EU Law Revocation (Britain)

Yesterday 22 September ’22, the UK government introduced its bill to revoke and reform en masse (by 31 Dec 2023) retained EU law and domestic subordinate law documents (statutory instruments – Regulations) that draw their power from sections of the 1972 European Communities Act (specifically section 2(2) or paragraph 1A of Schedule 2).

The revocation and reform bill is here.

I will be outlining in the next (September) Email Alert how we will deal with this in Cardinal Environment EHS Legislation Registers & Checklists (Britain, England, Wales and Scotland).

Re OHS – the impact will be felt on Equipment Regulations (not LOLER), and Product Regulations (including obviously UK REACH and safety data sheets). Also the Working Time Regulations.

But Equipment Use Regulations, COSHH, DSEAR, Carriage of Dangerous Goods, the Management Regulations and the Workplace Regulations will be unaffected.

Re ENV – the impact will be substantial in Waste. Also EIA and Habitats and Species Regulations will be re-written (I had already written about this in the blog). Note the Office for Environmental Protection (England) has an investigation underway into the EIA, SEA and Habitats Regulations. This link gives access to written evidence to the Levelling Up and Regeneration Bill Committee, which gives further information.

ODS and F-Gas similarly will require new domestic law.

31st December 2023 is the sunset date written into the Bill.

We will set up a document tracking list, with traffic light colours, as we did with the Brexit law changes that operated from 1st Jan 2021 (the Brexit Consolidated Law list).

It is expected that the relevant government departments will commence review of each affected instrument, and that “reformed” domestic law will be enacted. The new document tracking list will identify progress, to customers of our Cardinal Environment EHS Legislation Registers & Checklists. The Email Alerts will Alert of enactment of new instruments.

This is a complex area. If there are further developments, for example to the sunset date, then I will issue further blog posts.

The EU Law revocation extends to all parts of Britain, but ENV legislation is delegated, so variations might emerge (particularly on timescales).

The EU Law revocation does not currently extend to Northern Ireland.

If you have questions, and you are a client, please send your questions to me by email. Questions asked on this blog post will not be answered.

The above is NOT a full description of the instruments affected. Clients will have the document tracking list inserted in their systems in Jan 2023. The specifics of how we will handle this will be in the September Email Alert (as mentioned above).

Habitats and Water Abstraction Court Case (UK)

On 6th September ’22, the High Court granted judicial review of an Environment Agency decision in 2021 to restrict their investigation of water abstraction impacts on Sites of Special Scientific Interest (SSSI) in Norfolk. The judgment is here. Local press is here.

The claimants were private citizens, farmers, living in the Norfolk Broads, freehold owners of a fen and other land, and concerned that water abstraction (for food production primarily) is causing irremediable damage to the environment, their own land, including ecosystems that are legally protected. Their intervention had been on going for 14 years, and had already been instrumental in the decision of the defendant, the Environment Agency, not to renew two abstraction licences. They successfully supported the Environment Agency’s decision to vary the two licences when that decision was challenged on appeal.

The Environment Agency was established by section 1 of the Environment Act 1995. By section 6(1)(b) of the 1995 Act, its duties include the promotion of the conservation of flora and fauna which are dependent on an aquatic environment. It is responsible for the grant (and variation and revocation) of licences for the abstraction of water.

Groundwater is water that is present in the ground. Many ecosystems (habitats and species) are dependent on a supply of groundwater. Groundwater may be abstracted (in the Norfolk Broads, from either the chalk, the crag, or the Sandringham sands) for use by the public water supply, industry, and agriculture. A licence is required to extract groundwater. Such licences may either be permanent (with no requirement to renew) or time limited (with the possibility of periodic renewal). The Environment Agency has power to revoke abstraction licences: sections 52 and 53 of the Water Resources Act 1991.

Once changes to an ecosystem are apparent, it may be too late to put matters right; by that stage, irremediable damage may have occurred. For this reason, Natural England (which has statutory responsibility for providing advice to the Environment Agency and others) is an interested party and had advised the Environment Agency in October 2020 that it was necessary to consider water supply in the Broads and to take any necessary action to restore ground and surface water levels. For the same reason, the Environment Agency itself recognises an obligation to apply a “precautionary approach to dealing with adverse effects” such that it must take appropriate and proportionate action to ensure that licenced water abstraction does not lead to adverse effects.

