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The Environmental Damage (Prevention and Remediation) Regulations 2009

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PART 1Introductory provisions

Title, commencement and application

1.  (1)  These Regulations may be cited as the Environmental Damage (Prevention and Remediation) Regulations 2009 and come into force on 1st March 2009.

(2) They apply in England and the areas specified in regulation 6.

Interpretation

2.  (1)  In these Regulations—

“activity” means any economic activity, whether public or private and whether or not carried out for profit and “operator” means the person who operates or controls such an activity, including the holder of a permit or authorisation relating to that activity, or the person registering or notifying such an activity;

“groundwater” means all water that is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil;

“local authority” means—

(a)

where there is a unitary authority for that local government area, that authority;

(b)

where there is not a unitary authority—

(i)

in a metropolitan district, the council of that district;

(ii)

in a non-metropolitan county, the district council;

(iii)

in each London borough, the council of that borough;

(iv)

in the City of London, the Common Council;

(v)

on the Isles of Scilly, the Council of the Isles of Scilly;

“natural habitat” means—

(a)

the habitats of species mentioned in Article 4(2) of, or Annex I to, Council Directive 79/409/EEC on the conservation of wild birds(1) or listed in Annex II to Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora(2);

(b)

the natural habitats listed in Annex I to Council Directive 92/43/EEC ; and

(c)

the breeding sites or resting places of the species listed in Annex IV to Council Directive 92/43/EEC ;

“natural resource” means—

(a)

protected species;

(b)

natural habitats;

(c)

species or habitats on a site of special scientific interest for which the site has been notified under section 28 of the Wildlife and Countryside Act 1981(3);

(d)

water; and

(e)

land;

“protected species” means the species mentioned in Article 4(2) of Council Directive 79/409/EEC or listed in Annex I to that Directive or Annexes II and IV to Council Directive 92/43/EEC ;

“services” means the functions performed by a natural resource for the benefit of another natural resource or the public.

(2) Unless otherwise defined in these Regulations, expressions used in Directive 2004/35/EC of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage(4) have the same meaning in these Regulations.

References to Community instruments

3.  References in Schedule 2 to Community instruments are references to those instruments as amended from time to time.

Meaning of “environmental damage”

4.  (1)  These Regulations apply in relation to the prevention and remediation of environmental damage; and “environmental damage” is damage to—

(a)protected species or natural habitats, or a site of special scientific interest,

(b)surface water or groundwater, or

(c)land,

as specified in this regulation.

(2) Environmental damage to protected species or natural habitats or a site of special scientific interest means damage of a kind specified in Schedule 1.

(3) Environmental damage to surface water means damage to a surface water body classified as such pursuant to Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy(5) such that—

(a)a biological quality element listed in Annex V to that Directive,

(b)the level of a chemical listed in the legislation in Annex IX or a chemical listed in Annex X to that Directive, or

(c)a physicochemical quality element listed in Annex V to that Directive,

changes sufficiently to lower the status of the water body in accordance with Directive 2000/60/EC of the European Parliament and of the Council (whether or not the water body is in fact reclassified as being of lower status).

(4) Environmental damage to groundwater means any damage to a body of groundwater such that its conductivity, level or concentration of pollutants changes sufficiently to lower its status pursuant to Directive 2000/60/EC of the European Parliament and of the Council (and for pollutants Directive 2006/118/EC of the European Parliament and of the Council on the protection of groundwater against pollution and deterioration(6)) (whether or not the body of groundwater is in fact reclassified as being of lower status).

(5) Environmental damage to land means contamination of land by substances, preparations, organisms or micro-organisms that results in a significant risk of adverse effects on human health.

Environmental damage to which these Regulations apply

5.  (1)  These Regulations apply in relation to environmental damage if it is caused by an activity in Schedule 2.

(2) In the case of environmental damage to protected species or natural habitats or a site of special scientific interest the Regulations also apply in relation to environmental damage caused by any other activity if the operator—

(a)intended to cause environmental damage; or

(b)was negligent as to whether environmental damage would be caused.

