Environment Bill

New section 96A Duty of local highway authorities in England to consult before felling street trees

880 Subsection (1) requires local highway authorities to consult the public before felling any street trees. Defra has used the definition of highway authority as set out in the Highways Act 1980 Section 1. This includes the council of a county or metropolitan district, Transport for London as the highway authority for major roads in London, and the council of a London borough for other London roads. Roads managed by other highway authorities that are not local highway authorities – such as trunk roads managed by the Secretary of State through Highways England – are out of scope. Only trees on land legally adopted as a highway, and therefore in scope of local highway authorities powers/duties, are in scope.

881 Local highway authorities must consult on all street trees they are considering felling, unless the tree is exempt. If appropriate, several street trees can be consulted on at once.

882 Subsection (2) lays out the requirement for local highway authorities to consider any guidance released by the Secretary of State. Government intends to publish guidance to cover how this duty should be applied and the process that should be used.

883 Subsection (3) sets out trees that are exempt from the consultation required in this duty. This means that any tree meeting the criteria as laid out in this subsection would not require a consultation before being felled. Further explanation of some of the exemptions have been provided below:

● The tree size exemption used in paragraph (a) is consistent with the standard tree size definitions used by the British Tree Nursery sector.

● The tree is required to be felled under the Plant Health Act 1967. Under this Act, statutory plant health notices can be issued that require the owner or manager to eradicate or contain notifiable pests and diseases. This can include felling a tree and failure to comply can result in enforcement action and prosecution.

● The tree is required to be felled under any enactment on the basis that the tree is dangerous. This covers trees that need to be felled urgently because they present an immediate danger to life or property.

● The tree is required to be felled in order to comply with section 20 or 29 of the Equality Act 2010 because the tree is causing an obstruction. This means that a tree can be felled where it is blocking, or otherwise making the pavement a danger for disabled people to use. This would result in the footway being unusable for people with a disability.

● The tree is required to be felled as part of development authorised either by a granted planning permission or by an outlining planning permission as defined by the Town and Country Planning Act 1990. Specific sections of this are specified in the clauses.

884 "Street trees" are those situated on urban roads as defined under subsection (4).

● Subsection (1)(a) references section 81 of the Road Traffic Regulation Act 1984, which specifies a general speed limit for restricted roads. It states that a restricted road is one where a speed limit of 30 miles per hour is in place.

● Subsection (1)(b) references roads that would otherwise have a 30 miles per hour speed limit but have their speed limit increased to 40 miles per hour. These roads will also be in scope of the duty to consult.

● Subsection (1)(c) brings into scope urban streets excluded by the above definitions, for example because the road, although urban, has a higher speed limit.

Part 7: Conservation Covenants

Clause 98: Conservation covenants

885 Subsection (1) states that a conservation covenant is so much of an agreement to which clause 98 applies as is given statutory effect by clause 100.

886 Subsection (2) describes the conditions that an agreement must meet for this clause to apply. It must be an agreement between a landowner and a "responsible body" (as set out in clause 99), be in writing signed by the parties, and meet specified conditions. Those conditions are that the agreement contains provision which is of "a qualifying kind", has a "conservation purpose", and is intended by the parties to be for the public good. The meaning of "qualifying kind" is covered in subsection (3). Subsection (4) defines "conservation purpose" and the meaning of "conserving" is dealt with in subsection (5).

887 Subsection (2) also states that for the agreement to be a conservation covenant it must be apparent from the agreement that the parties intend to create a conservation covenant. No particular wording is specified for that purpose. The intention of that requirement is to ensure that agreements do not take effect as conservation covenants contrary to the wishes of the parties.

888 Subsection (3) states that a provision of "a qualifying kind" is of one of two kinds. First, it may require the landowner to do, or not to do, something on specified land in England, or require the landowner to allow the responsible body to do something on such land. Second, it may require the responsible body to do something on such land.

889 Subsection (3) also provides that the landowner must hold a "qualifying estate" in the land to which the provision in question relates and this must be specified in the agreement. A "qualifying estate" is a freehold, or a leasehold estate of more than seven years (as set out in subsection (5)). Subsection (5)(b) provides that a conservation covenant can only be created by a lessee during the fixed term of the lease, and not during any subsequent period of statutory continuation of the lease (for example, under section 24(1) of the Landlord and Tenant Act 1954).

890 Subsection (4) sets out what qualifies as a conservation purpose. It extends to the natural environment of the land, such as plants and animals and their habitats; the land’s natural resources, such as water on the land; the land as a place of archaeological, architectural, artistic, cultural or historic interest; and the setting of the land. The reference to setting provides for the protection of land around a conservation site, which may affect its conservation status. For example, the architectural or artistic value of a country house could derive in part from the landscape in which it is set.

891 Provision of an agreement to which clause 98 applies is given statutory effect if it meets the conditions in subsection (2)(a), or is ancillary to provision meeting those conditions. Obligations of the landowner or responsible body given statutory effect in that way become obligations under a conservation covenant (clause 100(4)(a)).

Clause 99: Responsible bodies

892 As above, a conservation covenant is an agreement between a landowner and a responsible body. The responsible body is able to enforce compliance with the landowner’s obligations under the conservation covenant. It may or may not also be made subject to obligations under the conservation covenant.

893 Clause 99 defines "responsible bodies" as, on the one hand, the Secretary of State and, on the other hand, bodies which are designated by the Secretary of State. Bodies will need to apply to be designated. An application from a local authority in England will need to satisfy the Secretary of State that it is suitable to be a responsible body, and other bodies will, additionally, have to satisfy the Secretary of State that at least some of its main purposes, functions or activities relate to conservation (subsections (3) and (4)).

894 Subsection (6) allows the Secretary of State to revoke a designation by notice in certain circumstances, including if the relevant body no longer meets the conditions for designation.

895 The Secretary of State must publish and keep up to date a document setting out the criteria which will be applied to determine if an applicant body is suitable to be or to remain a responsible body, which may stipulate that applicants should have a connection with the United Kingdom. The Secretary of State must also publish and keep up to date a list of designated responsible bodies.

896 Subsection (9) defines "charity", "conservation" and "local authority" for the purposes of clause 99.

Clause 100: Statutory effect

897 This clause gives statutory effect as a conservation covenant to any provision contained in an agreement to which clause 98 applies, which is of a qualifying kind, has a conservation purpose, and is intended by the parties to be for the public good – the qualifying conditions set out in clause 98(2)(a).

898 This clause also gives statutory effect to a provision in an agreement to which clause 98 applies that are ancillary to a provision that meets the qualifying conditions. An "ancillary provision" is a provision that does not itself meet the qualifying conditions, but is related to the performance of a provision that does – for example, provision for payment for work done on the land, or provision relating to the way in which work is to be performed. Ancillary provisions may not themselves have a conservation purpose or be, taken in isolation, intended to be for the public good; they are nevertheless closely linked with provision of the agreement that does meet the qualifying conditions, and so are given statutory effect along with them. Both provisions that meet the qualifying conditions, and terms that are ancillary to such provisions, are given statutory effect by clause 100 and are referred to in the rest of Part 7 as obligations under a conservation covenant (clause 100(4)(a)).

899 This clause also provides that provision for public access to land that is the subject of a conservation covenant is to be treated as ancillary to provision given statutory effect by the clause. Provision for public access to land may not itself meet the qualifying conditions because it may not itself have a conservation purpose. By treating such provision as ancillary provision, subsection (2) makes sure that the public access provision is given statutory effect.

Clause 101: Local land charge

900 Subsection (1) provides that a conservation covenant is a local land charge.

901 As a result, section 5(2) of the Local Land Charges Act 1975 applies. This imposes a duty upon the responsible body to apply for registration of the conservation covenant as a local land charge.

902 Subsection (3) amends the application of section 2 of the Local Land Charges Act 1975 so as to ensure that a conservation covenant between a lessor and a lessee is not excluded from being a local land charge.

903 Subsection (4) modifies section 10(1) of the Local Land Charges Act 1975 in its application to conservation covenants. The modifications reflect the fact that a conservation covenant is effective against subsequent owners of the land only once it has been registered as a local land charge (see clause 103(5)(b)). This differs from the general position where the enforceability of a local land charge is unaffected by whether or not it is registered. Accordingly, the registering authority cannot incur liability for non-registration. However, liability for a defective search result remains in the usual way.

Clause 102: Duration of obligation under conservation covenant

904 This clause provides that each obligation in a conservation covenant has a specified duration, either as a result of this clause or as a result of an explicit provision in the agreement.

905 Unless the conservation covenant provides for a shorter period, an obligation under a conservation covenant has effect for the "default period" which is:

● a period of indefinite duration where the relevant qualifying estate is a freehold estate; or

● the remainder of the term where the relevant qualifying estate is a leasehold estate.

906 Accordingly, a conservation covenant created by a freeholder will be of indefinite duration unless it provides for a shorter duration. The duration of a conservation covenant created by a leaseholder cannot exceed the remainder of the term of the lease but, again, the conservation covenant may specify a shorter term.

Clause 103: Benefit and burden of obligation of landowner

907 This clause sets out who is responsible for complying with an obligation under a conservation covenant entered into by a landowner and, therefore, the person against whom any enforcement action can be taken in the event of breach. It also spells out who may take such action.

908 Subsection (1) provides that an obligation under a conservation covenant is owed by a landowner to the responsible body under the conservation covenant.

909 Subsection (2) has the effect that a conservation covenant will bind the landowner who created it (referred to in these notes as "the original covenantor"), and burden the estate in land which enabled the landowner to create it ("the qualifying estate"). A conservation covenant will bind any successors of the original covenantor – that is, anyone who acquires the original covenantor’s estate in the land (or part of that land) or who holds an estate derived from that estate (for example, a lease of the whole or part of the land) – unless one of the exceptions in subsection (5) applies.

910 A conservation covenant will not bind anyone whose interest in the land predates the conservation covenant. If a freeholder grants a lease, and then enters into a conservation covenant relating to the land which is the subject of the lease, and the lessee is not a party to the conservation covenant, the lessee will not be bound by any obligation of the landowner under the conservation covenant. On the other hand, where a freeholder enters into a conservation covenant of indefinite duration and then grants a lease of the land then, unless one of the exceptions in subsection (5) applies, the leaseholder will be bound by the conservation covenant throughout the term of the lease.

911 Subsection (4) provides that a landowner’s liability in respect of an obligation under a conservation covenant comes to an end on parting with the whole of the estate by virtue of which he or she is bound by the obligation, or if the land is no longer bound by the conservation covenant. If the landowner ceases to own only part of the land, he or she will continue to be bound by the obligation but only in relation to the retained land. If an obligation is partially discharged, the application of subsection (2)(b) is correspondingly reduced because the land to which the obligation relates diminishes. In the case of modification, the obligation continues, but needs to be read as modified as respects the land to which the modification relates.

912 Subsection (5) provides for three situations in which a successor will not be bound by the conservation covenant:

913 Subsection (5)(a) provides that a lessee under a lease granted for seven years or less is not bound by positive obligations under a conservation covenant. Accordingly, where a freeholder creates a conservation covenant which is registered as a local land charge (as set out in subsection (5)(b)), and then grants a periodic tenancy, the lessee will be bound by negative obligations in the conservation covenant but not by positive ones. The same result follows where a lessee under a lease for more than seven years, granted after the creation of a conservation covenant, holds over on a periodic tenancy after expiry of the lease. Corresponding results follow where a conservation covenant is created by a lessee of a term of seven years or more (see clause 98(5) and the definition of "qualifying estate") who then sub-lets the land.

914 Subsection (5)(b) provides that a successor will only be bound by a conservation covenant if it was registered as a local land charge at the time they acquired the land. An estate in land is "acquired" for these purpose at the time of the disposition (for example, a sale, a gift, a grant of a lease) even if that disposition is required to be completed by registration at the Land Registry (subsection (6)).

915 Subsection (5)(c) provides that a successor will not be bound by a conservation covenant if their immediate predecessor was not bound. This could arise in the context of the discharge of a conservation covenant in respect of part of the land to which it related or where a conservation covenant is registered late. For example, a landowner, A, and a responsible body enter into an agreement for a conservation covenant. Before the responsible body registers the conservation covenant as a local land charge, A transfers part of the land to B, who later transfers it to C. Even if the conservation covenant is subsequently registered as a local land charge, C will not be bound by it because B was not bound by it at the time B transferred it to C. "Immediate predecessor" is defined by subsections (8) and (9).

Clause 104: Benefit of obligation of responsible body

916 This clause sets out who has the benefit of an obligation on the part of the responsible body under a conservation covenant and who can, therefore, enforce it.

917 It provides that such an obligation is owed to the landowner with whom the responsible body entered into the conservation covenant (referred to in these notes as "the original covenantor") and anyone who later holds either the relevant qualifying estate or an estate in land derived from this. For example, a transferee of the land, or a lessee, can enforce the responsible body’s obligations. However, the original covenantor or a successor can only do so while he or she holds the relevant estate (subsections (3)(b) and (3)(c)).

918 Subsection (4) ensures that if a successor to the original covenantor is not bound by certain obligations – in particular, by positive obligations because he or she holds a lease for less than seven years – then that successor will not take the benefit of any of the responsible body’s obligations that are ancillary to those obligations.

Clause 105: Breach of obligation

919 Subsections (1) and (2) set out what amounts to a breach of negative and positive obligations, respectively. Where a landowner undertakes a negative obligation, they must not breach or allow others to breach it. Where they take on a positive obligation there is a responsibility to ensure that it is performed. These will be relevant considerations where the landowner grants a lease of the land after the creation of the covenant.

Clause 106: Enforcement of obligation

920 Clause 106 sets out the remedies that are available in proceedings for the enforcement of an obligation under a conservation covenant. It also provides that when considering, in the context of an application for equitable relief, what remedy is appropriate, the court must take into account any public interest in the performance of the obligation concerned.

921 Contract principles apply to awards of damages (subsection (3)), and in particular the rules that determine remoteness of damage. Contractual damages compensate the claimant for loss; and, in most cases, the direct loss to the responsible body as a result of breach of an obligation in a conservation covenant may be insignificant. For that reason, it is expected that in most cases the remedy sought will be an injunction, or an order for specific performance of the obligation. In considering claims for an injunction, the court has discretion to award damages instead, and in that context it is expected that a consideration of the public interest will be particularly significant.

922 Subsection (4) enables the court to award exemplary damages where a landowner has breached obligations. This is to ensure that a landowner is not able to profit from a breach of an obligation in a conservation covenant – for example, by developing the land in contravention of the covenant in circumstances where compensatory damages may be very small. In such circumstances, the court can make an award of damages that will strip the landowner of any profit from the beach of covenant.

923 Subsection (5) provides that the limitation period in respect of an action for breach of an obligation under a conservation covenant is the same as the limitation period under section 5 of the Limitation Act 1980 for an action founded on simple contract. This means that any proceedings in respect of a conservation covenant cannot generally be brought after the expiration of six years from the date on which the cause of action accrued.

Clause 107: Defences to breach of obligation

924 Clause 107 sets out defences to proceedings for breach of an obligation under a conservation covenant. These are: where the breach occurred because of something beyond the defendant’s control (subsection (1)(a)), as a result of something done in an emergency to prevent loss of life or injury (for example, to control flood water)(subsection (1)(b)), or in circumstances where it is not possible to comply with an obligation under a conservation covenant without breaching a statutory control applying as a result of the designation of the land for a public purpose (subsection (1)(c)).

925 The last defence will only be available if the land was designated for a public purpose after the conservation covenant was created (subsection (3)) and, in the event that the defence is relied on only because of a failure to obtain authorisation that would have enabled compliance with the obligation, the defendant can show that he or she took all reasonable steps to obtain such an authorisation (subsection (2)).

926 For example, land may be subject to a conservation covenant which requires the landowner to carry out specified works, and the land, or part of it, may be subsequently designated as a Site of Special Scientific Interest (SSSI). The works specified in the conservation covenant are likely to damage the special interest features for the site and cannot be done without the consent of Natural England. Natural England refuses consent. If the landowner carries out the works required by the conservation covenant he or she will commit an offence under section 28P of the Wildlife and Countryside Act 1981. In these circumstances the landowner could rely on this latter defence.

927 Subsection (4) provides that the defence of statutory authority applies to conservation covenants. The intention is that when a public body such as a local authority acquires, and uses, land in accordance with its statutory powers it can override a conservation covenant that binds the land, in the same way that it can override an easement affecting the land.

Clause 108: Discharge of obligation of landowner by agreement

928 This clause provides that the responsible body under a conservation covenant and a landowner bound by (or having the benefit of) a conservation covenant can by agreement discharge any of the relevant land from the obligation (insofar as it relates to the landowner’s estate). An agreement to do this must be in writing signed by the parties and identify the relevant land, obligation and qualifying estate.

929 If the whole of the land to which an obligation of the landowner under the conservation covenant relates is discharged from the obligation, the effect is to modify the covenant or, if it is the only obligation under the covenant, to discharge it. Rules 8(1) and (2) of the Local Land Charges Rules 1977 require details to be given to the registering authority in relation to the Local Land Charges Register following the modification or discharge of a registered charge.

930 If an area of land is discharged from an obligation of the landowner under the conservation covenant, the effect will be that the obligation relates to a smaller area of land because some land will have been freed from the obligation. Clause 103(4)(a) ensures that a landowner is no longer bound by an obligation in respect of land which has been discharged from it.

Clause 109: Release of obligation of responsible body by agreement

931 This clause provides that a person to whom a responsible body owes an obligation under a conservation covenant may agree with the responsible body to release it from the obligation. This can be done in respect of part or all of the relevant land.

932 If the responsible body under a conservation covenant is released from an obligation under the covenant, that is a modification of the covenant for the purposes of rules 8(1) and (2) of the Local Land Charges Rules 1977. As above, the details of the modification have to be given to the registering authority in relation to the Local Land Charges Register.

Clause 110: Modification of obligation by agreement

Subsection (1) creates a means of modifying an obligation by agreement between the responsible body and a landowner bound by (or having the benefit of) an obligation under a conservation covenant. The power can be exercised in relation to any of the land in respect of which the landowner is bound by, or entitled to the benefit of, the obligation under the conservation covenant.

933 Subsection (2) means that an obligation under a conservation covenant cannot be modified such that, had the relevant provision (as modified) been included in the original agreement, it would not have met the qualifying conditions for having effect as a provision of a conservation covenant (that is, the conditions in clause 98(2)(a)). For example, an obligation could not be modified so that it does not serve a conservation purpose.

934 Subsection (3) sets out the requirements for the form and content of the agreement, and subsection (4) provides that any modification will bind the parties to the agreement and their successors in respect of any of the land to which the obligation, as modified, relates.

935 For example, X enters into a conservation covenant and then transfers part of the land to Y, leases another part to Z, and retains part of the land. The original obligation may, following devolution of parts of the original landowner’s interest, bind X, Y and Z. X then enters into an agreement with the responsible body to modify the obligation. This particular modification will only bind X. It will not bind Y and Z as they are not parties to the modification agreement. In the case of X (and his or her successors), the obligation under the conservation covenant is then read with the modification. In the case of Y and Z (and their successors), the obligation under the covenant has effect without modification.

936 Rules 8(1) and (2) of the Local Land Charges Rules 1977 require details to be given to the registering authority in relation to the Local Land Charges Register following the modification of a registered charge.

Clause 111: Discharge or modification of obligation by Upper Tribunal

937 Clause 111 gives effect to Schedule 17, which makes provision about the discharge or modification of an obligation under a conservation covenant on application to the Upper Tribunal.

938 An application for discharge or modification may, in some circumstances, be found useful as a response to proceedings brought to enforce an obligation under a conservation covenant. Subsection (2) gives a person who is the subject of enforcement proceedings the right to apply to the High Court or the county court for an order giving permission to apply to the Upper Tribunal and suspending the enforcement proceedings in the meantime.

939 Subsection (3) provides that an application cannot be made under section 84(1) of the Law of Property Act 1925 to discharge or modify an obligation under a conservation covenant. This ensures that obligations under a conservation covenant are modified or discharged by the Lands Chamber of the Upper Tribunal only on the basis designed for conservation covenants.

Clause 112: Power of responsible body to appoint replacement

940 Subsection (1) enables the responsible body under a conservation covenant ("the appointor") to transfer both the benefit and the burden of its obligations to another responsible body ("the appointee") by appointing it the responsible body under the covenant by agreement in writing signed by the appointor and appointee (subsection (2)). A conservation covenant can exclude the power to do this.

941 Subsection (3) provides that where the conservation covenant has been registered as a local land charge, the transfer to the appointee only has effect if the appointor gives to the Chief Land Registrar (or, in the case of land in an area in relation to which section 3 of the Local Land Charges Act 1975 has not yet taken effect, the authority responsible for the appropriate local land charges register) sufficient information to enable the Registrar (or appropriate authority) to amend the register, as it is required to do by rule 8(2) of the Local Land Charges Rules 1977. In the case of land in an area in relation to which section 3 of the Local Land Charges Act has not yet taken effect, subsection (3) does not apply where the appointor is itself the registering authority (which may be the case where the responsible body is a local authority (subsection (4)).

942 Subsection (5) describes the effect of the appointment. It transfers to the appointee the benefit of every obligation of the landowner under the conservation covenant and the burden of every obligation of the responsible body. This is subject to the qualification in subsection (6) that the transfer of a conservation covenant does not transfer to the appointee any rights or liabilities in respect of an existing breach of an obligation under the conservation covenant. It only has effect in relation to future performance. The appointee cannot take, or continue, enforcement action in respect of a breach which pre-dates the transfer. If the breach is a continuing one the appointee may be able to take enforcement action in respect of the continuing breach after the transfer.

943 Subsection (7) requires the appointee to give notice of its appointment to every person who is bound by an obligation of the landowner under a conservation covenant.

Clause 113: Body ceasing to be a responsible body

944 This clause deals with the situation where the responsible body under a conservation covenant ceases to be a qualifying body or ceases to be designated as a responsible body under clause 99(1)(b) (clause 99(6) sets out the grounds on which the Secretary of State may revoke a designation). There is no specific provision for the situation where a responsible body has itself ceased to exist because in these circumstances it will cease to be a qualifying body and, therefore, automatically be captured by this provision.

945 Subsection (2) provides that in such circumstances the body will cease to be the responsible body under the covenant.

946 Subsection (3) describes what happens in these circumstances. The benefit of every obligation of the landowner under the covenant and the burden of every obligation of the responsible body under the covenant will transfer to the Secretary of State. The transfer does not have effect as regards any rights or liabilities in respect of an existing breach of obligation. It only has effect in relation to future performance (subsection (4)).

947 Subsection (5) provides that, when the transfer described in subsection (3) takes place, the Secretary of State becomes the custodian of the conservation covenant until either they appoint another responsible body and transfer the conservation covenant to it, or decide to take on the role of responsible body.

948 Subsection (6) provides that as custodian the Secretary of State may elect to become the responsible body under the conservation covenant by giving written notice to every person who is bound by an obligation of the landowner under the covenant.

949 Subsection (7) gives the Secretary of State the power as custodian of a conservation covenant to enforce any obligation of the landowner under the covenant in respect of land, and to exercise any power that was conferred on the responsible body in respect of such land.

950 Subsection (8) states that no enforcement action can be taken against the Secretary of State during the period for which they are the custodian of a conservation covenant or subsequently in respect of the period of custodianship. The Secretary of State will only become liable to perform the obligations of the responsible body under the conservation covenant if they make an election under subsection (6).

Clause 114: Effect of acquisition or disposal of affected land by responsible body

951 Generally when land that is burdened by an obligation or interest (for example, a restrictive covenant or an easement), and the land that benefits from that interest, come into the same ownership, the interest comes to an end. If the land subsequently returns to separate ownership, the interest does not revive. This is known as the doctrine of unity of seisin, or unity of ownership.

952 By contrast, clause 114 provides that where the responsible body under a conservation covenant acquires an estate in land to which an obligation under the covenant relates, this does not extinguish the obligation. The responsible body is bound by the obligation. When the responsible body disposes of land, the obligation remains in force.

