 5 year period beginning with the day on which the previous review was completed.
In reviewing an environmental improvement plan, the Department must—
consider what has been done to implement the plan in the period since it was published or (if it has been reviewed before) last reviewed,
consider whether, having regard to data obtained under paragraph 5 and reports made by the OEP under paragraph 1 of Schedule 3, the natural environment has, or particular aspects of it have, improved during that period, and
consider whether any Northern Ireland department should take further or different steps to improve the natural environment (compared to those set out in the plan).
In reviewing and revising an environmental improvement plan, the Department must consult such other Northern Ireland departments as it considers appropriate.
If as a result of a review the Department considers it appropriate to revise the plan, the Department must lay before the Northern Ireland Assembly—
a revised environmental improvement plan, and
a statement explaining the revisions and the reasons for them.
If as a result of a review the Department does not consider it appropriate to revise the plan, the Department must lay before the Northern Ireland Assembly a statement explaining that and the reasons for it.
The Department must publish the documents laid under sub-paragraph (6) or (7).
A review is completed when the Department has laid and published the documents mentioned in sub-paragraph (6) or (7).
References in this Schedule to an environmental improvement plan include a revised environmental improvement plan.
This paragraph applies where an environmental improvement plan relates to a period specified in the plan.
Before the end of the period to which the environmental improvement plan (the “old plan”) relates, the Department must prepare a new environmental improvement plan (the “new plan”).
If the new plan relates to a period specified in the plan, that period must begin no later than immediately after the end of the period to which the old plan relates.
In preparing the new plan the Department must—
consider what has been done to implement the old plan,
consider whether, having regard to data obtained under paragraph 5 and reports made by the OEP under paragraph 1 of Schedule 3, the natural environment has improved since the beginning of the period to which the old plan relates,
consider whether any Northern Ireland department should take further or different steps to improve the natural environment (compared to those set out in the old plan) after the end of that period, and
consult such other Northern Ireland departments as it considers appropriate.
At or before the end of the period to which the old plan relates the Department must lay before the Northern Ireland Assembly, and publish, the new plan.
The new plan replaces the old plan when—
it has been laid and published, and
if it relates to a period specified in the new plan, that period has begun.
The Department must make arrangements for obtaining such data about the natural environment as the Department considers appropriate for the purpose of monitoring whether the natural environment is, or particular aspects of it are, improving in accordance with the current environmental improvement plan.
The Department must lay before the Northern Ireland Assembly, and publish, a statement setting out the kinds of data to be obtained under sub-paragraph (1).
The first statement must be laid before the end of the 4 month period beginning with the day on which this paragraph comes into force.
The Department may revise the statement at any time (and sub-paragraph (2) applies to any revised statement).
The Department must publish any data obtained under sub-paragraph (1).
Policy statement on environmental principles
The Department must prepare a policy statement on environmental principles in accordance with this paragraph and paragraph 7.
A “policy statement on environmental principles” is a statement explaining how the environmental principles should be interpreted and proportionately applied—
by Northern Ireland departments when making policy, and
by Ministers of the Crown when making policy so far as relating to Northern Ireland.
It may also explain how Northern Ireland departments and Ministers of the Crown, when interpreting and applying the environmental principles, should take into account other considerations relevant to their policy.
The Department must be satisfied that the statement will, when it comes into effect, contribute to—
the improvement of environmental protection, and
sustainable development.
In this Schedule “environmental principles” means the following principles—
the principle that environmental protection should be integrated into the making of policies,
the principle of preventative action to avert environmental damage,
the precautionary principle, so far as relating to the environment,
the principle that environmental damage should as a priority be rectified at source, and
the polluter pays principle.
The Department must prepare a draft of the policy statement on environmental principles.
The Department must consult— in relation to the draft statement.
the other Northern Ireland departments,
the Secretary of State, and
such other persons as the Department considers appropriate,
The Department must lay the draft statement before the Northern Ireland Assembly.
If before the end of the 21 day period the Northern Ireland Assembly passes a resolution in respect of the draft statement, the Department must produce a response and lay it before the Assembly.
The Department must prepare and lay before the Northern Ireland Assembly the final statement, but not before—
if sub-paragraph (4) applies, the day on which the Department lays the response required by that sub-paragraph, or
otherwise, the end of the 21 day period.
The final statement has effect when it is laid before the Northern Ireland Assembly.
The Department must publish the statement when it comes into effect.
The “21 day period” is the period of 21 sitting days beginning with the first sitting day after the day on which the draft statement is laid under sub-paragraph (3).
“Sitting day” means a day on which the Northern Ireland Assembly sits.
The requirements in sub-paragraphs (1) and (2) may be met by the preparation of a draft statement, and consultation, before this paragraph comes into force.
The Department may prepare a revised policy statement on environmental principles at any time (and sub-paragraphs (1) to (9) apply in relation to any revised statement).
A Northern Ireland department must, when making policy, have due regard to the policy statement on environmental principles currently in effect.
A Minister of the Crown must, when making policy so far as relating to Northern Ireland, have due regard to the policy statement on environmental principles currently in effect.
Nothing in this paragraph requires a Northern Ireland department or a Minister of the Crown to do anything (or refrain from doing anything) if doing it (or refraining from doing it)—
would have no significant environmental benefit, or
would be in any other way disproportionate to the environmental benefit.
Sub-paragraph (1) does not apply to policies so far as relating to taxation, spending or the allocation of resources within government.
Sub-paragraph (2) does not apply to policies so far as relating to—
the armed forces, defence or national security, or
taxation, spending or the allocation of resources within government.
Interpretation
In this Schedule the “natural environment” means— and the natural systems, cycles and processes through which they interact.
plants, wild animals and other living organisms,
their habitats,
land (except buildings or other structures), air and water,
In this Schedule “environmental protection” means any of the following—
protection of the natural environment from the effects of human activity;
protection of people from the effects of human activity on the natural environment;
maintenance, restoration or enhancement of the natural environment;
monitoring, assessing, considering, advising or reporting on anything in paragraphs (a) to (c).
In this Schedule—“current environmental improvement plan” has the meaning given by paragraph 1(8); the “Department” means the Department of Agriculture, Environment and Rural Affairs in Northern Ireland;“environmental improvement plan” has the meaning given by paragraph 1 (and see also paragraph 3(10));“environmental principles” has the meaning given by paragraph 6(5);“improving the natural environment”, in relation to an environmental improvement plan, is to be read in accordance with paragraph 1(5);“making” policy includes developing, adopting or revising policy;“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975;“OEP” has the meaning given by section 22;“policy” includes proposals for legislation, but does not include an administrative decision taken in relation to a particular person or case (for example, a decision on an application for planning permission, funding or a licence, or a decision about regulatory enforcement);“policy statement on environmental principles” has the meaning given by paragraph 6.
Section 41(3) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) applies in relation to the laying of a document before the Northern Ireland Assembly under this Schedule, as it applies in relation to the laying of a statutory document under an Act of the Northern Ireland Assembly.
The Office for Environmental Protection: Northern Ireland
The OEP’s Northern Ireland functions
The OEP must monitor progress in improving the natural environment in accordance with the current environmental improvement plan.
The OEP must prepare a progress report for each annual reporting period.
A progress report for an annual reporting period is a report on progress made in that period in improving the natural environment in accordance with the current environmental improvement plan.
An annual reporting period is a period for which the Department must prepare a report under paragraph 2 of Schedule 2 (a “Schedule 2 report”).
In reporting on progress made in an annual reporting period, the OEP must consider—
the Schedule 2 report for that period,
the data published by the Department under paragraph 5 of Schedule 2 that relates to that period, and
any other reports, documents or information it considers appropriate.
A progress report for an annual reporting period may include—
consideration of how progress could be improved, and
consideration of the adequacy of the data published by the Department under paragraph 5 of Schedule 2.
The OEP must—
arrange for its reports under this paragraph to be laid before the Northern Ireland Assembly, and
publish them.
A progress report for an annual reporting period must be laid no later than 6 months after the Schedule 2 report for that period is laid before the Northern Ireland Assembly.
The Department must—
respond to a report under this paragraph, and
lay before the Northern Ireland Assembly, and publish, a copy of the response.
Where a report under this paragraph contains a recommendation for how progress could be improved, the response must address that recommendation.
The response—
must be laid no later than 12 months after the report is laid, and
may be included in a Schedule 2 report.
The OEP must monitor the implementation of Northern Ireland environmental law.
The OEP may report on any matter concerned with the implementation of Northern Ireland environmental law.
But the OEP must not monitor the implementation of, or report on, a matter within the remit of the Committee on Climate Change.
The OEP must—
arrange for its reports under this paragraph to be laid before the Northern Ireland Assembly, and
publish them.
The Department must—
respond to a report under this paragraph, and
lay before the Northern Ireland Assembly, and publish, a copy of the response.
The response to a report under this paragraph must be laid no later than 3 months after the report is laid.
The OEP must give advice to any Northern Ireland department about— on which that department requires it to give advice.
any proposed change to Northern Ireland environmental law, or
any other matter relating to the natural environment,
The Northern Ireland department may specify matters which the OEP is to take into account in giving the required advice.
The OEP may give advice to any Northern Ireland department about any changes to Northern Ireland environmental law proposed by that department.
Advice under this paragraph is to be given in writing to the Northern Ireland department concerned.
The OEP must publish—
its advice, and
if the advice is given under sub-paragraph (1), a statement of the matter on which it was required to give advice and any matters specified under sub-paragraph (2).
The Northern Ireland department concerned may, if it thinks fit, lay before the Northern Ireland Assembly—
the advice, and
any response that department may make to the advice.
Paragraphs 6 to 15 make provision about functions of the OEP in relation to failures by relevant public authorities to comply with relevant environmental law.
For the purposes of those paragraphs, a reference to a relevant public authority failing to comply with relevant environmental law means the following conduct by that authority—
unlawfully failing to take proper account of relevant environmental law when exercising its functions;
unlawfully exercising, or failing to exercise, any function it has under relevant environmental law.
The following definitions apply for the purpose of this Part of this Schedule.
“Relevant environmental law” means—
in relation to a Northern Ireland public authority, UK environmental law or Northern Ireland environmental law;
in relation to any other relevant public authority, Northern Ireland environmental law.
“Relevant public authority” means—
a Northern Ireland public authority, or
a person, other than a Northern Ireland public authority, carrying out any function of a public nature in or as regards Northern Ireland that is not a parliamentary function or a function of any of the following persons—
the OEP;
a court or tribunal;
either House of Parliament;
the Northern Ireland Assembly.
“Northern Ireland public authority” means—
a Northern Ireland department, or
a person carrying out a Northern Ireland devolved function (including an implementation body carrying out such a function) that is not a function in connection with proceedings in the Northern Ireland Assembly or a function of any of the following persons—
the OEP;
a court or tribunal;
the Northern Ireland Assembly.
“Northern Ireland devolved function” means a function of a public nature exercisable in or as regards Northern Ireland that could be conferred by provision included in an Act of the Northern Ireland Assembly made without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998).
A person may make a complaint to the OEP under this paragraph if the person believes that a relevant public authority has failed to comply with relevant environmental law.
The OEP must prepare and publish a document which sets out the procedure by which complaints can be made.
A complaint under this paragraph must be made in accordance with that procedure (as most recently published).
A complaint under this paragraph may not be made by any person whose functions include functions of a public nature.
A complaint about a relevant public authority may not be made under this paragraph if—
the authority operates a procedure for considering complaints (“an internal complaints procedure”) under which the complaint could be considered, and
that procedure has not been exhausted.
A complaint under this paragraph may not be made after the later of—
the end of the 1 year period beginning with the day on which the alleged failure that is the subject of the complaint last occurred, and
if the substance of the complaint was subject to an internal complaints procedure, the end of the 3 month period beginning with the day on which that procedure was exhausted.
The OEP may waive the time limit in sub-paragraph (6) if it considers that there are exceptional reasons for doing so.
The OEP may carry out an investigation under this paragraph if it receives a complaint made under paragraph 6 that, in its view, indicates that—
a relevant public authority may have failed to comply with relevant environmental law, and
if it has, the failure would be a serious failure.
The OEP may carry out an investigation under this paragraph without having received such a complaint if it has information that, in its view, indicates that—
a relevant public authority may have failed to comply with relevant environmental law, and
if it has, the failure would be a serious failure.
An investigation under this paragraph is an investigation into whether the relevant public authority has failed to comply with relevant environmental law.
The OEP must notify the relevant public authority of the commencement of the investigation.
The OEP must prepare a report on the investigation and provide it to the relevant public authority.
The OEP is not required to prepare a report until it has concluded that it intends to take no further steps under this Part of this Schedule in relation to the alleged failure to comply with relevant environmental law that is the subject of the investigation.
The OEP is not required to prepare a report if it has made a review application, or an application for judicial review by virtue of paragraph 13(1), in relation to the alleged failure.
The report must set out—
whether the OEP considers that the relevant public authority has failed to comply with relevant environmental law,
the reasons the OEP came to that conclusion, and
any recommendations the OEP may have (whether generally or for the relevant public authority) in light of those conclusions.
The OEP may publish the report or parts of it.
If the public authority is not a Northern Ireland department, the OEP must also—
notify the relevant department of the commencement of the investigation, and
provide the relevant department with the report prepared under sub-paragraph (5).
In this Part “the relevant department”, in relation to a failure (or alleged failure) of a relevant public authority to comply with relevant environmental law, means the Northern Ireland department that the OEP considers appropriate having regard to the nature of the authority and the nature of the failure.
Where a person makes a complaint to the OEP alleging that a relevant public authority has failed to comply with relevant environmental law, the OEP must keep the complainant informed about its handling of the complaint.
In particular, the OEP must—
notify the complainant if it does not intend to consider the complaint because the complaint was not made in accordance with paragraph 6;
notify the complainant if it has concluded that it will not be commencing an investigation under paragraph 7 in relation to the complaint;
notify the complainant if it commences an investigation under paragraph 7 in relation to the complaint;
if such an investigation is commenced, notify the complainant—
where it provides a report under paragraph 7(5) to the relevant public authority that is the subject of the investigation, that it has provided it;
where it makes a review application (see paragraph 12), or an application for judicial review by virtue of paragraph 13(1), in relation to the alleged failure to comply with relevant environmental law that is the subject of the investigation, that it has made such an application;
provide the complainant with a copy of any document published under paragraph 7(9) in relation to any investigation in relation to the complaint.
The OEP may give an information notice to a relevant public authority if—
the OEP has reasonable grounds for suspecting that the authority has failed to comply with relevant environmental law, and
it considers that the failure, if it occurred, would be serious.
An information notice is a notice which—
describes an alleged failure of a relevant public authority to comply with relevant environmental law,
explains why the OEP considers that the alleged failure, if it occurred, would be serious, and
requests that the authority provide such information relating to the allegation as may be specified in the notice.
The recipient of an information notice must—
respond in writing to the notice, and
so far as is reasonably practicable, provide the OEP with the information requested in the notice.
The recipient of an information notice must comply with sub-paragraph (3) by—
the end of the 2 month period beginning with the day on which the notice was given, or
such later date as may be specified in the notice.
The written response to an information notice must set out—
the recipient’s response to the allegation described in the notice, and
what steps (if any) the recipient intends to take in relation to the allegation.
