Environment Act 2021

Commentary on provisions of Act

Part 1: Environmental Governance

Chapter 1: Improving the natural environment

Section 1: Environmental targets

66. Section 1 provides a power for the Secretary of State to set long-term targets by regulation.
67. Subsection (1) provides the Secretary of State with a power to set long-term targets in relation to the natural environment and people's enjoyment of it. The natural environment is defined in section 44 (meaning of "natural environment"). This definition includes living and non-living elements of the environment, such as plants, wildlife, their habitats, air, water and land, natural systems and processes through which organisms interact with their surroundings. As such, the definition extends to the marine environment, as well as the terrestrial and water environments. Targets relating to people’s enjoyment of the natural environment may relate to its use, access to natural areas or a measure of public views about the environment. Among other initiatives, enjoyment may be increased through education and public awareness of the natural environment both past and present.
68. Subsection (2) requires the Secretary of State to set at least one long-term target in each of four priority areas. Subsection (3) defines those priority areas as air quality, water, biodiversity, and resource efficiency and waste reduction. Section 4(9) requires that a draft statutory instrument (or instruments) satisfying the requirement in subsection (2) must be laid before Parliament by 31 October 2022.
69. Subsection (4) requires all long-term targets set under this section to specify an objectively measurable standard to be achieved and a date by which this standard must be achieved.
70. A specified standard might be the exposure of a certain area to damaging levels of ammonia in the atmosphere, for example. The method for objective measurement should be clear and repeatable, with results reproducible within reason. The process of setting targets will necessarily involve some choices as to how a target will be measured. Subsection (5) provides that regulations made under this section may make provision specifying how a target will be measured.
71. Subsection (6) provides that long-term targets must have a minimum duration of 15 years.
72. Subsection (7) clarifies that a target is initially set once the regulations setting it come into force. This is relevant to calculating the specified date (that is, the duration) of long-term targets under this section. Subsection (8) provides that, in Part 1, the terms "specified standard" and "specified date" mean the standard and date specified in subsection (4).
73. By virtue of section 2(6) and section 3(5), subsections (4) to (9) also apply to the PM2.5 air quality target set under section 2 and the species abundance target set under section 3.
74. This section, and sections 2 to 7, extend to England and Wales. Subsection (9) prevents the Secretary of State from making provision in regulations made under this section that could be made in an Act of Senedd Cymru. The regulations made under this section can therefore make provision relating to the natural environment in England (including the English inshore area), as well as in the offshore area (to the extent that Her Majesty’s Government has functions).

Section 2: Environmental targets: particulate matter

75. Subsection (1) introduces a requirement for the Secretary of State to set a target for an annual mean concentration level of fine particulate matter (PM2.5) in ambient air, in secondary legislation by regulations. These regulations will be made having obtained expert advice as to the date that the target can be achieved and having considered the full economic analysis in line with section 4(1).
76. Subsection (2) provides clarification that the fine particulate matter target is not required to be set for 15 years in the future, and therefore may not be a long-term target as defined in section 1. This could be the case if the independent expert advice is that the target could be achieved more quickly.
77. Subsection (3) defines fine particulate matter (PM2.5).
78. Subsection (4) specifies that regulations setting the target can also define "ambient air".
79. Subsection (5) clarifies the duty to set a target for fine particulate matter in this section does not discharge the duty on the Secretary of State to set a further long-term target for air quality under section 1.
80. Subsection (6) clarifies the elements of the environmental targets framework set in section 1 that apply to the fine particulate matter target. These elements include the provisions that specify that the target will be set by secondary legislation that will specify the standard to be achieved and the date by which it will be achieved, as well as the details regarding how the target will be measured.
81. Subsection (7) defines the "PM2.5 air quality target" as being the target set under subsection (1).

Section 3: Environmental targets: species abundance

82. Section 3 introduces a requirement for the Secretary of State to set a target relating to the abundance of species ("the species abundance target") in secondary legislation by regulations.
83. Subsection (2) provides that the specified date for the species abundance target must be 31st December 2030.
84. Subsection (3) clarifies the duty to set a species abundance target in this section does not discharge the duty on the Secretary of State to set a further long-term target for biodiversity under section 1.
85. Subsection (4) provides that before setting or amending the species abundance target, the Secretary of State must be satisfied that meeting the target, or the amended target, would halt a decline in the abundance of species.
86. Subsection (5) clarifies the elements of the environmental targets framework set in section 1 that apply to the species abundance target.
87. Subsection (6) defines the "species abundance target" as being the target set under subsection (1).

Section 4: Environmental targets: process

88. Section 4 sets out the process that must be followed by the Secretary of State before setting and amending any target.
89. Subsection (1) requires the Secretary of State to seek advice from independent experts before making any regulations under sections 1, 2 and 3. This could involve consulting expert individuals or bodies, with the purpose of advising the Secretary of State on setting appropriate targets.
90. Subsection (2) specifies that, when setting or amending a target, the Secretary of State must be satisfied that the target, or the amended target, can be met.
91. Subsections (3) to (6) set out the process for amending a target so as to lower or revoke it. Lowering a target is defined in subsection (5) as a lowering of the standard to be achieved or an extension of the specified date for achieving the target. For example, where a target requires an increase in standard based on a numerical value, a reduction in that numerical value would constitute a lowering of the target.
92. Subsection (3) provides that a target may only be lowered or revoked where the Secretary of State is satisfied that meeting the target would have no significant benefit as compared to not meeting it or meeting a lower target, or that because of a change in circumstances, the costs of meeting the target would be disproportionate to the benefits. Those costs might be of an environmental, social, economic, or other nature.
93. Meeting a target may have no significant benefit – for example, if meeting it was anticipated to generate a health benefit, and new scientific evidence has now demonstrated that the same health benefit is achievable through meeting a revised or entirely new target.
94. A change in circumstances may, for example, occur as a result of an event, such as a significant wild fire or major flood, taking place after the target is set. The financial costs, for example, of meeting the target may, following this change of circumstance, then be disproportionate to the benefits gained by meeting the target.
95. Subsection (4) requires that, before lowering or revoking a target, the Secretary of State must publish and lay before Parliament a statement that explains why the Secretary of State is satisfied that one of the grounds in subsection (3) has been met.
96. Subsection (6) prevents the Secretary of State from using the processes set out in this section to revoke the PM2.5 air quality target; however, the target may otherwise be amended in line with this section.
97. Subsection (7) provides that, for the purposes of Part 1, a target is met where the specified standard is met by the specified date.
98. Subsection (8) specifies that the regulations made under sections 1, 2 and 3 are subject to the affirmative procedure.
99. Subsection (9) requires that a draft statutory instrument (or instruments) containing regulations setting the long-term targets for the priority areas required under section 1(2), the PM 2.5 air quality target set under section 2 and the species abundance target set under section 3 must be laid before Parliament by 31 October 2022.

Section 5: Environmental targets: effect

100. Section 5 provides that the Secretary of State has a duty to ensure that the long-term targets set under section 1, the PM2.5 air quality target set under section 2 and the species abundance target set under section 3 are met.
101. The environmental improvement plan (EIP) provisions under sections 9, 12 and 15 set requirements for consideration of the progress made towards meeting targets, and for consideration of the need to introduce new measures to meet targets, when reviewing and renewing EIPs.

Section 6: Environmental targets: reporting duties

102. Section 6 sets out the reporting duties that must be fulfilled when a long-term target set under section 1 the PM2.5 air quality target set under section 2 or the species abundance target set under section 3  ends.
103. Subsection (1) requires that all regulations setting targets under sections 1, 2 and 3 contain a reporting date. This is the date used to determine the timescales for producing the statements under section 6.
104. Subsections (2) and (3) require the Secretary of State to prepare a statement confirming whether or not each target has been met. Alternatively, the statement may provide that the Secretary of State is currently unable to make that confirmation. The statement must be published, and laid before Parliament, by the relevant reporting date set under subsection (1).
105. Subsections (4) and (5) set out the process the Secretary of State must follow in the event that the statement made under subsection (2) confirms that the target has not been met. The Secretary of State must prepare a report explaining why the target has not been met and setting out the steps taken, or intended to be taken, to achieve the required standard as soon as reasonably practicable. That report must be published, and laid before Parliament, within twelve months of the statement being laid.
106. Subsection (3)(c) provides that, where the Secretary of State is unable to confirm whether or not a target has been met, the statement made under subsection (2) must explain why and set out the steps the Secretary of State intends to take in order to be able to make that determination. In these cases, subsection (6) provides that the Secretary of State must prepare a further subsection (2) statement within six months of the initial statement being laid. There may be cases when the data needed to assess whether a target has been met is not yet available, and the Secretary of State is therefore unable to confirm target achievement on the reporting date. Subsection (7) provides that, where further statements are needed pursuant to subsection (6), the requirements of subsections (3) to (6) apply equally to those statements.

Section 7: Environmental targets: review

107. Section 7 sets out the procedure for the Secretary of State to conduct a periodic review of all targets set under sections 1, 2 and 3.
108. Subsection (1) sets out the requirement for the Secretary of State to conduct the review. Subsection (2) clarifies that the purpose of the review is to consider whether the significant improvement test is met.
109. Subsection (3) explains that the significant improvement test is met where meeting the targets set under sections 1, 2 and 3, and any other environmental targets that the Secretary of State considers appropriate to consider, would bring about a significant improvement in the natural environment in England. Subsection (8) sets out certain requirements that those other environmental targets must meet to be capable of consideration.
110. Subsection (4) provides that, following the conclusion of the review, the Secretary of State must publish, and lay before Parliament, a report confirming whether the Secretary of State considers that the significant improvement test has been met. Where the Secretary of State considers that the test has not been met, the report must set out the steps the Secretary of State proposes to take, using the powers in section 1, 2 and 3, to ensure that it is met. In addition to identifying potential new targets, the report might also acknowledge, for example, the need for more research in a particular policy area in order to examine the possibility of developing a target in future.
111. Subsection (5) sets out that the Secretary of State must complete the first significant improvement test review by 31 January 2023.
112. Subsection (6) provides that, following the first review, future reviews must be conducted at intervals of no more than five years. Subsection (7) confirms that a review is completed when the Secretary of State publishes, and lays before Parliament, a report under subsection (4).
113. Subsection (8) sets out the conditions that a target set otherwise than under sections 1, 2 and 3 must meet in order to be capable of consideration by the Secretary of State under subsection (3)(b). In broad terms, those targets must meet the same standards as targets set under sections 1, 2 and 3. These conditions include the need for a target to have an objectively measurable standard to be achieved by a specific date.
114. The National Emission Ceilings Regulations 2018 targets are examples of those that may be taken into consideration under the conditions set out in subsection (8). These targets relate to reductions in total anthropogenic emissions of five key air pollutants in the UK by 2030.
115. Subsection (9) provides that "England", for the purposes of section 7, includes the English inshore region and the English offshore region (each as defined in section 322 of the Marine and Coastal Access Act 2009).

Section 8: Environmental improvement plans

116. Section 8 introduces a duty on the Secretary of State to prepare a plan for significantly improving the natural environment (an "environmental improvement plan" (EIP)). It sets requirements for what an EIP must contain. The 25 Year Environment Plan, as published on 11 January 2018, will become the first EIP.
117. Subsection (1) introduces the requirement for the Secretary of State to prepare an EIP.
118. Subsection (2) clarifies that an EIP is a plan for significantly improving the natural environment in the period it covers. The natural environment is defined in section 44 (meaning of "natural environment"). This definition includes living and non-living elements of the environment, such as plants, wildlife, their habitats, air, water and land, natural systems and processes through which organisms interact with their surroundings. As such, the definition extends to the marine environment, as well as the terrestrial and water environments.
119. Subsection (3) specifies that the period of each EIP must be at least 15 years. Long-term EIPs are needed because some aspects of the natural environment change slowly and require continuity in how they are managed. The current 25 Year Environment Plan covers a period of 25 years, but a future government may prefer to set an EIP for a different period. Section 8 requires the government to review and revise EIPs at least every five years. A period of 15 years allows for an EIP to be introduced, reviewed and revised twice before its end. This will allow its effectiveness to be assessed, and meaningful corrective action taken if necessary.
120. Subsection (4) specifies that the EIP must set out the steps the government will take to improve the natural environment during the lifetime of the EIP.
121. Subsection (5) allows EIPs to contain steps the government will take to improve people’s enjoyment of the natural environment. Steps relating to people’s enjoyment of the natural environment may relate to its use, access to natural areas or a measure of public views about the environment. Amongst other initiatives, enjoyment may be increased through education and public awareness of the natural environment both past and present, natural systems and processes through which organisms interact with their surroundings. For example, the current 25 Year Environment Plan makes major new commitments to connect people with the environment to improve health and wellbeing, such as through the cross-governmental green social prescribing project. This project is testing how to help connect more people to nature-based activities to improve their mental health. One of the ten goals of the 25 Year Environment Plan also commits to "Enhancing beauty, heritage and engagement with the natural environment". It is anticipated that the current 25 Year Environment Plan, including the approach the government took on people’s enjoyment of the natural environment and heritage, will set the benchmark for future EIPs.
122. This section and sections 9 to 15, 16, and 28 extend to England and Wales. Subsection (6) provides that the Secretary of State’s functions in relation to EIPs are not exercisable in relation to the natural environment in Wales. The policy areas covered by EIPs therefore could cover the natural environment in England (including the English inshore area), as well as in the offshore area (to the extent that Her Majesty’s Government has functions) and to Her Majesty’s Government’s international policy (including to the Overseas Territories where Her Majesty’s Government has functions: Gibraltar and the British Virgin Islands, for example).
123. Subsection (7) confirms that the current 25 Year Environment Plan must be treated as an EIP. Furthermore, subsection (8) specifies that references to the first EIP are to that document, and that references to the current plan refer to the plan that is in effect at the time.

Section 9: Annual reports on environmental improvement plans

124. Section 9 establishes a duty on the Secretary of State to produce annual reports on the implementation of the environmental improvement plan (EIP) and on whether the natural environment is improving. It explains when and how these reports should be published. Given section 8(6), this section applies only in relation to England.
125. Subsection (1) requires the Secretary of State prepare annual reports on the implementation of EIPs. These reports must be published (subsection (8)) and laid before Parliament (subsection (7)).
126. Subsection (2) requires that annual reports must describe what has been done to implement the EIP, and consider whether the natural environment (or particular aspects of it) has improved, during the period to which the report relates. Consideration of whether the environment has improved must have regard to information gathered under section 16.
127. Subsection (3) provides that, when considering whether the natural environment (or aspects of it) has improved, the Secretary of State must consider the progress that has been made towards achieving the targets (or any relevant targets) set under sections 1, 2 and 3, and the interim targets (or any relevant interim targets) set under sections 11 and 14.
128. Subsection (4) explains that the first annual report on the current EIP may cover any 12 month period that includes the day on which section 9 comes into force. The government has already committed to producing annual reports on the implementation of the 25 Year Environment Plan. The first report was published on 16 May 2019, and covers the period from the EIP being launched until March 2019. The intention of this subsection is to allow the timing of the first statutory report to be aligned with the preceding non-statutory reports.
129. Subsection (5) states that, following the replacement of the current EIP, the first annual report should relate to the first 12 months of that EIP.
130. Subsection (6) states that all other annual reports should relate to the 12 month period immediately following the previous reporting period. This ensures that there is a continuous timeline of annual reports relating to consecutive 12 month periods for the duration of each EIP.
131. Subsection (7) requires the Secretary of State to lay each annual report before Parliament within four months of the end of the 12 month period on which it reports. For example, an annual report assessing the period 1st April 2020 to 31st March 2021 must be laid before Parliament by 31 July 2021. Subsection (8) requires the Secretary of State to publish all annual reports laid before Parliament under this section.

Section 10: Reviewing and revising environmental improvement plans

132. Section 10 provides for the review and revision of EIPs. It establishes a duty on the Secretary of State to review the EIP, and timeline in which to complete a review and, if appropriate, revise the plan. Given section 8(6), this section applies only in relation to England.
133. Subsection (1) establishes the duty on the Secretary of State to review the EIP and, if the Secretary of State is required to revise the plan under section 11, or considers it appropriate to revise the plan as a result of the review, to produce a revised plan. It is expected that revisions will be appropriate when each EIP is reviewed, but this section does allow the Secretary of State to decide that no revision is appropriate following a review of the EIP.
134. Subsection (2) specifies that a revised plan will cover the remaining time period of the existing plan. The current EIP runs until 2043; any revisions to this plan will also be required to cover the period up to 2043. Furthermore, when an EIP for a future time period is produced in line with section 13, the time period will be specified in that EIP and any revisions to it must retain the same end date.
135. Subsection (3) specifies that the first EIP (the 25 Year Environment Plan) must be reviewed by the end of January 2023. This is just over five years from its publication. This is considered to be sufficient time for some progress to be made against the EIP, for the monitoring of the environment to assess improvement established, and for early results to be obtained. This time also allows for weaknesses and gaps in the EIP and policy changes to be identified that may require a revision to the EIP.
136. Subsection (4) applies to future EIPs, and ensures that they too are first reviewed within five years of taking effect.
137. Subsection (5) provides that, following the first review of an EIP, further reviews must be undertaken within every five year period for the duration of the EIP. In accordance with this, the 25 Year Environment Plan must be reviewed for a second time before 31 January 2028.
138. Subsection (6) requires that when the Secretary of State has completed a review and determined it appropriate to revise the plan, then this revised plan must be laid before Parliament along with a statement explaining what revisions have been made and why. This statement may be part of the same document as the revised plan or a separate document.
139. Subsection (7) requires that, if the Secretary of State completes a review but does not consider it appropriate to revise the EIP, then the Secretary of State must lay before Parliament a statement to this effect and the reasons for this. Whilst the Secretary of State is required to complete a review within the five year timeline there is no duty to revise the EIP if a revision is not appropriate. (However, the Secretary of State must revise the EIP if so required under section 11.) This allows for a revision to the EIP to be delayed if the Secretary of State considers it appropriate, but such a decision must be justified to Parliament.
140. Subsection (8) requires the Secretary of State to publish any documents laid before Parliament following a review of an EIP. These will be the revised plan and reasoning as in subsection (6), or the statement as to why no revision is considered appropriate as in subsection (7).
141. Subsection (9) specifies that a review is to be considered completed when documents have both been laid before Parliament and published. This is the completion date for the purpose of meeting the requirement to complete a review within five years of an EIP being published or previous review. It also becomes the start date for the next five-year time period for completing the subsequent review.
142. Subsection (10) clarifies that, when the EIP is revised in accordance with this section, the references to an EIP in this Act refer to the now revised EIP.

Section 11: Reviewing and revising plans: interim targets

143. Section 11 provides for interim targets to be included in environmental improvement plans (EIPs), and sets out the requirements for those interim targets. Given section 8(6), this section applies only in relation to England.
144. Subsection (1) requires the Secretary of State, during the first review of the first EIP, to revise the plan so as to include at least one interim target in relation to the targets set under sections 1, 2 and3 (for a "relevant matter", see subsection (3)), and to ensure that from the date that the first review is completed (for the "relevant date", see subsection (9)) there is an interim target for each such target for the next five years.
145. Subsection (2) contains an equivalent provision for subsequent reviews of the EIP. It requires the Secretary of State, during each review of the EIP, to make any revisions necessary to include at least one interim target in relation to any targets set under sections 1, 2 and 3 since the previous review, and to ensure that from the date that the relevant review is completed there is an interim target for each target for the next five years.
146. Subsections (1) and (2) give the Secretary of State the flexibility to set just one interim target for the five year period between EIP reviews, or multiple, shorter interim targets for this same period.
147. Subsection (3) provides that the term "relevant matter" means any matter where there is a target under sections 1, 2 or 3.
148. Subsection (4) ensures that the requirement in subsection (2)(b) to maintain an interim target does not apply where the specified end date of the relevant target under sections 1, 2 or 3 falls within the relevant five-year period. For example, if a long-term target expires four months after the date on which an EIP review is completed, there is no requirement for the Secretary of State to set an interim target because the long-term target expires so quickly.
149. Subsection (5) clarifies that the Secretary of State may revise or replace interim targets during any EIP review, regardless of whether revisions are needed pursuant to subsections (1) and (2).
150. Subsection (6) provides that interim targets must consist of an objectively measurable standard to be achieved across a specified time period. Subsection (7) provides that this time period must be no longer than five years. For the first interim targets, that period starts on the date on which the relevant EIP review is completed. For subsequent interim targets, that period starts on that date or the date on which the previous interim target expired.
151. Subsection (8) provides that, when setting or revising any interim target, the Secretary of State must be satisfied that meeting it will make an appropriate contribution towards meeting the relevant target under sections 1, 2 or 3. This will ensure that the Secretary of State takes account of the overall trajectory of environmental improvement required in order to meet those targets.
152. Subsection (9) provides that the term "relevant date" means the date on which a review is completed.

Section 12: Reviewing and revising plans: other requirements

153. Section 12 sets out what the Secretary of State must consider when reviewing an environmental improvement plan (EIP). Given section 8(6), this section applies only in relation to England.
154. Subsection (1) sets out that the Secretary of State must take the following into consideration when reviewing an EIP:
     • what steps the government has taken to implement the EIP since it was published, or (if it has been reviewed before) since it was last reviewed;
     • whether the natural environment (or particular aspects of it) has improved during that period; and
     • whether the government should take further or different steps compared to those in the plan to improve the natural environment in the remaining period of the EIP.

155. When considering whether the natural environment has improved, the Secretary of State must have regard to data obtained under section 16 and reports made by the Office of Environmental Protection under section 28.
156. In addition, subsection (2) requires the Secretary of State, when considering whether the natural environment (or particular aspects of it) has improved, to consider the progress made towards meeting the targets (or any relevant targets) set under sections 1, 2 and 3, and the interim targets (or any relevant interim targets) set under section 11 or 14.
157. Subsection (3) requires the Secretary of State, when considering whether further or different steps should be taken to improve the natural environment, to consider whether further or different steps should be taken to meet those targets.

Section 13: Renewing environmental improvement plans

158. Section 13 provides for the Secretary of State to replace the environmental improvement plan (EIP) with a renewed version, and what the Secretary of State must consider as part of this process. Given section 8(6), this section applies only in relation to England.
159. Subsection (1) requires the Secretary of State to prepare a new EIP before the end date of the existing EIP.
160. Subsection (2) requires the new EIP to cover a period that starts no later than immediately after the end of an existing EIP, ensuring there is no gap between EIPs.
161. Subsection (3) requires the Secretary of State to publish and lay before Parliament the new EIP on or in advance of the end date of the existing EIP.
162. Subsection (4) specifies when the new EIP begins. At its earliest, this will be when the EIP has been laid before Parliament and published, but it can be later if the period to which the EIP relates begins after this date.
163. The provisions in sections 13 to 15 allow for plans to be completely replaced (as distinct to sections 10 to 12, which allow for the amendment of existing plans). It is anticipated that future governments may choose to renew EIPs before they reach the end of their lifetime to enable them to include longer term actions.

Section 14: Renewing plans: interim targets

164. Section 14 provides for interim targets to be included in new environmental improvement plans (EIPs), and sets out the requirements for those interim targets. Given section 8(6), this section applies only in relation to England.
165. Subsection (1) requires that a new EIP include at least one interim target in relation to the targets set under sections 1, 2 and 3 (for a "relevant matter", see subsection (2)), and to ensure that from the date that the new EIP commences for the "relevant date", see subsection (7)) there is an interim target for each such target for the next five years.
166. Subsection (2) provides that the term "relevant matter" means any matter where there is a target under sections 1, 2 or 3.
167. Subsection (3) ensures that the requirement in subsection (1) to maintain an interim target does not apply where the specified end date of the relevant target under sections 1, 2 or 3 falls within five years of the start of the new plan. For example, if a long-term target expires four months after the date on which a new EIP period commences, there is no requirement for the Secretary of State to set an interim target because the long-term target will expire so quickly.
168. Subsection (4) provides that interim targets must consist of an objectively measurable standard to be achieved across a specified time period. Subsection (5) provides that this time period must be no longer than five years. For the first interim targets, that period starts on the date on which the new EIP period commences. For subsequent interim targets, that period starts on the date the previous interim target expired.
169. Subsection (6) provides that, when setting any interim target, the Secretary of State must be satisfied that meeting it will make an appropriate contribution towards meeting the relevant target under sections 1, 2 or 3. This will ensure that the Secretary of State takes account of the overall trajectory of environmental improvement required in order to meet those targets.
170. Subsection (7) provides that the term "relevant date" means the date on which the new EIP period commences.
171. Subsection (8) clarifies that references to a "new plan" are to be read in accordance with the definitions in section 13(1).