The Norfolk Broads is, in terms of rainfall, one of the driest parts of the country. Long- term average annual rainfall is between 600mm and 730mm. The low rainfall is exacerbated by periods of drought. The Broads also lie within an area where a great deal of irrigated fruit and vegetable production takes place. This is reliant on water abstraction. In the Bure and Thurne Reporting Area alone, more than 60 million litres of ground water and surface water are abstracted each day. So, there is a relatively small amount of rainfall, but a considerable amount of water is taken from the ground.

The claimants believe that the Environment Agency ought to review more broadly the impact of water abstraction to decide whether other licences should also be withdrawn or altered. The court case is the claimants challenge, seeking judicial review, of the Environment Agency’s refusal to expand the scope of an investigation that it had conducted in 2021 into the effect of 240 abstraction licences. That investigation concerned the impact of abstraction on just three Sites of Special Scientific Interest (SSSIs).

The Environment Agency accepts that it must have regard to article 6(2) of the pre-Dec 2020 European Habitats Directive. It maintained that it had done so and that it had, after taking it into account, reasonably decided to limit its investigation of the impact of the 240 licences to the three SSSIs. It disputed that article 6(2) has direct effect in domestic law beyond the obligation to “have regard” to it. Irrespective, it maintained that it was acting compatibly with the requirements of article 6(2).

The High Court determined that the GB Habitats Regulations (2017) continue to have effect in domestic law even though they are EU-derived domestic legislation: by means of sections 1B(7) and 2(1) of the European Union (Withdrawal) Act 2018specifically –

“The Habitats Regulations are thus retained EU Law: section 6(7) of the 2018 Act. It follows that they must be interpreted in accordance with retained EU case law and retained principles of EU law: section 6(3) of the 2018 Act.

” Questions as to the meaning and effect of retained EU law (so, including the Habitats Regulations, and the obligation under article 6(2) which continues to have effect under section 4) must be decided in accordance with retained general principles of EU law: section 6(3)(a). The precautionary principle is a retained general principle of EU law: section 6(7).

The High Court decided on 4 matters –

(1) The ambit of the obligation, under regulation 9(3) of the GB Habitats Regulations (2017), to “have regard” to the requirements of the pre-Dec European Habitats Directive, including whether that mandates compliance with article 6(2) of that Habitats Directive.

Decision – “…. the duty to “have regard” here does not implicitly permit the Environment Agency to act in a way that is inconsistent with the Habitats Directive (in other words to have regard to the requirements of the Directive but then deliberately decide to act in a way that is inconsistent with those requirements). Rather, it recognises that the Environment Agency is one part of a complex regulatory structure and, depending on the issue, it may have a greater or lesser role to play.”

“The duty on the Environment Agency to have regard to the requirements of the Habitats Directive means that the Environment Agency must take those requirements into account, and, insofar as it is (in a particular context) the relevant public body with responsibility for fulfilling those requirements, then it must discharge those requirements. In other words, the scope for departure that is ordinarily inherent in the words “have regard to” is considerably narrowed.”

“It is clear from all of the contemporaneous evidence (including internal emails) that the Environment Agency has regarded itself as bound by the Habitats Directive and has sought to act in compliance with its requirements”

(2) Whether article 6(2) of the pre-Dec 2020 Habitats Directive imposes an obligation of a kind recognised by the Court of Justice of the European Union (“CJEU”) or any court or tribunal in the United Kingdom in a case decided before 2021.

Decision – “…. by reason of section 4 of the 2018 Act, article 6(2) continues to be recognised and available in domestic law and is to be enforced accordingly.”

Detail – “The parties agree that the question of whether article 6(2) is enforceable by a UK court (irrespective of regulation 9(3) of the Habitats Regulations) turns on the application of section 4(2)(b) of the 2018 Act, namely whether the obligations under article 6(2) are of a kind recognised by the CJEU, or any court or tribunal in the United Kingdom, in a case decided before 11pm on 31 December 2020.”