The OEP may—
withdraw an information notice;
give more than one information notice in respect of the same alleged failure of a relevant public authority to comply with relevant environmental law.
Where the OEP intends to give an information notice to a relevant public authority in respect of an alleged failure to comply with relevant environmental law which relates to emissions of greenhouse gases (within the meaning of the Climate Change Act 2008), the OEP—
must notify the Committee on Climate Change of its intention before it gives the notice to the authority, and
must provide that Committee with such information relating to the alleged failure as the OEP considers appropriate.
The OEP may give a decision notice to a relevant public authority if—
the OEP is satisfied, on the balance of probabilities, that the authority has failed to comply with relevant environmental law, and
it considers that the failure is serious.
A decision notice is a notice that—
describes a failure of a relevant public authority to comply with relevant environmental law,
explains why the OEP considers that the failure is serious, and
sets out the steps the OEP considers the authority should take in relation to the failure (which may include steps designed to remedy, mitigate or prevent reoccurrence of the failure).
The recipient of a decision notice must respond in writing to that notice by—
the end of the 2 month period beginning with the day on which the notice was given, or
such later date as may be specified in the notice.
The written response to a decision notice must set out—
whether the recipient agrees that the failure described in the notice occurred,
whether the recipient intends to take the steps set out in the notice, and
what other steps (if any) the recipient intends to take in relation to the failure described in the notice.
The OEP—
may not give a decision notice to a relevant public authority unless it has first given at least one information notice relating to the failure of the authority to comply with relevant environmental law that is described in the decision notice;
may withdraw a decision notice.
If the OEP gives an information notice or a decision notice to more than one relevant public authority in respect of the same or similar conduct, it may determine that those notices are linked.
A Northern Ireland department may request that the OEP determine that information notices or decision notices are linked and the OEP must have regard to that request.
The OEP must provide the recipient of an information notice or a decision notice (a “principal notice”) with a copy of every information notice or decision notice which is linked to it (and such a notice is referred to in this section as a “linked notice”).
The OEP must provide the recipient of a principal notice with a copy of any relevant correspondence, relating to a linked notice, between the OEP and the recipient of that linked notice.
The OEP must provide the recipient of a principal notice with a copy of any relevant correspondence between the OEP and the relevant department that relates to a linked notice.
Sub-paragraph (5) does not apply where either the recipient of the principal notice or the linked notice is a Northern Ireland department.
If the OEP considers that an information notice or a decision notice relates to conduct that is the same as or similar to conduct that is the subject of a UK information notice or UK decision notice, it may determine that those notices are linked.
The OEP must provide the recipient of an information notice or a decision notice with—
a copy of every UK information notice or UK decision notice which is linked to it, and
a copy of any relevant correspondence, relating to such a notice, between the OEP and the recipient of that notice.
The obligation to provide a copy of any notice or correspondence under this paragraph does not apply where the OEP considers that in the circumstances it would not be in the public interest to do so.
For the purposes of this paragraph, correspondence is relevant if—
it is not correspondence in connection with a review application or any other legal proceedings, and
it is not correspondence sent by virtue of paragraph 14(1)(a) or (b).
The OEP may make a review application in relation to conduct described in a decision notice given to a relevant public authority as a failure of the authority to comply with relevant environmental law, but only if—
it is satisfied, on the balance of probabilities, that the authority has failed to comply with relevant environmental law, and
it considers that the failure is serious.
A review application is an application for judicial review in respect of conduct of a relevant public authority, and any reference in this Part of this Schedule to a review application is to an application made by virtue of sub-paragraph (1).
A review application may not be made before the earlier of—
the end of the period within which the authority must respond to the decision notice that precedes the application (see paragraph 10(3)), and
the date on which the OEP receives the authority’s response to that notice.
Subject to that, the OEP may make a review application at any time (and accordingly any time limit, that would otherwise apply to the making of a review application, does not apply).
The High Court may grant a remedy on a review application only if Condition A or Condition B is met.
Condition A is that the court is satisfied that granting the remedy would not—
be likely to cause substantial hardship to, or substantially prejudice the rights of, any person other than the authority, or
be detrimental to good administration.
Condition B is that Condition A is not met but the court is satisfied that—
granting the remedy is necessary in order to prevent or mitigate serious damage to the natural environment or to human health, and
there is an exceptional public interest reason to grant it.
If, on a review application, there is a finding that a relevant public authority has failed to comply with relevant environmental law, and the finding has not been overturned on appeal, the authority must publish a statement that sets out the steps it intends to take in light of the finding.
A statement under sub-paragraph (8) must be published before the end of the 2 month period beginning with the day the proceedings relating to the review application (including any appeal) conclude.
In this Part of this Schedule reference to an application for judicial review includes an application for the permission of the High Court to apply for judicial review.
The OEP may make an application for judicial review in relation to conduct of a relevant public authority (whether or not it has given an information notice or a decision notice to the authority in respect of that conduct) if—
the OEP considers that the conduct constitutes a serious failure to comply with relevant environmental law, and
the urgency condition is met.
The urgency condition is that making an application under sub-paragraph (1) (rather than proceeding under paragraphs 9 to 12) is necessary to prevent, or mitigate, serious damage to the natural environment or to human health.
If, on an application for judicial review made by virtue of sub-paragraph (1), there is a finding that a relevant public authority has failed to comply with relevant environmental law, and the finding has not been overturned on appeal, the authority must publish a statement that sets out the steps it intends to take in light of the finding.
A statement under sub-paragraph (3) must be published before the end of the 2 month period beginning with the day the proceedings relating to the application for judicial review (including any appeal) conclude.
Sub-paragraph (6) applies to proceedings (including any appeal) that—
are in respect of an application for judicial review, and
relate to an alleged failure by a relevant public authority to comply with relevant environmental law (however the allegation is framed in those proceedings).
If the OEP considers that the alleged failure, if it occurred, would be serious, it may apply to intervene in the proceedings (whether it considers that the relevant public authority has, or has not, failed to comply with relevant environmental law).
Where the recipient of an information notice or a decision notice is not a Northern Ireland department, the OEP must—
provide the relevant department with—
a copy of the notice, and
a copy of any correspondence between the OEP and the recipient of the notice that relates to the notice (apart from correspondence sent by virtue of paragraph (b)), and
provide the recipient of the notice with a copy of any correspondence between the OEP and the relevant department that relates to the notice (apart from correspondence sent by virtue of paragraph (a)).
The obligation to provide a copy of any notice or correspondence under sub-paragraph (1) does not apply where the OEP considers that in the circumstances it would not be in the public interest to do so.
Where the OEP makes a review application, or an application for judicial review by virtue of paragraph 13(1), in which the relevant department is not a party, it must provide the relevant department with—
a copy of the application, and
a statement of whether the OEP considers the relevant department should participate in the review (for example, by applying to be a party).
Where the OEP gives an information notice or a decision notice, makes a review application or an application for judicial review by virtue of paragraph 13(1) or applies to intervene in a judicial review, it must publish a statement that—
states that the OEP has taken that step,
describes the failure (or alleged failure) of a relevant public authority to comply with relevant environmental law in relation to which that step was taken, and
sets out such further information as the OEP considers appropriate.
Sub-paragraph (1) does not apply if the OEP considers that in the circumstances it would not be in the public interest to publish a statement.
No obligation of secrecy imposed by statute or otherwise prevents a person from—
in accordance with section 27(1), providing the OEP with information in connection with an investigation under paragraph 7, an information notice or a decision notice, or
providing information to the OEP in accordance with paragraph 9(3)(b).
But nothing in this Part of this Schedule—
requires a person to provide the OEP with information that the person would be entitled to refuse to provide in civil proceedings on grounds of legal professional privilege (or, in Scotland, confidentiality of communications), or
requires a person to provide the OEP with information that the person would be entitled, or required by any rule of law, to refuse to provide in civil proceedings on grounds of public interest immunity.
No obligation of secrecy imposed by statute or otherwise prevents the Northern Ireland Public Services Ombudsman from providing information to the OEP—
for purposes connected with the exercise of the OEP’s functions under paragraph 7;
for purposes connected with the co-ordination of the OEP’s functions that relate to investigations under paragraph 7 and the Ombudsman’s functions that relate to investigations by the Ombudsman.
Nothing in this Part of this Schedule requires or authorises a disclosure of information that would contravene the data protection legislation (but in determining whether a disclosure would do so, take into account the duties imposed and powers conferred by this Part of this Schedule).
In this paragraph “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3(9) of that Act).
The OEP must not disclose—
information obtained under paragraph 9(3)(b), or
correspondence between the OEP and a relevant public authority that—
relates to a particular information notice or decision notice, or
is, or contains, such a notice.
Sub-paragraph (1) does not apply to a disclosure—
other than a disclosure of an information notice or a decision notice, made with the consent of the person who provided the information or correspondence;
made for purposes connected with an investigation under paragraph 7 or section 33;
made for purposes connected with the co-ordination of the OEP’s functions that relate to investigations under paragraph 7 and the Northern Ireland Public Services Ombudsman’s functions that relate to investigations by the Ombudsman;
made for purposes connected with the co-ordination of the OEP’s functions that relate to investigations under section 33 and functions of a relevant ombudsman that relate to investigations by that ombudsman;
made for the purposes of any publication of a report (or part of it) on an investigation under paragraph 7 or section 33;
made to a devolved environmental governance body for purposes connected with the exercise of a devolved environmental governance function;
made for purposes connected with the protection of the natural environment in a country or territory outside the United Kingdom, to an authority of that country or territory, or an international organisation, that has functions in connection with the protection of the natural environment in that country or territory;
of information, or correspondence, that relates only to a matter in relation to which the OEP has concluded that it intends to take no further steps under this Part of this Schedule or under Chapter 2 of Part 1 of this Act.
A relevant public authority must not disclose correspondence between the OEP and that, or any other, relevant public authority that—
relates to a particular information notice, decision notice, UK information notice or UK decision notice, or
is, or contains, such a notice.
Sub-paragraph (3) does not apply to a disclosure—
made—
in the case of a disclosure of correspondence between another relevant public authority and the OEP other than correspondence that is, or contains, an information notice, a decision notice, a UK information notice or a UK decision notice, with the consent of that authority and the OEP, or
in any other case, with the specific or general consent of the OEP;
made for purposes connected with co-operating with any investigation under paragraph 7 or section 33;
made for purposes connected with responding to any information notice or decision notice;
made for purposes connected with any proceedings in relation to a review application, an environmental review, a judicial review or a statutory review (within the meaning given by section 39(8)(b)).
The OEP may not give a person consent to disclose an information notice, a decision notice, a UK information notice or a UK decision notice unless that notice relates only to a matter in relation to which the OEP has concluded that it intends to take no further steps under this Part of this Schedule or under Chapter 2 of Part 1 of this Act.
If a relevant public authority requests the consent of the OEP to disclose correspondence that relates only to a matter in relation to which the OEP has concluded that it intends to take no further steps under this Part of this Schedule or under Chapter 2 of Part 1 of this Act, the OEP may not withhold that consent.
If information referred to in sub-paragraph (1) and held by the OEP, or referred to in sub-paragraph (3) and held by a relevant public authority, is environmental information for the purposes of the Environmental Information Regulations 2004 (S.I. 2004/3391) or the Environmental Information (Scotland) Regulations 2004 (S.S.I. 2004/520), it is held by that person, for the purposes of the application of those regulations to that information, in connection with confidential proceedings.
In this Part of this Schedule “Northern Ireland environmental law” means any Northern Ireland legislative provision that—
is mainly concerned with environmental protection, and
is not concerned with an excluded matter.
Excluded matters are—
disclosure of or access to information;
taxation, spending or the allocation of resources within government.
“Northern Ireland legislative provision” means—
legislative provision contained in, or in an instrument made under, Northern Ireland legislation, and
legislative provision not within paragraph (a) which, if contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Assembly and would not require the Secretary of State’s consent.
The Department may by regulations provide that a Northern Ireland legislative provision specified in the regulations is, or is not, within the definition of “Northern Ireland environmental law” in sub-paragraph (2) (and this Part of this Schedule applies accordingly).
Before making regulations under sub-paragraph (5) the Department must consult—
the OEP, and
any other persons the Department considers appropriate.
Regulations under sub-paragraph (5) are subject to the affirmative procedure.
In this Part of this Schedule— “application for judicial review” is to be read in accordance with paragraph 12(10); “current environmental improvement plan” has the meaning it has in Schedule 2 (see paragraph 1(8) of that Schedule); “decision notice” means a notice given under paragraph 10; “the Department” means the Department of Agriculture, Environment and Rural Affairs in Northern Ireland; “devolved environmental governance body” has the meaning it has in Part 1 of this Act (see section 47); “devolved environmental governance function” has the meaning it has in Part 1 of this Act (see section 47); “environmental improvement plan” has the meaning it has in Schedule 2 (see paragraphs 1 and 3(10) of that Schedule); “environmental protection” has the meaning it has in Schedule 2 (see paragraph 10 of that Schedule); “environmental review” has the meaning it has in Part 1 of this Act (see section 38); “implementation body” has the meaning it has in section 55 of the Northern Ireland Act 1998 (see subsection (3) of that section); “improving the natural environment”, in relation to an environmental improvement plan, is to be read in accordance with paragraph 1(5) of Schedule 2; “information notice” means a notice given under paragraph 9; “natural environment” has the meaning it has in Schedule 2 (see paragraph 9 of that Schedule); “Northern Ireland devolved function” has the meaning given by paragraph 5(5); “OEP” has the meaning given by section 22; “parliamentary function” means a function in connection with proceedings in Parliament or the Northern Ireland Assembly; “relevant department” has the meaning given by paragraph 7(11); “relevant environmental law” has the meaning given by paragraph 5(2); “relevant ombudsman” has the meaning it has in Part 1 of this Act (see section 23); “relevant public authority” has the meaning given by paragraph 5(3); “review application” has the meaning given by paragraph 12(2); “UK decision notice” has the meaning given by paragraph 11(11); “UK information notice” has the meaning given by paragraph 11(11).
Section 41(3) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) applies in relation to the laying of a document before the Northern Ireland Assembly under this Part of this Schedule, as it applies in relation to the laying of a statutory document under an Act of the Northern Ireland Assembly.
Amendments of the OEP’s general functions
This Act is amended in accordance with paragraphs 21 to 30.
Section 23 (principal objective of the OEP and exercise of its functions) is amended as follows.
In subsection (6)—
after paragraph (a) insert— ;
at the end of paragraph (b) insert “or paragraph 13(2) of Schedule 3,”;
omit the “and” at the end of paragraph (d);
after paragraph (d) insert— .
In subsection (7)(c) after “environmental law” insert “or Northern Ireland environmental law”.
After subsection (7) insert—
In section 24 (the OEP’s strategy: process), in subsection (1)(a) after “Parliament” insert “and the Northern Ireland Assembly”.
Section 25 (guidance on the OEP’s enforcement policy and functions) is amended as follows.
At the end of subsection (1) insert “, so far as relating to the OEP’s Part 1 enforcement functions.”
In subsection (2)—
in paragraph (a) after “policy,” insert “so far as relating to its Part 1 enforcement functions,”;
in paragraph (b) for “enforcement functions” substitute “Part 1 enforcement functions”.
