EU Law Revocation (Britain) UPDATE

The Retained EU Law (Revocation and Reform) Bill (I posted about recently) is in Committee stage, and the Public Bill Committee (the relevant Committee) yesterday has asked for submissions to it – here.

You can see from the link, the purpose of the Bill is to sunset (remove from the statute book) certain types of law by end 2023. In particular, the Bill will completely overhaul a body of UK domestic law known as “retained EU law” (REUL). This is a category of law that came into being as a result of the UK exit from the EU. It includes both Retained EU instruments, and certain domestic laws that gain their authority in a particular way.

Note: when the Committee concludes its consideration of the Bill it is no longer able to receive written evidence and it can conclude earlier than the expected deadline of 5.00pm on Tuesday 22 November.

As I have written in the last Email Alert to clients, we will commence listing the laws to be affected shortly, and this list will display on Cardinal Environment Limited EHS Legislation Registers and Checklists from Jan 2023 (earlier drafts will display earlier) and be subject to tracking through 2023.

A very considerable number of laws will be affected.

We expect most affected laws to be replaced with new laws, covering the same obligations. The tracking evident on Legislation Registers and Checklists will identify progress.

We do not expect that obligations will be removed altogether. If a law is removed without a replacement, we expect the obligations to be inserted by amendment into other pre-existing law, and the tracking will identify this.

Nonetheless, this is a complex process.

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 2018 – specifically –

“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.

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.

Peat Ban (England)

On 27th August 2022 the UK government announced that all sales of peat to amateur gardeners in England would be banned by 2024. The press release is here.

The press release states that “Bagged retail growing media accounts for 70% of the peat sold in the UK and is frequently misused, for example being used as a soil improver rather than a medium in which to propagate plants.”

This ban follows an extensive consultation that was held.

A ban for the professional horticulture sector will follow, but is not announced.

Natural England is working with Defra and partners on the ground to restore thousands of hectares of peatland habitats, and the press release states via round two of the Nature for Climate Fund Peatland Restoration Grant, Natural England awarded on 27th August nearly £11 million to six projects to support restoration works on over 7,000 hectares of peatland, adding to more than 8,000 hectares already funded through round one.

The press release states round two of the Restoration Grant has supported a blend of lowland and upland restoration works, with the Somerset Peatland Partnership convening to restore lowland sites in the south-west of England, and the Great North Bog and Moors for the Future partnerships restoring upland sites in the north of England.

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.

GMO Regulation Changes (England)

In its first Brexit de-regulation foray (of relevance to this blog) – the UK government today seeks views on its plans to change its regulation of genetically modified organisms (GMOs) in England – here.

The consultation ends on 17 March 2021.

Part 1 of the consultation focuses on the regulation of gene edited (GE) organisms possessing genetic changes which could anyway have been introduced by traditional breeding.

Part 2 of the consultation engages separately and starts gathering views on the wider regulatory framework governing genetically modified organisms (GMOs).

Depending on the results of part 1, DEFRA may change the legislation to amend the definition of a GMO as it applies in England. Currently GMOs are defined in section 106 of the Environmental Protection Act 1990 (amended by the GMO Deliberate Release Regulations). This would mean that the law would not apply to organisms produced by gene editing (GE) and other genetic technologies if they could have been developed using traditional breeding methods. DEFRA’s view is that organisms produced by GE or by other genetic technologies should not be regulated as GMOs if they could have been produced by traditional breeding methods.

The responses from part 2 of the consultation will be used by the UK government to inform policy development and stakeholder engagement plans on any potential wider GMO reform.

On 25 July 2018 the Court of Justice of the European Union (CJEU) clarified that organisms obtained by mutagenesis are genetically modified organisms (GMOs) as defined in the European Directive 18/2001/EC. The journal Nature has a useful summary article on this technical field – here.

Note – the Court also clarified that organisms obtained by mutagenesis techniques which have conventionally been used in a number of applications and have a long safety record are exempt from those obligations, on the understanding that the Member States are free to subject them, in compliance with EU law, to the obligations laid down by the directive or to other obligations.

The ECJ Press Release on the matter is here.

Agriculture & Fisheries Bills (UK Brexit)

Exit day is Friday (11pm UK time)

The Brexit Agriculture Bill is already published and has a its Second Reading in February. The Brexit Fisheries Bill is being published later today.

The Agriculture Bill relates to England predominantly (and some provisions apply in Wales and Northern Ireland). It mainly deals with agriculture supports (phasing in a new changed basis for these supports that rewards nature and environmental protection), and government collection of data from economic actors in the food supply chain, in England. It enables England, Wales and Northern Ireland to set their own food marketing standards. Separate Agriculture Bills are expected in Scotland, Wales and Northern Ireland.

The Fisheries Bill is [update 30th Jan] publicised by the UK Government – it is not yet in the list of Bills. It sets up a new system for marine and coastal fisheries management, gives new powers to Devolved Governments, and includes a set of UK-wide objectives to manage fisheries stocks sustainably (and a new objective to move towards “climate-smart” fishing in UK waters). It gives new powers to the Marine Management Organisation to give advice and assistance on sustainable fisheries, marine planning, licensing and conservation overseas.

Further Blog posts will be issued on these matters in due course.

Environment Bill (UK)

I posted months ago about HMG proposal for a new Environment Bill. There has not been an Environment Bill since 1995.

Progress to date has been weak, and the aspects that were published so far related only to the Governance and Principles aspects.

Today, 23rd July, the DEFRA Secretary has published an updated Policy Statement (of intentions) – here.

