1.—(1) These Regulations may be cited as the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 and come into force on 19th July 2015.
(2) They apply in relation to England and the areas specified in regulation 6.
2.—(1) In these Regulations—
“activity” means any economic activity, whether public or private and whether or not carried out for profit;
“baselines” means the baselines from which the breadth of the territorial sea is measured for the purposes of the Territorial Sea Act 1987(1);
“Directive 2000/60/EC” means Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy(2);
“Directive 2004/35/EC” means 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;
“enforcing authority” means the person or body responsible for enforcing these Regulations, in accordance with regulation 10 or 11;
“local authority” means—
where there is a unitary authority for a local government area, that authority;
where there is not a unitary authority—
in a metropolitan district, the council of that district;
in a non-metropolitan county, the district council;
in each London borough, the council of that borough;
in the City of London, the Common Council;
on the Isles of Scilly, the Council of the Isles of Scilly;
“marine waters” means waters classified as marine waters pursuant to Directive 2008/56/EC of the European Parliament and of the Council establishing a framework for Community action in the field of marine environmental policy(3);
“natural habitat” means—
the habitats of species mentioned in Article 4(2) of, or Annex I to, Council Directive 2009/147/EC on the conservation of wild birds(4) or listed in Annex II to Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora(5);
the natural habitats listed in Annex I to Council Directive 92/43/EEC; and
the breeding sites or resting places of the species listed in Annex IV to Council Directive 92/43/EEC;
“natural resources” means—
a protected species;
a natural habitat;
a species or habitat on a site of special scientific interest by reason of which the site has been notified under section 28 of the Wildlife and Countryside Act 1981(6);
water; and
land;
“operator” means the person who operates or controls an activity, including the holder of a permit or authorisation relating to that activity, or the person registering or notifying an activity for the purposes of any enactment;
“protected species” means a species of a kind mentioned in Article 4(2) of Council Directive 2009/147/EC or listed in Annex I to that Directive or Annexes II and IV to Council Directive 92/43/EEC;
“remediation notice” means a notice served in accordance with regulation 20(2);
“responsible operator” means the operator in relation to an activity that has caused environmental damage;
“the Scottish zone” has the meaning it has in the Scotland Act 1998(7);
“services” means the functions performed by natural resources which benefit other natural resources or the public;
“site of special scientific interest” has the same meaning as in the Wildlife and Countryside Act 1981(8).
(2) Unless otherwise defined in these Regulations, expressions used in Directive 2004/35/EC have the same meaning in these Regulations.
3.—(1) Subject to paragraph (2), references in these Regulations to EU instruments are to those instruments as amended from time to time.
(2) Paragraph (1) does not apply to references to Directive 2004/35/EC.
4.—(1) These Regulations apply in relation to the prevention and remediation of environmental damage; and environmental damage is damage, as specified in this regulation, to—
(a)a protected species or natural habitat, or a site of special scientific interest;
(b)surface water or groundwater;
(c)marine waters; or
(d)land.
(2) Environmental damage to a protected species or natural habitat 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 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 (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 for the purposes of Directive 2000/60/EC (and, in relation to pollutants, for the purposes of Directive 2006/118/EC of the European Parliament and of the Council on the protection of groundwater against pollution and deterioration(9)), whether or not the body of groundwater is in fact reclassified as being of lower status.
(5) Environmental damage to marine waters means damage to marine waters such that their environmental status is significantly adversely affected.
(6) Environmental damage to land means contamination of land by substances, preparations, organisms or micro-organisms, where that damage results in a significant risk of adverse effects on human health.
5.—(1) These Regulations apply in relation to environmental damage if it is caused by an activity mentioned in Schedule 2.
(2) In the case of environmental damage to a protected species or natural habitat or a site of special scientific interest, these 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.
6.—(1) Environmental damage is relevant for the purposes of these Regulations only if the damage, of a type specified in the first column of the following table, occurs in an area specified in the second column of that table in relation to damage of that type.