Clause 115: Effect of deemed surrender and re-grant of qualifying estate

953 Clause 115 requires that a conservation covenant be created by a landowner who holds a "qualifying estate" in the land to which the agreement relates. The qualifying estate must be a freehold, or a lease granted for a term of more than seven years.

954 Clause 115 sets out what is to happen where the qualifying estate is a lease which is surrendered and re-granted by operation of law. This takes place in circumstances where a radical amendment to its terms is agreed between the lessor and lessee. In particular, where the lessor and lessee agree an extension of the term of the lease, there is a deemed surrender and re-grant. Special provision is needed owing to the role in this Part of the qualifying estate. The position of successors under clauses 103 and 104 depends upon those successors holding the qualifying estate. But the qualifying estate ceases to exist on a surrender and re-grant.

955 Clause 115 provides that in these, circumstances, clauses 103, 104 and 108 are to be read as if the "qualifying estate" is a reference to the term of years deemed to be granted by the operation of law. Accordingly, the tenant of the extended lease, and successors, remains liable under the conservation covenant.

956 However, clause 102 is not affected. The duration of the conservation covenant therefore remains unchanged: it will either be the length of the original lease (that is, the default period under clause 102(2)(b)) or such shorter period as the parties originally agreed (under clause 102(1)).

Clause 116: Land passing as bona vacantia

957 Due to the feudal origins of land law, land can revert back to the Crown as bona vacantia, that is, as ownerless property. This occurs in particular where a person dies intestate and no one is entitled to his or her estate under the intestacy rules (contained in the Administration of Estates Act 1925), or where a company is dissolved. In these circumstances property becomes vested in the Crown.

958 Clause 116 provides for what happens if an estate in land to which an obligation under a conservation covenant relates passes as bona vacantia. It replicates the general rule of land law in relation to property that vests in the Crown by operation of law, by providing that the Crown is not liable under an obligation in a conservation covenant until it takes possession or control of the land or enters into occupation of it. If the Crown subsequently transfers the interest to another, that person will be the new landowner for the purposes of clauses 103(3)(b) and 104(1)(b).

Clause 117: Declarations about obligations under conservation covenants

959 Subsection (1) gives the High Court, the county court or the Upper Tribunal, on application of any person interested, the power to make a declaration as to the validity of a conservation covenant, whether land is subject to an obligation under a conservation covenant, who is bound by or has the benefit of such an obligation, and the true construction (that is, meaning) of such an obligation. It will be for the court or the Upper Tribunal to decide whether an applicant has sufficient interest to make an application. The power to make a declaration extends to any agreement or order that modifies a conservation covenant. A person might seek a declaration under subsection (1) in circumstances where they needed to know the status of a conservation covenant – for example, in order to resist an action enforcing a breach or because the land was wanted for a different use.

960 Subsection (2) provides that an application cannot be made under section 84(2) of the Law of Property Act 1925 in respect of an obligation under a conservation covenant.

Clause 118: Duty of responsible bodies to make annual return

961 Clause 118 requires a responsible body to make an annual return to the Secretary of State, specifies certain information that the return should contain, and provides the Secretary of State with a power to specify by regulations other information that must be provided as part of the annual return.

962 Subsection (4) gives the Secretary of State the power to specify by regulations the information to be included in an annual return, the twelve month period to which the return is to relate, and the date by which the return is to be made.

963 Subsection (5) clarifies that the information so specified by the Secretary of State must relate to the responsible body, its activities, its conservation covenants, or the land covered by its covenants.

Clause 119: Crown application

964 This clause gives effect to Schedule 18, which provides that the provisions on conservation covenants in the Bill apply to Crown land, and modifies those provisions insofar as they apply to Crown land.

Clause 120: Index of defined terms in Part 7

965 Clause 120 sets out an index of definitions of terms used in this Part.

Clause 121: Consequential amendments relating to Part 7

966 Clause 121 gives effect to Schedule 19 which makes consequential amendments.

Part 8: Miscellaneous and General Provisions

Clause 122: Amendment of REACH legislation

967 Clause 122 introduces Schedule 20, paragraph 1 of which gives the Secretary of State the power to amend the Articles of the REACH Regulation, as amended by the REACH Exit Statutory Instrument. The provision excludes certain Articles, including those which set out the fundamental aims and principles of the REACH Regulation.

968 The REACH Enforcement Regulations 2008 (the "REACH Enforcement Regulations") were made under section 2(2) of the European Communities Act 1972. Section 1 of the European Union (Withdrawal) Act 2018 repeals the European Communities Act 1972. This means that after exit day there will not be any power to amend the REACH Enforcement Regulations. Clause 122 and paragraph 2 of Schedule 20 give the Secretary of State the power to amend the REACH Enforcement Regulations.

969 Clause 122 extends, and applies, to the whole of the United Kingdom.

General provisions

Clause 123: Consequential provision

970 Clause 123 confers on the Secretary of State a regulation-making power to make further consequential amendments which arise from this Bill or regulations made under it. Regulations that make consequential provision may amend, repeal or revoke an enactment. Any regulations that amend or repeal primary legislation are subject to the affirmative procedure. Any other regulations under this clause are subject to the negative procedure. Equivalent powers are provided for Scottish and Welsh Ministers and for DAERA, subject to respective legislative competence.

Clause 124: Regulations

971 Subsection (1) provides that, where regulations are made under this Bill (apart from Commencement regulations), those regulations may make supplementary, incidental, transitional or saving provision. Subsection (1)(b) also allows regulations to make different provision for different purposes or places.

972 This clause also provides that regulations made under this Bill are to be made by statutory instrument or statutory rule (Northern Ireland only). Where regulations made by the Secretary of State are subject to the negative resolution procedure, they are subject to annulment in pursuance of a resolution of either House of Parliament. Where such regulations are subject to the affirmative resolution procedure, a draft of the regulations must be laid before Parliament and approved by a resolution of each House of Parliament. The clause contains equivalent provision for regulations made by Welsh Ministers, Scottish Ministers and DAERA.

Clause 125: Crown application

973 This Bill does not contain any provision to exempt the Crown from its requirements. Subsection (2) of this clause sets out that, where this Bill amends or repeals other legislation, the Crown is bound by that provision to the same extent as in the amended or repealed legislation.

Clause 126: Financial provisions

974 Costs from the Environment Bill will include, but are not limited to:

● The establishment and running of the Office for Environmental Protection.

● Additional activities for public bodies, such as local authorities; arms-length bodies (for example, Environment Agency and Natural England); other government departments (for example, additional costs for the justice system and additional responsibilities for policymakers across government); and Defra.

● Additional resources to support the delivery of activities, such as enforcement officers and policymakers.

● Infrastructure and other assets, such as estates costs for the Office for Environmental Protection, and enhanced IT systems to deliver certain measures.

Clause 127: Extent

975 Clause 127 sets out the extent of the Bill. Annex A provides further information.

Clause 128: Commencement

976 Part 8 of the Bill (Miscellaneous and General Provisions) will come into force on the day this Bill is passed. Subsection (2) sets out those provisions in the Bill which will come into force two months after the day this Bill is passed.

977 Subsection (3) sets out those provisions which will come into force on such day as the Secretary of State may by regulations appoint. Corresponding provision is made in respect of Welsh Minsters and Scottish Ministers respectively in subsections (4) and (5).

978 DAERA also has a corresponding commencement power, the details of which are provided for in subsection (6). Exercise of that power is subject to the consent of the Secretary of State in the cases described in subsection (7). Subsections (8) and (9) provide that exercise of the power is through statutory rule subject to the affirmative procedure.

979 Subsection (10) allows for commencement regulations or orders to appoint different days for different purposes or places.

Clause 129: Transitional or saving provision

980 This clause provides that Commencement regulations made under this Bill may also make transitional or saving provision. Subsection (8) allows those regulations to make different provision for different purposes or places. Equivalent powers are provided for Scottish and Welsh Ministers and for DAERA, subject to respective legislative competence.

Clause 130: Short title

981 This clause confirms the short title of the Bill.

Schedule 1: The Office for Environmental Protection

982 This Schedule sets out further information on the composition of the OEP, established as a statutory corporation and due to be classified as a Non-Departmental Public Body (NDPB), and prescribes how it is to operate. The provisions in this schedule relate to ministerial oversight; the body’s operational independence from government; and the need for transparency and accountability in the body’s exercise of its statutory powers and functions.

Membership

983 Paragraph 1 covers the membership of the Board that governs the OEP. The provisions in this paragraph aim to ensure a balance between ministerial accountability and independence in making appointments to the body, and between non-executive and executive involvement in the governance of the body.

984 Sub-paragraph (1) provides that the new body will consist of a non-executive Chair and between two and five other non-executive members, and a Chief Executive (who is to be the Accounting Officer of the body and therefore responsible for accounting for the body’s use of public funds) and between one and three other executive members. The make-up of the Board will ensure a balance of non-executive and executive members. Setting the maximum size of the Board at ten members enables the body to have a strategic focus while ensuring that the required expertise can be fully represented across the Board.

985 Sub-paragraph (3) requires the Secretary of State and the OEP to ensure, so far as practicable, that the number of non-executive members is at all times greater than the number of executive members, in order to ensure effective strategic oversight and ministerial accountability.

Appointment of non-executive members

986 Paragraph 2 provides for the appointment process of the non-executive members of the board. Provisions in this paragraph aim to ensure a balance between ministerial accountability and having regard to the OEP’s independence in making appointments to the body.

987 Sub-paragraph (1) provides for the non-executive members (including the Chair) to be appointed by the Secretary of State. This is usual practice for appointments to NDPBs, including other bodies which hold government to account such as the Equality and Human Rights Commission .The appointments process will be in accordance with the Governance Code for Public Appointments. The Code will ensure that members are appointed through a fair and open process. The regulation of appointments against the requirements of this Code is carried out by the Commissioner for Public Appointments.

988 Sub-paragraph (2) places a duty on the Secretary of State to consult the Chair before appointing the other non-executive members. This ensures that the Chair is involved in the decision. Sub-paragraph (3) places a duty on the Secretary of State to have regard to the desirability of specific expertise being met across all non-executive members of the OEP (including the Chair), when nominating and appointing the non-executive members. This is intended to ensure that the OEP’s non-executive members collectively have the expertise required for effective strategic oversight of its statutory functions. Non-executive directors will need to meet a range of essential criteria as part of the public appointments process.

989 Sub-paragraph (4) clarifies that non-executive members may not also be employees of the OEP, by virtue of their non-executive status. This enables them to hold the executive members to account.

Appointment of executive members

990 Paragraph 3 provides for the appointment of the executive members of the board.

991 Sub-paragraph (1) sets out that the chief executive will be appointed by the non-executive members of the OEP, other than the first chief executive who will be appointed by the Chair. This provision is to ensure that the first CEO appointment can be made ahead of other non-executives being appointed, in order to assist with the set up activities of the OEP.

992 Sub-paragraph (2) provides for the other executive members to be appointed by the OEP.

993 Sub-paragraph (3) requires that the Secretary of State be consulted on the appointment of the Chief Executive, since the Chief Executive is to be the Accounting Officer of the OEP.

994 Sub-paragraph (4) clarifies that executive members are employees of the OEP. The body will be expected to follow the guidance for good practice for corporate governance for public bodies.

Terms of membership

995 Paragraph 4 sets out the basis on which members (both non-executive and executive) can be appointed to, and removed from, the OEP. Appointments will be made in accordance with the Governance Code for Public Appointments.

996 Sub-paragraph (2) specifies that civil servants may not be appointed as members of the OEP, as a non-Crown entity.

997 Sub-paragraph (3) requires that non-executive members be appointed for a fixed term of no more than five years.

998 Sub-paragraph (4) requires the Secretary of State to have regard to the desirability of securing that the appointments of non-executive members expire at different times in order to ensure strategic continuity and to spread the administrative workload of appointing and inducting new board members.

999 Sub-paragraph (5) provides that non-executive members may be re-appointed once they reach the end of their term of office.

1000 Sub-paragraph (6) explains the terms for termination of a non-executive member’s appointment. Sub-paragraph (c) explains the conditions under which the Secretary of State may remove a non-executive member from office.

Remuneration of non-executive members

1001 Paragraph 5 places a duty on the OEP to pay its non-executive members any remuneration, allowances and compensation (for example, in the event of being removed from office) as determined by the Secretary of State in consultation with the Chair.

1002 This will be in accordance with the Corporate Governance Code for Central Departments 2017, which requires non-executive members of public bodies to comply with the guidance for approval of senior pay issued by HM Treasury. This reflects the fact that non-executive members are public appointments by the Secretary of State (paragraph 1(2)), and helps to maintain the relative independence of the non-executive members within the OEP, as the OEP does not make decisions on their remuneration arrangements.

Staffing and remuneration

1003 Paragraph 6 gives the OEP the power to appoint and make other arrangements for staff as it determines; and to pay its staff any remuneration and allowances as it determines. This will also be done in accordance with the public sector pay and terms guidance. This arrangement gives the OEP independence in how it recruits and pays its staff, without approval from ministers. Sub- paragraph (2) provides for the Chair to determine the terms of the CEO when making the first appointment.

1004 Sub-paragraph (4) places a duty on the OEP to make pensions arrangements for its members and staff with the approval of the Secretary of State.

1005 Sub paragraphs (5) and (6) ensure that the OEP is able to take part in the Civil Service Pension Scheme for its employees.

Powers

1006 Paragraph 7 gives the OEP the power to do anything it thinks appropriate for carrying out its functions without interference or approval from ministers, except for accepting gifts of money, land or other property, or forming, participating in forming, or investing in, a company, partnership, joint venture or other similar form of organisation. This provides the OEP with sufficient independence from government when carrying out its functions.

Committees

1007 Paragraph 8 gives the OEP the power to establish committees to, for example, provide advice or carry out an OEP function. These may include people who are neither board members nor employees. Such committee members may be paid but may not have a vote on the committee. This will allow the body to gain access to additional specialised expertise to support any of the functions or strategic direction of the body.

Delegation to members, committees and employees

1008 Paragraph 9 gives the OEP the power to delegate any of its functions other than the approval of key documents, reports and advice to Ministers, and key decisions related to the enforcement function. Functions other than these may be delegated to a member, employee or committee, in accordance with a delegation policy that it will determine. This provides the body with adequate independence to delegate functions without interference from ministers and ensures that decisions can be taken at the most appropriate level.

Procedure

1009 Paragraph 10 gives the OEP the power to determine its own procedures, such as arrangements for decision making (other than the meeting quorum set out in sub-paragraph (2)), as part of ensuring its operational independence from government. Sub-paragraph (3) provides that proceedings will not be made invalid by a vacancy in the membership or the incorrect appointment of any member for example due to conflicts of interest. This ensures that processes and decision-making are not disrupted by situations that may not be within the OEP’s control.

Funding

1010 Paragraph 11 places a duty on the Secretary of State to fund the OEP sufficiently to perform its functions, and gives the Secretary of State the power to provide further financial assistance to the body, for example by way of grants to be used for a specific purpose related to operational delivery or achievement of functions. Funding will be provided to the OEP in the form of grant in aid, which will be set out as a separate line in the overall estimate of the Department for Environment, Food and Rural Affairs to ensure adequate transparency.

Annual report

1011 Paragraph 12 places a duty on the OEP to prepare an annual report as soon as possible at the end of each financial year; to arrange for the report to be laid before Parliament; and to publish it. This provides transparency on the performance of the body against its key statutory functions and its strategic plan, helping to ensure accountability for the exercise of its powers and its use of public funds.

Annual accounts

1012 Paragraph 13 is intended to ensure independent oversight, transparency and ministerial accountability for use of public funds.

1013 Sub-paragraphs (1) to (3) place a duty on the OEP (and the Chief Executive as Accounting Officer) to keep proper accounting records and prepare an annual statement of accounts. The latter includes an assessment of whether the OEP received sufficient funds to carry out its statutory functions in the relevant financial year. This provision is intended to provide further transparency around the funding of the OEP and ensure it is funded sufficiently to carry out its functions.

1014 Sub-paragraph (4) places a duty on the body to send these accounts as soon as reasonably practicable after the end of the relevant financial year to the Secretary of State and the Comptroller and Auditor General. Sub-paragraph (5) requires The Comptroller and Auditor General to certify and report on the accounts, and send the certified statement and report to the Secretary of State and the OEP. Sub-paragraph (6) mandates that the OEP must then arrange to lay these documents before Parliament.

Meaning of "financial year"

1015 Paragraph 14 defines "financial year" as the year ending 31 March.

Status

1016 Paragraph 15 clarifies that the OEP is not part of the Crown, unlike government departments. This is customary for NDPBs, and is intended to ensure that the body can act independently of government and is capable of properly enforcing against government. The body will be staffed by public servants rather than civil servants.

Independence of the OEP

1017 Paragraph 16 places a duty on ministers to have regard to the need to protect the OEP’s independence when carrying out functions in relation to the OEP.

Disqualification from membership of legislatures

1018 Paragraph 17 subjects OEP members to the House of Commons Disqualification Act 1975, which restricts membership of the House of Commons to certain categories of people. Consequently, people who are members of the OEP board will be disqualified from becoming members of the House of Commons until they cease to be members of the OEP. This is customary for members of certain bodies, including NDPBs. Paragraph 18 subjects OEP members to the equivalent legal obligation in Northern Ireland, the Northern Ireland Assembly Disqualification Act 1975.

Public records

1019 Paragraph 19 subjects the OEP to the Public Records Act 1958, which governs public records in the UK.

Freedom of information

1020 Paragraph 20 subjects the OEP to the Freedom of Information Act 2000, which governs the public’s access to information held by public authorities.

Investigation by the Parliamentary Commissioner

1021 Paragraph 21 requires the OEP to comply with the Parliamentary Commissioner Act 1967, under which the Parliamentary Ombudsman can investigate public authorities’ administrative actions.

Public sector equality duty

1022 Paragraph 22 provides for the OEP to be subject to the Equality Act 2010. The OEP will be subject to the public sector equality duty, which requires public bodies and others carrying out public functions to have due regard to the need to eliminate discrimination, to advance equality of opportunity and foster good relations between people who share a protected characteristic and those who do not.

Schedule 2: Improving the natural environment: Northern Ireland

1023 While significant progress has been made in improving aspects of Northern Ireland’s environment in recent times, there remain substantial environmental challenges which must be addressed if the Northern Ireland Executive’s draft Programme for Government Outcomes are to be realised – in particular Outcome 2: "We live and work sustainably – protecting the environment".

1024 These challenges include waste management and the development of a circular economy; waste crime; air quality; local environmental quality (for example, litter and dilapidated buildings); biodiversity loss; soil quality; greenhouse gas emissions/ climate change; water quality (including the impact of nitrogen and phosphorus run-off); single use plastic waste; and ammonia emissions.

1025 In order to provide a strategic framework to tackle these challenges and to reaffirm its commitment to protect and improve the environment after the United Kingdom’s withdrawal from the European Union, the Department for Agriculture, Food and Rural Affairs (referred to as "the Department") commenced preparatory work on a draft ‘Environment Strategy for Northern Ireland’ in March 2018.

1026 The Department launched a public discussion on a future Environment Strategy for Northern Ireland in September 2019, with a view to producing its first Environment Strategy in 2020. Subject to the approval of the Northern Ireland Executive, it is intended that this future strategy will be Northern Ireland’s first environmental improvement plan.

Part 1: Environmental Improvement Plans

1027 The duties included in Schedule 2 provide a statutory basis for future environmental improvement plans relating to Northern Ireland. These duties are intended to work together for the purpose of seeking to significantly improve the natural environment. Specifically, Schedule 2 requires the Department, in consultation with other relevant departments, to: produce and maintain an environmental improvement plan which is reviewed and, if appropriate, updated at least every five years; publish a statement on the data it will obtain to determine whether the natural environment (or elements of it) are improving; and report progress towards environmental improvement to the Northern Ireland Assembly on an annual basis.

Environmental Improvement Plans

1028 Paragraph 1 introduces a duty on the Department to prepare a plan for significantly improving the natural environment. It states: what the plan must do; what the plan must contain; who must be consulted; and enables the plan to relate to a specified time period or to be of no specified duration.

1029 Sub-paragraphs (1) and (2) introduce the requirement to have an environmental improvement plan for significantly improving the natural environment.

1030 Sub-paragraph (3) enables the environmental improvement plan to relate to a specified time period or to be of no specified duration.

1031 Sub-paragraph (4) specifies that the environmental improvement plan must set out the steps that the Department and other Northern Ireland departments intend to take to improve the natural environment.

1032 Sub-paragraph (5) allows the environmental improvement plan to include measures that any Northern Ireland department intends to take in order to improve people’s enjoyment of the natural environment. Enjoyment may be increased through education and public awareness of the natural environment both past and present, natural systems and processes through which organisms interact with their surroundings.

1033 Sub-paragraph (6) requires the Department to consult with such other Northern Ireland departments as it considers appropriate as part of the process of preparing an environmental improvement plan. These may be departments who are taking steps to improve the environment or those whose policy remits might be impinged upon by those taking steps.

1034 Sub-paragraph (7) requires the Department to publish an environmental improvement plan and lay this in the Northern Ireland Assembly within 12 months of paragraph 1 coming into force.

1035 Sub-paragraph (8) states that all references in Schedule 2 to the current environmental improvement plan are to the environmental improvement plan that is in effect at the time.

Annual reports on environmental improvement plans

1036 Paragraph 2 establishes a duty on the Department to produce annual reports on the implementation of the environmental improvement plan and on whether the environment is improving. It explains when and how these reports should be published.

1037 Sub-paragraph (1) requires the Department to prepare annual reports on the implementation of the current environmental improvement plan.

1038 Sub-paragraph (2) requires that these reports must describe what has been done to implement the plan and consider whether the natural environment (or aspects of it) is improving during the period to which the report relates. Consideration as to whether the environment (or aspects of it) has improved must have regard to information gathered under paragraph 5.

1039 Sub-paragraph (3) specifies the period of time annual reports on an environmental improvement plan must relate to, which is 12 months.

1040 Sub-paragraph (4) requires the Department to lay each annual report in the Northern Ireland Assembly within four months of the end of the period to which it relates.

1041 Sub-paragraph (5) requires the Department to publish annual reports laid before the Northern Ireland Assembly under Paragraph 2.

Reviewing and revising environmental improvement plans

1042 Paragraph 3 provides for the review and revision of environmental improvement plans. It establishes a duty on the Department and a timeline to complete a review (and, if appropriate, to revise the plan), in consultation with other relevant departments. It also specifies what must be considered in undertaking this review.

1043 Sub-paragraph (1) establishes a duty on the Department to review the plan and if it considers it appropriate then to revise the plan.

1044 Sub-paragraph (2) specifies that the first review of an environmental improvement plan must be completed within 5 years of its publication (in respect of the first plan) or its start date (in respect of any other plans). This is considered to be sufficient time for: progress to be made against the plan; the monitoring of the environment to assess improvement; and early results to be obtained. This time should also allow for any weaknesses and gaps in the plan and required policy changes to be identified which may require a revision to the plan.

1045 Sub-paragraph (3) provides that further reviews of an environmental improvement plan must be undertaken within every five-year period.

1046 Sub-paragraph (4) specifies what the Department must consider when reviewing an environmental improvement plan. These are: the steps that have been taken to deliver the plan; improvements in the natural environment (or aspects of it); and what else should be done to improve the environment. The Department must have regard to the data obtained under paragraph 5 and reports from the Office for Environmental Protection when considering whether the environment (or aspects of it) has improved. The Department will be at liberty to consider other relevant information, reports or commentary in completing its review.

1047 Sub-paragraph (5) requires the Department to consult with such other Northern Ireland departments as it considers appropriate as part of the process of reviewing or revising an environmental improvement plan. These departments may be those who are taking steps to improve the environment or those whose policy remits might be impinged upon by those taking steps.

1048 Sub-paragraph (6) requires that when the Department has completed a review and determined it appropriate to revise the plan, then this revised plan must be laid in the Northern Ireland Assembly along with a statement explaining what revisions have been made and why.

