Building Safety Regulator (England)

Clause 2 of the Building Safety Bill (not yet enacted), appoints the Health and Safety Executive (HSE) as the Building Safety Regulator in England.

The Building Safety Regulator will be an independent regulator with its own powers, strategic plan, and programme of work. It will give expert advice to local regulators, landlords and building owners, the construction and building design industry, and to residents.

The Bill proposes that the Building Safety Regulator will have two objectives:

(1) securing the safety of people in and around buildings in relation to risks from buildings

(2) improving building standards.

The Building Safety Regulator will:

* implement a new, more stringent regulatory regime for high-rise buildings in England (high-rise buildings are residential buildings of 7 storeys or more or 18 metres or more in height and in the design and construction phase only, including care homes and hospitals that meet the same height threshold)

* be the building control authority in England for building work on high-rise buildings

* oversee and enforce a new regime for occupation of high-rise buildings

* oversee the safety and performance of all buildings. This has two aspects:

(1) overseeing the performance of other building control bodies (local authorities and registered building control approvers (currently known as approved inspectors))

(2) understanding and advising on existing and emerging building standards and safety risks

* promote competence among industry professionals and regulators to raise standards in the design, construction, and management of buildings.

The HSE published on 14 October 2021 a fact sheet on its proposed enforcement approach – here.

This fact sheet states the HSE intends that –

* the Building Safety Regulator will deliver evidence-based, proportionate, and targeted engagement and interventions with dutyholders,

* the Building Safety Regulator’s programme of work will include communication activities to advise and support dutyholders and residents,

* enforcement activities and sanctions will be targeted to improve the safety and performance of buildings.

The Building Safety Bill provides for greater regulatory scrutiny and the HSE expects a series of hard stops at key stages during design and construction to be introduced by separate regulation (enacted under the Bill when it is an Act and commenced).

During occupation of the buildings in scope, the Bill requires dutyholders to demonstrate ongoing management of building safety risk through a safety case report. The HSE fact sheet states this will give the Building Safety Regulator a wide range of tools to achieve improved building safety performance and to deliver the culture change identified in Dame Judith Hackitt’s review Building a Safer Future.

The Building Safety Regulator will be responsible for the regulatory decisions during the design, construction, occupation and refurbishment of high-rise buildings.

Per the HSE fact sheet – the Building Safety Regulator’s activities to achieve building safety and performance outcomes will include:

* granting permission to proceed with construction work and issuing completion certificates at appropriate points in the construction and occupation phases

* a process of providing certification following assessment of the in-occupation safety case

as well as formal enforcement and sanctions.

There will be a published Enforcement Policy Statement (EPS). But it may be the HSE arrives at a position that it’s existing HSE EPS is sufficiently flexible to accommodate its new responsibilities as the Building Safety Regulator or it requires some amendment but is still the right vehicle.

Re the building safety report – the bill requires a building specific safety case report to be produced (high rise buildings in the design and construction phase). This safety case report will identify the fire and structural hazards associated with the building. It will set out how the risks they present are being managed to prevent the risks materialising and reduce the severity of any incident resulting if the risks do materialise. The adequacy of the safety case will be assessed by the Building Safety Regulator, working with multi-disciplinary teams, as part of the building assessment certification process.

Re oversight of existing building control inspection – the Building Safety Regulator will monitor the performance of local authority building control bodies and private sector building control approvers. The fact sheet states the HSE will also oversee and regulate all individuals working as building inspectors. Building inspectors and building control approvers will be subject to a registration requirement and the Building Safety Regulator may suspend or remove inspectors from the register and address performance and professional misconduct. The fact sheet states there will be improved competence and accountability through the creation of a unified professional and regulatory structure.

Environment Act 2021 OEP (England & NI)

Today (17th November 2021) section 22 of the Environment Act 2021 and Schedule 1 which establish the Office for Environmental Protection (“OEP”) as a body corporate are commenced.

Commencement also brings into force today:

* section 23 which defines the OEP’s principal objective when exercising its functions and provides that the OEP must prepare a strategy that sets out how it intends to exercise its functions

* section 24 which sets out the process by which the OEP must publish, revise or review the strategy and how it must consult on it

* section 26 which sets out that the OEP and the Committee on Climate Change must prepare a memorandum of understanding which sets out how the OEP and the Committee intend to co-operate.