“… That test is satisfied once a case is identified that recognises article 6(2) as being enforceable in domestic proceedings. The statute expressly provides that it is not necessary for that to be an essential part of the court’s decision. It is not relevant to the section 4(2) test to enquire as to whether the case was correctly decided or was decided per incuriam. The position might be different if the decision had been overturned on appeal, or later overruled, but that is not the case here.”

(3) Whether the Environment Agency has breached article 6(2) of the pre-Dec 2020 Habitats Directive by limiting its investigation of water abstraction to the three SSSIs.

Decision – “The claimants have demonstrated a breach of article 6(2) of the Habitats Directive and a breach of regulation 9(3) of the Habitats Regulations.”

4) Whether the Environment Agency acted irrationally by limiting its investigation of water abstraction to the three SSSIs.

Decision – “Having committed itself to discharge that obligation, it was irrational for the Environment Agency not to expand the RSA programme without having any alternative mechanism in place that could ensure compliance with article 6(2). It follows that even if (contrary to the findings I have made in respect of issues (1) and (2)) article 6(2) is not enforceable by the High Court, the Environment Agency’s decision is flawed on common law grounds. On this basis, the claimants’ rationality challenge also succeeds.”

Summary

(A) The claimants showed that water abstraction may be causing deterioration of protected habitats or significant disturbance of protected species within The Broads Special Area of Conservation.

(B) The Environment Agency must (by reason of regulation 9(3) of the Habitats Regulations) have regard to the requirements of article 6(2) of the pre-Dec 2020 Habitats Directive. It must therefore be in a position to justify any departure from those requirements. The Environment Agency’s obligation under article 6(2) continues to be enforceable in domestic law: section 4 of the 2018 Act. That obligation must continue to be interpreted in accordance with the precautionary principle: section 6 of the 2018 Act.

(C) The Environment Agency must take appropriate steps to ensure that, in the SAC (pre-Dec 2020 European Habitat designation adopted in UK law and applied to areas of Norfolk, including SSSIs), there is no possibility of the deterioration of protected habitats or the significant disturbance of protected species as a result of licensed water abstraction. The Environment Agency has discharged that obligation in respect of three sites of special scientific interest. But it has not done so in respect of all sites within the SAC. That is because its review of abstraction licences was flawed and (at least in relation to permanent licences) it has not conducted a sufficient further review to address those flaws. It is therefore in breach of regulation 9(3) of the Habitats Regulations and article 6(2) of the Habitats Directive.

(D) Having decided to comply with article 6(2), it was not rational for the Environment Agency to limit its investigation to just three sites without undertaking further work to ensure compliance with article 6(2) across the entire SAC.

The High Court will issue Directions.

This was a court case in which the claimants relied on a pre-Dec 2020 EU Directive to gain relief. The judgment confirmed the direct influence of EU Law if, prior to 1st Jan 2021, those rules had been found by a court (the CJEU or a local UK court) to be directly enforceable against public authorities.

The Prime Minister has promised to remove the influence of EU Law by end 2023. Please note my Blog post of some days ago re the forthcoming EOR Regulations (which when enacted may alter or revoke the 2017 Habitats Regulations).

The new DEFRA Secretary has cited water security as a key objective, along with food supplies.

Storm Water Overflows (England)

UPDATE: 7th September ’22 the new DEFRA Secretary wrote to water companies to write to him formally by 21st September ’22 with their plans to make significant improvements.

6th September ’22, an Urgent Question was asked (in the House of Commons) of the then DEFRA Secretary George Eustice about storm water overflows. His answers provided an update – (the DEFRA Secretary has now changed) –

(1) When appointed DEFRA Secretary in February 2020 Mr Eustice instructed officials to change the strategic policy statement for Ofwat to give the issue greater priority.

(2) The Environment Act 2021 sets a requirement for water companies to reduce the harm caused by sewage discharges.

(3) Water companies are investing £3.1 billion to deliver 800 storm overflow improvements across England by 2025. Mr Eustice stated this would deliver an average 25% reduction in discharges by 2025.