1049 Sub-paragraph (7) requires that if the Department completes a review but does not consider it appropriate to revise the plan then it must lay in the Northern Ireland Assembly a statement to this effect and the reasons for this. Whilst the Department is required to complete a review within the 5 year timeline there is no duty to revise the plan if a revision is not considered appropriate. This allows for a revision to the plan to be delayed if the Department considers it appropriate, but such a decision must be justified to the Northern Ireland Assembly.

1050 Sub-paragraph (8) requires the Department to publish any documents laid in the Northern Ireland Assembly under sub-paragraphs (6) and (7) following a review of an environmental improvement plan.

1051 Sub-paragraph (9) specifies that a review is to be considered completed when the documents prepared under subsections (6) and (7) have been laid in the Northern Ireland Assembly and published. This is the completion date for the purpose of meeting the requirement to complete a review within five years of a plan being published or previous review. It also becomes the start date for the next five-year time period for completing the subsequent review.

1052 Sub-paragraph (10) clarifies that when the environmental improvement plan is revised in accordance with this paragraph, then references to an environmental improvement plan in this Schedule include the now revised environmental improvement plan.

Renewing environmental improvement plans

1053 Paragraph 4 provides for the Department to, in consultation with other relevant departments, replace the environmental improvement plan with a renewed version in such circumstances where the environmental improvement plan relates to a specified period as stated in the plan itself.

1054 Sub-paragraph (1) specifies that paragraph 4 applies where an environmental improvement plan relates to a period specified in the plan itself.

1055 Sub-paragraph (2) requires the Department to prepare a new environmental improvement plan before the point at which the current plan comes to an end.

1056 Sub-paragraph (3) requires the new plan to start no later than the end of a previous plan, ensuring there is no gap between plans.

1057 Sub-paragraph (4) sets out what the Department must consider before the current environmental improvement plan can be renewed. These are the steps that have been taken to deliver the current plan; improvements in the natural environment since the beginning of the period to which the old plan relates; and what else should be done to improve the environment after the end of the period to which the previous plan related. The Department must also consult such other Northern Ireland departments as it considers appropriate as part of the renewal process. The Department must have regard to the data obtained under paragraph 5 and reports from the Office for Environmental Protection when considering whether the environment has improved and is at liberty to consider other relevant information, reports or commentary.

1058 Sub-paragraph (5) requires the Department to publish and lay all new environmental improvement plans in the Northern Ireland Assembly at or before the end of the period to which the previous plan relates.

1059 Sub-paragraph (6) refers to the replacement of the plan and specifies when the previous plan ends and the new plan begins. At its earliest, this will be when the plan has been laid in the Northern Ireland Assembly and published, but if the period to which the new plan relates is specified in the new plan it will be the start of that period. Sub-paragraph (3) requires that the new plan begins no later than the end of the previous plan.

Environmental monitoring

1060 Paragraph 5 establishes a duty on the Department to obtain and publish data for the purpose of environmental improvement. The metrics will measure outcomes achieved through the implementation of the environmental improvement plan and inform updates to the plan.

1061 Sub-paragraph (1) establishes a duty on the Department to ensure that appropriate monitoring data is obtained to assess whether the natural environment (or elements of it) is improving in line with the current environmental improvement plan.

1062 Sub-paragraph (2) requires the Department to publish and lay a statement in the Northern Ireland Assembly explaining the types of data to be collected for the purposes identified in sub-paragraph (1).

1063 Sub-paragraph (3) requires the first statement under sub-paragraph (2) to be laid within four months of this Paragraph coming into force.

1064 Sub-paragraph (4) allows for changes to be made to the statement at any time. This may be necessary if it becomes clear to the Department that additional data is needed or that current measures do not adequately assess environmental improvement. Such a revised statement must also be published and laid in the Northern Ireland Assembly.

1065 Sub-paragraph (5) requires the Department to publish any data that it obtains under sub-paragraph (1).

Part 2: Policy statement on environmental principles

1066 Part 2 of Schedule 2 makes similar provision for Northern Ireland as clauses 16 to 18 do for England.

Policy statement on environmental principles

1067 Paragraph 6(1) requires the Department of Agriculture, Environment and Rural Affairs ("the Department") to prepare a policy statement on the environmental principles. This means that the Department must draft the policy statement in line with requirements in paragraphs 6 and 7.

1068 Sub-paragraph (2) provides specific information on what the environmental principles policy statement must include. The policy statement will provide information for Northern Ireland departments on the interpretation and proportionate application of the environmental principles when developing policies. Proportionate application of the principles means that action taken should be comparable to the potential benefit or risk applying in a specific case.

1069 Sub-paragraph (3) sets out that the Department may explain in the statement how other considerations should be taken into account by Northern Ireland departments when they are interpreting and applying the environmental principles. For example, it may be necessary to balance the application of a specific environmental principle with other considerations, such as economic and social benefits.

1070 Sub-paragraph (4) details two aims that the Department must be satisfied that the statement will contribute to. These are:

● The improvement of environmental protection. In this context, this means ensuring that the policy statement can be used to shape policies in a way that contributes to protection of the environment.

● Sustainable development. Sustainable development can be summarised as development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It involves trying to achieve environmental benefit alongside economic growth and social progress. Therefore, the policy statement will require Northern Ireland departments to consider needs of future generations when developing policies. This means that a Department should consider the environmental impact of their policies together with economic and social factors and, as much as possible, ensure each policy achieves all three aims.

1071 Sub-paragraph (5) sets out the list of environmental principles the policy statement will cover. These principles are drawn from a number of sources, including, for example, the Rio Declaration on Environment and Development (1992). There is no single agreed definition of the environmental principles. The policy statement will explain in more detail how these are to be interpreted and provide information as to how they should be applied.

1072 The meaning of the individual environmental principles are as follows:

● The principle that environmental protection should be integrated into the making of policy: Environmental protection must be embedded in the making of policies.

● The principle of preventative action to avert environmental damage: Preventive action should be taken to avert environmental damage.

● The precautionary principle, so far as relating to the environment: Where there are threats of serious irreversible environmental damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

● The principle that environmental damage should as a priority be rectified at source: Environmental damage should as a priority be rectified by targeting its original cause and taking preventive action at source.

● The polluter pays principle: The costs of pollution control and remediation should be borne by those who cause pollution rather than the community at large.

1073 Further direction on these environmental principles will be set out in the policy statement. These principles cannot be changed without further primary legislation.

Policy statement on environmental principles: process

1074 Paragraph 7 establishes the process by which the Department will develop and publish the environmental principles policy statement.

1075 Sub-paragraph (1) requires the Department to prepare a draft environmental policy statement. This will be an initial version of the statement before public and Northern Ireland Assembly ("the Assembly") scrutiny.

1076 Sub-paragraph (2) requires the Department to undertake a public consultation on the draft policy statement.

1077 Sub-paragraph (3) requires the draft to be laid before the Assembly for its consideration. This must take place before the policy statement is finalised.

1078 Sub-paragraph (4) sets out provisions for cases where the Assembly chooses to respond to the draft policy statement by passing a resolution in respect of the draft. The Assembly has a period of 21 sitting days after the draft statement has been laid to pass a resolution if it deems this necessary. The Department is required to lay a response to any resolution passed by the Assembly.

1079 Sub-paragraphs (5) to (7) require the final environmental policy statement to be laid before the Assembly and published. If a response is required under sub-paragraph (4), the Department must not lay and publish the final statement before laying this response. Otherwise, the Department must not lay and publish the final statement before a period of 21 sitting days has passed since the draft statement was laid. This is intended to allow the Assembly sufficient time to scrutinise the draft policy statement. The final statement comes into effect when it is laid before the Assembly.

1080 Sub-paragraph (8) provides a definition for the term "21 day period".

1081 Sub-paragraph (9) allows the Department to revise the policy statement at any time and requires the process set out in paragraph 7 to be followed each time that the policy statement is revised.

1082 Sub-paragraph (10) details what a sitting day is in this context.

Policy statement on environmental principles: effect

1083 Paragraph 8 sets out the legal duty on Northern Ireland departments and Ministers of the Crown in respect of the environmental principles policy statement, where the duty applies. It also details the relevant exemptions to the duty to have due regard to the policy statement.

1084 Sub-paragraph (1) requires the Northern Ireland departments to have due regard to the environmental principles policy statement when making policies included in the scope of the duty (i.e. policy that is not excluded). This means that when making policy, departments must have the correct level of regard to the content of the environmental principles policy statement.

1085 Sub-paragraph (2) places the same duty on Ministers of the Crown when they are making policies relating to Northern Ireland.

1086 Sub-paragraph (3) sets out that the policy statement does not require departments or Ministers of the Crown to do, or refrain from doing, anything if doing something (or not doing it) has no significant environmental benefit or would be in any other way disproportionate to the environmental benefit. In this context:

● No significant environmental benefit means that the policy statement does not need to be used to change a policy direction if the environmental impact would be negligible.

● Disproportionate indicates situations in which action would not be reflective of the benefit or costs, environmental or otherwise. Action taken must reflect the potential for environmental benefit as well as other costs and benefits. For example, there is no need for a Department to change a policy in light of the principles policy statement if the cost of this change would be very high and the benefit to the environment would be very low. Equally, if the potential environmental benefit is high, then it is proportionate to take a more significant action based on the policy statement.

1087 Sub-paragraph (4) sets out which policies are excluded from the requirement to have due regard to the policy statement during the policy-making process. In the equivalent provision for England – clause 18(3) - the armed forces, defence, and national security, taxation, spending and the allocation of resources within government are excluded. These matters are similarly excluded for Ministers of the Crown when making policy in relation to Northern Ireland. However, armed forces, defence, and national security do not need to be specifically excluded for Northern Ireland departments as they are excepted matters and, on that basis, Northern Ireland departments have no powers to make policies relating to these subjects.

Part 3 – Interpretation

1088 Part 3 of Schedule 2 makes similar provision for Northern Ireland as clauses 39 and 41 do for England.

Meaning of "natural environment" and General interpretation

1089 Paragraphs 9 and 10 define the terms used in the Schedule and cover the application of the Interpretation Act (Northern Ireland) 1954.

Schedule 3: The Office for Environmental Protection: Northern Ireland

1090 The Office for Environmental Protection’s (OEP’s) functions in Northern Ireland are essentially the same as its functions in England. This is dealt with in the Bill in two ways:

● Substantive Northern Ireland functions of the OEP are provided for in Part 1 of Schedule 3. To a large extent these provisions mirror those in Part 1 of the Bill.

● Provision about the OEP itself and its general functions are contained in clauses 19 to 38 of Part 1 of the Bill. These apply to Northern Ireland subject to the amendments made by Part 2 of Schedule 3.

1091 Throughout this Schedule, "the Department" means the Department of Agriculture, Environment and Rural Affairs (DAERA).

Part 1: The OEP’s Northern Ireland functions

Monitoring and reporting on the Department’s environmental improvement plans

1092 Paragraph 1 describes the monitoring and reporting functions of the OEP in relation to the environmental improvement plans prepared by the Department. Under this paragraph, the OEP will monitor and assess environmental statistics and reports on an ongoing basis to ensure that it has an effective knowledge base. This information will then be analysed alongside information published by the Department to assess progress made in improving the natural environment in accordance with the current environmental improvement plan.

1093 Sub-paragraph (1) provides that the OEP must monitor progress in improving the natural environment in accordance with the Department’s environmental improvement plan (the first of which is intended to be the ‘Environment Strategy for Northern Ireland’.), as set out in Schedule 2. This is intended to hold the Department to account on its environmental commitments.

1094 Sub-paragraph (2) requires the OEP to produce a progress report for each annual reporting period. As set out in sub-paragraph (3), the reports will inform on progress made related to improving the natural environment that has occurred within the annual reporting period. This will be measured against the current environmental improvement plan. An annual reporting period is the period for which the Department must produce a report under paragraph 2 of Schedule 2 (a "Schedule 2 report"), as set out in sub-paragraph (4).

1095 When making a progress report, sub-paragraph (5) requires the OEP to take into account the report made by the Department on progress against environmental objectives for that period, as set out in paragraph 2 of Schedule 2. The OEP will also consider the data for that period, as required by paragraph 5(1) of Schedule 2, as well as any other documents or information which the OEP believes is relevant.

1096 Sub-paragraph (6) specifies that a progress report may advise how the OEP believes progress could be improved. It may also consider the adequacy of data obtained under paragraph 5(1) of Schedule 2, enabling the OEP to independently determine whether the right information is being collected to evaluate progress in improving the natural environment.

1097 Sub-paragraphs (7) and (8) require that the OEP’s reports must be laid before the Northern Ireland Assembly and published. This is intended to provide the OEP with sufficient independence when carrying out its reporting functions. The OEP’s reports must be laid before the Northern Ireland Assembly within six months of the relevant Schedule 2 report being laid. This gives the OEP sufficient time to carry out its scrutiny of the Schedule 2 report whilst tying it to a fixed reporting deadline.

1098 Sub-paragraph (9) requires the Department to respond to the OEP’s report, publishing its response and laying it before the Northern Ireland Assembly. Sub-paragraph (10) requires that the Department’s response must specifically address any recommendations made by the OEP as to how progress with the environmental improvement plan could be improved. Sub-paragraph (11) specifies that the Department must lay its response within 12 months of the OEP’s report being laid; and may include this response in the Department’s subsequent report made under paragraph 2 of Schedule 2. This allows the Department to include the response to the OEP’s progress report as part of the following year’s annual report on the environmental improvement plan.

Monitoring and reporting on environmental law

1099 Paragraph 2 describes how the OEP is to monitor and report on the implementation of Northern Ireland environmental law. This term is defined in paragraph 18(2) of Schedule 3.

1100 Sub-paragraph (1) requires the OEP to monitor the implementation of Northern Ireland environmental law.

1101 Sub-paragraph (2) permits the OEP, as it deems appropriate, to produce a report on any matter concerned with the implementation of Northern Ireland environmental law.

1102 Sub-paragraph (3) requires that any report the OEP produces in line with sub-paragraph (2) must be laid before the Northern Ireland Assembly and published. This ensures the reports are in the public domain and are subject to scrutiny by elected representatives.

1103 Sub-paragraph (4) requires the Department to produce a response to any report issued by the OEP under sub-paragraph (2). The Department must lay the response before the Northern Ireland Assembly and publish it.

1104 Sub-paragraph (5) requires the Department to lay its response before the Assembly within three months of the OEP’s report being laid.

Advising on changes to Northern Ireland environmental law etc

1105 Paragraph 3 sets out the circumstances in which the OEP can give advice to a Northern Ireland department. It also makes provision for how this advice must be published and may be laid before the Northern Ireland Assembly.

1106 Sub-paragraphs (1) and (2) enable a Northern Ireland department to require the OEP to provide it with advice on any proposed change to Northern Ireland environmental law, or on any other matter relating to the natural environment. The department in question can, if it wishes, set out specific matters it requires the OEP to take into consideration when providing this advice. "Natural environment" is defined in this Bill in clause 39 and paragraph 19 of this Schedule.

1107 Sub-paragraph (3) enables the OEP, acting on its own initiative, to give advice to a Northern Ireland department concerning any changes to environmental law being proposed by the department in question.

1108 Sub-paragraph (4) requires any advice given by the OEP to a Northern Ireland department to be given in writing. This applies whether the advice has been requested by the department or whether it has been provided at the OEP’s initiative.

1109 Sub-paragraph (5) requires the OEP to publish its advice. If it was asked to provide the advice by a Northern Ireland department under sub-paragraph (1), it must also publish details of the request and any matters it was required to take into account in line with sub-paragraph (2). The publication of this information ensures transparency in the relationship between the OEP and any Northern Ireland department asking it for advice.

1110 Sub-paragraph (6) permits (but does not require) the relevant Northern Ireland department to lay the advice it has received from the OEP before the Northern Ireland Assembly. It may also lay any response it has made to that advice.

Failure of relevant public authorities to comply with environmental law

1111 Paragraph 4 defines what is meant by a relevant public authority failing to comply with relevant environmental law.

1112 Sub-paragraph (1) sets out that paragraphs 6 to 15 provide for the functions of the OEP relating to failures by "relevant public authorities" to comply with "relevant environmental law". Both of these terms are defined in paragraph 5.

1113 Sub-paragraph (2) defines what is meant by a relevant public authority failing to comply with relevant environmental law.

Meaning of relevant environmental law, relevant public authority etc

1114 Paragraph 5 defines certain terms referred to in this Part of this Schedule.

1115 Sub-paragraph (2) defines the term "relevant environmental law". This definition is in two parts:

● Sub-paragraph (2)(a) sets out that for Northern Ireland public authorities (defined in sub-paragraph (4)) "relevant environmental law" means "UK environmental law", as defined in paragraph 18(1) – which references clause 40 – or "Northern Ireland environmental law", as defined in paragraph 18(2).

● Sub-paragraph (2)(b) sets out that for any other relevant public authority (meaning those captured under sub-paragraph (3)(b)), "relevant environment law" means "Northern Ireland environmental law".

1116 The definition is structured in this manner to enable the OEP to carry out enforcement action against Northern Ireland devolved public authorities who are believed to have breached either devolved or reserved environmental legislation, as well as against other public authorities who are believed to have breached devolved legislation when exercising any function in or as regards to Northern Ireland.

1117 Sub-paragraph (3) defines the term ‟relevant public authority". This means a Northern Ireland public authority (as defined in sub-paragraph (4)), or any other legal or natural person carrying out a function of a public nature in or as regards Northern Ireland that is not a parliamentary function, or a function of a body listed under sub-paragraphs (3)(b)(i) to (3)(b)(iv).

1118 Sub-paragraph (4) defines the term ‟Northern Ireland public authority". This means a legal or natural person carrying out a Northern Ireland devolved function (as defined in sub-paragraph (5)) that is not a function connected with proceedings in the NI Assembly, or a function of any of the bodies listed under sub-paragraphs (5)(b)(i) to (5)(b)(iii).

1119 Sub-paragraph (4) makes it clear that the definition of Northern Ireland public authority includes the implementation bodies as defined in section 55 of the Northern Ireland Act 1998 but only insofar as their functions relate to Northern Ireland.

1120 Sub-paragraph (5) defines the term ‟Northern Ireland devolved function". This means a function that could be conferred by an Act made by the Northern Ireland Assembly under sections 6 to 8 of the Northern Ireland Act 1998.

Complaints about relevant public authorities

1121 Paragraph 6 allows complaints to be made to the OEP regarding alleged contraventions of relevant environmental law by relevant public authorities. It sets out who may make such complaints, what form they must take, and the time limits within which they should be made. Complaints that are not submitted in accordance with the procedures set out in this paragraph do not have to be considered by the OEP (see paragraph 8(2)(a)). The contraventions and relevant public authorities about which complaints may be considered by the OEP are set out in paragraphs 4 and 5 respectively. Paragraph 5 also defines relevant environmental law.

1122 Sub-paragraph (1) allows for any legal or natural person - other than a person described in sub-paragraph (4) - to make a complaint to the OEP if they believe that a relevant public authority has failed to comply with relevant environmental law.

1123 Sub-paragraph (2) requires the OEP to draw up and publish a complaints procedure and sub-paragraph (3) requires all complaints to the OEP to be submitted in accordance with the most recently published version of that procedure.

1124 Sub-paragraph (4) does not permit public authorities to make complaints to the OEP. This is to prevent one arm of government or the public sector complaining about another.

1125 Sub-paragraph (5) requires a complainant to have exhausted any internal complaints procedures of the body it wishes to complain about before submitting a complaint to the OEP. This should allow matters to be resolved without formal action being taken where possible.

1126 Sub-paragraph (6) requires a complaint to be submitted to the OEP within a year of the alleged breach of relevant environmental law (sub-paragraph (a)), or within three months of the conclusion of any internal complaints procedures (sub-paragraph (b)), whichever is later. However sub-paragraph (7) allows the OEP to consider complaints submitted after the expiration of these time limits if it believes that there are exceptional grounds for doing so e.g. if the full impact of environmental harm allegedly caused by a relevant public authority has not become apparent for some time.

Investigations: relevant public authorities

1127 Paragraph 7 deals with the investigation of complaints about relevant public authorities as well as the investigation of potential breaches of relevant environmental law coming to the OEP’s attention by other means.

1128 Sub-paragraph (1) gives the OEP powers to undertake an investigation on the basis of a complaint received under paragraph 6 if it considers that the complaint indicates that a relevant public authority may have committed a serious failure to comply with relevant environmental law.

1129 Sub-paragraph (2) gives the OEP powers to undertake an investigation without having received a complaint if it has information obtained by other means, which in its view indicates a relevant public authority may have committed a serious failure to comply with relevant environmental law.

1130 Sub-paragraph (3) sets out the purpose of the investigation i.e. establishing whether a relevant public authority has failed to comply with relevant environmental law.

1131 Under sub-paragraph (4), at the start of an investigation the OEP is required to notify the relevant public authority that it is being investigated. Under sub-paragraph (10), if that public authority is not a Northern Ireland department, the OEP must also notify the "relevant department". Sub-paragraph (11) defines the relevant department as the Northern Ireland department that the OEP considers the most appropriate, taking account of the nature of the public authority being investigated and the nature of the failure/alleged failure. In most cases this will mean that the OEP will notify the department responsible for the policy area in question.

1132 Similarly, when an investigation is concluded, sub-paragraph (5) requires the OEP to provide a report to the relevant public authority, copied to the relevant department if necessary under sub-paragraph (10). The OEP may publish the report in full or part under sub-paragraph (9).

1133 Sub-paragraph (6) allows the OEP the flexibility to delay the preparation of its report if it considers that it may take further enforcement action.

1134 Under sub-paragraph (7), if the OEP has made a review application in relation to the alleged failure to comply with relevant environmental law it is not required to prepare a report. The process for review application" is set out in paragraph 12.

1135 The required contents of the OEP’s report are set out in sub-paragraph (8). The report must include information on whether the OEP considers that a relevant public authority has failed to comply with relevant environmental law, the reasons the OEP came to these conclusions, and any recommendations the OEP may have for the relevant public authority in question and any other authorities.

Duty to keep complainants informed

1136 Paragraph 8 sets out the OEP’s duty to inform a complainant about whether an investigation will be carried out following their complaint and, if so, about the progress of the investigation. Under this paragraph:

● The OEP must inform the complainant if their complaint will not be considered for further investigation on the basis that it was not made in accordance with paragraph 6 - see sub-paragraph (2)(a).

● Where a complaint has been made in accordance with paragraph 6, the OEP must advise the complainant whether or not an investigation into that complaint will be carried out – see sub-paragraphs (2)(b) and (2)(c).

● When a report on an investigation under paragraph 7(5) has been provided to the relevant public authority, sub-paragraph (2)(d)(i) requires the OEP to inform the complainant of this, although it is not obliged to disclose the report to the complainant.

● Where the OEP makes a review application in relation to the failure that was the subject of the complaint, sub-paragraph (2)(d)(ii) requires the OEP to inform the complainant of this.

● Where the OEP publishes a report following the investigation of a complaint, it must provide the complainant with a copy of that report as published in full or in part, as required by sub-paragraph (2)(e).

Information notices

1137 Paragraph enables the OEP to take enforcement action in the form of an "information notice".

1138 Under sub-paragraph (1), the OEP may issue an information notice to a relevant public authority if it has reasonable grounds for suspecting that the authority has failed to comply with relevant environmental law, and it considers that the failure is serious.

1139 Sub-paragraph (2) requires an information notice to describe the alleged failure to comply with relevant environmental law and detail the information that the OEP requires from the relevant public authority in relation to the alleged failure.

1140 Sub-paragraph (3) requires the relevant public authority to respond in writing to an information notice, providing, as far as is reasonably practicable, the information requested.

1141 Sub-paragraph (4) specifies that the relevant public authority must respond within two months from the date on which the notice was given, or by any later date as specified by the OEP in the notice.

1142 Sub-paragraph (5) sets out the information that must be included in a response to the OEP including, if applicable, the steps the relevant public authority now intends to take.

1143 Under sub-paragraph (6), the OEP may withdraw an information notice or issue multiple information notices in relation to the same alleged compliance failure.

Decision notices

1144 Paragraph 10 enables the OEP to take further enforcement action in the form of a "decision notice".

1145 The OEP may issue a decision notice under sub-paragraph (1) if it is satisfied, on the balance of probabilities, that the relevant public authority has failed to comply with relevant environmental law, and it considers that the failure is serious.

