Environmental update – April - June 2014

Legislation Summary/Impact

Environmental Impact Assessment Directive 2014

On 25 April 2014, the Official Journal published the Environmental

Impact Assessment (EIA) Directive 2014, which took effect 20 days

thereafter. The implementation date of the EIA Directive 2014,

required to be met by all member states, is 16 May 2017.

The most significant amendments to the EIA regime are:

Standardising the screening process among member states.

Widening the project impacts considered at screening and in the EIA

report to cover climate change, biodiversity, demolition impacts and

natural resources.

Observing of detrimental effects on the environment after development.

Procurement Policy Note 07/14 implementing Energy Efficiency Directive 2012/27/EU

The Cabinet Office has published (3 June 2014) a Procurement Policy

Note 07/14 (PPN 07/14) implementing Article 6 of the Energy

Efficiency Directive 2012/27/EU.

In scope organisations (such as central government departments,

executive agencies and non-departmental public bodies), where the

parent department controls and mainly finances the organisations and

they cover whole of the UK, such organisations must comply with

PPN 07/14 with regard to all purchases which are made on or after 5

June 2014.

The PPN 07/14 requires these organisations to comply with energy

efficiency standards provided for in Annex I to PPN 07/14 when

purchasing products or services and purchasing or renting buildings

where this is in line with value for money, economic feasibility,

technical suitability and ensuring there is sufficient competition.

Regulation (EU) 333/2014 Regulation (EU) 333/2014 of the European Parliament and of the

Council of 11 March 2014 amending Regulation (EC) 443/2009 to

define the modalities for reaching the 2020 target to reduce CO2

emissions from new passenger cars was published in the Official

Journal on 5 April 2014. This constitutes a part of the EU’s strategy to

meet its 2020 target to reduce carbon dioxide emissions from new

passenger cars.

European Commission Delegated Regulation (EU) 492/2014

On 14 May 2014, the Official Journal published the European

Commission Delegated Regulation (EU) 492/2014 supplementing

Regulation (EU) 528/2012 concerning the use and market availability

of biocidal products use.

The Regulation sets out rules relating to the renewal of a national

authorisation of a biocidal product, which has been subject to mutual

recognition in compliance with: Article 4 of Directive 98/8/EC

(placement of biocidal products on the market), article 33 and 34 of

Regulation (EU) 528/2012 and a national authorisation granted by

means of such a mutual recognition.

Commission Delegated Regulation (EU) 518/2014

An EU regulation tightening product energy labelling for distance

(internet) selling was published on 17 May 2014. The Regulation

amends ten product-specific EU Regulations relating to energy labelling

requirements in respect of white goods and related household

appliances, ensuring that adequate energy information is available to

customers before sale on the internet.

TEN-E Regulation EU 347/2013 The TEN-E Regulation EU 347/2013: Manual of Procedures: The

permitting process for Projects of Common Interest (PCIs) in the UK

(Manual) has been published by the Department of Energy and Climate

Change (DECC) (May 2014). The Manual provides for consenting

regimes for major energy infrastructure in the UK, and the views of

relevant authorities on how the requirements of the Regulation should

be met.

EU Nagoya Regulation EU 511/2014 The EU Nagoya Regulation (Regulation (EU) No 511/2014) and a

Council Decision approving the Nagoya Protocol (2014/283/EU) have

been published (20 May 2014) in the Official Journal.

The Regulation implements the Protocol on the accessibility of genetic

resources and the sharing of benefits arising from their use in the EU in

a fair and equitable manner. The Regulation will apply from the date the

Protocol itself comes into force in the EU.

Commission Delegated Regulation (EU) No 666/2014, Union Inventory Regulation 2014

The European Commission has published (19 June 2014) a

delegated regulation providing for details on the implementation of the

EU greenhouse gas (GHG) inventory (Union inventory) - (Commission

Delegated Regulation (EU) No 666/2014) (Union Inventory Regulation

2014).

The Regulation provides for rules on administration, quality assurance

and methodology regarding the implementation of the Union inventory

of GHGs in the EU. The Regulation also intends to ensure the timely

and accurate reporting on the GHG inventories on the part of the EU

to the United Nations Framework Convention on Climate Change

(UNFCCC) Secretariat, to ensure its commitments to cut GHG

emissions under the UNFCCC and the Kyoto Protocol are met.

F-gas Regulation 2014 The Official Journal has published the F-gas Regulation 2014 (20 May

2014), which is to apply from 1 January 2015 and aims to reduce

fluorinated gas (F-gas) emissions by two-thirds by 2030. This will be

done principally by phasing out the most important F-gases,

hydrofluorocarbons (HFCs).

In addition, the regulation bans the use of F-gases in respect of the

majority of new equipment and ensures the monitoring of leakage and

the recovery of F-gases utilised in existing equipment.

The Regulation repeals and replaces the F-gas Regulation 2006

(Regulation (EC) No 842/2006 on certain fluorinated greenhouse

gases).

Water Act 2014 Royal assent has been given to the Water Act 2014 (14 May 2014).

Notable environmental implications arising from the Act include:

The new duty for the Office of Water Services to secure the long-term

resilience of water supply and sewerage systems in relation to

environmental pressures, growth in population and fluctuations in

consumer behaviour.

A new power of the Secretary of State to require water undertakers to

consider the flexibility and security of water supply when preparing

water resource management plans.

Water undertakers no longer have the ability to claim compensation

where modification and revocations of their abstraction licences have

resulted in losses.