Section 15: Renewing plans: other requirements

172. Section 15 sets out what the Secretary of State must consider when renewing an environmental improvement plan (EIP). Given section 8(6), this section applies only in relation to England.
173. Subsection (1) sets out that the Secretary of State must take the following into consideration when renewing an EIP:
     • what steps the government has taken to implement the old EIP during the period to which it related;
     • whether the natural environment has improved since the beginning of the period to which the old plan related; and
     • whether the government should take further or different steps (compared to those in the old plan) to improve the natural environment in the period to which the new EIP relates.

174. When considering whether the natural environment has improved, the Secretary of State must have regard to data obtained under section 16 and reports made by the Office of Environmental Protection under section 28).
175. In addition, subsection (2) requires the Secretary of State, when considering whether the natural environment has improved, to consider the progress made towards meeting the targets set under sections 1, 2 and 3, and the interim targets set under sections 11 or 14.
176. Subsection (3) requires the Secretary of State, when considering whether further or different steps should be taken to improve the natural environment in the new EIP, to consider whether further or different steps should be taken to meet those targets.
177. Subsection (4) clarifies that references to "old plan" and "new plan" are to be read in accordance with the definitions in section 13.

Section 16: Environmental monitoring

178. Section 16 establishes a duty on the Secretary of State to obtain and publish data for the purpose of monitoring environmental improvement. This data would be used to measure outcomes achieved through the implementation of the actions set out in the environmental improvement plan (EIP) and inform updates to it. The data will also allow the progress being made towards meeting targets to be monitored. Given section 8(6), this section applies only in relation to England.
179. A suite of indicators was first published by the government in May 2019, as Measuring environmental change: outcome indicator framework for the 25 Year Environment Plan. Outcome indicator framework data are updated annually on gov.uk .
180. Subsection (1) requires the Secretary of State to obtain data about the natural environment appropriate for monitoring whether the natural environment (or particular aspects of it) is improving in accordance with the EIP, and for monitoring progress towards meeting any targets set under sections 1, 2 and 3 and any interim targets set under sections 11 and 14.
181. Subsection (2) requires the Secretary of State to specify in a statement what kinds of data will be obtained, and to lay this statement before Parliament and publish it. This statement will provide the details of how the environment is to be monitored to determine whether there has been an improvement in the environment in accordance with the EIP and progress towards meeting targets.
182. Subsection (3) specifies that the first statement on monitoring data must be laid before Parliament within four months of this section coming into force.
183. Subsection (4) allows for the Secretary of State to revise the statement on monitoring data at any time. This may be necessary if it becomes clear that additional data is needed, or that current measures do not adequately assess environmental improvement or target progress. Such a revised statement must also be laid before Parliament and published (subsection (2)).
184. Subsection (5) requires that data collected under the section must be published.

Section 17: Policy statement on environmental principles

185. Section 17(1) requires the Secretary of State to prepare a policy statement on the environmental principles set out in subsection (5).
186. Subsection (2) provides specific information on what the environmental principles policy statement must include. The policy statement will explain how Ministers of the Crown should interpret and proportionately apply the environmental principles when developing policies. Proportionate application means ensuring that action taken on the basis of the principles balances the potential for environmental benefit against other benefits and costs associated with the action. This means that a policy where there is the potential for high environmental damage would require more stringent action than a policy where the potential environmental damage is low. This consideration of the principles policy statement throughout the policy-making process may be carried out by policy-makers on behalf of Ministers of the Crown, though Ministers will retain the responsibility to have due regard to the policy statement.
187. Subsection (3) sets out that the Secretary of State may explain in the statement how other considerations should be taken into account by Ministers of the Crown when they are interpreting and applying environmental principles. For example, it may be necessary to balance the application of a specific environmental principle against other considerations, such as economic and social benefits, whilst taking care to ensure that these do not supersede environmental benefit but are considered alongside.
188. Subsection (4) details two aims that the Secretary of State must be satisfied that the statement will contribute to. These are:
     • The improvement of environmental protection. This means being satisfied that the policy statement will be used to shape policies in a way that protects the environment. It underpins the interpretation and application of the environmental principles. This consideration is to be taken in line with other necessary considerations in these sections, such as in subsection (3).
     • Sustainable development. Sustainable development can be summarised as development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It involves trying to achieve environmental benefit alongside economic growth and social progress. Therefore, the Secretary of State must be satisfied that, when using the policy statement, Ministers of the Crown will consider the needs of future generations. This means that Ministers should consider the environmental impact of their policies together with the economic and social factors and, as much as possible, ensure policy achieves all three aims.

189. Subsection (5) sets out the list of environmental principles the policy statement will cover. These principles are drawn from a number of sources, including, for example, the Rio Declaration on Environment and Development (1992).
190. There is no single agreed definition of the environmental principles. The policy statement will explain in more detail how these are to be interpreted, and provide information as to how they should be applied.
191. The meaning of the individual environmental principles is as follows:
     • The principle that environmental protection must be integrated into the making of policy: environmental protection must be embedded in the making of policies.
     • The principle of preventative action to avert environmental damage: preventive action should be taken to avert environmental damage.
     • The precautionary principle so far as relating to the environment: where there are threats of serious irreversible environmental damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. This applies to issues regarding the natural environment and includes where human changes to the natural environment impacts upon human health, such as air quality.
     • The principle that environmental damage should as a priority be rectified at source: environmental damage should as a priority be rectified by targeting its original cause and taking preventive action at source.
     • The ‘polluter pays’ principle: the costs of pollution control and remediation should be borne by those who cause pollution rather than the community at large.

192. Further direction on these environmental principles will be set out in the policy statement. These principles cannot be changed without primary legislation.

Section 18: Policy statement on environmental principles: process

193. Section 18 establishes the process by which the Secretary of State will develop and publish the environmental principles policy statement.
194. Subsection (1) sets out the duty for the Secretary of State to prepare a draft policy statement. This will be an initial version of the statement before public and parliamentary scrutiny.
195. Subsection (2) requires the Secretary of State to conduct a public consultation.
196. Subsection (3) requires that a draft must be produced and laid before Parliament for its consideration. This must take place before the policy statement is finalised.
197. Subsection (4) includes provisions for cases where Parliament chooses to respond to the draft policy statement, either by passing a resolution in respect of the draft policy statement, or recommending changes to the statement, within the period of 21 sitting days after the draft statement has been laid. The Secretary of State is required to lay a response to any resolution passed or recommendations made by Parliament.
198. Subsection (5) requires the final policy statement to be presented to Parliament before being published. The Secretary of State must not publish the final statement before laying a response if required under subsection (4) or, otherwise, before a period of 21 sitting days has passed since the draft statement is laid. This is intended to allow Parliament sufficient time to scrutinise the draft policy statement.
199. Subsection (6) provides that the final policy statement has effect when laid before Parliament, at which point the Secretary of State is required to publish it (subsection (7)).
200. Subsection (10) enables the requirements in subsections (1) and (2) as to preparation of the statement and consultation to be met prior to the coming into force of the relevant provisions of the Act.
201. Subsection (11) allows the Department to revise the policy statement at any time and requires the process set out in sub-paragraphs (1) to (9) to be followed each time that the policy statement is revised.

Section 19: Policy statement on environmental principles: effect

202. Section 19 sets out the legal duty on Ministers of the Crown in using the environmental principles policy statement. It also details the relevant exemptions to the duty to have due regard to the policy statement.
203. Subsection (1) requires Ministers to have due regard to the environmental principles policy statement when making policies included in the scope of the duty (in other words, policy that is not excluded). This means that, when making policy, Ministers of the Crown must consider the environmental principles policy statement with substance, rigour and an open mind.
204. Subsection (2) sets out that the policy statement does not require Ministers to take, or refrain from taking, any action that would have no significant environmental benefit, or if the environmental benefit would be disproportionate when compared to other factors.
205. In this context:
     • "Significant" is to be understood as meaning ‘not negligible’. This means that the policy statement does not need to be used to change a policy direction, if the environmental impact would be negligible.
     • "Disproportionate" indicates situations in which action would not be reflective of the benefit or costs, environmental or otherwise. Action taken must reflect the potential for environmental benefit, as well as other costs and benefits. For example, there is no need for a Minister to change a policy in light of the principles policy statement if the cost of this change would be very high and the benefit to the environment would be very low. Equally, if the potential environmental benefit is high, then it is proportionate to take a more significant action based on the policy statement.

206. Subsection (3) sets out which policies are excluded from the duty to have due regard to the policy statement. The three areas covered are set out in paragraphs (a) to (c).
207. The exclusion in subsection (3)(a) refers to armed forces, defence and national security policy. For example, policies that would be excluded include:
     • Armed Forces policies relating to the Royal Navy, the Royal Marines, the Army, and the Royal Air Force; and
     • national security policies, such as the National Security Strategy and Strategic Defence and Security Review.

208. In subsection (3)(b), "taxation" refers to taxes in a legal sense, and therefore does not include other regulatory schemes which involve fees and charges for purposes other than taxation, such as the plastic bag charge or the imposition of fees to cover the cost of a regulatory regime. "Spending or the allocation of resources within government" refers to decisions about how money and resources are allocated to or between government departments or agencies, including at fiscal events such as Budgets and Spending Reviews. It does not refer to individual policies on which the government funds could be spent. For example, in decisions on which departments should receive funds and how much, the policy statement will not apply. However, it would apply to policies which relate to spending this allocated funding which are decided by a Minister of the Crown, such as when setting up a new innovation scheme.
209. Subsection (3)(c) sets out that the duty in subsection (1) does not apply to policy relating to or applying in Wales.
210. Subsection (4) provides that the duty in subsection (1) applies when making policy in Scotland only on reserved matters.
211. Subsection (5) clarifies that section 14(2) of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (asp 4) does not apply to Ministers of the Crown when making policy relating to reserved matters in Scotland.
212. Subsection (6) confirms that the term "reserved matters" has the same meaning as that set out in the Scotland Act 1998.

Section 20: Statements about Bills containing new environmental law

213. This section requires that, where a Bill introduced into either House of Parliament contains a provision that, if enacted, would be environmental law, the Minister in charge of the Bill must make a statement to that House. The statement must set out that the Minister is of the view that the Bill does not have the effect of reducing the level of protection provided by any existing environmental law, or that the Minister cannot make such a statement but wishes the House to proceed with the Bill. The requirement does not apply to the wider planning regime, other than explicit environmental legislation such as Environmental Impact Assessments and Strategic Environmental Assessments.
214. Subsection (1) sets out that the provisions apply where a Minister in charge of a relevant Bill is of the view that the Bill contains a provision that, if enacted, would be environmental law.
215. Subsection (2) outlines that the Minister must make a statement, before Second Reading of the Bill in the House, that in the Minister’s view the Bill contains a provision that, if enacted, would be environmental law. In addition, the Minister must make a statement under subsection (3) or (4).
216. Subsection (3) is applicable where a Minister is able to make a statement that in the Minister’s view the Bill will not have the effect of reducing the level of environmental protection provided for by any existing environmental law. Subsection (4) is applicable where a Minister is unable to make that statement but wants to confirm that they still wish to proceed with the Bill – for example, where an existing UK environmental protection is no longer justified by new scientific evidence.
217. Subsection (5) sets out that, in making a statement under subsection (3), the Minister may in particular take into account that the same or greater levels of environmental protection might be provided by provisions that are different to those contained in existing environmental law – that is, to allow for different mechanisms for achieving the same or better environmental outcomes.
218. Subsection (6)(a) provides that a Minister, in considering whether they can make a statement under subsection (3), must consider any protection provided for under powers conferred by the existing environmental law even if those powers have not been used. Subsection (6)(b) makes similar provision in enabling a Minister to take into account any new powers conferred by the Bill to provide for any environmental protection.
219. Subsection (7) requires all statements made under this section to be in writing and to be published in such manner as the Minister considers appropriate.
220. Subsection (8) provides for two definitions for the purpose of this section. Firstly, "environmental protection" is defined as:
     • protection of the natural environment from the effects of human activity;
     • protection of people from the effects of human activity on the environment;
     • maintenance, restoration or enhancement of the natural environment; or
     • monitoring, assessing, considering or reporting on anything in relation to the previous bullets.

221. Secondly, "existing environmental law" is defined as environmental law existing at the time that the Bill to which the statement relates is introduced into the House, whether or not the environmental law is in force.
222. Section 46 provides the definition of environmental law for the purposes of this section.

Section 21: Reports on international environmental protection legislation

223. This section places an obligation on the Secretary of State to produce a report on significant developments in international environmental protection legislation.
224. The report will cover significant developments in the environmental protection legislation of particular countries or territories outside the UK or international organisations.
225. The scope and content of the report will be determined by the Secretary of State – see subsection (5). However, in a given reporting period it could cover: significant developments in the legislation of other countries that are mainly concerned with seeking to protect the natural environment from the effects of human activity or protecting people from the effects of human activity on the environment; legislation on the maintenance, restoration or enhancement of the natural environment; or legislative provisions around monitoring, assessing, considering and reporting and monitoring on these matters. The report will not extend to reviewing or considering the planning systems of other countries.
226. Subsections (3), (4) and (6) require a report to be prepared every two years and to be published and laid before both Houses of Parliament as soon as reasonably practicable after the end of the reporting period.

Chapter 2: The Office for Environmental Protection

Section 22: The Office for Environmental Protection

227. Section 22 provides for the establishment of a new body called the Office for Environmental Protection (OEP), and introduces Schedule 1 which makes further provision about this independent Non-Departmental Public Body.

Section 23: Principal objective of the OEP and exercise of its functions

228. Section 23 sets out the strategic framework for the OEP, making provision for how it will carry out its functions and establish its independence from the government and other bodies. The section requires the OEP to take an objective and impartial approach to the delivery of its functions, and requires it to set out how it will exercise its functions in a strategy that takes into account where extensive governance already exists, for example in the planning system.
229. Subsection (1) establishes that, when exercising its functions, the OEP’s principal objective is to contribute to two aims. These are:
     • Environmental protection.
     • The improvement of the natural environment.

230. The term "principal objective" is used to emphasise that it is a key objective for the OEP, but not the only one it has to consider when exercising its functions. The principal objective should also guide the OEP when exercising its discretionary powers.
231. Subsection (2)(a) requires the OEP to act objectively and impartially, thereby ensuring it is capable of holding the government to account. Subsection (2)(b) provides that the OEP must have regard to the need to act proportionately and transparently, helping to ensure balance and accountability in the body’s exercise of its statutory functions. The term "have regard to" is used here because an absolute legal duty would not allow for the OEP to exercise its judgement in individual circumstances. For example, in the interest of transparency, the OEP would normally make information about its work publicly available; however, there may be certain situations where it is inappropriate for it to do so at an early stage, such as during the investigation of a complaint. The OEP will consider proportionality when balancing the need to improve and protect the natural environment against other considerations, such as the protection of the historic environment.
232. Under subsection (3), the OEP is required to prepare a strategy setting out its approach towards exercising its functions; the process for revising and reviewing this strategy is set out in section 24. Paragraphs (a) to (c) of subsection (4) require the OEP to set out in its strategy how it will further its principal objective, how it will act objectively and impartially, and how it will have regard to the need to act proportionately and in a transparent manner.
233. Subsection (5)(a) provides that the OEP must set out how it intends to avoid any overlap with the Committee on Climate Change in exercising its functions. This is intended to ensure that the OEP does not seek to replicate the role of the Committee on Climate Change under section 57 of the Climate Change Act 2008, or the reporting role of the Committee under section 59 of the Act. In its strategy, the OEP may also seek to explain how it will resolve any potential for duplication of effort with other relevant bodies, such as Natural England and the Joint Nature Conservation Committee. This strategy could be supported by entering into memoranda of understanding with such bodies.
234. Subsection (5)(a) also places a requirement on the OEP to set out in its strategy how it intends to cooperate with devolved environmental governance bodies (as defined in section 47). This would facilitate cooperation between the OEP and equivalent bodies in the devolved administrations while respecting the devolution settlements.
235. Subsection (6) provides that the OEP’s strategy must contain an enforcement policy. Paragraphs (a) to (e) describe what this policy must set out.
236. Paragraph (a) requires the OEP to set out in its policy how it will reach decisions about whether a failure to comply with environmental law is "serious", as required in sections 33(1)(b) and (2)(b), 35(1)(b), 36(1)(b), 38(1)(b), 39(1)(a) and 39(7).
237. Paragraph (b) also requires the OEP to set out in its policy how it intends to judge whether damage to the natural environment or to human health is "serious", as required in sections 39(2) in order to make an application for judicial review.
238. Paragraph (c) provides that the policy must set out how the OEP intends to exercise its enforcement functions in a way that respects the integrity of other relevant statutory regimes (including appeals processes), meaning where a decision is itself subject to the possibility of intervention by, or appeal to, another body. Statutory regimes could include decision-making functions, complaints, investigation, enforcement or appeals functions, and legal challenges. For example, some decisions made by the Environment Agency, or by a Planning Authority, may be subject to call-in by, or appeal to, the Secretary of State or the Planning Inspectorate. In normal circumstances, it is expected that the OEP would allow the usual regulatory processes to take their course, where they could affect a matter concerning a possible failure to comply with environmental law, before taking enforcement action. This provision therefore requires that the OEP’s strategy should set out how it intends to operate with a view to effective alignment, and avoidance of conflict or duplication, with such procedures.
239. Paragraph (d) requires the OEP to specify in its policy how it intends to avoid any overlap between its activities in relation to its complaints function and the work of a relevant ombudsman. Subsection (9) sets out that for the purposes of these provisions, the Commission for Local Administration in England (the official body that runs the Local Government and Social Care Ombudsman service) and the Parliamentary Commissioner for Administration (otherwise known as the Parliamentary and Health Service Ombudsman) shall each be considered a relevant ombudsman.
240. Paragraph (e) also requires that the OEP’s enforcement policy set out how it will prioritise cases. Further requirements on this point are set out in subsection (7).
241. Subsection (7) sets out certain types of case which the OEP should seek to prioritise when developing and reviewing its enforcement policy. In particular, the OEP must have regard to the particular importance of prioritising cases that it considers have, or may have, national implications. This provision is intended to steer the OEP to act in cases with broader, or more widespread significance, rather than those of narrow local concern; for example, some individual local planning or environmental permitting decision may not have implications beyond the local area.
242. Other types of cases which the OEP must have regard to the need to prioritise are set out under paragraphs (a) to (c):
     • those which concern persistent issues; that is, currently ongoing or recurring problems, or systemic failures;
     • those concerning decisions that the OEP considers have caused, or could cause, serious damage in terms of their environmental impacts or effects on human health; and
     • cases that deal with points of law of general public importance, such as addressing those that could otherwise set a potentially damaging precedent, or where there is potential for the OEP’s intervention to clarify a point of widespread uncertainty.

243. Subsection (8) defines the OEP’s enforcement functions as those provided for under sections 32 to 41.
244. Subsection (9) sets out what is meant by "a relevant ombudsman" for the purposes of subsection (6)(d) above, and other provisions in this Part.

Section 24: The OEP’s strategy: process

245. Section 24 sets out the process for publishing and revising the OEP’s strategy, which it must prepare under section 23. The strategy sets out how the OEP will carry out its functions. A number of other public bodies, such as the Equality and Human Rights Commission, have a similar statutory duty to prepare a strategic plan.
246. Subsection (1) requires the strategy (and each subsequent revised strategy) to be laid before Parliament and published. This is intended to provide transparency and clarity to the government, Parliament, and other stakeholders on the operational framework and strategic direction of the OEP, which it itself determines.
247. Subsection (2) allows the OEP to revise its strategy at any time. For example, it may need to reprioritise its work programme based on the types of complaint received during a particular period, or to address a newly emerging substantive issue that falls within its remit.
248. Subsection (3) ensures that the strategy remains a live document, which is kept up to date and relevant to the OEP’s statutory remit, by requiring a review of the strategy at least once in every "review period". Subsection (4) specifies the review period as three years for the first strategy and for each subsequent strategy. The three-year review period is designed to be an appropriate amount of time to ensure that the production of the plan is not overly burdensome, yet to also ensure that it stays up to date.
249. Subsection (5) provides that before producing, revising or reviewing the strategy, the OEP must consult relevant stakeholders as it considers appropriate. This could include the government, although Ministers or other parties will not have powers to veto any part of the strategy.

Section 25: Guidance on the OEP’s enforcement policy and functions

250. Subsection (1) of this section provides that the Secretary of State may issue guidance to the OEP on its enforcement policy, specifically the matters listed under section 23(6).
251. Subsection (2) requires that the OEP have regard to this guidance in preparing its enforcement policy and in exercising its enforcement functions. As set out in subsection (3), the OEP’s enforcement functions are those provided for under sections 32 to 41.
252. Subsection (4) requires that before issuing guidance to the OEP the Secretary of State must produce a draft of the guidance and lay the draft before Parliament.
253. Subsection (5) includes provisions for cases where either House of Parliament or a parliamentary committee chooses to respond to the draft guidance either by passing a resolution in respect of the draft guidance or recommending changes to the guidance, within the period of 21 sitting days after the draft guidance has been laid. The Secretary of State is required to lay a response to any resolution passed or recommendations made by Parliament.
254. Subsection (6) requires that the Secretary of State may not prepare and lay the final guidance before, laying a response if required under subsection (5) or, otherwise, before a period of 21 sitting days has passed since the draft guidance was laid. This is intended to allow Parliament sufficient time to scrutinise the draft guidance.
255. Subsection (7) provides that the final guidance comes into force when laid before Parliament, at which point the Secretary of State is required to publish it (subsection (8)).
256. Subsection (9) defines the "21 day period" for the purpose of subsection (5), and subsection (10) defines what is meant by "sitting day" for the purpose of subsection (9).
257. Under subsection (11), the Secretary of State may revise any guidance that has been issued at any time (and subsections (4) to (10) apply in relation to any revised guidance).

Section 26: Memorandum of understanding

258. Subsection (1) of this section requires that the OEP and the Committee on Climate Change (CCC) must prepare a memorandum of understanding. As specified by subsection (2), this memorandum must set out how the two bodies will cooperate and avoid overlaps in the exercise of their functions.
259. This section builds upon the provision at section 23(5), which requires the OEP to set out in its strategy how it will avoid overlap between the exercise of its functions and the exercise by the CCC of its functions. This provision will help to ensure a strong working relationship between the OEP and the CCC, whilst ensuring both bodies are able to effectively undertake their separate and important roles. They each have a statutory duty to prepare the memorandum, but these provisions allow them the discretion to set the terms of their relationship, and to adapt the memorandum as needed in the future.