1146 Sub-paragraph (2) requires a decision notice to describe the failure to comply with relevant environmental law and the steps the relevant public authority should take in relation to the failure.

1147 Under sub-paragraph (3) the relevant public authority is required to respond in writing to a decision notice within two months from the date the notice was given, or by any later date as specified by the OEP in the notice.

1148 Sub-paragraph (4) requires the written response from the relevant public authority to state whether the authority agrees that there has been a failure to comply with the law and, whether it will take the steps set out in the notice. The response must also specify what other steps (if any) the relevant public authority intends to take in relation to the failure described in the notice.

1149 Sub-paragraph (5) requires the OEP to have issued at least one information notice relating to the compliance failure before it can issue a decision notice (sub-paragraph (5)(a)). It also allows the OEP to withdraw a decision notice (sub-paragraph (5)(b))

Linked notices

1150 Paragraph 11 deals with the possible scenario in which the OEP considers that a notice should be issued to more than one public authority concerning the same or similar breaches of relevant environmental law.

1151 Sub-paragraph (1) gives the OEP the power to issue information or decision notices to more than one relevant public authority and determine that these are ‘linked notices’.

1152 Sub-paragraph(2) allows the relevant department (i.e. the department responsible for the policy area in question) to ask the OEP to designate information or decision notices as linked notices and requires the OEP to have regard to such a request.

1153 Sub-paragraph (3) allows the OEP to designate information notices and decision notices to be linked notices where these also relate to conduct that is the same or similar to the subject of a UK information notice or decision notice.

1154 Sub-paragraph (4) requires the OEP to provide the recipient of an information notice or a decision notice with copies of any linked notices, copies of relevant correspondence between the OEP and the recipient of such linked notices, and, where applicable, copies of relevant correspondence between the OEP and the relevant department. Sub-paragraph (5) sets out what will be considered as "relevant" correspondence in such cases.

1155 Sub-paragraph (6) provides that the obligations set out under sub-paragraph (4) (to provide copies of notices or correspondence) will not apply where the OEP considers that to provide this information would not be in the public interest.

1156 Sub-paragraph (7) provides the meaning of a UK decision notice and a UK information notice.

Enforcement

1157 Paragraph 12 enables the OEP to bring legal proceedings against a relevant public authority in specified circumstances.

1158 Sub-paragraph (1) gives the OEP powers to make a review application in relation to the conduct of a relevant public authority, as long as the conduct in question has been described in a decision notice previously issued to the authority in question as a failure to comply with relevant environmental law.

1159 Sub-paragraph (2) gives the OEP the power to make a review application regarding the conduct of the relevant public authority which takes place after the OEP has issued its decision notice if it considers that the conduct in question is similar or related to the conduct which gave rise to the notice.

1160 Sub-paragraph (3) provides that the OEP may make a review application in relation to conduct of a relevant public authority outside of the circumstances provided for in sub-paragraphs (1) and (2) if certain conditions apply. These are that (a) the conduct constitutes a serious failure to comply with environmental law; and (b) although a decision notice has not been issued in relation to the conduct, it is necessary to make the application to prevent or mitigate serious damage to the natural environment or to human health. The effect of this provision is that the OEP could only make an application for judicial review, without proceeding according to its normal enforcement processes, i.e. without the need to issue an information notice and a decision notice, if it believed that doing so was necessary. This could be the case if, for example, it was of the view that serious environmental damage would have already happened by the time that its normal enforcement procedure reached litigation and a more urgent court judgment was needed.

1161 Sub-paragraph (4) defines a "review application" in this Part of the Schedule as an application for judicial review in the High Court in Northern Ireland. This means that the usual judicial review remedies are available to the court e.g. quashing orders and declarations.

1162 Sub-paragraph (5) makes it clear that the OEP must obtain permission from the court before making a review application.

1163 Sub-paragraph (6) disapplies the usual time limit for bringing a judicial review application.

1164 Sub-paragraph (7) applies to review applications made in line with sub-paragraph (1). Sub-paragraph (7)(a) requires the High Court to be satisfied that a remedy would not substantially prejudice or cause substantial hardship to a third party (a person other than the OEP) before granting it. Sub-paragraph (7)(b) requires that the High Court must also be satisfied that a remedy it granted would not be detrimental to good administration.

1165 Sub-paragraph (8) requires a relevant public authority which has been the subject of a review application to publish a statement upon conclusion of the review proceedings where the High Court makes a finding that the public authority has failed to comply with relevant environmental law – and this finding has not been overturned on appeal. This must set out the future action it plans to take.

1166 Sub-paragraph (9) requires a public authority to publish the statement as provided for in sub-paragraph (8) within two months of the day that proceedings, including any appeal, conclude.

Intervention in judicial review

1167 Paragraph 13 permits the OEP to intervene in an application for a relevant judicial review brought by another person or body. It enables the OEP to apply to intervene in a third party judicial review (including appeal proceedings) against a relevant public authority concerning an alleged failure to comply with relevant environmental law.

Duty of the OEP to involve the relevant department

1168 Paragraph 14 ensures that the relevant department i.e. the Northern Ireland department with policy responsibility for the area in question (see definition in paragraph 7(11)) is made aware of a relevant information or decision notice or of a review application.

1169 Where the recipient of an information or decision notice is not a Northern Ireland department, sub-paragraph (1)(a) requires the OEP to provide a copy of the notice to the relevant department, as well as a copy of any correspondence between the OEP and the recipient of the notice that relates to the notice. Sub-paragraph (1)(b) requires the OEP to also provide the recipient of a notice with a copy of any correspondence it has with the relevant department regarding the notice.

1170 Sub-paragraph (2) provides that the OEP is not obliged to provide copies of notices or correspondence set out in sub-paragraph (1) if it considers that to do so would not be in the public interest.

1171 Where the OEP makes a review application against a relevant public authority which is not a Northern Ireland department, sub-paragraph (3) requires the OEP to provide the relevant department with a copy of the application and a statement which sets out the OEP’s opinion on whether the relevant department should participate in the review proceedings.

Public statements

1172 Paragraph 15 sets out the OEP’s duties with respect to public statements such as press releases.

1173 Sub-paragraph (1) requires the OEP to publish a public statement whenever it serves an information or decision notice, makes a review application, or applies to intervene in a judicial review. This sub-paragraph also sets out the information that this statement must contain.

1174 Sub-paragraph (2) provides that the OEP is not required to publish a statement if it considers that it would not be in the public interest to do so.

Disclosures to the OEP

1175 Paragraph 16 deals with the circumstances in which a person must – and when they are not obliged - to provide information to the OEP.

1176 Sub-paragraph (1) of this paragraph sets out that no obligation of secrecy, whether set out in legislation or not, prevents someone from providing the OEP with information. This sub-paragraph applies if the information is in connection with an investigation (under the powers set out in paragraph 7), an information notice or decision notice or when complying with a request for information in response to an information notice (in accordance with paragraph 9(3)(b)).

1177 Sub-paragraph (2) qualifies sub-paragraph (1), by providing a public authority with an exemption from the requirement to provide information if it would be entitled or required to withhold that information in legal proceedings on the grounds of either legal professional privilege or public interest immunity.

1178 Sub-paragraph (3) provides that no obligation of secrecy, statutory or otherwise, restricts the Northern Ireland Public Services Ombudsman from providing information to the OEP, if this is done for purposes connected with the exercise of the OEP’s functions under paragraph 7.

1179 Sub-paragraph (4) confirms that nothing in this Part of the Schedule requires or authorises any disclosure of information which would contravene the data protection legislation, even if the disclosure would be in accordance with the provisions in this Part of the Schedule.

1180 Sub-paragraph (5) defines the meaning of the phrase "the data protection legislation" for the purposes of this paragraph and is self-explanatory.

Confidentiality of proceedings

1181 Paragraph 17 deals with the circumstances in which the OEP and relevant public authorities must not disclose information obtained during enforcement proceedings by the OEP.

1182 Sub-paragraph (1)(a) sets out that the OEP cannot disclose information where it has been provided by a relevant public authority as a response to information requested by the OEP in an information notice (as provided for in paragraph 9(3)(b)). Sub-paragraph (1)(b) provides that the OEP also cannot disclose correspondence between the OEP and the relevant public authority in respect of information or decision notices. This includes the notices themselves.

1183 Circumstances where the prohibition on disclosure does not apply and the OEP is therefore able to disclose the information, are covered under sub-paragraph (2).

1184 Sub-paragraph (3) prohibits a relevant public authority that is in receipt of an information notice or decision notice from disclosing correspondence between it and the OEP in relation to the notice – including the notice itself. This prohibition also applies to correspondence between the OEP and any other relevant public authority in relation to the relevant notice.

1185 Sub-paragraph (4) sets out the circumstances where the prohibition in sub-paragraph (3) does not apply.

1186 Sub-paragraph (5) sets out that that the OEP can only give its consent for disclosure of an information or a decision notice when it has concluded it intends to take no further steps under this Part of this Schedule or under Chapter 2 of Part 1 of this Bill. Sub-paragraph (6) ensures that, if consent has been requested by a relevant public authority, the OEP cannot withhold that consent for disclosure of correspondence if it has concluded it intends to take no further steps under this Part of this Schedule or Chapter 2 of Part 1 of this Bill.

1187 Sub-paragraph (7) provides that any information which is non-disclosable under this paragraph and which is held by the OEP or relevant public authorities is to be regarded as "environmental information" in accordance with the Environmental Information Regulations 2004 and the Environmental Information (Scotland) Regulations 2004 and held, for the purposes of those regulations, in connection with confidential proceedings.

Meaning of UK environmental law and Northern Ireland environmental law

1188 Paragraph 18 defines "environmental law" for the purpose of determining the range of legislation which falls within the remit of the OEP and with respect to which the OEP can exercise its scrutiny, advice, complaints and enforcement functions in Northern Ireland.

1189 Sub-paragraph (1) defines "UK environmental law" for the purpose of this Part of this Schedule, as meaning anything which is environmental law for the purposes of Part 1 of this Act (see clause 40).

1190 Sub-paragraph (2) defines "Northern Ireland environmental law" for the purpose of this Part of this Schedule as meaning any Northern Ireland legislative provision that meets the dual requirement of being mainly concerned with one of the matters described in sub-paragraph (3) and not being explicitly excluded under sub-paragraph (4). It is important to note that the definition of Northern Ireland environmental law applies to legislative provisions on an individual basis (ie specific sections or sub-sections of an Act or regulations) rather than entire legal instruments. This means that even if most of an Act or set of regulations does not meet these conditions, any specific provisions in the Act or regulations which do meet the conditions should be considered as Northern Ireland environmental law. For further guidance see the Explanatory Notes on clause 40.

1191 Sub-paragraph (3) defines environmental matters as: (a) protecting the natural environment from the effects of human activity; (b) protecting people from those effects; (c) maintaining, restoring or enhancing the natural environment; and (d) functions such as monitoring and advising on (a) – (c).

1192 Sub-paragraph (4) sets out matters which are explicitly excluded from the definition of Northern Ireland environmental law:

● Disclosure of or access to information. These matters are excluded in order to avoid overlap between the remit of the OEP and that of the Information Commissioner’s Office, which oversees and, where necessary, takes action to enforce public authorities’ compliance with the Environmental Information Regulations 2004.

● Taxation, spending or the allocation of resources within government.

1193 Sub-paragraph (5) defines "Northern Ireland legislative provision" as any legislative provision contained in, or an instrument made under, Northern Ireland legislation, and any legislative provision not covered by sub-paragraph (5)(a) which would be within the legislative competence of the Northern Ireland Assembly, if contained in an Act of that Assembly made without the Secretary of State’s consent.

1194 Sub-paragraph (6) provides that the Department may make new regulations specifying Northern Ireland legislative provisions which are, or are not, Northern Ireland environmental law. Before making these regulations, the Department must carry out a consultation process which must include consulting the OEP (sub-paragraph (7)). Sub-paragraph (8) sets out that any regulations made under sub-paragraph (6) will be subject to the affirmative procedure in the Northern Ireland Assembly.

Interpretation of Part 1 of this schedule: general

1195 Paragraph defines terms used in Part 1 of this Schedule and is self-explanatory.

Part 2: Amendments of the OEP’s general functions

1196 Part 1 of this Schedule sets out the Northern Ireland-specific provisions with respect to the OEP.

1197 Paragraph 20 clarifies that Part 2 of this Schedule (paragraphs 21 to 28) amends the general OEP provisions in Part 1 of the Bill to reflect the extension of the OEP’s geographical coverage to Northern Ireland.

1198 Paragraph 21 amends clause 20 of the Bill, which sets out the principal objective of the OEP and other provisions about its functions. Specifically, sub-paragraphs (2) to (6) make the changes necessary to reflect the application of the OEP’s statutory functions in Northern Ireland. For example, sub-paragraph (4) specifies that the OEP, when prioritising its enforcement cases, should consider whether a case raises a point of environmental law or Northern Ireland environmental law of general public importance.

1199 Paragraph 22 amends clause 21 to require the laying of the OEP’s strategy before the Northern Ireland Assembly as well as before Parliament.

1200 Paragraph 23 extends the duty to cooperate with the OEP as set out in clause 22 of the Act to Northern Ireland public authorities and other public authorities exercising Northern Ireland devolved functions. Specifically, the amendment made by sub-paragraph (2)(a) indicates that Northern Ireland departments are not exempt from the statutory duty on public authorities to cooperate with the OEP. The amendment made by sub-paragraph (2)(b) excludes any person whose only public functions are devolved functions in Northern Ireland from the exemption to cooperate with the OEP. The amendment made by sub-paragraph (4) makes explicit mention of the implementation bodies as defined in section 55 of the Northern Ireland Act 1998 clarifying that they are only required to cooperate in relation to their functions in Northern Ireland.

1201 Paragraph 24 amends clause 32 of the Bill to enable the OEP to designate notices issued to UK public authorities and relevant public authorities as "linked notices".

1202 Paragraph 25 amends clause 38 of the Bill (confidentiality of proceedings) to include appropriate provision for Northern Ireland. Specifically, sub-paragraph (2)(b) extends the provision to facilitate the coordination of an investigation between the OEP and the Northern Ireland Public Services Ombudsman.

1203 Paragraph 26 sets out the amendments required to clause 41 of the Bill (interpretation of Part 1 of the Bill) to ensure appropriate provision for Northern Ireland and redefines what is meant by "devolved" to no longer include Northern Ireland.

1204 Paragraph 27 makes various amendments to Schedule 1 (the Office for Environmental Protection) to provide for the inclusion of Northern Ireland in the OEP. This includes making provision for the Department to be jointly responsible for the appointment of the chair and to be consulted on the appointments of the non-executive members and the chief executive. The amendments provide for a non-executive "Northern Ireland Member" to be appointed to the board by the Department – setting out the experience that member must have – and provides for any resignations or removals from office of non-executive and Northern Ireland members. Paragraph 27 also makes provisions in relation to funding of the OEP and reporting requirements.

1205 Paragraph 28 makes amendments to Schedule 2 (improving the natural environment: Northern Ireland) to reflect the extension of the OEP’s geographical coverage to Northern Ireland.

Schedule 4: Producer Responsibility Obligations

1206 Schedule 4 amends sections 93 and 94 of the Environment Act 1995. The amendments to section 93 are set out in paragraph 2 of the Schedule. Amendments to section 94 are set out in paragraph 3 of the Schedule. These amendments complement provisions made elsewhere in the Act for extended producer responsibility. They also allow for producer responsibility obligations to be introduced for the purpose of preventing products and materials becoming waste and the redistribution of surplus products or materials.

1207 Sub-paragraphs (2), (4)(a), (5) and (9) of paragraph 2 substitute "Secretary of State" with "relevant national authority". The relevant authority is the Secretary of State in relation to England, Welsh Ministers in relation to Wales, and Scottish Ministers in relation to Scotland. The Secretary of State may make regulations on behalf of Welsh and Scottish Ministers but only with their consent. These changes are also made where relevant in section 94.

1208 Sub-paragraph (3) of paragraph 2 inserts into section 93 new subsection (1A). This restates the purpose for which regulations under section 93 may be made, including the added purpose of preventing a product or material becoming waste and for the redistribution of products or materials.

1209 Sub-paragraphs (6) and (7) of paragraph 2 delete sections 93(4) and 93(5). Subsection (4) is restated in subsection (1A)(b). Subsection (5) is deleted, and the matters that the relevant national authority must take into account when making regulations restated in the amended section 93(6) (for which see below). This amendment removes the requirement to set producer responsibility obligations as a target, but does not preclude targets being set.

1210 Sub-paragraph (8) of paragraph 2 amends section 93(6), which requires the relevant national authority to be satisfied the regulations being made will produce an economic or environmental benefit and achieve the purposes set out in subsection (1A); and burdens imposed by regulations are imposed on persons most able to make a contribution to securing the benefits set out in subsection (1A). The amendment to section 93(6)(e) makes clear that obligations imposed by the regulations need not be directly contributing towards any targets, but may still be contributing to the environmental or economic benefits of the system and the purposes set out in subsection (1A).

1211 Sub-paragraph (10) of paragraph 2 inserts new sections 93(7A) and 93(7B). New section 93(7A) defines the term "relevant national authority". The relevant authority is the Secretary of State in relation to England, Scottish Ministers in relation to Scotland and Welsh Ministers in relation to Wales. The Secretary of State may make regulations on behalf of Wales and Scotland but only with Welsh or Scottish Ministers consent (see new section 93(7B)).

1212 Sub-paragraph (11) of paragraph 2 amends the definition of producer responsibility obligations in section 93(8) to remove reference to targets. This amendment means regulations will not need to specify or describe a target to be achieved by the producer but does not prevent targets being set.

1213 Sub-paragraphs (12) to (14) of paragraph 2 amend sections 93(9) to 93(12), and insert new section 93(13). This is to reflect the differing Parliamentary procedure applicable to regulations made in England, in Scotland and in Wales.

1214 Sub-paragraph (1) of paragraph 3 introduces amendments to section 94, which sets out what supplementary provision regulations made under section 93 may contain.

1215 Sub-paragraph (2)(a)(ii) of paragraph 3 amends section 94(1)(c) to add a reference to redistribution. This makes section 94 consistent with the amended section 93, which now also refers to redistribution. This allows any targets set as a producer responsibility obligation to be achieved through redistribution as well as recovery, recycling, or re-use.

1216 Sub-paragraph (2)(b) of paragraph 3 inserts new sections 94(1)(da) and 94(1)(db). New section 94(1)(da) allows for a producer responsibility obligation to be met in whole or in part by the payment of a sum of money. Such a provision tends to be referred to as a "compliance fee".

1217 New subsection 94(1)(db) and the amendment to subsection 94(1)(e) made by paragraph 3(2)(c) allow for persons subject to a producer responsibility obligation to be mandated to join a compliance scheme., and for the registration of persons subject to a producer responsibility obligation, whether they are members of a compliance scheme or not.

1218 Sub-paragraph (2)(d) of paragraph 3 substitutes "exemption scheme" with "compliance scheme". (Sub-paragraphs (8)(c) and (8)(g) of paragraph 3 insert definitions for "compliance schemes" and "registered compliance schemes" in subsection 94(6). Sub-paragraphs (8)(d) and (8)(h) of paragraph 3 remove the definitions of "exemption scheme" and "registered exemption scheme from subsection 94(6).) A compliance scheme is a scheme under which the producer responsibility obligations of members of the scheme are discharged by the compliance scheme on the members’ behalf.

1219 Sub-paragraph (2)(e) of paragraph 3 inserts new section 94(1)(fa). Amendments to section 94(1)(f) and new section 94(1)(fa) concern the approval of compliance schemes and allow the establishment of a compliance scheme by a person appointed by the relevant national authority.

1220 Sub-paragraph (3) of paragraph 3 inserts new section 94(1A). This allows for the regulator to be specified in regulations, and for a different regulator to be appointed for different producer responsibility schemes or different functions or areas. "Appropriate Agency" and "new agency" are substituted by "regulator" throughout section 94 to accommodate new section 94(1A). (Sub-paragraphs (8)(a) and (e) of paragraph 3 delete the definitions of "appropriate Agency" and "new Agency" in section 94(6).) These changes allow for the regulator to be someone other than the Environment Agency or devolved equivalents.

1221 Sub-paragraph (5) of paragraph 3 deletes section 94(3), and sub-paragraph (7) of paragraph 3 deletes section 94(5). These are part of the changes required in relation to the regulator. Sub-paragraph (2)(l) of paragraph 3 substitutes subsection 94(1)(p) to make provision for charges to be paid to the regulator as a means of recovering costs incurred by the regulator in relation to its producer responsibility functions.

1222 Sub-paragraph (8) of paragraph 3 amends definitions in section 94(6) to reflect changes made elsewhere in section 94.

Schedule 5: Producer Responsibility Obligations: Northern Ireland

1223 Schedule 5 amends relevant articles of the Producer Responsibility Obligations (Northern Ireland) Order 1998. These amendments complement provisions made elsewhere in the Act for extended producer responsibility and changes made to the equivalent GB-wide powers in the Environment Act 1995. They also allow for producer responsibility obligations to be introduced for the purpose of preventing products and materials becoming waste and the redistribution of surplus products or materials.

1224 Paragraph 2 amends Article 2, which sets out the definitions of terms used in the Order. Paragraph 2 sets out definitions for new terms used in the Order, amends existing terms to mirror amendments made elsewhere and deletes the definition of terms no longer used. Paragraph 2(c) updates the Department’s name and a new reference to the Department is added to Article 7 by paragraph 7.

1225 Sub-paragraph (3) inserts new Article 2(2A). This allows for the regulator to be specified in regulations, and for a different regulator to be appointed for different producer responsibility schemes or different functions. All references to "Department" in relation to enforcement functions in Articles 2 and 4 are substituted by "regulator" to accommodate new Article 2(2A). These changes allow for the regulator to be someone other than the Department.

1226 Paragraph 3 amends Article 3, which provides for regulations to be made that impose producer responsibility obligations on specified persons and in relation to specified products or materials. Amendments are made to Article 7 by paragraph 6, so that regulations can be made either by the Department or, if the Department consents, by the Secretary of State. This is so that producer responsibility regulations can be made on a UK-wide basis. Article 3 is amended by sub-paragraphs (2), (4), (5) and (9) of paragraph 3, and paragraph 4 amends Article 4 to reflect this change where relevant. Amendments made by paragraph 6 to Article 7 (regulations and directions) also set out the Parliamentary procedure applicable to regulations made by the Secretary of State on behalf of Northern Ireland. These are subject to the affirmative Parliamentary procedure, unless they relate to the varying of targets, in which case they are subject to the negative procedure.

1227 Sub-paragraph (3) inserts new Article 3(1A). This, together with other amendments, enables producer responsibility obligations to be imposed for the purpose of preventing a product or material becoming waste and for the redistribution of products or materials.

1228 Sub-paragraphs (6) and (7) delete paragraphs (4) and (5) of Article 3. Article 3(4) is restated in Article 3(1A)(b). The matters the Department or the Secretary of State must be satisfied of when making regulations are now restated in amended Article 3(6) (for which see below). The effect of this amendment is that producer responsibility obligations no longer have to be set only as a target, but this does not preclude targets being set. As a consequence, amendments are made to the definition of "producer responsibility obligation" in Article 2(2) by sub-paragraph (2)(f) and the definition of "relevant targets" is deleted.

1229 Sub-paragraph (8) amends Article 3(6), which requires the Department or the Secretary of State, before exercising the power to make regulations, to be satisfied those regulations will produce an economic or environmental benefit and achieve the purposes set out in Article 3(1A); and that burdens imposed by regulations are imposed on persons most able to make a contribution to securing the benefits set out in Article 3(1A). The amendment to Article 3(6)(e) makes clear that obligations imposed by the regulations need not be directly contributing towards any targets, but may still be contributing to the environmental or economic benefits of the system and the purposes set out in Article 3(1A).

1230 Paragraph 4 amends Article 4, which sets out what supplementary provision regulations made under Article 3 may contain.

