Regulators and Enforcement: Environment

The Department for Environment, Food and Rural Affairs (Defra) launched its Smarter Guidance and Data project, on 16 May 2013, as a result of the government's Red Tape Challenge.

The Growth and Infrastructure Act 2013 (Commencement No. 1 and Transitional and Saving Provisions) Order 2013 (SI 2013/1124) has been made, bringing into force certain provisions of the Growth and Infrastructure Act 2013.

The Crime and Courts Act 2013 (Commencement No.1 and Transitional and Saving Provision) Order 2013 has been published on legislation.gov.uk.

The Crime and Courts Bill 2012-13 received Royal Assent on 25 April 2013. This update focuses on the key environmental implications.

The Natural Resources Body for Wales Transfer Scheme 2013 was made on 26 March 2013 and came into force on 1 April 2013. Natural Resources Wales (NRW) became operational on 1 April 2013.

The Sentencing Council published a draft sentencing guideline on environmental offences for consultation, on 14 March 2013.

The European Commission launched a consultation on inspections by environmental authorities, on 22 February 2013.

The Financial Services Act 2012 (Commencement No. 2) Order 2013 (SI 2013/423) was made on 26 February 2013.

The making document containing the new and amended practice directions, which are part of the 60th update to the Civil Procedure Rules, is now available.

The seventh version of the Code for Crown Prosecutors was published on 28 January 2013.

On 9 February 2013, Regulation (EU) 100/2013 of the European Parliament and of the Council amending Regulation (EC) 1406/2002 establishing a European Maritime Safety Agency, was published in the Official Journal. Under this new Regulation, the mandate of the European Maritime Safety Agency is extended to enable the Agency to also intervene, upon request from the member states concerned, in the event of pollution from oil and gas installations, and not only from ships, as under Regulation (EC) 1406/2002.

The government launched a Red Tape Challenge which focuses on planning administration, on 31 January 2013.

The Welsh Government (WG) launched a consultation on Natural Resources Wales' (NRW) enforcement and prosecution policy, and proposed guidance, on 17 January 2013.

The Ministry of Justice has laid before Parliament two draft statutory instruments that relate to the changes being implemented by the Jackson reforms in relation to damages-based agreements and conditional fee agreements.

The Environment Agency (EA) announced the successful conclusion of its largest prosecution of hazardous waste electrical and electronic equipment (WEEE) export, on 6 December 2012.

The Ministry of Justice has published a consultation on proposals to reform the judicial review process primarily in relation to time limits, the procedure for applying for permission and fees.

The first appeal to the First-tier Tribunal General Regulatory Chamber (Environment), against a remediation notice under the Marine and Coastal Access Act 2009, settled on 22 October 2012. (Free access.)

The Department for Business, Innovation and Skills (BIS) has announced that it will revise its "one-in, one-out" policy on new regulation to "one-in, two-out" from January 2013.

The Environment Agency published the final version of its guidance for property developments requiring both planning permission and environmental permits in October 2012.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 3 and Saving Provision) Order 2012 (SI 2012/2770) was made on 1 November 2012. The commencement order brings the scrap metal provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) into force on 3 December 2012. The Scrap Metal Dealers Bill 2012-13 passed its third reading in the House of Commons on 9 November 2012.

On 29 October 2012, Ofgem confirmed that it has imposed a fine of £125,000 on Opus Energy Limitedafter finding that it had misreported the amount of electricity supplied under the government's Renewable Obligation.

The Public Bodies (Abolition of Environment Protection Advisory Committees) Order 2012 (SI 2012/2407) was made on 18 September 2012 and comes into force on 19 September 2012.

The Department for Environment, Food and Rural Affairs (Defra) published its implementation plan for reform of environmental legislation, which is part of the government's Red Tape Challenge, on 14 September 2012.

The Department for Business, Innovation and Skills (BIS) has announced a number of measures to reduce the health and safety burden on businesses.

A summary of a blog post by Howard Price, Principal Policy Officer of the Chartered Institute of Environmental Health on liability of local authorities for payment of EU financial sanctions under the Localism Act 2011, posted on PLC Public Sector's blog on 29 August 2012.

The Welsh Government launched a consultation on the legal and working arrangements and duties of the new Natural Resources Body for Wales on 13 August 2012.

The Department of Energy and Climate Change (DECC) announced its proposals following its review of energy legislation as part of the government's Red Tape Challenge, on 7 August 2012.

The government has made the British Waterways Board (Transfer of Functions) Order 2012 (SI 2012/1658) and the Inland Waterways Advisory Council (Aboliton) Order 2012 (SI 2012/1658).

The Health and Safety Executive (HSE) has announced a consultation on 32 of the 52 Approved Codes of Practice (ACoPs) that it publishes.

The Environment Agency launched a consultation, on 12 June 2012, on new and revised standard rules for environmental permits for installations that will be covered by the Industrial Emissions Directive (Directive 2010/75/EU on industrial emissions (integrated pollution prevention and control)) and some waste and water discharge operations.

The draft Natural Resources Body for Wales (Establishment) Order 2012 was laid before the National Assembly for Wales on 28 May 2012.

In May 2012, the Environment Agency (EA) published a number of guides on its role as a statutory consultee under the National Planning Policy Framework (NPPF), along with draft guidelines for developments that need both planning permission and an environmental permit.

The Crime and Courts Bill 2012-13 has received its first reading in the House of Lords.

The Environment Agency (EA) published Working at construction and demolition sites: Pollution Prevention Guidelines (PPG) 6, on 1 April 2012.