In subsection (3) for “enforcement functions” substitute “Part 1 enforcement functions”.
After section 25 (guidance on the OEP’s enforcement policy and functions) insert—
Section 27 (co-operation duties of public authorities and the OEP) is amended as follows.
In subsection (2)—
in paragraph (d) for “, the Welsh Ministers, a Northern Ireland department or a Minister within the meaning of the Northern Ireland Act 1998” substitute “or the Welsh Ministers”;
in paragraph (f) for “devolved functions” substitute “Scottish devolved functions or Welsh devolved functions”.
In subsection (3) for “devolved functions”, in both places it occurs, substitute “Scottish devolved functions or Welsh devolved functions”.
After subsection (3) insert—
In section 37 (linked notices), after subsection (6) insert—
Section 43 (confidentiality of proceedings) is amended as follows.
In subsection (2)—
in paragraph (b) after “(investigations)” insert “or paragraph 7 of Schedule 3 (functions of the OEP in Northern Ireland)”;
after paragraph (c) insert— ;
in paragraph (d) after “section 33” insert “or paragraph 7 of Schedule 3”;
in paragraph (h) after “this Chapter” insert “or Part 1 of Schedule 3”.
In subsection (3)(a) for “or decision notice” substitute “, decision notice, Northern Ireland information notice or Northern Ireland decision notice”.
In subsection (4)—
in paragraph (a)(i) for “or a decision notice” substitute “, a decision notice, a Northern Ireland information notice or a Northern Ireland decision notice”;
in paragraph (b) after “section 33” insert “or paragraph 7 of Schedule 3”;
in paragraph (d) after “judicial review” insert “(which includes a review application)”.
In subsection (5)—
for “or a decision notice” substitute “, a decision notice, a Northern Ireland information notice or a Northern Ireland decision notice”;
after “this Chapter” insert “or Part 1 of Schedule 3”.
In subsection (6) after “this Chapter” insert “or Part 1 of Schedule 3”.
Section 47 (interpretation of Part 1 of the Act) is amended as follows.
The existing text becomes subsection (1).
In that subsection—
in the definition of “devolved environmental governance function”—
for “devolved function” substitute “Scottish devolved function or Welsh devolved function”;
after “this Part” insert “or Part 1 of Schedule 3 (functions of the OEP in Northern Ireland)”;
at the appropriate places insert— ; ; ; ; .
After that subsection insert—
Schedule 1 is amended as follows.
In paragraph 1—
in sub-paragraph (1), after paragraph (a) insert— ;
in sub-paragraph (2) after “Secretary of State” insert “, the Northern Ireland Department”;
in sub-paragraph (3)—
for “In making those appointments,” substitute “When exercising their functions of appointment”;
after “non-executive members” insert “(including the Northern Ireland member)”.
In paragraph 2 for sub-paragraphs (1) and (2) substitute—
In paragraph 3(3) after “Secretary of State” insert “and the Northern Ireland Department”.
In paragraph 5—
in sub-paragraph (4) after “of non-executive members” insert “(including the Northern Ireland member)”;
after that sub-paragraph insert— ;
for sub-paragraph (6) substitute—
In paragraph 10(4)—
in paragraph (d) after “information notice” insert “or a Northern Ireland information notice”;
in paragraph (e) after “decision notice” insert “or a Northern Ireland decision notice”;
after paragraph (g) insert— .
In paragraph 12—
in sub-paragraph (1)—
after “Secretary of State”, in the first place it occurs, insert “and the Northern Ireland Department”;
after “must” insert “, between them,”;
for “the Secretary of State considers” substitute “they consider”;
in sub-paragraph (2)—
after “Secretary of State”, in the first place it occurs, insert “, or the Northern Ireland Department,”;
after “Secretary of State”, in the second place it occurs, insert “, or that department,”.
In paragraph 13(2)(a) after “Parliament” insert “and the Northern Ireland Assembly”.
In paragraph 14—
in sub-paragraph (3) after “Secretary of State” insert “and the Northern Ireland Department”;
in sub-paragraph (4) after “Secretary of State” insert “, the Northern Ireland Department”;
in sub-paragraph (5)(b) after “Secretary of State” insert “, the Northern Ireland Department”;
in sub-paragraph (6) after “Parliament” insert “and the Northern Ireland Assembly”.
In paragraph 17 after “Secretary of State” insert “and the Northern Ireland Department”.
After paragraph 23 insert—
Schedule 2 (improving the natural environment: Northern Ireland) is amended as follows.
In paragraph 3(4)(b) after “under paragraph 5” insert “and reports made by the OEP under paragraph 1 of Schedule 3”.
In paragraph 4(4)(b) after “under paragraph 5” insert “and reports made by the OEP under paragraph 1 of Schedule 3”.
In paragraph 11(1), at the appropriate place insert— .
Producer responsibility obligations
Requirements
The relevant national authority may by regulations make provision for imposing producer responsibility obligations on specified persons in respect of specified products or materials.
The regulations may be made only for the purpose of—
preventing a product or material becoming waste, or reducing the amount of a product or material that becomes waste;
sustaining a minimum level of, or promoting or securing an increase in, the re-use, redistribution, recovery or recycling of products or materials.
In this Schedule “producer responsibility obligations” means steps required to be taken, in respect of products or materials, for a purpose in sub-paragraph (2).
The regulations may make provision about—
the persons to whom producer responsibility obligations apply;
the products or materials in relation to which producer responsibility obligations apply;
the obligations imposed by the regulations.
The regulations may make provision about targets to be achieved in relation to the proportion of products or materials (by weight, volume or otherwise) to be re-used, redistributed, recovered or recycled (either generally or in a specified way).
The regulations may make provision about circumstances in which a producer responsibility obligation is to be treated as met (in whole or in part) by payment of a sum of money, including provision about—
the manner in which and persons by whom the amount of such sums is to be determined, and
the persons to whom such sums are to be paid.
The regulations may make provision requiring the registration of persons who are subject to a producer responsibility obligation.
The regulations may make provision about—
applications for registration,
the imposition and variation of requirements in connection with registration,
the period for which registration is to remain in force, and
the cancellation of registration.
The regulations may require registers to be published or made available for inspection.
The regulations may make provision authorising or requiring persons who are subject to a producer responsibility obligation to become members of a compliance scheme.
The regulations may make provision about—
the approval, or withdrawal of approval, of compliance schemes by the relevant national authority,
the establishment, maintenance or management of a compliance scheme by a person appointed by the relevant national authority.
In this Schedule “compliance scheme” means a scheme under which producer responsibility obligations of members of the scheme are discharged by the scheme operator on their behalf.
The regulations may make provision about the registration of compliance schemes, including provision about—
requirements and criteria to be met before a compliance scheme may be registered,
applications for registration,
the imposition and variation of conditions in connection with registration,
the period for which registration is to remain in force,
the cancellation of registration.
The regulations may make provision about—
appeals against the refusal of registration, the imposition of conditions in connection with registration, or the cancellation of registration,
the procedure on the appeals.
The regulations may make provision about the position of persons and compliance schemes pending determination or withdrawal of an appeal, including provision about cases in which—
a compliance scheme is, or is not, to be treated as registered, or
a person is, or is not, to be treated as a member of a registered compliance scheme.
The regulations may require registers to be published or made available for inspection.
If it appears to the relevant national authority that any action proposed to be taken by the operator of a compliance scheme would be incompatible with an international agreement to which the United Kingdom is a party, it may direct the operator not to take the action in question.
If it appears to the relevant national authority that any action which the operator of a compliance scheme has power to take is required for the purpose of implementing an international agreement to which the United Kingdom is a party, it may direct the operator to take the action in question.
A direction under this paragraph—
may include consequential, supplementary, incidental, transitional or saving provision;
on the application of the relevant national authority, is enforceable—
by injunction, or
in Scotland, by interdict or by an order for specific performance under section 45 of the Court of Session Act 1988.
The regulations may make provision about certificates of compliance.
The regulations may make provision—
requiring persons who are not members of compliance schemes to provide certificates of compliance to an enforcement authority;
about the approval of persons by an enforcement authority for the purposes of issuing certificates of compliance.
In this Schedule “certificate of compliance” means a certificate which—
is issued by a person approved by an enforcement authority, and
states that the person issuing the certificate is satisfied that the person to whom it relates is complying with their producer responsibility obligations.
The regulations may include provision requiring an enforcement authority to give guidance to persons issuing certificates of compliance, including guidance as to matters which are, or are not, to be treated as evidence of compliance or non-compliance.
In this paragraph “enforcement authority” means a person on whom functions are conferred by regulations under Part 2 of this Schedule.
Before making regulations under this Part of this Schedule the relevant national authority must consult persons appearing to it to represent the interests of those likely to be affected.
The requirement in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.
Before making regulations under this Part of this Schedule the relevant national authority must be satisfied that—
making the regulations would be likely to achieve one or more of the purposes in paragraph 1(2);
making the regulations would produce environmental or economic benefits;
those benefits are significant as against the likely costs resulting from the imposition of the producer responsibility obligations;
the burdens imposed on businesses by the regulations are the minimum necessary to secure those benefits;
those burdens are imposed on the persons most able to make a contribution to securing those benefits—
having regard to the desirability of acting fairly between persons who manufacture, process, distribute or supply products or materials, and
taking account of the need to ensure that the proposed producer responsibility obligation is so framed as to be effective in achieving the purposes for which it is imposed.
Nothing in sub-paragraph (1)(e)(i) prevents regulations imposing a producer responsibility obligation on any class or description of person to the exclusion of any others.
Sub-paragraph (1) does not apply to regulations for the implementation of an international agreement to which the United Kingdom is a party.
The relevant national authority must exercise the power to make regulations under this Part in the way it considers best calculated to secure that—
the regulations do not have the effect of restricting, distorting or preventing competition, or
if the regulations are likely to have that effect, the effect is no greater than is necessary for achieving the environmental or economic benefits mentioned in paragraph 9(1).
In this Part of this Schedule—“operator”, in relation to a compliance scheme, includes any person responsible for establishing, maintaining or managing the scheme;“product” and “material” include a product or material at a time when it becomes, or has become, waste;“recovery”, in relation to products or materials, includes—composting them, or any other transformation of them by biological processes, or obtaining energy from them by any means;“specified” means specified in, or determined in accordance with, the regulations.
The regulations may specify, in relation to products or materials, activities, or the activities, which are to be treated for the purposes of this Part of this Schedule and the regulations as re-use, redistribution, recovery or recycling.
Enforcement
The relevant national authority may by regulations (“Part 2 regulations”) make provision about the enforcement of requirements imposed by regulations (“Part 1 regulations”) made by the authority under Part 1 of this Schedule.
Part 2 regulations may include provision conferring functions on one or more persons specified in the regulations (each of whom is an “enforcement authority” for the purposes of this Part).
Part 2 regulations may include provision—
conferring functions involving the exercise of discretion;
for the functions of an enforcement authority to be exercised on its behalf by persons authorised in accordance with the regulations.
Part 2 regulations may include provision requiring an enforcement authority to issue guidance about the exercise of its functions.
Part 2 regulations may include provision conferring on an enforcement authority the function of monitoring compliance with requirements imposed by Part 1 regulations.
Part 2 regulations may include provision—
requiring persons on whom requirements are imposed by Part 1 regulations to keep records;
requiring persons on whom requirements are imposed by Part 1 regulations to provide records or other information to an enforcement authority;
requiring an enforcement authority to make reports or provide information to the relevant national authority.
Part 2 regulations may include provision conferring on an enforcement authority powers of entry, inspection, examination, search and seizure.
Part 2 regulations may include provision—
for powers to be exercisable only under the authority of a warrant issued by a justice of the peace, sheriff, summary sheriff or lay magistrate;
about applications for, and the execution of, warrants.
Part 2 regulations must secure that the authority of a warrant is required for the exercise of any powers conferred by the regulations to—
enter premises by force;
enter a private dwelling without the consent of the occupier;
search and seize material.
Part 2 regulations may include provision—
for, about or connected with the imposition of civil sanctions in respect of—
failures to comply with Part 1 regulations or Part 2 regulations, or
the obstruction of or failure to assist an enforcement authority;
for appeals against such sanctions.
Part 2 regulations may include provision—
creating criminal offences punishable with a fine in respect of—
failures to comply with Part 1 regulations or Part 2 regulations,
failures to comply with civil sanctions imposed under Part 2 regulations, or
the obstruction of or failure to assist an enforcement authority;
about such offences.
In this paragraph “civil sanction” means a sanction of a kind for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 (fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings).
Part 2 regulations may include provision for the imposition of sanctions of that kind whether or not—
the conduct in respect of which the sanction is imposed constitutes an offence,
the enforcement authority is a regulator for the purposes of Part 3 of the Regulatory Enforcement and Sanctions Act 2008, or
the relevant national authority may make provision for the imposition of sanctions under that Part.
Part 2 regulations may include provision—
requiring persons on whom requirements are imposed by Part 1 regulations to pay charges, as a means of recovering costs incurred by an enforcement authority in performing its functions;
authorising a court or tribunal dealing with any matter under Part 1 regulations or Part 2 regulations to award to an enforcement authority costs incurred by it in performing its functions under the regulations in relation to that matter.
Before making Part 2 regulations the relevant national authority must consult any persons the authority considers appropriate.
The requirement in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.
Producer responsibility for disposal costs
Requirements
The relevant national authority may by regulations make provision requiring the payment of sums by specified persons, in respect of specified products or materials.
The regulations may be made only for the purpose of securing that those involved in manufacturing, processing, distributing or supplying products or materials meet, or contribute to, the disposal costs of the products or materials.
In this Schedule the “disposal costs” of products or materials means such costs incurred in connection with the disposal of the products or materials as may be specified in the regulations.
In this Schedule the “disposal” of products or materials includes their re-use, redistribution, recovery or recycling.
Disposal costs may include the costs of—
collecting and transporting products or materials for disposal,
sorting and treating products or materials,
other steps preparatory to disposal of products or materials, and
providing public information about the disposal of products or materials.
They may include costs incurred in relation to products or materials that have been disposed of unlawfully.
The regulations may make provision as to how the disposal costs of products or materials are to be calculated.
The regulations may make provision as to how the sums payable under the regulations are to be calculated.
They may include provision for the sums payable under the regulations to vary according to the design or composition of the products or materials to which the regulations relate, the methods by which they were produced or any other factor.
The regulations may appoint, or make provision for the appointment of, a person (an “administrator”) to administer provision made by the regulations.
More than one person may be appointed as an administrator.
The regulations may confer functions on an administrator (including functions involving the exercise of discretion).
References in this Schedule to an administrator include a person appointed by an administrator or exercising functions on an administrator’s behalf.
The regulations may require—
persons required to pay sums under the regulations to register with an administrator;
administrators to register with an enforcement authority appointed by regulations under Part 2 of this Schedule.
The regulations may make provision—
about applications for registration;
about the period for which registration has effect;
about the cancellation of registration.
The regulations may require persons required to register to pay, in connection with their registration, fees of an amount determined by or in accordance with the regulations.
The regulations may require registers to be published or made available for inspection.
The regulations may make provision for the sums payable under the regulations to be payable to an administrator.
The regulations may make provision as to how sums paid to the administrator are to be held by the administrator.
