Environment Bill (HC Bill 3)

(4) Sub-paragraph (1) does not apply to policies so far as relating to taxation,
spending or the allocation of resources within government.

(5) Sub-paragraph (2) does not apply to policies so far as relating to—

(a) the armed forces, defence or national security, or

(b) 5taxation, spending or the allocation of resources within government.

Part 3 Interpretation

Meaning of “natural environment”

9 In this Schedule the “natural environment” means—

(a) 10plants, wild animals and other living organisms,

(b) their habitats,

(c) land (except buildings or other structures), air and water,

and the natural systems, cycles and processes through which they interact.

General interpretation

10 (1) 15In this Schedule—

• “current environmental improvement plan” has the meaning given by
  paragraph 1(8);

• the “Department” means the Department of Agriculture, Environment
  and Rural Affairs;

• 20“environmental improvement plan” has the meaning given by
  paragraph 1 (and see also paragraph 3(10));

• “environmental principles” has the meaning given by paragraph 6(5);

• “improving the natural environment”, in relation to an environmental
  improvement plan, is to be read in accordance with paragraph 1(5);

• 25“making” policy includes developing, adopting or revising policy;

• “policy” includes proposals for legislation, but does not include an
  administrative decision taken in relation to a particular person or
  case (for example, a decision on an application for planning
  permission, funding or a licence, or a decision about regulatory
  30enforcement);

• “policy statement on environmental principles” has the meaning given
  by paragraph 6.

(2) Section 41(3) of the Interpretation Act (Northern Ireland) 1954 (c. 33(N.I.))
applies in relation to the laying of a document before the Northern Ireland
35Assembly under this Schedule, as it applies in relation to the laying of a
statutory document under an Act of the Northern Ireland Assembly.

Section 43

SCHEDULE 3 The Office for Environmental Protection: Northern Ireland

Part 1 The OEP’s Northern Ireland functions

5Monitoring and reporting on the Department’s environmental improvement plans

1 (1) The OEP must monitor progress in improving the natural environment in
accordance with the current environmental improvement plan.

(2) The OEP must prepare a progress report for each annual reporting period.

(3) A progress report for an annual reporting period is a report on progress
10made in that period in improving the natural environment in accordance
with the current environmental improvement plan.

(4) An annual reporting period is a period for which the Department must
prepare a report under paragraph 2 of Schedule 2 (a “Schedule 2 report”).

(5) In reporting on progress made in an annual reporting period, the OEP must
15consider—

(a) the Schedule 2 report for that period,

(b) the data published by the Department under paragraph 5 of
Schedule 2 that relates to that period, and

(c) any other reports, documents or information it considers
20appropriate.

(6) A progress report for an annual reporting period may include—

(a) consideration of how progress could be improved, and

(b) consideration of the adequacy of the data published by the
Department under paragraph 5 of Schedule 2.

(7) 25The OEP must—

(a) arrange for its reports under this paragraph to be laid before the
Northern Ireland Assembly, and

(b) publish them.

(8) A progress report for an annual reporting period must be laid no later than
306 months after the Schedule 2 report for that period is laid before the
Northern Ireland Assembly.

(9) The Department must—

(a) respond to a report under this paragraph, and

(b) lay before the Northern Ireland Assembly, and publish, a copy of the
35response.

(10) Where a report under this paragraph contains a recommendation for how
progress could be improved, the response must address that
recommendation.

(11) The response—

(a) 40must be laid no later than 12 months after the report is laid, and

(b) may be included in a Schedule 2 report.

Monitoring and reporting on environmental law

2 (1) The OEP must monitor the implementation of Northern Ireland
environmental law.

(2) The OEP may report on any matter concerned with the implementation of
5Northern Ireland environmental law.

(3) The OEP must—

(a) arrange for its reports under this paragraph to be laid before the
Northern Ireland Assembly, and

(b) publish them.

(4) 10The Department must—

(a) respond to a report under this paragraph, and

(b) lay before the Northern Ireland Assembly, and publish, a copy of the
response.

(5) The response to a report under this paragraph must be laid no later than 3
15months after the report is laid.

Advising on changes to Northern Ireland environmental law etc

3 (1) The OEP must give advice to any Northern Ireland department about—

(a) any proposed change to Northern Ireland environmental law, or

(b) any other matter relating to the natural environment,

20on which that department requires it to give advice.

(2) The Northern Ireland department may specify matters which the OEP is to
take into account in giving the required advice.

(3) The OEP may give advice to any Northern Ireland department about any
changes to Northern Ireland environmental law proposed by that
25department.

(4) Advice under this paragraph is to be given in writing to the Northern
Ireland department concerned.

(5) The OEP must publish—

(a) its advice, and

(b) 30if the advice is given under sub-paragraph (1), a statement of the
matter on which it was required to give advice and any matters
specified under sub-paragraph (2).

