The Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009

PART 1 N.I. Introductory provisions

Citation and commencement N.I.

1.  These Regulations may be cited as the Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009 and come into operation on 24th July 2009.

Commencement Information

I1 Reg. 1 in operation at 24.7.2009, see reg. 1

Interpretation N.I.

2.—(1) The Interpretation Act (Northern Ireland) 1954(1) applies to these Regulations as it applies to an Act of the Northern Ireland Assembly.

(2) In these Regulations—

“activity” means any economic activity, whether public or private and whether or not carried out for profit;

“area of special scientific interest” means an area declared under Article 28(1) of the Environment (Northern Ireland) Order 2002(2);

[F1 ”baseline” means the low-water line along the coast as defined in the Territorial Seas (Baseline) Order 2014]

“damage” means a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly;

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

“imminent threat of damage” means a sufficient likelihood that environmental damage will occur in the near future;

“marine installation” means any artificial island, installation, platform or other artificial structure at sea, other than a pipeline or a vessel;

“natural habitats” means—

(a)

the habitats of species mentioned in [F2 Article 4(1) of and Annex 1 to Directive 2009/147/EC of the European Parliament and of the Council] on the conservation of wild birds(3) or listed in Annex II to Directive [F2 Directive 97/62/EC] on the conservation of natural habitats and of wild fauna and flora(4);

(b)

the natural habitats listed in Annex I to [F3 Council Directive 97/62/EC] ; and

(c)

the breeding sites or resting places of the species listed in Annex IV to that Directive;

“natural resource” means—

(a)

protected species;

(b)

natural habitats;

(c)

species or habitat in an area of special scientific interest for which the site has been declared;

(d)

water; and

(e)

land;

“operator” means any natural or legal, private or public person who operates or controls the activity by means of delegated authority or otherwise and includes the holder of a permit or authorisation for such an activity;

[F4 “river basin management plan” has the same meaning as in the Water Environment (Water Framework Directive) Regulations (Northern Ireland) 2017.]

“Planning Appeals Commission” means the Planning Appeals Commission established under Article 110 of the Planning (Northern Ireland) Order 1991(5);

“protected species” means the species mentioned in [F5 Article 4(1) of Directive 2009/147/EC of the European Parliament and of the Council] or listed in Annex I to that Directive or listed in [F5 Annex II to Council Directive 97/62/EC and Annex 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;

“vessel” means—

(a)

hovercraft, and

(b)

any other craft capable of travelling on, in or under water, whether or not self-propelled.

(3) 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(6) [F6 as last amended by Directive 2013/30/EU of the European Parliament and of the Council] have the same meaning in these Regulations.

[F7 (4) A reference to Council Directive 1999/31/EC on the landfill of waste shall be construed as a reference to that Directive [F8 as it had effect immediately before exit day].]

Textual Amendments

F1 Words in reg. 2 inserted (19.7.2015) by The Environmental Liability (Prevention and Remediation) (Amendment) Regulations (Northern Ireland) 2015 (S.R. 2015/231), regs. 1(1), 2(2)

F2 Words in reg. 2(2) substituted (24.12.2018) by The Environment (Miscellaneous Amendments) Regulations (Northern Ireland) 2018 (S.R. 2018/200), reg. 1(1), Sch. 1 para. 21(a)(i)

F3 Words in reg. 2(2) substituted (24.12.2018) by The Environment (Miscellaneous Amendments) Regulations (Northern Ireland) 2018 (S.R. 2018/200), reg. 1(1), Sch. 1 para. 21(a)(ii)

F4 Words in reg. 2(2) inserted (31.12.2020) by The Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019 (S.I. 2019/584), regs. 1, 37; 2020 c. 1, Sch. 5 para. 1(1)

F5 Words in reg. 2(2) substituted (24.12.2018) by The Environment (Miscellaneous Amendments) Regulations (Northern Ireland) 2018 (S.R. 2018/200), reg. 1(1), Sch. 1 para. 21(b)

F6 Words in reg. 2(3) inserted (24.12.2018) by The Environment (Miscellaneous Amendments) Regulations (Northern Ireland) 2018 (S.R. 2018/200), reg. 1(1), Sch. 1 para. 22

F7 Reg. 2(4) inserted (24.12.2018) by The Environment (Miscellaneous Amendments) Regulations (Northern Ireland) 2018 (S.R. 2018/200), reg. 1(1), Sch. 1 para. 23

F8 Words in reg. 2(4) substituted (31.12.2020) by The Agriculture, Environment and Rural Affairs (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 (S.I. 2019/1101), regs. 1(2)(b), 5; 2020 c. 1, Sch. 5 para. 1(1)

Commencement Information

I2 Reg. 2 in operation at 24.7.2009, see reg. 1

[F9 2A.   References in Schedule 2 or 3 to EU instruments are to those instruments as they had effect immediately before exit day] N.I.