Section 27: Co-operation duties of public authorities and the OEP

260. This section establishes a duty on public authorities to co-operate with the OEP, and provide the OEP such reasonable assistance as it requests, in connection with the exercise of its statutory functions. This includes the provision of information in relation to investigations under section 33, information notices under section 35 and decision notices under section 36, as well as activities that form its scrutiny and advice functions under sections 28 to 30. The intention of the duty to co-operate is to help the OEP and public authorities resolve issues constructively, and to share relevant information. It applies only to reasonable requests and would not replace the need for the OEP to commission work from public authorities, for which a fee might be payable: for example, if the OEP commissioned the Environment Agency (EA) to analyse data and that analysis was outside the EA’s planned work programme.
261. The obligation under subsection (1) is for any person whose functions include functions of a public nature to co-operate with the OEP, and to give the OEP such reasonable assistance (including the provision of information) as the OEP requests. This reflects the definition of a "public authority" in section 31(3).
262. Subsection (2) sets out the persons to whom, and circumstances where, the duty to co-operate does not apply. The duty excludes courts and tribunals, Parliament, devolved legislatures, Scottish and Welsh Ministers and Northern Ireland departments, persons exercising parliamentary functions, and persons who exercise only devolved functions. The duty does not apply to any person whose functions are wholly devolved; however, if only some of their functions are devolved, they need only comply with the duty in relation to their non-devolved functions, as set out in subsection (3).
263. Subsection (4) provides that the OEP should consult a devolved environmental governance body if the work it is undertaking would be of relevance to such a body. This could include the OEP consulting the relevant body during an investigation if it became aware of a transboundary environmental issue that may have involved a breach of devolved legislation outside of the OEP’s own remit, but would be within the remit of the devolved environmental governance body. "Devolved environmental governance body" is defined in section 47.

Section 28: Monitoring and reporting on environmental improvement plans and targets

264. Section 28 describes the monitoring and reporting functions of the OEP in relation to the environmental improvement plans and targets. Under this section, the OEP will monitor and assess environmental statistics and reports on an ongoing basis to ensure that it has an effective knowledge base. This information will then be analysed alongside information published by the government to provide an independent assessment of progress made in improving the natural environment in accordance with the current environmental improvement plan and targets.
265. Subsection (1) provides that the OEP must monitor progress:
     • in improving the natural environment in accordance with the government’s current environmental improvement plan (the first such plan is known as the 25 Year Environment Plan), as set out in section 8;
     • towards meeting any long-term targets as set under section 1, and the particulate matter target as set under section 2 and the species abundance target set under section 3 and;
     • towards meeting any interim targets as set out in the environmental improvement plan.

266. This monitoring and reporting function will hold the government to account on its environmental improvement commitments.
267. Subsection (2) requires the OEP to produce a progress report for each annual reporting period. As set out in subsection (3), the reports will inform on progress made related to improving the natural environment that has occurred within the annual reporting period. This will be measured against the current environmental improvement plan and targets. An annual reporting period is the period for which the Secretary of State must produce a report under section 9, as set out in subsection (4).
268. When making a progress report, subsection (5) requires the OEP to take into account the annual report made by the Secretary of State on progress against the implementation of the environmental improvement plan and targets for that period, as set out in section 10. The OEP will also consider the data published under section 16 for that period, as well as any other documents or information that the OEP believes are relevant. In reporting on progress made in an annual reporting period, the OEP will undertake any analysis and interpretation it believes is necessary.
269. Subsection (6) specifies that a progress report may advise how the OEP believes progress could be improved – for example, through comparison with other countries, including the devolved administrations. It may also consider the adequacy of data published under section 16, enabling the OEP to independently determine whether the right information is being collected to evaluate progress in improving the natural environment, and whether it is accurate and sufficiently comprehensive.
270. Subsections (7) and (8) require that the OEP’s reports must be laid before Parliament and published. This is intended to provide the OEP with sufficient independence from the government when carrying out its reporting functions. The OEP’s report must be laid before Parliament within six months of the relevant report under section 9 being laid. This gives the OEP sufficient time to carry out its scrutiny of the section 9 report whilst tying it to a fixed reporting deadline.
271. Subsection (9) requires the Secretary of State to respond to the OEP’s report, publishing their response and laying it before Parliament. Subsection (10) requires that the Secretary of State’s response must specifically address any recommendations made by the OEP as to how progress with the environmental improvement plan and targets could be improved. This requires the Secretary of State to evidence and justify any decisions whereby the OEP’s recommendations will not be taken forward. Subsection (11) specifies that the Secretary of State must lay their response within 12 months of the OEP’s report being laid, and may include this response in the Secretary of State’s subsequent report made under section 9. This allows the Secretary of State to include the response to the OEP’s progress report as part of the following year’s annual report on the environmental improvement plan and targets.

Section 29: Monitoring and reporting on environmental law

272. Section 29 requires the OEP to monitor the implementation of environmental law and provides a power to issue reports on any matter to do with the implementation of environmental law.
273. Subsection (1) requires the OEP to monitor the implementation of environmental law. Environmental law is defined in section 46 of this Act. An example of environmental law caught by this duty would be the Habitats Regulations.
274. Subsection (2) allows the OEP, as it deems appropriate, to produce a report on any matter concerned with the implementation of environmental law. This provision would, for example, allow the OEP to produce a report considering the operation of existing environmental legislation, highlighting particular strengths and weaknesses. For example, if the OEP identified a significant issue in the implementation of part of the Marine and Coastal Access Act 2009 relevant to its remit, it may choose to report on this.
275. Subsection (3) ensures that the OEP does not duplicate the work of the Committee on Climate Change by preventing the OEP monitoring or reporting on specific matters which are already within the statutory remit of that Committee. Subsection (4) lists those matters. These subsections do not prevent the OEP from monitoring and reporting on other climate change legislation that falls within its remit.
276. Subsection (5) requires the OEP’s reports to be laid before Parliament and published. This reflects the OEP’s independence from the government when carrying out its reporting functions.
277. Subsections (6) and (7) require the Secretary of State to lay before Parliament and publish a response to a report issued by the OEP under this section within three months of that report being laid.

Section 30: Advising on changes to environmental law etc.

278. Section 30 sets out the circumstances in which the OEP can give advice to Ministers of the Crown, and how this advice must be published and may be laid before Parliament.
279. Subsections (1), (2) and (4) enable a Minister to require the OEP to provide written advice on proposed changes to environmental law, or on any other matter relating to the natural environment. The OEP must take into consideration any specific matters the Minister outlined in their request when providing this advice, as per subsection (2). The natural environment is defined in this Act in section 44. For example, the OEP could be asked by the government to give recommendations on proposals to make amendments to the Natural Environment and Rural Communities Act 2006, or about a proposal to include additional goals in the environmental improvement plan. Subsection (3) provides a power for the OEP to give written advice to a Minister concerning any proposed changes to environmental law.
280. Subsection (5) requires the OEP to publish its advice, along with details of the specific request and any matters it was required to take into account, if it was asked to provide advice by a Minister. The publication of this information ensures transparency in the relationship between the OEP and any Minister asking it for advice.
281. Subsection (6) provides that the relevant Minister may lay the OEP’s advice and any response to it before Parliament. This is a discretionary power to reduce burden on Parliament. For example, where advice has been sought by a Minister regarding a specific technical detail that is apolitical, the Minister can decide not to lay this advice before Parliament.

Section 31: Failure of public authorities to comply with environmental law

282. This section sets out definitions for certain terms that are referred to throughout Chapter 2, which concerns the functions of the OEP. Subsection (1) states that sections 32 to 41 provide for the functions of the OEP relating to failures by public authorities to comply with environmental law. (The term "environmental law" is defined in section 44.)
283. "Failing to comply with environmental law" is defined in subsection (2) as meaning where an authority is:
     • Not taking proper lawful account of environmental law when exercising its functions. For example, as set out in section 19, a Minister of the Crown must have due regard to the policy statement on environmental principles in making, developing and revising policies. Failure to have due regard to the policy statement where required would therefore constitute a failure to take proper account of environmental law; or
     • Unlawfully exercising or failing to exercise functions it may have under environmental law. For example, various authorities are charged with establishing and implementing permitting or other types of regulatory control regimes for different activities that can affect the environment. Failing to meet such requirements, or implementing them in a deficient way (for instance, by omitting certain prescribed activities or applying standards that are less rigorous than the law demands), would also constitute a failure to comply with environmental law. A failure to meet a statutory environmental quality standard for which a public authority was responsible for ensuring compliance would also be captured by this provision.

284. No restrictions regarding the date of a failing are included in the definition in subsection (2). This means that the OEP will still be able to take action against failings that occurred after the UK’s date of exit from the EU but before it was fully established.
285. In subsection (3), a "public authority" is defined as a person carrying out a function of a public nature, that is not a devolved function, a parliamentary function, or a function of one of the bodies specified in paragraphs (a) to (e). This follows a similar approach to section 6(3) of the Human Rights Act 1998. The term "public function" is not defined in the Act (or in the Human Rights Act 1998), so it will ultimately be for the courts to determine what constitutes a public function. The courts have previously recognised that a body can act in more than one capacity. As such, bodies that undertake some public and some private functions, such as statutory undertakers, will be within scope of the OEP only with regard to the exercise of their public functions. The term "person" means any legal or natural person. For example, a Minister of the Crown, a government department, non-departmental public body, or local authority would be considered a public authority.
286. Where a person is undertaking a devolved or parliamentary function, they will not fall within this definition. This means that any public authorities implementing devolved functions under environmental law in Scotland, Wales and Northern Ireland will not be covered by the remit of the OEP in respect of devolved matters. Bodies exercising such functions would typically include devolved public bodies such as Scottish Natural Heritage, the Scottish Environment Protection Agency, Natural Resources Wales and the Northern Ireland Environment Agency. "Devolved function" is defined in section 47.
287. Paragraphs (a) to (e) of subsection (3) also set out certain bodies that are excluded from this definition, including, for the purposes of this Act, the OEP itself. This exclusion is to avoid the OEP having to consider whether to exercise its statutory complaint and enforcement powers in relation to a complaint made against it; the OEP could still consider complaints about its conduct outside of its statutory functions, or complaints could be made to the parliamentary ombudsman, as provided for in paragraph 21 of Schedule 1. Among the other excluded bodies are courts and tribunals and both Houses of Parliament. The devolved legislatures, and the Scottish and Welsh Ministers and Northern Ireland departments are also excluded. Any person carrying out a devolved function on behalf of the devolved Ministers, such as a devolved public body, is also excluded from the OEP’s remit.

Section 32: Complaints

288. This section provides that a person may make complaints to the OEP regarding alleged contraventions of environmental law by public authorities. It sets out who may make such complaints, what form they must take, and the time limits within which they should be made. The contraventions and public authorities about which complaints may be considered by the OEP are set out in section 31, while "environmental law" is defined in section 46. Figure 1 illustrates the process by which the OEP’s management of complaints is expected to operate, as set out in this section and in section 33 (investigations).
289. Subsection (1) allows for any legal or natural person to make a complaint to the OEP if they believe that a public authority has failed to comply with environmental law, subject to the exclusions set out in subsection (4).
290. Subsection (2) sets out that the OEP must prepare and publish a document that sets out the procedure by which complaints can be made, and subsection (3) provides that complaints must be submitted in accordance with the most recently published version of that procedure. This is to allow the OEP to specify the means by which it will accept complaints. The OEP may or may not allow, for example, complaints in writing, by telephone or through an online complaints portal. Complaints that are not submitted in accordance with the procedure do not have to be considered by the OEP.
291. Under subsection (4), public authorities themselves are excluded from complaining to the OEP, as this would amount to one arm of the government or the public sector complaining about another.
292. Subsection (5) requires that the complainant must have exhausted all internal complaints procedures of the allegedly offending body before they submit the complaint to the OEP. A wide range of bodies including the Environment Agency, Natural England and the Planning Inspectorate, for instance, operate complaints procedures that will apply to their functions, which are concerned with the implementation of environmental law. This provision is intended to give the public authority in question the opportunity to consider and seek to resolve the matter through its own procedures before it is considered by the OEP.
293. Subsection (6) makes provision regarding the timing of making a complaint to the OEP. The complaint must be submitted no later than one year after the last occurrence of the alleged breach of environmental law (paragraph (a)), or three months after the conclusion of any internal complaints procedures (paragraph (b)), whichever is later. This is intended to encourage complainants to bring their complaints in a timely manner, whilst also allowing a reasonable time period for people to bring complaints. An open-ended ability to complain long after the event in question could lead to uncertainty over certain decisions, particularly given that it could lead to enforcement action.
294. The provision in subsection (7) means that the OEP will not be entirely precluded from investigating serious matters on the basis of a complaint being late. Subsection (7) allows the OEP to waive the time limit in subsection (6) if there are exceptional reasons for doing so. This judgement will be a matter for the OEP’s discretion, and as such it could cover a number of circumstances, although it can be used only where there is an exceptional reason to disapply the normal time limit. It is possible that the OEP may wish to use this provision in a case where, for example, environmental harm resulting from a failure to comply with the law has taken some time to materialise and therefore for that failure to be identified, or where details of a decision only came to light long after it was taken.
295. The time limits specified in subsection (6) set out the periods after which complaints will not normally be accepted by the OEP, but do not affect its wider ability to investigate or take enforcement action (which may be prompted by triggers other than a complaint) under subsequent sections.
296. It should be noted that no provision is made to grant the OEP the power to impose charges in relation to its receipt and handling of complaints. As such, the complaints system will be free of charge to all complainants.
297. A summary of the procedure for handling complaints is provided in figure 1.

Figure 1: Summary of complaints handling procedures

Section 33: Investigations

298. This section deals with the investigation of complaints, and potential breaches of environmental law coming to the OEP’s attention by other means.
299. Subsection (1) provides that the OEP may undertake an investigation on the basis of a complaint received under section 32 if it considers that the complaint indicates that a public authority may be responsible for a serious failure to comply with environmental law.
300. Subsection (2) provides that the OEP may also undertake an investigation under this section without having received a complaint, if it has information obtained by other means that in its view indicates a public authority may have committed a serious failure to comply with environmental law.
301. The OEP’s enforcement policy will set out how the OEP intends to determine seriousness for the purpose of subsection (2)(b). The OEP is not obliged to investigate all complaints, and provisions in subsections (1) and (2) allow the OEP to exercise discretion regarding the potential breaches that it investigates. The OEP’s approach to prioritising cases will also be set out in its enforcement policy, in which it must have regard to the considerations set out in section 23(7). If the OEP chooses not to investigate a complaint, the complainant must be informed under the requirements of section 34.
302. Subsection (3) sets out the purpose of the investigation, which should focus on establishing whether a public authority has failed to comply with environmental law. Under subsection (4), at the start of an investigation the OEP is required to notify the public authority being investigated, although in practice it also has discretion to contact the public authority informally in advance of commencing an investigation. Subsection (10) also provides that, if the authority is not a Minister, the OEP must additionally notify the "relevant Minister". Subsection (11) provides that the relevant Minister should be the Minister of the Crown that the OEP considers appropriate, having regard to the nature of the public authority and the nature of the failure (that is, the Minister whose department is responsible for the policy area). For example, in the case of an investigation into a potential infringement relating to environmental permitting, a Minister from the Department for Environment, Food and Rural Affairs should likely be informed where the Environment Agency had issued the permit in question. If an investigation relates to environmental impact assessment, which is a policy area predominantly owned by the Ministry for Housing, Communities and Local Government, a Minister from this department should likely be informed, where a local authority was responsible for the alleged failure. The intention of these subsections is to ensure that central government departments remain informed of investigations related to their subject areas, and are therefore able to contribute, even if an alleged infringement does not involve a lack of compliance on the part of the department or Ministers themselves. This definition of the "relevant Minister" also applies to other sections in this Part.
303. Similarly, when an investigation is concluded, subsection (5) requires that the OEP provide a report to the relevant public authority, copied to the relevant Minister if necessary under subsection (10). The OEP may publish the report in full or part under subsection (9).
304. Subsection (6) allows the OEP the flexibility to delay the preparation of this report if it considers that it may take further enforcement action (for instance, the service of an information or decision notice, or application for environmental review under section 38) in relation to the alleged failure. This is intended to ensure that the OEP is not required to prepare and release reports concerning an investigation while it is still considering or intending to take further enforcement action. However, should the OEP publish a report and further information subsequently comes to light, it will not be precluded from taking further enforcement steps in relation to the failure as a result of having already published a report.
305. Under subsection (7), if the OEP has applied for an environmental review, judicial review, or statutory review it is not required to prepare a report.
306. The required contents of this report are set out in subsection (8). A report must state whether the OEP considers that a public authority has failed to comply with environmental law, the reasons the OEP came to these conclusions, and any recommendations the OEP may have for the relevant Minister, the public authority in question and any other authorities.
307. The OEP has discretion over whether to publish the report (in whole, in part or at all), in view of the possibility that some investigations may conclude that there is nothing of value to put in the public domain, while other investigations may involve matters of significant confidentiality or sensitivity. The OEP will exercise this discretion consistently with its duty to have regard to the need to act transparently (see section 23(2)(b)). Information that the OEP chooses not to proactively report and publish will still be open to requests for disclosure and will need to be considered under the applicable legislation dealing with such requests.

Section 34: Duty to keep complainants informed

308. This section deals with the procedure for the OEP to inform complainants about whether an investigation following a complaint will be carried out and the progress of the investigation.
309. The OEP must inform the complainant if the complaint will not be considered for further investigation on the basis that it is not a valid complaint. For example, the complaint may not be concerned with a valid matter (a breach of environmental law by a public authority), it may not have been submitted in accordance with the specified procedure, or it may have been submitted after the time limit without any exceptional basis for the OEP to reasonably accept it. This is covered in subsection (2)(a) of this section.
310. Where a complaint has been made in accordance with section 32, the OEP must inform the complainant about whether or not an investigation into that complaint will be carried out; this is covered in subsections (2)(b) and (c). This reflects the fact that the OEP has discretion in choosing which cases to investigate, prioritising cases in line with its enforcement policy.
311. When a report on an investigation under section 33(5) has been provided to the public authority in question, paragraph (d)(i) requires that the OEP must inform the complainant of this, although it is not obliged to disclose that report to the complainant at that stage unless it has been published under section 33(9).
312. Where the OEP applies for an environmental review, or for permission to apply for a judicial review, or statutory review in relation to the failure that was the subject of the complaint, paragraph (d)(ii) requires the OEP to inform the complainant.
313. Where the OEP publishes a report following the investigation of a complaint, it must provide the complainant with a copy of that report as published in full or in part, as required by paragraph (e). This could be done by electronic means, or by referring the complaint to a published report that is available online, rather than necessarily requiring a hard copy of the report to be provided in every case.

Figure 2: Summary of investigation and enforcement

Section 35: Information notices

314. This section provides that the OEP can take enforcement action in the form of "information notices" in cases where it reasonably suspects a public authority may be responsible for a serious breach of environmental law. This action may follow the investigation of a complaint, but the OEP can also take enforcement action if it has other grounds for suspecting there has been a serious breach (for example, based on information presented in a report on the implementation of a law, or arising from a parliamentary inquiry or other source), whether arising from an investigation under section 31 or not.
315. This section, and those that follow it, reflects the intended enforcement function and process of the OEP. Figure 2 illustrates the process that is expected to operate in the OEP’s management of enforcement activities under these sections.
316. Under subsection (1), the OEP may issue an information notice if it has reasonable grounds (whether or not this information arises from an investigation under section 33) for suspecting that a public authority has failed to comply with environmental law, and it considers that the failure is serious. The seriousness of a failure will be determined by the OEP in accordance with its own, published enforcement policy (see section 23). The OEP therefore may not serve an information notice in relation to trivial matters, or serve a speculative information notice if it does not have any reasonable basis to believe an authority is failing to comply with environmental law.
317. Information notices are a means by which the OEP can formally request information from the public authority concerned in relation to a suspected failure. Subsection (2) states that an information notice is to describe the alleged failure, the reasons why the OEP considers that the alleged failure, if it occurred, would be serious, and the information that the OEP requests in relation to it. Subsection (3) requires the relevant public authority to respond in writing to an information notice within a fixed time period as specified in subsection (4), and subsection (5) sets out what information should be included in such responses.
318. Subsection (4) specifies that responses must be provided within two months from the date on which the notice was issued, or such later date as specified by the OEP. This means that, although the OEP can specify a response date that gives a public authority longer than the standard period of two months to respond if it sees fit (for example, if it accepts that the matter is exceptionally complex, or if the ability of the public authority to respond is constrained by an election period), it must allow notice recipients at least this amount of time.
319. Under subsection (6), the OEP may withdraw an information notice or issue multiple information notices in relation to the same suspected infringement.
320. Under subsection (7), where the OEP plans to issue an information notice in relation to an alleged failure to comply with environmental law relating to greenhouse gas emissions, the OEP must first notify the Committee on Climate Change and provide it with appropriate information. "Emissions of greenhouse gases" is defined in the Climate Change Act 2008.

Figure 3: Summary of normal enforcement process

Section 36: Decision notices

321. This section provides for the OEP to take further enforcement action in the form of a "decision notice".
322. The OEP may issue a decision notice under subsection (1) if it is satisfied, on the balance of probabilities, that the public authority has failed to comply with environmental law, and it considers that the failure is serious. As with an information notice, the question of seriousness will be one for the OEP to consider on the basis of its own published complaints and enforcement policy (see section 23). The "balance of probabilities" test means that the OEP must consider it more likely than not that a public authority has failed to comply with environmental law. Note that this test relates to the question of when the OEP is permitted to serve a decision notice, and does not create a requirement to issue such a notice in any particular case where the test is satisfied.
323. As defined in subsection (2), decision notices are a means by which the OEP can take action against the public authority failing to comply with environmental law, by setting out the failure, its reasons for considering that the failure is serious, and the suggested steps for the public authority to take in relation to the failure. The potential actions that the OEP can request will be specific to each case. For instance, the OEP could recommend that the public authority prepare a new, or updated strategy, or undertake remedial action in the event that environmental harm has been done. Other possible steps could include asking an authority to cancel, amend or re-take a decision (for example, to designate a certain area as a protected site), or take steps to pursue a particular environmental quality standard or other environmental outcome as required. Subsection (2) does not constrain the types of steps that the OEP can specify, and provides expressly that they may include steps designed to remedy, mitigate or prevent reoccurrence of the failure.
324. The public authority that receives a decision notice is not under a legal duty to carry out the steps detailed in the notice. Under subsection (3), the public authority is required to respond to a decision notice either two months after the notice was given, or by a date specified in the notice, whichever is later. The written response from the public authority must state whether the public authority agrees that there has been a failure to comply with the law, and whether the steps set out in the notice will be followed, as specified in subsection (4). This subsection also requires the public authority to specify any other alternative steps that will be taken in relation to the alleged failure described in the notice. This reflects the possibility that the public authority might accept that it had failed to comply with environmental law, but might wish to propose alternative or additional steps to remedy, mitigate or prevent reoccurrence of the failure, compared to those specified in the OEP’s decision notice.
325. Subsection (5) provides that the OEP may withdraw a decision notice after it has been issued (paragraph (b)), and also requires that the OEP must have previously issued at least one information notice relating to the alleged failure of the public authority to comply with environmental law before a decision notice is issued (paragraph (a)). The OEP may withdraw a decision notice if, for example, it has served such a notice where it considers there has been a failure to comply with the law but later considers that there had been no such failure. In this case, it would be desirable to withdraw the notice rather than require a public authority to respond to a notice that the OEP no longer considers is relevant or necessary.

Section 37: Linked notices

326. This section deals with the scenario in which the OEP considers that a notice should be issued to more than one public authority concerning the same or similar breaches of environmental law. In such a scenario, the OEP could issue information or decision notices in parallel to both (or all) parties, and determine that these are "linked" under subsection (1). Public authorities may make joint or separate responses to linked notices.
327. The OEP may wish to issue linked notices in various circumstances, including for example:
     • If a serious breach occurred for which a local authority was immediately responsible in the local area, but in relation to which a Secretary of State also had national duties, it might be appropriate for the OEP to commence enforcement proceedings (via notices) against both the local authority in question and the Secretary of State.
     • If a cross-boundary incident occurred where two or more local authorities failed to properly carry out their obligations under environmental law, the OEP might wish to issue linked notices to both or all of the authorities in question. For instance, if during the course of a major, cross-boundary development project it was found that two or more local authorities had neglected their responsibilities under Part IIA of the Environmental Protection Act 1990 to identify contaminated land and serve remediation notices where appropriate, leading to improper development of the site with potential implications for human health and the environment, it may be appropriate for the OEP to take action against both/all authorities in parallel using linked notices.