The regulations may make provision for sums paid to an administrator—
to be distributed by the administrator, in accordance with the regulations, among persons who have incurred disposal costs in relation to products or materials to which the regulations relate, or
to be paid to another administrator to be so distributed by that administrator.
The regulations may make provision for sums paid to an administrator to be repayable, in whole or in part, to the persons by whom they were payable (“liable persons”).
The regulations may make provision as to how sums repayable under the regulations are to be calculated.
They may include provision for the sums repayable under the regulations to vary according to the extent to which, or manner in which, liable persons dispose of products or materials to which the regulations relate, or meet or contribute to their disposal costs.
The regulations may include provision requiring the payment of charges to administrators, as a means of recovering costs incurred by administrators in performing functions under the regulations.
Before making regulations under this Part of this Schedule the relevant national authority must consult persons appearing to it to represent the interests of those likely to be affected.
The requirement in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.
Enforcement
The relevant national authority may by regulations (“Part 2 regulations”) make provision about the enforcement of requirements imposed by regulations (“Part 1 regulations”) made by the authority under Part 1 of this Schedule.
Part 2 regulations may include provision conferring functions on one or more persons specified in the regulations (each of whom is an “enforcement authority” for the purposes of this Part).
Part 2 regulations may include provision—
conferring functions involving the exercise of discretion;
for the functions of an enforcement authority to be exercised on its behalf by persons authorised in accordance with the regulations.
Part 2 regulations may include provision requiring an enforcement authority to issue guidance about the exercise of its functions.
Part 2 regulations may include provision conferring on an enforcement authority the function of monitoring compliance with requirements imposed by Part 1 regulations.
Part 2 regulations may include provision—
requiring persons on whom requirements are imposed by Part 1 regulations to keep records;
requiring persons on whom requirements are imposed by Part 1 regulations to provide records or other information to an enforcement authority or (where the person is not an administrator) an administrator;
requiring an enforcement authority to make reports or provide information to the relevant national authority.
Part 2 regulations may include provision conferring on an enforcement authority powers of entry, inspection, examination, search and seizure.
Part 2 regulations may include provision—
for powers to be exercisable only under the authority of a warrant issued by a justice of the peace, sheriff, summary sheriff or lay magistrate;
about applications for, and the execution of, warrants.
Part 2 regulations must secure that the authority of a warrant is required for the exercise of any powers conferred by the regulations to—
enter premises by force;
enter a private dwelling without the consent of the occupier;
search and seize material.
Part 2 regulations may include provision—
for, about or connected with the imposition of civil sanctions in respect of—
failures to comply with Part 1 regulations or Part 2 regulations, or
the obstruction of or failure to assist an enforcement authority;
for appeals against such sanctions.
Part 2 regulations may include provision—
creating criminal offences punishable with a fine in respect of—
failures to comply with civil sanctions imposed under Part 2 regulations, or
the obstruction of or failure to assist an enforcement authority;
about such offences.
In this paragraph “civil sanction” means a sanction of a kind for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 (fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings).
Part 2 regulations may include provision for the imposition of sanctions of that kind whether or not—
the conduct in respect of which the sanction is imposed constitutes an offence,
the enforcement authority is a regulator for the purposes of Part 3 of the Regulatory Enforcement and Sanctions Act 2008, or
the relevant national authority may make provision for the imposition of sanctions under that Part.
Part 2 regulations may include provision—
requiring persons on whom requirements are imposed by Part 1 regulations to pay charges, as a means of recovering costs incurred by an enforcement authority in performing its functions;
authorising a court or tribunal dealing with any matter under Part 1 regulations or Part 2 regulations to award to an enforcement authority costs incurred by it in performing its functions in relation to that matter.
Before making regulations under this Part of this Schedule the relevant national authority must consult any persons the authority considers appropriate.
The requirement in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.
Resource efficiency information
Requirements
The relevant national authority may by regulations make provision for the purposes of requiring specified persons, in specified circumstances, to provide specified information about the resource efficiency of specified products.
The regulations may not make such provision in relation to a product which is—
a medicinal product, within the meaning of the Human Medicines Regulations 2012 (S.I. 2012/1916);
a veterinary medicinal product, within the meaning of the Veterinary Medicines Regulations 2013 (S.I. 2013/2033);
food, within the meaning of article 2 of Regulation (EC) No. 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety.
Sub-paragraph (2) does not prevent the regulations making provision in relation to a product which is not within that sub-paragraph, but is packaging for a product which is within that sub-paragraph.
Information about resource efficiency, in relation to a product, means information which—
is within sub-paragraph (2) or (3), and
is relevant to the product’s impact on the natural environment.
The information within this sub-paragraph is information about—
the expected life of the product;
aspects of the product’s design which affect its expected life;
the availability or cost of component parts, tools, or anything else required to repair or maintain the product;
whether the product can be upgraded, and the availability or cost of upgrades;
any other matter relevant to repairing, maintaining, remanufacturing or otherwise prolonging the expected life of, the product;
the ways in which the product can be disposed of at the end of its life (including whether and to what extent it can be recycled, and whether materials used in it can be extracted and reused or recycled).
The information within this sub-paragraph is information about—
the materials from which the product is manufactured;
the techniques used in its manufacture;
the resources consumed during its production or use;
the pollutants (including greenhouse gases within the meaning of section 92 of the Climate Change Act 2008) released or emitted at any stage of the product’s production, use or disposal.
The regulations may impose requirements to provide information in relation to a product on a person only if the person is a person connected with the manufacture, import, distribution, sale or supply of the product.
The regulations may include provision—
about how information about a product is to be provided (for example, by affixing a label to the product);
conferring on specified persons the function of determining whether specified products or materials have specified properties or characteristics (for example, whether they can be recycled) and publishing the results of such determinations;
specifying a scheme for classifying products by reference to matters about which resource efficiency information must be provided;
requiring information provided about a product to be determined according to specified criteria (for example, according to results published by virtue of paragraph (b) or classification schemes under paragraph (c)).
Before making regulations under this Part of this Schedule the relevant national authority must—
consult any persons the authority considers appropriate, and
have regard to the matters in sub-paragraph (2).
The matters are—
the extent to which the proposed regulations are likely to reduce the product’s impact on the natural environment at any stage of its production, use or disposal;
the environmental, social, economic or other costs of complying with the regulations;
whether exemptions should be given, or other special provision made, for smaller businesses.
The requirement in sub-paragraph (1)(a) may be met by consultation carried out before this paragraph comes into force.
In this Part of this Schedule— “natural environment” has the same meaning as in Part 1 of this Act (see section 44); “product” includes a product which is a component part of, or packaging for, another product; “specified” means specified in, or determined in accordance with, the regulations.
Enforcement
The relevant national authority may by regulations (“Part 2 regulations”) make provision about the enforcement of requirements imposed by regulations (“Part 1 regulations”) made by the authority under Part 1 of this Schedule.
Part 2 regulations may include provision conferring functions on one or more persons specified in the regulations (each of whom is an “enforcement authority” for the purposes of this Part).
Part 2 regulations may include provision—
conferring functions involving the exercise of discretion;
for the functions of an enforcement authority to be exercised on its behalf by persons authorised in accordance with the regulations.
Part 2 regulations may include provision requiring an enforcement authority to issue guidance about the exercise of its functions.
Part 2 regulations may include provision conferring on an enforcement authority the function of monitoring compliance with requirements imposed by Part 1 regulations (which may include the function of testing or assessing products).
Part 2 regulations may include provision—
requiring persons on whom requirements are imposed by Part 1 regulations to keep records;
requiring persons on whom requirements are imposed by Part 1 regulations to provide records or other information to an enforcement authority;
requiring an enforcement authority to make reports or provide information to the relevant national authority.
Part 2 regulations may include provision conferring on an enforcement authority powers of entry, inspection, examination, search and seizure.
Part 2 regulations may include provision—
for powers to be exercisable only under the authority of a warrant issued by a justice of the peace, sheriff, summary sheriff or lay magistrate;
about applications for, and the execution of, warrants.
Part 2 regulations must secure that the authority of a warrant is required for the exercise of any powers conferred by the regulations to—
enter premises by force;
enter a private dwelling without the consent of the occupier;
search and seize material.
Part 2 regulations may include provision—
for, about or connected with the imposition of civil sanctions in respect of—
failures to comply with Part 1 regulations or Part 2 regulations, or
the obstruction of or failure to assist an enforcement authority;
for appeals against such sanctions.
Part 2 regulations may include provision—
creating criminal offences punishable with a fine in respect of—
failures to comply with civil sanctions imposed under Part 2 regulations, or
the obstruction of or failure to assist an enforcement authority;
about such offences.
In this paragraph “civil sanction” means a sanction of a kind for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 (fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings).
Part 2 regulations may include provision for the imposition of sanctions of that kind whether or not—
the conduct in respect of which the sanction is imposed constitutes an offence,
the enforcement authority is a regulator for the purposes of Part 3 of the Regulatory Enforcement and Sanctions Act 2008, or
the relevant national authority may make provision for the imposition of sanctions under that Part.
Part 2 regulations may include provision—
requiring persons on whom requirements are imposed by Part 1 regulations to pay costs incurred by an enforcement authority in performing its functions;
authorising a court or tribunal dealing with any matter under Part 1 regulations or Part 2 regulations to award to an enforcement authority costs incurred by it in performing its functions in relation to that matter.
Before making Part 2 regulations the relevant national authority must consult any persons the authority considers appropriate.
The requirement in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.
Resource efficiency requirements
Requirements
The relevant national authority may by regulations make provision for the purposes of requiring specified products, in specified circumstances, to meet specified resource efficiency requirements.
The regulations may not make such provision in relation to a product which is—
an energy-related product, within the meaning of the Ecodesign for Energy-Related Products Regulations 2010 (S.I. 2010/2617);
a medicinal product, within the meaning of the Human Medicines Regulations 2012 (S.I. 2012/1916);
a veterinary medicinal product, within the meaning of the Veterinary Medicines Regulations 2013 (S.I. 2013/2033);
food, within the meaning of article 2 of Regulation (EC) No. 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety.
Sub-paragraph (2) does not prevent the regulations making provision in relation to a product which is not within that sub-paragraph, but is packaging for a product which is within that sub-paragraph.
“Resource efficiency requirements”, in relation to a product, means requirements which—
are within sub-paragraph (2) or (3), and
are relevant to the product’s impact on the natural environment.
The requirements within this sub-paragraph are requirements relating to—
aspects of the product’s design which affect its expected life;
the availability or cost of component parts, tools, or anything else required to repair or maintain the product;
whether the product can be upgraded, and the availability or cost of upgrades;
any other matter relevant to repairing, maintaining, remanufacturing or otherwise prolonging the expected life of, the product;
the ways in which the product can be disposed of at the end of its life (including whether and to what extent it can be recycled, and whether materials used in it can be extracted and reused or recycled).
The requirements within this sub-paragraph are requirements relating to—
the materials from which the product is manufactured;
the techniques used in its manufacture;
the resources consumed during its production or use;
the pollutants (including greenhouse gases within the meaning of section 92 of the Climate Change Act 2008) released or emitted at any stage of the product’s production, use or disposal.
Resource efficiency requirements may be specified by reference to standards prepared by a specified person.
The regulations may impose resource efficiency requirements on a person only if the person is connected with the manufacture, import, distribution, sale or supply of the product.
The regulations may include provision—
prohibiting a product being distributed, sold or supplied unless it meets resource efficiency requirements;
requiring persons connected with the manufacture, import, distribution, sale or supply of a product to provide information to other such persons.
The regulations may include provision—
about how and by whom a product’s compliance with resource efficiency requirements is to be determined;
for appeals against such determinations;
about how a product’s compliance with resource efficiency requirements is to be evidenced (for example, by affixing a label or applying a marking to a product).
Before making regulations under this Part of this Schedule the relevant national authority must—
consult such persons as the authority considers appropriate, and
where sub-paragraph (3) or (4) applies, publish for the purposes of the consultation—
the authority’s assessment of the matters it must be satisfied of, and
a draft of the regulations.
The requirements in sub-paragraph (1) may be met by consultation carried out, and assessments and draft regulations published, before this paragraph comes into force.
Before making regulations under this Part of this Schedule in relation to a new product, the relevant national authority must be satisfied that—
the product has a significant impact on the natural environment at any stage of its production, use or disposal,
the proposed regulations would be likely to reduce the product’s impact on the natural environment,
the benefit of that would be significant as against the likely environmental, social, economic or other costs of the proposed regulations, and
a reduction in the product’s impact on the natural environment could not be achieved as effectively without making the regulations.
Before making regulations under this Part of this Schedule which— the relevant national authority must be satisfied of the matters in sub-paragraph (3)(b) to (d).
specify additional resource efficiency requirements in relation to a product, or
specify additional persons who must meet resource efficiency requirements in relation to a product,
A “new product” means a product in relation to which there are no existing regulations made by the relevant national authority under this Part of this Schedule.
Before making regulations under this Part of this Schedule the relevant national authority must consider whether exemptions should be given, or other special provision made, for smaller businesses.
In this Part of this Schedule— “natural environment” has the same meaning as in Part 1 of this Act (see section 44); “product” includes a product which is a component part of, or packaging for, another product; “specified” means specified in, or determined in accordance with, the regulations.
Enforcement
The relevant national authority may by regulations (“Part 2 regulations”) make provision about the enforcement of requirements imposed by regulations (“Part 1 regulations”) made by the authority under Part 1 of this Schedule.
Part 2 regulations may include provision conferring functions on one or more persons specified in the regulations (each of whom is an “enforcement authority” for the purposes of this Part).
Part 2 regulations may include provision—
conferring functions involving the exercise of discretion;
for the functions of an enforcement authority to be exercised on its behalf by persons authorised in accordance with the regulations.
Part 2 regulations may include provision requiring an enforcement authority to issue guidance about the exercise of its functions.
Part 2 regulations may include provision conferring on an enforcement authority the function of monitoring compliance with requirements imposed by Part 1 regulations (which may include the function of testing or assessing products).
Part 2 regulations may include provision—
requiring persons on whom requirements are imposed by Part 1 regulations to keep records;
requiring persons on whom requirements are imposed by Part 1 regulations to provide records or other information to an enforcement authority;
requiring an enforcement authority to make reports or provide information to the relevant national authority.
Part 2 regulations may include provision conferring on an enforcement authority powers of entry, inspection, examination, search and seizure.
Part 2 regulations may include provision—
for powers to be exercisable only under the authority of a warrant issued by a justice of the peace, sheriff, summary sheriff or lay magistrate;
about applications for, and the execution of, warrants.
Part 2 regulations must secure that the authority of a warrant is required for the exercise of any powers conferred by the regulations to—
enter premises by force;
enter a private dwelling without the consent of the occupier;
search and seize material.
Part 2 regulations may include provision—
for, about or connected with the imposition of civil sanctions in respect of—
failures to comply with Part 1 regulations or Part 2 regulations, or
the obstruction of or failure to assist an enforcement authority;
for appeals against such sanctions.
Part 2 regulations may include provision—
creating criminal offences punishable with a fine in respect of—
failures to comply with civil sanctions imposed under Part 2 regulations, or
the obstruction of or failure to assist an enforcement authority;
about such offences.
In this paragraph “civil sanction” means a sanction of a kind for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 (fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings).