Textual Amendments

F9 Reg. 2A substituted (31.12.2020) by The Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019 (S.I. 2019/584), regs. 1, 39; 2020 c. 1, Sch. 5 para. 1(1)

[F10 Application N.I.

2B.   These Regulations apply to the areas specified in the following table—

Table 1

Type of damage	Area in which these Regulations apply
Damage to surface water or groundwater	Northern Ireland in so far as it extends to all water up to one nautical mile seaward from the baseline in Northern Ireland.
Damage to marine waters	All water up to 12 nautical miles seaward from the baseline in Northern Ireland so far as not already addressed as damage to surface or groundwater.
Damage in an Area of Special Scientific Interest	Northern Ireland
Damage to a protected species or natural habitats	Northern Ireland The seabed out to 12 nautical miles
Damage to land	Northern Ireland]

Textual Amendments

F10 Reg. 2B inserted (19.7.2015) by The Environmental Liability (Prevention and Remediation) (Amendment) Regulations (Northern Ireland) 2015 (S.R. 2015/231), regs. 1(1), 2(3)

Meaning of “environmental damage” N.I.

3.— [F11 (1) Subject to regulations 5, 6 and 7, these Regulations apply to environmental damage to—

(a) Protected species or natural habitats, or an area of special scientific interest;

(b) Surface water or groundwater;

(c) Marine waters; or

(d) Land.]

(2) Environmental damage to protected species or natural habitats or an area of special scientific interest means damage of a kind specified in Schedule 1 if it is caused by—

(a) an activity in Schedule 2; or

(b) an activity where the operator was at fault or was negligent as to whether such damage would be caused.

(3) Environmental damage to surface water means damage to a body of surface water classified as such pursuant to Annex II to Council Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy(7) [F12 as last amended by Commission Directive 2014/101/EU,] caused by an activity in Schedule 2 such that one of the—

(a) biological quality elements listed in Annex V to that Directive;

(b) level of one of the chemicals listed in the legislation in Annex IX or a chemical listed in Annex X to that Directive [F13 as amended by Directive 2013/39/EU of the European Parliament and of the Council]; or

(c) physicochemical quality elements (as listed in Annex V to that Directive),

is adversely affected in such a way that its value changes to a value consistent with the water being classified as a lower status than before the damage (whether or not the body of water is, in fact, reclassified).

(4) Environmental damage to groundwater means any adverse effect on a body of groundwater as described in Annex II to Directive 2000/60/EC on—

(a) its conductivity or its level (both of which are specified in Annex V to Directive 2000/60/EC); or

(b) its concentration of pollutants (as specified in that Annex and in Directive 2006/118/EC of the European Parliament and of the Council on the protection of groundwater against pollution and deterioration(8)) [F14 as amended by Commission Directive 2014/80/EU]

in such a way that the value changes to a value consistent with the water being classified as a lower status than before the damage caused by an activity in Schedule 2 (whether or not the body of water is, in fact, reclassified).

[F15 (4A) Environmental damage to marine waters means damage to marine waters classified as such 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, such that their environmental status is significantly adversely affectedF16 ...] .

(5) Environmental damage to land means contamination of land by substances, preparations, organisms or micro-organisms arising out of an activity specified in Schedule 2 that results in a significant risk of adverse effects on human health.

(6) This regulation extends to the foreshore, sea bed and subsoil and their natural resources.

Textual Amendments

F11 Reg. 3(1) substituted (19.7.2015) by The Environmental Liability (Prevention and Remediation) (Amendment) Regulations (Northern Ireland) 2015 (S.R. 2015/231), regs. 1(1), 2(4)

F12 Words in reg. 3(3) inserted (24.12.2018) by The Environment (Miscellaneous Amendments) Regulations (Northern Ireland) 2018 (S.R. 2018/200), reg. 1(1), Sch. 1 para. 25(a)

F13 Words in reg. 3(3)(b) added (24.12.2018) by The Environment (Miscellaneous Amendments) Regulations (Northern Ireland) 2018 (S.R. 2018/200), reg. 1(1), Sch. 1 para. 25(b)

F14 Words in reg. 3(4)(b) added (24.12.2018) by The Environment (Miscellaneous Amendments) Regulations (Northern Ireland) 2018 (S.R. 2018/200), reg. 1(1), Sch. 1 para. 25(c)

F15 Reg. 3(4A) inserted (19.7.2015) by The Environmental Liability (Prevention and Remediation) (Amendment) Regulations (Northern Ireland) 2015 (S.R. 2015/231), regs. 1(1), 2(5)

F16 Words in reg. 3(4A) omitted (31.12.2020) by virtue of The Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019 (S.I. 2019/584), regs. 1, 40; 2020 c. 1, Sch. 5 para. 1(1)

Commencement Information

I3 Reg. 3 in operation at 24.7.2009, see reg. 1

Other legislation N.I.