The power to make regulations including water abstraction and

impoundment licences, flood defence consents and requirements for

fish passes under the Environmental Permitting regime.

Energy Efficiency (Building Renovation and Reporting) Regulations 2014

The Energy Efficiency (Building Renovation and Reporting) Regulations

2014 (SI 2014/952) came into force in the UK on 30 April 2014. The

Regulations require the government to report to the European

Commission and implement provisions of the Energy Efficiency

Directive 2012 (2012/27/EU) in the UK. The Regulations also oblige the

government to develop a long-term strategy for stimulating investment

through the renovation of residential and commercial buildings in the

UK, in addition to a National Energy Efficiency Action Plan.

EPC Regulation (England and Wales) (Amendments)

On 6 April 2014, the Energy Performance of Buildings (England and

Wales) (Amendment) Regulations 2014 (SI 2014/880) came into force.

A number of corrections and amendments have been made by the 2014

Regulations to the Energy Performance of Buildings (England and

Wales) Regulations 2012 (SI 2012/3118). These corrections include the

introduction of penalty charges for failure to display an Energy

Performance Certificate (EPC) in commercial buildings visited by the

public and for failure to include the energy performance indicator in

property for sale or rent. Clarification of the energy performance

indicators is also required to be included in advertisements in addition

to the clarification of the validity period for recommendation reports for

buildings that require a display energy certificate.

RHI: Domestic Renewable Heat Incentive Scheme Regulations 2014

On 9 April 2014, the Domestic Renewable Heat Incentive Scheme

Regulations 2014 (SI 2014/928) came into force and launched the

Renewable Heat Incentive (RHI) for renewable heat installations at

domestic properties.

The Office of Gas and Electricity Markets (Ofgem) is obliged to make

subsidy payments under the domestic RHI to the owners of eligible

renewable heating installations in domestic properties that they own or

occupy, at a tariff per unit of renewable heat, for seven years beginning

on the date when the application for accreditation is made. Under the

scheme, payments are provided to eligible installations that were

commissioned on or after 15 July 2009.

The support provided is designed to compensate for the difference

between the cost of installing and operating a renewable heating

system and that of a fossil fuel system.

Diffuse Mesothelioma Payment Scheme Regulations 2014; and

Diffuse Mesothelioma Payment Scheme (Amendment) Regulations 2014

The Diffuse Mesothelioma Payment Scheme Regulations 2014 (SI

2014/916) and Diffuse Mesothelioma Payment Scheme (Amendment)

Regulations 2014 (SI 2014/917) were established on 5 April 2014 and 7

April 2014 respectively. The purpose of these regulations is to establish

a payment scheme under the Mesothelioma Act 2014 for those eligible

people who suffer with diffuse mesothelioma where their employers’

liability insurance company is untraceable.

Ecodesign for Energy-Related Products and Energy Information (Amendment) Regulations 2014

On 19 May 2014, the Ecodesign for Energy-Related Products and

Energy Information (Amendment) Regulations 2014 (SI 2014/1290)

were made, and came into force on 1 July 2014. The latest Regulations

extend the categories of energy related products that are required to

comply with prior related Regulations.

The Energy Efficiency (Encouragement, Assessment and Information) Regulations 2014

On 2 June 2014 the Energy Efficiency (Encouragement, Assessment

and Information) Regulations 2014 (SI 2014/1403) were made and

came into force on 26 June 2014. The Regulations implement

provisions of the Energy Efficiency Directive 2012 (Directive

2012/27/EU) in the UK.

The Regulation places requirements on the Secretary of State and the

Welsh Ministers to encourage small and medium-sized enterprises

(SMEs) to voluntarily undertake energy audits and assess potential

for high-efficiency cogeneration of electricity and heat, efficient district

heating and cooling, and the recovery of industrial waste heat. The

Regulations also provide for requirements to ensure that information

relating to energy efficiency mechanisms, energy services and their

benefits and financing are accessible.

Ecodesign for Energy-Related Products and Energy Information (Amendment) Regulations 2014

On the 1 July 2014 the Ecodesign for Energy-Related Products and

Energy Information (Amendment) Regulations 2014 Regulations 2014

(SI 2014/1290) came into force.

The Regulations increase the categories of the energy-related products

which are required to comply with the Ecodesign for Energy-Related

Products Regulations 2010 (SI 2010/2617), which implement the

Ecodesign for Energy-Related Products Directive 2009 (ErP Directive

2009) in the UK and the Energy Information Regulations 2011 (SI

2011/1524) that implement the Energy Labelling Directive 2010 in the

UK (Directive 2010/30/EU).

The Renewable Heat Incentive Scheme (Amendment) Regulations 2014

On the 28 May 2014, the Renewable Heat Incentive Scheme

(Amendment) Regulations 2014 (SI 2014/1413) came into force. The

Regulations adapted the non-domestic RHI scheme through the

amendment of the Renewable Heat Incentive Scheme Regulations

2011 (SI 2011/2860).

The amendments included the extension of the previously unsupported

technologies of biogas combustion plants of at least 200 kilowatts

thermal (kWth) and air to water heat pumps, and also the revision of

tariffs. The amendments introduce flexibility in the eligibility rules for

biomass and biogas combined heat and power, and enable greater

flexibility in switching from public grant to RHI.

The Renewables Obligation (Amendment) Order 2014

On 30 March 2014, the Renewables Obligation (Amendment) Order

2014 (SI 2014/892) (RO Order 2014) was made and took effect from

1 April 2014. The RO Order 2014 is applicable in England and Wales.

The RO Order 2014 puts into effect the government's policy decisions

on the transition from the Renewables Obligation (RO) to the

Contracts for Difference (CFDs) under Electricity Market Reform

(EMR).