1231 Sub-paragraph (2) amends Article 4(1).

1232 Sub-paragraph (2)(a)(ii) amends Article 4(1)(c) to add a reference to redistribution. This makes Article 4 consistent with the amended Article 3, which now also refers to redistribution.

1233 Sub-paragraph (2)(b) inserts new sub-paragraphs (da) and (db) into Article 4(1). New sub-paragraph (da) allows for a producer responsibility obligation to be met in whole or in part by the payment of a sum of money. Such a provision tends to be referred to as a ‘compliance fee’.

1234 New sub-paragraph (db) and the amendment to Article 4(1)(e) made by sub-paragraph (2)(c) allow for persons subject to a producer responsibility obligation to be mandated to join a compliance scheme. Also, to require registration of persons subject to a producer responsibility obligation, whether they are members of a compliance scheme or not.

1235 Sub-paragraph (2)(d) substitutes "exemption scheme" with "compliance scheme". Sub-paragraphs (2)(b) and (2)(g) insert definitions for "compliance schemes" and "registered compliance schemes". Sub-paragraphs 2(d) and (2)(h) remove the definitions of "exemption scheme" and "registered exemption scheme". Sub-paragraph (2)(e) amends the definition of "operator" in line with the change from exemption to compliance scheme. A compliance scheme is a scheme under which the producer responsibility obligations of members of the scheme are discharged by the compliance scheme on the members’ behalf.

1236 Sub-paragraph (2)(e) inserts new Article 4(1)(fa). Amendments to Article 4(1)(f) and new Article 4(1)(fa) concern the approval of compliance schemes and allow the establishment of a compliance scheme by a person appointed by the Department or the Secretary of State.

1237 Sub-paragraph (5) deletes Article 4(4). This is part of the changes required in relation to the regulator. Sub-paragraph (2)(m) substitutes Article 4(1)(o) to make provision for charges to be paid to the regulator as a means of recovering costs incurred by the regulator in relation to its producer responsibility functions.

Schedule 6: Producer responsibility for disposal costs

1238 Schedule 6 makes provision for regulations under which those involved in the manufacture, processing, distribution or supply of products or materials may be required to pay for or contribute to the costs of disposing of those items. Part 1 of the Schedule covers disposal costs, and the appointment of one or more administrators and Part 2 covers enforcement and the appointment of one or more regulators.

Part 1: Requirements

General power

1239 Paragraph 1 sets out the power for the relevant national authority to make regulations to require the payment of sums by specified persons relating to the disposal of specified products or materials. Sub-paragraph (2) sets out that only those involved in manufacturing, processing, distributing or supplying the specified products or materials can be required to meet or contribute to such costs.

"Disposal costs" and "disposal"

1240 Paragraph 2 makes provision for determining what disposal costs are. These costs may include the costs of collecting, transporting, sorting, and treating products or materials for disposal. They may also include the costs of providing the public with information about the disposal of products, for example through communication campaigns. Costs in relation to products or materials that have been disposed of unlawfully may also be included (for example, the costs of clearing up products or materials that have been littered or fly-tipped). Sub-paragraph (2) clarifies that "disposal" includes the re-use, redistribution, recovery, and recycling of products or materials. Sub-paragraph (4) allows for disposal costs to be calculated in accordance with provision made in the regulations.

Calculation of sums payable

1241 Paragraph 3 allows for the amount to be paid to be calculated in accordance with the regulations and for this amount to vary according to the design or composition of a product or materials, or the methods by which they were made. For example, a producer of easily recycled products might pay less, and producers of unrecyclable products might pay more.

Administration

1242 Paragraph 4 provides for the appointment of one or more administrators. An administrator’s role is to manage provision made in relation to disposal costs in the regulations.

Registration

1243 Paragraph 5 makes provision for those who are required to pay disposal costs to register with an administrator and the payment of a registration fee. The administrator may also be required to register with an enforcement authority appointed by regulations made under this Schedule. Provision is also made for the regulations to establish the process for registering with an administrator. The regulations may require any registers that are made to be published or made available for inspection.

Payment of sums

1244 Paragraph 6 outlines the provisions that regulations may make regarding payments of sums to an administrator. This includes how the sums paid are to be held by the administrator. This might be, for example, into a bank account.

Distribution of sums paid

1245 Paragraph 7 makes provision for sums paid to an administrator to be distributed to persons who have incurred disposal costs in relation to the products or materials covered by the regulations. These sums can be distributed directly by the administrator to whom they have been paid, or to another administrator who then distributes among such persons. For example, an administrator may distribute sums to local authorities who have incurred costs in collecting and disposing of the products to which the regulations apply.

Repayment of sums paid

1246 Paragraph 8 allows for sums paid to an administrator to be paid back, in whole or in part, to the person who paid them. It allows for regulations to set out how the amount to be re-paid is calculated and the conditions under which any repayment may be made. For example, a repayment might be made if a material has been recycled into a high value application.

Charges

1247 Paragraph 9 makes provision for the payment of a charge to administrators to cover the administrator’s costs incurred in relation to its functions.

Consultation requirements

1248 Paragraph 10 sets out that the relevant national authority must first consult the relevant stakeholders before making regulations under this Schedule.

Part 2: Enforcement

General power

1249 Paragraph 11 makes provision for the relevant national authority to make regulations for the enforcement of regulations made under Part 1 of this Schedule.

Powers to confer functions and Monitoring compliance

1250 Paragraphs 12 and 13 allow for functions to be conferred on one or more enforcement authority. These functions may include the exercise of discretion, to monitor compliance with regulations, and to provide guidance about the exercise of its functions available. Regulations may also provide for a person to be authorised to exercise functions on behalf of an enforcement authority.

Records and information

1251 Paragraph 14 makes provision for the keeping of records and to whom records or information is to be provided to.

Powers of entry etc

1252 Paragraph 15 allows for regulations to confer on an enforcement authority powers of entry, inspection, examination, search and seizure.

Sanctions

1253 Paragraph 16 makes provision for penalties for a breach of a requirement in regulations. These can be criminal or civil sanctions. A criminal offence (punishable with a fine) can only be imposed for breach of a civil sanction or for the obstruction of or failure to assist an enforcement authority.

Costs

1254 Paragraph 17 makes:

● provision for the payment of a charge to cover enforcement costs incurred by an enforcement authority in performing its functions under the regulations; and

● provision for a court order to include an enforcement authority’s costs incurred in relation to the matter the court or tribunal has dealt with

Consultation requirements.

1255 Paragraph 18 sets out that the relevant national authority must first consult the relevant stakeholders before making regulations under this Schedule.

Schedule 7: Resource efficiency information

Part 1: Requirements

General power

1256 Paragraph 1(1) is a power which enables the relevant national authority, as defined in section 48, to make product-specific regulations setting requirements to provide information about a product’s resource efficiency.

1257 Sub-paragraph (2) exempts food products, medicinal products and veterinary medicinal products from being subject to regulations made under this measure. These types of products are already extensively regulated and it is not considered appropriate to impose further regulation relating to provision of information about their resource efficiency.

1258 Sub-paragraph (3) allows regulations to be made in relation to the packaging of those products listed in sub-paragraph (2).

Meaning of "information about resource efficiency"

1259 Paragraph 2(1) defines "information about resource efficiency" as any information which is relevant to the product’s impact on the natural environment and which falls within sub-paragraph (2) or (3). "Natural environment" has the same meaning as in section 39.

1260 Sub-paragraphs (2) and (3) together provide an exhaustive list of the types of information about a product which can be required to be provided under these powers. Sub-paragraph (2) includes information relating to the product’s expected life, durability, reparability and upgradeability and the ways in which it can be disposed of at the end of its life. For example, regulations might require information to be given about whether spare parts are available to accommodate repair, the potential to remanufacture the product or whether the materials used in the product are recyclable. Sub-paragraph (3) includes types of information relating to the impact of the product on the natural environment; these include the materials and techniques used in its manufacture, the resources consumed during its production or use, and the pollutants (such as greenhouse gases) released or emitted during production, which includes both the extraction of raw materials and the manufacturing process, as well as use or disposal.

Persons on whom requirements may be imposed

1261 Paragraph 3 sets out the persons who may be subject to requirements under regulations made under this measure. This is limited to persons who are involved in the manufacture, import, distribution, sale or supply of the product. This may include someone who supplies a product by way of hire or lease.

Examples of provision that may be made

1262 Paragraph 4 gives examples of provision that may be made. These include provisions around:

● How information about the product is to be provided. This may, for example, be through affixing a label or through providing information in a manual accompanying the product or on the manufacturer’s website.

● Giving certain bodies the authority to determine whether the product has the characteristics which it is described to have on the label or in other information accompanying the product. For example, if a label is required to be affixed to packaging in order to state whether or not it is a recyclable, regulations may contain a provision giving someone the function of determining whether the packaging is indeed recyclable or not. This body will also publish the results of their determinations.

● Specifying a scheme for classifying products, such as a ‘rating label’ scheme assessing how well products meet criteria relating to resource efficiency.

● Requiring information about a product to be determined according to specified criteria. This criteria could be based on the results of the determinations or classification schemes set out above.

Consultation etc requirements

1263 Paragraph 5 contains the steps the relevant national authority must follow, and the matters to which the authority must have regard, before making product specific regulations under Part 1 of this Schedule.

1264 Sub-paragraph (1) sets out that they must consult any persons they consider appropriate, as well as having regard to the matters set out in sub-paragraph (2). These are that the product has a significant impact on natural resources at any stage of its production, use or disposal; that the benefits of the regulations outweigh the costs associated with complying with them; and whether any exemptions or special provisions should made for smaller businesses.

Interpretation

1265 Paragraph 6 contains definitions for the purposes of Part 1 of this Schedule. In particular, it defines "product" as including a product which is a component part of, or packaging of another product. This could for example include food or drinks packaging, which could be labelled with a ‘recyclable/ non-recyclable’ marking.

Part 2: Enforcement

General power

1266 Paragraph 7 gives the relevant national authority power to make regulations containing provision for the enforcement of resource efficiency information requirements.

Powers to confer functions

1267 Paragraph 8(1) sets out that regulations may confer enforcement functions on one or more bodies. Those bodies will be specified in the regulations.

1268 Sub-paragraph (2) sets out that these functions may involve the enforcement body exercising discretion in relation to the exercise of their enforcement functions. It also outlines that the enforcement body may authorise another body to carry out one or more of its functions on its behalf.

1269 Sub-paragraph (3) sets out that regulations may also include a provision requiring the enforcement authority to develop guidance relating to its enforcement activities.

Monitoring compliance

1270 Paragraph 9 sets out that regulations may include provisions on compliance with the regulations. This includes provisions which confer the function of monitoring compliance with resource efficiency information requirements onto an enforcement authority.

Records and information

1271 Paragraph 10 sets out that regulations may include provision on records and information relevant to monitoring the enforcement of these measures. These may require persons who have obligations to keep records and provide them to an enforcement authority if needed. The regulations may also provide that the enforcement authority makes reports or provides information about their enforcement activity to the relevant national authority.

Powers of entry etc

1272 Paragraph 11 sets out that regulations may confer on enforcement authorities powers of entry, inspection, examination, search and seizure. Regulations may make provision that such powers are only exercisable under the authority of a warrant, issued by a justice of the peace, sheriff, summary sheriff or lay magistrate. Regulations may also make provision about how applications for and the execution of warrants may be made. Regulations must provide that where powers are conferred to either enter premises by force, enter a private dwelling without the consent of the occupier; or search and seize material, the authority of a warrant must be obtained.

Sanctions

1273 Paragraph 12 enables regulations to include provision for the imposition of civil sanctions or creating criminal offences.

1274 Sub-paragraph (1)(a) sets out that regulations may provide for the imposition of civil sanctions in the following circumstances:

● for failure to comply with any of the requirements under Parts 1 and 2 of these regulations; or

● where there has been an obstruction of or failure to assist a person carrying out enforcement functions.

1275 Sub-paragraph (1)(b) sets out that regulations may also include provision on appeals against such sanctions.

1276 Sub-paragraph (2) sets out that regulations may include provision on creating criminal offences punishable with a fine under the following circumstances:

● in respect of failures to comply with civil sanctions imposed under Part 2 of this schedule; or

● where there has been the obstruction of, or failure to assist, an enforcement authority when they are carrying out their functions.

1277 Sub-paragraph (3) defines "civil sanction" as a sanction of a kind referred to in Part 3 of the Regulatory Enforcement and Sanctions Act 2008 ("the 2008 Act") – that is, a fixed monetary penalty, discretionary requirement, stop notice or enforcement undertaking.

1278 Sub-paragraph (4) outlines that regulations may include provision for the imposition of sanctions of that kind, whether or not the enforcement authority is a regulator or the conduct in respect of which the sanction is imposed is a relevant offence for the purposes of Part 3 of the 2008 Act, or the relevant national authority may make provision for the imposition of sanctions under that Part.

Costs

1279 Paragraph 13(a) sets out that regulations may include provision requiring persons subject to resource efficiency requirements to pay costs incurred by an enforcement authority in administering and enforcing those requirements. This power could be used, for example, to enable an enforcement authority to charge a manufacturer or supplier its costs of testing a product which fails to comply with resource efficiency requirements.

1280 Sub-paragraph (b) provides that regulations may authorise a court or tribunal to award costs incurred by the enforcement authority.

Consultation requirement

1281 Paragraph 14 requires the relevant national authority to consult before making enforcement regulations.

Schedule 8: Resource efficiency requirements

Part 1: Requirements

General power

1282 Paragraph 1(1) is a power which enables the relevant national authority, as defined in section 49, to make product-specific regulations setting requirements relating to a product’s resource efficiency.

1283 Sub-paragraph (2) exempts energy-related products as defined in the Ecodesign for Energy-Related Products Regulations 2010 (S.I. 2010/2617)), food products, medicinal products and veterinary medicinal products from being subject to regulations made under this measure. The resource efficiency of energy-related products may be regulated under separate powers. Food and medicines are already extensively regulated so it is not considered appropriate to impose further regulation relating to resource efficiency of those products.

1284 Sub-paragraph (3) allows regulations to be made in relation to the packaging of those products listed in sub-paragraph (2).

Meaning of "resource efficiency requirements"

1285 Paragraph 2(1) defines "resource efficiency requirements" as any requirement which is relevant to the product’s impact on the natural environment and which falls within sub-paragraphs (2) or (3). "Natural environment" has the same meaning as in section 39.

1286 Sub-paragraphs (2) and (3) together provide an exhaustive list of types of resource efficiency requirements which may be made about a product. Sub-paragraph (2) includes requirements relating to aspects of the product’s design which affect its expected life, the product’s durability, repairability, and upgradeability, including potential for being remanufactured and the ways in which it can be disposed of at the end of its life. This would enable, for example, a requirement that the product is designed so it can be disassembled, and that spare parts are to be made available in order to facilitate repair. It would also enable a requirement for materials used in the product to be recyclable.

1287 Sub-paragraph (3) includes other requirements relating to the impact of the product on the natural environment: these include the materials and techniques used in its manufacture, the resources consumed during its production or use (for example, water or fuel), and the pollutants (such as greenhouse gases) released or emitted during its production, which includes extraction of raw materials, as well as use or disposal. This would enable, for example, a requirement that timber used in a product must be sustainably sourced.

1288 Sub-paragraph (4) provides for resource efficiency standards to be specified either in the regulations or by reference to standards prepared by a third person, which may be pre-existing standards such as an ISO standard.

Persons on whom requirements may be imposed

1289 Paragraph 3 sets out the persons who may be subject to requirements under regulations made pursuant to this measure. These are limited to those who are involved in the manufacture, import, distribution, sale or supply of the product. This may include someone who supplies a product by way of hire or lease.

Examples of provision that may be made

1290 Paragraph 4 gives examples of provisions that may be made. These include, in sub-paragraph (1), provisions which prohibit a product from being distributed, sold or supplied if it fails to meets the requirements in the regulation, and provisions requiring persons involved in a product’s supply chain to keep records or information about the product and provide this to other such persons where appropriate.

1291 Sub-paragraph (2)(a) sets out that regulations may also include provision about how and by whom determinations about a product’s compliance with resource efficiency regulations may be made. Sub-paragraph (2)(b) enables regulations to provide for appeals against such determinations. Sub-paragraph (2)(c) enables provision to be made about evidencing a product’s compliance with resource efficiency requirements, for example requirements to affix a label or apply a marking to a product.

Consultation etc requirements

1292 Paragraph 5 sets out the steps the relevant national authority must follow, and matters of which the authority must be satisfied, before making product-specific regulations under Part 1 of this Schedule.

1293 Sub-paragraph (1) requires the relevant national authority to consult such persons as the authority considers appropriate, and to publish for the purposes of the consultation an assessment of the matters of which it is required to be satisfied before making regulations, and a draft of the regulations.

1294 Under sub-paragraphs (2) to (4), those matters are:

● that the product has a significant impact on the natural environment (if there are no existing regulations under Part 1 of this Schedule applying to the product);,

● that the regulations would be likely to reduce that impact (in all cases);

● that the benefits would be significant as against the likely costs of the regulations; and

● that a reduction in the product’s environmental impact could not be achieved as effectively by other means.

1295 Sub-paragraph (5) sets out that the relevant national authority must also consider whether exemptions should be given or other special provision made for smaller businesses. "Smaller businesses" is not defined in the Schedule, so that there is flexibility for regulations relating to different products to apply exemptions or special provisions to different descriptions of smaller businesses. The need for exemptions or special provisions, and the businesses to which they should apply, will be considered as part of the impact analysis.

Interpretation

1296 Paragraph 6 contains definitions for the purposes of Part 1 of this Schedule. In particular, it defines "product" as including a product which is a component part of, or packaging for, another product. A component part could, for example, be the engine of a vehicle.

Part 2: Enforcement

1297 This Part gives the relevant national authority powers to make regulations containing provision for the enforcement of resource efficiency requirements. The powers are identical to those in Part 2 of Schedule 7 (resource efficiency information).

Schedule 9: Deposit schemes

Power to establish deposit schemes

1298 Paragraph 1 provides a general power for the "relevant national authority" (as defined in clause 50(2)) to make regulations establishing deposit schemes.

1299 Sub-paragraph (1) provides that regulations can be made for the purposes of sustaining, promoting or securing an increase in recycling, reuse, or to reduce the incidence of littering or fly-tipping.

1300 Sub-paragraph (2) sets out what a deposit scheme is. This is a scheme under which a person supplied with a deposit item by a scheme supplier (this might be a producer, retailer or distributor) pays the supplier an amount (the deposit) and a person who gives a deposit item to a scheme collector (this might be a retailer or to another return point) is then entitled to be paid a refund in respect of that item.

1301 Sub-paragraph (3) sets out what a deposit item is. This is an item specified in regulations that is supplied by way of sale or in connection with the supply of goods or services. By way of example, this might be a drinks container or disposable cutlery).

1302 Sub-paragraph (4) sets out that a deposit scheme may specify the circumstances in which a deposit or refund is to be paid.

1303 Sub-paragraph (5) provides that "scheme suppliers" and "scheme collectors" are to be defined in the regulations, it provides that a scheme supplier and a scheme collector is someone who is a supplier or producer of a deposit item. A scheme collector may also be a scheme administrator. By way of example, a scheme supplier might be a producer, distributor or retailer of a drinks container. Scheme collectors host return points, refund deposits and handle the material that has been collected (this might be a retailer or the scheme administrator).

1304 Sub-paragraph (6) provides that the deposit scheme may set a deposit amount specified in regulations, or an amount determined by the scheme administrator or an amount determined (and published) by the relevant national authority.

1305 Sub-paragraph (7) gives a definition of the word "specified".

Scheme suppliers

1306 Paragraph 2 provides that regulations may impose requirements on scheme suppliers, including:

● taking steps to ensure deposits are paid for the deposit item;

● how items are marked to identify them as deposit items;

● the retention of deposits; paying deposits to other scheme suppliers, scheme collectors or to a scheme administrator;

● ensuring a proportion of deposit items are returned to scheme collectors; keeping records in connection with the scheme; and

● providing those records or other information in connection with the scheme to a scheme administrator.

1307 The requirements may be different for different scheme suppliers.

Scheme collectors

1308 Paragraph 3 provides that regulations may impose requirements on scheme collectors, including:

● paying those who return a deposited item a refund;

● arranging for the recycling of any items returned or disposing of those items in accordance with the scheme; and

● ensuring a proportion of deposit items are returned to scheme collectors, keeping records in connection with the scheme and providing those records or other information in connection with the scheme to a scheme administrator.

1309 The requirements may be different for different scheme collectors.

Deposit scheme administrators

1310 Paragraph 4(1) provides that regulations may appoint or make provision for the appointment of a deposit scheme administrator.

1311 Sub-paragraph (2) sets out the functions that regulations may confer on the scheme administrator. This includes:

● the registration of scheme suppliers and scheme collectors;

● charging registration fees;

● giving directions to the scheme suppliers and scheme collectors in relation to the requirements placed on them under the deposit scheme;

● ensuring a proportion of deposit items are returned to scheme collectors;

● making payments to scheme collectors to reimburse them for any refunded deposits they have paid out;

● the retention of amounts that they have received under the deposit scheme, including determining how these amounts should be utilised;

● payments to other scheme administrators; and

● keeping records and providing these records to the relevant national authority.

1312 Sub-paragraph (3) specifies that, where there is more than one scheme administrator, different functions may be conferred on different scheme administrators by a deposit scheme.

1313 Sub-paragraph (4) provides that regulations may confer a power on the relevant national authority to give directions to a scheme administrator as to how the scheme administrator should exercise their functions under the scheme.

1314 Sub-paragraph (5) defines the word "specified" for this paragraph.

Enforcement

1315 Paragraph 5 makes provision for the enforcement of a "relevant requirement" (defined in sub-paragraph (5) as a requirement imposed by regulations or under a deposit scheme) and for offences and penalties.

1316 Sub-paragraph (2) provides that regulations may make provision for the appointment of an enforcement authority, the provision of records and information to persons specified in the regulations, a failure to comply with a relevant requirement to constitute an offence, about such offences, and the imposition of civil sanctions in respect of failures to comply with relevant requirements.

1317 Sub-paragraph (3) defines "civil sanction" as a sanction of a kind referred to in Part 3 of the Regulatory Enforcement and Sanctions Act 2008 ("the 2008 Act") – that is, a fixed monetary penalty, discretionary requirement, stop notice or enforcement undertaking.

1318 Sub-paragraph (4) outlines that regulations may include provision for the imposition of sanctions of that kind, whether or not the enforcement authority is a regulator or the conduct in respect of which the sanction is imposed is a relevant offence for the purposes of Part 3 of the 2008 Act, or the relevant national authority may make provision for the imposition of sanctions under that Part.

1319 Sub-paragraph (5) provides definitions as described above.

Interpretation

1320 Paragraph 6 defines words used in the Schedule.

Schedule 10: Charges for single use plastic items

General power

1321 Paragraph 1 provides a general power for the "relevant national authority" (as defined in section 50(2)) to make regulations about charging by sellers of goods or services for single use plastic items. Powers to define what is meant by "sellers" are set out in paragraph 3.

1322 Sub-paragraphs (2) and (3) define what a "single use plastic item" is. This is a manufactured item made wholly or partly of plastic that is likely to be used only once (or for a short period of time) before being disposed of, and which is supplied in connection with good or services.

1323 Sub-paragraphs (4) and (5) state that an item is supplied in connection with goods and services if it is supplied at the place the goods or services are sold so that the goods can be taken away, used consumed or delivered. This might be a plastic food container or other plastic packaging into which the goods are placed or plastic cutlery.

Requirement to charge

1324 Paragraph 2 provides that the regulations may require sellers of goods or services to charge for single use plastic items specified in those regulations.

Sellers of goods and services

1325 Paragraph 3 provides that "sellers" in relation to goods or services are to be defined in the regulations, including by reference to one or more of the following:

● a person’s involvement in selling goods services;

● a person’s interest in the goods or services or;

● a person’s interest in the premises at or from which the goods or services are sold.