(6) The Northern Ireland department concerned may, if it thinks fit, lay before
the Northern Ireland Assembly—

(a) 35the advice, and

(b) any response that department may make to the advice.

Failure of relevant public authorities to comply with environmental law

4 (1) Paragraphs 6 to 15 make provision about functions of the OEP in relation to
failures by relevant public authorities to comply with relevant
40environmental law.

(2) For the purposes of those paragraphs, a reference to a relevant public
authority failing to comply with relevant environmental law means the
following conduct by that authority—

(a) unlawfully failing to take proper account of relevant environmental
5law when exercising its functions;

(b) unlawfully exercising, or failing to exercise, any function it has under
relevant environmental law.

Meaning of relevant environmental law, relevant public authority etc

5 (1) The following definitions apply for the purpose of this Part of this Schedule.

(2) 10“Relevant environmental law” means—

(a) in relation to a Northern Ireland public authority, UK environmental
law or Northern Ireland environmental law;

(b) in relation to any other relevant public authority, Northern Ireland
environmental law.

(3) 15“Relevant public authority” means—

(a) a Northern Ireland public authority, or

(b) a person, other than a Northern Ireland public authority, carrying
out any function of a public nature in or as regards Northern Ireland
that is not a parliamentary function or a function of any of the
20following persons—

(i) the OEP;

(ii) a court or tribunal;

(iii) either House of Parliament;

(iv) the Northern Ireland Assembly.

(4) 25“Northern Ireland public authority” means—

(a) a Northern Ireland Department, or

(b) a person carrying out a Northern Ireland devolved function
(including an implementation body carrying out such a function)
that is not a function in connection with proceedings in the Northern
30Ireland Assembly or a function of any of the following persons—

(i) the OEP;

(ii) a court or tribunal;

(iii) the Northern Ireland Assembly.

(5) “Northern Ireland devolved function” means a function of a public nature
35exercisable in or as regards Northern Ireland that could be conferred by
provision included in an Act of the Northern Ireland Assembly made
without the consent of the Secretary of State (see sections 6 to 8 of the
Northern Ireland Act 1998).

Complaints about relevant public authorities

6 (1) 40A person may make a complaint to the OEP under this paragraph if the
person believes that a relevant public authority has failed to comply with
relevant environmental law.

(2) The OEP must prepare and publish a document which sets out the
procedure by which complaints can be made.

(3) A complaint under this paragraph must be made in accordance with that
procedure (as most recently published).

(4) A complaint under this paragraph may not be made by any person whose
functions include functions of a public nature.

(5) 5A complaint about a relevant public authority may not be made under this
paragraph if—

(a) the authority operates a procedure for considering complaints (“an
internal complaints procedure”) under which the complaint could be
considered, and

(b) 10that procedure has not been exhausted.

(6) A complaint under this paragraph may not be made after the later of—

(a) the end of the 1 year period beginning with the day on which the
alleged failure that is the subject of the complaint last occurred, and

(b) if the substance of the complaint was subject to an internal
15complaints procedure, the end of the 3 month period beginning with
the day on which that procedure was exhausted.

(7) The OEP may waive the time limit in sub-paragraph (6) if it considers that
there are exceptional reasons for doing so.

Investigations: relevant public authorities

7 (1) 20The OEP may carry out an investigation under this paragraph if it receives
a complaint made under paragraph 6 that, in its view, indicates that—

(a) a relevant public authority may have failed to comply with relevant
environmental law, and

(b) if it has, the failure would be a serious failure.

(2) 25The OEP may carry out an investigation under this paragraph without
having received such a complaint if it has information that, in its view,
indicates that—

(a) a relevant public authority may have failed to comply with relevant
environmental law, and

(b) 30if it has, the failure would be a serious failure.

(3) An investigation under this paragraph is an investigation into whether the
relevant public authority has failed to comply with relevant environmental
law.

(4) The OEP must notify the relevant public authority of the commencement of
35the investigation.

(5) The OEP must prepare a report on the investigation and provide it to the
relevant public authority.

(6) The OEP is not required to prepare a report until it has concluded that it
intends to take no further steps under this Part of this Schedule in relation to
40the alleged failure to comply with relevant environmental law that is the
subject of the investigation.

(7) The OEP is not required to prepare a report if it has made a review
application under paragraph 12 in relation to the alleged failure.

(8) The report must set out—

(a) whether the OEP considers that the relevant public authority has
failed to comply with relevant environmental law,

(b) the reasons the OEP came to that conclusion, and

(c) any recommendations the OEP may have (whether generally or for
5the relevant public authority) in light of those conclusions.

(9) The OEP may publish the report or parts of it.