(4) In 2016, only 5% of storm overflows were monitored – almost 90% are now monitored, and Mr Eustice stated by next year 100% of all storm overflows would be required to have monitors fitted. There are 15,000 storm overflow discharge points in England.

(5) The Environment Agency and Ofwat have launched criminal and civil investigations into water companies, at more than 2,200 treatment works, following the improvements made to monitoring data. That follows 54 prosecutions against water companies since 2015, securing fines of nearly £140 million.

(6) The Environment Act 2021 makes it a legal requirement for companies to provide discharge data to the Environment Agency and to make it available to the public in near real time: within an hour.

(7) The Environment Act 2021 gives new powers to Ofwat to modify water company licence conditions. Mr Eustice stated Ofwat is currently consulting on proposals that will enable it to take enforcement action against companies that do not link dividend payments to their environmental performance or that are failing to be transparent about their dividend payouts. It’s possible the consultation referred to is one on PR24 here. Note Ofwat’s expectation (PR24) that investor returns would be linked to the ability of companies to create and deliver value for customers and the environment, and the expectation that companies would take significant action to improve the environment and resilience. The City Briefing of 7 July ’22 gives further detail – here.

(8) On 5th September ’22, the storm overflows discharge reduction plan (required by the Environment Act 2021) was laid before Parliament. This plan underpins the £56 billion of capital investment over the next 25 years cited by Mr Eustice and the initial £3 billion investment to reduce discharges by 25% by 2025 at point (3) above. The plan makes a priority of designated bathing waters and other priority sites with a target of 2035. The plan foresees significant reductions in discharges at 75% of high-priority sites. The government’s storm overflows discharge reduction plan (England) is here.

(9) On 27th June ’22, the Office for Environmental Protection announced its first investigation: of the roles of Ofwat, the Environment Agency and the DEFRA Secretary in the regulation of combined sewer overflows (CSOs) in England – the announcement is here.

(10) The Environment Agency’s costs for monitoring water companies’ permits for the management of combined storm overflows are cost-recovered through the permit. In addition, Mr Eustice said the government provides some support.

(11) Southern Water is one of the companies that was recently investigated, and it was subject to a record fine of close to £90 million. The fine precipitated a change in ownership of that company and additional equity injected – the Ofwat (August ’22) consultation on the transfer that took place in 2021 is here.

(12) Mr Eustice distinguished – one matter is the failure of water companies to abide by their permit conditions, the reason for the Environment Agency bringing multiple prosecutions. Another matter is the separate issue of the permitted use of storm overflows. That issue is about long-term investment in infrastructure, which is the focus of the government’s storm overflows discharge reduction plan.

Company Energy Saving Plans (France)

On 29th August ’22, the French Prime Minister speaking to MEDEF (Mouvement des Entreprises de France) called for all companies to put in place an energy saving plan in September. The link is here.

She said “In September, every company should put in place its own plan to save energy. If we act collectively, we can overcome the risk of shortages. But if each one of us fails to do our part, or if all negative outlooks come to fruition at once, we will have to impose a decrease in consumption.”

She said she had ordered every government ministry to put in place a plan to cut 10 percent of their energy use within the next two years and she suggested each company also put in place an “energy sobriety ambassador.”

She said corporate energy savings plans will be reviewed in October.

We will be looking out for the legislation that will underpin this, and update French systems accordingly.

Spain Energy Saving Plan (Spain)

On 1st August ’22 the Spanish Council of Ministers approved a new royal decree-law setting out at Title V a “Shock Plan” for energy saving and management in air conditioning to rapidly reduce energy consumption in administrative, commercial and public buildings, as defined in the Reglamento de Instalaciones Térmicas en los Edificios (RITE).

The instrument will have to be complied with by all administrations, both the general State administration and the regional and local ones, as well as the private sector: shops, department stores, cinemas, theaters, stations, airports, hotels and distribution centers. However, the president of the Community of Madrid has said it would not be applied in Madrid.

The third vice president, Teresa Ribera, explained that these measures may be relaxed in the event of waves of extreme temperatures and in duly justified cases.