Note : Environment is a policy area that is devolved to the regional nations, so the legislative proposals below would apply in England only. Scotland, Wales and Northern Ireland would decide themselves whether and what to follow.

Note : this Statement identifies the Environment Bill will be introduced in the second Parliamentary Session (we are still in the First).

Air quality

(1) Legislation on key measures in the Clean Air Strategy – sharing responsibility for tackling air pollution (across local government structures and with relevant public bodies), plus enabling local government to tackle emissions from domestic burning.

(2) Powers for government to mandate recalls of vehicles and machinery, when they do not meet relevant legal emission standards.

Nature

(3) Nature policy to have a local community focus – a mandatory approach to biodiversity net gain requiring developers to ensure habitats for wildlife are enhanced, with a 10% increase in habitat value for wildlife compared with the pre-development baseline (national infrastructure projects excepted – we will continue to work to establish potential approaches to achieving biodiversity net gains for nationally significant infrastructure projects and marine development, which remain out of scope of biodiversity net gain in the Bill).

(4) Re net gain, planning and the future Environmental Land Management system (replacing agricultural land subsidies) – a new statutory requirement for Local Nature Recovery Strategies. The aim is for these strategies to help to map out important habitats and opportunities for the local environment to be improved, linking communities’ knowledge and priorities with national environmental objectives.

(5) A new duty on local authorities to consult with local communities to ensure that consultation takes place when a street tree is to be felled.

(6) Legislation on conservation covenants – voluntary agreements between a landowner and others (for example, a conservation charity) to help deliver positive local conservation.

Waste

(7) A series of measures that will fundamentally change the way government, businesses and individuals produce and consume products (this will be a big change).

(8) New legal powers to allow government to set resource-efficiency standards for products, driving a shift in the market towards products that are lasting, can be repaired and can be recycled. Plus clear labelling to enable citizens to make fully informed purchasing decisions.

(9) New powers to introduce Extended Producer Responsibility schemes – for packaging, producers will pay the full net cost of dealing with their packaging waste to incentivise recyclability in its design (this is in line with other countries). At the moment, producers currently only pay about 10% of these costs. This will be a fundamental change to the Packaging and Packaging Waste Producer Responsibility Law.

(10) Legislation to modernise the government’s powers to set producer responsibility obligations, extending them to prevention and redistribution of waste, in particular tackling food waste where there is no Legislation in England.

(11) A simplified approach to recycling across local authorities, making it simpler for the public to recycle. A consistent set of materials will need to be collected from all households and businesses in England, with clearer labelling on packaging.

(12) New powers to enable deposit return schemes, particularly dealing with plastic waste. Plus a new power to be able to introduce charges for specified single use plastic items. (Note, there is new EU Law in this area, I posted about recently).

(13) The Litter Strategy commits to review the mechanism by which councils and other land-managers can be held to account for maintaining their land to the standards set out in the Code of Practice. This includes the current section 91 Environment Protection Act process and other options, taking into account the impacts on local authority prioritisation and costs, the court system and the exchequer.

(14) A series of measures unspecified) to improve the management of waste, enabling better use of resources and to reduce the risk of economic, environmental and social harm.

Water

(15) Legislation to strengthen Ofwat’s powers to update water companies’ licences – in particular bringing the way in which water companies appeal Ofwat decisions in line with that for other utility regulators.

(16) New powers to direct water companies to work together on how they will meet current and future demand for water; making planning more robust, even in drought conditions and/or in areas of water stress, for example by working jointly to transfer between catchments when needed.

(17) A new power to enable future updates to a list of harmful chemicals which must be tackled to protect the aquatic environment.

New SSSI for Tees Estuary (England)

Natural England has today confirmed its 2018 notification of the Teesmouth and Cleveland Coast Site of Special Scientific Interest (SSSI) – map area here. Citation is here.

The Tees Estuary is a unique environment where industrial facilities share the landscape with a wide range of coastal habitats which teem with wildlife.

There were previously seven SSSIs protecting parts of the Tees Estuary, which have now been merged and expanded into a single, landscape-scale SSSI, totaling nearly 3000 hectares (or 12 square miles).

The extensions have more than doubled the area of SSSI in the Tees Estuary. Additional areas of sand-dune, saltmarsh, mudflat, grassland, lagoons and estuarial waters are protected, along with the populations of breeding and wintering birds, the iconic population of harbour seals and sand-dune invertebrates.

The extended SSSI also continues to protect two areas of nationally-important geology, notably the mysterious prehistoric ‘submerged forest’, a part of which was exposed on the beach at Redcar after the ‘Beast from the East’ in 2018.

Natural England provides advice on day-to-day operations on the estuary ‘up front’ to set out how current activities can take place in a way that continues to allow wildlife to flourish. The advice is set out in the Memorandum of Understanding of the Tees Estuary Partnership, which has a vision to enhance both the economic and environmental assets of the area.

Per the Natural England press release – The approach embodies the ambitions set out in Defra’s 25 Year Environment Plan, which seeks to put people at the heart of nature by working closely with others and developing shared objectives at a landscape-scale.

The consultation on the SSSI took place alongside a consultation on the extension of the existing Special Protection Area (SPA) and Ramsar site to include additional marine, coastal and freshwater habitats and new bird species for protection. Following the consultation, Natural England will submit its recommendations on these extensions to DEFRA for consideration.

Natural England also designates the Teesmouth National Nature Reserve, and the long sandy beaches, and harbour seal haul-outs are integral and well-loved parts of the local landscapes.

[we welcome Tony Juniper to his role at Natural England, and hope for many more such announcements]