(10) If the public authority is not a Northern Ireland department, the OEP must
also—

(a) notify the relevant department of the commencement of the
10investigation, and

(b) provide the relevant department with the report prepared under
sub-paragraph (5).

(11) In this Part “the relevant department”, in relation to a failure (or alleged
failure) of a relevant public authority to comply with relevant
15environmental law, means the Northern Ireland department that the OEP
considers appropriate having regard to the nature of the authority and the
nature of the failure.

Duty to keep complainants informed

8 (1) Where a person makes a complaint to the OEP alleging that a relevant public
20authority has failed to comply with relevant environmental law, the OEP
must keep the complainant informed about its handling of the complaint.

(2) In particular, the OEP must—

(a) notify the complainant if it does not intend to consider the complaint
because the complaint was not made in accordance with paragraph
256;

(b) notify the complainant if it has concluded that it will not be
commencing an investigation under paragraph 7 in relation to the
complaint;

(c) notify the complainant if it commences an investigation under
30paragraph 7 in relation to the complaint;

(d) if such an investigation was commenced, notify the complainant—

(i) where it provides a report under paragraph 7(5) to the
relevant public authority that is the subject of the
investigation, that it has provided it;

(ii) 35where it makes a review application (see paragraph 12) in
relation to the alleged failure to comply with relevant
environmental law that is the subject of the investigation, that
it has made such an application;

(e) provide the complainant with a copy of any document published
40under paragraph 7(9) in relation to any investigation in relation to
the complaint.

Information notices

9 (1) The OEP may give an information notice to a relevant public authority if—

(a) the OEP has reasonable grounds for suspecting that the authority has
45failed to comply with relevant environmental law, and

(b) it considers that the failure, if it occurred, would be serious.

(2) An information notice is a notice which—

(a) describes an alleged failure of a relevant public authority to comply
with relevant environmental law, and

(b) requests that the authority provide such information relating to the
5allegation as may be specified in the notice by such date as may be
specified in the notice.

(3) The recipient of an information notice must—

(a) respond in writing to the notice, and

(b) so far as is reasonably practicable, provide the OEP with the
10information requested in the notice.

(4) The recipient of an information notice must comply with sub-paragraph (3)
by—

(a) the end of the 2 month period beginning with the day on which the
notice was given, or

(b) 15such later date as may be specified in the notice.

(5) The written response to an information notice must set out—

(a) the recipient’s response to the allegation described in the notice, and

(b) what steps (if any) the recipient intends to take in relation to the
allegation.

(6) 20The OEP may—

(a) withdraw an information notice;

(b) give more than one information notice in respect of the same alleged
failure of a relevant public authority to comply with relevant
environmental law.

25Decision notices

10 (1) The OEP may give a decision notice to a relevant public authority if—

(a) the OEP is satisfied, on the balance of probabilities, that the authority
has failed to comply with relevant environmental law, and

(b) it considers that the failure is serious.

(2) 30A decision notice is a notice that—

(a) describes a failure of a relevant public authority to comply with
relevant environmental law, and

(b) sets out the steps the OEP considers the authority should take in
relation to the failure (which may include steps designed to remedy,
35mitigate or prevent reoccurrence of the failure).

(3) The recipient of a decision notice must respond in writing to that notice by—

(a) the end of the 2 month period beginning with the day on which the
notice was given, or

(b) such later date as may be specified in the notice.

(4) 40The written response to a decision notice must set out—

(a) whether the recipient agrees that the failure described in the notice
occurred,

(b) whether the recipient intends to take the steps set out in the notice,
and

(c) what other steps (if any) the recipient intends to take in relation to the
failure described in the notice.

(5) The OEP—

(a) may not give a decision notice to a relevant public authority unless it
5has first given at least one information notice relating to the failure of
the authority to comply with relevant environmental law that is
described in the decision notice;

(b) may withdraw a decision notice.

Linked notices

11 (1) 10If the OEP gives an information notice or a decision notice to more than one
relevant public authority in respect of the same or similar conduct, it may
determine that those notices are linked notices in relation to each other.

(2) A Northern Ireland department may request that the OEP determine that
information notices or decision notices are linked notices and the OEP must
15have regard to that request.

(3) If the OEP considers that an information notice or decision notice relates to
conduct that is the same or similar to conduct that is the subject of a UK
information notice or UK decision notice, it may determine that those notices
are linked notices in relation to each other.

(4) 20The OEP must provide the recipient of an information notice or a decision
notice with—

(a) a copy of any linked notice in relation to the notice the recipient
received,

(b) a copy of any relevant correspondence between the OEP and the
25recipient of the linked notice, and

(c) a copy of any relevant correspondence between the OEP and the
relevant department if—

(i) the linked notice to which the correspondence relates is
neither a UK information notice nor a UK decision notice,
30and

(ii) neither the recipient of the notice nor the recipient of the
linked notice is a Northern Ireland department.