The Department for Environment, Food and Rural Affairs (Defra) announced its proposals following its review of environmental legislation as part of the government's Red Tape Challenge, on 19 March 2011.

The Environment Agency (EA) announced, on 13 February 2012, that it has accepted 14 offers by offenders to make donations to environmental charities in the last year. The offers have been made as part of enforcement undertakings under the civil sanctions regime.

The Department for Environment, Food and Rural Affairs (Defra) launched the Water and Marine Red Tape Challenge, which runs for five weeks, on 17 February 2012.

The Department for Environment, Food and Rural Affairs (Defra) launched a consultation on amending local authorities' enforcement powers relating to presentation of waste for collection, under section 46 of the Environmental Protection Act 1990, on 16 January 2012.

The Environment Agency (EA) published Standard Rules for Environmental Permitting Regulations – Consultation No.7: Summary of Consultation responses (November 2011), on 4 January 2011.

The Public Bodies Bill 2010-11 received Royal Assent on 14 December 2011. The Public Bodies Act 2011 contains a number of environmental provisions, including the devolution of certain powers to Welsh Ministers to modify and transfer the environmental functions of certain regulators.

Following the Health and Safety Executive's (HSE) CD235 - HSE proposal for extending cost recovery, a consultation that proposed charging businesses for the HSE's time, the HSE has collated responses and made implementation proposals. The scheme is known as a fee for intervention (FFI).

We have created a page with links to PLC's Autumn Statement coverage. (Free access.)

The Court Funds Office will be moving to a new address in Glasgow from 5 December 2011. It will not be accepting or making any payments between 30 November and 2 December 2011. (Free access).

On 14 November 2011, the Environment Agency launched a consultation on updated pollution prevention guidance, "Introducing Pollution Prevention: PPG1". The updated guidance will replace the existing guidance entitled "General guide to the prevention of pollution: PPG1".

The government issued a consultation on protective costs orders in environmental judicial review claims on 19 October 2011.

The UK regulators published various guidance documents for radioactivity exemptions from the Environmental Permitting regime to accompany the Environmental Permitting (England and Wales) (Amendment) Regulations 2011 (SI 2011/2043) and equivalent legislation for Scotland and Northern Ireland, in September 2011.

The Department for Environment, Food and Rural Affairs (Defra) published guidance on the scope of and exemptions from UK radioactive substances legislation on 14 September 2011. On 16 September it published updated versions of its guidance for radioactive substances in the Environmental Permitting (EP) regime and its core guidance for the EP regime. 

The government has issued a supplementary consultation on specific aspects of the proposed transfer of British Waterways's functions to a new charity.

The Cabinet Office is inviting comments on environmental legislation, from 1 September 2011, as part of its Red Tape Challenge. (Free access.)

The Department for Environment, Food and Rural Affairs has published responses to its consultations on the draft Environmental Permitting (England and Wales) (Amendment) Regulations 2011, in August 2011.

Natural England launched a consultation on the use of civil sanctions for its environmental enforcement on 8 August 2011.

The Environment Agency (EA) announced that it had imposed the first civil sanctions for breach of environmental legislation, on 22 July 2011.

In the second case of its kind, Lion Steel Ltd has been charged with corporate manslaughter following the death of an employee who fell through a roof. Corporate manslaughter (in Scotland, corporate homicide) has been a criminal offence under the Corporate Manslaughter and Corporate Homicide Act 2007 since the Act came into force on 6 April 2008.

The government and Environmental Services Association agreed the Responsibility Deal to encourage waste recycling, on 23 June 2011. 

On 23 June 2011, the Department for Business Innovation and Skills issued two consultations on transforming regulatory enforcement: Transforming regulatory enforcement: freeing up business growth: a discussion document (Consultation), June 2011. The future of the Local Better Regulation Office and extending the benefits of the Primary Authority Scheme: a consultation, June 2011.

The Environment Agency (EA) published updated horizontal guidance (dated March 2011), H4 Odour Management, for operators regulated under the Environmental Permitting regime, in June 2011.

The Environment Agency (EA) published updated guidance on nitrate vulnerable zones (NVZs) aimed at the farming sector in May 2011.

An Ask the team article about whether a previous criminal conviction, whether in the UK or abroad, is admissible in civil proceedings in England and Wales as proof that an offence has been committed.

The Wales (Prevention of Pollution) (Code of Good Agricultural Practice) (Wales) Order (SI 2011/1012) came into force on 19 April 2011.

WWF-UK announced, on 4 May 2011, that after talks with the Department for Environment Food and Rural Affairs (Defra) and the Environment Agency (EA), it has withdrawn its application for judicial review of the government's implementation of the Water Framework Directive (WFD) (Directive 2000/60/EC establishing a framework for the Community action in the field of water policy), particularly in relation to River Basin Management Plans (RBMPs).

The Department for Business, Innovation and Skills (BIS) published its first statement under the government's "one in, one out" strategy for reducing red tape for businesses, in April 2011.

The European Commission announced that it is taking the UK before the Court of Justice of the European Union (ECJ) for failing to ensure that claimants can challenge decisions affecting the environment in a way that is fair, equitable, timely and not prohibitively expensive. This is required under the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) and EU implementing legislation.

The government has launched its "Red Tape Challenge", aimed at reducing the burden of regulation. (Free access.)

HM Courts Service (HMCS) recently merged with the Tribunals Service to become HM Courts and Tribunals Service. As a result, the old HMCS website (hmcourts-service.gov.uk) has changed and information has been split between three different websites: Justice. Directgov. Businesslink. 