Part 2 regulations may include provision for the imposition of sanctions of that kind whether or not—
the conduct in respect of which the sanction is imposed constitutes an offence,
the enforcement authority is a regulator for the purposes of Part 3 of the Regulatory Enforcement and Sanctions Act 2008, or
the relevant national authority may make provision for the imposition of sanctions under that Part.
Part 2 regulations may include provision—
requiring persons on whom requirements are imposed by Part 1 regulations to pay costs incurred by an enforcement authority in performing its functions;
authorising a court or tribunal dealing with any matter under Part 1 regulations or Part 2 regulations to award to an enforcement authority costs incurred by it in performing its functions under the regulations in relation to that matter.
Before making Part 2 regulations the relevant national authority must consult any persons the authority considers appropriate.
The requirement in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.
Deposit schemes
The relevant national authority may by regulations establish deposit schemes for any of the following purposes—
sustaining, promoting or securing an increase in the recycling or reuse of materials;
reducing the incidence of littering or fly-tipping.
A deposit scheme is a scheme under which—
a person supplied with a deposit item by a scheme supplier pays the supplier an amount (a “deposit”), and
a person who provides a deposit item to a scheme collector is entitled to be paid an amount (a “refund”) in respect of that item by the collector.
A “deposit item” is a specified item that is supplied—
by way of sale, or
in connection with the supply of goods or services.
A deposit scheme may make provision about the circumstances in which a deposit or refund is to be paid in respect of a deposit item.
A person may be specified—
as a scheme supplier if the person is a supplier or producer of deposit items;
as a scheme collector if the person is a supplier or producer of deposit items or is a scheme administrator (see paragraph 4).
A deposit scheme may provide that the amount of the deposit or refund in respect of a deposit item is—
an amount specified,
an amount determined and published by the relevant national authority in accordance with the scheme, or
an amount determined by a scheme administrator in accordance with the scheme.
In this paragraph “specified” means specified or described in a deposit scheme.
A deposit scheme may impose requirements on a scheme supplier in connection with the scheme, including requirements—
to take steps to ensure deposits are paid in respect of deposit items in accordance with the scheme (which may include a requirement to include the amount of the deposit in the sale price of the item, or in the price of goods or services the item was supplied in connection with);
as to the marking of deposit items to identify them as such;
as to the retention of deposits;
to pay amounts received as deposits to other scheme suppliers, scheme collectors or to a scheme administrator;
in connection with securing that a specified proportion of deposit items supplied by scheme suppliers, or by individual scheme suppliers, are returned to scheme collectors;
to keep records in connection with the scheme;
to provide those records or other information in connection with the scheme to a scheme administrator.
A deposit scheme may impose different requirements on different scheme suppliers.
In this paragraph “specified” means specified in a deposit scheme.
A deposit scheme may impose requirements on a scheme collector in connection with the scheme, including requirements—
to pay a person who provides a deposit item a refund in accordance with the scheme;
to pay a person who provides a deposit item under another deposit scheme an amount determined in accordance with the scheme (and the scheme may provide for that amount to be determined by reference to the other deposit scheme);
to pay a person who provides articles or packaging that are the subject of a Scottish deposit and return scheme an amount determined in accordance with the scheme (and the scheme may provide for that amount to be determined by reference to the Scottish deposit and return scheme);
to recycle, re-use, or arrange or facilitate the recycling or re-use of any item provided to them in accordance with the scheme (which may include articles or packaging that are the subject of a Scottish deposit and return scheme);
to otherwise dispose of such items in accordance with the scheme;
where a scheme collector receives any payment in connection with the recycling or disposal of such an item, to retain that amount or to pay it, or a part of it, to a scheme administrator;
as to the retention of any amounts received from scheme suppliers, other scheme collectors or a scheme administrator;
to pay such amounts received to scheme suppliers, other scheme collectors or a scheme administrator;
in connection with securing that a specified proportion of deposit items supplied by scheme suppliers, or by individual scheme suppliers, are returned to scheme collectors;
to keep records in connection with the scheme;
to provide those records or other information in connection with the scheme to a scheme administrator.
A deposit scheme may impose different requirements on different scheme collectors.
In this paragraph “specified” means specified in a deposit scheme.
A person may be appointed as a scheme administrator of a deposit scheme by, or in accordance with, that scheme.
A deposit scheme may confer functions (including functions involving the exercise of discretion) on a scheme administrator, including—
any requirement that could be imposed on a scheme collector by virtue of paragraph 3(1)(a) to (e);
functions relating to the registration of scheme suppliers and scheme collectors;
a power to charge fees for registration (the amounts of which may be such as to recover the costs referred to in paragraphs (d) and (e));
a power to use such fees to meet the costs of exercising its functions under, or in connection with, the scheme;
requirements to pay such fees to persons exercising functions conferred by virtue of paragraph 5 for the purpose of meeting the costs of the exercise of those functions;
a power to give general or specific directions to scheme suppliers and scheme collectors as to the matters mentioned in paragraphs 2(1) and 3(1);
a power to make payments to scheme collectors to reimburse them in respect of the payment of refunds or payments made by virtue of a requirement under paragraph 3(1)(a), (b) or (c);
a power to make payments to another scheme administrator of the deposit scheme;
a power to make payments to a scheme administrator of another deposit scheme in connection with the operation of the scheme, or the operation of the other scheme;
a power to make payments to a Scottish deposit administrator in connection with the operation of the scheme, or the operation of the Scottish deposit and return scheme in relation to which the Scottish deposit administrator is exercising functions;
requirements to retain amounts received by it under or by virtue of the scheme;
a power to use such amounts, or to pay such amounts to another person, for purposes connected with the scheme, or other deposit schemes;
a power to use such amounts for purposes connected with the protection of the environment;
requirements to pay such amounts to the relevant national authority;
functions relating to securing compliance by scheme suppliers and scheme collectors with their obligations under the scheme;
requirements in connection with securing that a specified proportion of deposit items supplied by scheme suppliers, or by individual scheme suppliers, are returned to scheme collectors;
requirements to keep records in connection with the scheme;
requirements to provide any such records or other information in connection with the scheme to the relevant national authority;
requirements as to the exercise of the administrator’s functions.
Where there is more than one scheme administrator, a deposit scheme may confer different functions on different scheme administrators.
A deposit scheme may confer a power on the relevant national authority to give directions to a scheme administrator of the scheme as to the exercise of the administrator’s functions under the scheme.
In this paragraph “specified” means specified in a deposit scheme.
The relevant national authority may by regulations make provision about the enforcement of requirements under deposit schemes.
The provision that may be made under sub-paragraph (1) includes provision—
conferring functions (including functions involving the exercise of discretion) in connection with the enforcement of requirements under deposit schemes on specified persons (which may include scheme administrators);
for such functions of such a person to be exercised on the person’s behalf by persons authorised in accordance with the regulations;
requiring scheme suppliers, scheme collectors or scheme administrators to provide records and other information relating to deposit schemes to specified persons;
for, about or connected with the imposition of civil sanctions in respect of failures to comply with relevant requirements, or the obstruction of or failure to assist a person having functions in connection with the enforcement of relevant requirements;
for appeals against such sanctions;
creating criminal offences punishable with a fine in respect of failures to comply with civil sanctions, or the obstruction of or failure to assist a person having functions in connection with the enforcement of relevant requirements;
about such offences.
For the purposes of this paragraph “civil sanction” means a sanction of a kind for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 (fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings).
Regulations under sub-paragraph (1) may include provision for the imposition of sanctions of that kind whether or not—
the conduct in respect of which the sanction is imposed constitutes an offence,
the person imposing them is a regulator for the purposes of Part 3 of the Regulatory Enforcement and Sanctions Act 2008, or
the relevant national authority may make provision for the imposition of sanctions under that Part.
In this paragraph— “relevant requirement” means any requirement imposed by or under a deposit scheme or regulations under sub-paragraph (1); “specified” means specified in, or determined in accordance with, regulations under sub-paragraph (1).
In this Schedule— “deposit” has the meaning it has in paragraph 1(2)(a); “deposit item” has the meaning it has in paragraph 1(3); “deposit scheme” has the meaning it has in paragraph 1(2); “refund” has the meaning it has in paragraph 1(2)(b); “scheme administrator”, in relation to a deposit scheme, means a person appointed as a scheme administrator of the scheme; “scheme supplier” or “scheme collector” means a person specified as such (see paragraph 1(5)); “Scottish deposit administrator” means a person exercising the functions of a scheme administrator in relation to a Scottish deposit and return scheme; “Scottish deposit and return scheme” means a deposit and return scheme under section 84 of the Climate Change (Scotland) Act 2009 (asp 12).
Charges for single use items
The relevant national authority may by regulations make provision about charging by sellers of goods or services for items specified in the regulations.
Regulations made by the Secretary of State or the Welsh Ministers may specify only items which—
are single use items, and
are supplied in connection with goods or services.
Regulations made by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland may specify only items which—
are single use items,
are made wholly or partly of plastic, and
are supplied in connection with goods or services.
A “single use item” is a manufactured item which is likely to be used only once, or used only for a short period of time, before being disposed of.
An item is supplied in connection with goods or services if it is supplied—
at the place the goods or services are sold or provided, for the purpose of enabling the goods to be taken away, used or consumed, or enabling the services to be received, or
for the purpose of enabling goods to be delivered.
In particular, a container or other packaging into which goods are placed at the point of sale is supplied in connection with goods.
The regulations may make provision requiring sellers of goods or services to charge for items specified in the regulations.
“Seller”, in relation to goods or services, has the meaning given by the regulations.
The regulations may define that term by reference (in particular) to— or any combination of those factors.
a person’s involvement in selling the goods or services,
a person’s interest in goods or services, or
a person’s interest in the place at or from which the goods or services are sold or provided,
The regulations may make provision for the regulations to apply—
to all sellers of goods or services, or
to sellers of goods or services identified by reference to factors specified in the regulations.
The factors which may be specified in the regulations include—
the place or places at or from which a seller supplies goods or services,
the type of goods or services that a seller supplies,
the value of goods or services that a seller supplies, and
a seller’s turnover or any part of that turnover.
The regulations may specify the minimum amount that a seller must charge for an item specified in the regulations, or provide for that amount to be determined in accordance with the regulations.
The regulations may appoint a person (an “administrator”) to administer provision made by the regulations.
More than one person may be appointed as an administrator.
The regulations may confer functions on an administrator (including functions involving the exercise of discretion).
References in this Schedule to an administrator include a person appointed by an administrator or exercising functions on an administrator’s behalf.
The regulations may require sellers to register with an administrator.
The regulations may make provision—
about applications for registration;
about the period for which registration has effect;
about the cancellation of registration.
The regulations may require sellers to pay to the administrator, in connection with their registration, fees of an amount determined by or in accordance with the regulations.
The regulations may provide for the amount of the fees to be such as to recover the costs incurred by the administrator in performing its functions under the regulations.
The regulations may require records to be kept relating to charges made for items specified in the regulations.
The regulations may require the records, or such other information as may be specified—
to be published at such times and in such manner as may be specified;
to be supplied on request and in such manner as may be specified to—
the relevant national authority,
an administrator, or
members of the public.
The regulations may (in particular) require the publication or supply of records or information relating to any of the following—
the amount received by a seller by way of charges for items specified in the regulations;
the seller’s gross or net proceeds of the charge;
the uses to which the net proceeds of the charge have been put.
In this paragraph— “gross proceeds of the charge” means the amount received by the seller by way of charges for items specified in the regulations; “net proceeds of the charge” means the seller’s gross proceeds of the charge reduced by such amount as may be specified.
The regulations may confer functions on an administrator to enforce provision made by the regulations.
The regulations may (in particular) confer powers on an administrator to—
require the production of documents or the provision of information, or
question a seller or officers or employees of a seller.
Regulation under sub-paragraph (2) must contain provision for ensuring that the power in question is exercised by a person only where the person reasonably believes there has been a failure to comply with a requirement of regulations under this Schedule.
The regulations may make provision for, about or connected with the imposition of civil sanctions in respect of failures to comply with the regulations, or the obstruction of or failure to assist a person on whom functions are conferred by the regulations.
The regulations may make provision for appeals against such sanctions.
In this paragraph “civil sanction” means a sanction of a kind for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 (fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings).
The regulations may include provision for the imposition of sanctions of that kind whether or not—
the conduct in respect of which the sanction is imposed constitutes an offence,
the enforcement authority is a regulator for the purposes of Part 3 of the Regulatory Enforcement and Sanctions Act 2008, or
the relevant national authority may make provision for the imposition of sanctions under that Part.
Enforcement powers
In section 5(6) of the Control of Pollution (Amendment) Act 1989 (constable’s power to seize vehicles and contents)—
in paragraph (b) after “presence of” insert “or at the request of”;
in paragraph (c) for “without such an officer present” substitute “in any other case”.
In section 34B(6) of the Environmental Protection Act 1990 (constable’s power to seize vehicles and contents)—
in paragraph (b) after “presence of” insert “or at the request of”;
in paragraph (c) for “without such an officer present” substitute “in any other case”.
Section 57 of the Environmental Protection Act 1990 (power to give directions) is amended as follows.
In subsection (2) omit the words from “with a view” to the end.
After subsection (2) insert—
In subsection (4), for “of treating or disposing of” substitute “in relation to”.
After subsection (4) insert—
In subsection (7) for the words from “, where” to the end substitute “pay any costs mentioned in subsection (4).”
After subsection (7) insert—
In subsection (8), before the definition of “specified” insert—.
The Environment Act 1995 is amended as follows.
Section 108 (powers of enforcing authorities and their authorised officers) is amended as follows.
In subsection (4), after paragraph (k) insert—.
In subsection (6), omit paragraph (a).
After subsection (7) insert—
After subsection (12) insert—
In subsection (15)—
after the definition of “authorised person” insert—;
after the definition of “enforcing authority” insert—;
in the definition of “pollution control functions” in relation to a waste collection authority, in paragraph (a) after “46” insert “to 46D”.
Schedule 18 (supplemental provision about powers of entry) is amended as follows.
In paragraph 2—
after sub-paragraph (2) insert—;
omit sub-paragraph (3).
In paragraph 3 after “shall” insert “, if so required,”.
Local air quality management framework
The Environment Act 1995 is amended as follows.
Section 80 (national air quality strategy) is amended as follows.
Omit subsection (3).
After subsection (4) insert—
After that section insert—
After section 81 insert—
Section 82 (local authority reviews) is amended as follows.
In subsection (3)—
for “If” substitute “This subsection applies to a local authority where”;
omit the words from “, the local authority shall” to the end.
After subsection (3) insert—
After section 83 insert—
Section 84 (duties of local authorities in relation to designated areas) is amended as follows.
In the heading, after “of” insert “Scottish and Welsh”.
Before subsection (2) insert—
Omit subsection (5).
After section 85 insert—
Section 86 (functions of county councils for areas for which there are district councils) is amended as follows.
Omit subsection (1).
In subsection (2), for the words before paragraph (a) substitute “A county council for an area in England for which there are district councils may make recommendations to any of those district councils with respect to the carrying out of—”.
After subsection (2) insert—
For subsections (3) to (5) substitute—
In subsection (6), in paragraph (a), after “district council” insert “of a district in England for which there is a county council”.