The new instrument is here, scroll to Title V.

A description is found here.

The Spanish Government is also preparing a Contingency Plan, which will include energy saving measures and solidarity actions with the rest of the EU, which will be presented at the end of September.

The new instrument temporarily increases the obligations for management of the real estate of public buildings; commercial establishments, such as department stores or shopping malls; cultural spaces, such as cinemas or congress centers; and infrastructure intended for the transport of people, such as stations and airports. More details:

• These structures will have heating and cooling temperatures limited to 19 and 27 degrees Celsius respectively; building managers will have seven days from the publication of the rule to make the limitation effective, which will be in force until October 1, 2023.

• Building managers must display on posters or screens the mandatory saving measures, and other additional ones, that reduce consumption. They will have seven days to comply and this requirement will be effective until October 1, 2023.

• Before September 30, buildings must have automatic closing mechanisms on access doors to prevent them from being permanently open.

• The lighting of the shop windows will have to be turned off from 10:00 p.m. This provision will also apply to public buildings that are unoccupied at the time. Seven days is given for compliance and the measures will last until October 1, 2023.

• Those properties that have passed the energy efficiency inspection prior to January 1, 2021 must undergo an emergency review before December 31, 2022, so that all buildings with relevant boilers and air conditioning consumption have passed an inspection in the last two years.

We will add this document to Spanish systems, at their next update.

Environmental Standards Scotland (Scotland)

Environmental Standards Scotland (ESS) is a public sector body, set up as a non-ministerial office, independent of but accountable to the Scottish Government.

The ESS is set up under the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (enacted by the Scottish Parliament).

The ESS Interim Strategic Plan (here) states it is mindful of the commitments given by the Scottish Government to fulfil its international obligations and to ‘keep pace’ with the European Union.

The ESS has been established to fill the environmental governance gap caused by the UK’s departure from the European Union. Its task is to ensure that there is effective scrutiny of public authorities’ compliance with environmental law and that the application of the law is effective in protecting and enhancing nature and human health. The Office for Environmental Protection (OEP) is a similar body in England, and also in Northern Ireland.

Live investigations are published on the ESS website – here.

Net Zero Strategy Court Case (UK)

On 18 July 2022, the High Court handed down a judgment in a case against the UK government on its Net Zero Strategy (NZS). The judgment is here. The summary is here.

The judgment states – (extracts and some sentences shortened) –

The UK responded to the 21st COP Paris Agreement (2015) in two ways. First, section 1 of the Climate Change Act 2008 (“CCA 2008”) was amended so that it became the obligation of the Secretary of State for Business, Energy and Industrial Strategy (BEIS) to ensure that “the net UK carbon account” for 2050 is at least 100% lower than the baseline in 1990 for CO2 and other GHGs, in substitution for the 80% reduction originally enacted (see the Climate Change Act 2008 (2050 Target Amendment) Order 2019 (SI 2019 No.1056)). That change came into effect on 27 June 2019.

Second, on 12 December 2020 the UK communicated its NDC (National Determined Contributions) to the UNFCCC (UN Framework Convention on Climate Change) to reduce national GHG emissions by 2030 by at least 68% compared to 1990 levels, replacing an earlier EU based figure of 53% for the same year.

Section 4 of the CCA 2008 imposes a duty on the Secretary of State to set an amount for the net UK carbon account, referred to as a carbon budget, for successive 5 year periods beginning with 2008 to 2012 (“CB1”). Each carbon budget must be set “with a view to meeting” the 2050 target in s.1. The ninth period, CB9, will cover the period 2048-2052 for which 2050 is the middle year. Section 4(1)(b) imposes a duty on the Secretary of State to ensure that the net UK carbon account for a budgetary period does not exceed the relevant carbon budget. Thus, the CCA 2008 had established a framework by which the UK may progress towards meeting its 2050 net zero target.

The Secretary of State has set the first 6 carbon budgets. Each has been the subject of affirmative resolution by Parliament. CB6 came into force on 24 June 2021 (The Carbon Budget Order 2021 – SI 2021 No. 750) and sets a carbon budget of 965 Mt CO2e (million tonnes of carbon dioxide equivalent) for the period 2033 – 2037.