On 29 March 2011, the government published its response to the consultation on Jackson LJ's recommendations for reforming civil litigation funding and costs. It intends to implement almost all of his primary recommendations, including abolishing the recoverability of success fees in conditional fee agreements and the recoverability of after the event insurance premiums.

The Health and Safety Executive and UK government launched an informal consultation on two sets of draft plant protection product regulations on 1 March 2011.

Two companies, TCEI and Holcim, made an application to the Belgian Court of First Instance to force the European Commission to disclose information relating to stolen EU Emissions Trading Scheme (EU ETS) allowances, on 21 February 2011.

Natural England adopted revised basic advice on protected species for local planning authorities, in February 2011.

Cotswold Geotechnical (Holdings) Ltd, which had been found guilty of corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007, has been sentenced and ordered to pay a fine of £385,000.

A consultation about the future ownership and management of the public forest estate in England.

The government's chief planner has written to all waste planning authorities to remind them of the importance of implementing local waste plans to ensure the UK complies with the Waste Framework Directive (2008/98/EC).

The Environment Agency updated its regulatory position statement, Regulatory Framework for the implementation of the Mining Waste Directive, in early December 2010.

The Ministry of Justice has announced the outcome of its consultations on possible court closures.

The Environment Agency (EA) has published the Greener business report, its annual review of industry's environmental performance in England and Wales in 2009, on 24 November 2010.

The European Commission submitted a consultation on the implementation report of the Aarhus Convention to the Aarhus Secretariat on 17 November 2010.

The Department for Environment, Food and Rural Affairs (Defra) published revised guidance for Local Authority Integrated Pollution Prevention and Control (LA-IPPC) and Local Authority Pollution Prevention and Control (LA-PPC) sites, in October 2010.

The Ministry of Justice has published a consultation on Jackson LJ's proposals for reform following his comprehensive Civil Litigation Costs Review. (Free access).

The government has responded to the final report of the Penfold Review, which examined the processes by which developers obtain consents (other than planning permission) for their projects.

The Ecodesign for Energy-Related Products Regulations 2010 (SI 2010/2617) were made on 27 October 2010 and come into force on 20 November 2010.

On 18 October 2010, the Aarhus Convention Compliance Committee issued its findings in respect of the UK's compliance with the Aarhus Convention, in cases  ACCC/C/2008/23, ACCC/C/2008/27 and ACCC/C/2008/33. On 15 October 2010, the UK government launched a consultation on its draft report on how the UK has implemented the Aarhus Convention.

On 14 October 2010, the Department for Environment, Food and Rural Affairs (Defra) invited views from stakeholders using a short survey on what its Water White Paper should contain.

The European Chemicals Agency (ECHA) announced, on 18 October 2010, that it will shortly cease contacting companies before making information from REACH registration dossiers available on its website.

Lord Young of Graffham's report, Common Sense Common Safety, has been published following a review of the operation of health and safety laws and the growth of the compensation culture in Britain.

The Environment Agency (EA) issued a consultation on guidance for spreading waste on land, on 4 October 2010.

The Environment Agency (EA) published technical guidance, The surrender of permits for the permanent deposit of waste, for closed landfill sites in September 2010.

The Department for Environment, Food and Rural Affairs (Defra) launched a consultation, on 3 September 2010, on changes to the Environmental Permitting (EP) regime to implement Directive 2009/31/EC on the geological storage of carbon dioxide (CCS), prevent double regulation of offshore CCS and cut regulation of gas production from anaerobic digestion (AD) for offsite use. 

The Environment Agency (EA) has brought its first prosecution under the waste electrical and electronic equipment (WEEE) regime. The trial was held in September 2010.

On 6 September 2010, the Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2010 (SI 2010/2172) were laid before Parliament. They will come into force on 1 October 2010 and make minor changes to the environmental permitting regime.

On 25 August 2010, the Law Commission published a wide-ranging consultation paper on issues connected with criminal liability in regulatory contexts.

The Department of Energy and Climate Change (DECC) and the devolved administrations launched a consultation on revised proposals for radioactive substances exemptions under the second phase of the Environmental Permitting regime on 11 August 2010.

The Environmental Civil Sanctions (Wales) Order 2010 (SI 2010/1821) and the Environmental Civil Sanctions (Miscellaneous Amendments) (Wales) Regulations 2010 (SI 2010/1820) were made on 14 July 2010 and came into force on 15 July 2010.

An update on a consultation, launched by the Department for Environment, Food and Rural Affairs (Defra) on 19 July 2019, on the draft Animal By-Products (Enforcement) (England) Regulations 2011.

An update on the sentences handed down by St Albans Crown Court to the defendants in the Buncefield explosion trial, on 16 July 2010.

An update on the first reported use of enforcement powers under the Environmental Damage (Prevention and Remediation) Regulations 2009 (SI 2009/153) (by Mid Devon District Council).

A legal update on a letter published on 6 July 2010 to Chief Planning Officers announcing the revocation of Regional Strategies.

A report about the ASA's preliminary response to its process review, which was published in June 2010.

An update on the verdicts, given in June 2010, in the criminal trial of the defendants to charges in connection with the Buncefield explosion in 2005.

An update on the publication of the European Commission Decision of 8 June 2010 amending Decision 2007/589/EC as regards the inclusion of monitoring and reporting guidelines for greenhouse gas emissions from the capture, transport and geological storage of carbon dioxide (2010/345/EU) in the Official Journal on 22 June 2010.  

A legal update on Oluić v Croatia [2010] ECHR 686.

An update on the publication by the Environment Agency, in April 2010, of new guidance on enforcement of the Environmental Permitting (EP)  regime.

