New Water Act 2014 (England & Wales)

The Water Act 2014 received Royal Assent on 14 May 2014, and amends the Water Industry Act 1991.

The purpose of the 2014 Act is to reform the water industry to make it more innovative and responsive to customers and to increase the resilience of water supplies to natural hazards such as drought and floods.

Amongst the main measures for the water sector are:

– enabling all business, charity and public sector customers in England to switch their water and sewerage supplier
– establishing a cross-border arrangement with Scotland
– enabling businesses to provide new sources of water or sewerage treatment services
– developing a national water supply network by making it easier for water companies to buy and sell water from each other
– enabling owners of small-scale water storage to sell excess water into the public supply
– enabling ministers to set the level to which a water company needs to plan to cope with droughts
– enabling developers and new water or sewage companies to connect new building developments to the water mains and sewerage system.

The Act also includes additional measures:

– providing measures to restore the sustainable abstraction of water
improving the way water resource management and drought planning are managed
– providing powers to streamline the environmental permitting framework which enables operators to apply for a single rather than multiple permits with the inclusion of licensing schemes for water abstraction and impounding, fish passes and flood defence consents
– encouraging the use of Sustainable Drainage Systems (SuDS) by clarifying that building and maintenance of SuDS can be a function of sewerage undertakers
– transferring the responsibility for maintaining main river maps to the Environment Agency and the Natural Resources Body for Wales.

The Act and Explanatory Notes are found here.

The Act and Explanatory Notes are here on the legislation.gov.uk website.

The Act extensively amends the Water Industry Act 1991 – subscribers to Cardinal Tailored EHS Legislation Registers will have the re consolidated Water Industry Act 1991 uploaded to their websystems shortly.

Various dates apply to commencement, and Cardinal green text will make this clear in the re consolidated Water Industry Act 1991.

Shale Gas and Oil Right of Access (UK)

Update: the Government’s Consultation Response (published 25th September 2014) is here.

My recent post identifying the Tort of Trespass which restricts or prevents access is here.

The Tort of Trespass exists in Common Law.

In summary – ownership of property gives ownership of the strata beneath the surface of the land (in the absence of any express or implied alienation), and therefore prima facie possession of them. Installing pipelines or other intrusions is therefore a trespass; but, if it does not interfere with the owner’s enjoyment of his land, damages will be low. This was last tested in Star Energy UK Onshore UK Limited Bocardo S A.

In this case a trespass was found even though under the Petroleum (Production) Act 1934, all petrol in strata in Great Britain belongs to the Crown (the State), and the Crown is able to grant licences to bore for and get petroleum, which it had done.

The UK Government is now consulting on proposals to reform the procedure for gaining underground access to oil or gas deposits and geothermal energy.

The consultation examines the existing procedures by which companies who wish to extract oil, gas or geothermal energy obtain access to underground land, and the problems raised by these procedures.

The consultation sets out the policy position in relation to underground access rights for shale and geothermal operations.

The policy contains three elements: Access rights, Payments for access, and Notification of Access.

Here is the UK Government Factsheet.

The consultation document is here.

Consultation ends 15th August 2014.

The Government’s preferred solution is presented, which consists of three elements: an underground right of access below 300m, a voluntary payment from industry and a notification for access. The voluntary payment would be supported by a statutory reserve power in the case that industry defaulted on their arrangement. Notification would be made in the form of public announcements to the community in question.

This solution would be implemented in legislation.

Reforming Environmental Permitting Guidance (England & Wales)

DEFRA (UK government department) is seeking to simplify the guidance provided on Environmental Permitting Regulations (EPR). Consultation ends 7th July 2014.

Here is information in DEFRA Plans for Future Content.

An example is: Do I need an environmental permit? – see outline content

As a business operator or citizen I need to know whether I need an environmental permit (or exemption) or whether there is a regulatory position statement so that I can determine how to undertake my activities in compliance with the law.

Plastic Bag Levies (UK)

By law, carrier bags have added levies charged by retailers at point of supply.

Wales: Retailers must charge at least 5p for new single use carrier bags from 1st October 2011. Further information is here.

Northern Ireland: Retailers must charge at least 5p for new single use carrier bags from 8th April 2013. Further information is here.

Scotland: Retailers must charge at least 5p for new single use carrier bags from (20th October 2014 is the date in the draft Regulations). The draft document (approved overnight) is here.

England: In September 2013, the Government announced that it would introduce in England a levy of 5p on single-use plastic carrier bags in 2015. Small retailers with fewer than 250 employers will be exempt from the charge. The Government has also suggested that it may incentivise the use of biodegradable plastic bags, which might be exempt from the levy. The legislation is not yet available.