| Type of damage | Area in which these Regulations apply |
|---|---|
(1) These areas do not include areas adjacent to Northern Ireland, Scotland or Wales or the territorial sea adjacent to the Isle of Man, Jersey or Guernsey; and for these purposes— | |
| (i) “Wales” has the meaning given by section 158(1) of the Government of Wales Act 2006(10); | |
| (ii) “Scotland” has the meaning given by section 126(1) of the Scotland Act 1998; and | |
| (iii) “Northern Ireland” has the meaning given by section 98 of the Northern Ireland Act 1998(11). | |
| Damage to surface water or groundwater | England and all waters up to one nautical mile seaward from the baselines in England. |
| Damage to marine waters | All marine waters within any of the following descriptions— |
| (a) marine waters up to one nautical mile seaward from the baselines in England so far as not already addressed as damage to surface water or groundwater; | |
| (b) marine waters from one nautical mile seaward from the baselines in England, extending to the outermost reach of the area where the United Kingdom exercises jurisdictional rights, in accordance with UNCLOS; | |
| (c) marine waters beyond 12 nautical miles from the baselines in Wales, extending to the outermost reach of the area where the United Kingdom exercises jurisdictional rights, in accordance with UNCLOS; | |
| (d) marine waters up to the limit of the exclusive economic zone which lies within the Scottish zone, or which lies outside the Scottish zone, but is nearer to any point on the baselines from which the breadth of the territorial sea adjacent to Scotland is measured than to any point on the baselines in any other part of the United Kingdom. | |
| Damage in a site of special scientific interest | England |
| Damage to a protected species or natural habitat | England, the seabed out to the limits of the continental shelf(1), and anywhere within marine waters, other than the seabed, out to the limits of the exclusive economic zone(1). |
| Damage to land | England |
(2) In the table in paragraph (1)—
“the continental shelf” means the areas designated by Order in Council under section 1(7) of the Continental Shelf Act 1964(12);
“the exclusive economic zone” means the areas designated by the Exclusive Economic Zone Area Order 2013(13); and
“UNCLOS” means the United Nations Convention on the Law of the Sea, which opened for signature on 10th December 1982(14).
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(15).
8.—(1) These Regulations do not apply in relation to—
(a)damage that occurred before 1st March 2009(16) (but see also paragraph (2));
(b)damage that occurs or occurred after that date, or is or was 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 or took place after that date, if it derives from an activity that took place and finished before that date.
(2) Paragraph (1) applies in relation to damage to marine waters as if, in sub-paragraph (a), for “1st March 2009” there were substituted “19th July 2015”.
(3) These Regulations 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 against natural disasters;
(d)an incident in respect of which liability or compensation falls within the scope of—
(i)the International Convention of 27th November 1992 on Civil Liability for Oil Pollution Damage(17);
(ii)the International Convention of 27th November 1992 on the Establishment of an International Fund for Compensation for Oil Pollution Damage(18); or
(iii)the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001(19);
(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 29th July 1960 on Third Party Liability in the Field of Nuclear Energy and the Brussels Supplementary Convention of 31st January 1963; or
(g)any activity carried out in the course of commercial sea fishing if all legislation relating to that fishing was complied with.
(4) These Regulations 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.
9.—(1) Where all the conditions in paragraph (2) are satisfied, 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; or
(c)deterioration from high status to good status of a body of surface water resulting from new sustainable human development activities where Article 4(7) of that Directive is complied with.
(2) The conditions are that—
(a)all practicable steps are taken to mitigate the adverse impact on the status of the body of water;
(b)the reasons for these modifications or alterations are specifically set out and explained in the river basin management plan required under Article 13 of Directive 2000/60/EC and the objectives are reviewed every six years;
(c)the reasons for these 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 cannot, for reasons of technical feasibility or disproportionate cost, be achieved by other means.
10.—(1) These Regulations are to be enforced in accordance with this regulation if the damage is caused by an activity that requires a permit or registration under the Environmental Permitting (England and Wales) Regulations 2010(20).
(2) If either the Environment Agency or the Natural Resources Board for Wales is responsible for granting the permit, these Regulations are to be enforced by the Environment Agency.
(3) If the local authority is responsible for granting the permit—
(a)Part 2 is to be enforced by the local authority;
(b)Part 3 is to be enforced by—
(i)the local authority, if the damage is to land;
(ii)the Environment Agency, if the damage is to surface water or groundwater;
(iii)the Marine Management Organisation, if the damage is to marine waters, or to a natural habitat or protected species or a site of special scientific interest within those waters, out to 12 nautical miles from the baselines in England;
(iv)the Secretary of State, if the damage is to marine waters beyond 12 nautical miles from the baselines in England or the baselines in Wales; and
(v)Natural England, if the damage is to a natural habitat or a protected species or a site of special scientific interest on land or in surface water or groundwater.