An update on a letter written by the European Commission to the UK, on 18 March 2010, warning of its failure to implement the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters.

An update on the publication by the Environment Agency, in April 2010, of new standard rules and new and revised guidance on the Environmental Permitting regime.

An update on the Environmental Civil Sanctions (England) Order 2010 (SI 2010/1157) and the Environmental Civil Sanctions (Miscellaneous Amendments) (England) Regulations 2010 (SI 2010/1159) made on 26 March 2010, which came into force on 6 April 2010.

An update on the Environment Agency's consultation, Fairer and Better Environmental Enforcement: Implementing the new civil sanctions, launched on 15 March 2010, and related stakeholder events.

An update on Directive 2010/32/EU amending Directive 2006/112/EC on the common system of value added tax, as regards an optional and temporary application of the reverse charge mechanism in relation to supplies of certain services susceptible to fraud, which will come into force on 9 April 2010.

An update on the adjudication by the Advertising Standards Authority, on 17 March 2010, concerning the Department of Energy and Climate Change's (DECC) nursery rhyme-themed climate change advertisements in 2009-10.

An update on revised rules in the revised codes of the Committee of Advertising Practice (CAP) and Broadcast Committee of Advertising Practice (BCAP) relating to environmental (green) claims in advertising, which come into force on 1 September 2010.

An update on the Environmental Permitting (England and Wales) Regulations 2010 (SI 2010/675), which were made on 10 March 2010 but have not yet been published in final form. NOTE: The final version of the Regulations have since been published. For more information, see Legal update, Environmental Permitting Regulations 2010: a summary.

An update on the Infrastructure Planning Commission (IPC), which started accepting applications for development consent from 1 March 2010.

A legal update on Bristol Crown Court's decision to adjourn the first corporate manslaughter trial, which was due to begin on 23 February 2010.

An update on the Mercury Export and Data (Enforcement) Regulations 2010 (SI 2010/265), which were made on 4 February 2010 and the principal provisions of which come into force on 8 March 2010.

An update on the announcement, made by the Department for Environment, Food and Rural Affairs on 2 February 2010, that the Environment Agency and Natural England will be the first regulators to be given the power to impose civil sanctions under the Regulatory Enforcement and Sanctions Act 2008.

An update on the environmental litigation costs issues arising from Lord Justice Jackson's Review of Civil Litigation Costs: Final Report, published on 14 January 2010.

An update on the publication of Lord Justice Jackson's Review of Civil Litigation Costs: Final Report, published on 14 January 2010.

An update on a consultation, launched by the Department for Environment, Food and Rural Affairs and the Welsh Assembly Government and dated December 2009, on proposed guidance on the Groundwater (England and Wales) Regulations 2009 (SI 2009/2902). 

An update on an environmental management toolkit for small and medium-sized businesses (SMEs), issued by the Environment Agency in December 2009.

An update on the publication by the Department of Energy and Climate Change (DECC), on 4 December 2009, of the Government's response to its consultation on proposals for a future exemptions regime under the Radioactive Substances Act 1993 and the forthcoming Environmental Permitting Regulations 2010.

An update on a consultation on additional draft guidance for water discharge activities under Phase 2 of the Environmental Permitting (EP) Programme, launched by the Department for the Environment, Food and Rural Affairs on 27 November 2009.

An update on publication, by the Local Authorities Coordinators of Regulatory Services (LACORS), on 2 November 2009, of a Memorandum of Understanding between the Environment Agency, Natural England, LACORS, the Marine and Fisheries Agency, the Countryside Council for Wales, the Welsh Assembly Government and the Joint Nature Conservation Committee on the enforcement of the Environmental Damage (Prevention and Remediation) Regulations 2009 (SI 2009/153) in England and the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 (SI 2009/995) in Wales.

An update on guidance published by the Environment Agency, on 29 October 2009, for operators dealing with annual reporting requirements under the EU Emissions Trading Scheme (EU ETS).

An update on the announcement by the European Commission, on 8 October 2009, that it will bring infraction proceedings against the UK for breach of the Urban Waste Water Treatment Directive (91/271/EEC).

An update on a consultation by the Department for Environment, Food and Rural Affairs, the Welsh Assembly Government and the Environment Agency, launched on 15 October 2009, for waste operations exempted from regulation under the Environmental Permitting (EP) regime.

An update on the publication by the Government, on 30 September 2009, of its response to the consultation on extending the Environmental Permitting regime to include water discharge consents, groundwater authorisations and radioactive substances authorisations (EPP2).

An update on a consultation launched by the Environment Agency (EA), on 4 September 2009, on six sets of new and revised standard permit rules for certain activities that are, or will be, subject to the environmental permitting regime.

An update on the Local Government Ombudsman Report on an investigation into complaint no 08 001 152 against the London Borough of Lewisham.

An update on the first corporate manslaughter trial, which has been listed for February 2010.

A report about the new UK Supreme Court.

On 23 July 2009, the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2009/1976) and the Tribunal Procedure (Amendment No. 2) Rules 2009 (SI 2009/1975) were published on the website of the Office of Public Sector Information, with an accompanying explanatory memorandum.

An update on the Control of Major Accident Hazards (Amendment) Regulations 2009 (SI 2009/1595), which come into force on 1 July 2009, and the Health and Safety Executive's (HSE) revised guidance on the COMAH regime, published in June 2009, as a result of the Chemicals (Hazard Information and Packaging for Supply) (Amendment) Regulations (SI 2008/2337).

An update on the adoption by the EU of the Nuclear Safety Directive on 25 June 2009.