1326 It provides that the regulations may apply to a range of different sellers, including all sellers of goods and services and sellers identified by reference to factors specified in the regulations. The factors that may be specified in the regulations may include the place from which the goods or services are sold, the type and value of goods or services supplied and the seller’s turnover.

Amount of charge

1327 Paragraph 4 provides that the regulations may specify the minimum amount that sellers must charge for each single use plastic item or provide for that amount to be determined in accordance with the regulations.

Administration

1328 Paragraph 5 contains powers to appoint an administrator to administer the provisions made by the regulations and clarify references in the Schedule to "an administrator".

Registration

1329 Paragraph 6 provides that the regulations may require sellers to register with an administrator and make provision about applications for registration, the period of registration and the cancellation of registration. The regulations may also provide for sellers to pay registration fees, and specify the amount.

Record-keeping and publication of records

1330 Paragraph 7 provides that the regulations may require records to be kept in relation to charges made for single use plastic items, including records relating to the amounts received by the seller by way of charges and the uses to which the proceeds of the charge are put. The regulations may also require that this information is published and is made available to the relevant national authority, an administrator or members of the public upon request.

1331 Sub-paragraph (4) defines "gross proceeds of the charge" and "net proceeds of the charge" for the purposes of this paragraph.

Enforcement

1332 Paragraph 8 provides that the regulations may confer powers and duties on an administrator in order to enforce the regulations and in particular, to enable the administrator to obtain relevant documents and information or question a seller (or their officers or employees) where the administrator reasonably believes that there has been a breach of the regulations.

Civil sanctions

1333 Paragraph 9 provides that the regulations may include civil sanctions to deal with breaches of requirements in the regulations.

1334 Sub-paragraph (2) provides that the regulations may make provision for appeals.

1335 Sub-paragraph (3) state that or the purposes of this paragraph, a "civil sanction" is a sanction of a kind for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 ("the 2008 Act") – that is, fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings.

1336 Sub-paragraph (4) outlines that regulations may include provision for the imposition of sanctions of that kind, whether or not the enforcement authority is a regulator or the conduct in respect of which the sanction is imposed is a relevant offence for the purposes of Part 3 of the 2008 Act, or the relevant national authority may make provision for the imposition of sanctions under that Part.

Schedule 11: Enforcement powers

Powers to search and seize vehicles in connection with waste offences

1337 Paragraphs 1 and 2 amend section 5(6) of the Control of Pollution (Amendment) Act 1989 and section 34B(6) of the Environmental Protection Act 1990 respectively. Sub-paragraphs 1(a) and 2(a) make amendments to allow a vehicle seized by the police without an Environment Agency or Natural Resources Wales officer present to be seized on behalf of the respective authority if the authority has requested for the police to do this. This is instead of it being considered to be done on behalf of the waste collection authority in whose area the seizure takes place, which adds an unnecessary step for the Environment Agency or Natural Resources Wales as they then have to re-seize it from the waste collection authority.

1338 Sub-paragraphs 1(b) and 2(b) make amendments to clarify that, where no request has been made by the Environment Agency or Natural Resources Wales, or in any other case, a vehicle will still be considered to be seized on behalf of the waste collection authority in whose area the seizure takes place.

Powers of direction in relation to waste

1339 Paragraph 3 amends section 57 of the Environmental Protection Act 1990.

1340 Sub-paragraph (2) amends subsection (2) to account for circumstances in which waste might be taken to an appropriate storage site in the first instance, or otherwise not directly treated or disposed of.

1341 Sub-paragraph (3) inserts new subsection (2A) after subsection (2) to allow the Secretary of State to direct a registered waste carrier to collect waste and deliver it to a specific site. It also allows the Secretary of State to direct a person keeping waste, or the owner or occupier of the land on which the waste is being kept, to enable the collection of the waste by the waste carrier.

1342 Sub-paragraph (4) amends subsection (4) so that the requirement to pay costs is not limited to treating and disposing of waste and covers circumstances in which waste might be taken to an appropriate storage site in the first instance, or otherwise not directly treated or disposed of.

1343 Sub-paragraph (5) inserts new subsection (4A) after subsection (4) to allow the Secretary of State to direct the waste keeper or the owner or occupier of the land where the waste is being kept to pay the waste carrier’s reasonable costs and/or to pay the reasonable costs of the person to whom the waste is delivered. The reasonable costs would be part of the discussion and analysis in advance of issuing a direction.

1344 Sub-paragraph (6) amends subsection (7) to clarify that the Secretary of State may choose to pay the reasonable costs under subsection (4) instead.

1345 Sub-paragraph (7) inserts new subsection (7A) after subsection (7) to allow the appropriate Minister to directly reimburse the registered waste carrier or the person to whom the waste is delivered, in line with new subsection (4A), instead of the waste keeper or the owner or occupier of the land where the waste is being kept.

1346 Sub-paragraph (8) amends subsection (8) insert a definition of "appropriate Minister", defined to mean either the Secretary of State or the Welsh Ministers depending on the location of the land where waste is being kept. It also inserts a definition of "registered waste carrier".

Powers of entry in relation to pollution control etc

1347 Paragraphs 4-6 of Schedule 11 relate to section 108 of the Environment Act 1995.

1348 Paragraph 5 makes amendments to section 108 of that Act.

1349 Sub-paragraph (2) inserts new paragraph (ka) in subsection (4) after paragraph (k), giving an authorised person with a power to enter a premises under subsection (4)(a) the power to (i) search the premises, (ii) seize and remove documentary or other evidence, (iii) require electronic information to be produced in a form that enables it to be removed or produced as documentary evidence, and (iv) to operate equipment found on the premises in order to produce information from it. These powers can only be used for the purposes of an examination or investigation made using the power in subsection (4)(c).

1350 Sub-paragraph (3) amends subsection (6) by removing paragraph (a). This removes the requirement to provide at least seven days’ notice of a proposed entry where it is proposed to enter any premises used for residential purposes, or to take heavy equipment on to any premises. The requirement for consent of the occupier or a warrant remains. This allows the power of entry to be used where giving notice would undermine the purpose for which the warrant is issued, or without a delay where consent has been given by the occupier.

1351 Sub-paragraph (4) inserts new subsections (7A) to (7F) after subsection (7). Subsection (7A) prevents the use of the power unless with the authority of a warrant issued under Schedule 18 of the Environment Act 1995, or unless the conditions in subsection (7B) apply. These conditions are that the authorised person has reasonable grounds for believing there is evidence of non-compliance of pollution control or flood risk enactments, and it is necessary to use the powers without first obtaining a warrant in order to prevent the evidence being concealed, lost, altered or destroyed.

1352 New subsection (7C) clarifies that if something can be done using the existing power under subsection (4)(k) or the new power under new subsection (4)(ka), the requirement for a warrant for exercising the power under new subsection (4)(ka) does not apply.

1353 New subsection (7D) requires that protected material seized or removed under new subsection (4)(ka) cannot be used for an examination or investigation under subsection (4)(c) and must be returned to the premises it was removed from, or the person who last had possession or control of it, as soon as reasonably practicable afire it is identified. New subsection (7F) defines protected material as material subject to legal professional privilege or is excluded or journalistic material within the meaning of sections 11 and 13 respectively of the Police and Criminal Evidence Act 1984.

1354 New subsection (7E) clarifies that if something contains both protected and non-protected material, the requirements under new subsection (7D) do not prevent the non-protected material from being used for the purposes of an examination or investigation, retained or copied.

1355 Sub-paragraph (5) inserts new subsection (12A) after subsection (12), clarifying that evidence removed or taken away under new subsection (4)(ka) can only be retained so long as is necessary taking into account all the circumstances.

1356 Sub-paragraph (6) amends subsection (15) to insert a definition of "document" after the definition of "authorised person", and to insert a definition of "English or Welsh authorised person" after a definition of "enforcing authority". It also clarifies that, as the powers in section 108 cannot be used in relation to section 46 of the Environmental Protection Act 1990 (receptacles for household waste) in England, they also cannot be used for sections 46A to 46D, which relate to enforcement of section 46.

1357 Paragraph 6 makes amendments to Schedule 18 of the Environment Act 1995.

1358 Sub-paragraph (2) inserts new sub-paragraphs (2A) and (2B) after sub-paragraph (2). New sub-paragraph (2A) allows a justice of the peace to issue a warrant authorising use of the powers in new section 108(4)(ka), provided they are satisfied that the conditions in new sub-paragraph (2B) are met. The conditions in new sub-paragraph (2B) are that there are reasonable grounds for believing there is material on the premises in question that is likely to be of substantial value to an examination or investigation under section 108(4)(c) and that it is either impracticable to communicate with a person in order to gain access to the material or that access to the material is unlikely to be granted without a warrant.

1359 Sub-paragraph (2) also removes sub-paragraph (3) from Schedule 18, which requires the justice of the peace issuing a warrant to be satisfied that the notice period in subsection (6) of section 108 of the Act has been given, as that notice period requirement has been removed by paragraph 5(3) as detailed above.

1360 Sub-paragraph (3) amends paragraph 3 of Schedule 18 to remove the need to produce authorisation unless requested to do so, making it more straightforward to enter an abandoned or predominantly unoccupied site or premises.

Schedule 12: Local air quality management framework

1361 The Schedule makes amendments to the cited sections of the Environment Act 1995.

1362 Paragraph 2 amends section 80 (national air quality strategy) of the Environment Act 1995. Sub-paragraph (2) omits subsection (3); sub-paragraph (3) inserts new subsections (4A) and (4B). New subsection (4A) requires that the National Air Quality Strategy be reviewed, and, following that review, amended if that is considered necessary. New subsection (4B) sets out the minimum review periods, requiring a review initially within 12 months of the schedule coming into force, and then subsequent reviews to happen at least once every five years after that.

1363 Paragraph 3 inserts new section 80A into the Environment Act 1995.

New section 80A Duty to report on air quality in England

1364 New section 80A requires the Secretary of State to lay a statement annually before Parliament which sets out an assessment of progress made towards meeting air quality objectives and standards in England, as well as the steps the Secretary of State has taken in support of meeting those standards and objectives. These are the standards and objectives for local air quality that the Secretary of State must include in the National Air Quality Strategy and enact in secondary legislation, which are then the levels that local authorities must assess against under the Local Air Quality Management Framework.

1365 Paragraph 4 inserts new section 81A into the Environment Act 1995.

New section 81A: Functions of relevant public authorities

1366 New section 81A applies a legislative requirement to certain relevant public authorities to co-operate with local authority air quality action planning, once the relevant public authority has been designated under subsection (3) below by the Secretary of State.

1367 Subsection (1) applies the duty to have regard to the National Air Quality Strategy when carrying out functions and services which might affect air quality to additional bodies who may be relevant to meeting air quality standards and objectives.

1368 Subsection (2) defines a "relevant public authority" as a body or person prescribed by the Secretary of State in regulations.

1369 Subsection (3) gives Secretary of State the power to designate a relevant public authority in England if it is determined that the person carries out functions of a public nature that are relevant to air quality in local authority areas.

1370 Subsection (4) ensures that the Secretary of State consults with both the person who is proposed to be designated as a relevant public authority and anyone else considered appropriate, ahead of making regulations that designate the relevant public body or bodies.

1371 Subsection (5) clarifies that references to England include the territorial sea adjacent to England, but not the territorial sea adjacent to Wales or Scotland.

1372 Paragraph 5 amends section 82 (local authority reviews) of the Environment Act 1995). Sub-paragraph (2) provides drafting to allow for the insertion of further subsections into that Act. Sub-paragraph (3) inserts new subsections (4), (5) and (6).

1373 New subsection (4) of section 82 replicates the former duty on local authorities to identify where air quality standards or objectives are not likely to be achieved within the "relevant period" (a period to be prescribed by regulations).

1374 New subsection (5) of section 82 provides that local authorities in England must also identify which sources of emissions they believe are responsible for failure to achieve air quality standards or objectives; identify neighbouring authorities who may be responsible for emissions; and identify other relevant public authorities or the Environment Agency who may be responsible for emissions.

1375 New subsection (6) of section 82 defines a source of pollution as relevant if it is: within the local authority; within a neighbouring local authority in England; or within an area where a relevant public authority has functions of a public nature and the local authority considers these functions as relevant to the source of the emissions.

1376 Paragraph 6 inserts new section 83A into the Environment Act 1995.

New section 83A Duties of English local authorities in relation to designated areas

1377 Subsection (1) sets out the application of this section.

1378 Subsection (2) applies a duty on local authorities to prepare an action plan to ensure air quality standards and objectives are achieved in the Air Quality Management Area it has designated in accordance with section 83. This tightens the requirement to ensure that action plans should secure the required standards and objectives.

1379 Subsection (3) sets out that an action plan’s purpose is to set out how the local authority will secure air quality standards and objectives in the air quality management area.

1380 Subsection (4) sets out that the action plan must also maintain air quality standards and objectives in the Air Quality Management Area, once achieved.

1381 Subsection (5) provides that action plans must set out measures the local authority will take to secure and maintain air quality standards and objectives within the Air Quality Management Area, and requires a date by which these measures must be carried out to be set out in the plan.

1382 Subsection (6) provides that local authorities may revise the action plan, and must revise the action plan if new or different measures are required. This will be applicable if the existing plan is not securing compliance, or if there are new circumstances which need to be taken into account.

1383 Subsection (7) sets out that the following two subsections apply where a district council preparing a plan is in a two-tier authority.

1384 Subsection (8) provides that, in the case of disagreement between a county and district council on the contents of the plan, either the county council or the district council preparing the plan can refer the matter to the Secretary of State.

1385 Subsection (9) gives Secretary of State the power to confirm or reject the proposed action plan and the actions to be taken, where there is disagreement between the district and county council. This would apply where the Secretary of State considers the plan to be inadequate and not likely to secure compliance with air quality objectives.

1386 Subsection (10) requires that, if an action plan has been referred to the Secretary of State under subsection (8), the district council must abide by the Secretary of State’s decision.

1387 Paragraph 7 amends section 84 of the Environment Act 1995 to clarify that this section now applies only to Scottish and Welsh local authorities.

1388 Paragraph 8 inserts new sections 85A and 85B into the Environment Act 1995. These new sections define the new duties of air quality partners. These could be neighbouring authorities, relevant public authorities or the Environment Agency, where relevant to a local pollution exceedance or likely future exceedance.

New section 85A Duty of air quality partners to co-operate

1389 Subsection (1) defines an "air quality partner" as a body responsible for emissions contributing to exceedance of local air quality objectives.

1390 Subsection (2) requires an air quality partner to assist a local authority upon request in connection with meeting air quality standards and objectives in the context of action planning where there is an exceedance. Such requests may include provision of information needed to accurately assess a pollution source’s contribution to a local exceedance.

1391 Subsection (3) clarifies that an air quality partner may refuse a request for assistance it deems to be unreasonable. It is for the air quality partner to determine whether a request is reasonable – for example, a request may be considered unreasonable on grounds of disproportionate cost, feasibility, relevance, or incompatibility with their wider legal obligations.

New section 85B Role of air quality partners in relation to action plans

1392 Subsection (1) places a duty on local authorities in England to notify all of their identified air quality partners if they intend to prepare an action plan.

1393 Subsection (2) places a duty on air quality partners to propose measures for inclusion in the plan they will take to contribute to achievement or maintenance of air quality standards. It is for the air quality partner to propose measures they deem reasonable taking into account their wider legal responsibilities, disproportionate cost and feasibility.

1394 Subsection (3) provides that an air quality partner should specify a date by when they will carry out the measures they have proposed and, as far as possible, meet those commitments.

1395 Subsection (4) requires action plans to include the proposals and dates provided by air quality partners.

1396 Subsection (5) provides for the Secretary of State to direct air quality partners to make further proposals for action by a date specified by the Secretary of State where existing proposals are considered insufficient. This is a last resort measure, and is limited to directing that an air quality partner propose further actions; it does not give the Secretary of State the power to determine the measures the air quality partner will take. This power of direction would not be utilised unilaterally by the Secretary of State where a relevant public body falls under the governance of another government department – agreement with the relevant government department would be sought. If agreement was reached that ministerial direction was necessary, the lead department could legitimately opt to use existing governance structures instead.

1397 Subsection (6) sets out that directions given under subsection 5 may specify the extent to which further proposals are designed to augment or replace existing actions proposed by air quality partners. So a direction could require the partner to go further in respect of a particular action it intends to take, such as extending its scope, or it could ask the partner to come up with new measures.

1398 Subsection (7) requires air quality partners to comply with directions as above.

1399 Paragraph 9 amends section 86 of the Environment Act 1995.

1400 Paragraph 9(2) omits subsection (1) relating to the role of district and county councils, which is now covered in new section 83A.

1401 Paragraph 9(3) sets out that county councils may make recommendations to district councils in respect of meeting air quality objectives.

1402 Paragraph 9(4) inserts new subsection (2A) into section 86, providing that district councils in areas of England where there is a county council must inform county councils if they intend to prepare an action plan.

1403 Paragraph 9(5) substitutes subsections (3) to (5) of section 86. New subsection (3) provides that if, as above, a county council has been informed of a district council’s intention to prepare an action plan, the county council should propose measures that they will take to help secure the achievement and maintenance of air quality standards and objectives in the local authority’s area. New subsection (4) sets out proposals should have a date specified for the carrying out of the measures and, as far as possible, those dates should be met. New subsection (5) sets out district councils should incorporate county council proposals and dates in their action plans.

1404 Paragraph 9(6) applies the definition of a district council to England.

1405 Paragraph 9(7) makes consequential amendments.

1406 Paragraph 10 substitutes section 86A in the Environment Act 1995 with new sections 86A and 86B.

New section 86A Role of the Mayor of London in relation to action plans

1407 Subsection (1) provides that local authorities in London must inform the Mayor of London if they intend to prepare an action plan

1408 Subsection (2) has the effect that if, as above, the Mayor of London has been informed of a local authority’s intention to prepare an action plan, the Mayor must propose measures that the Mayor will take to help contribute to the achievement and maintenance of air quality standards and objectives. This replicates the duty that now applies to county councils in areas outside of London

1409 Subsection (3) sets out that proposals should have a date specified for carrying out of proposed measures and, as far as possible, those dates should be met.

1410 Subsection (4) requires local authorities to incorporate the Mayor of London’s proposals and dates in their action plans.

New section 86B Role of combined authorities in relation to action plans

1411 Subsection (1) requires that a local authority in a combined authority area must notify the combined authority of its intention to produce a plan.

1412 Subsection (2) requires that if, as above, the combined authority has been informed of a local authority’s intention to prepare an action plan, they should propose measures that they will take to help contribute to the achievement and maintenance of air quality standards.

1413 Subsection (3) requires that proposals should have a date specified for carrying out of proposed measures and that, as far as possible, those dates should be met.

1414 Subsection (4) requires that local authorities should incorporate combined authority proposals and dates in their action plans.

1415 Subsection (5) defines "combined authority".

1416 Paragraph 11 amends section 87 (regulations) of the Environment Act 1995. These amendments broaden the range of bodies the Secretary of State can confer powers on, impose duties on, prescribe measures to be adopted by, require provision of relevant information or enable cost recovery in the realm of measures to improve air quality, to include relevant county councils, relevant public authorities and the Environment Agency.

1417 Paragraph 12 amends section 88 of the Environment Act 1995. These amendments widen the number of bodies the Secretary of State may issue guidance to relating to local air quality, and to which they must have regard, to include relevant public authorities and the Environment Agency.

1418 Paragraph 13 amends section 91 (interpretation) of the Environment Act 1995, providing additional definitions.

1419 Paragraph 14 makes amendments to Schedule 11 (air quality: supplementary provisions) to the Environment Act 1995, simplifying wording.

Schedule 13: Smoke control in England and Wales

Part 1: Principal amendments to the Clean Air Act 1993: England

1420 Paragraphs 1 to 8 make amendments to the Clean Air Act 1993.

1421 Paragraph 2 inserts new section 19A, which introduces new Schedule 1A.

1422 Paragraph 3 inserts new Schedule 1A after Schedule 1. Schedule 1A makes provisions for imposing financial penalties for emissions of smoke from a chimney of a building, a chimney (not being a chimney of a building) which serves the furnace of any fixed boiler or industrial plant and, if applicable, a chimney of a vessel in smoke control areas in England. The amendments to this Act enable a local authority to extend the scope of a smoke control area to cover moored inland waterway vessels (as set out in paragraph 7 below), subject to local consultation. They would need to amend their smoke control order to include vessels and then once it comes into operation smoke emissions from the chimney of such vessels could be liable to a financial penalty.

New Schedule 1A Penalty for emission of smoke in smoke control area in England

1423 Paragraph 1 of new Schedule 1A defines "relevant chimney" and "person liable" (in relation to a relevant chimney).

1424 Paragraph 2 of new Schedule 1A defines "notice of intent", setting out when a notice of intent applies and what it must do. Where a local authority is satisfied that smoke has been emitted from a relevant chimney, they can give a notice to the liable person. The notice must include the information specified in sub-paragraph (3).

1425 Paragraph 3 of new Schedule 1A provides the minimum and maximum levels of penalty that can be given in respect of a financial penalty issued under the Schedule. Sub-paragraphs (3) and (4) allow the Secretary of State to amend these amounts under regulations, subject to the affirmative resolution procedure. This means that draft regulations must be laid before and approved by a resolution of both Houses of Parliament.

1426 Paragraph 4 of new Schedule 1A gives the recipient of the notice of intent a period of 28 days from the day after the notice of intent was given to object in writing on a ground specified in sub-paragraph (2) and provide evidence to support the objection. For example, they could object on the grounds that there was no emission of smoke on the occasion specified or that they were not the person liable on the occasion specified in the notice of intent. Sub-paragraph (3) stipulates that if the objection is on the grounds of the person not being liable, the name and address of the liable person must be included if known. Sub-paragraph (4) allows the Secretary of State to amend the grounds of objection under regulations, subject to consultation with anyone who may have an interest in the proposed regulations (sub-paragraph (5)) as well as the affirmative resolution procedure (sub-paragraph (6)). This means that draft regulations must be laid before and approved by a resolution of both Houses of Parliament.

1427 Paragraph 5 of new Schedule 1A gives the local authority the power to impose a financial penalty, following the issuing of a notice of intent, and specifies the period within which they must do so. Sub-paragraph (2) stipulates that a local authority must notify a person of their decision not to impose a financial penalty, if applicable. For example, if the local authority receives an objection following the issuing of a notice of intent and is satisfied that the penalty should not apply, they must inform the person of their decision.

1428 Paragraph 6 of new Schedule 1A provides for the application of this paragraph where a local authority decides to impose a financial penalty. It sets out how a local authority can use a final notice to impose a financial penalty and defines a "final notice". It also sets out what a final notice must specify (sub-paragraph (3)) and sets out the period within which the financial penalty must be paid (sub-paragraph (4)).

1429 Paragraph 7 of new Schedule 1A gives local authorities the power to withdraw a notice of intent or final notice, or reduce the amount specified in a final notice, and explains how to use said power.

1430 Paragraph 8 of new Schedule 1A gives the recipient of a financial penalty a period within which they can appeal to the First-tier Tribunal. It also sets out the grounds of appeal to the First-tier Tribunal a person may take. Sub-paragraph (3) stipulates that until the appeal has been determined or withdrawn, the final notice is suspended (that is, the local authority cannot pursue any debt until such time). Sub-paragraph (4) gives the First-tier Tribunal the power to respond to the appeal.

1431 Paragraph 9 of new Schedule 1A states that a financial penalty is recoverable as a civil debt due to the relevant local authority.

1432 Paragraph 10 of new Schedule 1A allows a local authority to delegate their functions under this Schedule. It requires that delegation must be made by giving notice to the delegate.

1433 Paragraph 11 of new Schedule 1A requires that a notice under this Schedule must be in writing, and instructs how a notice may be given to a person

1434 Paragraph 12 of new Schedule 1A applies to a vessel moored in a smoke control area in England and is subject to the operation of new Schedule 1A. It sets out that when a local authority has included vessels within the scope of its smoke control area, these provisions apply in respect of emissions of smoke from those vessels. If the notice of intent cannot be given to the occupier of the vessel, it may instead be given to the registered owner of the vessel, in which case one of the grounds for objecting listed in paragraph 4(2) – that they were not the person liable on the occasion specified in the notice of intent – does not apply. A person who receives a notice of intent relating to a vessel may object under paragraph 4 on the further ground that the smoke emitted on the occasion specified was solely due to engine-powered propulsion or to provide electric power to the vessel.

