Environment Bill (HC Bill 3)

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

(b) may withdraw a decision notice.

32 10Linked notices

(1) If the OEP gives an information notice or a decision notice to more than one
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 Minister of the Crown may request that the OEP determine that information
15notices or decision notices are linked notices and the OEP must have regard to
that request.

(3) The 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
20received,

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

(c) where neither the recipient of the notice nor the recipient of the linked
notice is a Minister of the Crown, a copy of any relevant
25correspondence between the OEP and the relevant Minister.

(4) Correspondence is relevant if—

(a) it relates to the linked notice,

(b) it is not correspondence in connection with an environmental review or
any other legal proceedings (such as judicial review), and

(c) 30it is not correspondence sent by virtue of section 35(1)(a) or (b).

(5) The obligation to provide a copy of any notice or correspondence under
subsection (3) does not apply where the OEP considers that in the
circumstances it would not be in the public interest to do so.

33 Environmental review

(1) 35Where the OEP has given a decision notice to a public authority it may apply
to the Upper Tribunal for an environmental review.

(2) An environmental review is a review of—

(a) alleged conduct of the authority that is described in the decision notice
as constituting a failure to comply with environmental law, or

(b) 40alleged conduct of the authority occurring after the notice was given
that is similar, or is related, to the conduct described in the notice.

(3) An application for an environmental review may not be made—

(a) before the end of the period within which the authority must respond
to the decision notice in accordance with section 31(3), unless the
authority has already responded to it in accordance with that section, or

(b) before the expiry of any time limit which applies to the commencement
5of judicial review or other similar legal proceedings for questioning the
alleged conduct.

(4) Any restriction imposed by or under any other enactment on questioning the
conduct of a public authority in legal proceedings does not apply to an
environmental review.

(5) 10On an environmental review the Upper Tribunal must determine whether the
authority has failed to comply with environmental law, applying the principles
applicable on an application for judicial review.

(6) If the Upper Tribunal finds that the authority has failed to comply with
environmental law, it must make a statement to that effect (a “statement of
15non-compliance”).

(7) A statement of non-compliance does not affect the validity of the conduct in
respect of which it is given.

(8) Where the Upper Tribunal makes a statement of non-compliance it may grant
any remedy that could be granted by the court on a judicial review other than
20damages, but 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 authority, or

(b) be detrimental to good administration.

(9) In deciding whether to grant a remedy the Upper Tribunal must (subject to
25subsection (8)) apply the principles applicable on an application for judicial
review, and such a remedy has effect, and is enforceable, as if granted by the
court.

(10) If, on an environmental review, the Upper Tribunal has made a statement of
non-compliance in respect of a public authority, and provided that the
30statement has not been overturned on appeal, the authority must publish a
statement that sets out the steps it intends to take in light of the review.

(11) A statement under subsection (10) must be published before the end of the 2
month period beginning with the day the review (including any appeal)
concludes.

(12) 35In this section—

• “the court” means—

  (a)

  in relation to an environmental review arising under the law of
  England and Wales or Northern Ireland, the High Court, or

  (b)

  in relation to an environmental review arising under the law of
  40Scotland, the Court of Session;

• “enactment” includes an enactment comprised in, or in an instrument
  made under, an Act of the Scottish Parliament;

• “the principles applicable on an application for judicial review” means, in
  relation to an environmental review, the principles that would apply on
  45an application for judicial review in the jurisdiction under which the
  environmental review arises;

• “remedy” includes any relief or order.

34 Judicial review: powers to apply to prevent serious damage and to intervene

(1) The OEP may apply for judicial review, or a statutory review, in relation to
conduct of a public authority (whether or not it has given an information notice
or a decision notice to the authority in respect of that conduct) if the OEP
5considers that the conduct constitutes a serious failure to comply with
environmental law.

(2) But an application may be made by virtue of subsection (1) only if the OEP
considers that it is necessary to make such an application (rather than
proceeding under sections 30 to 33) to prevent, or mitigate, serious damage to
10the natural environment or to human health.

(3) Section 31(2A), (3C) and (3D) of the Senior Courts Act 1981 (High Court to
refuse to grant leave or relief where the outcome for the applicant not
substantially different) does not apply to an application for judicial review
made under subsection (1) in England and Wales.

(4) 15If, on an application for judicial review or a statutory review brought by the
OEP, there is a finding that a public authority has failed to comply with
environmental law, and provided 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 the finding.

(5) 20A statement under sub-paragraph (4) must be published before the end of the
2 month period beginning with the day the proceedings relating to the
application for judicial review or the statutory review (including any appeal)
conclude.

