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.

Coronavirus/COVID-19 measures (UK)

UPDATE : the general guidance for employers, employees and business includes these additional stipulations –

• businesses and workplaces should encourage their employees to work at home, wherever possible

• if someone becomes unwell in the workplace with a new, continuous cough or a high temperature, they should be sent home and advised to follow the advice to stay at home

• employees should be reminded to wash their hands for 20 seconds more frequently and catch coughs and sneezes in tissues

• frequently clean and disinfect objects and surfaces that are touched regularly, using your standard cleaning products

• employees will need your support to adhere to the recommendation to stay at home to reduce the spread of coronavirus (COVID-19) to others

Last week saw a raft of measures and the first legislation compelling action. These are compiled online – here.

Of particular note to this Blog are –

(1) the mandated closure of some workplaces and all workplace canteens where food is sold – here plus law on the matter here (England) and here (Wales)

[note the workplace canteen exceptions in the law]

(2) the definition of key worker – found in the guidance for schools closure – here

(3) the definitions of “self-isolating”, “social distancing” and “shielding” and the cohorts these apply to

“Self-isolating” – here

“Social distancing” – here

“Shielding” – here

(4) the relaxation of drivers’ hours (I blog posted about this last week) – here

(5) changes to Planning Inspectorate site visits, appeals, inquiries and events – here

(6) changes to Courts and tribunals planning and preparation – here

[note there are also changes to HSE and Environment Agency, and other regulator, site visits etc which are published in their own online web resources]

(7) general guidance for employers, employees and businesses – here

(8) guidance on the cleaning of workplace surfaces – here

(9) shipping and sea ports guidance – here

(10) restriction of non-essential rail travel – here

[note the London Mayor has announced reductions in TFL transport and transport in London, including by driving, should be for essential travel only]

[transport by driving outside of London should also be essential travel only]

The advice for anyone in any setting is to follow these main guidelines.

1 The most common symptoms of coronavirus (COVID-19) are recent onset of a new continuous cough and/or high temperature. If you have these symptoms, however mild, stay at home and do not leave your house for 7 days from when your symptoms started. You do not need to call NHS 111 to go into self-isolation. If your symptoms worsen during home isolation or are no better after 7 days, contact NHS 111 online. If you have no internet access, you should call NHS 111. For a medical emergency dial 999.

2 Wash your hands more often than usual, for 20 seconds using soap and hot water, particularly after coughing, sneezing and blowing your nose, or after being in public areas where other people are doing so. Use hand sanitiser if that’s all you have access to.

3 To reduce the spread of germs when you cough or sneeze, cover your mouth and nose with a tissue, or your sleeve (not your hands) if you don’t have a tissue, and throw the tissue in a bin immediately. Then wash your hands or use a hand sanitising gel.

4 Clean and disinfect regularly touched objects and surfaces using your regular cleaning products to reduce the risk of passing the infection on to other people.

Freeports Consultation (UK Brexit)

Yesterday (10th Feb) the UK government announced the start of its consultation on its plan to create 10 freeports in locations across the UK.

The consultation deadline is 20th April.

The Freeports consultation document (UK’s Freeports policy) is here.

The consultation includes policies which relate to the whole of the UK, as well as some which are devolved. Where a policy is devolved, the proposals in the consultation apply to England; responsibility for policy development and implementation in Scotland, Wales and Northern Ireland lies with the devolved administrations. The document states the –

UK Government intends to work in partnership with the devolved administrations to develop proposals which enable the creation of Freeports in all nations of the UK.

(1) Tariffs and Customs – Customs and tariffs policy is reserved to the UK Government. The opportunity for customs and tariff benefits would be available UK-wide.

(2) Tax – Some aspects of tax policy are devolved in Scotland, Wales and Northern Ireland. This section consults on tax policies which vary in scope, with some applying UK wide, some in England and Northern Ireland, and others in England only.

(3) Planning – Proposals on permitted development rights and zonal planning relate to England only. Proposals on the National Policy Statement for Ports relate to England and Wales.

(4) Regeneration – Infrastructure, skills and housing are devolved matters and the proposals cover England only. Trade and investment promotion is a “concurrent” power. This means that whilst the UK Government has primacy over trade and investment promotion in the UK, the devolved administrations also pursue promotion activity on behalf of businesses in their nations.

(5) Innovation – Innovation policy is UK wide; although some aspects of university funding are devolved matters, we hope to hear from stakeholders across the UK on these proposals.

The summary of questions is on page 40 of the document’s 48 pages.

For example, Q1 asks To what extent do you agree/disagree that the reduced declaration requirements for moving goods into a Freeport represent a useful simplification of the administration of customs processes?

Note the UK government announcement yesterday of the return of physical border checks and paperwork for EU goods imports from 1st Jan 2021 (Blog post yesterday).

Q8 asks What do you see as the advantages and/or disadvantages of an inland Freeport site compared to a Freeport site which is adjacent to a port?

Q11 asks To what extent would the suspension of import VAT be of value to your business?

Note yesterday’s UK government press release did not confirm the VAT deferral scheme.