Ofgem announced on 1 April 2014 that it has revised and issued a

variety of RO guidance documents in order to reflect the changes

made by the RO Order 2014.

Electricity and Gas (Energy Companies Obligation) (Amendment) Order 2014

On 1 May 2014, the Electricity and Gas (Energy Companies Obligation)

(Amendment) Order 2014 (SI 2014/1131) came into force. The Order

brings numerous technical changes to the Energy Companies

Obligation (ECO) into force, which include allowing ‘excess actions’ to

be transferred across different obligations and suppliers, clarifying that

ECO measures may be installed in particular circumstances when

rented property is not being occupied and including universal credit

recipients within the eligibility criteria for affordable warmth.

The Government consultation on changes to ECO in March 2014 is not

introduced in the Order.

The Energy Act 2008 (Commencement No. 6) Order 2014 and the Energy Act 2004 (Commencement No. 11) Order 2014

The Energy Act 2008 (Commencement No. 6) Order 2014 (SI

2014/1461) and the Energy Act 2004 (Commencement No. 11) Order

2014 (SI 2014/1460) brought the offshore electricity transmission

regime into force on 10 June 2014. Consequently Ofgem now

regulates and licenses the transmission of electricity in Britain’s

territorial waters at 132kV and above.

The Generator Commissioning Clause, which provides for greater

certainty to wind farm developers that elect to construct the

transmission systems themselves has also come into force. These

developers now have a period of 18 months period to legally test

transmission systems before transferring these to an offshore owner.

Regulators' Code (UK Government) The Regulators' Code came into force on 6 April 2014 by the

introduction of the Legislative and Regulatory Reform Code of

Practice (Appointed Day) Order 2014 (SI 2014/929). The new code

establishes a framework for clear and accountable regulatory delivery

and introduces rules regarding the interaction between regulators and

those that they regulate.

The Regulators' Code also contains a summary of regulators and

regulatory functions, explaining that the code is applicable to:

Certain regulatory functions exercised by local authorities in the UK.

All regulatory functions used by numerous bodies including a number of

environmental regulators such as the Environment Agency (EA),

Natural Resources Wales (NRW) and the Marine Management

Organisation, the Financial Conduct Authority, the Information

Commissioner and the Prudential Regulation Authority.

Infrastructure Bill 2014-15 The Infrastructure Bill 2014-15 was laid before Parliament on 5 June

2014. The main environmental provisions of the Bill were the

introduction of species control orders and powers enabling the

Secretary of State to introduce regulations to give community groups

and individuals the right to purchase stakes in renewable electricity

projects in their local area.

However the Bill does not contain any provisions on either setting up

an allowable solutions scheme to support the 2016 zero carbon

homes standard that will be introduced through the Building

Regulations or the authorisation for underground access for shale gas

and geothermal energy drilling, which would otherwise amount to

trespassing. These issues are not covered by the Bill as the

governments proposals are subject to consultation.

Serious Crime Bill 2014-15 The Government has laid the Serious Crime Bill 2014-15 before

Parliament (5 June 2014), which includes provisions that would

amend the Proceeds of Crime Act 2002 in order to strengthen the

court's powers to seize the proceeds of crime, and also to introduce

new offence in England and Wales of participating in an organised

crime group.

Draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Standard Scale of Fines for Summary Offences) Order 2014 and draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Disapplication of Section 85(1),

The government has published the following draft instruments, which

will raise and vary the level of fines that can be imposed in the

magistrates’ courts, including some for environmental offences.

The first statutory draft is the draft of the Legal Aid, Sentencing and

Punishment of Offenders Act 2012 (Amendment of Standard Scale of

Fines for Summary Offences) Order 2014, which will allow increases

of 400% of the maximum fines between levels 1 to 4 on the standard

Fines Expressed as Proportions and Consequential Amendments) Regulations 2014

scale.

The second statutory draft is the draft of the Legal Aid, Sentencing

and Punishment of Offenders Act 2012 (Disapplication of Section

85(1), Fines Expressed as Proportions and Consequential

Amendments) Regulations 2014, which will raise the levels of fines

expressed as a proportion (including some fines under the

Environmental Protection Act 1990).

Commission Directive 2014/80/EU (amending Annex II to Directive 2006/118/EC of the European Parliament and of the Council on the protection of groundwater against pollution and deterioration)

Commission Directive 2014/80/EU of 20 June 2014 amending Annex

II to Directive 2006/118/EC of the European Parliament and the

Council on the protection of groundwater against pollution and

deterioration has been published by the Official Journal (21 June

2014).

The Directive, which amends the Groundwater Directive 2006

(2006/118/EC), amends the process that member states are to follow

in calculating threshold values for pollutants in water. The Directive

also extends the list of pollutants for which member states must set

threshold values, and also amends information relating to at risk

groundwater bodies and threshold values that member states are

required to provide in river basin management plans.

Guidance Summary/Impact

Guidance relating to right on recorded information (ICO)

The Information Commissioner's Office (ICO) has published (26

March 2014) new guidance concerning the right to recorded

information and requests for documents. The new guidance offers

advice on how to deal with requests under the Freedom of Information

Act 2000 or the Environmental Information Regulations 2004 (SI

2004/3391) for specific documents, different types of documents and

for copies of original documents. In addition, the guidance contains

advice on dealing with requests for documents that may contain

certain information that is not liable for disclosure.