(6) Where proceedings (including any appeal) in respect of an application for
25judicial review, or in respect of a statutory review, relate to an alleged failure
by a public authority to comply with environmental law (however the
allegation is framed in those proceedings), the OEP may apply to intervene in
those proceedings.

(7) In this section—

(a) 30reference to an application for judicial review includes an application
for the permission of the High Court or, as the case may be, the Court
of Session to apply for judicial review;

(b) “statutory review” means a claim for statutory review under—

(i) section 287 or 288 of the Town and Country Planning Act 1990,

(ii) 35section 63 of the Planning (Listed Buildings and Conservation
Areas) Act 1990,

(iii) section 22 of the Planning (Hazardous Substances) Act 1990, or

(iv) section 113 of the Planning and Compulsory Purchase Act 2004.

35 Duty of the OEP to involve the relevant Minister

(1) 40Where the recipient of an information notice or a decision notice is not a
Minister of the Crown, the OEP must—

(a) provide the relevant Minister with—

(i) a copy of the notice and,

(ii) a copy of any correspondence between the OEP and the
45recipient 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
between the OEP and the relevant Minister 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
5subsection (1) does not apply where the OEP considers that in the
circumstances it would not be in the public interest to do so.

(3) Where the OEP makes an application for an environmental review, judicial
review or statutory review in which the relevant Minister is not a party, it must
provide the relevant Minister with—

(a) 10a copy of the application, and

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

36 Public statements

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

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

(b) describes the failure (or alleged failure) of a public authority to comply
20with environmental law in relation to which that step was taken, and

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

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

Information

37 25Disclosures to the OEP

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

(a) in accordance with section 22(1), providing the OEP with information
in connection with an investigation under section 28, an information
30notice or a decision notice, or

(b) providing information to the OEP in accordance with section 30(3)(b).

(2) But nothing in this Part—

(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
35of legal professional privilege (or, in Scotland, confidentiality of
communications), or

(b) requires a person to provide the OEP with information that the person
would be entitled, or required by any rule of law, to refuse to provide
in civil proceedings on grounds of public interest immunity.

(3) 40No obligation of secrecy imposed by statute or otherwise prevents a relevant
ombudsman from providing information to the OEP for purposes connected
with the exercise of the OEP’s functions under section 28.

(4) Nothing in this Part requires or authorises a disclosure of information which,
although made in accordance with a duty or a power provided for in this Part,
would contravene the data protection legislation.

(5) In this section “the data protection legislation” has the same meaning as in the
5Data Protection Act 2018 (see section 3(9) of that Act).

38 Confidentiality of proceedings

(1) The OEP must not disclose—

(a) information obtained under section 22(1) or 30(3)(b), or

(b) correspondence between the OEP and a public authority that—

(i) 10relates to a particular information notice or decision notice, or

(ii) is, or contains, such a notice.

(2) Subsection (1) does not apply to a disclosure—

(a) other than a disclosure of an information notice or a decision notice,
made with the consent of the person who provided the information or
15correspondence;

(b) made for purposes connected with an investigation under section 28;

(c) made for purposes connected with the co-ordination of an
investigation under section 28 and an investigation by a relevant
ombudsman;

(d) 20made for the purposes of any publication of a report (or part of it) on an
investigation under section 28;

(e) made for purposes connected with the exercise of the OEP’s functions
under sections 30 to 36 (enforcement);

(f) made to a devolved environmental governance body for purposes
25connected with the exercise of a devolved environmental governance
function;

(g) made for purposes connected with the protection of the natural
environment in a country or territory outside the United Kingdom, to
an authority of that country or territory, or an international
30organisation, that has functions in connection with the protection of the
natural environment in that country or territory;

(h) of information, or correspondence, that relates only to a matter in
relation to which the OEP has concluded that it intends to take no
further steps under this Chapter.

(3) 35A public authority must not disclose correspondence between the OEP and
that, or any other, public authority that—

(a) relates to a particular information notice or decision notice, or

(b) is, or contains, such a notice.

(4) Subsection (3) does not apply to a disclosure—

(a) 40made—

(i) in the case of a disclosure of correspondence between another
public authority and the OEP other than correspondence that is,
or contains, an information notice or a decision notice, with the
consent of that authority and the OEP, or

(ii) 45in any other case, with the specific or general consent of the
OEP;

(b) made for purposes connected with co-operating with any investigation
under section 28;

(c) made for purposes connected with responding to any information
notice or decision notice;

(d) 5made for purposes connected with any proceedings in relation to an
environmental review, judicial review or statutory review.

(5) The OEP may not give a person consent to disclose an information notice or a
decision notice unless that notice relates only to a matter in relation to which
the OEP has concluded that it intends to take no further steps under this
10Chapter.