4.  Nothing in these Regulations shall be construed so as to affect the right of an operator to limit liability in accordance with the Convention on Limitation of Liability for Maritime Claims 1976(9).

Commencement Information

I4 Reg. 4 in operation at 24.7.2009, see reg. 1

Exceptions N.I.

5.  These Regulations shall not apply in relation to environmental damage, or imminent threat of damage, caused by—

(a) an act of terrorism, armed conflict, civil war, insurrection or hostilities;

(b) an exceptional natural phenomenon, provided the operator 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 phenomena;

(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((10));

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

(iii) the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001(11);

(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;

(g) pollution of a diffuse character if it is not possible to establish a causal link between the damage and the activities of individual operators; or

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

Commencement Information

I5 Reg. 5 in operation at 24.7.2009, see reg. 1

Temporal application N.I.

6.  These Regulations shall not apply to—

(a) damage caused by an incident, event or emission that finished before the coming into operation of these Regulations;

(b) damage or imminent threat of damage caused by an incident, event or emission that occurs after that date if it derives from an activity that took place and finished before that date; or

(c) damage caused by an emission, event or incident that took place 30 years or more before the damage.

Commencement Information

I6 Reg. 6 in operation at 24.7.2009, see reg. 1

Exception from environmental damage to surface water or groundwater N.I.

7.—(1) Environmental damage to water does not include—

(a) damage caused by a new modification to the physical characteristics of a body of surface water;

(b) an alteration to the level of a body of groundwater F17 ...; or

(c) deterioration from high status to good status of a body of surface water resulting from new sustainable human development activitiesF18 ...,

if all the conditions specified 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 the modifications or alterations are specifically set out and explained in the river basin management plan F19 ... and the objectives are reviewed every six years;

(c) the reasons for the 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 the modifications or alterations of the body of water cannot for reasons of technical feasibility or disproportionate cost be achieved by other means.

Textual Amendments

F17 Words in reg. 7(1)(b) omitted (31.12.2020) by virtue of The Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019 (S.I. 2019/584), regs. 1, 41; 2020 c. 1, Sch. 5 para. 1(1)

F18 Words in reg. 7(1)(c) omitted (31.12.2020) by virtue of The Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019 (S.I. 2019/584), regs. 1, 42; 2020 c. 1, Sch. 5 para. 1(1)

F19 Words in reg. 7(2)(b) omitted (31.12.2020) by virtue of The Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019 (S.I. 2019/584), regs. 1, 43; 2020 c. 1, Sch. 5 para. 1(1)

Commencement Information

I7 Reg. 7 in operation at 24.7.2009, see reg. 1

Enforcing authority N.I.

8.  These Regulations shall be enforced by the Department of the Environment.

Commencement Information

I8 Reg. 8 in operation at 24.7.2009, see reg. 1

(1)

1954 c.33 (N.I.)

(2)

S.I. 2002/3153 (N.I. 7)

(3)

O.J. No. L103, 25.4.79, p.1 (as last amended by Council Directive 2008/102/EC, O.J. No. L323, 3.12.08, p.31)

(4)

O.J. No. L206, 22.7.92, p.7 (as last amended by Council Directive 2006/105/EC, O.J. No. L363, 20.12.06, p.368)

(5)

S.I. 1991/1220 (N.I. 11)

(6)

O.J. No. L143, 30.4.04, p.56 (as amended by Directive 2006/21/EC, O.J. No. L102, 11.4.06, p.15)

(7)

O.J. No. L327, 22.12.00, p.1 (as last amended by Directive 2008/105/EC of the European Parliament and of the Council, O.J. No. L348, 24.12.08, p.84)

(8)

O.J. No. L372, 27.12.06, p.19

(9)

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

(10)

This Convention was implemented in Chapter III of the Merchant Shipping Act 1995 (1995 c. 21)

(11)

Implemented in the United Kingdom by S.I. 2006/1244