In subsection (7)—
in paragraph (a), omit the words from “above or” to the end;
in paragraph (b)—
omit “or statement”;
omit “or (4) above”;
in paragraph (c)—
omit “or statement”;
omit “or (4) above”.
For section 86A substitute—
Section 87 (regulations) is amended as follows.
In subsection (2)—
in paragraph (c), after “authorities” insert “, relevant county councils, relevant public authorities or the Agency”;
in paragraph (j), after “otherwise)” insert “, relevant county councils, relevant public authorities, the Agency”;
in paragraph (l), after “authorities” insert “, relevant county councils, relevant public authorities or the Agency”;
in paragraph (m)—
after “local authority” insert “, a relevant county council, a relevant public authority or the Agency”;
after “the authority”, in both places it occurs, insert “, council or Agency”.
After that subsection insert—
In section 88, in subsection (3), after “district councils” insert “, relevant public authorities and the Agency”.
In section 91 (interpretation), in subsection (1)—
for the definition of “action plan” substitute— ;
at the appropriate places insert— ; ; .
In Schedule 11 (air quality: supplemental provisions), in paragraph 1(2), for paragraph (d) substitute— .
Smoke control in England and Wales
Principal amendments to the Clean Air Act 1993: England
The Clean Air Act 1993 is amended as follows.
After section 19 insert—
After Schedule 1 insert—
After section 19A (as inserted by paragraph 2 above)—
After section 26 insert—
After section 28 insert—
In section 44 (vessels), after subsection (2) insert—
In section 56 (rights of entry and inspection etc), for subsection (2) substitute—
Principal amendments to the Clean Air Act 1993: Wales
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Minor and consequential amendments
The Clean Air Act 1993 is amended as follows.
Section 18 (declaration of smoke control area by local authority) is amended as follows.
In subsection (2)—
in paragraph (b)—
after “smoke” insert “in Wales”;
before “to” insert “or Schedule 1A (penalty for emission of smoke in England)”;
in paragraph (c), after “section” insert “or Schedule”.
After subsection (2) insert—
Section 20 (prohibition on emission of smoke in smoke control area) is amended as follows.
In the heading, at the end insert “in Wales”.
In subsections (1) and (2), after “area” insert “in Wales”.
Omit subsections (5ZA) to (5ZC).
If at the time of the coming into force of this paragraph Part 2 of this Schedule is not in force, in subsection (6)—
omit “Except as provided by subsection (5ZA),”;
for “Secretary of State” substitute “Welsh Ministers”.
Section 21 (power to exempt certain fireplaces) is amended as follows.
In the heading, at the end insert “in Wales”.
Omit subsections (A1) to (A4).
If at the time of the coming into force of this paragraph Part 2 of this Schedule is not in force, in subsection (5)—
omit “Except where subsection (A1) applies,”;
for “Secretary of State” substitute “Welsh Ministers”;
for “he is” substitute “they are”.
Section 22 (exemptions relating to particular areas) is amended as follows.
In the heading, at the end insert “in Wales”.
In subsection (1)—
for “Secretary of State” substitute “Welsh Ministers”;
for “him” substitute “them”;
after “area”, in both places, insert “in Wales”.
In subsection (2)—
for “Secretary of State” substitute “Welsh Ministers”;
for “he is” substitute “they are”.
Section 23 (acquisition and sale of unauthorised fuel in a smoke control area) is amended as follows.
In the heading, at the end insert “in Wales”.
In subsection (1)—
in paragraph (a), after “area” in both places insert “in Wales”;
in paragraph (b), after “area” insert “in Wales”;
in paragraph (c)—
after “fuel” insert “in Wales”;
in sub-paragraph (i), after “area” insert “in Wales”.
In subsection (3), after “area” insert “in Wales”.
In subsection (4)—
for “Secretary of State” substitute “Welsh Ministers”;
after first “area” insert “in Wales”.
In subsection (5)—
after first “fuel” insert “in Wales”;
after “premises” insert “in Wales”.
In section 24 (power to require adaptations of fireplaces), in subsection (1)—
after second “area” insert “in Wales”;
at the end insert “or the imposition of a financial penalty under Schedule 1A (penalty for emission of smoke in England)”.
In section 26 (power to make grants for fireplaces in churches etc)—
in subsection (1)—
after second “area” insert “in Wales”;
before “, the local authority” insert “or the imposition of a financial penalty under Schedule 1A (penalty for emission of smoke in England)”;
after subsection (2) insert—
In section 27 (references to adaptations)—
in the heading, at the end insert “or Schedule 1A”;
in subsection (1)—
after “area” insert “in Wales”;
before “shall be read” insert “or the imposition of a financial penalty under Schedule 1A (penalty for emission of smoke in England)”;
at the end insert “or incurring liability under Schedule 1A”;
in subsection (3), after “Act” insert “or liability under Schedule 1A to this Act”;
in subsection (4), at the end insert “, and to any vessel to which section 26 or 26A (adaptations of vessels in England) applies”.
In section 29 (interpretation)—
in the definition of “old private dwelling”, omit the final “and”;
in the definition of “smoke control order”, at the end insert “and”;
after that definition insert—
In section 63 (orders and regulations)—
in subsection (2), after “47(2)” insert “or paragraph 3(4) or 4(6) of Schedule 1A”;
in subsection (3), after “section” insert “19C,”.
Schedule 1 (coming into operation of smoke control orders) is amended as follows.
In paragraph 5—
after “area” insert “in Wales”;
before “may” insert “or Schedule 1A (penalty for emission of smoke in England)”.
After paragraph 6 insert—
In section 79 of the Environmental Protection Act 1990 (statutory nuisances), in subsection (3)(i), insert “in Wales”.
Smoke control areas in England: transitional provision
Where a local authority in England has made a smoke control order under section 18 of the Clean Air Act 1993, any limitations or exemptions from the operation of section 20 of that Act (prohibition of emissions of smoke) made by that order under section 18(2)(b) or (c) of that Act that apply immediately before the commencement of Parts 1 and 3 of this Schedule continue to apply as if they were limitations or exemptions from the operation of Schedule 1A to that Act (penalty for emission of smoke), as inserted by paragraph 3 of this Schedule.
Modifying water and sewerage undertakers’ appointments: procedure for appeals
Biodiversity gain as condition of planning permission
Biodiversity gain condition
In the Town and Country Planning Act 1990, after section 90 insert—
In that Act, after Schedule 7 insert—
Consequential amendments
The Town and Country Planning Act 1990 is amended as follows.
In section 56 (time when development begins), in subsection (3), at the end insert “and paragraph 13 of Schedule 7A”.
In section 69 (register of applications etc)—
in subsection (1), at the end insert—;
in subsection (2)(a), for “and (aza)” substitute “, (aza) and (e)”.
In section 70 (determination of applications: general considerations), in subsection (1)(a), after “section 62D(5)” insert “, paragraph 13 of Schedule 7A”.
In section 73 (determination of applications to develop land after non-compliance), after subsection (2A) insert—
In section 74A (deemed discharge of planning permission conditions), after subsection (2) insert—
In section 76C (provisions applying to applications made under section 62A), in subsection (2), after “Schedule 1” insert “, or by regulations under paragraph 14(3) or 16 of Schedule 7A,”.
In section 84 (simplified planning zone schemes: conditions and limitations on planning permission), at the end insert—
In section 88 (enterprise zones), after subsection (3) insert—
In section 96A (power to make non-material changes to planning permission), after subsection (3) insert—
In section 97 (revocation or modification of planning permission), at the end insert—
In section 100ZA (restriction on power to impose planning conditions in England), in subsection (13)(c), after “limitation” insert “but do not include the condition under paragraph 13 of Schedule 7A (biodiversity gain condition)”.
In section 106 (planning obligations), in subsection (1), in the words before paragraph (a), after “106C” insert “, Schedule 7A”.
In section 106A (modification and discharge of planning obligations), after subsection (6) insert—
In section 333 (regulations and orders), after subsection (3A) insert—
Biodiversity gain in nationally significant infrastructure projects
Principal amendments to the Planning Act 2008
The Planning Act 2008 is amended as follows.
In section 103 (Secretary of State is to decide applications), after subsection (1) insert—
Section 104 (decisions in cases where national policy statement has effect) is amended as follows.
For subsection (3) substitute—
In each of subsections (4), (5) and (6), for “any relevant national policy statement” substitute “subsection (3) or (3A)”.
In subsection (8), for “a national policy statement” substitute “subsection (3) or (3A)”.
Section 105 (decisions in cases where no national policy statement has effect), after subsection (2) insert—
After Schedule 2 insert—
Supplementary amendments to the Planning Act 2008
The Planning Act 2008 is amended as follows.
In section 37 (applications for orders for development consent), after subsection (3) insert—
In section 120 (what may be included in development consent order), in subsection (2), at the end insert—
Section 232 (orders and regulations) is amended as follows.
In subsection (5), at the end insert—
In subsection (7), after “or 105(2)(b)” insert “or paragraph 3(3) or 11 of Schedule 2A”.
Controlling the felling of trees in England
Part 2 of the Forestry Act 1967 (power to control felling of trees) is amended as follows.
In section 17(1) (penalty for felling without a licence)—
after “and” insert— ;
at the end insert
In section 17A (power to require restocking after unauthorised felling), after subsection (1A) insert—
In section 24 (notice to require compliance with conditions or directions), at the end insert—
In section 17C (enforcement of restocking notice), after “directions),” insert “24A (further notice under section 24 for next estate or interest holders),”.
After section 24 insert—
After section 24A (inserted by paragraph 5) insert—
Section 30 (service of documents) is amended as follows.
In subsection (2), at the end insert “or, in the case of service by the Commissioners, upon a director of the company or body”.
In subsection (3), after “clerk” insert “or director”.
In section 30(5) (power to require information regarding interests in land), after the second “land” insert “, and the owner of any land in England”.
Use of forest risk commodities in commercial activity
Requirements
In this Schedule “forest risk commodity” means a commodity specified in regulations made by the Secretary of State.
The regulations may specify only a commodity that has been produced from a plant, animal or other living organism.
The regulations may specify a commodity only if the Secretary of State considers that forest is being or may be converted to agricultural use for the purposes of producing the commodity.
“Forest” means an area of land of more than 0.5 hectares with a tree canopy cover of at least 10% (excluding trees planted for the purpose of producing timber or other commodities).
In sub-paragraph (4) the reference to land includes land that is wholly or partly submerged in water (whether temporarily or permanently).
The regulations may not specify timber or timber products, within the meaning of Regulation (EU) No. 995/2010 of the European Parliament and of the Council of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market.
Before making regulations under this paragraph the Secretary of State must consult such persons as the Secretary of State considers appropriate.
The requirement to consult in sub-paragraph (7) may be met by consultation carried out before this paragraph comes into force.
A regulated person in relation to a forest risk commodity must not use that commodity in their UK commercial activities unless relevant local laws were complied with in relation to that commodity.
A regulated person in relation to a forest risk commodity must not use a product derived from that commodity in their UK commercial activities unless relevant local laws were complied with in relation to that commodity.
In this Schedule “local law”, in relation to a forest risk commodity, means any law having effect in the country or territory where the source organism was grown, raised or cultivated.
In this Schedule “relevant local law”, in relation to a forest risk commodity, means local law—
which relates to the ownership of the land on which the source organism was grown, raised or cultivated,
which relates to the use of that land, or
which otherwise relates to that land and is specified in regulations made by the Secretary of State.
The regulations may specify a local law only if it relates to the prevention of forest being converted to agricultural use.
The “source organism” means the plant, animal or other living organism from which the forest risk commodity was produced.
Sub-paragraph (1) does not apply to the use of a forest risk commodity where—
the commodity is waste (within the meaning of article 2(1) of the Renewable Transport Fuel Obligations Order 2007 (S.I. 2007/3072)), and
the use of the commodity is for the purpose of making renewable transport fuel—
that qualifies for the issue of an RTF certificate under article 17 of that Order, and
in respect of which an additional RTF certificate may be issued under article 17A(4) of that Order.
Sub-paragraph (2) does not apply to the use of a product derived from a forest risk commodity where—
the commodity is waste (within the meaning of article 2(1) of the Renewable Transport Fuel Obligations Order 2007 (S.I. 2007/3072)), and
the product is renewable transport fuel—
that qualifies for the issue of an RTF certificate under article 17 of that Order, and
in respect of which an additional RTF certificate may be or has been issued under article 17A(4) of that Order.
A regulated person in relation to a forest risk commodity who uses that commodity or a product derived from that commodity in their UK commercial activities must establish and implement a due diligence system in relation to that commodity.
In this Schedule a “due diligence system”, in relation to a forest risk commodity, means a system for—
identifying, and obtaining information about, that commodity,
assessing the risk that relevant local laws were not complied with in relation to that commodity, and
mitigating that risk.
The Secretary of State may by regulations make further provision about the matters in sub-paragraph (2)(a) to (c), including in particular—
the information that should be obtained;
the criteria to be used in assessing risk;
the ways in which risk may be mitigated.
A regulated person in relation to a forest risk commodity who uses that commodity or a product derived from that commodity in their UK commercial activities must, for each reporting period, provide the relevant authority with a report on the actions taken by the person to establish and implement a due diligence system in relation to that commodity as required by paragraph 3.
The report must be provided no later than 6 months after the end of the reporting period to which it relates.
The Secretary of State may by regulations make provision—
about the content and form of reports under this paragraph;
about the manner in which reports under this paragraph are to be provided.
The relevant authority must make reports under this paragraph available to the public in the way, and to the extent, specified in regulations made by the Secretary of State.
In this paragraph “relevant authority” means—
the Secretary of State, or
if regulations made by the Secretary of State specify another person as the relevant authority for the purposes of this paragraph, that other person.
In this Schedule “reporting period” means—
the period beginning with the day on which this paragraph comes fully into force and ending with the following 31 March, and
each successive period of 12 months.
A regulated person in relation to a forest risk commodity is exempt from the Part 1 requirements in respect of their use of that commodity, or a product derived from that commodity, in their UK commercial activities during a reporting period if they satisfy the following two conditions.
Condition 1 is that before the start of the period, the person gives a notice to the relevant enforcement authority containing—
a declaration that the person is satisfied on reasonable grounds that the amount of the commodity used in their UK commercial activities during the period will not exceed the prescribed threshold, and
the prescribed information.
Condition 2 is that the amount of the commodity used in the person’s UK commercial activities during the period does not exceed the prescribed threshold.
Sub-paragraphs (5) and (6) apply where—
a regulated person gives a notice under sub-paragraph (2), but
the amount of the commodity used in the person’s UK commercial activities during the period exceeds the prescribed threshold.
If, before the relevant date, the regulated person gives a notice to the relevant enforcement authority containing the prescribed information, the person is exempt from the Part 1 requirements in respect of their use of the commodity, or the product derived from the commodity, in their UK commercial activities during the part of the reporting period—
beginning with the start of the period, and
ending with the date the notice is given.
If the regulated person does not give a notice under sub-paragraph (5), the person is not exempt from the Part 1 requirements in respect of their use of the commodity, or the product derived from the commodity, in their UK commercial activities during any part of the reporting period.
In this paragraph—“prescribed” means prescribed in regulations made by the Secretary of State;“relevant date” means the date during the reporting period that the amount of the commodity used in the person’s UK commercial activities exceeds the prescribed threshold;“relevant enforcement authority” means the enforcement authority on which the function of receiving notices under this paragraph has been conferred by Part 2 regulations.