328. Subsection (2) provides that the relevant Minister may also request that the OEP designates information or decision notices as linked, and that the OEP must have regard to such a request. This does not mean that the OEP is obliged to comply with the Minister’s request, but it must be able to demonstrate it has appropriately considered it. The meaning of "the relevant Minister" is as defined in section 33(11).
329. Subsection (3) sets out that the OEP must provide the public authority receiving an information or decision notice (which is referred to as a "principal notice") with a copy of every notice which is linked to it. It also sets out that such notices shall be referred to in this section as "linked notices".
330. Subsection (4) provides that the OEP must provide the recipient of a principal notice with a copy of any relevant correspondence which relates to a linked notice between the OEP and the recipient of that notice. What constitutes "relevant" correspondence is defined in subsection (8).
331. Subsection (5) provides that the OEP must also provide the recipient of a principal notice with a copy of any relevant correspondence between the OEP and the relevant Minister that relates to a linked notice. (The "relevant Minister" has the meaning given in section 33(11).) However, subsection (6) provides that subsection (5) does not apply where the recipient of either the principal notice or the linked notice is themselves a Minister of the Crown.
332. Subsection (7) provides that the obligations set out under this section to provide copies of notices or correspondence will not apply where the OEP considers that to do so would not be in the public interest. For instance, where correspondence regarding a notice contained information pertaining to matters of national security, it may not be in the public interest to share this with other parties.
333. Subsection (8) sets out what will be considered as "relevant" correspondence for the purposes of this section. Correspondence is considered relevant if:
     • as required by paragraph (a), it is not connected with an environmental review or any other legal proceedings, which would include judicial or statutory review; and
     • as required by paragraph (b), it is not sent to fulfil the requirements of section 40(1)(a) or 40(1)(b).

Section 38: Environmental review

334. This section provides for the OEP to bring legal proceedings against a public authority regarding an alleged breach of environmental law. These proceedings are through a mechanism in the High Court called "environmental review". This is a bespoke form of legal proceedings which applies solely to cases brought by the OEP, and it is based on the normal standards and principles of judicial review.
335. Subsection (1) sets out that the OEP may apply to the court for an environmental review regarding an alleged breach where it has given a decision notice to a public authority. The OEP therefore cannot bring such a review unless it has gone through this earlier notice stage, which in turn must be preceded by the service of an information notice (see section 35). This process is intended to ensure that cases dealt with through this bespoke process necessarily involve substantial pre-litigation stages, with a view to resolving cases without legal proceedings where possible. This subsection also specifies that the OEP may only apply for an environmental review if it is satisfied on the balance of probabilities that the public authority has failed to comply with environmental law, and it considers that the failure in question is serious. This is the same test that the OEP must apply in deciding whether or not it may issue a decision notice. The OEP must remain satisfied, after considering any response to its decision notice, that the failure in question is serious. It cannot apply for an environmental review if the response leads it to conclude that there was in fact no serious failure.
336. Subsection (2) defines an environmental review as a review of the conduct described in a decision notice as a failure to comply with environmental law. It is not a review of whether the public authority has complied with any recommendations that may be included in a decision notice, or whether a public authority has acted unreasonably in failing to follow the views of the OEP, given that decision notices are not binding. The OEP does not have powers to make binding findings as whether there has been a breach of environmental law; that is the role of the Courts and the purpose of environmental review.
337. Subsection (3) sets restrictions for when an application for an environmental review may be made. Subsection (3)(a) sets out that the OEP may not make an application for environmental review before the earlier of: (i) the end of the period within which the public authority in question is required to respond to a decision notice under section 36(3); and (ii) the date on which the OEP receives the authority’s response. This means that the OEP is not obliged to wait until the end of the period specified in its decision notice if the public authority responds sooner, whilst ensuring that the OEP is able to consider the authority’s response to the decision notice before deciding whether to proceed to applying for an environmental review.
338. Subsection (3)(b) provides that the OEP may not apply for an environmental review before the expiry of any time limit in which legal proceedings (judicial review or other similar legal proceedings) in relation to the same conduct could be initiated. This is to ensure that environmental review does not pre-empt other legal proceedings. The timescales for the OEP’s enforcement process mean that the period within which judicial review or similar legal proceedings can be brought will normally have passed before the OEP can apply for an environmental review. For example, where a decision is challenged through judicial review, the application for review must be made promptly and within six weeks for planning cases and three months in other cases. The applicable legislation provides a margin of discretion for the courts to accept judicial review applications outside these time limits in exceptional circumstances. However, the provision in subsection (3)(b) necessarily only captures any specific time limit expressed in law, rather than any time limits that have been extended by the discretion of the court in an individual case.
339. Subsection (4) provides that any restriction in other legislation on questioning the conduct of a public authority in legal proceedings does not apply to an environmental review. This provision is made to ensure that the OEP’s route of challenge can exist alongside other pre-existing routes of challenge. In some cases, the relevant legislation may provide that the courts can only entertain challenges against those decisions in the form of a judicial review – for example, section 13 of the Planning Act 2008. Furthermore, some existing statutory routes of challenge specifically exclude any other route of challenge – for example, section 284(1)(b) of the Town and Country Planning Act 1990. However, the intention is that these restrictions should not preclude the OEP bringing a challenge.
340. Subsection (5) establishes what the court must determine in an environmental review, namely whether the public authority in question has failed to comply with environmental law. The subsection specifically provides that the court must determine whether there has been a failure applying judicial review principles. As such, this question is to be determined on standard public law grounds. This means that the court will consider whether the decision maker has made an error in law, whether the decision was reasonable, and whether the process was fair. This reflects the intention of this section that public authorities be afforded the normal margin of discretion to take reasonable decisions in accordance with their functions, as they would in a judicial review.
341. Subsection (6) provides that, if the court finds on an environmental review that a public authority has failed to comply with environmental law, it must make a statement confirming this, referred to as a "statement of non-compliance".
342. Subsection (7) sets out that, whilst the statement of non-compliance confirms that the court has found that the public authority in question has failed to comply with environmental law, it does not in itself invalidate the decision of the public authority in question. For example, if the grant of a planning permission is challenged through environmental review and the court finds it to be unlawful and makes a statement of non-compliance, the planning permission granted would nevertheless remain valid. This is the case unless the court decides that it is appropriate to impose further remedies such as a quashing order, and the conditions for doing so were met.
343. Where the court issues a statement of non-compliance, this would not prevent or oblige the Secretary of State, or other relevant decision-maker, from using existing discretionary powers in relation to that decision (that is, to modify or revoke their original decision).
344. Subsection (8) provides that, if the court makes a statement of non-compliance, it will have the full suite of remedies, other than damages, available to it as on a judicial review, but only if one of two conditions is met. These are referred to as Conditions A and B.
345. These remedies include a declaration, quashing, prohibiting and mandatory orders, and injunctions. Damages are not available in environmental reviews because the OEP, as the only applicant, would have no cause to seek compensation for damages personally suffered where the claimant in a traditional judicial review might. As such, this remedy is unnecessary.
346. Subsection (9) defines Condition A. This condition is that the court is satisfied that granting such a remedy would have neither of the effects described in paragraphs (a) and (b) of this subsection.
347. The provision that the court may only grant a remedy under Condition A if it is satisfied that neither of the effects described in paragraphs (a) or (b) would occur as a result recognises the fact that the environmental review will take place after the expiry of judicial review time limits and that prejudice may result from quashing the decision at this later date. This provision allows third parties reliant on decisions involving the application of environmental law to have confidence that those decisions will not routinely be quashed or other judicial review relief granted outside the normal judicial review time limits, if substantial prejudice, substantial hardship or detriment to good administration would be likely to result. Together with the provision in subsection (10) these conditions combine to mean that remedies which could have these effects could only be granted in exceptional circumstances. Paragraph (a) of subsection (9) requires the court to be satisfied that a remedy would not be likely to substantially prejudice or cause substantial hardship to a third party (a person other than the public authority defendant) before granting it. Expenditure already spent in reliance of the decision in question may be relevant to the question of substantial prejudice or hardship, along with potentially the recoverability of the sums and the financial means of the third party.
348. Paragraph (b) of subsection (9) requires that the court also be satisfied that a remedy it grants would not be detrimental to good administration. This provision recognises the need to protect the orderly implementation of properly-reached decisions, and recognises that finality in decision-making is important for both public authorities and the public.
349. Subsection (10) sets out Condition B. This condition is that condition A is not met, but the court is satisfied that, under paragraph (a) it is necessary to grant the remedy in order to prevent or mitigate serious damage to the natural environment or human health, and under paragraph (b) that there is an exceptional public interest reason to do so.
350. This condition therefore provides the court discretion to undertake a weighted balancing exercise in the event that Condition A is not met. In doing so the court would need to weigh the public interest in preventing serious harm to the natural environment or human health against the public interest in preventing the occurrence of substantial hardship or prejudice to a third party, or detriment to good administration. In order to grant a remedy, the court would need to be satisfied that the public interest in preventing this serious harm substantially outweighed the interest in preventing hardship, thereby constituting an ‘exceptional public interest reason’ to grant the remedy.
351. Subsection (11) sets out that the court, subject to the conditions set out in subsection (8), must apply the usual principles applied in a judicial review when considering whether to grant a remedy in an environmental review. It also clarifies that section 31(2A) of the Senior Courts Act 1981 does not apply, a provision under which the court could not grant a remedy in circumstances where it appears highly likely that the outcome for the applicant would not have been substantially different if the breach under consideration had not occurred. The OEP will be the only possible applicant for an environmental review and will never be directly affected by the decisions it may be challenging. By making clear that this provision of the Senior Courts Act 1981 does not apply, subsection (11) therefore ensures the court is able to grant remedies subject to the provisions of subsection (8). If the court does decide to impose a remedy, should the public authority fail to comply with any resulting court order it could be subject to contempt of court proceedings brought by the OEP.
352. Subsection (12) requires a public authority that has been the subject of an environmental review in which a statement of non-compliance has been issued by the court (and not overturned on appeal) to publish a statement. This statement should describe any steps the authority intends to take based on the outcome of these proceedings. For example, if the court were to agree with the conclusions outlined by the OEP in its decision notice, and make an order granting a statement of non-compliance and specified remedies, the public authority’s statement could include details of how it intends to ensure the remedies are given effect, and/or details of how it will ensure future breaches are avoided. Where a statement of non-compliance is not issued, the public authority is not required to publish a statement, but would not be prevented from doing so if it so wished.
353. Subsection (13) sets out that a statement under subsection (12) must be published within two months of the conclusion of the review proceedings. This means that the statement should be published after the final disposal of proceedings, meaning after judgment has been delivered on the final issue in the case, including any subsequent appeal proceedings.
354. Subsection (14) defines several terms used in this section.

Section 39: Judicial review: powers to apply in urgent cases and to intervene

355. This section makes provision for the OEP to apply for judicial or statutory review in specific circumstances and to intervene in third party judicial reviews and statutory reviews where appropriate.
356. Subsection (1) provides that the OEP may apply for judicial review, or a statutory review (a legal challenge procedure similar to judicial review, but under specific legislation – for instance, the Town and Country Planning Act 1990 procedure by which an applicant may challenge a decision of the Secretary of State), of a public authority’s conduct, whether or not it has issued an information or decision notice, if it considers that the public authority in question has committed a serious breach of environmental law, and if what is referred to as "the urgency condition" is met.
357. Subsection (2) defines the urgency condition. The effect of these provisions is that the OEP could only make an application for judicial review (or statutory review), rather than proceeding according to its normal enforcement procedure (information notice; decision notice; environmental review), if it is "necessary" to do so in order to prevent or mitigate serious damage to the natural environment or human health. This could be the case if, for example, the serious damage would have already happened by the time that the normal enforcement procedure reached the court and a more urgent court judgment was needed. To give all parties certainty, the OEP will be required to set how it intends to determine whether damage is serious for the purpose of this section in its enforcement policy, as part of its strategy (see section 23(6)(b)). Subsection (3) disapplies section 31(2A), (3C) and (3D) of the Senior Courts Act 1981 in relation to judicial review applications under subsection (1) of this section in England and Wales, which limit the granting of permission for judicial review, or relief "if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred". This is because it is highly likely that the outcome for the OEP itself would not have been different if the public authority had behaved differently.
358. Subsection (4) provides that a public authority which was the subject of a judicial review, or statutory review, commenced by the OEP under this section must publish a statement within two months of the conclusion of proceedings (including any appeal). This statement must set out any steps the public authority intends to take as a result of the proceedings.
359. Subsection (5) requires a public authority to publish the statement as provided for in subsection (4) within two months of the day that proceedings, including any appeal, conclude.
360. Subsections (6) and (7) provide that the OEP may apply to participate in third party judicial review or statutory review proceedings (including appeal proceedings) against a public authority concerning an alleged failure to comply with environmental law, as defined under section 46, as long as the OEP considers that the alleged failure, if it occurred, would be serious. This could include scenarios where the OEP agrees that the public authority has failed to comply with environmental law, but also where it may disagree that this is the case; the OEP may have useful expertise to contribute in each case.
361. Subsection (8)(a) provides that, other than in section 38, in Part 1 of the Act reference to "an application for judicial review" includes an application to the High Court, or the Court of Session in Scotland.
362. Subsection (8)(b) provides that in this section a "statutory review" means a claim for such a review under the provisions set out in sub-paragraphs (i) to (iv).

Section 40: Duty of the OEP to involve the relevant Minister

363. This section deals with how the OEP should operate in situations where the subject of an information or decision notice under sections 35 and 36 respectively, or of an application for environmental review under section 38, is not a Minister of the Crown.
364. Where the recipient of an information or decision notice is not a Minister of the Crown, subsection (1)(a) requires the OEP to provide a copy of the notice to the relevant Minister, as well as a copy of any correspondence between the OEP and the public authority concerned that relates to the notice. This is to ensure that the government remains informed about the matter and is able to contribute if appropriate. Paragraph (b) of this subsection also requires that the OEP must provide the recipient of a notice with a copy of any correspondence it has with the relevant Minister regarding the notice. In each case, the OEP is not required to share correspondence which is sent as part of these requirements. (In other words, it would not be required to share copies of copies of notices, or of correspondence which relates to notices by virtue of this section.)
365. Subsection (2) provides that obligations to provide copies of notices or correspondence under subsection (1) will not apply where the OEP considers that to do so would not be in the public interest.
366. Where the OEP makes an application for environmental review, judicial review, or statutory review against a public authority that is not a Minister of the Crown, subsection (3)(a) provides that the OEP must provide the relevant Minister with a copy of the application. Subsection (3)(b) additionally requires the OEP to provide the Minister with a statement which sets out whether the OEP considers the Minister should participate in the review proceedings, for example as an interested party. The OEP may consider such Ministerial involvement appropriate in particular cases, even where the Minister is not the defendant (that is, the party responsible for compliance with the environmental law in question), for various reasons. For instance, delivery bodies may adopt an approach to implementation influenced by factors or messaging emanating from central government. To this extent, it may be helpful for Ministers to provide input to the proceedings.
367. Ministerial involvement in proceedings where appropriate would have similarities to EU infraction cases, where the action is brought against the UK or other Member State government regardless of which particular public authority is at fault. Subsection (3)(b) essentially therefore provides for the OEP to offer a formal statement of its view as to the desirability of the Minister’s participation, for the Minister’s consideration. The OEP cannot require the Minister’s participation under this section. Further details concerning the addition of parties to legal proceedings in environmental reviews brought by the OEP will be a matter for the Civil Procedure Rules.
368. Throughout this section, "the relevant Minister" has the meaning given in section 33(11).

Section 41: Public statements

369. This section deals with requirements on the OEP to publish statements when it takes certain enforcement actions.
370. Subsection (1) provides that the OEP must publish a statement, for example in the form of a press release, whenever it serves an information or decision notice, applies for environmental review, judicial review, or statutory review, or applies to intervene in judicial review. This subsection also sets out the information that this statement must contain.
371. Subsection (2) provides that the OEP does not need to publish a statement if it considers that it would not be in the public interest to do so. For example, the OEP might judge it to be not in the public interest to publish a statement about its enforcement activities that would prejudice the protection of personal or confidential data.
372. The provisions of this section are intended to provide an appropriate degree of transparency as regards the enforcement action that the OEP is taking and against whom. The European Commission also publishes press statements at key stages of the infraction process, although this is not a legal requirement on the European Commission as it will be for the OEP.

Section 42: Disclosures to the OEP

373. To assist the OEP in carrying out its investigatory functions, subsection (1) of this section enables persons whose functions include functions of a public nature to provide information to the OEP notwithstanding any obligation of secrecy, either statutory or otherwise, when that information is in connection with an investigation under section 33, an information notice or a decision notice.
374. Subsection (2) provides for particular circumstances in which a person is not required to provide the OEP with information.
375. This disapplication of obligations of secrecy is limited: it applies only to the provision of information to the OEP, and not to anyone else, and it applies only under the conditions set out in subsection (1).
376. Subsection (3) makes similar provision for a relevant ombudsman. The meaning of a "relevant ombudsman" is set out in section 23(9).
377. Subsection (4) excludes data protection legislation from the provisions in this Part of the Act. This includes any disclosure of information that takes place under section 43 and requires it to be compliant with data protection law.
378. Subsection (5) defines what is meant by "the data protection legislation".

Section 43: Confidentiality of proceedings

379. This section deals with the circumstances in which the OEP and public authorities may or may not disclose information regarding an investigation whilst the OEP is carrying out enforcement proceedings. The provisions have been designed to provide adequate protection of confidential information during those enforcement proceedings, whilst ensuring compliance with the pillar of the Aarhus Convention that is concerned with access to environmental information, by the Environmental Information Regulations 2004 (EIR) and in Scotland by the Environmental Information (Scotland) Regulations 2004, which provide public access to environmental information.
380. Subsection (1)(a) sets out that the OEP must not disclose information which has been provided by a public authority as a response to a request for information from the OEP in an information notice (as provided for in section 35(3)(b)), or otherwise obtained by the OEP on the basis of the duty on public authorities to co-operate, provided for in section 27(1)). Under paragraph (b) of this subsection, the OEP cannot disclose any correspondence between the OEP and the recipients of information or decision notices that relates to those particular notices, including the information and decision notices themselves. Circumstances where provisions in subsection (1) do not apply, and the OEP is able to disclose the information, are covered under subsection (2). For example, the restriction in subsection (1) does not apply to a disclosure once the OEP has concluded a case has been closed and that it intends to take no further steps.
381. Under subsection (3), a public authority in receipt of an information or a decision notice may not disclose the notice or any correspondence between the OEP and that, or any other, public authority relating to that notice. Subsection (4) sets out the circumstances where the restriction in subsection (3) does not apply to a disclosure. This relates to cases such as where consent has been obtained, where the disclosure is required for the purposes of an investigation under section 33, where disclosure is required to be able to respond to an information or decision notice, or where it is connected to an environmental review or judicial review proceedings.
382. Subsection (5) sets out that the OEP can only give its consent for disclosure of an information or a decision notice when it has concluded it intends to take no further steps under this Chapter.
383. Subsection (6) ensures that, if consent has been requested by a public authority, the OEP cannot withhold that consent for disclosure of correspondence if it has concluded it intends to take no further steps under this Chapter.
384. Subsection (7) provides that when information referred to in subsection (1) and held by the OEP, or subsection (3) and held by a public authority, is "environmental information" in accordance with the EIR it is held, for the purposes of these regulations, in connection with confidential proceedings. Whilst enforcement proceedings by the OEP are ongoing, the information referred to in subsection (1) and (3) will be capable of attracting an exception in the EIR that provides that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law.
385. This section does not override the EIR which will still apply to the OEP and other public bodies. The OEP will be required to consider requests for disclosure of information made under the EIR on a case by case basis, including assessing whether any appropriate exception will apply.
386. This section will also not override or disapply other existing legislative provision on public access to information such as the Freedom of Information Act 2000 or Data Protection Act 2018. The OEP will therefore be subject to requirements set out in existing law which govern access to, and protection of, information. This will include the ability to rely on exemptions in existing legislation where appropriate and necessary.
387. This section should also not act as a barrier to the transfer of information, whether by the OEP or other bodies, to The National Archives under the Public Records Act 1958 in accordance with the existing statutory scheme. The OEP may seek to ensure the efficient transfer of information by preparing a joint working protocol with The National Archives.

Chapter 3: Interpretation of Part 1

388. There is no universal definition of "the environment". Although a diverse array of definitions exists, each has been designed to describe the environment in a particular context, or from a specific perspective. A clear definition, therefore, is needed to determine the scope of the OEP. Sections 44 to 46 define the "natural environment", "environmental protection" and "environmental law" for the primary purpose of determining the range of legislation that falls within the remit of the OEP, and with respect to which the OEP can exercise its scrutiny, advice, complaints and enforcement functions, and for the purposes of other provisions in Part 1 of the Act. The definitions in sections 44 to 46 are not intended to have any application beyond the interpretation of this Act.
389. These definition are also relevant to several other sections in Part 1 of the Act, for example the provisions concerning environmental improvement plans and targets.

Section 44: Meaning of "natural environment"

390. In setting out the matters that are each considered to be environmental protection, section 44 uses the term "natural environment". The definition provided in the section includes living elements of the environment, namely plants, wild animals, other living organisms, and their habitats – both terrestrial and marine. However, it is not intended to include domesticated animals such as livestock and pets. The definition also includes non-living elements, namely air, water and land. This includes both the marine and terrestrial environments. "Water" will include seawater, freshwater and other forms of water, while "air" will include the atmosphere (including, for example, the ozone layer) and "land" will include soil, geological strata and other features. In addition, "land", as defined in the Interpretation Act 1978, includes "land covered with water" and therefore will include the sea bed. Buildings and other structures are excluded from the meaning of "land", however water and air are included regardless of whether they are outside or inside a building or other structure.
391. The section also sets out that systems, cycles and processes through which the elements listed above interact are also included within this definition of the natural environment. This therefore includes ecosystems, and hydrological and geomorphological processes.

Section 45: Meaning of "environmental protection"

392. This section defines what is meant by "environmental protection". This definition applies throughout this Part.
393. Paragraphs (a) to (d) set out a list of matters which are each considered to be "environmental protection". When reading this list, reference should be made to the definition of the "natural environment" in section 44.
394. Environmental protection is defined as any of the following: (a) protecting the natural environment from the effects of human activity; (b) protecting people from these effects; (c) maintaining, restoring or enhancing the environment; and (d) monitoring, assessing, considering, advising or reporting on the above points.

