08/10 A round up of topical issues in environment law

Environment law watch email

In this round up of legal environmental news, we look at a case of interest to developers that clarifies the extent of protection given to rare species under the European Habitat Directive.  We also highlight the first use of enforcement powers by a Local Authority against a fuel company in relation to the Environmental Damage Regulations that came into force last year.

Finally, we remind you of new legislation and guidance in relation to the fast tracking of 'green' inventions, the Environmental Permitting Regime, standards for assessing carbon neutrality, contaminated land and Energy Performance Certificates.

Protected species – case clarifies the extent of protection

The Court of Appeal recently delivered a judgment in the case of R (Morge) v Hampshire County Council [2010] EWCA Civ 608 that will be of interest to developers, clarifying the extent of protection given to rare species.

The European Habitats Directive requires member states to protect natural habitats, fauna and flora that are considered to be under serious threat. Article 12 of the Directive protects against the "deliberate disturbance" of protected species and necessitates assessment of the indirect as well as direct impact on a species.

Hampshire County Council (HCC) granted planning permission for a new bus and cycle route along a disused railway track, which had become home to a variety of animals. The small bats that found in this area are protected species under the Habitats Directive.  HCC commissioned a bat survey and concluded that the proposed methods of mitigation would reduce possible harm.

A local resident argued (amongst other things) that the proposed scheme would involve the destruction of bat roosts, a foraging habitat and the area used by bats for crossing from a roost to foraging area, all in breach of Article 12 of the Directive.

The Court of Appeal held Article 12 had not been breached as deliberately disturbing one bat, or even more than one bat, may not amount to a disturbance of the species as a whole so as to have any ecological importance. The objective of the Directive is to ensure that the population of the species is maintained at a level which will ensure the species' conservation in the long term.

The case is a reminder to developers of the importance of ecological surveys incorporating mitigation measures at an early stage in the development process. The fact that the bat survey in this case had detailed mitigation measures was an important factor.  This judgment will possibly give some comfort to developers, as it focuses on the conservation of a species as a whole, rather than the loss of a few individual members of that species.

 "Green" inventions – fast tracking for patents

Following the launch last year by the Intellectual Property Office (IPO) of the "Green Channel" initiative (a fast-track examination process for patent applications relating to inventions with environmental benefits), the IPO has announced a publicly available database featuring applications processed under this initiative.

Under the Green Channel initiative, it can take as little as nine months to get a patent granted, compared with the current average time of two-to-three years.

The new database is available on the IPO website.

Environmental Permitting regime – updated guidance

Changes to the Environmental Permitting regime came into effect in April through the 'Environmental Permitting (England and Wales) Regulations 2010'.

Environmental permits are prepared by the Environment Agency and control the environmental impact of business activities. Permits have conditions that must be followed in order to prevent harm to the environment or human health.  Failure to comply with a Permit could lead to a fine or imprisonment.

The new regulations extend the existing permitting regime so that operators can consolidate several types of permits (such as water discharge consents, groundwater permits and radioactive waste authorisations) into a single environmental permit.

The Environment Agency has published updated guidance and rules to reflect the changes introduced by the new regulations. The updated guidance covers:

  • information relevant to all sectors in assessing risks to the environment and human health when applying for a bespoke environmental permit; and 
  • guidance on understanding the Landfill Directive as landfills are also subject to the Environmental Permitting regime.

This guidance will be of interest to organisations carrying out activities which may require an Environmental Permit.

New standard for achieving and demonstrating carbon neutrality announced

The British Standards Institute (BSI) announced a new carbon neutrality standard in June called the 'Publicly Available Specification (PAS) 2060'.  This standard seeks to improve public, customer and employee confidence in the statements organisations make about their carbon neutrality.

PAS 2060 provides an alternative to the Department of Energy and Climate Change's own guidance on carbon neutrality and sets out general requirements for quantifying, reducing and offsetting carbon emissions so as to achieve and demonstrate carbon neutrality.

It can be used by a range of organisations, including public sector, commercial, and private groups or individuals. It can also be applied to activities, products, services, towns and buildings, projects and events.

Environmental Liability Directive – first enforcement by Local Authority

Mid Devon District Council is the first local authority to have used enforcement powers under the Environmental Damage Regulations 2009 (the Regulations), which came into force in March 2009 and implement the Environmental Liability Directive in England.

The Directive is aimed at the prevention and remediation of environmental damage.  It is based on the "polluter pays" principle so that the burden of paying for the prevention and remediation of damage is borne by the polluter, not the taxpayer. The Regulations impose obligations and liability on operators of certain economic activities for three categories of environmental damage: damage to species and habitats, damage to water and damage to land where there is a significant risk to human health.

The local authority in this case used its enforcement powers against a fuel company that had caused the leakage of kerosene oil into a residential property, causing adverse effects on its residents' health.  The authority used its powers under the Regulations to remedy the situation through various remediation measures.

It is believed that this is the first time a local authority has used the Regulations.  The authority believed that the Regulations were quick and straightforward to use and that they contained tests on determining whether there were adverse effects to human health that were more flexible and easier than the threshold tests under the contaminated land regime.

This case could be an indication of more authorities using their powers under the Regulations in light of Mid Devon District Council's experience.  Those who may have caused contamination and owners of contaminated land may therefore find that they are the subject of swifter enforcement action by a local authority.  There were, however, no difficulties in proving causation and liability in this case, so it remains to be seen how difficult authorities may find using their powers under the Regulations is in more complex cases.

Contaminated Land – guidance published

The Environment Agency has published a package of documents which contain guiding principles on managing all types of contaminated land.

These documents are aimed at and relevant to:

  • Those who may have caused contamination; 
  • Owners of contaminated land;
  • Developers of contaminated land; and 
  • Advisors of and consultants to any of the above.

The principles explain the importance of risk assessments and how they should be carried out.  The documents also summarise the process for assessing next steps and set out how to carry out remediation works, as well as clarify roles and responsibilities in managing land contamination.

Energy Performance Certificates – new regulations reminder

On 21 May 2010, new regulations called 'The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) (Amendment) Regulations 2010' came into force.  These regulations will be of interest to sellers of residential properties and those acting on behalf of such sellers.

There is a £200 fixed penalty for failure to comply with the new regulations.  Amongst the changes these regulations introduce:

  • Sellers of residential properties will need to commission an Energy Performance Certificate ("EPC") before marketing their property for sale (previously, a seller could not market its property unless a full EPC was available.). 
  • EPCs are valid for ten years (previously, they were only valid for three years).
  • The written particulars for homes being marketed for sale are to include the EPC rating or have the EPC attached only once the EPC becomes available.