The court case was for judicial review but did not challenge the setting of the net zero target in s.1 of the CCA 2008 nor the setting of any carbon budget (including CB6).

Instead, the court case asked if the UK government had complied with s.13 and/or s.14 of the CCA 2008.

Section 13 imposes a duty on the Secretary of State to “prepare such proposals and policies” as he considers will enable the carbon budgets which have been set under the CCA 2008 to be met. The UK government agrees this is a continuing obligation.

Section 14 provides that “as soon as is reasonably practicable” after setting a carbon budget, the Secretary of State must lay before Parliament a report setting out proposals and policies for meeting the current and future “budgetary periods” up to and including that budget. Following the setting of CB6, the Secretary of State laid the NZS before Parliament on 19 October 2021 as a report under s.14 of the CCA 2008.

Re Section 13 – the court concluded –

(1) s.13(1) of the CCA 2008 does not require the Secretary of State to be satisfied that the quantifiable effects of his proposals and policies will enable the whole of the emissions reductions required by the carbon budgets to be met. The obligation in s.13(1) does not have to be satisfied by quantitative analysis alone.

(2) Information on the numerical contribution made by individual policies in the NZS is legally essential to enable the government to discharge its obligation under s.13(1) by considering the all-important issue of risk to delivery. These are matters for the Secretary of State and not simply his officials.

Re Section 14 – the court concluded –

(3) The NZS should have gone below national and sector levels to look at the contributions to emissions reductions made by individual policies (or by interacting policies) where assessed as being quantifiable in order to comply with the language and statutory purposes of s.14 of the CCA 2008.

(4) It is the responsibility of the Secretary of State, not his officials, to lay a report before Parliament under s.14. The adequacy of such a report is a matter for him, acting on the advice of officials and with legally sufficient briefing.

The Secretary of State must lay before Parliament a fresh report under section 14 before the end of March 2023.

Environmental Outcomes Reports (UK)

Part 5 (clauses 116 to 130) of the Levelling-Up and Regeneration Bill provides for regulations – termed Environmental Outcomes Reports Regulations (EOR Regulations) to be enacted by the Secretary of State to specify outcomes in relation to environmental protection in the UK or a relevant offshore area that are to be “specified environmental outcomes”. The Bill is here, and it is in Committee (House of Commons).

The Bill Explanatory Notes state the EOR Regulations will be subject to public consultation and also the affirmative parliamentary procedure (which requires a positive vote of the UK Parliament) and would (by its own provisions) uphold the non-regression provisions set out in Part 5 (clause 120).

The effect of the EOR Regulations will be not only to specify outcomes relating to environmental protection, but also against these specified environmental outcomes to assess the relevant plans and relevant projects through an Environmental Outcomes Report. As well as assessing against outcomes, an Environmental Outcomes Report must additionally set out and assess the impact of any proposed mitigation or compensation as well as considering reasonable alternatives to the consent or plan, or any element of them. Where an Environmental Outcomes Report is required, this would (by law) be taken into account when considering whether to grant consent or bring a plan into effect.

Essentially the EOR Regulations will take over from the EIA Regulations (for those projects and plans where environmental outcomes reports are mandated).

Bill clause 116 defines environmental protection to be –

(a) protection of the natural environment, cultural heritage and the landscape from the effects of human activity;

(b) protection of people from the effects of human activity on the natural environment, cultural heritage and the landscape;

(c) maintenance, restoration or enhancement of the natural environment, cultural heritage or the landscape;

(d) monitoring, assessing, considering, advising or reporting on anything
in paragraphs (a) to (c).

Before making specified environmental outcomes, Bill clause 116 states the Secretary of State must have regard to the current environmental improvement plan made under Part 1 of the Environment Act 2021 (presently the 25 Year Environment Plan, as none is yet made under the EA 21 Part 1), including the legally binding long-term targets and interim targets that are set under it.

Bill clause 117 provides for an environmental outcomes report to be made for certain consents and certain plans. An environmental outcomes report is a written report.