(5) Correspondence is relevant if—

(a) it relates to the linked notice,

(b) 35it is not correspondence in connection with a review application or
any other legal proceedings, and

(c) it is not correspondence sent by virtue of paragraph 14(1)(a) or (b).

(6) The obligation to provide a copy of any notice or correspondence under sub-
paragraph (4) does not apply where the OEP considers that in the
40circumstances it would not be in the public interest to do so.

(7) In this Part of this Schedule—

• “UK decision notice” means a notice given under section 31;

• “UK information notice” means a notice given under section 30.

Enforcement

12 (1) The OEP may make a review application in relation to conduct described in
a decision notice given to a relevant public authority as a failure of the
authority to comply with relevant environmental law.

(2) 5The OEP may make a review application in relation to conduct of a relevant
public authority occurring after a decision notice was given to the authority
that is similar, or is related, to conduct that was described in the notice as a
failure of the authority to comply with relevant environmental law.

(3) The OEP may make a review application in relation to conduct of a relevant
10public authority not within sub-paragraph (1) or (2), but only if the OEP
considers that—

(a) the conduct constitutes a serious failure to comply with
environmental law, and

(b) although the OEP has not given a decision notice to the authority in
15relation to the conduct (or similar or related conduct), it is necessary
to make a review application to prevent, or mitigate, serious damage
to the natural environment or to human health.

(4) In this Part of this Schedule, a “review application” means an application to
the High Court for judicial review.

(5) 20Nothing in this paragraph overrides any requirement for permission of the
court to be obtained before making a review application.

(6) The OEP may make a review application under sub-paragraph (1) at any
time (and accordingly any time limit, that would otherwise apply to the
making of a review application under that sub-paragraph, does not apply).

(7) 25The High Court may grant a remedy on a review application under sub-
paragraph (1) only if satisfied that granting the remedy would not—

(a) be likely to cause substantial hardship to, or substantially prejudice
the rights of, any person other than the relevant public authority that
is the subject of the review application, or

(b) 30be detrimental to good administration.

(8) If, on a review application, the High Court makes a finding that a relevant
public authority has failed to comply with relevant environmental law, and
provided that the finding has not been overturned on appeal, the authority
must publish a statement that sets out the steps it intends to take in light of
35the finding.

(9) A statement under sub-paragraph (8) must be published before the end of
the 2 month period beginning with the day the proceedings relating to the
review application (including any appeal) conclude.

Intervention in judicial review

13 40Where proceedings (including any appeal) in respect of an application for
judicial review relate to an alleged failure by a relevant public authority to
comply with relevant environmental law (however the allegation is framed
in those proceedings), the OEP may apply to intervene in those proceedings.

Duty of the OEP to involve the relevant department

14 (1) Where the recipient of an information notice or a decision notice is not a
Northern Ireland department, the OEP must—

(a) provide the relevant department with—

(i) 5a copy of the notice and,

(ii) a copy of any correspondence between the OEP and the
recipient of the notice that relates to the notice (apart from
correspondence sent by virtue of paragraph (b)), and

(b) provide the recipient of the notice with a copy of any correspondence
10between the OEP and the relevant department that relates to the
notice (apart from correspondence sent by virtue of paragraph (a)).

(2) The obligation to provide a copy of any notice or correspondence under sub-
paragraph (1) does not apply where the OEP considers that in the
circumstances it would not be in the public interest to do so.

(3) 15Where the OEP makes a review application in which the relevant
department is not a party, it must provide the relevant department with—

(a) a copy of the application, and

(b) a statement of whether the OEP considers the relevant department
should participate in the review (for example, by applying to be a
20party).

Public statements

15 (1) Where the OEP gives an information notice or a decision notice, makes a
review application or applies to intervene in a judicial review, it must
publish a statement that—

(a) 25states that the OEP has taken that step,

(b) describes the failure (or alleged failure) of a relevant public authority
to comply with relevant environmental law in relation to which that
step was taken, and

(c) sets out such further information as the OEP considers appropriate.

(2) 30Sub-paragraph (1) does not apply if the OEP considers that in the
circumstances it would not be in the public interest to publish a statement.

Disclosures to the OEP

16 (1) No obligation of secrecy imposed by statute or otherwise prevents a person
from—

(a) 35in accordance with section 22(1), providing the OEP with
information in connection with an investigation under paragraph 7,
an information notice or a decision notice, or

(b) providing information to the OEP in accordance with paragraph
9(3)(b).

(2) 40But nothing in this Part of this Schedule—

(a) requires a person to provide the OEP with information that the
person would be entitled to refuse to provide in civil proceedings on
grounds of legal professional privilege (or, in Scotland,
confidentiality of communications), or