In addition, certain terms used in Part 1 of the Act are now in force:

* section 44 (meaning of “natural environment”)

* section 45 (meaning of “environmental protection”)

* section 46 (meaning of “environmental law”)

* section 47, which provides for the interpretation of further terms.

An interim OEP is already established.

Here is the OEP website

Here is the statement from DAERA (Northern Ireland)

Fuel Duties changes (UK)

CORRECTION : the Finance Act 2021 is enacted. The Finance (No. 2) Bill is being debated. The changes identified below are located in the Finance Act 2021. The text below is amended.

Yesterday 16th November, the government issued information on its proposed changes to fuel duties – here.

The taxation of hydrocarbon oils is regulated by the Hydrocarbon Oil Duties Act 1979 (HODA) and numerous Regulations. It provides a rebate on heavy oils but this rebate is not allowed for any oil that will be used as fuel for a ‘road vehicle’.

Road vehicles not allowed to use red diesel or rebated biodiesel in any circumstances, unless they are ‘excepted vehicles’ as defined in Schedule 1 to the Act. Excepted vehicles include agricultural vehicles and specialist vehicles, such as those used in construction, haulage and some manufacturing.

Biodiesel, bioblends and fuel substitutes are subject to duty if set aside for a chargeable use and rebates are provided for in specified circumstances. Heating is not a chargeable use for these fuels.

The Finance Act 2020 made changes to HODA that are not yet commenced. These relate to private pleasure craft.

The Finance Act 2021 changes HODA (not yet commenced) –

• Only ‘excepted machines’ (new Schedule 1A instead of Schedule 1) will be able to use red diesel and rebated biodiesel.

• Heating will be a chargeable use for biodiesel, bioblends and other fuel substitutes (rebated rates when used in non-commercial heating).

Companies, individuals and civil society organisations that will lose their entitlement to use red diesel will need to switch to white diesel. This will include sectors, for example, such as construction, mining and quarrying, ports, manufacturing (e.g. ceramics, steel, timber), haulage (for transport refrigeration units on lorries), road maintenance, airport operations, oil and gas extraction, plant hire, logistics and waste management.

Environment Act 2021 – summary (UK)

The Act is not yet published, neither is any commencement order, nor any regulation.

The closest text is the text as introduced to the House of Lords – here. Note, Environment is a devolved matter, which means the bulk of the Environment Act 2021 provisions relate to England only.

Key points –

(1) the government must set long-term targets in priority areas for England (and may set other long-term targets) – by regulations – air quality, water, biodiversity, resource efficiency and waste reduction. The government must then review these targets in the context of the significant improvement test in section 6.

(2) the government must publish a statement of environmental principles, to be used in policy making.

(3) the government must publish a report (at specified intervals) on developments in international environmental law.

(4) an Office for Environmental Protection (OEP) must be established in England, to carry out certain scrutiny and advice functions. Schedule 3 deals with the OEP as respects Northern Ireland.

(5) Schedule 4 confers powers to make regulations on producer responsibility, replacing authority in earlier legislation which is revoked. Schedule 5 confers powers to charge for disposal costs.

(6) Schedule 8 confers powers to make regulations to create deposit schemes.

(7) Schedule 9 confers powers to make regulations about charges for single-use plastic items.

(8) the Environmental Protection Act 1990 is amended with provisions about the separate collection of recyclable waste in England – glass, metal, plastic, paper and card, food waste.

(9) the Environmental Protection Act 1990 is amended with updated provisions for hazardous waste in England and Wales.

(10) the Waste and Contaminated Land (Northern Ireland) Order 1997 is amended with updated provisions for hazardous waste.

(11) the Environmental Protection Act 1990 is amended with updated provisions for transfrontier waste shipment.

(12) the government may make regulations to recall vehicles or engines on environmental grounds (section 73).

(13) the Water Resources Act 1991 (applicable England and Wales) is amended to require sewerage undertakers to publish and maintain a drainage and sewerage management plan. These provisions were strengthened slightly following consideration in the House of Lords (final Act text not yet published).

(14) the government (and the relevant authorities in the devolved administrations) may make regulations to change water quality standards.

(15) Schedule 14 provides for biodiversity gain to be a planning condition.

(16) the Natural Environment and Rural Communities Act 2006 section 40 duty to conserve biodiversity (England) is substantively enhanced.

(17) local authorities in England must publish biodiversity reports at specified intervals.