Summary of Contracts for Difference allocation process and draft Allocation Framework published (DECC)

DECC published a high level summary of the CFD allocation process

and a draft of the Allocation Framework (for comments) on 8 April

2014.

The purpose of the CFD is to support low carbon electricity generation

under EMR. The documents contain an explanation of how the CFD

allocation process will function, and they include an indicative timeline

which states that DECC expect the first allocation round to begin on

14 October 2014. The documents also provide for the detail of the

application and offer mechanism, including the eligibility and

qualification assessment and comprehensive auction rules.

Contracts for Difference implementation update (DECC)

DECC has published (23 April 2014) the latest version of the CFD

Terms and Conditions and CFD Agreement, alongside a policy and

drafting update, in order to explain how these documents have been

further developed. A response to a consultation on the CFD standard

terms was also published.

In addition, the first electricity renewables projects that are to be

awarded investment contracts were announced by DECC based upon

the draft CFD terms and conditions and the announced CFD strike

prices.

Measures to minimise the environmental impacts of shale gas and guidance on risk assessments announced (DECC)

DECC published (24 April 2014) a document detailing its commitments

on measures to address GHG emissions from shale gas production. It

accepts all the proposals detailed in the September 2013

Stone/MacKay report on GHG emissions. Key commitments include

that operators will be obliged to comply with the best available

techniques in the reduction of GHG emissions from shale gas. In

addition, DECC published guidance on 24 April 2014 to operators on

carrying out an initial environmental risk assessment in respect of shale

gas operations.

Adoption of new guidelines on state aid for environmental protection and energy (European Commission)

The European Commission has adopted (9 April 2014) new guidelines

on state aid for environmental protection and energy. The new

guidelines will replace the existing 2008 guidelines on environmental

aid and came into force from 1 July 2014. They extend the terms of

the existing guidelines to cover, in particular, the provision of state aid

to energy infrastructure projects, generation adequacy measures and

support for energy intensive users. The new guidelines also set out a

framework for aid to energy, in particular electricity, from renewable

sources, which requires a move to market-based support from

January 2016 and the use of competitive bidding processes from

January 2017 for aid to all new renewable energy installations.

The new guidelines, which are to be applicable until the end of 2020,

are intended to assist member states to design state aid measures

that will contribute towards reaching their 2020 climate targets and

provide sustainable and secure energy, whilst ensuring that those

measures are well-targeted and do not cause distortions of

competition.

UK Solar PV Strategy Part 2 (DECC) DECC published DECC: UK Solar PV Strategy Part 2 on 4 April 2014.

Part 2 of the Strategy clearly details the government's intentions for

how solar photovoltaic (PV) electricity generation will be generated by

key market segments, in particular, mid-size projects on the roofs of

commercial, industrial and larger public buildings. The updated

strategy further announces a new intention to work with industry to

increase domestic deployment, with the aim of reaching one million

roof installations by the end of 2015.

Briefing for operators of permitted waste operations and of installations published (Environment Agency)

After 7 July 2015, specified waste and industrial projects shall be

subject to more stringent environmental permitting requirements,

under the Industrial Emissions Directive 2010 (2010/75/EU) (IED

2010). A briefing, published by the EA on 14 April 2014, issues the

most recent information concerning the work it is carrying out to put

into effect the IED 2010. Operators of installations and of permitted

waste operations shall have regard to the briefing, which includes

relevant information about the steps and deadlines for submission of

applications to apply for, or vary, permits.

Smarter Environmental Regulation Review: Phase 1 report on information gathering and terms of reference for Phase 2 on legislation published (Defra)

"Smarter Data": Plans to simplify information requests was published

on the 9 April 2014 by the Department for Environment, Food and

Rural Affairs (Defra), and contained reports on its work under Phase 1

of its Smarter Environmental Regulation Review (SERR). SERR was

launched in 2012 in order to simplify Defra’s environmental guidance

and requests for information and data. There were 91 measures

included in the report in order to improve Defra's information-

gathering, 12 of which have already been implemented. It is intended

that the remaining with improvements will be implemented by March

2016.

Defra also published simultaneously Terms of Reference for Smarter

Environmental Legislation: Phase 2 of the Smarter Environmental

Regulation Review (SERR Phase 2), which considers the scope to

reform environmental legislation and will report back with in late 2014,

on:

A revised long-term direction and structure for environmental legislation;

and

Possible reform proposals for legislation reform and action required for

the following 5-10 years.

Extension issued on policy on deciding planning appeals on renewable energy developments (UK Government)

The Secretary of State for Communities and Local Government stated

on 9 April 2014 that there is to be an extension of 12 months to April

2015, on the policy regarding recovering planning appeals for

renewable energy projects. The statement clarified that numerous

renewable energy appeals may be recovered, but not all. The policy

applies to England only.

The Secretary of State holds the final decision on whether appeals

are successful or not, taking into account a report of a planning

inspector.

Clarification of when consignee notes are not required for specific hazardous wastes (Environment Agency)

The EA has published (24 April 2014) a revised regulatory position

statement detailing when a consignee (a person receiving or holding

hazardous waste) does or does not have to record individual

consignments for movements of particular hazardous wastes.

The Hazardous Waste (England and Wales) Regulations 2005 (SI

2005/894) require consignment notes when moving hazardous waste,

in order to track and safely manage the hazardous waste. A fee is

payable to the EA for each note. Consignees are required to report on

a quarterly basis a summary of the consignment notes.