Further clauses set out powers to be ascribed to these EOR Regulations in relation to consents and plans. Note: the new terms “category 1 consent” and “category 2 consent”.

Bill clause 120 sets out safeguards for non-regression, international obligations and public engagement.

Bill clause 121 deals with interactions with the devolved administrations.

Bill clause 122 addresses exemptions for national defence and civil emergency.

Bill clause 123 sets out sanctions, notably the EOR Regulations may create criminal offences, but not the penalty of imprisonment.

Bill clause 127 addresses the interaction with existing environmental assessment regulations (this is a list of law, including the various existing EIA Regulations) and the existing Habitats Regulations. In particular, the EOR Regulations may disapply aspects of the environmental assessment Regulations or the existing Habitats Regulations where an environmental outcomes report is required.

The existing Habitats Regulations are the source of European Protected Species (and their additional protection from disturbance (animals), and cutting and collecting (plants)) and also European Protected Sites (habitat).

The EOR Regulations may also amend, or revoke the existing environmental assessment regulations.

Protected Species (UK)

Species are protected in Britain by the Wildlife and Countryside Act 1981 –

Schedule 5 sets out the lists of animals that are subject to the Section 9 criminalising of intentional killing, injuring or taking any wild animal. Scotland has a slight variant – intentional or reckless killing, injuring or taking any wild animal.

Schedule 8 sets out the lists of plants that are subject to the Section 13 criminalising of intentionally picking, uprooting or destroying any wild plant, and (not being an authorised person), intentional uprooting of any wild plant not included in Schedule 8.

Scotland has a slight variant – intentional or reckless picking, uprooting or destroying any wild plant or any seed or spore attached to any such wild plant, and (not being an authorised person), intentional or reckless uprooting of any wild plant not included in Schedule 8.

The intervention of EU law during the period of the UK’s membership of the EU has resulted in a separate list of protected species for animals and another one for plants – set out in 2017 Regulations, replacing earlier 2010 Regulations. The animals and plants in these lists are termed European Protected Species. They may be also represented in the 1981 Act lists.

Schedule 2 (of the 2017 Regulations) identifies those animals listed in Annex IV(a) to the pre-31st Dec 2020 European Habitats Directive which have a natural range which includes any area in Great Britain. Being listed in Schedule 2 does not necessarily mean the animal is rare in Britain per se, it means it is rare in Europe and yet can be found in Britain.

Regulation 43 of the 2017 Regulations criminalises the deliberate capture, injury or killing of any wild animal of a European protected species, the deliberate disturbance of wild animals of any such species, the deliberate taking or destroying the eggs of such an animal, and the damaging or destroying of a breeding site or resting place of such an animal.

This is a different offence to the 1981 Act offence, notably in respect of disturbance. Note: there are also 1981 Act offences relating to capture and selling not listed in this post.

Schedule 5 (of the 2017 Regulations) identifies those plants listed in Annex IV(b) to the pre-31st Dec 2020 Habitats Directive which have a natural range which includes any area in Great Britain. Again being listed in Schedule 5 does not necessarily mean the plant is rare in Britain, it means it is rare in Europe and yet can be found in Britain.

Regulation 47 of the 2017 Regulations states –

47.—(1) It is an offence deliberately to pick, collect, cut, uproot or destroy a wild plant of a European protected species.

(2) It is an offence for any person—

(a) to be in possession of, or to control,

(b) to transport,

(c) to sell or exchange, or

(d) to offer for sale or exchange,

anything to which this paragraph applies.

(3) Paragraph (2) applies to—

(a) any live or dead plant or part of a plant—

(i) which has been taken in the wild, and

(ii) which is of a species or subspecies listed in Annex II(b) (other than any bryophyte) or Annex IV(b) to the Habitats Directive; and

(b) anything derived from such a plant or any part of such a plant.

Again these are different offences to the two offences set out in the 1981 Act, notably in relation to cutting and collecting.

The above 2010 and then 2017 extension to disturbance and cutting and collecting is particularly relevant to land development. The current government stipulations on planning are here.

The legislation in Northern Ireland follows that of Britain, presently.

Please consider if your Cardinal system has sufficient Protected Species legislation in it.