(18) there must be more local nature recovery strategies so that they cover the whole of England.

(19) Natural England is empowered to publish a strategy for improving the conservation status of any species of flora or fauna (a special conservation strategy).

(20) Natural England is empowered to publish a strategy for improving the conservation and management of a protected site (a protected site strategy).

(21) local authorities in England must consult before felling street trees.

Environment Act 2021 (UK)

The long awaited Environment Act 2021 finally received its royal assent on 9th November. The government press release is here.

The document is not yet published, and its provisions will need to be commenced. The detail will be in Regulations, which are not yet available.

I had written extensively when the document was first promulgated, and I will write further blog posts on the subject once the Act is published and we see the provisions that are commenced now.

Company Sustainability Disclosure (UK/International)

With COP26 underway a slew of announcements are being made on the topic of business disclosure of environmental impact.

UK

In October (ahead of COP26), the government responded to its consultation on mandatory climate-related financial disclosures by publicly quoted companies, large private companies and LLPs. The response is here. Hitherto, on 9 November 2020, the government had announced it would implement TCFD recommendations across the economy – this announcement is here.

Re the need for better alignment between SECR (UK) and TCFD (International – see below under International) requirements, HMG will consider how best to achieve that. Any changes to the SECR regime to facilitate that alignment will require a separate consultation process, and that process will run in due course, but will take into account the proposed introduction of the Sustainability Disclosures Requirements (SDR) Regime, as set out in Greening Finance: A Roadmap to Sustainable Investment published on 18th October 2021 (see below) and the requirements introduced in the June 2021 Procurement Policy Note that require mandatory Scope 3 disclosures in carbon reduction plans when bidding for major government contracts. HMG will look to implement any changes to the SECR regime by 2023. A Q&A guidance document will set out to in-scope companies and other stakeholders to what extent current SECR requirements meet TCFD recommendation 4b, regarding the disclosure of emissions. This document is not yet published.

On 18 October (ahead of COP26), the Chancellor published a roadmap setting out details of new Sustainability Disclosure Requirements applicable to businesses, pension schemes, investment products and asset managers and owners. This roadmap is here. The document focuses on the “informing” first phase (of the road map), which it states will be delivered through new economy-wide Sustainability Disclosure Requirements. Public consultation is to follow, and thereafter there will be rules.

On 3rd November (within COP26), the Chancellor announced the UK will be the first net-zero aligned financial centre. Initially this means asset managers, regulated asset owners and listed companies must publish transition plans. Standards for these transition plans are being developed. A q&a about this process is here (dated 2nd November)

International

On 3rd November (within COP26), the IFRS Foundation (the International Financial Reporting Standards Foundation, a non-for-profit incorporated in Delaware US) announced the establishment of an International Sustainability Standards Board (ISSB) to develop global baseline sustainability reporting standards. The IFRS Foundation confirmed consolidation of two sustainability reporting organisations, the Value Reporting Foundation and the Climate Disclosure Standards Board, to create a global standard-setter for sustainability disclosures for the capital markets.

The Foundation also published two prototype standards to enable the ISSB to build on existing frameworks, including the Task Force on Climate-Related Financial Disclosures (TCFD) (set up by the Financial Stability Board, an international body), when developing its standards. Standards will be subject to public consultation and can be considered for adoption by jurisdictions on a voluntary basis. Jurisdictions will have their own legal frameworks for adopting, applying or otherwise making use of international standards.

This announcement is welcomed by the UK and a number of other countries – the UK press release is here.

COP26: lead up

EU Environment Ministers, Environment Council of 6 October 2021, approved conclusions setting out the EU’s position for the United Nations climate change summit (COP26) in Glasgow, UK – here.

ECOFIN (5th October 2021) conclusions on climate finance are here.

COP26 aims to bring countries together to accelerate action towards the goals of the Paris Agreement. The Paris Agreement (PA) was adopted in 2015 at the UN Climate Change Conference (COP 21) and entered into force on 4 November 2016.

It counts to date 191 countries and the European Union, and sets two main goals –

(1) limiting the global average temperature increase to well below 2°C above pre-industrial levels, and pursuing efforts to limit it to 1.5°C,

(2) adapting to the unavoidable impacts of climate change while making finance flows consistent with climate-resilient development.