Section 46: Meaning of "environmental law"

395. This section deals specifically with the definition of "environmental law", and therefore the scope of the OEP’s functions that depend upon this definition.
396. Subsection (1) defines "environmental law", for the purposes of this Part, as any legislative provision to the extent that the provision is mainly concerned with environmental protection as defined in section 43 and is not explicitly excluded under subsection (2).
397. Subsection (1) uses the term "legislative provision", which is a reference to UK legislation, and can cover specific sections or subsections of an Act, regulations or other forms of legislation. As such, the effect of this subsection is that the OEP will not have a statutory function to assess compliance with purely international environmental law. Rather, its remit will be limited to enforcing UK legislation that falls under the definition of environmental law, including legislation that implements international commitments.
398. The definition of environmental law applies at the level of legislative provisions (that is, the whole or any element of an Act or regulations). This means that, even if most of an Act or set of regulations does not meet these conditions, to the extent that any specific provisions in the Act or regulations do meet the conditions they should be considered as "environmental law".
399. The only matters explicitly and expressly excluded from the definition of environmental law are those which are concerned with an excluded matter listed under subsection (2) and those excluded by subsection (3). Subsection (3) provides that, other than for the purposes of section 20, devolved legislative provisions as defined in subsection (4) are excluded from the definition of environmental law. Unless so expressly excluded, any other law can be considered to determine whether individual legislative provisions are "mainly concerned" with environmental protection. This does mean that within broadly environmental policy areas, whilst many provisions may meet these criteria, there may be certain provisions that will not be mainly concerned with environmental protection, and therefore not constitute environmental law.
400. For example, the Forestry Act 1967 contains examples of provisions that would be considered to be mainly concerned with environmental protection, and therefore constitute environmental law, as well as provisions which would not. Section 1(3A) of the Forestry Act 1967, for instance, places a duty on the appropriate authority to endeavour to achieve a balance between its functions in relation to afforestation and timber supply and production, and "the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest". As this places a duty on a public authority concerning the conservation of the natural environment, this provision would fall within scope. However, some other provisions within this Act would not, such as section 1(2), which charges the appropriate forestry authority "with the general duty of promoting the interests of forestry, the development of afforestation and the production and supply of timber and other forest products". This provision is mainly concerned with the promotion of the forestry sector and the production and supply of timber, rather than an element of environmental protection as listed in section 45, and as such would not be considered to fall within the definition of environmental law.
401. Another example is planning legislation. Whilst provisions concerning environmental impact assessment and strategic environmental assessment are clearly concerned with environmental protection as set out in section 45, and therefore will fall within the definition of environmental law, most other areas of planning legislation are not mainly concerned with environmental protection, and therefore will not fall within the definition.
402. It will be for the OEP to assess whether or not it considers a legislative provision to fall under the definition on a case by case basis when determining whether or not it has legal powers to act in that area. In most cases, it is expected that the answer to this question will be clear, and agreed by all parties. However, there may be cases of uncertainty or disagreement, and in these instances it may ultimately be for the courts to decide whether a specific provision falls within the definition or not.
403. Subsection (2) sets out matters that are explicitly excluded from the definition of environmental law:
     • Disclosure of or access to information. These matters are excluded under paragraph (a) in order to avoid overlap between the remit of the OEP and that of the Information Commissioner’s Office, which oversees and where necessary takes action to enforce public authorities’ compliance with the Environmental Information Regulations.
     • The armed forces or national security (paragraph (b)).
     • Legal provisions concerning taxation (paragraph (c)). The term "taxation" in this context refers to taxes in a legal sense, and therefore does not include other regulatory schemes that involve fees and charges for purposes other than taxation, such as the plastic bag charge or the imposition of fees to cover the cost of a regulatory regime. Such schemes are not automatically excluded from the Act’s definition of "environmental law".
     • Paragraph (c) also excludes provisions concerning spending or the allocation of resources within the government from the definition of "environmental law". As such, all finance acts are excluded.

404. Subsection (4) defines what is meant by "devolved legislative provision" as any provision which is contained in or created by legislation of the three devolved Assemblies and Parliaments, or which otherwise falls within their legislative competence.
405. Subsection (5) provides that the Secretary of State may use secondary legislation to specify legislative provisions which do or do not fall within the definition of "environmental law" in subsection (1). Provision in this way could be used if necessary in the light of experience for instance to resolve an ambiguity about how the definition applies to particular legislation. Subsection (6) requires that the Secretary of State must consult the OEP, and any other persons the Secretary of State considers appropriate, before using this power to specify provisions.
406. Subsection (7) provides that any such provision made under subsection (5) would be made through a statutory instrument subject to the affirmative resolution procedure. This means it must be laid before and approved by a resolution of each House of Parliament.

Section 47: Interpretation of Part 1: general

407. This section defines various terms used throughout Part 1.

Part 2: Environmental Governance: Northern Ireland

Section 48: Improving the natural environment: Northern Ireland

408. Section 48 introduces Schedule 2, which includes provision for environmental improvement plans and policy statements on environmental principles in Northern Ireland.

Section 49: The Office for Environmental Protection: Northern Ireland

409. Section 49 introduces Schedule 3, which makes provision for the functions of the OEP in terms of its activities in Northern Ireland, as well as amendments to this Act to reflect those functions.

Part 3: Waste and Resource Efficiency

Section 50: Producer responsibility obligations

410. Section 50 introduces Schedule 4, which allows the relevant national authority to make regulations about producer responsibility obligations and the enforcement of those regulations.
411. Subsections (2) and (3) set out who the "relevant national authority" is. This is the Secretary of State in relation to England, the Scottish Ministers in relation to Scotland, the Welsh Minsters in relation to Wales, and the Department of Agriculture, Environment and Rural Affairs in relation to Northern Ireland. The Secretary of State may make regulations on behalf of Wales, Scotland, or Northern Ireland, but only with the relevant Minister’s or Department’s consent.
412. Subsections (4) and (5) make provision for regulations made under this Schedule to be subject to the affirmative resolution procedure, unless the regulations contain only provision for, or in connection with, varying targets, in which case they are subject to the negative resolution procedure.
413. Subsection (6) repeals the current primary legislation that deals with producer responsibility in Great Britain and Northern Ireland. That legislation is replaced by this section and Schedule 4.

Section 51: Producer responsibility for disposal costs

414. Section 51 introduces Schedule 5, which allows the relevant national authority to make regulations that require those involved in manufacturing, processing, distributing or supplying products or materials to meet, or contribute to, the disposal costs of those products.
415. Subsections (2) and (3) sets out who the "relevant national authority" is. This is the Secretary of State in relation to England, the Scottish Ministers in relation to Scotland, the Welsh Minsters in relation to Wales, and the Department of Agriculture, Environment and Rural Affairs in relation to Northern Ireland. The Secretary of State may make regulations on behalf of Wales, Scotland, or Northern Ireland, but only with the relevant Minister’s or Department’s consent.
416. Subsection (4) makes provision for regulations made under Schedule 5 to be subject to the affirmative resolution procedure.

Section 52: Resource efficiency information

417. This section gives effect to Schedule 6, which gives the relevant national authority the power to make regulations that set requirements for manufacturers and producers to provide information about the resource efficiency of their products. The purpose of the power is to enable the regulation of products that have a significant impact on the natural environment at any stage of their lifecycle, with the object of reducing that impact primarily through ensuring consumers are supplied with information about the resource efficiency of those products in order to drive more sustainable consumption. Regulations may impose requirements on any person connected with a product’s supply chain, and in relation to any type of product other than some specified exceptions.
418. Subsection (1) sets out that the Schedule is divided into two parts. Part 1 gives power to the relevant national authority to make regulations about requiring resource efficiency information. Part 2 gives the relevant national authority power to make regulations about the enforcement of these information requirements.
419. Subsection (2) defines the "relevant national authority" in each territory.
420. Subsection (3) makes clear that regulations made under Schedule 6 by either Welsh Ministers, Scottish Ministers or Department of Agriculture, Environment and Rural Affairs can only contain provisions that are within their legislative competence.
421. Subsection (4) makes clear that the Secretary of State must obtain the consent of the appropriate national authority before making provisions in regulations that fall under the legislative competence of another national authority.
422. Subsection (5) states that regulations under Schedule 6 are subject to affirmative procedure.
423. This section and Schedule 6 extend and apply to England and Wales, Scotland and Northern Ireland.

Section 53: Resource efficiency requirements

424. This section gives effect to Schedule 7, which gives the relevant national authority the power to make regulations that set resource efficiency requirements that products are required to meet. The purpose of the power is to enable the regulation of products that have a significant impact on the natural environment at any stage of their lifecycle, with the object of reducing that impact primarily through setting requirements relating to durability, reparability and recyclability, and the recycled content of products and materials. Regulations may impose requirements on any person connected with a product’s supply chain, and in relation to any type of product other than some specified exceptions.
425. Subsection (1) sets out that the Schedule is divided into two Parts. Part 1 gives power to the relevant national authority to make regulations about resource efficiency standards. Part 2 will give the relevant national authority power to make regulations about the enforcement of these standards.
426. Subsection (2) defines the "relevant national authority" in the same way as in section 50.
427. Subsection (3) makes clear that regulations made under this Schedule by either Welsh Ministers, Scottish Ministers or the Department of Agriculture, Environment and Rural Affairs can only contain provisions that are within their legislative competence.
428. Subsection (4) makes clear that the Secretary of State must obtain the consent of the appropriate national authority before making provisions in regulations that fall under the legislative competence of another national authority.
429. Subsection (5) states that regulations made under this Schedule are subject to the affirmative procedure.
430. This section and Schedule 7 extend and apply to England and Wales, Scotland and Northern Ireland.

Section 54: Deposit schemes

431. Section 54 and Schedule 8 enable the relevant national authority – namely, the Secretary of State, in relation to England, Welsh Ministers, in relation to Wales, and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, in relation to Northern Ireland – to make regulations establishing deposit schemes. Subsections (3) and (4) allow the Secretary of State to make regulations on behalf of Wales and Northern Ireland, subject to their consent. Subsections (5) and (6) outline the parliamentary procedure for regulations establishing a deposit scheme. Regulations are subject to the negative resolution procedure, except in the below cases when they are subject to the affirmative resolution procedure:
     • the regulations establish a deposit scheme for the first time;
     • the regulations are the first to provide for enforcement of a deposit scheme;
     • the regulations create a criminal offence;
     • the regulations provide for new civil sanctions; or
     • the regulations increase the amount or the maximum amount of a fine or monetary penalty, or change the basis on which an amount of maximum amount of a fine or monetary penalty is to be determined.

432. Subsection (7) and paragraph 1(2) of the Schedule set out what a deposit scheme is. This is a scheme under which a person supplied with a deposit item by a scheme supplier (this might be a producer, retailer or distributor) by way of sale or in connection with the supply of goods or services pays the supplier an amount (the deposit) and a person who gives a deposit item to a scheme collector (this might be a retailer or other return point) is entitled to be paid a refund in respect of that item. This subsection and paragraph 4(2) of the Schedule describe the functions of a deposit scheme administrator, including the powers for a scheme administrator to interact, engage and make payments to a scheme administrator established for a deposit scheme in Scotland.

Section 55: Charges for single use plastic items

433. This section introduces Schedule 9 and allows for the making of regulations about charges for single use items in England and Wales and single use plastic items in Northern Ireland.
434. Subsection (2) defines who the relevant national authority is for the purposes of making regulations under the Schedule; this is the Secretary of State, in relation to England, Welsh Ministers, in relation to Wales and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, in relation to Northern Ireland.
435. Subsection (3) sets out the circumstances in which the affirmative procedure applies to the making of regulations (namely, where the first set of regulations is made by the relevant national authority under the Schedule, where the regulations contain provision about charging for a new item, where the regulations contain provisions imposing or providing for the imposition of new civil sanctions, or where the regulations increase the maximum amount of a monetary penalty or change the basis on which it is to be determined.) Otherwise, regulations under the Schedule are subject to the negative resolution procedure.

Section 56: Charges for carrier bags

436. This section amends Schedule 6 to the Climate Change Act 2008 ("the 2008 Act") by inserting a new paragraph 6A. New paragraph 6A makes provision for regulations made under Schedule 6 by the Secretary of State in relation to England, and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland in relation to Northern Ireland, to require sellers of single use carrier bags to register with an administrator. The regulations may also make provision about applications for registration, the period of registration, the cancellation of registration, and the payment of registration fees, including the amount.
437. Schedule 6 to the 2008 Act contains enabling powers conferred on the relevant national authority to make regulations about charges for single use carrier bags. Section 77(3) of the 2008 Act defines the "relevant national authority" as the Secretary of State in relation to England, the Welsh Ministers in relation to Wales, and the Department of the Environment in Northern Ireland in relation to Northern Ireland. However, new paragraph 6A does not apply to regulations made by Welsh Ministers in relation to Wales.

Section 57: Separation of waste

438. Section 57 concerns the separation of waste for recycling. It amends the Environmental Protection Act 1990, in particular replacing the current section 45A and inserting new sections 45AZA to 45AZG. It also amends sections 41 (powers to make charging schemes) and 108 (powers of entry) of the Environment Act 1995.
439. Subsection (2) inserts a new subsection (4A) with additional definitions into section 30 (definitions of authorities) of the Environmental Protection Act 1990. These define "English waste disposal authority" and "English waste collection authority" as those whose area is in England. A waste collection authority is defined in section 30(3) of the Environmental Protection Act 1990. Given the section 45A duties apply to arrangements made by English waste collection authorities only, this has the effect of limiting the changes in the new section 45A of the Environmental Protection Act 1990 to waste collection authorities in England.
440. Subsection (3) amends section 33ZA of the Environmental Protection Act 1990, which relates to fixed penalty notices, to omit the definition of "English waste collection authority". This is because the definition is now provided in the amended section 30 of the Environmental Protection Act 1990.
441. Subsection (4) amends the Environmental Protection Act 1990 to provide for separate collection of recyclable waste in England. It replaces section 45A with new sections 45A to 45AZG.

New section 45A England: separate collection of household waste

442. New section 45A concerns separate collection arrangements for household waste for English waste collection authorities. It only applies where a waste collection authority is required to collect household waste in its area under section 45(1)(a) of the Environmental Protection Act 1990. It does not apply if new section 45AZA applies, which relates to the collection of household waste from non-domestic properties.
443. Subsection (2) states that arrangements for the collection of household waste must meet the conditions in subsections (3) to (8), unless there is a relevant exemption in regulations made under new section 45AZC. These first two conditions (set out in subsections (3) and (4)) require that recyclable household waste must be collected separately from other household waste for recycling or composting. In other words, recyclable waste must be separated from waste that it is destined for incineration or landfill so that the separately collected waste can be recycled or composted. The third condition (set out in subsection (5)) requires that the different recyclable waste streams are collected separately from each other unless subsection (6) applies.
444. Subsection (6) explains that two or more recyclable waste streams may be collected together if it is not technically or economically practicable to collect them separately from each other, or if collecting the waste separately has no significant environmental benefit. In other words, different recyclable waste streams may be collected together where one of the conditions in paragraph (a) or (b) is met.
445. Subsection (7) makes clear that under no circumstances may the dry recyclable waste streams (glass, metal, plastic, paper and card) be mixed with the other recyclable waste streams (food and garden waste). This is to minimise or prevent contamination of dry recyclable materials by food or garden waste.
446. Subsection (8) stipulates that food waste must be collected from households at least once a week by waste collection authorities.
447. Subsection (9) inserts a new definition of "recyclable household waste". This is defined as household waste (as defined in section 75(5) of the Environmental Protection Act 1990) that falls within any of the recyclable waste streams stated in subsection (10) and as described in regulations. The regulations will provide further detail about what materials within a recyclable waste stream are suitable for recycling. Some materials may on the face of it fall within a subsection (10) waste stream, but will not in fact be suitable for recycling or composting.
448. Subsection (10) states that the recyclable waste streams to be collected separately from other household waste are glass, metal, plastic, paper and card, food waste and garden waste.

New section 45AZA England: separate collection of household waste from relevant non-domestic premises

449. Subsection (1) states that new section 45AZA applies to arrangements to collect household waste from certain non-domestic premises either by persons acting in the course of business, such as a commercial waste collector, or by persons exercising a public function, such as a waste collection authority acting under section 45(1)(a) of the Environmental Protection Act 1990. Non-domestic premises are defined in subsection (11) (see below).
450. Subsection (2) sets out that the arrangements must meet the conditions in subsections (3) to (7) unless there is a relevant exemption in regulations made under new section 45AZC. The first two conditions (set out in subsections (3) and (4)) require that recyclable household waste must be collected separately from other household waste for recycling or composting. In other words, recyclable waste must be separated from waste that it is destined for incineration or landfill with the intention of it being recycled or composted. The third condition in subsection (5) requires that the different recyclable waste streams are collected separately unless subsection (6) applies.
451. Subsection (6) sets out that two or more recyclable waste streams may be collected together if it is not technically or economically practicable to collect them separately from each other, or if collecting the waste separately has no significant environmental benefit. In other words, different recyclable waste streams may be collected together where one of the conditions in paragraph (a) or (b) are met.
452. Subsection (7) makes clear that under no circumstances may certain dry waste streams (glass, metal, plastic, paper and card) be collected mixed with the other recyclable waste streams (food waste). This is to minimise or prevent contamination of dry recyclable materials by food waste.
453. Subsection (8) clarifies that persons who present waste for collection must present it in accordance with this section. This means that there is a duty on the persons presenting the waste for collection as well as the persons collecting the waste. However, subsection (8) does not apply where that person is already subject to an equivalent duty as a result of a notice served under section 46 of the Environmental Protection Act 1990 regarding receptacles for household waste.
454. Subsection (9) inserts a definition of "recyclable household waste". This is defined as household waste (as defined in section 75(5) of the Environmental Protection Act 1990) that falls within one of the recyclable waste streams set out in subsection (10), which is of a description specified in regulations. The regulations will provide further detail about what materials within a recyclable waste stream are suitable for recycling. Some materials may on the face of it fall within a subsection (10) waste stream, but in fact not be suitable for recycling or composting.
455. Subsection (10) states that the recyclable waste streams to be collected separately from other household waste are glass, metal, plastic, paper and card, and food waste.
456. Subsection (11) adds a definition of "relevant non-domestic premises". This is defined to include residential homes, schools, universities or other places of education and hospitals and nursing homes. Subsection (11)(d) gives the Secretary of State the powers to specify additional types of relevant non-domestic premises in regulations. However, subsection (12) states that such regulations must not define domestic properties as relevant non-domestic premises.

New section 45AZB England: separate collection of industrial or commercial waste

457. Subsection (1) states that new section 45AZB applies to arrangements for collecting industrial or commercial waste from premises in England, either by persons acting in the course of business, such as a commercial waste collector, or by persons exercising a public function, such as a waste collection authority.
458. Subsection (2) defines "relevant waste" as waste that is similar in nature and composition to household waste. Where waste is relevant waste, the collection arrangements must meet the conditions in subsections (3) to (7) unless there is a relevant exemption in regulations made under this section. The first two conditions (set out in subsections (3) and (4)) require that recyclable relevant waste is collected separately from other waste for the purpose of recycling or composting. In other words, recyclable relevant waste must be separated from waste that it is destined for incineration or landfill with the intention of it being recycled or composted. The third condition (set out in subsection (5)) requires that the different recyclable waste streams are collected separately, unless subsection (6) applies or unless an exemption applies in regulations made under this section.
459. Subsection (6) explains that two or more recyclable waste streams may be collected together if it is not technically or economically practicable to collect them separately from each other, or if collecting the waste separately has no significant environmental benefit. In other words, different recyclable waste streams may be collected together where one of the conditions in paragraph (a) or (b) are met.
460. Subsection (7) makes clear that under no circumstances may certain dry waste streams (glass, metal, plastic, paper and card) be collected mixed with other recyclable waste streams (food waste). This is to minimise or prevent contamination of dry recyclable materials by food waste.
461. Subsection (8) states that the persons who present waste for collection must present it in accordance with the arrangements and conditions set out in this section. This means that there is a duty on the persons presenting the waste for collection as well as the persons collecting the waste. However, subsection (8) does not apply where that person is already subject to an equivalent duty as a result of a notice served under section 47 of the Environmental Protection Act 1990 regarding receptacles for commercial or industrial waste.
462. Subsection (9) inserts a definition of "recyclable relevant waste". This is defined as relevant waste that falls within one of the recyclable waste streams set out in subsection (10) and is also of a description specified in regulations. The regulations will provide further detail about what materials within a recyclable waste stream are suitable for recycling.
463. Subsection (10) defines "recyclable waste streams" as glass, metal, plastic, paper and card and food waste.

New section 45AZC Sections 45A to 45AZB: powers to exempt and extend

464. New section 45AZC concerns powers for the Secretary of State to make regulations exempting duty holders from certain separate collection duties. It also allows the Secretary of State, if certain conditions are met, to extend the duties to additional recyclable waste streams, for example separate collection of textiles.
465. Subsection (1)(a) allows the Secretary of State to make regulations to create exemptions from the requirement to collect all recyclable waste streams separately from each other under new sections 45A to 45AZB. In other words, the Secretary of State can make regulations so that specific recyclable waste streams (such as plastics and metal) can always be collected together, without the requirement to consider the specific technical or economic practicability or environmental benefit in subsection (6) of the relevant section.
466. Subsection (1)(b) allows the Secretary of State to make regulations to create exemptions from the application of the whole of new section 45AZA (separate collection of recyclable household waste from non-domestic premises) or 45AZB (separate collection of recyclable relevant waste). This is to enable the Secretary of State to exempt certain categories of persons from having to comply with these conditions, either at all or for a set period of time.
467. Subsection (1)(c) also allows the Secretary of State to make regulations to create exemptions from the application of new section 45AZA or new section 45AZB in relation to specific recyclable waste streams. This is to enable the Secretary of State to exempt certain categories of persons from having to comply with the conditions set out in new section 45AZA or new section 45AZB in respect of a particular recyclable waste stream such as food waste.
468. Subsection (2) sets a condition that the Secretary of State may exercise powers under subsection (1)(a) only if satisfied that collecting two or more materials together would not significantly reduce the potential for the recyclable household waste or relevant recyclable waste to be recycled or composted. This is to ensure mixed collections are only used where there is no impact on the ability to recycle the materials concerned. For example, collecting glass together with paper can impact on the recycling of paper, as very fine glass shards cannot currently be readily separated from the paper fibres and can lead to damage of paper recycling machinery.
469. Subsection (3)(a) allows the Secretary of State to amend new sections 45A to 45AZB by regulations, in order to add further recyclable waste streams to subsection (10) of those sections. This is so that, as recycling technology improves, it may be possible to recycle items that are not widely recycled now. There are further conditions that must be satisfied so that the Secretary of State can exercise this power. These are set out in subsection (4) below.
470. Subsection (3)(b) allows the Secretary of State to set out in regulations the extent to which these additional recyclable waste streams need to be collected separately or are able to be collected together with other recyclable waste streams. This is because it may be appropriate to collect an additional recyclable waste together with some of the existing recyclable waste streams or, alternatively, entirely separately. The regulations would be able to specify this.
471. Subsection (4) sets out that the Secretary of State may only exercise the power to add further recyclable waste streams to new sections 45A(10), 45AZA(10) or 45AZB(10) if they are satisfied that the waste is suitable for recycling or composting, there will be an environmental benefit to recycling or composting it, that all English waste collection authorities are able to make arrangements to collect that new recyclable waste stream, and that it will be possible for the new recyclable waste stream to be sold on for recycling after its collection.
472. Subsection (5) contains statutory consultation requirements. Before making regulations under this section to add further recyclable waste streams, the Secretary of State must consult the organisations named. These are the Environment Agency, local authorities, and anyone else the Secretary of State considers appropriate. This is a non-exhaustive list. The consultation requirement in inserted section 45AZE(5) of the Environmental Protection Act 1990 may be met by a consultation before this section comes into force.

New section 45AZD Sections 45A to 45AZB: duties of waste collectors

473. New section 45AZD introduces additional duties on persons who collect household waste, or commercial and industrial waste that is like household waste in nature and composition.
474. Under subsection (1), where any person collects or proposes to collect waste under arrangements in new sections 45A to 45AZB, and they will be collecting two or more of the recyclable waste streams co-mingled rather than individually separated, on the basis that it would not be technically or economically practicable to collect individually separated or that there would be no significant environmental benefit in collecting it individually separated, then they will need to carry out a written assessment under subsection (2) of why they have relied on new section 45A(6), 45AZA(6) or 45AZB(6).

New section 45AZE Sections 45 to 45AZD: guidance

475. Subsection (1) allows the Secretary of State to issue guidance about the duties imposed by sections 45 to 45AZD.
476. Subsection (2) is a non-exhaustive list of what the Secretary of State’s guidance may contain. This includes guidance on when it may not be technically or economically practicable to collect recyclable household waste or recyclable relevant waste streams separately, or where that separate collection may have no significant environmental benefit; how often household waste other than food waste should be collected; the kinds of waste which are relevant waste for the purposes of new section 45AZB (separate collection of industrial or commercial waste); and assessments made under new section 45AZD (duties of waste collectors).
477. Subsection (3) states that the guidance may make different provision in relation to new sections 45A to 45AZB. This is to enable the Secretary of State to take account of the fact that there might be different circumstances depending on whether it is household waste from domestic properties, household waste from non-domestic premises, or industrial and commercial waste being collected.
478. Subsection (4) contains statutory consultation requirements. Before issuing guidance, the Secretary of State must consult the organisations listed. The list includes the Environment Agency, English waste collection authorities (local authorities), and others that the Secretary of State considers appropriate. It is a non-exhaustive list. The consultation requirement in inserted section 45AZE(4) of the Environmental Protection Act 1990 may be met by a consultation before this section comes into force.
479. Subsection (6) requires that waste collection authorities, and any party to arrangements regarding the collection of recyclable waste under these sections, must have regard to the guidance.
480. Subsection (7) requires the Secretary of State to lay guidance regarding the separation of waste before Parliament before the guidance is published.