11.—(1) If the damage caused is caused by an activity that does not require a permit or registration under the Environmental Permitting (England and Wales) Regulations 2010, these Regulations are to be enforced in accordance with the following table.
| Type of environmental damage | Area of damage | Enforcing Authority |
|---|---|---|
(1) For the definition of “specified marine activity”, see paragraph (2). | ||
(2) For the definition of “sea”, see paragraph (2). | ||
| Damage to surface water or groundwater | All surface water or groundwater. | Environment Agency |
| Damage to marine waters | All marine waters out to 12 nautical miles from the baselines in England. | Marine Management Organisation |
| All marine waters beyond 12 nautical miles from the baselines in England and the baselines in Wales, extending to the outermost reach of the area where the United Kingdom exercises jurisdictional rights. | The Secretary of State | |
| All marine waters up to the limit of the exclusive economic zone which lies— | The Secretary of State— | |
| (a) within the Scottish zone; or | (a) if the damage was caused by anything done in the course of, or for the purpose of, a specified marine activity(1); or | |
| (b) outside the Scottish zone, but nearer to any point on the baselines from which the breadth of the territorial sea adjacent to Scotland is measured than to any point on the baselines in any other part of the United Kingdom. | (b) in relation to the exercise of powers under Part 2 of these Regulations only, if the damage was caused by an activity relating to a matter which is a reserved matter by virtue of section E3 (marine transport) in Part 2 of Schedule 5 to the Scotland Act 1998. | |
| In any other case, the Scottish Ministers. | ||
| Damage to a protected species or natural habitat or a site of special scientific interest | On land. | Natural England |
| In water, but not in the sea(2). | Environment Agency | |
| In the sea up to the limit of the exclusive economic zone which lies— | The Secretary of State— | |
| (a) within the Scottish zone; or | (a) if the damage was caused by anything done in the course of, or for the purpose of, a specified marine activity; or | |
| (b) outside the Scottish zone, but nearer to any point on the baselines from which the breadth of the territorial sea adjacent to Scotland is measured than to any point on the baselines in any other part of the United Kingdom. | (b) in relation to the exercise of powers under Part 2 of these Regulations only, if the damage was caused by an activity relating to a matter which is a reserved matter by virtue of section E3 (marine transport) in Part 2 of Schedule 5 to the Scotland Act 1998. | |
| In any other case, the Scottish Ministers. | ||
| The continental shelf up to the limit of the exclusive economic zone which lies— | The Secretary of State— | |
| (a) within the Scottish zone; or | (a) if the damage was caused by anything done in the course of, or for the purpose of, a specified marine activity; or | |
| (b) outside the Scottish zone, but nearer to any point on the baselines from which the breadth of the territorial sea adjacent to Scotland is measured than to any point on the baselines in any other part of the United Kingdom. | (b) in relation to the exercise of powers under Part 2 of these Regulations only, if the damage was caused by an activity relating to a matter which is a reserved matter by virtue of section E3 (marine transport) in Part 2 of Schedule 5 to the Scotland Act 1998. | |
| In any other case, the Scottish Ministers. | ||
| Any other part of the continental shelf or in the sea up to the limit of the exclusive economic zone. | The Environment Agency, if the damage is due to an activity authorised by the Environment Agency. In any other case, the Secretary of State. | |
| Damage to land | All land. | Local authority |
(2) For the purposes of this regulation—
“installation abandonment measures” means any measures taken in connection with the abandonment of—
in either case, whether or not the measures are taken in pursuance of an abandonment programme under Part 4 of the Petroleum Act 1998, or under that Part as it applies by virtue of section 30 of the Energy Act 2008;
“sea” includes—
any area of land submerged at mean high water spring tide; and
each of the following, so far as the tide flows at mean high water spring tide—
the waters of every estuary or arm of the sea; and
the waters of any channel, bay or river;
“specified marine activity” means—
an activity for which a licence under section 3 of the Petroleum Act 1998 or section 2 of the Petroleum (Production) Act 1934(23) (licences to search for and get petroleum) is (or was) required;
constructing or maintaining a pipeline in respect of any part of which an authorisation (within the meaning of Part 3(24) of the Petroleum Act 1998) is in force;
establishing or maintaining an offshore installation (within the meaning of Part 4(25) of the Petroleum Act 1998);
taking any installation abandonment measures;
an activity for which a licence under section 4 or 18 of the Energy Act 2008(26) (gas unloading, storage and recovery and carbon dioxide storage) is required;
an activity, other than those specified in paragraphs (a) to (e), relating to a matter which is a reserved matter by virtue of section D2 (oil and gas) in Part 2 of Schedule 5 to the Scotland Act 1998.
12.—(1) If there is more than one type of environmental damage, so that there is more than one enforcing authority, these Regulations are to be enforced by any or all of the enforcing authorities.
(2) An enforcing authority may appoint any other enforcing authority to act on its behalf.