An update on the publication by the Environment Agency (EA), in June 2009, of guidance for the aviation industry on complying with the EU Emissions Trading Scheme (EU ETS).

An update on the first corporate manslaughter case, which has been committed to the Crown Court for trial.

An update on the sentencing, by West Bromwich Magistrates' Court, of Biffa Waste Services Limited for three breaches of its pollution prevention and control permit under the Pollution Prevention and Control (England and Wales) Regulations 2000 (SI 2000/1973) on 27 May 2009.

An update on the draft Environmental Permitting (England and Wales) (Amendment) Regulations 2009 laid before Parliament and the National Assembly of Wales in May 2009 and expected to come into force on 7 July 2009.

An update on publication by the Environment Agency of its regulatory position statement, Nitrate Vulnerable Zones in England and Wales: Interim position on compliance assessment and enforcement (April 2009).

An update on a consultation by the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice, on draft revised advertising codes launched on 26 March 2009 and including an amended section to the CAP code on environmental claims.

An update about the launch of consultations to reform the CAP and BCAP codes in March 2009.

On 23 March 2009, a Green Paper "Rights and responsibilities: developing our constitutional framework" was published in Parliament.

An update on the Planning Act 2008 (Commencement No. 1 and Savings) Order 2009.

An update on the launch of a consultation, on 16 February 2009, by the Government on extending the Environmental Permitting regime to include water discharge consents, groundwater authorisations and radioactive substances authorisations.

An update on the Infrastructure Planning Commission Implementation Route Map published by the Department for Communities and Local Government, on 27 January 2009, dealing with the establishment of the Infrastructure Planning Commission (IPC), and the drafting of National Policy Statements (NPSs), required by the Planning Act 2008.

The EU has adopted a directive on the protection of the environment through criminal law.

An update on the provisions on the recovery of criminal assets and related powers in the Policing and Crime Bill, which was introduced into Parliament on 18 December 2008.

An update on the Health and Safety (Offences) Act 2008, which increases the maximum penalties for breach of the Health and Safety at Work etc Act 1974.

An update on a draft Directive, published by the European Commission on 26 November 2008, that proposes an EU regulatory framework for nuclear safety.

An update on the prosecutions, scheduled for January 2009, under the Health and Safety at Work etc. Act 1974, the Water Resources Act 1991 and the Control of Major Accident Hazard Regulations 1999 (COMAH), of five companies involved in the Buncefield fire and explosion in 2005.

An update on the Queen's Speech, delivered on 3 December 2008.

The European Commission has produced draft guidance relating to Annex V of the Registration, Evaluation, Authorisation and Restriction of Chemicals Regulation.

An update on a joint statement by the Environment Agency and related bodies giving regulatory support to local authorities and waste management companies having to store recyclable materials that they are unable to sell due to the global economic downturn.

An update on a ruling by the Advertising Standards Authority, on 15 October 2008, upholding a complaint made by British Gas about green energy claims made by Scottish and Southern Energy in a TV advertisement.

An update on Guidance on Planning Propriety Issues, a publication giving guidance to Planning Ministers on planning decisions and appeals.

The Environment Agency has published a second consultation on the new and revised sets of standard rules and generic risk assessments under the Environmental Permitting Regulations 2007.

R v RL and JF [2008] EWCA Crim 1970 This case deals with the criminal liability of an unincorporated association (a golf club) and of its individual members, following a prosecution for pollution of a watercourse under section 85 of the Water Resources Act 1991 (the Act). The Court of Appeal held that: The golf club could have been prosecuted as an unincorporated association for this offence. A prosecution under section 85 of the Act (on the facts of this case) could also have been brought against the individual members. It is for the Crown to determine the defendant in any individual case.

On 18 July 2008, the Government's nature and landscape conservation body, Natural England, launched a consultation on its draft enforcement policy. The consultation, which closes on 18 October 2008, will be of interest to a wide range of businesses whose operations are affected by nature and landscape conservation, including development works near Sites of Special Scientific Interest and other protected areas.

The Advertising Standards Authority (ASA) has ruled that an ad in the national press published by Shell on its Canadian tar sands activities was misleading (see ASA decision). Shell claimed it was helping to provide a sustainable future by exploring the energy potential of the tar sands. The Canadian tar sands are being strip mined so that recovered bitumen can be turned into oil. WWF complained to the ASA over the use of the word "sustainable". In particular, WWF challenged whether by harnessing the potential of the Canadian oil sands deposit, and by helping to build the largest refinery in the US, Shell was creating and helping sustainable production.The ASA upheld WWF's complaints and rejected Shell's argument that the definition of "sustainable", as taken from the 1987 Bruntland Commission report, involved supporting economic and social development over time through the development of affordable convenient energy.The ASA referred to the Government's guidance, which states that environmental claims should not be vague or ambiguous and should avoid the vague use of terms such as "sustainable". Although the term is widely used, the lack of a universally agreed definition meant it was likely to be ambiguous and unclear to consumers. Shell had not submitted any data showing how it was effectively managing carbon dioxide emissions from its oil sands projects. The ASA ruled that the ad must not appear again in its current form.The ASA's ruling is likely to have reperc

The Department for the Environment, Food and Rural Affairs and the Department for Business, Enterprise and Regulatory Reform, in conjunction with the devolved administrations, are consulting on the enforcement of the Regulation on the Registration, Evaluation, Authorisation and Registration of Chemicals.