The statement also details the instances when a consignee is not

required to submit each individual consignment of hazardous waste

on the return. All other requirements of the Hazardous Waste

Regulations still apply.

Confirmation as to which premises dealing with hazardous waste do not need to be registered (Environment Agency)

The EA (15 April 2014) has produced a restructured version of its

regulatory position statement, which details the premises that are

exempt from registration under the Hazardous Waste (England and

Wales) Regulations 2005 (SI 2005/894).

The categories of premises that are exempt from registration under

the Regulations include highways and railways where certain

maintenance is being carried out, rivers, forests, and mobile

healthcare providers (including ambulances) where treatment is

carried out. This position applies in England only.

Response to consultation on improving enforcement of transfrontier shipment of waste

Defra has published (3 April 2014) the UK Government's response to

the consultation issued in March 2013 on proposed modifications to

the Transfrontier Shipment of Waste Regulations 2007 (SI 2007/1711)

regime (Defra) (TSWR 2007). The response details the Government’s intention to

proceed with all of the planned amendments to the TSWR 2007,

which set out the relevant competent enforcement bodies, offences

and penalties for the enforcement of the EU Waste Shipments

Regulation 2006 in the UK (Regulation (EC) No 1013/2006 on

shipments of waste).

The Transfrontier Shipment of Waste (Amendment) Regulations 2014

(SI 214/861) (TSWR 2014) were also put before Parliament. The

Regulations took effect from the 1 of May 2014 and amend the TSWR

2007 to:

Authorise the disclosure of relevant export data to the UK competent

authorities by HM Revenue & Customs (HMRC).

Give clarification as to the competent authorities for transiting waste in

the UK, and the movement of waste to or from any marine area.

Transfer enforcement functions for Wales to NRW.

Aarhus Convention: Proposed Directive on access to justice withdrawn (European Commission)

The European Commission has formally withdrawn its proposal for a

Directive on access to justice in environmental matters (COM(2003)

624) (21 May 2014). The Directive would have directly implemented in

the EU the "access to justice" (third) pillar of the Aarhus Convention.

Member states, including the UK, have resisted the Commission’s

proposal from progressing beyond the draft stage. Under alternative

EU legislation and interpretation from the Court of Justice of the

European Union (ECJ) and member states’ courts there has been an

implication of the third pillar. A new proposal by the Commission could

be submitted due to the withdrawal.

Proposal adopted by European Commission for Decision that is to determine a list of sectors exposed to a significant risk of carbon (EU ETS)

On 5 May 2014, a proposal for a Commission Decision was adopted

by the European Commission for the period 2015-2019, determining a

list of sectors and subsectors recognised to be significantly exposed

to the risk of carbon leakage. This introduces the second carbon

leakage list, which, following adoption, will replace the first carbon

leakage list (valid until the end of 2014).

Unless the European Parliament or the Council opposes it, the

Commission will formally adopt the Decision under the EU comitology

procedure.

Draft Soil Directive withdrawn (European Commission)

The withdrawal of the European Commission’s proposal for a

Directive that would establish a framework for the protection of soil

(amending Directive 2004/35/EC) has been published in the Official

Journal (21 May 2014).

This brings the formal withdrawal procedure to a conclusion, following

an announcement by the Commission in October 2013 that the 2007

proposal would not be implemented due to opposition from numerous

member states, including the UK. Nevertheless this could enable the

Commission to make a further alternative proposal.

The end of the proposal is welcomed by the National Farmers' Union

(NFU), which believed the proposal simply duplicated existing soil

protection measures.

Energy security strategy announced (European Commission)

On 28 May 2014, a European energy security strategy was announced

by the European Commission. A Communication was published by the

European Commission, which set out numerous actions addressing

short, medium and long term security of energy supply challenges.

Such actions include: increasing the indigenous production of energy

(including deployment and support of renewable technologies energy

and nuclear energy) and the initiation of renewable energy support

systems EU-wide via improved coordination of national support

schemes.

Approval of UK compensation for indirect costs of carbon price floor (European Commission)

On 21 May 2014, an announcement was made by the European

Commission confirming state aid approval has been given to UK

plans, which aim to compensate certain energy-intensive users from

higher electricity costs triggered by a mandatory carbon price floor

(CPF). The CPF, introduced as part of the UK’s EMR, is a tax on

carbon-intensive fuels implemented under the Climate Change Levy

(CCL).

Compensation will partially counteract the higher electricity cost, akin

to the similar arrangements made for the EU Emission Trading

Scheme (EU ETS) costs. The Commission concluded that the

measures are in line with the rules of state aid, especially in relation to

new provisions on environmental protection and energy. It is believed

EU energy objectives will be furthered without distorting competition

unduly.

Response of DECC to consultation of allocation of CFDs (DECC)

On 13 May 2014, Government's response to a consultation on the

competitive allocation of CFDs was published by the DECC. The

Government's decisions on the application of technology groups for

budget management and a summary of the CFD budget allocation

approach have been set out. Specifically, it has chosen to utilise

allocation rounds and, for the first allocation round, to divide the CFD

budget between "established" technologies and "less established"

technologies. From the beginning of CFD allocation, more established

technologies will be subject to an auction process. Conversely, less

established technologies will not move to competition automatically

and will not compete with established technologies directly.

Next steps on biomass sustainability criteria (European Commission)

At the annual European Biomass Association Conference on 12 May

2014, the European Commission indicated it does not propose to

introduce sustainability criteria in relation to the GHG emissions of solid

biomass used to meet EU 2020 climate and energy targets.