1435 Paragraph 4 inserts new sections 19B to 19D after new section 19A. These sections set out the offences relating to the acquisition and sale of controlled solid fuel in England, the exemption relating to particular areas in England, and the interpretation of new sections 19A to 19C.

New section 19B Acquisition and sale of controlled solid fuel in England

1436 Most of the provisions set out in new sections 19B and 19C mirror those in existing sections 22 and 23 of the Clean Air Act, but have been amended to provide a distinction between how Part III of the Act applies in England and in Wales. For example, subsection (1) of new section 19B provides for an offence of acquiring controlled solid fuel for use in a building, fireplace, fixed boiler or industrial plant to which a smoke control order applies. This offence already exists in existing section 23 of the Act.

1437 New subsection (2) clarifies that the acquisition of controlled solid fuel for use in the propulsion of a vessel or to provide electric power to the vessel will not form an offence.

1438 New subsection (3) clarifies that acquiring controlled fuel for use in an approved fireplace will not form an offence, mirroring the existing defence under section 23. For example, wood is a controlled solid fuel but it is not an offence to acquire wood for use in a smoke control area if it will used in a fireplace of a type specified in a list published by the Secretary of State and used in compliance with any conditions specified in the list.

1439 New subsection (4) sets out a new offence where a retailer must notify potential buyers that is an offence to acquire controlled solid fuel for certain purposes (for example, if it will be burned in a fireplace not specified in the Secretary of State’s list of approved fireplaces, such as an open fireplace, in a smoke control area in England). This also applies to online retailers. Reasonable steps to notify potential purchasers could include, for example, putting an informative sign next to the fuels and at the cash register, or including a notification during online checkout.

1440 New subsection (5) provides for an offence of selling controlled fuels for delivery to a building, or premises with a fixed boiler or industrial plant to which a smoke control order in England applies. This offence already exists in the current Act.

1441 New subsection (6) provides defences for the offence under subsection (5), mirroring the existing defences in the current Act.

1442 New subsection (7) provides that a person guilty of the offences under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

1443 New subsection (8) provides that a person guilty of the offence under subsections (4) and (5) is liable on summary conviction to a fine. The level of fine will be determined by the Court.

New section 19C Exemptions relating to particular areas in England

1444 The provisions set out in new section 19C (exemptions relating to particular areas in England) allow the Secretary of State to order the suspension of financial penalties for emission of smoke and/or offences relating to the acquisition and sale of controlled solid fuel in England. Subsection (2) sets out that the Secretary of State must consult the relevant local authority prior to using their power under subsection (1), and subsection (3) sets out what the local authority must do following the making of such an order.

New Section 19D Interpretation: "approved fireplace" and "controlled solid fuel"

1445 New section 19D applies to new sections 19A to 19C. Subsection (2) defines "approved fireplace", and subsection (3) sets out the requirements a fireplace must meet in order for the Secretary of State to include it on the list of approved fireplaces. Subsections (4) and (5) define "controlled solid fuel" and "approved fuel".

1446 Paragraph 5 inserts new section 26A after section 26.

New section 26A Duty of local authority to reimburse for adaptations of vessels in England

1447 This section sets out the criteria by which local authorities in England are required to reimburse owners or occupiers of vessels that are subject to a smoke control order, for works carried out to avoid incurring a financial penalty under new Schedule 1A to the Clean Air Act 1993.

1448 Subsection (1) sets out the criteria an owner or occupier of a vessel must meet in order to be eligible for reimbursement under these provisions. For example, the vessel must have the right to moor at a single mooring place for the qualifying period, the owner or occupier must complete the adaptations prior to the coming into operation of the order, and the owner or occupier must not have access to mains gas or electricity.

1449 Subsection (2) provides further conditions for when reimbursement will be required, and requires local authorities to reimburse the owner or occupier of a vessel 70% of the expenditure incurred in carrying out the adaptations if the adaptations are completed prior to the coming into operation of the order, the local authority approves the expenditure, and the adaptations are completed to the satisfaction of the local authority.

1450 Subsection (3) stipulates that reimbursement must be paid in equal monthly instalments for a period of six months.

1451 Subsection (4) removes the duty on local authorities to reimburse the owner or occupier of a vessel, should the owner or occupier cease to have the right to moor at the single mooring place or the vessel be absent from the smoke control area for one or more periods totalling three months.

1452 Paragraph 6 inserts new section 28A after section 28.

New section 28A Guidance for local authorities in England

1453 New section 28A requires local authorities in England to have regard to any guidance published by the Secretary of State related to their functions under Part 3 of the Act.

1454 Paragraph 7 inserts new subsections (2A) to (2C) after section 44(2).

1455 New subsection (2A) allows local authorities in England to include moored vessels in scope of their smoke control areas, which would be subject to the operation of new Schedule 1A. The amendments in this Act enable a local authority to extend the scope of a smoke control area to cover moored vessels, subject to local consultation. They would need to amend their smoke control order to include vessels, and then, once it comes into operation, smoke emissions from the chimney of such vessels could be liable to a financial penalty. New subsection (2B) extends references to a building in Part 3 and in section 54 of the Act to vessels, except for references in section 24 and 25 to dwellings. New subsection (2C) defines "moored vessels".

1456 Paragraph 8 clarifies that rights of entry under section 56 only apply in relation to a private dwelling where adaptations are required under section 24(1), or to a vessel where there is a duty to make reimbursements to the occupier or owner for works carried out under section 26A(3).

Part 2: Principal amendments to the Clean Air Act 1993: Wales

1457 Paragraphs 9 to 11 make amendments to the Clean Air Act 1993.

1458 Paragraph 10 amends section 20 (prohibition on emission of smoke in smoke control area), which only applies in Wales following the minor and consequential amendments made in Part 3. Sub-paragraph (2) amends, for Wales, the procedure for declaring a fuel to be authorised for the purposes of Part 3 of the Act. It enables Welsh Ministers to authorise fuels by publishing a list of authorised fuels and to update this list as needed. Sub-paragraph (3) omits subsection (6), which gives meaning to "authorised fuel".

1459 Paragraph 11 amends section 21 (power by order to exempt certain fireplaces) as it applies to Wales. Welsh Ministers currently have the power to exempt any class of fireplace by order upon such conditions as may be specified in the order, if they are satisfied that such fireplaces can be used for burning fuel other than authorised fuels without producing any smoke or a substantial quantity of smoke. The amendment enables Welsh Ministers to exempt such fireplaces by publishing a list of exempted fireplaces and any relevant conditions and to update this list as needed.

1460 The amendments made by these paragraphs will enable Welsh Ministers to authorise fuels and exempt fireplaces as and when they are manufactured and tested, rather than waiting for common commencement dates as is currently the case for Wales.

Part 3: Minor and consequential amendments

Minor and consequential amendments to the Clean Air Act 1993

1461 Paragraph 13 amends section 18 (declaration of smoke control area by local authority) to achieve a distinction between how Part 3 applies in England and in Wales, and extends the section to include new Schedule 1A.

1462 Paragraph 14 amends section 20 (prohibition on emission of smoke in smoke control area) to provide that the section applies only in Wales.

1463 Paragraph 15 amends section 21 (power to exempt certain fireplaces) to achieve a distinction between how Part 3 applies in England and in Wales.

1464 Paragraph 16 amends section 22 (exemptions relating to particular areas) to achieve a distinction between how Part 3 applies in England and in Wales.

1465 Paragraph 17 amends section 23 (acquisition and sale of unauthorised fuel in a smoke control area) to achieve a distinction between how Part 3 applies in England and in Wales.

1466 Paragraph 18 amends section 24 (power to require adaptations of fireplaces) to achieve a distinction between how Part 3 applies in England and in Wales, and extends the section to include new Schedule 1A.

1467 Paragraph 19 amends section 26 (power to make grants for fireplaces in churches etc) to achieve a distinction between how Part 3 applies in England and in Wales and, extends references made to premises to include vessels.

1468 Paragraph 20 amends section 27 (references to adaptations) to achieve a distinction between how Part 3 applies in England and in Wales, and extends references made to a dwelling to include vessels.

1469 Paragraph 21 amends section 28 (expenditure on execution of works) to extend references made to a dwelling to include vessels.

1470 Paragraph 22 inserts the definition of "smoke control order in England" into section 29 (interpretation).

1471 Paragraph 23 amends section 63 (regulations and orders) to clarify that the delegated powers set out in paragraph 3(3) and 4(5) of new Schedule 1A are not subject to annulment in pursuance of a resolution of either House of Parliament.

1472 Paragraph 24 amends Schedule 1 to achieve a distinction between how Part 3 applies in England and in Wales, and extends paragraph 5 of that Schedule 1 to new Schedule 1A. Sub-paragraph (3) inserts new paragraph 6A into Schedule 1, which provides a duty on local authorities in England to inform the Secretary of State of any new smoke control orders and the date on which they will come into operation.

Minor amendments to other legislation

1473 Paragraph 25 inserts "in Wales" into subsection (3)(i) of section 79 of the Environmental Protection Act 1990 (statutory nuisances). This achieves a distinction between how the section applies in England and in Wales. It means that private dwellings in smoke control areas in England are no longer exempt from nuisance legislation, but retains the exemption for Wales. This means that smoke from private dwellings in smoke control areas in England can constitute a statutory nuisance, provided that it is prejudicial to health or a nuisance, as is currently the case for private dwellings outside of smoke control areas in England.

Schedule 14: Modifying water and sewerage undertakers’ appointments: Procedure for appeals

1474 Schedule 14 inserts new Schedule 2ZA into the Water Industry Act 1991.

New Schedule 2ZA Procedure for appeals under section 12D

1475 New Schedule 2ZA sets out the details of the Competition and Markets Authority (CMA) process for appeals against licence condition modifications under section 12D of the Water Industry Act 1991.

1476 Paragraph 1 of new Schedule 2ZA sets out the procedure to make an application for permission to appeal under section 12D. Sub-paragraph (1) sets out the procedure that must be followed to bring an appeal. An appeal must be made by sending a notice to the CMA requesting for permission to appeal.

1477 Sub-paragraph (2) refers to the persons set out in section 12D as being the only persons that can apply for permission to appeal.

1478 Sub-paragraph (3) requires an application for permission to be made within 20 working days after the working day on which Ofwat’s decision on the modification is published.

1479 Sub-paragraph (4) requires specific information to be provided with the application for permission to appeal which will be detailed in rules.

1480 Sub-paragraph (5) enables provision to be made in the rules requiring the applicant to confirm through a statement of truth that the evidence contained in an application is true.

1481 Sub-paragraph (6) defines a person applying for permission to bring an appeal as an "appellant".

1482 Sub-paragraph (7) requires the appellant to send a copy of the application for permission to appeal to Ofwat at the same time as the application is sent to the CMA, along with any other information that may be required by the appeal rules.

1483 Sub-paragraph (8) requires that the decision about whether to grant permission to appeal be made by a member of the CMA who is duly authorised.

1484 Sub-paragraph (9) provides that Ofwat must be afforded an opportunity to comment on the application before CMA decides whether to give permission.

1485 Sub-paragraph (10)(a) requires the CMA to respond to the application for permission to appeal by the end of the 10th working day after the day on which the CMA received any comments from Ofwat.

1486 Sub-paragraph (10)(b) requires the CMA to respond to the application for permission to appeal by the end of the 14th working day after the day it received the application where there are no comments from Ofwat.

1487 Sub-paragraph (11) sets out the conditions subject to which permission to appeal can be granted, including provision for joint appeals.

1488 Sub-paragraph (12) requires notification to the appellant and Ofwat where an appeal is granted or refused, and of the reasons for it.

1489 Sub-paragraph (13) requires CMA to publish its decision on the application for permission to appeal as soon as reasonably practicable.

1490 Sub-paragraph (14) provides for section 12I(2), which allows the CMA not to publish any commercial information that could harm the business interests of an undertaking to which it relates or any information that relates to an individual and could harm their interests, to apply to any information to be published under subparagraph (13) relating to the CMA decision on an application to bring an appeal against a proposed licence modification decision.

1491 New paragraph 2 of new Schedule 2ZA sets out the procedure for suspending an Ofwat decision on licence modification.

1492 Sub-paragraph (1) enables the CMA to prevent the modification from taking effect or limit the extent to which the modification takes effect until after it has taken its decision on the appeal.

1493 Sub-paragraph (2) provides that, where an appeal is made against a licence condition change that came into effect earlier than 56 working days following publication of the decision, the CMA can suspend the change or limit its effect as it considers necessary pending the determination of the appeal.

1494 Sub-paragraph (3) provides that the CMA can only suspend the effect of the change where the appellant requested that it be suspended when they made their application for permission to appeal within the specified time limit; where Ofwat has been able to comment on the application; where the change would create significant costs for the appellant or the persons the appellant represents; and where the change is not needed, from the perspective of the balance of convenience, to come into effect until the decision on the appeal is made.

1495 Sub-paragraph (4) provides that the CMA must make a decision about suspending the early effective date by the end of the 10th working day after the day they received any comments from Ofwat, or by the end of the 14th working day after the day they received the application where there are no comments from Ofwat.

1496 Sub-paragraph (5) requires the appellant to send an application to suspend the early effective date to Ofwat at the same time as it is sent to the CMA.

1497 Sub-paragraph (6) provides that the person making the decision on the application for the CMA must be licensed to do so, and that the CMA must publish the decision as soon as it is reasonably practical to do so.

1498 Sub-paragraph (7) provides for section 12I(2), which allows the CMA not to publish any commercial information that could harm the business interests of an undertaking to which it relates or any information that relates to an individual and could harm their interests, to apply to any information to be published as a result of a direction on an application to bring an appeal against a proposed licence modification decision.

1499 Paragraph 3 of new Schedule 2ZA sets out the time limit for representations and observations by Ofwat. Under sub-paragraph (1), where Ofwat wishes to comment on an application for permission to bring an appeal or a CMA direction, it must do so within the time limit imposed by sub-paragraph (2). The time limit provided by sub-paragraph (2) is ten working days beginning with the first working day on which Ofwat received a copy of the application for permission to appeal or the application for a direction. Under sub-paragraphs (3) and (4), where the CMA has granted permission to bring an appeal, and Ofwat wishes to make representations on the reasons that it reached the decision that is under appeal or on any grounds on which the appeal has been brought, Ofwat must make any written representations within a specified time limit. That time limit, which is set out in sub-paragraph (4), is by the end of the 15th working day from the date that the permission to appeal was granted.

1500 Sub-paragraph (5) requires Ofwat to send a copy of its representations made under paragraph 3 to the person bringing the appeal.

1501 Paragraph 4 of new Schedule 2ZA sets out how the CMA group that considers and determines an appeal must be constituted. Sub-paragraph (2) provides that the decision made by the group is only valid if all members of the group are present at the meeting making the decision and at least 2 members of the group support the decision.

1502 Paragraph 5 of new Schedule 2ZA sets out the matters that can be considered as part of an appeal. Subparagraph (1) enables the CMA, in order to reach a determination on the appeal, to disregard any issues that the person making the appeal has raised that were not included in their application to make an appeal, and to disregard any issues that Ofwat raises after the period in which it had the opportunity to comment on the appeal application or on any CMA direction.

1503 Paragraph 6 of new Schedule 2ZA enables the CMA, to request, via a notice, the production of documents, estimates, forecasts, returns or other specified information relevant to an appeal.

1504 Sub-paragraph (2) enables the CMA to set out a time for the documents or information requested under subparagraph (1) to be produced, where they need to be sent, and the format in which they are required.

1505 Sub-paragraph (3) limits the information the CMA is able to request to that which could be required in High Court civil cases.

1506 Sub-paragraph (4) allows anyone authorised on behalf of the CMA to copy any documents, estimates, forecasts, returns or other information requested by and provided to the CMA.

1507 Sub-paragraph (5) requires that a notice issued under sub-paragraph (1) must be issued by someone who is authorised on behalf of the CMA to do so, and must include details about possible consequences of the person to whom it is directed not complying with the notice.

1508 Paragraph 7 of new Schedule 2ZA sets out when an oral hearings may be held and specifies who can be required to present evidence.

1509 Sub-paragraph (1) allows for evidence to be taken under oath by the person considering an application for permission to bring an appeal, a person considering an application for a direction or by the CMA group determining the appeal.

1510 Sub-paragraph (2) provides that the CMA may issue a notice to require a person to attend the hearing and give evidence. The CMA must request a person to attend by notice setting out the time and place where the person must attend to give evidence.

1511 Sub-paragraph (3) allows for the person or group conducting the hearing to require the appellant or Ofwat to give evidence, or someone representing the appellant or Ofwat to make representations or observations.

1512 Sub-paragraph (4) allows for a person giving evidence at the hearing to be questioned by any party to the appeal. Sub-paragraph (5) provides that if the appellant, Ofwat, or a representative of either of these is not at the hearing the CMA does not have to consider the evidence that would have been provided and can determine the application for permission to appeal or the appeal without the evidence.

1513 Sub-paragraph (6) limits the type of evidence that a person can be required to give to that which could be required within a High Court civil case.

1514 Sub-paragraph (7) allows the person providing evidence to claim expenses for their attendance from the CMA if they have to travel more than 10 miles from their home to the hearing.

1515 Sub-paragraph (8) allows authorised members of the CMA to issue the notice to a person requiring that they give evidence at an oral hearing.

1516 Paragraph 8 of new Schedule 2ZA provides the CMA with the power to require a person to produce written evidence.

1517 Sub-paragraph (1) sets out that the CMA can request by notice written evidence from a person requesting a direction from the CMA or from the CMA group determining an appeal.

1518 Sub-paragraph (2) allows the CMA to specify by when and where the evidence must be provided, and that it must be verified by a statement of truth. If verification is required and not provided, the CMA must disregard the evidence.

1519 Sub-paragraph (3) limits the type of written evidence that a person can be required to give to that which could be required within a High Court civil case.

1520 Sub-paragraph (4) allows an authorised member of the CMA to issue the notice to a person requiring that person to provide written evidence.

1521 Paragraph 9 of new Schedule 2ZA enables the CMA to commission and use evidence from an expert in an appeal. The expert can be asked to provide evidence on any aspect of the appeal.

1522 Paragraph 10 of new Schedule 2ZA sets out the process that takes effect when a person fails to comply with a CMA notice requesting the production of documents under paragraph 6, or fails to attend oral hearings under paragraph 7, or fails to provide written evidence as required under paragraph 8.

1523 Sub-paragraph (2) enables the CMA to refer the failure, or the making of false statement or providing of false information, to the High Court.

1524 Sub-paragraph (3) sets out the process that the High Court can undertake which can ultimately, may enable the person to be punished as if they had been found in contempt of court.

1525 Sub-paragraph (4) enables the High Court, where the person is a business, to find both the business and any director or senior official of the business in contempt of court.

1526 Sub-paragraph (5) makes it a criminal offence for anyone to alter, suppress or destroy a document that the CMA requests under paragraph 6. The offence is punishable by a fine on summary conviction or a fine and or imprisonment on indictment.

1527 Paragraph 11 of new Schedule 2ZA sets out the procedure for making rules about the process for considering appeals under section 12D.

1528 Under sub-paragraph (2), rules made under sub-paragraph (1) can supplement the provisions of new Schedule 2ZA, and may include rules concerning evidence given at an oral hearing or other representations at a hearing.

1529 Under sub-paragraph (3), the CMA Board must publicise rules made under paragraph 11 to bring them to the attention of those affected by them.

1530 Under sub-paragraph (4), the CMA Board must consult those persons affected by the rules before setting them.

1531 Under sub-paragraph (5), rules made under sub-paragraph (1) may vary in relation to different cases.

1532 Paragraph 12 of new Schedule 2ZA deals with the position in relation to costs under the appeal procedure.

1533 Sub-paragraph (1) sets out how the CMA’s costs for dealing with the appeal will be payable.

1534 Sub-paragraph (2) sets out who is liable to pay the CMA’s costs, depending on the outcome of the appeal.

1535 Under sub-paragraph (3), the CMA can also order one party to pay the reasonable costs of the other party, depending on the appeal outcome.

1536 Under sub-paragraph (4), any party required to pay costs to another party must do so within 28 days from the day after the date of the CMA order.

1537 Under sub-paragraph (5), where the costs are not paid to the other party within the time period, they will accrue interest as set out in the order.

1538 Under sub-paragraph (6), any unpaid costs may be recovered as a civil debt by the person entitled to the costs.

1539 Paragraph 13 of new Schedule 2ZA sets out the definitions of terms used.

Schedule 15: Biodiversity gain as condition for planning permission

Part 1: Biodiversity gain condition

1540 Paragraph 1 inserts new section 90A into the Town and Country Planning Act 1990, which gives effect to new schedule 7A.

1541 Paragraph 2 inserts new schedule 7A.

New Schedule 7A Biodiversity gain in England

Part 1: Condition of planning permission relating to biodiversity gain

1542 Part 1 of new Schedule 7A applies a new general condition to all planning permissions granted in England, subject to exceptions. The condition requires a biodiversity gain plan to be submitted and approved by the planning authority before development can lawfully commence. The biodiversity gain plan should contain an assessment of the value of natural habitats before development and after development, and ensure that at least a 10% net gain is achieved between the earlier and later values. The Town and Country Planning Act 1990 already allows for planning permission to be granted subject to condition(s). This "general condition" for biodiversity gain, which is mandatory for all planning permissions, is novel. Because the condition is deemed to have been granted, it exists in statute prior to the grant of planning permission. It may therefore be met at the time of granting planning permission where the planning authority also approve a biodiversity gain plan. This could be used for straightforward planning applications where the relevant information is available upfront. The general condition will not apply to all development in all scenarios. Part 1 includes a power to detail these exceptions in secondary legislation.

1543 Paragraph 1 sets out and applies the general condition to all planning permissions granted for development in England, subject to exceptions in paragraphs 6 and 7 and further application beyond the standard definition of planning permission in paragraph 8. Planning permission includes deemed planning permission, which is granted by government departments to certain development. This includes development approved under the Electricity Act 1989 and the Transport and Works Act 1989.

1544 Sub-paragraph (2) contains the wording of the general condition itself, which requires that a developer wishing to commence a development approved by planning permission will first need to submit a biodiversity gain plan to the planning authority, as defined in sub-paragraph 1(3), and obtain the planning authority’s approval of this plan.

1545 Sub-paragraph (3) defines the terms "developer", "onsite habitat" and "planning authority" as they are applied in new Schedule 7A.

1546 Paragraph 2 establishes what information a biodiversity gain plan must include to satisfy the general condition. A biodiversity gain plan must specify all the information necessary for a planning authority to be able to approve the plan under paragraph 3. This includes information about the biodiversity value of habitats before and after development and steps taken to minimise harm to habitats during development.

1547 The Secretary of State may specify other matters to be included in the plan under sub-paragraph (2)(f). Sub-paragraph (3) provides for the Secretary of State to specify the procedure which must be followed when submitting a gain plan.

1548 Paragraph 3 requires planning authorities to approve a biodiversity gain plan if, and only if, key information in the biodiversity gain plan is accurate and the biodiversity gain objective is met. Authorities need to be satisfied with the information provided, including the value of onsite and offsite habitat gains and losses associated with the development. If the authority decides they are not satisfied, development would not be able to proceed lawfully unless the developer successfully appeals this decision.

1549 Paragraph 4 sets out the biodiversity gain objective and how it must be met. The objective is that the biodiversity value, expressed in biodiversity units, attributable to the development exceeds that which existed before development by at least 10%. Sub-paragraph (4) gives the Secretary of State a power to vary the percentage gain required.

1550 Paragraph 5 gives the Secretary of State the power to specify procedures to follow and factors to be taken into account when approving a biodiversity gain plan, and in relation to appeals against decisions.