The main goals of COP26 are to encourage parties to come forward with ambitious Nationally Determined Contributions (NDCs) that establish their emission reduction targets for 2030, to discuss adaptation measures, to increase climate finance and to finalise the Paris Rulebook (the detailed rules that make the Paris Agreement operational).

The state of NDCs is collated in the interim NDC Registry, the latest NDC Synthesis Report is 17th September 2021 (NDCs submitted and recorded to 30 July 2021). NDCs contain information on targets, and policies and measures for reducing national emissions and on adapting to climate change impacts.  NDCs also contain information on either the needs for, or the provision of, finance, technologies and capacity building for these actions. Countries communicate new or updated NDCs to the interim NDC Registry every five years starting in 2020. The interim NDC Registry is here.

The state of domestic mitigation measures (not country specified) is here.

An update of the key findings of the NDC Synthesis Report, which will cover updated or new NDCs submitted between 31 July and 12 October 2021, will be published on 25 October. This is to ensure that the most updated information is made available to COP26.

The September 2021 NDC Synthesis Report identified an urgent need for either –

* a significant increase in the level of ambition of NDCs between now and 2030, or

* a significant overachievement of the latest NDCs,

* or a combination of both,

in order to attain cost-optimal emission levels suggested in many of the scenarios considered by the IPCC for keeping warming well below 2 °C or limiting it to 1.5 °C.

If emissions are not reduced by 2030, they will need to be substantially reduced thereafter to compensate for the slow start on the path to net zero emissions. Net zero CO2 emissions are a prerequisite for halting warming at any level.

At COP26, parties also need to agree on the details of the so-called Art.6 that lays down rules for international carbon markets, enabling parties to trade emission reductions. In addition, parties will seek to establish a common time frame for their NDCs. Discussions at global level revolve around setting a five-year or a ten-year common time frame.

The UK (COP26 host) is making announcements currently about its domestic measures, I will blog post separately when the strategy documents are published.

EU NIP announcements (Northern Ireland)

On 13 October, the EU announced its October 2021 package of proposed measures to amend the Northern Ireland Protocol (to the UK-EU Withdrawal Agreement). This October 2021 package is here. (scroll down)

The October 2021 package is a series of “non papers”, these are not binding. The UK has it’s similar not binding “command paper” issued July – here. Both sets of documents contain a certain amount of spin.

UKG (UK Government) and the EU will discuss the documents over the next weeks. In the meantime, UKG had already extended indefinitely existing NIP grace periods and this is reflected in UKG Brexit Guidance (instructions) found collated in Cardinal Environment EHS Legislation Registers and Checklists.

The Northern Ireland Protocol regulates Northern Ireland’s access to the EU single market, but also affects it’s arrangements with the rest of the UK. This has since 1 Jan 2021 impacted on goods movements from Britain (GB) to Northern Ireland (UKG itself relaxed NIP rules for movement from Northern Ireland to GB); and it’s state aid rules.

Governance of the Northern Ireland Protocol arrangements is currently by the ECJ or CJEU as the court is known as in the EU. It is also an ask of UKG that this governance be altered and the role of the ECJ removed. This was a UKG ask at the time of negotiation of the Withdrawal Agreement.

In the event that agreement is not reached between the parties (UKG unilateral extension of grace periods is itself not agreed), it is open to one or the other to take unilateral action.

Further announcements are awaited.

Further Border Control Delays (UK)

The UK government recently announced that movement of goods from GB to Northern Ireland (occurring under the grace arrangements in the Northern Ireland Protocol – NIP) would continue in the current manner indefinitely.

The UK government also recently announced that CE marked goods would continue to circulate in GB for the entire 2022. CE marked goods circulate in Northern Ireland by virtue of the NIP. This was included in the August Email Alert.

This morning, the UK government confirmed – here

• The requirement for pre-notification of agri-food imports will be introduced on 1 January 2022 as opposed to 1 October 2021.

• The new requirements for Export Health Certificates, which were due to be introduced on 1 October 2021, will now be introduced on 1 July 2022.

• Phytosanitary Certificates and physical checks on SPS goods at Border Control Posts, due to be introduced on 1 January 2022, will now be introduced on 1 July 2022.

• The requirement for Safety and Security declarations on imports will be introduced as of 1 July 2022 as opposed to 1 January 2022.

The timetable for the removal of the current easements in relation to full customs controls and the introduction of customs checks remains unchanged from the planned 1 January 2022.