Areas of application

6.  (1)  The damage must be in an area specified in the following table.

Type of damageArea in which these Regulations apply
(a)

These areas do not include areas that form part of Northern Ireland, Scotland or Wales or the territorial sea adjacent to the Isle of Man, Jersey(7) or Guernsey; and for these purposes—

(i)

Wales is as defined in section 158(1) of the Government of Wales Act 2006(8);

(ii)

Scotland is as defined in section 126(1) of the Scotland Act 1998(9); and

(iii)

Northern Ireland is as defined in section 98 of the Northern Ireland Act 1998(10).

Damage to waterEngland and all water up to one nautical mile seaward from the baseline in England
Damage in a site of special scientific interestEngland
Damage to protected species or natural habitats

England

The seabed of the continental shelf(a)

Anywhere other than the seabed in the renewable energy zone(a)

Damage to landEngland

(2) In this table—

“the baseline” means the baselines from which the breadth of the territorial sea is measured for the purposes of the Territorial Sea Act 1987(11);

“the continental shelf” means the areas designated by Order in Council under section 1(7) of the Continental Shelf Act 1964(12); and

“the renewable energy zone” means the waters superjacent to the seabed situated within the areas designated by Order in Council under section 84(4) of the Energy Act 2004(13).

Other legislation

7.  (1)  These Regulations are without prejudice to any other enactment concerning damage to the environment.

(2) They are without prejudice to the right of an operator to limit liability in accordance with the Convention on Limitation of Liability for Maritime Claims 1976(14).

Exemptions

8.  (1)  These Regulations do not apply in relation to—

(a)damage that took place before the coming into force of these Regulations;

(b)damage that takes place after that date, or is threatened after that date, but is caused by an incident, event or emission that took place before that date; or

(c)damage caused by an incident, event or emission that takes place after that date if it derives from an activity that took place and finished before that date.

(2) They do not apply in relation to environmental damage caused by—

(a)an act of terrorism;

(b)an exceptional natural phenomenon, provided the operator of the activity concerned took all reasonable precautions to protect against damage being caused by such an event;

(c)activities the sole purpose of which is to protect from natural disasters;

(d)an incident in respect of which liability or compensation falls within the scope of—

(i)the International Convention of 27 November 1992 on Civil Liability for Oil Pollution Damage;

(ii)the International Convention of 27 November 1992 on the Establishment of an International Fund for Compensation for Oil Pollution Damage(15); or

(iii)the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001(16);

(e)activities the main purpose of which is to serve national defence or international security;

(f)radioactivity from an activity covered by the Treaty establishing the European Atomic Energy Community or caused by an incident or activity in respect of which liability or compensation falls within the scope of the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy and the Brussels Supplementary Convention of 31 January 1963; or

(g)damage caused in the course of commercial sea fishing if all legislation relating to that fishing was complied with.

(3) They only apply to environmental damage caused by pollution of a diffuse character if it is possible to establish a causal link between the damage and specific activities.

Exemption from damage to water

9.  (1)  Damage to water does not include—

(a)damage caused by new modifications to the physical characteristics of a surface water body,

(b)an alteration to the level of a body of groundwater pursuant to Directive 2000/60/EC of the European Parliament and of the Council, or

(c)deterioration from high status to good status of a body of surface water resulting from new sustainable human development activities pursuant to that Directive,

if all the conditions in paragraph (2) are fulfilled.

(2) The conditions are—

(a)all practicable steps are taken to mitigate the adverse impact on the status of the body of water;

(b)the reasons for those modifications or alterations are specifically set out and explained in the river basin management plan required under Article 13 of Directive 2000/60/EC of the European Parliament and of the Council and the objectives are reviewed every six years;

(c)the reasons for those modifications or alterations are of overriding public interest, or the result of the damage is outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety or to sustainable development; and

(d)the beneficial objectives served by those modifications or alterations of the water body cannot for reasons of technical feasibility or disproportionate cost be achieved by other means.