New section 45AZF Sections 45AZA and 45AZB: compliance notices

481. New section 45AZF concerns compliance notices that the Environment Agency may issue in relation to the duties in new sections 45AZA and 45AZB.
482. Subsection (1) concerns the Environment Agency issuing compliance notices to persons, other than waste collection authorities, who are parties to the arrangements to collect household waste from non-domestic premises (new section 45AZA duties). This will include hospitals, schools, universities and nursing homes. Compliance notices can also be issued to persons, other than waste collection authorities, who are parties to arrangements to collect industrial and commercial waste that is similar in nature and composition to household waste (new section 45AZB duties). The Environment Agency may issue a compliance notice where a person is failing to comply with their duties in relation to the collection of waste under new sections 45AZA or 45AZB.
483. Subsection (2) allows the Environment Agency to issue a compliance notice requiring specified steps to rectify the failure within a specified time. This is so that the person in receipt of the notice can take the action detailed in the notice, so that the failure does not carry on.
484. Subsection (3) sets out what the compliance notice must include in order to be valid. This includes the specific failures to comply with new section 45AZA (household waste from non-domestic premises) or new section 45AZB (industrial and commercial waste), the specific steps to be taken to sort out the failure, the time period within which these steps must be taken, and information on the rights of appeal.
485. Subsection (4) sets out that if a person fails to comply with a compliance notice, they are committing an offence. Under subsection (5), a person who commits such an offence will have to pay a fine if convicted.

New section 45AZG Sections 45AZA and 45AZB: appeals against compliance notices

486. New section 45AZG concerns appeals against compliance notices (for which see above).
487. Subsection (1) sets out that a person who is given a compliance notice may appeal to the First-tier Tribunal against the notice, or any requirement in the notice.
488. Subsection (2) clarifies that the notice will take effect unless a tribunal decides otherwise. This means that the compliance notice will still have effect, even if the person appeals, until the tribunal quashes or varies the notice or otherwise decides that the notice should not have effect.
489. Subsection (3) lists the steps that the tribunal may take in relation to a compliance notice that has been appealed. The tribunal may quash, confirm or vary the notice or requirement. The tribunal may take any steps the Environment Agency could take in relation to the failure giving rise to the notice or requirement. The tribunal may also send any matter relating to the notice or requirement to the Environment Agency.
490. Subsection (5) of section 57 amends section 46(2) of the Environmental Protection Act 1990, which relates to receptacles for household waste. This allows Welsh collection authorities to require persons to use separate bins (or compartments) for waste that will be recycled and for waste that will not be recycled. It also allows English waste collection authorities to require persons to use separate bins (or compartments) to help that authority to comply with its duties under new sections 45A or 45AZA.
491. Subsection (6) of section 57 inserts additional wording into section 47(3) of the Environmental Protection Act 1990, which relates to receptacles for commercial or industrial waste. This wording enables an English waste collection authority to require separate bins or bins with separate compartments in order to comply with the separate collection requirements set out in new section 45AZB relating to commercial and industrial waste.
492. Subsection (7) of section 57 inserts an additional entry relating to regulations made under new section 45AZC into the table set out in subsection (2) of new section 160A of the Environment Protection Act 1990. New section 160A deals with parliamentary procedure for orders and regulations made under that Act. The effect of the amendment is that any regulations made under new section 45AZC will be subject to the affirmative parliamentary procedure.
493. Subsection (8) of section 57 inserts some additional wording into section 41(1) of the Environment Act 1995. The effect is that the Environment Agency can create a charging scheme to recover its costs in performing duties relating to new sections 45A to 45AZB of the Environmental Protection Act 1990.
494. Subsection (9) of section 57 amends section 108(15) of the Environment Act 1995 to clarify that the new duties under new sections 45A to 45AZB of the Environmental Protection Act 1990 are not included in the definition of pollution control functions for the purposes of section 108 Environmental Act 1995 powers of entry. The effect of this amendment is that powers of entry and seizure cannot be used in relation to these new duties.

Section 58: Electronic waste tracking: Great Britain

495. Section 58 amends the Environmental Protection Act 1990 to create powers to introduce electronic (digital) waste tracking in England, Wales and Scotland, and to establish an electronic system for that purpose by regulations.
496. Subsection (1) introduces amendments that will be made to the Environmental Protection Act 1990 by subsections (2) and (3).
497. Subsection (2) inserts new sections 34CA and 34CB into the Environmental Protection Act 1990. The effect of these two new sections is detailed below.

New section 34CA Electronic waste tracking

498. Subsection (1) introduces a power to make regulations, exercisable by the relevant national authority (the Secretary of State in England, Welsh Ministers in Wales and Scottish Ministers in Scotland), in order to track certain types of waste, including establishing an electronic waste tracking system.
499. Subsection (2) allows the regulations to impose requirements on relevant waste controllers (as defined in subsection (12)) in relation to waste tracking. The regulations may also impose requirements on the Environment Agency, Natural Resources Wales or the Scottish Environment Protection Agency. The requirements may include ensuring that specified information about waste and the tracking or regulation of that waste is entered onto the electronic system established under the regulations.
500. Subsection (3) contains non-exhaustive examples of the information that the regulations can require persons subject to the regulations to enter onto the electronic system. Those examples include information about how waste is processed or treated, where waste has moved to and to whom waste has transferred. It also includes the same information in relation to material that has been produced as a result of the processing or treatment of waste ("relevant waste products") and information about relevant waste controllers.
501. Subsection (4) allows the relevant regulations to require persons in control or in possession of waste to ensure waste that is on or is going to be on the system can be physically identified – for example, by tracking waste tyres using radio-frequency identification.
502. Subsection (5) allows the regulations to make provision for third parties, rather than those in possession or control of the waste, to carry out their duties under the regulations. The regulations may impose requirements on such third parties where those in possession or control of the waste make such arrangements with third parties.
503. Subsection (6) contains a duty on the relevant national authority that regulations made in relation to electronic waste tracking must include exemptions from the duties under the regulations for digitally excluded persons. These are persons who, either for religious or practical reasons – for example, age, disability or location – cannot use the electronic system. The regulations may impose alternative requirements on such persons.
504. Subsection (7) allows the regulations to appoint someone else to set up, administer, or maintain the electronic system. The regulations may also give functions to that person.
505. Subsection (8) allows the regulations to determine how information about the relevant waste on the system is used, who may access it and what limits should be placed on how that information is used by those who have been given access to it.
506. Subsection (9) allows for the introduction of fees or charges on anyone subject to the regulations. The regulations may state to whom the fee should be paid.
507. Subsection (10) allows for those fees or charges to reflect the costs of establishing, operating or maintaining the waste tracking system, or any other cost associated with tracking relevant waste incurred by the person designated to establish, operate or maintain the system.
508. Subsection (11) allows the relevant national authority to provide a grant or loan to the person chosen to set up, maintain or run the waste tracking system.
509. Subsection (12) provides definitions of "digitally excluded person", "extractive waste", "relevant national authority" and "relevant waste". A "digitally excluded person" is defined as a person who, either for religious or practical reasons – for example, age, disability or location – cannot use the electronic system "Extractive waste" is defined as having the meaning given to it in section 29(13) of the Environmental Protection Act 1990 in England and Wales, and in the Management of Extractive Waste (Scotland) Regulations 2010 in Scotland. "Relevant national authority" is defined as the Secretary of State in England, Welsh Minsters in Wales, and Scottish Ministers in Scotland. "Relevant waste" is defined as controlled or extractive waste (and controlled waste is defined in section 75(4) of the Environmental Protection Act 1990).
510. Subsection (12) also provides definitions of "relevant waste controller", "specified" and "waste processing product." "Relevant waste controller" is defined as a person who is subject to section 34(1) of the Environmental Protection Act 1990 or a person who imports, produces, keeps, treats, manages or disposes of extractive waste or acts as a broker of or dealer in such waste. The relevant waste controller definition also includes persons who export controlled waste or extractive waste. "Specified" is defined as meaning specified or described in the regulations. "Waste processing product" is defined as any product (including material that is not waste) that results from processing controlled waste or extractive waste.

New section 34CB Further provision about regulations under section 34CA

511. Subsection (1) allows the regulations made under new section 34CA to specify how the requirements imposed by the regulations will be enforced.
512. Subsection (2) contains further detail about the enforcement provisions. Subsection (2) allows the regulations to create criminal offences for failing to comply with the regulations. The maximum penalty the regulations can specify for committing such an offence is a fine.
513. Subsection (3) contains further detail about civil sanctions. Subsection (3) allows regulations to enable an enforcing authority to impose civil sanctions on persons for failing to comply with the regulations. The regulations may specify a fixed penalty amount or allow the enforcement authority to determine the amount of civil sanction. The regulations may also include details of any appeals process against a civil sanction imposed under the regulations.
514. Subsection (4) defines "Civil Sanction" as a type of sanction in Part 3 of the Regulatory Enforcement and Sanctions Act 2008.
515. Subsection (5) makes further provision about civil sanctions. It states that the regulations may impose civil sanctions in cases where the conduct that has led to the sanction need not be an offence. The regulations may impose civil sanctions even if the person imposing them is not a "regulator" within the meaning of the Regulatory Reform and Sanctions Act 2008. The regulations may also impose civil sanctions whether or not the Secretary of State, Welsh Ministers or Scottish Ministers could make provision for such sanctions to be imposed under Part 3 of that Act.
516. Subsection (6) allows the regulations to make different provisions for different purposes, which might include exempting certain categories of waste controllers or placing different duties on certain categories of waste controllers depending on their circumstances.
517. Subsection (7) provides the power to make consequential, transitional and similar amendments to legislation, including a power to make such amendments to primary legislation and retained direct EU legislation, by regulations.
518. Subsection (8) provides definitions of "enforcement authority" and "primary legislation" for the purposes of new section 34CB. "Enforcement authority" is defined as the Environment Agency in England, Natural Resources Wales in Wales, or a waste collection authority for an area in England or Wales or Scottish Environment Protection Agency. "Primary legislation" is defined as an Act of Parliament in relation to regulations made by the Secretary of State, an Act of Parliament or Act or Measure of Senedd Cymru in relation to regulations made by Welsh Ministers, and an Act of Parliament or an Act of the Scottish Parliament in relation to regulations made by Scottish Ministers.
519. Subsection (3) of section 58 amends the table in section 160A(2) of the Environmental Protection Act 1990, as inserted into that act by this Act. The purpose of the table is to detail the circumstances in which instruments made under those powers are subject to the affirmative procedure. The amendments mean the affirmative parliamentary procedure must be used for the first set of regulations made by the relevant national authority, where the regulations create a criminal offence, increase the maximum penalty for a criminal offence, create a civil sanction or amend primary legislation or retained direct principal EU legislation.
520. Subsection (4) of section 58 amends section 41(1) of the Environment Act 1995 in relation to the powers of the Environment Agency, Natural Resources Wales and the Scottish Environment Protection Agency to make charging schemes. The amendment inserts paragraph (da) into section 41(1) of the 1995 Act. The effect of that amendment is that the Environment Agency, Natural Resources Wales and the Scottish Environment Protection Agency can make a charging scheme to recover costs incurred when performing their functions in relation to functions given to them by the electronic waste tracking regulations.
521. Section 58 extends and applies to Great Britain.

Section 59: Electronic waste tracking: Northern Ireland

522. Section 59 amends the Waste and Contaminated Land (Northern Ireland) Order 1997 to create powers to introduce electronic (digital) waste tracking in Northern Ireland, and to create associated criminal offences (punishable by a fine) and civil penalties.
523. Subsection (2) inserts new Articles 5G and 5H into the Waste and Contaminated Land (Northern Ireland) Order 1997 after Article 5F. The effect of these two new Articles is detailed below.

New article 5G Electronic waste tracking

524. Paragraph (1) introduces a power to make regulations, exercisable by the Department of Agriculture, Environment and Rural Affairs ("the Department"), in order to track certain types of waste, including establishing an electronic waste tracking system.
525. Paragraph (2) allows the regulations to impose requirements on relevant waste controllers (as defined in paragraph (12)) in relation to waste tracking. The regulations may also impose requirements on the Department or the Northern Ireland Environment Agency. The requirements include ensuring that specified information about the tracking or regulation of waste is entered onto the electronic system established under the regulations.
526. Paragraph (3) contains non-exhaustive examples of the information that the regulations can require people to enter onto the electronic system. Those examples include information about how waste is processed or treated, where waste has moved to and to whom waste has transferred. It also includes the same information in relation to material that has been produced as a result of the processing or treatment of waste ("relevant waste products") and information about relevant waste controllers.
527. Paragraph (4) allows the relevant regulations to require persons in control or in possession of waste to ensure waste that is on or is going to be on the system can be physically identified – for example, tracking waste tyres through radio-frequency identification.
528. Paragraph (5) allows the regulations to make provision for third parties, rather than those in possession or control of the waste, to carry out their duties under the regulations. The regulations may impose requirements on such third parties.
529. Paragraph (6) contains a duty on the Department that regulations made in relation to electronic waste tracking must include exemptions from the duties under the regulations for digitally excluded persons, as defined in paragraph (12). These are persons who, either for religious or practical reasons – for example, age, disability or location – cannot use the electronic system. The regulations may impose alternative requirements on such persons.
530. Paragraph (7) allows the regulations to appoint someone else to set up, administer or maintain the electronic system. The regulations may also give functions to that person.
531. Paragraph (8) allows the regulations to determine how information about the relevant waste on the system is used, who may access it, and what limits should be placed on how that information is used by those who have been given access to it.
532. Paragraph (9) allows for the introduction of fees or charges on anyone subject to the regulations. The regulations may state to whom the fee should be paid.
533. Paragraph (10) allows for those fees or charges to reflect the costs of establishing, operating or maintaining the waste tracking system, or any other cost associated with tracking relevant waste incurred by the person designated to establish, operate or maintain the system.
534. Paragraph (11) allows the Department to provide a grant or loan to the person chosen to set up, run or maintain the waste tracking system.
535. Paragraph (12) provides definitions of "digitally excluded person", "extractive waste", "relevant waste", "relevant waste controller", "specified", and "waste processing product".

New article 5H Further provision about regulations under Article 5G

536. Paragraph (1) allows the regulations to make provision about the enforcement of requirements imposed by or under the regulations.
537. Paragraph (2) allows the creation of criminal offences, including the detail of such offences, for failing to comply with the regulations which can result in a fine.
538. Paragraph (3) allows the regulations to enable the Department to impose civil sanctions, to determine the amount of a civil sanction if a payment is required under it, to set out what factors should be taken into account when determining the amount, and to include any appeals process.
539. Paragraph (4) defines "civil sanction" as a sanction for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008.
540. Paragraph (5) clarifies that the regulations allow for the imposition of sanctions whether or not the conduct constitutes an offence.
541. Paragraph (6) provides the power to make consequential and similar amendments to a number of regulations and consequential amendments to primary legislation by regulations.
542. Subsection (3) of section 59 amends Article 82 of the Waste and Contaminated Land (Northern Ireland) Order 1997. This inserts paragraphs (1B) and (1C) after paragraph (1A) into Article 82. These paragraphs clarify the Assembly procedure to be used in relation to the new powers contained in new Article 5G. Paragraph (1B) clarifies that paragraph (1) does not apply to regulations mentioned in that paragraph. In such cases paragraph (1C) applies. The effect of this is that the regulations mentioned in paragraph (1B) are subject to the affirmative Assembly procedure as per paragraph (1C). Paragraph (1B) states the types of regulations that are subject to affirmative Assembly procedure. These affirmative triggers are the first set of regulations made under new Article 5G, the creation of a criminal offence, increasing the maximum penalty for a criminal offence, the creation of a new civil sanction, and amending primary legislation or retained direct principal EU legislation.
543. Section 59 extends and applies to Northern Ireland.

Section 60: Hazardous waste: England and Wales

544. Subsection (1) introduces amendments that will be made to the Environmental Protection Act 1990 by subsections (2) to (4).
545. Subsection (2) inserts new section 62ZA into the Environmental Protection Act 1990.

New section 62ZA Special provision with respect to hazardous waste in England and Wales

546. Subsection (1) contains a power to make regulations to make provision about, or connected with, the regulation of hazardous waste.
547. Subsection (2) contains further details about the provision that can be made under the power in subsection (1). This includes prohibitions or restrictions on what can be done with hazardous waste, requirements on how such waste may be kept, the registration of persons in control of hazardous waste, and the keeping and inspection of records related to hazardous waste. Such regulations may also impose civil sanctions or create criminal offences in relation to contraventions of the regulations.
548. Subsection (3) states the maximum penalty that regulations made under this section can impose in relation to criminal offences. That maximum penalty is two years’ imprisonment.
549. Subsection (4) introduces a definition of "civil sanctions". This is defined as the type of sanction in Part 3 of the Regulatory Enforcement and Sanctions Act 2008.
550. Subsection (5) makes further provision about civil sanctions. It states that the regulations may impose civil sanctions in cases where the conduct which has led to the sanction need not be an offence. The regulations may impose civil sanctions, even if the person imposing them is not a "regulator" within the meaning of the Regulatory Enforcement and Sanctions Act 2008.
551. Subsection (6) contains further details as to what the regulations may provide for. This includes waste regulation authorities (the Environment Agency in England and Natural Resources Wales in Wales) supervising activities authorised under the regulations as well as the persons who carry out those activities. The regulations may also make provision about those regulators maintaining records (including registers), the regulator or person carrying out an activity in relation to hazardous waste recovering certain expenses or charges, and appeals to the Secretary of State or Welsh Ministers against the decisions of the Environment Agency and Natural Resources Wales respectively.
552. Subsection (7) clarifies that this section is subject to section 114 of the Environment Act 1995. This means that the Secretary of State or Welsh Ministers can appoint another person to determine appeals on certain matters listed in section 114.
553. Subsection (8) allows the regulations to confer functions on the Secretary of State, Welsh Ministers, the Environment Agency or Natural Resources Wales in relation to hazardous waste.
554. Subsection (9) is a power to make incidental, consequential and transitional provision, and to allow different provision for different purposes.
555. Subsection (10) inserts a definition of "mixing." This is to ensure that any hazardous waste that is mixed or diluted (perhaps to the extent that it is no longer hazardous waste) can still be regulated under regulations made under this section.
556. Subsection (11) introduces definitions of "activity", "hazardous waste controller", "relevant national authority", and "specified". "Activity" is defined in relation to hazardous waste. The effect of the definition of "activity" is that anything defined as an activity can be regulated under the new power in relation to hazardous waste. "Activity" includes (among other activities) producing, keeping, treating, transporting, disposing and classifying hazardous waste, and directing and supervising others carrying out such an activity in relation to hazardous waste. "Hazardous waste controller" is defined as any person who carries out an activity (as defined above) in relation to hazardous waste. "Relevant national authority" is defined as the Secretary of State in England and Welsh Ministers in Wales. "Specified" is defined as specified in the regulations made under this section.
557. Subsection (3) of section 60 amends section 75 of the Environmental Protection Act 1990 to insert a new definition of "hazardous waste" and "waste list". The new hazardous waste definition is inserted into section 75 of the Environmental Protection Act 1990 in a new subsection (8A) (which applies to England) and (8B) (which applies to Wales). Hazardous waste is defined to include any waste listed in the waste list as hazardous, waste listed as hazardous in regulations made under regulation 3 of the Waste and Environmental Permitting etc. (Legislative Functions and Amendment etc.) (EU Exit) Regulations 2020, and waste treated as hazardous for the purposes of regulations made under section 62ZA of that Act or the Hazardous Waste (England and Wales) Regulations 2005 or the Hazardous Waste (Wales) Regulations 2005. The new waste list definition is inserted into section 75 of the Environmental Protection Act 1990 in a new subsection (8C). It is defined as EU Decision 2000/532 (establishing a list of wastes).
558. Subsection (4) of section 60 amends the table in section 160A(2) of the Environmental Protection Act 1990, as inserted into that Act by this Act. The changes require the affirmative parliamentary procedure to be used where the regulations made under the new section 62ZA create criminal offences, increase the maximum penalty for a criminal offence, or create civil sanctions.
559. Subsection (5) of section 60 amends section 41 of the Environment Act 1995. The effect of this amendment is to enable the Environment Agency and Natural Resources Wales to make charging schemes as a means of recovering costs incurred in performing their functions under any regulations made under new section 62ZA of the Environmental Protection Act.
560. Subsection (6) of section 60 amends section 114 of the Environment Act 1995, so that the Secretary of State can appoint an appropriate person to determine appeals under new section 62ZA of the Environmental Protection Act.

Section 61: Hazardous waste: Northern Ireland

561. Section 61 amends Articles 30 and 82 of the Waste and Contaminated Land (Northern Ireland) Order 1997.
562. Subsection (2) amends Article 30 of that Order, which provides for the making of regulations to control the management of special waste (referred to as "hazardous waste" in Article 30(1) of that Order) in Northern Ireland.
563. Subsection (2)(a) substitutes a new paragraph into Article 30(1) of that Order which incorporates a revised and expanded power to make regulations that make provision for, about, or connected with, the regulation of "hazardous waste", which it defines as controlled waste that is or may be dangerous or difficult to treat.
564. Subsection (2)(b) amends Article 30(2) of that Order by inserting new sub-paragraph (za) before sub-paragraph (a) and new sub-paragraph (h) after sub-paragraph (g). New sub-paragraph (za) expands the power in Article 30(1) to allow the regulations to prohibit or restrict the treatment, keeping or disposal of hazardous waste or any other activity in relation to such waste. New sub-paragraph (h) expands the power in Article 30(1) to allow the regulations to contain provision for, about, or connected with the imposition of civil sanctions.
565. Subsection (2)(c) inserts new paragraphs (2A) and (2B) into Article 30 of that Order. New paragraph (2A) introduces a definition of civil sanctions for the purposes of Article 30. "Civil sanctions" are defined as a type of sanction for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008. New paragraph (2B) makes further provision about civil sanctions. New paragraph (2B) states that regulations made under Article 30 may include civil sanctions even if the conduct leading to the sanction is not an offence or the person imposing them is not a "regulator" within the meaning of Part 3 of the the Regulatory Enforcement and Sanctions Act 2008. New paragraph (2B) allows the Department of Agriculture, Environment and Rural Affairs to make regulations that impose civil sanctions even if the Department cannot make provision for the imposition of civil sanctions under Part 3 of the Regulatory Enforcement and Sanctions Act 2008.
566. Subsection (2)(d) inserts new paragraphs (3A) into Article 30 of that Order after paragraph (3). Paragraph (3A) enables any regulations made under the power in Article 30 to make consequential, supplementary, incidental, transitional, transitory or saving provision.
567. Subsection (3) amends Article 82 of that Order. This inserts new paragraphs (1D) and (1E) after paragraph (1C) (as inserted by this Act). These new paragraphs clarify the Assembly procedure to be used in relation to the new powers contained in Article 30. New paragraph (1D) clarifies that Article 82(1) does not apply to regulations made under Article 30 that create a new civil sanction. This means that the creation of a new civil sanction under Article 30 is subject to the affirmative Assembly procedure. New paragraph (1E) states that where Article 82(1) does not apply given Article 82(1D), the affirmative Assembly procedure must be used.