The following is a recent example of the risks associated with petrol underground storage tanks (USTs) and the type of costs a company can incur if it causes pollution (be it water or soil pollution). On 25 June 2008, Shell UK Oil Products was prosecuted by the Environment Agency (EA) under section 85(1) of the Water Resources Act 1991 for causing groundwater pollution (see EA press release). Petrol from a UST had leaked, causing pollution of a major aquifer used by Anglian Water to abstract drinking water. According to the EA, this was a serious incident, with clean-up works likely to continue for a number of years. The company: Was fined £18,000 by the Grimbsy Magistrates' Court. Was ordered to pay the EA's costs of £53,198. Had to pay Anglian Water around £5 million for clean-up of the pollution. For further information on the prosecution and sentencing of environmental offences, see: Practice note, How are environmental offences prosecuted? Practice note, Sentencing of environmental offences. For information on the environmental regime applicable to USTs, including codes of best practice, see Business Link website: Oil storage.  

On 2 June 2008, the Government launched a consultation on enforcement in the UK of the new EU chemicals regime under the Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals (1907/2006/EC) (REACH). The REACH regime came into force on 1 June 2007 and is being phased in gradually.The Government is planning to introduce UK enforcement regulations that build on existing regulatory regimes and regulators, particularly from the health and safety regime.The new enforcement regulations are expected to be laid before Parliament by November 2008.The consultation closes on 25 August 2008.

On 6 April 2008, Phase 1 of the Environmental Permitting Programme came into force for the waste management and pollution prevention and control (PPC) regimes. The Government is considering including the following regulatory regimes as a priority in Phase 2 of the Environmental Permitting regime: Radioactive substances. Water discharges. Groundwater authorisations. Other possible candidates for Phase 2 include the following: The regime which will implement the Mining Waste Directive (2006/21/EC). The regime which will implement the Batteries Directive (2006/66/EC). The regime which applies to certain waste carriers and brokers not included in the waste management regime.The regime which applies to water abstraction and impoundment. Formal consultations will start in autumn 2008, but businesses potentially affected by Phase 2 should already be planning for these important changes and take part in the Government's stakeholder forums.

The Crown Court has fined Shell UK Oil Products Limited for failure to contain a flammable toxic gas.

On 1 April 2008, the Health and Safety Executive (HSE) and the Health and Safety Commission (HSC) merged to form a single regulatory body for promoting better health and safety at work (see DWP press release).The HSE and HSC were originally set up as separate, non-departmental bodies to distance the HSC's strategic functions from the HSE's day-to-day working functions. The new regulatory body will also be known as the HSE. The Legislative Reform (Health and Safety Executive) Order 2008 brought the merger into effect on 1 April 2008.For further information on the merger, see Legal update, Merger of Health and Safety Commission and Executive.

On 18 March 2008, the Chemical Business Association and Solvent Industries Association (SIA) published new guidance on the storage of liquids by the chemicals industry in Intermediate Bulk Containers (IBCs) (see SIA press release). The guidance:Has been prepared in consultation with the principal site regulator, the Health and Safety Executive (HSE).Sets out good practice for the chemicals industry, which is increasingly using IBCs for storage, transport and waste disposal.Recognises the fire hazard that plastic or composite IBCs in particular can cause.Provides a reference point for the HSE on inspections for assessing good practice in operating standards.The guidance is separate from the recently revised containment guidance issued in February 2008 by the HSE and the Environment Agency in relation to sites subject to the Control of Major Accident Hazards (COMAH) Regulations (see Legal update, COMAH containment policy revised).

The Department for the Environment, Food and Rural Affairs, jointly with the Welsh Assembly Government, has published guidance on the Environmental Permitting Programme.

The Assets Recovery Agency (Abolition) Order 2008 will abolish the Assets Recovery Agency (ARA) with effect from 1 April 2008. The ARA's functions will be transferred to the Serious Organised Crime Agency (SOCA) by virtue of the Serious Crime Act 2007. The ARA is responsible for confiscating the proceeds of crime. It has the power to confiscate assets equal to any financial benefit gained from a criminal activity. The ARA regularly uses its powers to pursue assets from organised crime, particularly drug dealing and fraud. In 2006-2007, the ARA recovered £15.9 million of criminal assets. It has recently started targeting environmental crime. For further information on the ARA, see: Legal update, Assets Recovery Agency freezes waste offender's assets. Legal update, Assets Recovery Agency seizes profits of environmental crime. Legal update, Largest assets confiscation order in environmental case to date. Legal update, Serious Crime Act 2007: environmental offences.

According to reports in the press, the Crown Prosecution Service (CPS) is proposing to use paralegal cases workers to prosecute minor offences and cases where the defendant has pleaded "not guilty", so as to reduce its legal costs (see "Barely trained" paralegals will be forced to take CPS cases to trial, Times, 19 February 2008). The CPS is trying to agree reduced rates for prosecution barristers with the Bar Council. In the meantime though, clause 58 of the Criminal Justice and Immigration Bill could enable paralegal case workers to be used. However, a draft CPS report shows that over half of the CPS paralegals surveyed felt that they did not have the necessary skills. Currently, the proposals would only affect mainstream criminal cases brought by the CPS, such as theft and anti-social behaviour orders. Serious offences, including corporate manslaughter, would continue to be prosecuted by experienced lawyers (see Practice note, Corporate Manslaughter and Corporate Homicide Act). Most breaches of environmental law are prosecuted by the Environment Agency and local authorities (see Practice note, How are environmental offences prosecuted?). Environmental regulators have not yet indicated that they plan to use paralegals in the same way. Nonetheless, this is a development that environmental defence lawyers should be aware of in the event a similar approach is adopted in respect of environmental offences.