1551 Paragraph 6 exempts all development granted planning permission by the Secretary of States using a development order, or under provisions for urgent Crown development, from the application of the general condition. This includes development granted permission by the General Permitted Development Order, which allows various types of development to proceed without requiring a planning application. Paragraph 6 also gives the Secretary of State the power to exempt development from the requirement to apply the general condition.

1552 In recognition of the fact that some habitat is irreplaceable, and therefore impossible to achieve a net gain on, paragraph 7 allows the Secretary of State to make regulations that modify or exclude the application of the general condition to irreplaceable habitat. Sub-paragraph (2) specifies that, where development does impact irreplaceable habitats, regulations must require measures to be taken to minimise the negative impacts of this development on those habitats, and that those measures should be agreed with the planning authority where they are not made by the planning authority in the first place. Sub-paragraph (3) allows regulations to confer powers and duties on Natural England in relation to giving guidance on the treatment of irreplaceable habitat in development.

1553 Whilst it is generally agreed in practice that development should not claim biodiversity net gain in cases when development results in land take from statutory protected sites (such as Sites of Special Scientific Interest), development on such sites is not specifically exempted from the net gain requirement. The biodiversity metric does not address impacts on species, recognise the significance of site designations or take account of indirect impacts, and so the biodiversity net gain requirement for development on such sites is separate to, and will work alongside, any existing legal or policy requirements for protected areas, including restoration and conservation of designated features and the achievement of favourable condition.

1554 Paragraph 8 allows the Secretary of State to modify the application of this Part to permissions for phased development or developments where subsequent approval has the effect of phasing development. Sub-paragraph (2) sets out that regulations may include provisions for biodiversity gain conditions to be included in the grant of planning permissions for these types of permission.

1555 Paragraph 9 gives the Secretary of State powers to modify or exclude the application of this Part to planning permissions for development already carried out, or planning permissions granted for the alteration or removal of buildings or works by any order requiring discontinuance of any use of land.

1556 Paragraph 10 makes provision for the Secretary of State to make provision as to the application of this Part of the Schedule to planning permission granted in relation to a purchase notice and the successful appeal of a planning enforcement notice.

Part 2: Interpretation of terms relating to biodiversity value

1557 Paragraph 11 is self-explanatory.

1558 Paragraph 12 identifies the biodiversity metric as the approach which will be used to calculate the relative biodiversity value of any habitat. The metric uses habitats as a proxy for biodiversity value, which it measures and expresses in terms of ‘biodiversity units’.

1559 Paragraph 13 makes provision for the Secretary of State to publish the biodiversity metric, the tool which is used to measure the relative biodiversity value of habitats as relevant to this schedule. Sub-paragraphs (3) and (5) give the Secretary of State the power to update the biodiversity metric, and set out any arrangements for transition when the metric is updated so that developers and planning authorities are clear what is required where, for example, a planning application is under consideration on the date the updated version of the metric comes into effect. Updates to the metric will allow technical improvements, reflecting improved ecological understanding and further evaluation of the metric’s application in practice, to the metric to be incorporated into the approach. Updates will be infrequent to avoid creating unnecessary uncertainty for the planning for the planning system. The intention is to publish a timeline of planned updates. The provision also enables the secretary of state to make transitional provision where the metric is revised and republished.

1560 Paragraph 14 defines the date on which the pre-development biodiversity value of land should be taken to be measured. Sub-paragraph (3) enables a developer and a local planning authority to agree another date where more appropriate than the default set out in sub-paragraph (2). Sub-paragraph (4) makes provision for circumstances in which the planning authority is aware that there has been degradation of habitats in advance of development.

1561 Paragraph 15 states that the pre-development biodiversity value of onsite habitats is to be taken as the value before certain activities took place. These activities must have been carried out without planning permission, or without an alternative permission specified by the Secretary of State in regulations, on or after 15 October 2019. The activities must also have reduced the biodiversity value of habitats on the site below what it would otherwise have been at the time of planning application or planning permission.

1562 Paragraph 16 defines the post-development biodiversity value of habitat on the development site as the projected value of habitats on the development site. The value needs to be projected because a planning authority will need to use this figure before development starts to determine whether the development will achieve the net gain objective. In practice, the post-development biodiversity value of habitats on the development site will be determined by applying the metric to the developer’s plan for the development site as detailed in the biodiversity gain plan.

1563 Paragraph 17 stipulates that significant increases in onsite biodiversity value can only be considered part of the post-development biodiversity value if they are secured through a suitable mechanism and will be maintained for at least 30 years after the completion of development.

1564 Paragraph 18 defines what can be counted towards "registered offsite biodiversity gain" in relation to a development. This relates to gain achieved on land other than the development site. Where a developer makes an agreement with a third party to do so, or enters into an agreement to do so themselves, this gain can be allocated to the development to be counted towards meeting the biodiversity objective. The biodiversity gain and its allocation to a development must be recorded on the biodiversity gains site register.

1565 Paragraph 19 is self-explanatory.

Part 3: Registration of biodiversity gain sites

1566 Paragraphs 20 and 21 make provisions for a public biodiversity gains sites register. They define some of the eligibility criteria for land to be included on the register, including that it must be maintained for at least 30 years after the completion of enhancement works, and sets out how the benefits of habitat on the register might be allocated to a development. The register is intended to provide transparency in offsite enhancements for developers, planning authorities and others, and help parties to confirm that any offsite biodiversity gains are only allocated to a single development and that the necessary agreements to deliver biodiversity gains are in place. The intention is that the register will also facilitate monitoring of biodiversity gain delivery and its outcomes by indicating what outcomes are expected where. Paragraph 21 sets out what regulations under paragraph 20 are likely to provide for, including details of the procedure for registering land in the biodiversity gains site register.

Part 4: Biodiversity credits

1567 Paragraph 22 makes provision for the Secretary of State to set up a system to sell a supply of statutory biodiversity credits to the habitat compensation market. The provision of statutory credits will be provided in England only. The sold credits will be equivalent to a specified gain in biodiversity value, which will be eligible for inclusion in a biodiversity gain plan. Sub-paragraph (3) sets out the arrangements that may be made for the scheme and the operation of the scheme. Sub-paragraph (4) requires the Secretary of State, in considering the price of a biodiversity credit, to set this at a level which does not discourage the development of local market schemes and non-credit habitat creation projects. The government intends to conduct a further review of the price of units following engagement with stakeholders before setting a price. The intention is that the price of biodiversity credits will be higher than prices for equivalent biodiversity gain on the market. Sub-paragraph (5) will require the Secretary of State to make information on the price of the units and their operation publically available.

1568 Paragraph 23 sets the framework that the Secretary of State must consider when handling the proceeds of the credits. Proceeds from the sale of credits will contribute to strategic ecological networks and provide long term environmental benefits and would be additional to existing requirements. This framework includes a provision that funds collected via this mechanism must be used for the purpose of securing biodiversity gain. Sub-paragraph (2) makes provision to exclude works to enhance habitat from the system where there is an existing requirement for the Secretary of State to act. For example, where land is subject to alternative legislative requirements such as where a public body manages a Site of Special Scientific Interest. Through the Wildlife and Countryside Act 1981 (as amended), public bodies have a duty to take reasonable steps to further the conservation and enhancement of the special features of Sites of Special Scientific Interest.

1569 Paragraph 24 requires the Secretary of State to report on the operation of the biodiversity credit system on an annual basis. This includes setting out the total funding received and how this has been spent in securing habitat enhancement.

Part 2: Consequential amendments.

1570 Paragraph 3 details the consequential amendments to the Town and Country Planning Act 1990.

Schedule 16: Controlling the felling of trees in England

Introductory

1571 This Schedule amends Part 2 of the Forestry Act 1967 ("the 1967 Act").

Penalty for felling without licence: increase of fine

1572 Paragraph 2 amends section 17 to preserve in Wales the current level of fine that the Courts are able to impose (level 4 (£2,500) or twice the value of the tree, whichever is the higher) following conviction for a section 17 offence (felling without a licence where one was required), whilst amending the fine available in respect of such a conviction in England to an unlimited level 5 fine.

Restocking notices to be local land charges

1573 Paragraph 3 amends section 17A by inserting new subsection (1B), which provides that a restocking notice is a local land charge and, for the purposes of the Local Land Charges Act 1975, the Commissioners who serve the notice are defined as the "originating authority."

Enforcement notices to be local land charges

1574 Paragraph 4 inserts new subsection (6) at the end of section 24. This, as in paragraph 3, provides that a notice under this section is a local land charge and, for the purposes of the Local Land Charges Act 1975, the Commissioners who serve the notice are defined as the "originating authority."

1575 Local land charges will give notice to any buyer, and anyone who inspects the land register, that any buyer will acquire the land subject to the local land charge unless and until it is removed.

Further enforcement notices for new estate or interest holders

1576 Paragraph 5 inserts new section 24A after section 24.

1577 Sub-paragraph (1) inserts a cross-reference to new section 24A in section 17C.

1578 Sub-paragraph (2) provides the text for new section 24A. It has the effect of allowing the Forestry Commission to serve the new owner of land that is still subject to an enforcement notice with a subsequent enforcement notice. This will compel the new owner of the land to comply with the restocking of the land, as the previous owner can no longer be reasonably expected to comply with the original Enforcement Notice This is in line with the ‘buyer beware’ principle of the English housing market.

1579 It also follows the principle already established in the 1967 Act that the new owner of land inherits the responsibility to restock that land. This is established at present by the Act providing for enforcement notices to be served on the new owner of the land if that land is sold during the life of a restocking notice (and that restocking notice is not complied with).

Power of court to order restocking after conviction for failure to comply with enforcement notice

1580 Paragraph 6 inserts new section 24B into the 1967 Act. It has the effect of giving the court the power, following a conviction under section 24 of the Act (failure to comply with an Enforcement Notice), to make a restocking order that compels the person convicted to restock the land. This power is in addition to the existing fine.

1581 Sub-section (3) of new section 24B explains that a restocking order will require a person to take specified steps within a specified time to stock or restock an area of land with trees – either the land under which the restocking notice was given or other land that the court considers appropriate – and to maintain those trees for the period specified in the order (which will not exceed 10 years).

1582 Sub-section (4) of new section 24B provides that in deciding whether to make a restocking order a court must have regard to the interests of good forestry and agriculture and the desirability of promoting the growing and maintenance of trees in England.

1583 Sub-section (5) of new section 24B provides for the application of section 63(3) of the Magistrates’ Courts Act 1980 for breaches in relation to a restocking order.

Service of notices on directors of companies that have estates or interests in land

1584 Paragraph 7 amends section 30. Section 30 sets out the precise manner in which documents, such as restocking notices and enforcement notices, should be served. Where a company is to be served with such a notice, section 30 currently stipulates that this must be upon the company "clerk" or "secretary". This paragraph amends section 30 to allow notices to be served upon a company "director" as well.

Requiring information from the owner of land

1585 Paragraph 8 also amends section 30. Section 30, for the purposes of serving documents, gives the Forestry Commission the power to request information regarding the ownership of the land from the "occupier" or "any person who, either directly or indirectly, receives rent" from the land in question. Failure to comply with the request is an offence carrying a fine. This clause amends the 1967 Act to allow that request to be made of an "owner" of any land in England, compelling them to disclose, for instance, details of any leaseholders or tenants of the land.

Schedule 17: Discharge or modification of obligations under conservation covenants

1586 Schedule 17 enables the Upper Tribunal to discharge land from an obligation under a conservation covenant, or to modify such an obligation, on application. Any landowner bound by, or entitled to the benefit of, such an obligation, or the responsible body under the covenant, can apply. In practice, application will be made to the Lands Chamber, and procedure will be governed by the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010.

1587 Separate provision is made for discharge and modification, in Parts 1 and 2 of the Schedule respectively. Applications may be made for either, but in some circumstances will be made for both.

Part 1: Discharge by Upper Tribunal

Power to discharge on application by landowner or responsible body

1588 Paragraphs 1 and 2 make provision for application for discharge, and provide that the Tribunal must add as parties as necessary, depending upon who has made the application: the responsible body and everyone who is currently bound by or entitled to the benefit of the obligation concerned.

Deciding whether to discharge

1589 Paragraph 3(1) provides that the Upper Tribunal may make an order discharging an obligation when it considers it reasonable to do so in all the circumstances of the case. Sub-paragraph (2) sets out the matters that the Upper Tribunal must have regard to when considering whether or not to exercise its discretion. When considering the extent to which the performance of an obligation is, or is likely in the future to be, affordable or practicable (sub-paragraph (2)(a)(iii) and (iv)), sub-paragraph (4) requires the Upper Tribunal to disregard the personal circumstances of the person bound by the obligation.

1590 Paragraph 3(3) requires the Tribunal to consider whether the purpose for which the obligation in question was created could equally well be served by the creation of another conservation covenant on other land held by the landowner. In other words, the Tribunal is to consider whether any form of like for like substitution is possible. If it is, paragraph 5 comes into play.

Supplementary powers

1591 Paragraph 4 gives the Upper Tribunal the power to include in an order a requirement that the applicant pay compensation in respect of any resulting loss of benefit.

1592 Paragraph 5 enables the Upper Tribunal, with the consent of the landowner and the responsible body, to make an order discharging an obligation conditional on entry into a new conservation covenant. This may be an option where an obligation under a new conservation covenant will be able to fulfil the same purpose as the obligation to be discharged. If this is the position, then the landowner and responsible body can enter into an agreement for the purposes of clause 101 in relation to the replacement land.

Part 2: Modification by Upper Tribunal

Power to modify on application by landowner or responsible body

1593 Paragraphs 6 and 7 make provision for application for modification, and provide that the Tribunal must add as parties as necessary, depending upon who has made the application: the responsible body and everyone who is currently bound by or entitled to the benefit of the obligation concerned.

1594 Paragraph 8 has the effect that the Upper Tribunal’s powers to modify an obligation under a conservation covenant cannot be exercised so as to produce a result which could not have been achieved by the original agreement (because inconsistent with the requirements of clause 98(2)(a)). For example, it would not be possible to modify an obligation in such a way that it was no longer for the public good.

Deciding whether to modify

1595 Paragraph 9(1) provides that the Upper Tribunal may make an order modifying an obligation when it considers it reasonable to do so in all the circumstances of the case. Sub-paragraph (2) sets out the matters that the Upper Tribunal must have regard to when considering whether or not to exercise its discretion. When considering the extent to which the performance of an obligation is, or is likely in the future to be, affordable or practicable (paragraph 9(2)(iii) and (iv)), paragraph 9(3) requires the Upper Tribunal to disregard the personal circumstances of the person bound by the obligation.

Supplementary powers

1596 Paragraph 10 gives the Upper Tribunal the power to include in an order a requirement that the applicant pay compensation in respect of any resulting loss of benefit.

1597 Paragraph 11 enables the Upper Tribunal, with the consent of the landowner and the responsible body, to make an order modifying an obligation conditional on the applicant and the responsible body entering into an agreement for a new conservation covenant containing such provision as the order may specify.

Effect of modification

1598 Paragraph 12 describes the effect of a modification to a conservation covenant, which must for the future be read as modified by the Upper Tribunal’s order as respects the land to which the modification relates. The parties to the proceedings will be bound by the order of the Upper Tribunal, as will their successors (as respects any of the land to which the modification relates).

Schedule 18: Application of Part 7 to Crown land

Part 1: General

1599 Schedule 18 makes provision for Part 7 to have effect with modifications in certain cases where an interest in Crown land is held by or on behalf of the Crown.

1600 Paragraph 2 defines "Crown land" and who is the appropriate authority in relation to each of the categories of Crown land. In cases where it is the appropriate authority that holds an interest in Crown land held by or on behalf of the Crown, Part 7 can be left to operate in the normal way. The appropriate authority is the landowner and can create a conservation covenant. Any obligation of the authority under the covenant will be an obligation of the landowner in the ordinary way. Where that is not the case, the intention is that any obligation under a conservation covenant created by the Crown, or under a conservation covenant affecting land acquired by the Crown, should be an obligation of the appropriate authority, rather than of the Crown entity that holds the relevant estate in land.

Part 2: Conservation covenants relating to Crown land held by a person other than the appropriate authority

Arrangements for the purposes of section 98

1601 To that end, paragraph 3 enables a conservation covenant to be created, not by the Crown entity that holds the relevant estate in land, but by the appropriate authority acting in its place. An obligation of the appropriate authority under such a conservation covenant is then treated for the purposes of Part 7 as an obligation of the landowner.

Modification of Part 7 in relation to obligations under certain Crown conservation covenants

1602 Paragraphs 5 to 9 accordingly modify various provisions in Part 7 to deal with the fact that, in this special case, the appropriate authority will act in place of the Crown entity holding the relevant estate in land (for example, an obligation of the landowner needs to bind the appropriate authority), but the provisions about successors still have to operate by reference to the actual landowner.

Part 3: Other modifications of Part 7

Cases where estate in land to which conservation covenant relates has been acquired by the Crown and is held by person other than the appropriate authority

1603 Paragraphs 10 to 14 deal with the case where an interest in land to which an obligation under a conservation covenant relates is acquired by the Crown and the relevant estate in land is not held by the appropriate authority. In this case, the intention is that it should be the appropriate authority that is subject to any obligation of the landowner under the covenant, or entitled to the benefit of any obligation of the responsible body under the covenant, instead of the Crown entity that holds the relevant estate in land. To that end, paragraphs 11 to 14 provide for various provisions in Part 7 to have effect, in this special case, with appropriate modifications.

Agreements under sections 108(1), 109(1) and 110(1)

1604 Paragraphs 15 to 18 provide for clauses 108 to 110 to have effect with modifications to deal with the fact that Parts 2 and 3 of the Schedule may produce the result, exceptionally, that the appropriate authority may be bound by an obligation of the landowner under a conservation covenant, or entitled to the benefit of an obligation of the responsible body under a conservation covenant, without being the holder of the relevant estate in land.

Schedule 19: Consequential amendments relating to Part 7

1605 Schedule 19 makes consequential amendments relating to two main issues. Firstly, it ensures that holders of conservation covenants will be notified if a public authority seeks compulsorily to acquire the burdened land. Secondly, it enables public authorities to develop land that has been acquired for planning purposes in accordance with planning permission, even if it requires overriding conservation covenants (except conservation covenants held by the National Trust).

Acquisition of Land Act 1981 (c. 67)

1606 Paragraphs 2 and 3 amend section 12 of and paragraph 3 of Schedule 1 to the Acquisition of Land Act 1981 to ensure that a person entitled to the benefit of an obligation under a conservation covenant will be notified if a compulsory purchase order is made or proposed with respect to land to which the obligation relates. Any objection made in response to such a notice will be treated as a "relevant objection" for the purposes of that Act.

Housing and Planning Act 2016 (c. 22)

1607 Paragraphs 4 to 7 amend the Housing and Planning Act 2016 to cover a number of points in respect of developing land acquired for planning purposes which is subject to a conservation covenant.

1608 Paragraph 5(2) amends sections 203(1)(b) and 203(4)(b) of that Act so that local authorities and other public and quasi-public bodies, in carrying out their normal functions for the public benefit, can rely on section 203 of the Act to override the covenant’s obligations in land that has been acquired for planning purposes and is developed or used in accordance with that section.

1609 Paragraph 5(3) amends section 203(10) of that Act to ensure that obligations under a conservation covenant owed to the National Trust cannot be overridden under section 203 of that Act.

1610 Paragraph 6 amends section 204 of that Act so that compensation is not available to the beneficiary of an obligation under a conservation covenant under this section of the Act by virtue of the conservation covenant having been overridden under section 203. This reflects the nature of conservation covenants as distinct from an interest in property and as agreements entered into for the public good.

Neighbourhood Planning Act 2017 (c. 20)

1611 Paragraphs 8 to 12 amend the Neighbourhood Planning Act 2017 in connection with the use, in accordance with section 27 of that Act, of land which an acquiring authority has temporarily possessed. Paragraph 9 amends section 20 of that Act so that a person entitled to the benefit of an obligation under a conservation covenant is to be notified before an authority takes temporary possession of the land to which the obligation relates. Paragraphs 10 and 11 amend section 23 and 27 of that Act so as: (i) to make clear that the acquiring authority is not bound by obligations under a conservation covenant relating to the land by virtue of acquiring a right to use land under section 27 of that Act and that in using land under that section it may cause a person to be in breach of an obligation under a conservation covenant relating to the land; (ii) to provide that a person entitled to the benefit of an obligation under a conservation covenant is not eligible for compensation under section 23 of that Act; and (iii) to provide that in using land under section 27 of that Act, the acquiring authority may not cause a person to be in breach of an obligation owed to the National Trust under conservation covenants (or use land in such a way that, if a person permitted or suffered such use, that person would be in breach of such an obligation). The relevant provisions of the Neighbourhood Planning Act 2017 are not currently in force.

Schedule 20: Amendment of REACH legislation

Amendment of the REACH Regulation

1612 Paragraph 1 of Schedule 20 give the Secretary of State the power to amend the Articles of the REACH Regulation, as amended by the REACH Exit Statutory Instrument. The provision excludes certain Articles, including those which set out the fundamental aims and principles of REACH.

1613 Any regulations made under this power must be consistent with Article 1 of the REACH Regulation which sets out its aim and scope. The Secretary of State must publish a statement to explain how this condition is met. Certain protected provisions are excluded from the power to amend the REACH Regulation, except where this is consequential etc. to another amendment. These protected provisions are listed in paragraph 6 of this Schedule. Regulations made under this power are subject to the affirmative procedure.

Amendment of the REACH Enforcement Regulations 2008

1614 Paragraph 2 of Schedule 20 give the Secretary of State the power to amend the REACH Enforcement Regulations 2008 (the "REACH Enforcement Regulations").

1615 Any regulations made under this power must be necessary or appropriate for, or in connection with, the enforcement of the REACH Regulation. Regulations may create new criminal offences or extend the scope of existing ones connected to the enforcement of the REACH Regulation. Penalties are restricted to the maximum levels that could be provided for under section 2(2) of the European Communities Act 1972 by virtue of paragraph 1(d) of Schedule 2 to that Act as it applies in the different nations of the UK. Regulations made under this power are subject to the affirmative procedure.

1616 The REACH Regulation and the REACH Enforcement Regulations relate to a mixture of devolved and reserved matters. Under paragraph 3 the Secretary of State can only make regulations under this Schedule with the consent of the Devolved Administrations to the extent that the function is within devolved competence. Paragraph 4 provides for the Devolved Administrations to be able to request that the Secretary of State makes regulations.

1617 Paragraph 5 of the Schedule requires the Secretary of State to consult the UK REACH Agency (the Health and Safety Executive) and other people she considers appropriate, or who are nominated by a Devolved Administration, before exercising these powers.  

1618 Paragraph 6 lists the protected provisions in the REACH Regulation that cannot be amended under this Schedule (see paragraph 1 of the Schedule). These protected provisions relate to the fundamental principles of UK REACH, the role of the Devolved Administrations, transparency, and collaboration between the Agency and other bodies. The Annexes to the REACH Regulation are also excluded because the REACH Regulation itself contains the necessary powers to amend them.

1619 Schedule 20 extends, and applies, to the whole of the United Kingdom.

Consent of the devolved administrations

1620 The REACH Regulation and the REACH Enforcement Regulations relate to a mixture of devolved and reserved matters. Paragraph 3 states that the Secretary of State can only make regulations under this Schedule with the consent of the Devolved Administrations to the extent that the function is within devolved competence.

Requests by devolved administrations for exercise of powers under this Schedule

1621 Paragraph 4 provides for the Devolved Administrations to be able to request that the Secretary of State makes regulations.

Consultation

1622 Paragraph 5 of the Schedule requires the Secretary of State to consult the UK REACH Agency (the Health and Safety Executive) and other people she considers appropriate, or who are nominated by a Devolved Administration, before exercising these powers.

The protected provisions

1623 Paragraph 6 lists the protected provisions in the REACH Regulation that cannot be amended under this Schedule (see paragraph 1). These protected provisions relate to the fundamental principles of UK REACH, the role of the Devolved Administrations, transparency, and collaboration between the Agency and other bodies. The Annexes to the REACH Regulation are also excluded because the REACH Regulation itself contains the necessary powers to amend them.

1624 Schedule 20 extends, and applies, to the whole of the United Kingdom.