Regulations under this paragraph may in particular—and regulations under paragraph (b) may include provision for determining the amount by reference to matters determined or published by the Secretary of State or other persons.
prescribe thresholds by reference to weight or volume;
make provision about how the amount of a forest risk commodity used in a regulated person’s UK commercial activities (including in relation to a forest risk commodity from which a product is derived) is to be determined,
Before making regulations under this paragraph (except under sub-paragraph (2)(b) or (5)) the Secretary of State must consult such persons as the Secretary of State considers appropriate.
The requirement to consult in sub-paragraph (9) may be met by consultation carried out before this paragraph comes into force.
The Secretary of State may issue guidance to an enforcement authority about the Part 1 requirements.
An enforcement authority must have regard to guidance issued under sub-paragraph (1) when exercising its functions under Part 2 of this Schedule.
In this Schedule “regulated person”, in relation to a forest risk commodity, means a person (other than an individual) who carries on commercial activities in the United Kingdom, and—
meets such conditions in relation to turnover as may be specified in regulations made by the Secretary of State for the purposes of defining who is a regulated person in relation to that forest risk commodity, or
is an undertaking which is a subsidiary of another undertaking which meets those conditions.
Regulations under sub-paragraph (1) may make provision about how turnover is to be determined.
Before making regulations under sub-paragraph (1) the Secretary of State must consult such persons as the Secretary of State considers appropriate.
The requirement to consult in sub-paragraph (3) may be met by consultation carried out before this paragraph comes into force.
The Secretary of State may by regulations make provision for the Part 1 requirements not to apply, or to apply with modifications, in relation to a person who becomes a regulated person for such transitional period, after they become a regulated person, as may be specified in the regulations.
The Secretary of State may by regulations make provision for a group of undertakings to be treated as a regulated person, in such circumstances, for such purposes and to such extent as may be provided (and may modify the application of the Schedule accordingly).
In this paragraph—“group” has the meaning given by section 474 of the Companies Act 2006;“undertaking” has the meaning given by section 1161 of that Act, and whether an undertaking is a subsidiary of another undertaking is to be determined in accordance with section 1162 of that Act.
Enforcement
The Secretary of State may by regulations (“Part 2 regulations”) make provision about the enforcement of requirements imposed by or under Part 1 of this Schedule (“Part 1 requirements”).
Part 2 regulations may include provision conferring functions on one or more persons specified in the regulations (each of whom is an “enforcement authority” for the purposes of this Schedule).
Part 2 regulations may include provision—
conferring functions involving the exercise of discretion;
for the functions of an enforcement authority to be exercised on its behalf by persons authorised in accordance with the regulations.
Part 2 regulations may include provision requiring an enforcement authority—
to issue guidance about the exercise of its functions;
to consult with specified persons before issuing such guidance.
Part 2 regulations may include provision conferring on an enforcement authority the function of monitoring compliance with Part 1 requirements.
Part 2 regulations may include provision—
requiring persons on whom Part 1 requirements are imposed to keep records;
requiring persons on whom Part 1 requirements are imposed to provide records or other information to an enforcement authority;
requiring an enforcement authority to make reports or provide information to the Secretary of State.
Part 2 regulations may include provision conferring on an enforcement authority powers of entry, inspection, examination, search and seizure.
Part 2 regulations may include provision—
for powers to be exercisable only under the authority of a warrant issued by a justice of the peace, sheriff, summary sheriff or lay magistrate;
about applications for, and the execution of, warrants.
Part 2 regulations must secure that the authority of a warrant is required for the exercise of any powers conferred by the regulations to—
enter premises by force;
enter a private dwelling without the consent of the occupier;
search and seize material.
Part 2 regulations may include provision—
for, about or connected with the imposition of civil sanctions in respect of—
failures to comply with Part 1 requirements or Part 2 regulations, or
the obstruction of or failure to assist an enforcement authority;
for appeals against such sanctions.
Part 2 regulations must include provision to ensure that in a case where—a civil sanction may not be imposed on the regulated person in respect of the failure to comply.
a regulated person fails to comply with a requirement in paragraph 2(1) or (2) in relation to their use of a forest risk commodity or a product derived from a forest risk commodity, but
an enforcement authority is satisfied that the regulated person took all reasonable steps to implement a due diligence system in relation to the commodity used by the person in that particular case,
Part 2 regulations may include provision—
creating criminal offences punishable with a fine in respect of—
failures to comply with civil sanctions imposed under Part 2 regulations, or
the obstruction of or failure to assist an enforcement authority;
about such offences.
In this paragraph “civil sanction” means a sanction of a kind for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 (fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings).
Part 2 regulations may include provision for the imposition of sanctions of that kind whether or not—
the conduct in respect of which the sanction is imposed constitutes an offence, or
the enforcement authority is a regulator for the purposes of Part 3 of the Regulatory Enforcement and Sanctions Act 2008.
Part 2 regulations may include provision—
requiring persons on whom Part 1 requirements are imposed to pay to an enforcement authority charges, as a means of recovering costs incurred by that enforcement authority in performing its functions;
authorising a court or tribunal dealing with any matter relating to Part 1 requirements or Part 2 regulations to award to an enforcement authority costs incurred by it in performing its functions in relation to that matter.
Before making Part 2 regulations the Secretary of State must consult any persons the Secretary of State considers appropriate.
The requirement to consult in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.
General provisions
The Secretary of State must review the effectiveness of the Part 1 requirements and any Part 2 regulations (“relevant provisions”) in accordance with this paragraph.
A review must consider in particular—
the amount of forest being converted to agricultural use for the purposes of producing commodities;
the impact of the relevant provisions on the amount of forest being converted to agricultural use for the purposes of producing forest risk commodities;
the impact of the relevant provisions on the use of forest risk commodities, or products derived from forest risk commodities, in UK commercial activities where relevant local laws were not complied with in relation to those commodities;
any changes to relevant local laws in relation to forest risk commodities.
Having carried out a review the Secretary of State must lay before Parliament, and publish, a report stating—
the conclusions of the review, and
the steps, if any, the Secretary of State intends to take to improve the effectiveness of the relevant provisions (including whether the Secretary of State intends to make any regulations under this Schedule).
The first review must be completed during the period—
beginning with the second anniversary of the first date on which paragraphs 2 to 4 are fully in force, and
ending with the third anniversary of the first date on which paragraphs 2 to 4 are fully in force.
Subsequent reviews must be completed before the end of the 2 year period beginning with the day on which the previous review was completed.
A review is completed when the Secretary of State has laid and published the report.
In this Schedule—“agricultural use” includes use for horticulture and aquaculture;“commercial activity” includes—producing, manufacturing and processing; distributing, selling, or supplying; purchasing for a purpose within paragraph (a) or (b) (but not purchasing as a consumer);“due diligence system”, in relation to a forest risk commodity, has the meaning given by paragraph 3;“enforcement authority” has the meaning given by paragraph 9;“forest” has the meaning given by paragraph 1;“forest risk commodity” has the meaning given by paragraph 1;“local law”, in relation to a forest risk commodity, has the meaning given by paragraph 2;“Part 1 requirements” has the meaning given by paragraph 8;“Part 2 regulations” has the meaning given by paragraph 8;“regulated person”, in relation to a forest risk commodity, has the meaning given by paragraph 7;“relevant local law”, in relation to a forest risk commodity, has the meaning given by paragraph 2;“reporting period” has the meaning given by paragraph 4;“UK commercial activity” means commercial activity carried on in the United Kingdom.
References in this Schedule to a product derived from a forest risk commodity are to a product derived from a forest risk commodity in whole or in part (and include any product of an animal fed on a forest risk commodity or a product derived from a forest risk commodity).
Discharge or modification of obligations under conservation covenants
Discharge by Upper Tribunal
The Upper Tribunal may, on the application of a person bound by, or entitled to the benefit of, an obligation under a conservation covenant by virtue of being the holder of an estate in land, by order discharge the obligation in respect of any of the land to which it relates.
The Upper Tribunal must add as party to the proceedings on an application under sub-paragraph (1) the responsible body under the covenant.
The Upper Tribunal may, on the application of the responsible body under a conservation covenant, by order discharge an obligation under the covenant in respect of any of the land to which it relates.
The Upper Tribunal must add as party to the proceedings on an application under sub-paragraph (1) any person who, by virtue of being the holder of an estate in land, is bound by, or entitled to the benefit of, the obligation to which the application relates.
The Upper Tribunal may exercise its power under paragraph 1(1) or 2(1) if it considers it reasonable to do so in all the circumstances of the case.
In considering whether to exercise its power under paragraph 1(1) or 2(1), the matters to which the Upper Tribunal is to have regard include—
whether there has been any material change of circumstance since the making of the original agreement, in particular—
change in the character of the land to which the obligation relates or of the neighbourhood of that land;
change affecting the enjoyment of the land to which the obligation relates;
change affecting the extent to which performance of the obligation is, or is likely in future to be, affordable;
change affecting the extent to which performance of the obligation is, or is likely in future to be, practicable;
whether the obligation serves any conservation purpose it had—as the case may be; and
when the original agreement was entered into, or
if the obligation has since been modified (whether by agreement or by the Upper Tribunal), when the obligation was modified,
whether the obligation serves the public good.
In considering whether to exercise its power under paragraph 1(1), the matters to which the Upper Tribunal is to have regard also include—
whether any conservation purpose which the obligation in question had when the original agreement was entered into could be served equally well by an obligation relating to different land in respect of which the applicant holds a qualifying estate; and
whether, if an order under paragraph 1(1) were made, such an alternative obligation could be created by means of a conservation covenant.
In considering, for the purposes of this paragraph, affordability or practicability in relation to performance of an obligation, change in the personal circumstances of a person bound by the obligation is to be disregarded.
In this paragraph references to the original agreement, in relation to an obligation under a conservation covenant, are to the agreement containing the provision which gave rise to the obligation.
The Upper Tribunal may include in an order under paragraph 1(1) or 2(1) provision requiring the applicant to pay compensation in respect of loss of benefit resulting from the order.
Compensation under sub-paragraph (1) shall be payable to such person at such time and be of such amount as the order may provide.
The Upper Tribunal may, if it considers it reasonable to do so in connection with the discharge under paragraph 1(1) of an obligation under a conservation covenant, include in the order discharging the obligation provision making the discharge conditional on the entry by the applicant and the responsible body under the covenant into a conservation covenant agreement containing such provision as the order may specify.
The power under sub-paragraph (1) is exercisable only with the consent of the applicant and the responsible body.
Modification by Upper Tribunal
The Upper Tribunal may, on the application of a person bound by, or entitled to the benefit of, an obligation under a conservation covenant by virtue of being the holder of an estate in land, by order modify the obligation in respect of any of the land to which it relates.
The Upper Tribunal must add as party to the proceedings on an application under sub-paragraph (1) the responsible body under the covenant.
The Upper Tribunal may, on the application of the responsible body under a conservation covenant, by order modify an obligation under the covenant in respect of any of the land to which it relates.
The Upper Tribunal must add as party to the proceedings on an application under sub-paragraph (1) any person who, by virtue of being the holder of an estate in land, is bound by, or entitled to the benefit of, the obligation to which the application relates.
The power under paragraph 6(1) or 7(1) does not include power to make a change to an obligation which, had it been included in the original agreement, would have prevented the provision of the agreement which gave rise to the obligation being provision in relation to which the conditions in section 117(1)(a) were met.
The Upper Tribunal may exercise its power under paragraph 6(1) or 7(1) if it considers it reasonable to do so in all the circumstances of the case.
In considering whether to exercise its power under paragraph 6(1) or 7(1), the matters to which the Upper Tribunal is to have regard include—
whether there has been any material change of circumstance since the making of the original agreement, in particular—
change in the character of the land to which the obligation relates or of the neighbourhood of that land;
change affecting the enjoyment of the land to which the obligation relates;
change affecting the extent to which performance of the obligation is, or is likely in future to be, affordable;
change affecting the extent to which performance of the obligation is, or is likely in future to be, practicable;
whether the obligation serves any conservation purpose it had—as the case may be; and
when the original agreement was entered into, or
if the obligation has since been modified (whether by agreement or by the Upper Tribunal), when the obligation was modified,
whether the obligation serves the public good.
In considering, for the purposes of this paragraph, affordability or practicability in relation to performance of an obligation, change in the personal circumstances of a person bound by the obligation is to be disregarded.
The Upper Tribunal may include in an order under paragraph 6(1) or 7(1) provision requiring the applicant to pay compensation in respect of loss of benefit resulting from the order.
Compensation under sub-paragraph (1) shall be payable to such person at such time and be of such amount as the order may provide.
The Upper Tribunal may, if it considers it reasonable to do so in connection with the modification under paragraph 6(1) of an obligation under a conservation covenant, include in the order modifying the obligation provision making the modification conditional on the entry by the applicant and the responsible body under the covenant into a conservation covenant agreement containing such provision as the order may specify.
The power under sub-paragraph (1) is exercisable only with the consent of the applicant and the responsible body.
The modification of an obligation by an order under this Part binds—
the parties to the proceedings in which the order is made, and
any person who, as respects any of the land to which the modification relates, becomes a successor of a person bound by the modification.
For the purposes of sub-paragraph (1) “successor of a person bound by the modification” means a person who holds, in respect of any of the land to which the modification relates—
the estate held by the person so bound when the order modifying the obligation was made, or
an estate in land derived (whether immediately or otherwise) from that estate after the order modifying the obligation was made.
In this Part, references to the original agreement, in relation to an obligation under a conservation covenant, are to the agreement containing the provision which gave rise to the obligation.
Application of Part 7 to Crown land
General
Part 7 applies in relation to Crown land as it applies in relation to any other land, subject to the provisions of this Schedule.
In this Schedule—
“Crown land” means land in relation which there is an estate in land of a kind listed in column 1 of the following Table, and
“the appropriate authority”, in relation to any Crown land, means the authority specified in column 2 for the estate in land in question.
References in this Schedule to Part 7 are to Part 7 of this Act (apart from this Schedule and Schedule 20).
If any question arises as to what authority is the appropriate authority in relation to any Crown land, that question is to be referred to the Treasury, whose decision is final.
In this paragraph the reference to Her Majesty’s private estates is to be read in accordance with section 1 of the Crown Private Estates Act 1862.
Where land belongs to Her Majesty in right of the Crown but is not held for an estate in fee simple absolute in possession—
Her Majesty in right of the Crown is to be regarded for the purposes of Part 7 and this Schedule as holding an estate in fee simple absolute in possession in the land, and
any estate granted or created out of the land is to be regarded for those purposes as derived from that estate in fee simple.
The land referred to in sub-paragraph (1) does not include land which becomes subject to escheat on the determination of an estate in fee simple absolute in possession in the land if—
it is land to which an obligation under a conservation covenant related when the estate determined, or
it is not land to which such an obligation related at that time and Her Majesty in right of the Crown has not taken possession or control of the land, or entered into occupation of it.
This paragraph applies where land becomes subject to escheat on the determination of an estate in fee simple absolute in possession in land to which an obligation under a conservation covenant relates.