Additionally as part of the ongoing discussions over an EU 2030

Climate and Energy framework, sustainability of solid biomass will be

reviewed, and before summer 2014 a report on GHG emissions of solid

biomass will be published.

Green Deal Home Energy Efficiency Improvement Fund Announced (UK Government)

On 1 May 2014 DECC announced the launch (in June 2014) of the

Green Deal Home Improvement Fund (Green Deal HIF) to support

domestic energy efficiency improvements.

A maximum of £7,600 available for one year will paid by the Green

Deal HIF towards eligible domestic energy efficiency improvements.

The Government hopes that the Green Deal HIF will help revive the

Green Deal from the slow uptake since the 2012 launch.

National Energy Efficiency Action Plan and Building Renovation Strategy published (UK Government)

DECC has published the UK’s National Energy Efficiency Action Plan

(NEEAP) (30 April 2014), in compliance with Article 24 of Energy

Efficiency Directive 2012 (2012/27/EU). The NEEAP covers the policy

measures that are to put into practice the Energy Efficiency Directive

2012. It includes projections of energy savings from each policy, in

order to achieve the UK's 2020 energy efficiency target. This covers

plans to increase energy efficiency in the private tenanted sector

through regulation.

The UK's Building Renovation Strategy is set out in Annex B of the

NEEAP, and provides an overview of the UK’s building stock and its

energy efficiency performance, in addition to the existing policies that,

in the transition towards a low carbon economy, are designed to

improve the performance of the UK’s building stock.

RTFO: Response to consultations on post-implementation review and advanced fuels published (UK government)

The Department for Transport has published a joint government

response (30 April 2014) to two December 2013 consultations relating

to advanced fuels and a draft post implementation review of the

Renewable Transport Fuel Obligation (RTFO).

The response noted that there will be no significant changes to UK

biofuel supply legislation until EU level negotiations have concluded.

Nevertheless, the response document proposes consultations later in

2014 to propose possible changes that would be introduced by April

2015. Such proposals include introducing supporting gaseous fuels on

the basis of energy content, supporting synthetic fuels from renewable

energy and harmonising RTFO support by for different forms of

biodiesel.

Guidance updated on Energy Performance Certificates for dwellings (DCLG)

The Department for Communities and Local Government (DCLG) has

published guidance (30 April 2014) on changes to the rules of on

EPCs that were introduced in January 2013.

The changes include updated guidance on EPC for dwellings, and on

EPC enforcement. Additionally new guidance has been published on

EPC Register data accessing.

Guidance on offence response options updated (Environment Agency)

The EA has issued a seventh version of its Enforcement and

Sanctions Offence Response Options (2 May 2014).

The guidance has been updated to reflect legislation such as the CRC

Energy Efficiency Scheme Order 2013 (SI 2013/1119), and

supplements the EA's Enforcement and Sanctions Statement and

Guidance documents. Additionally it details the enforcement options

available for particular environmental offences regulated by the EA

including options to prosecute or use civil sanction.

Guidance published on baseline reports under the Industrial Emissions Directive 2010 (European Commission)

Guidance has been published by the European Commission (6 May

2014) on preparing baseline reports under Article 22 of the Industrial

Emissions Directive 2010 (2010/75/EU). A baseline report must be

prepared by operators of sites that are using, producing and releasing

hazardous substances, before operating the installation or updating

any permit.

The Directive requires the reports to be considerably more detailed

than was required in previous legislation (IPPC Directive 2008). The

guidance covers clarification of the key terms in Article 22,

explanation of the eight stages for the preparation of a baseline

report, and specific guidance for landfills.

First referrals made to Trading Standards (ASA)

The first referrals have been made to Trading Standards by the

Advertising Standards Authority (ASA) under the new legal backstop

regime. From 21 November 2013, the National Trading Standards

Board replaced OFT as the ASA’s legal backstop.

The procedure would also be applicable to non-compliant green

claims in advertising.

Responses published regarding consultation on simplifying waste transfer notes (Defra)

A summary of responses and the Government response have been

published by Defra and the Welsh Government, relating to the

December 2013 consultation on the simplifying of waster transfer

notes (WTNs)

WTNs are used to provide a written description of waste that is being

transferred and the simplification of WTNs is part of the Red Tape

Challenge of the UK Government.

As of 6 April 2014, the key consultation proposals have been

implemented by the Waste (England and Wales) (Amendment)

Regulations 2014 (SI 2014/656).

European energy security strategy announced (European Commission)

The European Commission on 28 May 2014 announced its European

energy security strategy. The European Commission published a

Communication which provides for various actions to address short,

medium and long term security in respect of energy supply

challenges. These include increasing indigenous energy production

which includes deployment supporting of renewable technologies with

energy and nuclear energy. The actions also include initiating EU-

wide renewable energy support networks by means of improving

coordination of national support schemes.

The Commission comments that the energy security is inseparable

from the 2030 framework for climate and energy.

Policy decisions on implementing EMR announced (DECC)

DECC has announced (23 June 2014) Government decisions relating

to the implementation of EMR. A policy document which has been

published sets out the current position in respect of the

implementation of CFDs and the Capacity Market. Secondary

legislation for implementation in accordance with this decision has

been laid before Parliament and published.