On 30 January 2008, the Government laid the draft Legislative Reform (Health and Safety Executive) Order 2008 (the Order) before Parliament. The Health and Safety Commission (the HSC) and the Health and Safety Executive (the HSE) were created under the Health and Safety at Work etc Act 1974, as two separate public bodies. The HSC is responsible for setting health and safety policy. The HSE and local government are the enforcing authorities who work in support of the HSC. The two bodies were created to distance the HSC from the day-to-day operations of the HSE. This division is now thought to be at odds with thinking on corporate governance and accountability. As part of the Government's better regulation initiative, a consultation was carried out in 2007 on whether the HSC and HSE should merge. The draft Order merges the HSC and the HSE into one body to be called the Health and Safety Executive. The Order's Explanatory Document sets out the details of the new proposals, and how the transition will be managed in practice. The Government has not yet announced a date when it expects the Order to come into force.

From 6 April 2008, certain regulators (specified in the Legislative and Regulatory Reform (Regulatory Functions) Order 2007) (the Order) must follow the Statutory Code of Practice for Regulators (the Code) when exercising their functions. The Code was published on 17 December 2007. The Order and Code were made under the Legislative and Regulatory Reform Act 2006 (the Act). For further information on the Order and the Act, see PLC Property Legal update, New approach to regulation from 6 April 2008. The Act states that regulatory activities should be: Carried out in a way which is transparent, accountable, proportionate and consistent. Targeted only at cases in which action is needed. In addition, the Code outlines a number of principles which regulators must follow, including encouraging economic progress, providing advice easily and cheaply, inspecting only with good reason, and enforcing with proportionate and meaningful sanctions. The Code applies to a large number of bodies that exercise regulatory functions, including the Environment Agency (EA). The EA states on its website that it adheres to the Government's better regulation principles. Its Enforcement and Prosecution Policy also specifically mentions the legislative requirements of transparency, proportionality, consistency and targeting. It would seem unlikely, therefore, that there will be substantial changes to its operational methods.

On 11 January 2008, a Balfour Beatty subsidiary was fined £12,000 after a diesel leak from one of its depots caused serious groundwater contamination. Although the fine itself was not insignifcant, the remediation costs resulting from the leak could be significantly greater.

The Environmental Permitting (England and Wales) Regulations 2007 (SI 2007/ 3538) were made on 13 December 2007 and will come into force on 6 April 2008. The Regulations create a new unified and streamlined permitting system for activities regulated under the pollution prevention and control (PPC) and waste management regimes. We are in the process of updating our Practice note on the Environmental Permitting regime, and will alert subscribers when that has been done.

On 8 November 2007, the Regulatory Enforcement and Sanctions Bill was introduced in the House of Lords. The Bill gives regulators (including the Environment Agency and other environmental regulators) new powers to impose civil penalties on companies, as an alternative to prosecuting. These new powers could revolutionise the way in which businesses are regulated. For further information on the Bill, see Practice note, Regulatory Enforcement and Sanctions Bill.

The Queen's Speech was delivered on 6 November 2007. This announced the various Bills which the Government intends to introduce in the 2007-2008 parliamentary session. The following Bills are relevant to environmental issues: Climate Change Bill. Energy Bill. Planning Reform Bill. Regulatory Enforcement and Sanctions Bill. The Government is not planning to introduce a Marine Bill in the 2007-2008 parliamentary session. A draft of the Bill is expected to be published in early 2008 for pre-legislative consultation.

The European Court of Justice (ECJ) has confirmed that the European Commission has the power to legislate on criminal matters, provided this is essential for the purposes of enforcing serious breaches of EU environmental law. However, the ECJ has also ruled that the Commission does not have the power to set the type and level of criminal penalties member states must adopt. It is up to each member state to decide on this. The ECJ's decision arose in the context of a "framework decision" adopted by the Council obliging member states to impose specific criminal penalties for pollution from ships. It follows an earlier ECJ decision on a similar Council framework decision on environmental crime. The Commission will now have to amend the draft Directive on Environmental Crime it published in February 2007, as this sets both the type and level of criminal penalties that member states must adopt in respect of serious breaches of EU environmental law. The implications for UK environmental law are likely to be relatively limited since most breaches of environmental law are already treated as criminal offences and punishable by fines, imprisonment or both. However, the implications for EU law in general are more significant as member states generally view the ECJ's decision to allow the Commission to legislate on criminal matters as a serious attack on national sovereignty.

On 11 October 2007, the Ministry of Justice (MoJ): Confirmed that the new offence of corporate manslaughter (corporate homicide in Scotland) under the Corporate Manslaughter and Corporate Homicide Act 2007 will come into force on 6 April 2008, along with the majority of the rest of the Act. Published guidance to the Act. The guidance consists of a four page general introduction to the Act, setting out how the new offence operates and how it will apply, as well as a more detailed 21 page guide. For more information on the Act, see Practice note, Corporate Manslaughter and Corporate Homicide Act.

The Court of Appeal has held that a fine of £400,000 for an environmental offence was disproportionate, taking into consideration aggravating and mitigating factors.

The Environment Agency (EA) has published a report on the environmental performance of businesses in England and Wales in 2006. Not surprisingly, this year's report is entitled "Putting the brakes on climate change". The overall message of the report is mixed: On the one hand, most of the sites regulated by the EA are performing better. On the other hand, the EA thinks businesses are not "putting the brakes on climate change fast enough" and that progress at the sites it regulates is still too slow (as evidenced by the fact that greenhouse gas emissions are increasing, waste recovery is decreasing and more water is being used). Having said that, the increases are less than industry's economic growth, which the EA sees as a good sign.