Enforcing authorities under the Environmental Permitting (England and Wales) Regulations 2007

10.  (1)  These Regulations are enforced in accordance with this regulation if the damage is caused by an installation, waste operation or mobile plant that requires a permit or registration under the Environmental Permitting (England and Wales) Regulations 2007(17).

(2) If the Environment Agency is responsible for granting the permit, they are enforced by the Environment Agency in all cases.

(3) If the local authority is responsible for granting the permit—

(a)Part 2 is enforced by the local authority;

(b)Part 3 is enforced by—

(i)the local authority if the damage is to land;

(ii)the Environment Agency if the damage is to water;

(iii)Natural England if the damage is to natural habitats or protected species or a site of special scientific interest.

Enforcing authorities in other cases

11.  If the damage is caused by an activity that does not require a permit or registration under the Environmental Permitting (England and Wales) Regulations 2007 these Regulations are enforced in accordance with the following table.

Type of environmental damageArea of damageEnforcing authority
(1)

“Sea” includes—

(a)

any area submerged at mean high water spring tide; and

(b)

each of the following, so far as the tide flows at mean high water spring tide—

(i)

every estuary or arm of the sea; and

(ii)

the waters of any channel, creek, bay or river.

Damage to water—

Environment Agency

Damage to protected species or natural habitats or a site of special scientific interest—

landNatural England
water but not in the sea(1)Environment Agency
the continental shelf or in the sea up to the limit of the renewable energy zone- if the damage is due to an activity authorised by the Environment agency, the Environment Agency;
- otherwise the Secretary of State

Damage to land—

Local authority

Enforcement

12.  (1)  If there is more than one type of damage, so that there is more than one enforcing authority, these Regulations are enforced by any or all of the specified enforcing authorities.

(2) An enforcing authority may appoint any other enforcing authority to act on its behalf.

(1)

OJ No L 103, 25.4.1979, p. 1 as last amended by Council Directive 2008/102/EC , OJ No L323, 3.12.008, p. 31).

(2)

OJ No L 206, 22.7.1992, p. 7 as last amended by Council Directive 2006/105/EC (OJ No L 363, 20.12.2006, p. 368).

(3)

1981 c.69. Part II of the Act (which includes section 28) was inserted by Schedule 9 to the Countryside and Rights of Way Act 2000 (2000 c. 37) and subsequently amended by Schedule 11 to the Natural Environment and Rural Communities Act 2006 (2006 c. 16).

(4)

OJ No L 143, 30.4.2004, p. 56 as amended by Directive 2006/21/EC (OJ No L102, 11.4.2006, p. 15).

(5)

OJ No L 327, 22.12.2000, p. 1 as last amended by Directive 2008/105/EC of the European Parliament and of the Council (OJ No L 348, 24.12.2008, p. 84).

(6)

OJ No L 372, 27.12/2006, p. 19.

(7)

See section 1 of the Territorial Sea Act 1987 (c. 49) as extended to Jersey by the Territorial Sea Act 1987(Jersey) Order 1997 (S. I. 1997/278) as amended by S.I. 2002/250, and to the Isle of Man by the Territorial Sea Act 1987 (Isle of Man) Order 1991 ( S.I.  1991/1722).

(12)

1964 c. 29. Areas have been designated under section 1(7) by S.I. 1987/1265, 2000/3062 and 2001/3670. Section 1(7) was amended by paragraph 1 of Schedule 3 to the Oil and Gas (Enterprise) Act 1982 (c. 23).

(13)

2004 c. 20. Areas have been designated under section 84(4) by S.I. 2004/2668.

(14)

The Convention is set out in Schedule 7 to the Merchant Shipping Act 1995 (c. 21).

(15)

Both these conventions were implemented in the Merchant Shipping Act 1995 (1995 c. 21).

(16)

Implemented in the Merchant Shipping Act 1995 by amendments made to that Act by S.I. 2006/1244.

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