Revised Green Deal Code of Practice (UK Government)

The Secretary of State for Energy and Climate Change has published

(23 June 2014) a revised version of the Green Deal (GD) Code of

Practice for GD providers, GD assessors, GD installers and

certification bodies. The updated Code of Practice is issued under

regulation 10 of the Green Deal Framework (Disclosure,

Acknowledgment, Redress, etc.) Regulations 2012 (SI 2012/2079).

The primary amendments to the Code of Practice were in respect of

recently introduced legislation which clarifies when a GD plan is

classified as a consumer credit agreement covered by the Consumer

Credit Act 1974.

Report relating to preparations for smart metering (NAO)

The National Audit Office (NAO) published a report (5 June 2014)

relating to the progress of the Government’s Smart Metering

Implementation Programme that aims to gradually introduce smart

meters in small and domestic business premises by 2020. NAO has

stated that overall DECC has provided strong leadership and has

made positive developments with Ofgem in preparing for the

Programme. However, NAO noted that some significant risks remain.

Fine for npower confirmed for breach of reporting requirements under Renewables Obligation and Feed-in Tariff scheme (Ofgem)

Ofgem published a statutory notice (27 June 2014) announcing a

decision to impose a fine of £125,000 on npower in respect of breach

of reporting requirements under the RO and FIT scheme.

Npower conceded that they did not accurately report the amount of

electricity they were supplying to their customers in England, Wales

and Scotland for the periods of 2010-2011 and 2011-2012. It was

noted that this caused harm to other market participants. Npower had

self-reported the error and co-operated with Ofgem which they took

into account.

Guideline on fraud, bribery and money laundering offences published (Sentencing Council)

The Sentencing Council has published (23 May 2014) its guideline on

sentencing offenders for fraud, bribery and money laundering

offences.

The new guideline will incorporate the sentencing guidelines for

individual and corporate offenders, and the guideline is also applicable

to organisations that are sentenced on or after 1 October 2014.

Proposed changes to legislation governing negligence cases (MoJ)

Changes have been proposed by the Ministry of Justice in respect of

the legislation governing negligence cases in order to attempt to

prevent the growth of a compensation culture.

As a result of the changes, judges would be required to consider three

further factors when considering a negligence claim, ensuring that the

context of the incident in question is taken into account. The

additional factors comprise of considering whether an individual was

taking part in an activity to benefit society, how they acted and

whether it was a responsible way, and whether they acted in an

emergency.

Companies Act 2006 (Strategic Report and Directors' Report) Regulations 2013 (FRC)

The Financial Reporting Council (FRC) has published guidance (9

June 2014) providing details of strategic reports to be prepared by

companies as part of their annual report under the Companies Act

2006 (Strategic Report and Directors' Report) Regulations 2013 (SI

2013/1970).

The guidance provides that information relating to environmental

matters should be covered by the strategic report where their

influence or potential influence on the development, performance

position and future prospects of the company’s activities is of a

particular nature or magnitude that they are relevant to the

shareholders. The guidance comes into force immediately replacing

the Accounting Standards Board’s Reporting Statement: Operating

and Financial Review.

Queen's Speech 2014: environmental implications

On the 4 June 2014, the Queen’s Speech was delivered and it set out

the legislative programme for the 2014-15 Parliamentary session. The

main environmental announcements include the addition of provisions

in the Infrastructure Bill in order to clarify and streamline the

underground access regime for shale gas and oil and geothermal

energy. A zero carbon standard for new homes from 2016 has been

proposed, which would be provided for through the Building

Regulations.

Commission on Devolution in Wales: report on powers of National Assembly for Wales

Part 2 of the report on the devolution settlement for Wales has been

published by the Commission on Devolution in Wales. The report

reviews a range of feedback and summarises the current devolution

arrangements and legislation.

Statutory scheme of conservation covenants recommended (Law Commission)

The Law Commission has published a report (24 June 2014), which

sets out recommendations for the introduction of a scheme of

conversation covenants in England and Wales. A draft Conservation

Covenants Bill is included in the report. A conservation covenant

represents a voluntary agreement between a landowner and a public

body or conservation organisation, where they agree to do or not do

something on their land for conservation purposes. Conservation

covenants can bind any future landowners as well as the person who

enters into the agreement with them.

Online tool launched to assist in identifying whether proposed developments will affect SSSIs (Natural England)

An online tool for local planning authorities and developers in England

has been launched by Natural England in order to assess whether a

proposed development will affect Site of Special Scientific Interest

(SSSI).

There will be tool maps which zone around each SSSI according to

the sensitivities of the particular features of the SSSI, and which will

also indicate the types of development that could impact the SSSI

adversely.

New Strategic Framework on Health and Safety at Work adopted (European Commission)

The European Commission has adopted a Communication (6 June

2014) on the new Strategic Framework on Health and Safety at Work

in respect of the period of 2014- 20. It provides for key strategic

objectives and a range of actions that will promote health and safety

of the workers, by identifying outstanding problems and primary

challenges.

The focus of the Strategy is to ensure that the EU continues to play a

leading role in the endorsement of high standards for working

conditions both within Europe and internationally.

Report and prototype software for local flood risk assessment published (Environment Agency)

A report has been published by the EA on different methods that a

lead local flood authority (LLFA) could implement in order to

understand and manage flood risk in its area. LLFAs are responsible

for monitoring local flood risks.