Section 62: Transfrontier shipments of waste

568. Section 62 amends section 141 of the Environmental Protection Act 1990. Section 141 of that Act contains a power to make regulations to prohibit or restrict waste imports and exports. This section amends that section to allow regulations to be made to regulate waste imports or exports or the transit of waste for export.
569. Subsection (1) introduces amendments that will be made to section 141 of the Environmental Protection Act 1990 by subsections (2) to (8).
570. Subsection (2) amends the heading of section 141. Paragraph (a) replaces the words "prohibit or restrict" with "regulate". Paragraph (b) adds "the transit of waste for export" to the heading of the section.
571. Subsection (3) replaces the existing subsection (1) and adds new subsections (1A) and (1B) to section 141. New subsection (1) gives a power to the Secretary of State to make regulations about, or in connection with, the regulation of waste imports and exports and the transit of waste for export. New subsection (1A) gives further detail on the provision that can be made by those regulations. This includes banning or restricting waste imports and exports, the landing and loading of waste in the UK, loading waste for export, or the transit of waste for export. New subsection (1B) clarifies that regulations can include matters relating to the intended final destination of the waste or the places the waste will travel through (before reaching its final destination).
572. Subsection (4) substitutes subsection (3) of section 141 with a new subsection (3). This allows the regulations made under section 141 to confer functions on the Secretary of State, the Environment Agency, Natural Resources Wales the Scottish Environment Protection Agency, or the Department of Agriculture, Environment and Rural Affairs in Northern Ireland. Those functions may include functions related to the enforcement of the regulations. The regulations may give those bodies discretion as to how they exercise the functions given to them.
573. Subsection (5) omits subsection (4) of section 141, because it is redundant given the new subsection (3). New subsection (3) can now be used to confer functions on the Environment Agency, Natural Resources Wales, the Scottish Environment Protection Agency, or the Department of Agriculture, Environment and Rural Affairs in Northern Ireland.
574. Subsection (6)(a) omits paragraph (a) of section 141(5). As with subsection (4), which this section also omits, new subsection (3) means that this paragraph is no longer needed.
575. Subsection (6)(b) inserts new paragraph (aa) after omitted paragraph (a) of section 141(5). New paragraph (aa) allows the regulations made under this section to allow the Secretary of State to issue directions regarding how the Environment Agency, Natural Resources Wales, the Scottish Environment Protection Agency and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland exercise their functions when regulating waste imports and exports and the transit of waste for export.
576. Subsection (6)(c) omits "prescribed in or under the regulations" from paragraph (b) of section 141(5).
577. Subsection (6)(d) inserts new paragraphs (ba) and (bb) after paragraph (b) of section 141(5). New paragraph (ba) allows the regulations to include provisions about fees or charges to the Environment Agency, Natural Resources Wales, the Scottish Environment Protection Agency or the Department of Agriculture, Environment and Rural Affairs in Northern Ireland. Such fees and charges are to be paid by persons involved in the import or export of waste, or the transit of waste for export. New paragraph (bb) contains further provision in relation to those fees and charges. This states that the regulations may provide for the Environment Agency, Natural Resources Wales, the Scottish Environment Protection Agency or the Department of Agriculture, Environment and Rural Affairs in Northern Ireland to use those fees or charges to meet the costs they have incurred when regulating waste imports and exports and the transit of waste for export.
578. Subsection (6)(e) amends paragraph (d) of section 141(5). Subsection (5)(e) substitutes the reference to section 69(3) of the Environmental Protection Act 1990 with a reference to section 108(4) of the Environment Act 1995. This is because section 108(4) of the 1995 Act is a similar provision (conferring similar powers) to section 69(3) of the 1990 Act, and section 69 of the 1990 Act has been repealed. This follows the approach taken in section 140 of the Environmental Protection Act 1990. This amendment allows the regulations to confer powers of entry and seizure in relation to the enforcement of the regulations.
579. Subsection (6)(f) amends paragraph (e) of section 141(5) and replaces the words "authorities under the regulations" with "waste regulation authorities". This is to make clear that the reference to "authorities" is to "waste regulation authorities", as defined in the Environmental Protection Act 1990 (as read with section 141(7)).
580. Subsection (6)(g) inserts new paragraphs (fa) and (fb) into section 141(5). New paragraph (fa) allows the regulations to make provision allowing HMRC to disclose information to the Environment Agency, Natural Resources Wales, the Scottish Environment Protection Agency or the Department of Agriculture, Environment and Rural Affairs in Northern Ireland. New paragraph (fb) allows the regulations to confer functions on customs officials (designated under the Borders, Citizenship and Immigration Act 2009) in relation to seizing or detaining waste that has arrived at or entered into the UK or will go out of the UK.
581. Subsection (6)(h) inserts new paragraph (h) into section 141(5). New paragraph (h) allows the regulations to make provision about, or connected with the imposition of civil sanctions.
582. Subsection (7) inserts new subsections (5B) to (5E) into section 141 after subsection (5A).
583. New subsection (5B) introduces a definition of "civil sanctions". This is defined as a type of sanction in Part 3 of the Regulatory Enforcement and Sanctions Act 2008.
584. New subsection (5C) makes further provision about civil sanctions. It states that the regulations may impose civil sanctions in cases where the conduct which has led to the sanction need not be an offence. The regulations may impose civil sanctions, even if the person imposing them is not a "regulator" within the meaning of the Regulatory Enforcement and Sanctions Act 2008.
585. New subsection (5D) clarifies where regulations made under section 141 can apply. The regulations can make provision in relation to the sea or seabed within the UK Continental Shelf (designated under the Continental Shelf Act 1964) or the exclusive economic zone (designated under the Marine and Coastal Access Act 2009).
586. New subsection (5E) is a power to make incidental, consequential, supplementary and transitional provision. This includes a power to make such amendments to primary legislation or retained direct EU legislation.
587. Subsection (8) inserts various definitions into subsection (6) of section 141. Definitions are inserted for "importation", "exportation", "primary legislation" and "transit of waste for export". "Exportation" and "importation" is defined as waste that leaves the UK or waste that arrives at or enters into the UK respectively. "Primary legislation" is defined as an Act of Parliament, a Measure or Act of Senedd Cymru, an Act of the Scottish Parliament, or Northern Ireland legislation (as defined in section 24(5) of the Interpretation Act 1978). "Transit of waste for export" is defined as moving or keeping waste that has arrived in the UK in order to facilitate it leaving the UK.
588. Subsection (9) amends the table in section 160A(2) of the Environmental Protection Act 1990, as inserted into that Act by the Environment Act 2021. The purpose of the table is to detail the circumstances in which instruments made under those powers are subject to the affirmative parliamentary procedure. The amendments mean that the affirmative parliamentary procedure must be used where regulations under section 141 confer new powers of entry, seizure or detention, provide for new fees or charges to be paid, create a criminal offence, increase the maximum penalty for a criminal offence, or create civil sanctions. The affirmative procedure must also be used where section 141 regulations amend primary legislation or retained direct principal EU legislation.
589. Subsection (10) amends section 41 of the Environment Act 1995. Under section 41, the Environment Agency, Natural Resources Wales and the Scottish Environment Protection Agency can make charging schemes in relation to particular matters. Paragraph (a) substitutes paragraph (d) of section 41 of the 1995 Act with a new paragraph (d). This will allow the Environment Agency, Natural Resources Wales and the Scottish Environment Protection Agency to create a charging scheme to recover their costs in performing their functions in relation to the import or export of waste, or the transit of waste for export. Paragraph (b) inserts a new subsection after subsection (1) of section 41 of the Environment Act 1995. This inserts new definitions of "importation", "exportation", "transit of waste for export" and "waste" for the purposes of section 41(1)(d) of the 1995 Act. Those terms have the same definitions as in section 141 of the Environmental Protection Act 1990 (as inserted by this section).
590. Subsection (11) amends the Transfrontier Shipment of Waste Regulations 2007. It omits paragraph (1) of regulation 46. This is because the amendments in regulation 46(1) relate to fees, and are no longer needed given the amendment made by subsection (9) above in relation to charging schemes.

Section 63: Regulations under the Environmental Protection Act 1990

591. Section 63 amends the Environmental Protection Act 1990 by inserting new section 160A, and making consequential amendments to other sections of the Act. These changes consolidate the parliamentary procedure requirements for regulations and orders under the Act, including for regulations and orders made under new powers in the Environment Act.
592. Subsection (1) of section 63 introduces amendments that will be made to the Environmental Protection Act 1990 by subsections (2) to (5).
593. Subsection (2) of section 63 inserts new section 160A into the Environmental Protection Act 1990.

New section 160A Regulations and orders

594. Subsection (1) of new section 160A sets out that regulations and orders under the Act are subject to the negative resolution procedure, subject to the exemptions listed in subsections (1)(a) to (d).
595. Subsection (1)(a) sets out that regulations and orders listed in subsection (2) are subject to the affirmative resolution procedure. Subsection (1)(b) sets out that regulations made by a Northern Ireland Department under section 156 of the Act are not subject to the negative resolution procedure. Those regulations are instead subject to the procedure listed in section 156(4) of the Act. Subsections (1)(c) and (d) set out that neither commencement orders nor orders under paragraph 4 of Schedule 3 to the Act (statutory nuisance) are subject to the negative resolution procedure. Such orders are not subject to any parliamentary procedure.
596. Subsection (2) of new section 160A provides a table detailing which regulations and orders made under the Act are subject to the affirmative resolution procedure. Regulations or orders made under a section listed in the first column of the table that also meet the description listed in the second column of that table are subject to the affirmative resolution procedure.
597. Any regulations made under section 34D (prohibition on disposal of food waste to sewer: Wales), 45AA(10) (separate collection of waste: Wales), 79(1ZA) (statutory nuisance) and 80ZA(11) (fixed penalty notices) are subject to the affirmative procedure. Any regulations made under section 88A (litter from vehicles: England) that set the amount of fixed penalties, detail how that penalty amount will be determined, or amend Part 4 of the Environmental Protection Act 1990 or Part 2 of the London Local Authorities Act 2007 are also subject to the affirmative procedure. Further, any orders made under section 78M(4) (offences of not complying with a remediation notice) are subject to the affirmative procedure. Subsection (3) of new section 160A sets out that when the Secretary of State or Welsh Ministers make regulations or orders under the Environmental Protection Act 1990, those regulations or orders must be made by statutory instrument. However, orders under paragraph 4 of Schedule 3 to the Act do not need to be made by statutory instrument.
598. Subsection (4) of new section 160A sets out the parliamentary procedure requirements for regulations and orders made or to be made by the Secretary of State. Where regulations or orders made by the Secretary of State Under are subject to the negative resolution procedure, they are subject to annulment in pursuance of a resolution of either House of Parliament. Where such regulations or orders are subject to the affirmative resolution procedure, a draft of the regulation or order must be laid before Parliament and approved by a resolution of each House of Parliament. Subsections (5) and (6) of new section 160A contain equivalent provision for regulations and orders made by Welsh Ministers and Scottish Ministers respectively.
599. Subsection (7) of new section 160A allows for regulations or orders that can be made under the Environmental Protection Act 1990 that are subject to the negative resolution procedure to be made subject to the affirmative resolution procedure instead. Provision in regulations and orders that would otherwise be subject to the negative procedure can be included in affirmative regulations or orders.
600. The remaining subsections ((3) to (5)) of section 63 make further amendments to the Environmental Protection Act 1990, as a consequence of new section 160A.
601. Subsection (3) of section 63 deletes section 45B(3). Section 45B(3) is no longer needed, because new section 160A(1) applies to orders made under section 45B.
602. Subsection (4) of section 63 deletes section 78M(7). Section 78M(7) states that orders under section 78M(4) are subject to the affirmative resolution procedure. As section 78M(4) is included in the table in section 160A(2), section 78M(7) is no longer needed.
603. Subsection (5) of section 63 amends section 161 of the Environmental Protection Act 1990. Paragraph (a) changes the heading from "regulations, orders and directions" to "Directions". Paragraph (b) removes subsections (1) to (4) from section 161. The effect of this is that section 161, as amended, only deals with directions under the Act, and not regulations and orders. Regulations and orders under the Act are instead dealt with in new section 160A, as inserted by this section.

Section 64: Powers to make charging schemes

604. Section 64 makes amendments to sections 41 and 56 of the Environment Act 1995 to supplement existing charging powers available to the Environment Agency, Natural Resources Wales, and the Scottish Environment Protection Agency ("the Agencies"). These amendments relate to charging schemes and environmental licences for producer responsibility schemes.
605. Subsection (2) inserts five new paragraphs into section 41(1) of the Environment Act 1995, which creates powers to make charging schemes. Each of these powers is conferred on some or all of the Agencies. New paragraph (n) creates a power to create a charging scheme relating to producer responsibility schemes established under Schedule 4 or 5 of this Act. It allows the Agencies to require payment of charges to them as a means of recovering costs they have incurred in performing the functions conferred on them. New paragraphs (o) and (p) create the same powers as new paragraph (n) but in relation to the End of Life Vehicles (Producer Responsibility) Regulations 2005 and the Waste Electrical and Electronic Equipment Regulations 2013, respectively. New paragraphs (q) and (r) create a power to create charging schemes to recover costs incurred by the Environment Agency and Natural Resources Wales when performing functions in relation to section 33(1) of the Environmental Protection Act 1990 (preventing the unauthorised or harmful deposit, treatment or disposal etc. of waste) or functions relating to a regulated waste operation under regulation 12(1) of the Environmental Permitting (England and Wales) Regulations 2016. This allows fees to be charged to site operators for interventions at unpermitted waste sites or those in breach of a permit.
606. Subsection (3)(a)(i) extends the interpretation of the definition of "environmental licence" in section 56(1)(j) in relation to England and Wales. Currently that environmental licence definition only includes Waste Electrical and Electronic Equipment (WEEE) operation with a registered exemption under Schedule 2 to the Environmental Permitting (England and Wales) Regulations 2016. The definition will be amended to include any waste operation (not only a WEEE operation) with a registered exemption under the same regulations. Defining registered waste exemptions as environmental licences allows for charges to be prescribed for them under section 41(2) of the Environment Act 1995.
607. Subsection (3)(a)(ii) deletes section 56(1)(l) to (o) as it makes reference to WEEE. This is because the definition of "environmental licence" in paragraphs (l) to (o) was used as a way of creating a charging scheme, which is now done by new section 41(1)(p). The same deletions are made in relation to Scotland by subsection 3(b).
608. Subsection (4) makes provision about how new section 41(1)(n) of the Environment Act 1995 has effect prior to the repeal of section 93 of that Act. This ensures that the power to create a charging scheme in new section 41(1)(n) of the Environment Act 1995 can apply to functions conferred by regulations made under section 93 of the Environment Act 1995, as well as functions conferred by regulations made under Schedule 4 or 5 to this Act, until the repeal of section 93 of the Environment Act 1995 by this Act is fully in force.

Section 65: Waste charging: Northern Ireland

609. Section 65 amends the Waste and Contaminated Land (Northern Ireland) Order 1997 and the Waste Management Licensing Regulations (Northern Ireland) 2003 to supplement existing charging powers available to the Department of Agriculture, Environment and Rural Affairs.
610. Subsection (1) adds new Article 76A to the Waste and Contaminated Land (Northern Ireland) Order 1997 to provide the Department of Agriculture, Environment and Rural Affairs with a power to prescribe charges to be paid to it in relation to costs incurred by it in performing the functions referred to in paragraph (2) of that Article. These functions are functions set out in a number of pieces of subordinate legislation, including Article 4(1) of that Order (Prohibition on unauthorised or harmful deposit, treatment or disposal etc., of waste) and regulation 18(1) of the Waste Management Licensing Regulations (Northern Ireland) 2003. This allows for fees to be charged for interventions at unlicensed waste sites or those in breach of a licence.
611. Other functions referred to in Article 76A(2) relate to extended producer responsibility. These are functions conferred by regulations made under Schedule 4 or 5 to this Act, the End-of-Life Vehicles Regulations 2003, the End-of-Life Vehicles (Producer Responsibility) Regulations 2005, the Waste Batteries and Accumulators Regulations 2009, and the Waste Electrical and Electronic Equipment Regulations 2013. These functions allow the Department to levy fees in relation to its prescribed requirements in existing and future producer responsibility regimes.
612. Any charging scheme made under the powers that Article 76A will provide must describe who is liable to pay specified charges, and the Department of Agriculture, Environment and Rural Affairs must consult such persons as it considers to be appropriate before making any charging scheme under the Article.
613. Subsection (2) makes provision about how Article 76A(2)(c) of the Waste and Contaminated Land (Northern Ireland) Order 1997 has effect prior to the repeal of Article 3 of the Producer Responsibility Obligations (Northern Ireland) Order 1998 ("the 1998 Order"). This ensures that the power to create a charging scheme in new Article 76A(2)(c) of the Waste and Contaminated Land (Northern Ireland) Order 1997 can apply to functions conferred by regulations made under Article 3 of the 1998 Order, as well as functions conferred by regulations made under Schedule 4 or 5 to this Act, until the repeal of Article 3 of the 1998 Order by this Act is fully in force.
614. Subsection (4) amends regulation 17 (exemptions from waste management licensing) of the Waste Management Licensing Regulations (Northern Ireland) 2003 to require that the fee required under new regulation 20B (which is being inserted by subsection (6) of this section) for an application for an exemption from waste management licensing requirements has to be paid in order for an exemption to apply.
615. Subsection (5) amends regulation 18 (registration in connection with exempt activities) of the Waste Management Licensing Regulations (Northern Ireland) 2003 to ensure that any notice provided by an establishment or undertaking in respect of the registration of an exemption is to be accompanied by payment of the appropriate fee as may be required under regulation 20B. Subsection (5) further amends regulation 18, adding to the list of exemptions which apply for only one year in paragraph (9), omitting paragraph (12) which lists the current charges payable for exempt activities, and updating the reference in paragraph (11)(b) so that it refers to new regulation 20B (which is being inserted by subsection (6) of this section) instead of paragraph (12).
616. Subsection (6) creates new regulation 20B in the Waste Management Licensing Regulations (Northern Ireland) 2003, which provides the Department of Agriculture, Environment and Rural Affairs with power to make a charging scheme in respect of fees and charges for registration in connection with exempt activities. New regulation 20B requires that fees and charges, which may be provided for by the scheme, for applications for registering and renewing an exemption and in respect of the subsistence of registrations, are paid to the Department. New regulation 20B further allows for the scheme to provide for different fees depending on the nature of the activities, to set out the times and manners in which payments of fees and charges are to be made, and to provide for reductions in fees where an applicant is applying for multiple exemptions and specified conditions are met. The charging scheme may also specify charges in respect of the subsistence of registrations.

Section 66: Enforcement powers

617. Section 66 introduces Schedule 10 to amend legislation relating to enforcement powers for waste and other environmental matters.

Section 67: Enforcement powers: Northern Ireland

618. Subsection (1) amends Article 27 of the Waste and Contaminated Land (Northern Ireland) Order 1997.
619. Subsection (2) amends paragraph (2) of Article 27 to account for circumstances in which waste might be taken to an appropriate storage site in the first instance, or otherwise not directly treated or disposed of.
620. Subsection (3) inserts new paragraph (2A) after paragraph (2) of Article 27. Sub-paragraph (a) allows the Department to direct a registered carrier of controlled waste to collect specified waste and deliver it to a specified site. Sub-paragraph (b) allows the Department to direct a keeper of controlled waste, or the owner or occupier of the land on which the waste is being kept, to facilitate the collection of the waste by the specified waste carrier.
621. Subsection (5) amends paragraph (4) of Article 27 to reflect the amendment to paragraph (2) of that Article.
622. Subsection (6) inserts new paragraph (4A) after paragraph (4) of Article 27. Sub-paragraph (a) allows the Department to direct the keeper of the controlled waste or the owner or occupier of the land on which the waste is being kept to pay the waste carrier’s reasonable costs. Sub-paragraph (b) allows the Department to direct the keeper of the controlled waste or the owner or occupier of the land on which the waste is being kept to pay the reasonable costs of the person the waste is delivered to.
623. Subsections (4), (7) and (8) amend paragraphs (3), (5) and (6) of Article 27 respectively, to make these provisions relevant to all of Article 27.
624. Subsection (9) amends paragraph (7) of Article 27 to clarify that the Department may choose to pay the reasonable costs incurred by the registered carrier of controlled waste or the specified person to whom the waste is delivered under paragraph (4) or new paragraph (4A).
625. Subsection (10) amends paragraph (8) of Article 27 so as to make the definition of "specified" relevant to all of Article 27.

Section 68: Littering enforcement

626. Section 68 amends Part 4 of the Environmental Protection Act 1990 ("the 1990 Act") in relation to enforcement against litter, and other offences of littering from a vehicle and the unauthorised distribution of free printed material.
627. Under section 88 of the 1990 Act, litter authorities (as defined under section 88(9) of the 1990 Act) may authorise members of their staff, or contractors operating on their behalf, to issue fixed penalty notices in lieu of prosecution for these offences. The income from fixed penalty notices is (in most cases) retained by the litter authority, and must be used for functions under Part 4 of the 1990 Act. Section 88(11) of the 1990 Act allows the appropriate person to make regulations which "prescribe conditions to be satisfied by a person before a parish or community council may authorise him in writing for the purpose of giving [fixed penalty notices for littering]". The "appropriate person" is the Secretary of State in relation to England, and the Welsh Ministers in relation to Wales.
628. Subsection (2) replaces existing subsection (11) of section 88 of the 1990 Act with new subsections (11) to (13). New subsection (11) confers a power for the appropriate person to prescribe conditions by regulations that must be met by an authorised officer operating on behalf of a litter authority, and to make provision requiring a litter authority to revoke an officer’s authorisation if that officer fails to meet the prescribed conditions. Regulations under new subsection (11) will be subject to the negative resolution procedure. New subsection (12) clarifies that different provision can be made for different cases – for example, to enable transitional arrangements for existing authorised officers to be made when new conditions are prescribed. New subsection (13) requires the appropriate person to consult such persons as the appropriate person considers appropriate before making regulations under new subsection (11).
629. Subsection (3) inserts new section 88B into the 1990 Act. This new section contains a power for the appropriate person to issue statutory guidance to litter authorities on the exercise of "littering enforcement functions" by them and their authorised officers. New section 88B(2) requires litter authorities to have regard to any such guidance when exercising those functions (including when exercising control over the way in which their authorised officers carry out those functions on the authority’s behalf). New section 88B(4) requires the appropriate person to consult such persons as the appropriate person considers appropriate before issuing guidance. This is likely to mean litter authorities, authorised officers, and the public. New sections 88B(5) and (6) require guidance inserted under section 88B of the Environmental Protection Act 1990 concerning littering enforcement to be laid before Parliament or Senedd Cymru as appropriate, before it is published. New section 88B(7) contains definitions of "littering enforcement function", making clear that the scope of the guidance may cover enforcement functions related to any of the three offences in Part 4 of the 1990 Act, as well as connected purposes. These functions include:
     • setting fixed penalty levels;
     • authorising enforcement officers;
     • issuing penalty notices;
     • collecting and processing payments;
     • initiating and pursuing prosecutions; and
     • designating land (for the purposes of Schedule 3A to the 1990 Act).

630. Subsection (4) amends section 98(1A)(b) of the 1990 Act. Section 98(1A) defines "appropriate person" for the purposes of Part 4 of the 1990 Act, and the amendment updates this section by replacing "National Assembly for Wales" with "Welsh Ministers".