(6) If a public authority requests the consent of the OEP to disclose
correspondence that relates only to a matter in relation to which the OEP has
concluded that it intends to take no further steps under this Chapter, the OEP
may not withhold that consent.

(7) 15If information referred to in subsection (1) and held by the OEP, or referred to
in subsection (3) and held by a public authority, is environmental information
for the purposes of the Environmental Information Regulations 2004 (S.I. 2004/
3391) or the Environmental Information (Scotland) Regulations 2004 (S.S.I.
2004/520), it is held by that person, for the purposes of the application of those
20regulations to that information, in connection with confidential proceedings.

CHAPTER 3 Interpretation of Part 1

39 Meaning of “natural environment”

In this Part the “natural environment” means—

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

(b) 25their habitats,

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

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

40 Meaning of “environmental law”

(1) In this Part “environmental law” means any legislative provision, other than
30devolved legislative provision, to the extent that the provision—

(a) is mainly concerned with an environmental matter, and

(b) is not concerned with an excluded matter.

(2) Environmental matters are—

(a) protecting the natural environment from the effects of human activity;

(b) 35protecting people from the effects of human activity on the natural
environment;

(c) maintaining, restoring or enhancing the natural environment;

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

(3) 40Excluded matters are—

(a) disclosure of or access to information;

(b) the armed forces or national security;

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

(4) “Devolved legislative provision” means—

(a) legislative provision contained in, or in an instrument made under, an
Act of the Scottish Parliament, an Act or Measure of the National
5Assembly for Wales, or Northern Ireland legislation, and

(b) legislative provision not within paragraph (a) which—

(i) if contained in an Act of the Scottish Parliament, would be
within the legislative competence of the Parliament;

(ii) if contained in an Act of the National Assembly for Wales,
10would be within the legislative competence of the Assembly, or

(iii) if contained in an Act of the Northern Ireland Assembly, would
be within the legislative competence of the Assembly and
would not require the Secretary of State’s consent.

(5) The Secretary of State may by regulations specify legislative provisions, other
15than devolved legislative provisions, which are, or are not, environmental law
(either by describing them or by identifying them).

(6) Before making regulations under subsection (5) the Secretary of State must
consult—

(a) the OEP, and

(b) 20any other persons the Secretary of State considers appropriate.

(7) Regulations under subsection (5) are subject to the affirmative procedure.

41 Interpretation of Part

1

: general

In this Part—

• 25“current environmental improvement plan” has the meaning given by
  section 7(8);

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

• “devolved environmental governance body” means a person on whom a
  devolved environmental governance function has been conferred;

• 30“devolved environmental governance function” means a devolved
  function that is similar to a function conferred on the OEP under this
  Part;

• “devolved function” means—

  (a)

  a function exercisable in or as regards Wales that could be
  35conferred by provision falling within the legislative competence
  of the National Assembly for Wales (see section 108A of the
  Government of Wales Act 2006);

  (b)

  a function exercisable in or as regards Scotland, the exercise of
  which would be within devolved competence (within the
  40meaning of section 54 of the Scotland Act 1998);

  (c)

  a function exercisable 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
  451998);

• “devolved legislature” means the Scottish Parliament, the National
  Assembly for Wales or the Northern Ireland Assembly;

Environment BillPage 27

• “environmental improvement plan” has the meaning given by section 7
  (and see also section 9(10));

• “environmental review” has the meaning given by section 33;

• “environmental principles” has the meaning given by section 16;

• 5“first environmental improvement plan” has the meaning given by
  section 7(8);

• “improving the natural environment”, in relation to an environmental
  improvement plan, is to be read in accordance with section 7(5);

• “information notice” means a notice given under section 30;

• 10“judicial review” means—

  (a)

  in England and Wales or Northern Ireland, an application to the
  High Court for judicial review, or

  (b)

  in Scotland, an application to the supervisory jurisdiction of the
  Court of Session;

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

• “met”, in relation to a target set under section 1 or 2, has the meaning
  given by section 3(7);

• “Minister of the Crown” has the same meaning as in the Ministers of the
  Crown Act 1975;

• 20“OEP” has the meaning given by section 19;

• “parliamentary function” means a function in connection with
  proceedings in Parliament or a devolved legislature;

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

• “policy statement on environmental principles” has the meaning given by
  section 16;

• “public authority” has the meaning given by section 26(3);

• 30“relevant Minister” has the meaning given by section 28;

• “relevant ombudsman” has the meaning given by section 20;

• “specified date” and “specified standard”, in relation to a target set under
  section 1 or 2, have the meaning given by section 1(8);

• “statutory review” has the meaning given by section 34(7).