New F-Gas Regulation is here (EU)

My last post in April on this EU Regulation is here.

The new F-Gas Regulation (No 517/2014) is here. This applies from 1st January 2015, and from this date the existing EU F-Gas Regulation (No 842/2006) is repealed.

Three elements initially stand out:

(1) a longer list of Annex I controlled fluorinated gases,

(2) additional equipment to be leak tested (Article 4),

(3) a lower threshold for leak testing that operates after two years (Article 4).

Subscribers to the Cardinal Tailored EHS Legislation Registers will be Email Alerted nearer the time, and I will post additional posts here on further aspects of this important new EU Regulation.

New CDM Regulations 2015 (Britain)

Consultation is taking place to replace the existing Construction (Design and Management) Regulations 2007 (as amended), together with the associated Approved Code of Practice (ACoP), with 2015 Regulations. The document is here.

The proposal is for significant changes in the following areas:
– structural simplification of the Regulations
– replacement of the ACoP with targeted guidance
– replacement of the CDM-c (CDM co-ordinator) role with a new role, that of the ‘principal designer’
– removal of explicit competence requirements and replacing with a specific
requirement for appropriate skills
– addressing areas of the European Directive (temporary and mobile construction sites) in respect of domestic clients
– addressing the threshold for appointment of co-ordinators.

Two thirds or more of fatalities now occur on small sites – sites where fewer than 15 people work – which is the reverse of the historical picture. Thus, the structure of the Regulations is to be changed to make them more straightforward, linear and easier to navigate and understand by operators of small sites. There is to be less duplication – for example the overlap between current Part 2 and Part 3 requirements – and the structure will aim to follow the process of a project more logically.

Pre-construction co-ordination is required by European law (the temporary and mobile construction site directive), but it is not the view of the Government that this function must be conducted by an external contractor.

The proposal is to replace the CDM-c role with a ‘principal designer’ (PD) role. Responsibility for discharging the function is to rest with the individual or business in control of the pre- construction phase. The default position will be that the responsibility for discharging of the function is within the existing project team, facilitating an integrated approach to risk management. It is envisaged that moving away from a default position where an external contractor is appointed will deliver economies of scale.

The Principle Designer (PD) will be responsible for planning, managing and monitoring the pre- construction phase of a project in the same way that the Principal Contractor (PC) is responsible for planning, managing and monitoring the construction phase.

In summary, the PD will be responsible for:
– planning, managing and monitoring the pre-construction phase
– ensuring that where reasonably practicable, risks are eliminated or controlled through design work
– passing information on to the PC
– ensuring co-operation and co-ordination
– ensuring designers comply with their duties
– assisting the client in preparing the pre-construction information
– preparing the health and safety file.

The purpose is to realign the way in which the co-ordination function is delivered, and to ensure it operates as an integral business function rather than a separate and in many cases an externalised add-on.

Other changes are set out in the consultation document.

Consultation ends on 6th June 2014.

Subscribers to the Cardinal Tailored EHS Legislation Registers will have their websystems updated once the Regulations are enacted. In addition, users will be Email Alerted.

SEVESO III Implementation (Britain)

Consultation has begun on The Control of Major Accident Hazards Regulations 2015. The document is here.

Please note these 2015 Regulations (when enacted) will not implement:

(A) the land use planning (development control adjacent to major hazard sites) aspects – these will need to be implemented via the Planning (Hazardous Substances) Regulations issued separately for the three devolved jurisdictions.

(B) the Directive Article 30 Heavy Fuel Oils clarification – this is already included in the existing COMAH regulations 1999 and associated Planning (Hazardous Substances) Regulations.

(C) the SEVESO III regime in Northern Ireland – separate Regulations will be required for this. Northern Ireland information is found here.

The key areas of change are:

– Scope – due to the move from the classification system ‘Chemicals (Hazard Information and Packaging for Supply)’ (CHIP) to the new classification system ‘Classification, Labelling and Packaging’ (CLP).

– Public Information – all COMAH sites to make certain information about their sites and hazards permanently and electronically available to the public.

Other areas of change relate to safety reports, notifications, emergency plans, some changes in definition of key terms (eg presence of dangerous substances) and broader duties in relation to domino effects, particularly sharing information with neighbouring sites.

Consultation ends on 27th June 2014.

Subscribers to our paid-for Cardinal Tailored EHS Legislation Registers will have their websystems updated when the new legislation is enacted. In addition, users will be Email Alerted.