The Department for Environment, Food and Rural Affairs is consulting on guidance for various EC Directives and waste technical competence as part of the Environmental Permitting Programme.

R v CEMEX Cement Limited [2007] EWCA Crim 1759. On 18 July 2007, the Court of Appeal, in reducing a fine for an environmental offence from £400,000 to £50,000, provided useful guidance on the factors to be taken into account when sentencing for environmental offences. The Court approved the use of the principles it had set down for the sentencing of health and safety offences in R v F Howe and Son (Engineers) Ltd [1999] 2 Cr App R (S) 37. The case is also a useful reminder that, where an environmental offence can be tried in either the magistrates' courts or the Crown Court, even if both the prosecution and the defendant agree to the case being dealt with by the lower court, the magistrates can still refer the case to the Crown Court for sentencing if they consider that they have insufficient sentencing powers.

The Department for Environment, Food and Rural Affairs is conducting its fourth round of consultations on a new Environmental Permitting (EP) regime. The EP regime is a new unified and streamlined permitting regime for activities currently regulated under the pollution prevention and control (PPC) and waste regimes. The consultation focuses on: Draft guidance notes on the various EU Directives that are relevant to the PPC and waste regimes. Proposals for demonstrating the technical competence of waste operators under the EP regime. The consultation closes on 10 August 2007. The EP regime is expected to come into force in April 2008. For further information on the EP regime, see Practice note, Environmental Permitting regime: new unified permitting system for PPC and waste management activities.

The European Commission has published a new draft Directive requiring member states to treat serious breaches of environmental law as a criminal offence and specifying the minimum penalties (imprisonment and fines) that should be imposed by national courts.The new draft Directive replaces a previous draft published in 2001 and follows from a decision of the European Court of Justice in 2005 that the Commission has the necessary legal competence to legislate in respect of environmental crime. Although the implications are relatively limited for UK environmental law (as most of the activities covered by the draft Directive are already criminal offences under UK law), there is concern that the Commission may decide to criminalise other aspects of EU law.Note added on 14 February 2007: The Comment section at the end of this Legal update has been revised to reflect recent Commission proposals in respect of intellectual property crime.

The Government is consulting on draft guidance on the proposed new single permitting regime for activities currently regulated under the waste management regime and the pollution prevention and control (PPC) regime. The deadline for responses is 11 April 2007. The new regime is expected to come into force in April 2008.

The Law Society's application for an injunction preventing the retrospective application of CPR 5.4C and its application for permission to bring judicial review proceedings did not proceed to a hearing on 28 November 2006. The matter has been settled.The Law Society agreed to withdraw its claim, following a commitment from the Rules Committee that CPR 5.4C will be amended to apply only to statements of case filed in proceedings on or after 2 October 2006. A new rule should come into force on 18 December 2006. In practice this will mean that only the claim form and judgments and orders will be available to non-parties without the court's permission as regards documents filed before 2 October 2006.The interim injunction obtained by the Law Society will remain in place until the new Rule comes into effect on 18 December, to prevent disclosure to non-parties of statements of case filed before 2 October 2006. For background and further information, see Legal update, Law Society challenges changes to the CPR on statements of case.Sources: Department for Constitutional Affairs and Law Society News Release (28 November 2006).

The Department for Communities and Local Government (DCLG) and the Department for Environment, Food and Rural Affairs are conducting a joint consultation on the ways in which the planning and pollution control regimes work together.The DCLG is seeking views on a range of options, but the consultation document does not contain any firm proposals for change. Responses must be submitted by 6 December 2006.

From 2 October 2006, persons not involved in litigation will be able to obtain copies of all statements of case on the court file, including defences, without having to obtain the court's permission. This shifts the burden of preventing disclosure to the parties (or others identified in statements of case).

The Cabinet Office Better Regulation Executive is consulting on a review of regulatory penalties.

The government has published its reply to the joint report by the Home Affairs and Work and Pensions Committees on the draft corporate manslaughter bill.

The Home Office announced on 20 December 2005 that the Environment Agency (EA) will be given the power to apply for anti-social behaviour orders (ASBOs) under the Crime and Disorder Act 1998 (CDA 98) to tackle environmental crime such as vandalism, noise nuisance and fly-tipping. Note added: The Crime and Disorder Act 1998 (Relevant Authorities and Relevant Persons) Order 2006 (SI 2006/2137) amended the CDA 98 so as to give the EA the power to apply to the courts for an ASBO. The new power came into force on 1 September 2006.

The Home Office has published the long-awaited draft corporate manslaughter bill together with a paper explaining the background to the proposals. Responses to the paper and draft bill are requested by 17 June 2005.

On 1 March 2004, the Office of Fair Trading published a case closure summary in respect of a possible infringement of the Chapter II prohibition by The Environment Agency.

The Magistrates’ Association has launched an information toolkit and guidance to help magistrates deliver effective sentences for environmental offences.

The cabinet reshuffle following the general election has been accompanied by a reorganisation of government departments responsible for several property-related areas of law and policy. The main change is the transfer of responsibility for environment and rural affairs from the DETR (now renamed the DTLR) to what is now the Department for Environment, Food and Rural Affairs (DEFRA), which also takes over the responsibilities of what was MAFF.

When considering whether to legislate, the Secretary of State for the Environment need not only act if a significant risk of harm arises. He is not bound to apply the "precautionary principle" and take action whenever a possible risk of harm exists.

Where a prosecution for water pollution under environmental legislation failed, a civil action brought by the NRA and the Anglers' Cooperative Association succeeded. A farmer was ordered to pay damages and costs in excess of £100,000 for pollution which killed 10,000 fish.