35Part 2 Environmental governance: Northern Ireland

42 Improving the natural environment: Northern Ireland

Schedule 2 makes provision about—

(a) environmental improvement plans, and

(b) 40policy statements on environmental principles,

in Northern Ireland.

43 The Office for Environmental Protection: Northern Ireland

Schedule 3—

(a) makes provision about the functions of the OEP in, or as regards,
45Northern Ireland, and

(b) amends this Act to reflect those functions.

Part 3 Waste and resource efficiency

Producer responsibility

44 5Producer responsibility obligations

Schedule 4 amends provisions in the Environment Act 1995 about producer
responsibility obligations.

45 Producer responsibility obligations: Northern Ireland

Schedule 5 amends the Producer Responsibility Obligations (Northern
10Ireland) Order 1998 (S.I. 1998/1762 (N.I. 16)).

46 Producer responsibility for disposal costs

(1) Schedule 6 confers power on the relevant national authority to make regulations
requiring the payment of sums in respect of the costs of disposing of products and
materials.

(2) 15In this section and that Schedule “relevant national authority” means—

(a) in relation to England, the Secretary of State;

(b) in relation to Wales, the Welsh Ministers or the Secretary of State;

(c) in relation to Scotland, the Scottish Ministers or the Secretary of State;

(d) in relation to Northern Ireland, the Department of Agriculture,
20Environment and Rural Affairs in Northern Ireland or the Secretary of
State.

(3) Regulations under Schedule 6 made by the Secretary of State may not contain
provision that could be contained in regulations under that Schedule made by
another relevant national authority, unless that authority consents.

(4) 25Regulations under Schedule 6 are subject to the affirmative procedure.

Resource efficiency

47 Resource efficiency information

(1) In Schedule 7—

(a) Part 1 confers power on the relevant national authority to make
30regulations about the provision of resource efficiency information;

(b) Part 2 confers power on the relevant national authority to make
regulations about the enforcement of regulations made under Part 1.

(2) In this section and that Schedule “relevant national authority” means—

(a) in relation to England, the Secretary of State;

(b) 35in relation to Wales, the Welsh Ministers or the Secretary of State;

(c) in relation to Scotland, the Scottish Ministers or the Secretary of State;

(d) in relation to Northern Ireland, the Department of Agriculture,
Environment and Rural Affairs in Northern Ireland or the Secretary of
State.

(3) Regulations under Schedule 7—

(a) 5made by the Welsh Ministers, may contain only provision which, if
contained in an Act of the National Assembly for Wales, would be
within the legislative competence of the Assembly;

(b) made by the Scottish Ministers, may contain only provision which, if
contained in an Act of the Scottish Parliament, would be within the
10legislative competence of the Parliament;

(c) made by the Department of Agriculture, Environment and Rural
Affairs in Northern Ireland, may contain only provision which, if
contained in an Act of the Northern Ireland Assembly, would be within
the legislative competence of the Assembly and would not require the
15Secretary of State’s consent.

(4) Regulations under Schedule 7 made by the Secretary of State may not contain
provision that could be contained in regulations under that Schedule made by
another relevant national authority, unless that authority consents.

(5) Regulations under Schedule 7 are subject to the affirmative procedure.

48 20Resource efficiency requirements

(1) In Schedule 8—

(a) Part 1 confers power on the relevant national authority to make
regulations about resource efficiency requirements;

(b) Part 2 confers power on the relevant national authority to make
25regulations about the enforcement of regulations made under Part 1.

(2) In this section and that Schedule “relevant national authority” means—

(a) in relation to England, the Secretary of State;

(b) in relation to Wales, the Welsh Ministers or the Secretary of State;

(c) in relation to Scotland, the Scottish Ministers or the Secretary of State;

(d) 30in relation to Northern Ireland, the Department of Agriculture,
Environment and Rural Affairs in Northern Ireland or the Secretary of
State.

(3) Regulations under Schedule 8—

(a) made by the Welsh Ministers, may contain only provision which, if
35contained in an Act of the National Assembly for Wales, would be
within the legislative competence of the Assembly;

(b) made by the Scottish Ministers, may contain only provision which, if
contained in an Act of the Scottish Parliament, would be within the
legislative competence of the Parliament;

(c) 40made by the Department of Agriculture, Environment and Rural
Affairs in Northern Ireland, may contain only provision which, if
contained in an Act of the Northern Ireland Assembly, would be within
the legislative competence of the Assembly and would not require the
Secretary of State’s consent.

(4) 45Regulations under Schedule 8 made by the Secretary of State may not contain
provision that could be contained in regulations under that Schedule made by
another relevant national authority, unless that authority consents.