Case Name Summary/Impact

R (Evans) v Basingstoke and Deane BC & Anor [2013] EWCA Civ 1635

The Court of Appeal has stated in R (Evans) v Basingstoke and

Deane BC & Anor [2013] EWCA Civ 1635 that the 10-year time

limitation for obtaining immunity from planning enforcement action for

specified infringements of planning control, under sections 171B and

191 of the Town and Country Planning Act 1990, meets the

requirements of Article 2(1) of the Environmental Impact Assessment

(EIA) Directive (85/337/EEC) that an EIA is undertaken for specified

projects before consent is given. As a result, an EIA development that

has not undertaken an EIA may, nonetheless, be capable of obtaining

immunity from planning enforcement, after some period of time.

Patersons of Greenoakhill Ltd v Revenue & Customs [2014] UKFTT 334 (TC)

On 2 April 2014 in the case of Patersons of Greenoakhill Ltd v Revenue

& Customs [2014] UKFTT 334 (TC) the First-tier Tribunal (Tax) stated

that the requirement to pay landfill tax arose where biodegradable

material was sent to landfill and the methane produced from the waste

was used to produce electricity.

Arguments that the landfill company did not have the intention to

discard the material were not accepted by the court. The court also

noted that the use of methane did not mean that biodegradable material

was being recycled when it was being landfilled.

Cascina Tre Pini Ss v Ministero dell'Ambiente e della Tutela del Territorio e le Mare and Others [2014] EUECJ C-301/12

In the case of Cascina Tre Pini Ss v Ministero dell'Ambiente e della

Tutela del Territorio e le Mare and Others [2014] EUECJ C-301/12, the ECJ concluded that member states are required to propose the

declassification of a site of community importance (SCI) to the

Commission, where a request from the owner of the land in the SCI

alleging its environmental degradation has been received.

The court detailed that the relevant authorities of the member states

should request declassification of a SCI where the site can no longer

contribute towards the conservation of natural habitats and species or

to the Natura 2000 network, even where protective measures

provided for in Article 6(2) to (4) of the Habitats Directive (92/43/EEC)

have been complied with.

GW v Information Commissioner and others [2013] UKUT 130 (AAC)

A ruling (GW v Information Commissioner and others [2014] UKUT

130 (AAC)) has been made by the Upper Tribunal, which provides

that where legal advice that is subject to legal professional privilege is

requested under the Environmental Information Regulations 2004 (SI

2004/3391), disclosure of that advice will not be automatically

prevented by the "adverse course of justice" exception as provided by

regulation 12(5)(b). In this case the applicant had requested a copy of

legal advice from the Local Government Ombudsman (LGO) that had

been received by a local authority, who had then passed this on to the

LGO in confidence, to assist in the LGO's investigation of the

applicant’s complaint.

The tribunal decided that simply due to legal professional privilege

being attached to the advice, it did not automatically indicate that the

disclosure of such advice would adversely affect the course of justice.

Any adverse effect on the course of justice relied upon by the public

authority was the responsibility of that authority to identify and

establish, in the specific circumstances.

Holder v Gedling Borough Council [2014] EWCA Civ 599]

In the case of Holder v Gedling Borough Council [2014] EWCA Civ

599, planning permission for a 66 metre high wind turbine located in

the green belt has been quashed by the Court of Appeal.

The court decided the planning officer was wrong in advising the local

authority that certain factors were not material considerations when

considering whether to grant planning permission. These factors

included that the turbine would be inefficient and not generate a

significant amount of energy, that alternative methods of producing

renewable energy were in existence, the precedent value of planning

permission regarding further turbine development and that the turbine

should be sited outside the green belt.

TC Briels and others v Minister van Infrastructuur en Milieu (Case C 521/12)

In the case of TC Briels and others v Minister van Infrastructuur en

Milieu (Case C 521/12), the ECJ provided a preliminary ruling in

respect of Article 6(3) of the Habitats Directive (Council Directive

92/43/EEC of 21 May 1992 on the conservation of natural habitats

and of wild fauna and flora). The decision covers the approach an

authority should take when deliberating whether a project will

adversely affect the integrity of a Site of Community Interest (SCI) or

a Special Area of Conservation (SAC).

The ECJ made note that an authority assessing any project

implications, should not take into account the protective measures

utilised by a project aimed at compensating for the project’s negative

effects on a SAC or SCI.

In brief, the project in this case was compensating for some habitat

loss by creating an equivalent habitat on another part of the SAC.

R (Swiss International Airlines AG) v Secretary of State for Climate Change and Energy and another [2014] EWHC 630 (Admin)

The High Court has refused permission (6 February 2014) for Swiss

International Airlines AG to begin a judicial review to challenge the

Greenhouse Gas Emissions Trading Scheme (Amendment)

Regulations 2013 (SI 2013/1037), which bring into effect the Stop the

Clock Decision 2013 (277/2013/EU) in the UK (‘the Decision’). The

Decision temporarily suspended the EU ETS on airline operators in

relation to flights to and from countries outside the European

Economic Area.

The courts held that principles of EU law do not oblige the EU to

extend equal treatment to all third countries, adding that the principle

of equal treatment did not apply in this case. Permission for judicial

review was therefore refused and the question was not referred to the

European Court of Justice.

Stagecoach South Western Trains Ltd v Hind and another [2014] EWHC 1891 (TCC)

In the case of Stagecoach South Western Trains Ltd v Hind and

another [2014] EWHC 1891 (TCC), in respect of the extent of a

landowner’s duties in relation to its trees, the High Court has

concluded that whilst a landowner is under an obligation to undertake

regular, informal inspections of the trees on its land, in the absence of

any trigger or warning signs, a reasonable and prudent landowner is

not obliged to instruct an arboriculturalist to undertake periodic

inspections.