The conservation covenant is not terminated on the determination of that estate, even though the appropriate authority has no liability in respect of the obligation unless and until the Crown—
takes possession or control of the land, or enters into occupation of it, or
becomes the holder of—
an estate granted by the Crown out of the land, or
an estate in land derived (whether immediately or otherwise) from an estate falling within sub-paragraph (i).
If the Crown takes possession or control of the land, or enters into occupation of it—
the Crown is to be regarded for the purposes of Part 7 and this Schedule as holding an estate in fee simple in possession in the land, and
that estate is to be regarded for those purposes as immediately derived from the determined estate.
If the Crown grants an estate out of the land after having previously taken possession or control of the land, or entered into occupation of it, the estate is to be regarded for the purposes of Part 7 and this Schedule as immediately derived from the estate mentioned in sub-paragraph (3)(a).
But if the Crown grants an estate out of the land without having previously taken possession or control of the land, or entered into occupation of it—
the acts of the Crown in granting that estate are not to be regarded for the purposes of Part 7 and this Schedule as taking possession or control of the land, or entering into occupation of it, and
the new estate is to be regarded for those purposes as immediately derived from the determined estate.
In this paragraph and paragraph 5 “the Crown” means Her Majesty in right of the Crown or of the Duchy of Lancaster, or the Duchy of Cornwall, as the case may be.
This paragraph applies where an estate in land to which an obligation of the landowner under a conservation covenant relates vests in the Crown as bona vacantia.
The appropriate authority has no liability in respect of the obligation in relation to any period before the Crown takes possession or control of the land or enters into occupation of it.
Conservation covenants relating to Crown land held by a person other than the appropriate authority
If Crown land which is a qualifying estate is held by a person other than the appropriate authority, the appropriate authority may, as respects that qualifying estate, enter into a conservation covenant agreement, in place of the holder of the estate.
An authority that enters into such an agreement by virtue of sub-paragraph (1) is to be treated for the purposes of section 117 as the holder of the qualifying estate (instead of the person in whose place the authority is acting).
Paragraphs 8 to 12 modify Part 7 in its application to obligations under a conservation covenant created by an agreement entered into by virtue of paragraph 6(1).
In those paragraphs, in relation to an obligation under the conservation covenant—“the appropriate authority” means the appropriate authority with respect to the estate in land of the original landowner which is the qualifying estate in relation to the obligation, and“the original landowner” means the person who held the qualifying estate when the agreement was entered into.
References in Part 7 to an obligation of the landowner under a conservation covenant are to be read as references to an obligation of the appropriate authority under the conservation covenant.
Section 122 has effect with the following modifications in its application to an obligation mentioned in paragraph 8.
In subsection (2)—
in paragraph (a), the reference to the landowner under the covenant is to be read as a reference to the appropriate authority, and
in paragraph (b), the reference to the landowner under the covenant is to be read as a reference to the original landowner.
In subsection (3) the reference to the landowner under the covenant is to be read as a reference to the original landowner.
In subsection (4)—
in the opening words and in paragraph (b), the reference to the landowner under the covenant is to be read as a reference to the appropriate authority,
in the opening words, the reference to a successor of that landowner is to be read as a reference to a successor of the original landowner, and
in paragraph (b), the reference to land in relation to which the landowner ceases to be the holder of the qualifying estate is to be read as a reference to land in relation to which the original landowner ceases to be the holder of the qualifying estate.
Subsection (5)(c) has effect, if the successor’s immediate predecessor was the original landowner, as if the reference to the successor’s immediate predecessor were a reference to the appropriate authority.
Section 123 has effect with the following modifications in its application to an obligation of the responsible body under the conservation covenant.
In subsection (1)—
in paragraph (a), the reference to the landowner under the covenant is to be read as a reference to the appropriate authority, and
in paragraph (b), the reference to the landowner under the covenant is to be read as a reference to the original landowner.
In subsection (2) the reference to the landowner under the covenant is to be read as a reference to the original landowner.
In subsection (3)—
in the opening words and in paragraph (b), the reference to the landowner under the covenant is to be read as a reference to the appropriate authority,
in the opening words, the reference to a successor of that landowner is to be read as a reference to a successor of the original landowner, and
in paragraph (b), the reference to land in relation to which the landowner ceases to be the holder of the qualifying estate is to be read as a reference to land in relation to which the original landowner ceases to be the holder of the qualifying estate.
In section 129(4)(b) and (5) the references to a successor of a person bound by the modification (where the person bound is the appropriate authority) are to be read as references to a successor of the original landowner.
In Schedule 18—
the references in paragraphs 1(1) and 6(1) to a person bound by, or entitled to the benefit of, an obligation under a conservation covenant by virtue of holding an estate in land are to be read as references to the appropriate authority;
the references in paragraphs 2(2) and 7(2) to any person who by virtue of holding an estate in land is bound by or entitled to the benefit of an obligation are to be read as references to the appropriate authority;
the references in paragraph 12(1)(b) and (2) to a successor of a person bound by the modification (where the person bound is the appropriate authority) are to be read as references to a successor of the original landowner.
Other modifications of Part 7
Paragraphs 14 to 17 apply where the estate in land by virtue of which a person is a successor of the landowner under a conservation covenant is held by or on behalf of the Crown by a person other than the appropriate authority.
In sub-paragraph (1) “successor” (in relation to the landowner under the covenant) means a person who holds, in respect of any of the land to which any obligation under the covenant relates—
the qualifying estate, or
an estate in land derived (whether immediately or otherwise) from the qualifying estate after the creation of the covenant.
In section 122—
subsections (2)(b), (3) and (4) have effect as if the estate in land were held by the appropriate authority, and
subsection (5)(c) has effect, in relation to a disposal of the estate in land, as if the successor’s immediate predecessor were the appropriate authority.
In section 123—
subsections (1)(b), (2) and (4) have effect as if the estate in land were held by the appropriate authority, and
subsection (4) has effect as if the reference to the successor were a reference to the appropriate authority.
In section 129(4)(b) and (5) references to a successor of a person bound by the modification (where the person bound is the appropriate authority) are to be read as references to a successor of the person in whose place the appropriate authority acts.
In section 129(4)(b) and (5) references to a successor of a person bound by the modification (where the person bound is not the appropriate authority) are to be read as if the estate in any of the land to which the modification relates which is held by the person in whose place the appropriate authority acts were held by the appropriate authority.
In Schedule 18—
the reference in paragraph 6(1) to a person bound by an obligation under a conservation covenant by virtue of holding an estate in land is to be read as a reference to the appropriate authority;
the reference in paragraph 7(2) to any person who is bound by or entitled to the benefit of an obligation by virtue of holding an estate in land is to be read as a reference to the appropriate authority;
the references in paragraph 12(1)(b) and (2) to a successor of a person bound by the modification (where the person bound is the appropriate authority) are to be read as references to a successor of the person in whose place the appropriate authority is acting.
This paragraph applies where, in respect of any of the land to which an obligation of the landowner under a conservation covenant relates, the qualifying estate is held by or on behalf of the Crown by a person other than the appropriate authority.
An agreement entered into by virtue of sub-paragraph (2) is to be treated for the purposes of section 127(4)(c) as entered into by virtue of the estate in land held by the person in whose place the appropriate authority enters into the agreement.
This paragraph applies if the responsible body under a conservation covenant enters into an agreement under section 128(1) in relation to an obligation which it owes to the other party to the agreement by virtue of paragraph 10(2)(a) or 15(a).
If the other party is entitled to the benefit of the obligation by virtue of paragraph 10(2)(a), the reference in section 128(2)(c) to the estate in land by virtue of which the power is exercisable is to be read as a reference to the estate in land held by the person in whose place the other party acted in entering into the agreement which gave rise to the obligation.
If the other party is entitled to the benefit of the obligation by virtue of paragraph 15(a), the reference in section 128(2)(c) to the estate in land by virtue of which the power is exercisable is to be read as a reference to the estate in land which the other party is treated by paragraph 15(a) as holding.
Sub-paragraph (2) applies where a person who—exercises the power under section 129(1) to modify the obligation.
is bound by an obligation of the landowner under the covenant by virtue of paragraph 9(2)(a), or
is entitled to the benefit of the obligation of the responsible body under a conservation covenant by virtue of paragraph 10(2)(a),
The reference in section 129(3)(c) to the estate in land by virtue of which the power is exercisable is to be read as a reference to the estate in land held by the person in whose place the person exercising that power acted in entering into the agreement which gave rise to the obligation.
Sub-paragraph (2) applies where a person who—exercises the power in section 129(1) to modify the obligation.
is bound by an obligation of the landowner under a conservation covenant by virtue of paragraph 14(a), or
is entitled to the benefit of an obligation of the responsible body under a conservation covenant by virtue of paragraph 15(a),
The reference in section 129(3)(c) to the estate in land by virtue of which the power is exercisable is to be read as a reference to the estate in land which the person is treated by paragraph 14(a) or 15(a) as holding.
Consequential amendments relating to Part 7
The Acquisition of Land Act 1981 is amended as follows.
Section 12 (notice of compulsory purchase by local and other authorities) is amended as follows.
In the title, for “and occupiers” insert “, occupiers and others”.
In subsection (2)—
omit the “or” at the end of paragraph (a), and
at the end of paragraph (b) insert
Paragraph 3 of Schedule 1 (notice of compulsory purchase by Ministers) is amended as follows.
In the title, for “and occupiers” insert “, occupiers and others”.
In sub-paragraph (2)—
omit the “or” at the end of paragraph (a), and
at the end of paragraph (b) insert
The Housing and Planning Act 2016 is amended as follows.
Section 203 (power to override easements and other rights) is amended as follows.
In subsections (1)(b) and (4)(b)—
the words after “breaching” become sub-paragraph (i), and
after that sub-paragraph insert
In subsection (10)—
omit the “or” at the end of paragraph (a), and
at the end of paragraph (b)(ii) insert
Section 204 (compensation for overridden easements etc) is amended as follows.
In subsection (1), after “section 203” insert “(1)(a) or (b)(i) or (4)(a) or (b)(i)”.
After subsection (1) insert—
In section 205(1) (interpretation), at the appropriate place insert—.
The Neighbourhood Planning Act 2017 is amended as follows.
In section 20 (notice requirements relating to taking temporary possession), at the end insert—
In section 23 (compensation), after subsection (5) insert—
Section 27 (powers of acquiring authority in temporary possession of land) is amended as follows.
In subsection (3)—
omit the “or” at the end of paragraph (a), and
at the end of paragraph (b), insert
After subsection (4) insert—
In subsection (6)—
omit the “or” at the end of paragraph (a), and
at the end of paragraph (b), insert
In section 30 (interpretation), at the appropriate place, insert—.
Amendment of REACH legislation
The Secretary of State may by regulations amend the REACH Regulation.
The Secretary of State may make regulations under this paragraph only if the Secretary of State considers that the provision made by the regulations is consistent with Article 1 of the REACH Regulation (aim and scope of the REACH Regulation).
The Secretary of State may not make regulations under this paragraph which amend any protected provision of the REACH Regulation.
But sub-paragraph (3) does not prevent any protected provision of the REACH Regulation from being amended by provision made under this paragraph by virtue of section 143(1)(a).
Before making regulations under this paragraph, the Secretary of State must publish an explanation of why the Secretary of State considers that the provision to be made by the regulations is consistent with Article 1 of the REACH Regulation.
The explanation relating to regulations under this paragraph is to be published—
no later than the time when the Secretary of State begins the consultation on that exercise of the power that is required by paragraph 5, and
in the manner which the Secretary of State considers appropriate.
Regulations under this paragraph are subject to the affirmative procedure.
The Secretary of State or a relevant devolved authority may by regulations amend the REACH Enforcement Regulations 2008 (S.I. 2008/2852).
The Secretary of State or a relevant devolved authority may make regulations under this paragraph only if the Secretary of State or the authority considers that the provision made by the regulations is necessary or appropriate for, or in connection with, enforcement of the REACH Regulation.
The provision that may be made by regulations under this paragraph includes—
provision creating, or widening the scope of, a criminal offence;
provision specifying the punishment for a criminal offence.
But regulations under this paragraph may not provide for a criminal offence—
under the law of England and Wales to be—
punishable on conviction on indictment with imprisonment for more than two years, or
punishable on summary conviction with imprisonment for more than the prescribed term for England and Wales or with a fine that is calculated on a daily basis of more than £100 a day;
under the law of Scotland to be—
punishable on conviction on indictment with imprisonment for more than two years, or
punishable on summary conviction with imprisonment for more than the prescribed term for Scotland or with a fine of more than the applicable maximum for Scotland (if not calculated on a daily basis) or a fine of more than £100 a day;
under the law of Northern Ireland to be—
punishable on conviction on indictment with imprisonment for more than two years, or
punishable on summary conviction with imprisonment for more than three months or with a fine of more than level 5 on the standard scale (if not calculated on a daily basis) or a fine of more than £100 a day.
In sub-paragraph (4)—“applicable maximum for Scotland” means—level 5 on the standard scale, where the offence is a summary offence; the statutory maximum, where the offence is triable either way;“prescribed term for England and Wales” means—51 weeks, where the offence is a summary offence; 12 months, where the offence is triable either way;“prescribed term for Scotland” means—3 months, where the offence is a summary offence; 12 months, where the offence is triable either way.
But, in the definition of “prescribed term for England and Wales” in sub-paragraph (5)—
the reference to 51 weeks is to be read, until the commencement of section 281(5) of the Criminal Justice Act 2003, as a reference to 3 months;
the reference to 12 months is to be read, until 2 May 2022, as a reference to 3 months.
Regulations under this paragraph—
made by the Welsh Ministers, may contain only provision which, if contained in an Act of Senedd Cymru, would be within the legislative competence of the Senedd;
made by the Scottish Ministers, may contain only provision which, if contained in an Act of the Scottish Parliament, would be within the legislative competence of the Parliament;
made by the Department of Agriculture, Environment and Rural Affairs or the Department for the Economy in Northern Ireland may contain only provision which, if contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Assembly and would not require the Secretary of State’s consent.
Regulations under this paragraph are subject to the affirmative procedure.
The power of the Secretary of State to make regulations under this Schedule is subject to the consent requirement in Article 4A of the REACH Regulation.
Accordingly, in Article 4A(1) of the REACH Regulation, the reference to the REACH Regulation is to be read as including a reference to this Schedule.
The Secretary of State must consider any request made by a relevant devolved authority for the Secretary of State to make regulations under this Schedule.
Before making regulations under this Schedule the Secretary of State must consult—
the Agency,
any person nominated by a relevant devolved authority as a consultee for the consultation in question, and
such other persons the Secretary of State considers appropriate.
The nomination of a person as a consultee by a relevant devolved authority is to be made by that authority to the Secretary of State.
Before making regulations under paragraph 2 a relevant devolved authority must consult—
the Agency, and
such other persons that authority considers appropriate.
In paragraph 1 “protected provision of the REACH Regulation” means any of the provisions of the REACH Regulation set out in the following Table—
In this Schedule— “Agency” has the same meaning as in the REACH Regulation (see Article 2A of the Regulation); “REACH Regulation” means Regulation (EC) No 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency; “relevant devolved authority” means— the Scottish Ministers, the Welsh Ministers, or the Department of Agriculture, Environment and Rural Affairs or the Department for the Economy in Northern Ireland.