(3) The Secretary of State may delegate to the Director of Public Prosecutions functions in relation to the prosecution of an offence under these Regulations.
1987 c.49. See S.I. 2014/1353.
OJ No. L 327, 22.12.2000, p.1; last amended by Commission Directive 2014/101/EU (OJ No. L 311, 31.10.2014, p.32).
OJ No. L 164, 25.6.2008, p.19.
OJ No. L 20, 26.1.2010, p.7; amended by Council Directive 2013/17/EU (OJ No. L 158, 10.6.2013, p.193).
OJ No. L 206, 22.7.1992, p.7; last amended by Council Directive 2013/17/EU (OJ No. L 158, 10.6.2013, p.193).
1981 c.69. Section 28 was substituted by paragraph 1 of Schedule 9 to the Countryside and Rights of Way Act 2000 (c.37) and amended by paragraph 79 of Schedule 11 to the Natural Environment and Rural Communities Act 2006 (c.16) and paragraph 2(1) and (2) of Schedule 13 to the Marine and Coastal Access Act 2009 (c.23).
1998 c.46. The term “the Scottish zone” is defined by section 126(1). The Scottish Adjacent Waters Boundaries Order 1999 (S.I. 1999/1126) made under section 126(2) defines the boundaries between waters which are to be treated as internal waters or territorial waters, or waters within British fishery limits, adjacent to Scotland and those which are not.
See section 52, amended by paragraph 5(1) and (2) of Schedule 9 to the Countryside and Rights of Way Act 2000 (c.37).
OJ No. L 372, 27.12.2006, p.19; amended by Commission Directive 2014/80/EU (OJ No. L 182, 21.6.2014, p.52).
1964 c.29. Areas are currently designated under section 1(7) by S.I. 2013/3162 (which revoked S.I. 2000/3062 and 2001/3670, subject to a saving in respect of the Continental Shelf (Designation of Areas) Orders 1964 to 1982). Section 1(7) was amended by paragraph 1 of Schedule 3 to the Oil and Gas (Enterprise) Act 1982 (c.23) and by section 103 of the Energy Act 2011 (c.16).
The Convention entered into force on 16th November 1994. It was approved on behalf of the European Community by Council Decision 98/392/EC concerning the conclusion by the European Community of the United Nations Convention of 10th December 1982 on the Law of the Sea and the Agreement of 28th July 1994 relating to the implementation of Part XI thereof (OJ No. L 179, 23.6.1998, p.1).
The Convention is set out in Schedule 7 to the Merchant Shipping Act 1995 (c.21), amended by S.I. 1998/1258.
This is the date on which S.I. 2009/153, which is revoked and replaced by these Regulations, came into force.
Implemented by the Merchant Shipping Act 1995.
Implemented by the Merchant Shipping Act 1995.
The Convention was implemented by amendments to the Merchant Shipping Act 1995 made by S.I. 2006/1244.
S.I. 2010/675; amended by S.I. 2010/676, and 2172; 2011/988, 2043 and 2933; 2012/630 and 811; 2013/390, 755, 766 and 2952; 2014/255 and 2852.
1998 c.17. The definition of “offshore installation” for the purposes of Part 4 of that Act is contained in section 44 of that Act. Section 44 was amended by paragraph 11 of Schedule 1 to the Energy Act 2008 (c.32).
2008 c.32. Section 30 was amended by section 107(1) and (4) of the Energy Act 2011 (c.16) and by S.I. 2011/2453.
1934 c.36. The Act was repealed by Part 1 of Schedule 5 to the Petroleum Act 1998.
Part 3 was amended by the Energy Act 2004 (c.20), sections 151(5) and 197(9) and Schedule 23, Part 1; the Energy Act 2008, sections 36, 78(3) and (4) and 108, Schedule 1, paragraph 9, and Schedule 6; the Energy Act 2011, Schedule 2 paragraphs 8, 9, 10, 12, 13, 14 and 15; the Marine and Coastal Access Act 2009 (c.23), section 112(1) and Schedule 8, paragraph 7; and by S.I. 2000/1937, 2004/2043, 2007/290 and 2011/2305 and 2704.
Part 4 was amended by the Energy Act 2008, sections 36, 72(1) to (8), 73(1) to (6), 74(1), 107, 108 and Schedule 1, paragraphs 10 and 11, Schedule 5, paragraphs 6, 7, 9, 10 and 11, and Schedule 6; and by the Marine and Coastal Access Act 2009, section 112(1) and Schedule 8, paragraph 8.
Section 18 was amended by S.I. 2011/224 and 2435.