Section 69: Fixed penalty notices

631. Section 69 amends sections 33ZA, 33ZB, 34ZA and 34ZB of the Environmental Protection Act 1990 to allow the level of fixed penalty notices (FPNs) under those sections, and the time period under which a less amount may be treated as payment of the fixed penalty, to be varied. This could, for example, be to reflect inflation, changes to the cost of waste disposal, or changing waste management practices. The exact level of fixed penalty notices are set by local authorities to reflect local needs, within a range prescribed in legislation. The Environment Agency and Natural Resources Wales can also set levels for penalties issued by them under sections 34ZA and 34ZB, within a range prescribed in legislation. A FPN is a financial penalty that gives a person the chance to pay a fixed amount of money by a set date. If the penalty is paid by the set time, that person is no longer criminally liable for that offence and no further action will be taken.
632. Subsections (2) and (3) amend sections 33ZA (fixed penalty notices relating to unauthorised depositing, treatment of disposal of waste: England) and 33ZB (fixed penalty notices relating to unauthorised depositing, treatment of disposal of waste: Wales) respectively. Subsections (2)(a) and 3(a) remove the specified ten-day early payment period in which an English or Welsh waste collection authority may choose to offer a discounted penalty, and allows that period to be specified by the authority instead. Subsections (2)(b) and 3(b) allow for the Secretary of State and Welsh Ministers to amend by regulations any of the penalty amounts currently specified in subsections (9) and (10) of sections 33ZA and 33ZB.
633. Subsections (4) and (5) amend sections 34ZA (FPNs relating to transfer of household waste by the occupier of a domestic property: England) and 34ZB (FPNs relating to transfer of household waste by the occupier of a domestic property: Wales) respectively. Subsections (4)(a) and (5)(a) remove the specified ten-day period an enforcement authority in England or Wales may choose to allow a lesser payment for, and allow that period to be specified by the authority. Subsections (4)(b) and (5)(b) allow for the Secretary of State and Welsh Ministers to amend by regulations any of the penalty amounts currently specified in subsections (7), (8) and (9) of section 34ZA, and the standard and lesser penalty amounts currently specified in subsections (7) and (8) of section 34ZB.
634. Section 69 forms part of the law of England and Wales and extends to England and Wales.

Section 70: Regulation of polluting activities

635. Section 70 amends Schedule 1 to the Pollution Prevention and Control Act 1999, which sets out the purposes for which the Secretary of State can make regulations under Section 2 of that Act. The current purpose set out in paragraph 4 of Schedule 1 relates to the prohibition of operating an installation or plant of a specified description without a permit. In other words, under paragraph 4 of Schedule 1, the Secretary of State is able to make regulations relating to permits and also exemptions from permits.
636. Subsection (2) inserts a new sub-paragraph into paragraph 4 of Schedule 1, setting out a new purpose for which regulations can be made. This allows the Secretary of State to prohibit an activity unless it meets conditions determined by the Environment Agency and/or Natural Resources Wales in accordance with the regulations. This enables the Environment Agency and/or Natural Resources Wales to set conditions for exempt activities, which do not require a permit, but only relating to activities specified by the Secretary of State in regulations and only within the confines specified by the Secretary of State in regulations. This new purpose sits in addition to the existing purpose in paragraph 4 set out above.
637. Section 70 forms part of the law of England and Wales.

Section 71: Waste regulation: amendment of Northern Ireland Order

638. Subsection (1) amends Article 2(2) of the Waste and Contaminated Land (Northern Ireland) Order 1997 to reflect departmental changes in the Northern Ireland Executive. The Department of Agriculture, Environment and Rural Affairs has taken over the relevant responsibilities under the 1997 Order from the previous Department of the Environment.
639. Subsection (2) makes the necessary transitional provision.

Part 4: Air Quality and Environmental Recall

Section 72: Local air quality management framework

640. This section enacts Schedule 11, which amends Part 4 of the Environment Act 1995. Part 4 creates the Local Air Quality Management Framework. The amendments require the Secretary of State to review the National Air Quality Strategy, which sets out policies for the assessment or management of the quality of air, at least every five years; and to report annually to Parliament on progress to deliver air quality objectives and standards (set out in the Strategy) in relation to England, and the steps the Secretary of State has taken in that year to support the meeting of those objectives and standards.
641. Amendments also strengthen the requirements for local authorities under the Framework. When an Air Quality Management Area is declared by local authorities because they have assessed local air and determined that it exceeds, or is likely to exceed, air quality objectives and standards (as set by the Secretary of State in the National Air Quality Strategy and enacted in secondary legislation), local authorities are required to prepare actions plans that must set out how the local authority will exercise its functions to ensure that air quality standards are achieved and maintained. All tiers of local government, and neighbouring local authorities where relevant, will be required to co-operate in the development of those action plans. The Secretary of State has power to designate, following consultation, relevant public authorities as air quality partners who would also be required to co-operate with the development of action plans, and to take proportionate action to improve air quality where necessary. These amendments ensure responsibility for tackling air pollution is shared across relevant parties.

Section 73: Smoke control areas: amendments of the Clean Air Act 1993

642. This section enacts Schedule 12, which amends the Clean Air Act 1993. The amendments give local authorities the power to impose financial penalties for the emission of smoke in smoke control areas (SCAs) in England. This means that the emission of smoke from a chimney of a building or a chimney (not being a chimney of a building) that serves the furnace of any fixed boiler or industrial plant in an SCA in England has changed from being a criminal offence to instead being subject to a civil penalty notice (a fine). The change removes the current statutory defences that are making enforcement by local authorities very challenging, and reduces the burden and cost associated with enforcing SCAs. Additionally, the amendments remove the exemption in the Environmental Protection Act 1990 so that smoke emitted from a private dwelling in a Smoke Control Area can be enforced by local authorities in England as a statutory nuisance.
643. The amendments also remove the limit on the fine for the offence of selling controlled solid fuels for delivery (leaving it to the discretion of the Magistrate’s Court), and create a new duty on retailers to notify customers of the law regarding the acquisition of controlled solid fuels in England. This is intended to help raise consumer awareness and improve compliance.
644. They also enable a local authority to extend the scope of an SCA in England to cover moored vessels, subject to local consultation. This means that if a local authority amends its smoke control order to include vessels, smoke emissions from the chimney of such vessels could be liable to a financial penalty.
645. Schedule 12 also amends, for Wales, the procedure for declaring a fuel to be authorised or fireplace to be exempt for the purposes of Part 3 of the Clean Air Act 1993, by enabling Welsh Ministers to publish a list of these fuels and fireplaces and to update this list as needed.

Section 74: Environmental recall of motor vehicles etc.

646. Subsection (1) provides for the Secretary of State to make regulations making provision for the recall of relevant products that do not meet relevant environmental standards.
647. Subsections (2) and (3) clarify that the specification or description of a "relevant product" will be set out in secondary legislation, but set constraints on the types of product that may be specified or described.
648. Subsections (4), (5) and (6) provide definitions for "relevant environmental standard", "enactment" and "environmental impact".
649. Subsection (7) provides that regulations made under subsection (1) will be subject to affirmative procedure.
650. Subsection (8) provides that subsequent sections 75 to 77 will make further provision for regulations made under subsection (1).

Section 75: Compulsory recall notices

651. Subsection (1) provides that regulations made under section 74(1) can confer a power on the Secretary of State to issue a "compulsory recall notice".
652. Subsection (2) provides a definition for "compulsory recall notice".
653. Subsection (3) provides that the Secretary of State must have reasonable grounds for believing that a relevant product does not meet a relevant environmental standard prior to issuing a "compulsory recall notice".
654. Subsection (4) specifies that where a relevant product forms part of another product, a notice may require the return of the entire product.
655. Subsections (5) and (6) provide that a notice, or a supplementary notice, may impose supplementary requirements on a recipient.
656. Subsection (7) provides a non-exhaustive list of supplementary requirements that may be imposed pursuant to subsections (5) and (6), including requirements to publicise the recall, to achieve a minimum recall rate, to pay compensation, or to prevent any relevant products being sold while subject to a notice.
657. Subsection (8) provides a definition for "specified".
658. Subsection (9) provides that the Secretary of State may in the regulations provide for an appeal mechanism or for a means of withdrawing a notice or supplementary notice.

Section 76: Further provision about regulations under section 74

659. Subsection (1) provides that regulations made under section 74(1) may impose a duty on both manufacturers and distributors to notify the Secretary of State if they consider that a relevant product does not meet an environmental standard.
660. Subsection (2) provides that the Secretary of State may in the regulations confer investigative and information gathering powers on themselves for the purposes of deciding whether to issue a compulsory recall notice.
661. Subsections (3) to (5) provide that the Secretary of State may in the regulations make provision about enforcement of the regulations, including about the designation of an enforcement authority, the imposition of financial penalties, powers of entry to take documents and samples where there are reasonable grounds for suspecting a manufacturer or distributor has failed to comply with a requirement imposed by or under the regulations, and for appeals against the imposition of a financial penalty.

Section 77: Interpretation of sections 74 to 76

662. This section defines terms used in this Part of the Act.

Part 5: Water

Section 78: Water resources management plans, drought plans and joint proposals

663. Subsection (1) provides that the following subsections will amend Chapter 1 of Part 3 of the Water Industry Act 1991.
664. Subsection (2) makes a number of changes to section 37A of the Act. Subsection (2)(a) amends the heading of section 37A to remove the words "preparation and review". The procedure for the preparation and review of water resources management plans will now be set out in regulations and directions made under new sections 39F and 39G of the Act. Subsection (2)(b) removes from primary legislation the reference to water undertakers taking account of water introduced into their area of appointment by water supply licensees. This requirement will instead be addressed in secondary legislation. Subsections (2)(c) to (f) make some amendments in light of the fact that the procedure for preparing and publishing water resources management plans will be set out in secondary legislation. Cross-references to section 37B are also removed, as this section will be replaced by the new powers to make secondary legislation as to procedure.
665. Subsection (3) omits section 37B of the Act, which contains the current requirements for the publication of a draft and final water resources management plan and the handling of consultation responses on the draft plan, and section 37C, which contains the current requirements for water supply licensees to provide information to water undertakers. These provisions will be replaced by the provisions in regulations and directions made under new sections 39F and 39G.
666. Subsection (4) makes amendments to section 37D to remove references to section 37B and section 37C, since those sections have been omitted by subsection (3).
667. Subsection (5) makes amendments to section 39B, which relates to the procedure for preparing and revising drought plans, to change those provisions that rely on and refer to the water resources management plan provisions amended in the previous subsections.
668. Subsection (6) omits section 39C, which relates to information sharing in the context of drought plan preparation, since regulations made under new section 39F will provide for the process of information sharing in relation to drought plans.
669. Subsection (7) inserts new sections 39E, 39F, 39G and 39H into the Water Industry Act 1991.

New section 39E Joint proposals

670. Subsection (1) introduces a new power for the Secretary of State or Welsh Ministers to direct water undertakers to prepare and publish joint proposals.
671. Subsection (2) provides that a joint proposal is a proposal identifying measures that may be taken jointly by the undertakers for the purpose of improving the management and development of water resources. Such proposals are currently being developed on a voluntary basis by water undertakers working together in regional groups. Such directions can require those joint proposals to include measures to support the achievement of relevant environmental objectives.
672. Subsection (3) clarifies that a water undertaker must not prepare a joint proposal that includes measures that prevent water undertakers meeting their obligations under Part 3 of the Water Industry Act 1991. Part 3 includes, in particular, water undertakers’ water supply duties.
673. Subsection (4) provides that the Minister may specify the form that the joint proposals must take, any specified matter they must address, a particular area they should cover, any specific criteria they should address, and any planning assumptions they must be based upon. The directions are likely to require matters that change over time and location are addressed, for example, population, climate change or drought projections.
674. Subsection (5) provides that any directions must be set out in writing. This is consistent with the approach to other powers in the Water Industry Act 1991 under which the relevant Minister may direct water undertakers as to certain matters.
675. Subsection (6) provides that each undertaker to whom a direction applies must comply with the direction.
676. Subsection (7) provides that a direction under this subsection would be enforceable by the Minister under Section 18 of the Water Industry Act 1991. This is consistent with the current approach to water resources management plan and drought plan directions.
677. Subsection (8) provides that the power to make directions under new section 39E is conferred on the Secretary of State for water undertakers whose areas are wholly or mainly in England and Welsh Ministers in relation to water undertakers whose areas are wholly or mainly in Wales.
678. Subsection (9) provides that, where new section 39E refers to matters "specified", this means specified in a direction under that section.

New section 39F Plans and joint proposals: regulations about procedure

679. Subsection (1) provides powers under which the Secretary of State or Welsh Ministers may make regulations setting the procedure for preparing and publishing joint proposals, water resources management plans and drought plans. It is likely that the regulations will largely cover similar requirements as the existing regulations for water resources planning (the Water Resources Management Plan Regulations 2007) and drought planning (the Drought Plan Regulations 2005). The existing regulations set out publication requirements and how responses to the consultations should be considered, as well as procedural requirements for inquires or hearings. It is also likely that the new regulations may also include provisions that permit the use of modern consultation platforms and improve the existing requirements for the sharing of information and the handling of confidential information.
680. Subsection (2) provides that the regulations may include requirements for the sharing of information, including requirements that water supply licensees must share with water undertakers such information as the water undertaker may reasonably request.
681. Subsection (3) provides that the regulations may include requirements on how water undertakers should consult with other bodies, who they should consult, the timing of any consultation and the publication of statements relating to any consultation.
682. Subsection (4) provides that the regulations may include the procedures for preparing and circulating drafts, including provision for the Minister to require changes to a draft plan or proposal.
683. Subsection (5) provides that the regulations may include requirements to ensure that people likely to be affected by the plan or proposal have a reasonable opportunity to make representations to the Minister.
684. Subsection (6) provides that the regulations may include requirements about how water undertakers should handle the responses they receive and that the Secretary of State or Welsh Ministers may cause a public local inquiry or other hearing to be held in connection with a water resources management plan or drought plan.
685. Subsection (7) provides that the regulations may include requirements about how water undertakers should handle commercially confidential information.
686. Subsection (8) provides that references to the Minister in that section, including the power to make regulations, is conferred on the Secretary of State for water undertakers whose areas are wholly or mainly in England and Welsh Ministers in relation to water undertakers whose areas are wholly or mainly in Wales.

New section 39G Regulations under section 39F: directions

687. Subsection (1) provides that regulations made under new section 39F may also confer on the Secretary of State or Welsh Ministers a power to make directions. This power is required because some administrative requirements – for example, around the timetables for preparation, revision and publication – are likely to change from planning round to planning round. The Secretary of State or Welsh Ministers may also need to be able to direct specific water undertakers on when and how water resources management plans, drought plans and joint proposals should be prepared and revised. Under the existing legislation relating to water resources management plans and drought plans, the Secretary of State can give such directions to water undertakers and those directions are not subject to parliamentary procedure.
688. Subsection (2) provides that the directions must be set out in writing.
689. Subsection (3) provides that a direction could apply generally to all water undertakers or to one or more undertakers.
690. Subsection (4) provides that each water undertaker must comply with a direction.
691. Subsection (5) provides that the directions would be enforceable by the Secretary of State or Welsh Ministers under the section 18 of the Water Industry Act 1991.
692. Subsection (6) provides that "Minister" has the same meaning as in new section 39F, with the effect that the power to make directions under new section 39G is conferred on the Secretary of State for water undertakers whose areas are wholly or mainly in England, and Welsh Ministers in relation to water undertakers whose areas are wholly or mainly in Wales.

New section 39H Regulations under section 39F: supplementary

693. Subsection (1) provides that regulations under new section 39F are to be made by statutory instrument.
694. Subsection (2) provides that regulations are subject to the negative resolution procedure subject to annulment by either House of Parliament, in relation to regulations made by the Secretary of State, or Senedd Cymru, in the case of regulations made by the Welsh Ministers.
695. Subsections (3) and (4) provide that, where regulations are made by both the Secretary of State and Welsh Ministers and either legislature votes to annul those regulations, the regulations will have no further effect.
696. Subsection (5) provides that section 213(2) to (2B) of the Water Industry Act 1991 applies to regulations made by Welsh Ministers under new section 39F as they would apply the Secretary of State under new section 39F. This means that regulations made by Welsh Ministers may, for example, include provision for the determination of questions of fact and law which may arise in giving effect to the regulations or provision as to awarding costs or expenses of proceedings in any determination, among other things.

Section 79: Drainage and sewerage management plans

697. Section 79 inserts five new sections into the Water Industry Act 1991.

New section 94A Drainage and sewerage management plans: preparation and review

698. New section 94A introduces a new duty on sewerage undertakers in England and Wales regarding drainage and sewerage management plans.
699. Subsection (1) sets out the requirement for each sewerage undertaker to prepare, publish and maintain a plan.
700. Subsection (2) defines the plan with reference to Part 4 of the Water Industry Act 1991. This Part includes section 94 of the Water Industry Act 1991, which is the duty on the sewerage undertakers to provide, maintain and extend a system of public sewers to ensure that their area of operation is and continues to be "effectually drained". The production of the plan will demonstrate how a sewerage company will meet its duties under Part 4 of the Water Industry Act 1991 including section 94.
701. Subsection (3) sets out the specific matters the plan must address, namely an assessment of the sewerage undertaker’s drainage and sewerage system capacity, current and future demand, and resilience. The sewerage undertaker is required to set out in the plan what it intends to do to maintain an effective system of sewerage and drainage, and when those actions are likely to be taken. Any relevant risks to the environment and mitigation measures should be recorded in the plan. Relevant environmental risks will include storm overflows and their impact on water quality. Should other factors become relevant, the Minister (defined in subsection (10) as the Secretary of State or Welsh Ministers) may make directions specifying additional matters that must be addressed by the plan.
702. Subsection (4) points to section 94C, which makes provision for the preparation and publication of a plan.
703. Subsection (5) sets out that the sewerage undertaker must review its plan on an annual basis and share the conclusions of that review with the Minister.
704. Subsection (6) specifies the circumstances in which a sewerage undertaker must produce a revised plan. This must occur within 5 years of publication of the last plan, or earlier if an annual review indicated a material change of circumstances or if the Minister gives directions that a revised plan is needed.
705. Subsection (7) sets out that the Minister can give directions to sewerage companies regarding the form of, or the time period covered by, the plan. The intention is that the planning period is long-term, in the region of around 25 years.
706. Subsection (8) refers to enforcement powers at section 18 of the Water Industry Act 1991.
707. Subsection (9) defines "drainage system" and "sewerage system" as used in the preceding subsections. Section 114A of the Water Industry Act 1991 defines a "drainage system" as a structure designed to receive rainwater and other surface water, other than a natural watercourse. Section 17BA of the Water Industry Act 1991 defines the "sewerage system" of a sewerage undertaker as the system comprising (a) the system of public sewers, the facilities for emptying public sewers and the sewage disposal works and other facilities for dealing effectually with the contents of public sewers that the undertaker is required to provide by section 94 of the Water Industry Act 1991, and (b) the lateral drains that the undertaker is required to maintain by section 94 of the Water Industry Act 1991. A sewerage system is defined in the Water Industry Act 1991 in a way that covers all relevant aspects of wastewater, including facilities to empty public sewers, wastewater treatment works and pumping stations. Therefore, a Drainage and Sewerage Management Plan must cover all relevant aspects of wastewater, including public sewers and wastewater treatment works.
708. Subsection (10) defines "Minister", as used in the preceding subsections, as meaning the Secretary of State or Welsh Ministers in relation to English and Welsh sewerage undertakers respectively.

New section 94B Drainage and sewerage management plans: power to amend period

709. New section 94B sets out the powers available to the Minister to amend the five-year time period specified at new section 94A(6)(c).
710. Subsection (1) sets out that the time period must be amended by statutory instrument.
711. Subsection (2) defines "Minister" as used in this section with the same meaning as new section 94A(10).
712. Subsection (3) sets out that statutory instruments made under this section are subject to negative resolution procedure.
713. Subsection (4) sets out that subsection (5) applies to orders made by both the Secretary of State and Welsh Ministers.
714. Subsection (5) describes how the negative resolution procedure can lead to revocation of the statutory instrument.

New section 94C Drainage and sewerage management plans: regulations about procedure

715. Subsection (1) allows the Minister to make regulations that set out how a plan should be prepared and published.
716. Subsection (2) sets out that the regulations made under this section can describe how information should be shared in the development of a plan, including requiring sewerage licensees to provide information to sewerage undertakers.
717. Subsection (3) sets out that the regulations made under this section can set out how a sewerage undertaker should consult on their plans, including who should be consulted, the frequency and timing of consultation and the publication of consultation results.
718. Subsection (4) sets out that the regulations made under this section can make provision for how plans are prepared and circulated.
719. Subsection (5) sets out that the regulation made under this section can be used to make sure that appropriate representations are made in the preparation of the plan.
720. Subsection (6) sets out how representations made under subsection (5) are dealt with.
721. Subsection (7) sets out that the regulation made under this section can provide details on handling of commercially confidential information.
722. Subsection (8) sets out that the regulation made under this section can be used to give the Secretary of State/Welsh Ministers direction making powers.
723. Subsection (9) defines "Minister" as used in this section with the same meaning as new section 94A(10).

New section 94D Regulations under section 94C: supplementary

724. Subsection (1) sets out that regulations made under new section 94C are made by statutory instrument.
725. Subsection (2) sets out that regulations made under new section 94C are subject to negative resolution procedure.
726. Subsection (3) sets out that subsection (4) applies to regulations made under new section 94C by both the Secretary of State and Welsh Ministers.
727. Subsection (4) describes how the negative resolution procedure can lead to revocation of regulations made under new section 94C.
728. Subsection (5) defines how other sections apply to regulations made under new section 94C by the Secretary of State and Welsh Ministers.

New section 94E Drainage and sewerage management plans: direction

729. New section 94E defines directions with reference to preceding sections.
730. Subsection (1) defines directions as those given in new section 94A or regulations under new section 94C.
731. Subsection (2) specifies that directions must be given in writing.
732. Subsection (3) specifies that directions may be given to all sewerage undertakers or can be specific to one or more sewerage undertaker.
733. Subsection (4) confirms that sewerage undertakers have a duty to comply with directions.
734. Subsection (5) sets out that the duties under this section are enforceable under section 18 of the Water Industry Act 1991.
735. This section forms part of the law of England and Wales and applies to England and Wales.

Section 80: Storm overflows

736. Section 80 inserts a new chapter 4 into Part 4 of the Water Industry Act 1991 (sewerage services).

New Chapter 4: Storm overflows 

737. New chapter 4 puts new duties on the Secretary of State, the Environment Agency, and sewerage undertakers to reduce storm overflows and the harm they can cause.  

New section 141A Storm overflow discharge reduction plan

738. New section 141A establishes the legal requirement for a storm overflow discharge reduction plan for sewerage undertakers wholly or mainly in England. 
739. Subsection (1) requires the Secretary of State to prepare a plan for the purposes of reducing discharges from storm overflows and reducing their adverse impact for sewerage undertakers wholly or mainly in England.  
740. Subsection (2) explains that for the purposes of the plan, reducing discharges includes reducing the frequency, duration and volume of discharges.
741. Subsection (3) explains that for the purpose of the plan reducing their adverse impact refers to their adverse impact on the environment and on public health. 
742. Subsection (4) sets out some specific matters on which the plan must put forward proposals such as how to reduce the need for discharges and how to improve sewage treatment. 
743. Subsection (5) sets out that when preparing the plan, the Secretary of State must consult specified statutory consultees, and any other persons that the Secretary of State considers appropriate.
744. Subsection (6) sets out the timetable to which the Secretary of State must publish the plan, namely before 1 September 2022.
745. Subsection (7) enables the Secretary of State to amend the plan and that in doing so they must consult the statutory consultees in subsection 5 on the amended plan.
746. Subsection (8) requires the plan to be laid in Parliament once published.

New section 141B Progress reports on storm overflow discharge reduction plan

747. New section 141B sets out a legal requirement for progress reports on the storm overflow discharge reduction plan.
748. Subsection (1) places a requirement on the Secretary of State to publish progress reports.
749. Subsection (2) requires that each progress report sets out the progress made with the plan during the period of the progress report, and the progress made in achieving the aims of the purpose of the plan as set out in new section 141B, namely to reduce discharges from storm overflows and to reduce their harm.
750. Subsection (3) requires that the first report be made three years after the publication of the storm overflow reduction plan. The first report will be due in 2025.
751. Subsection (4) requires that subsequent reports deal with the five-year periods from the date of the first report in subsection (3).
752. Subsection (5) requires the report to be published within 12 weeks of the end of the period to which the report relates. Subsection (6) requires the report to be laid before Parliament once published.

New section 141C Annual reports from discharges of storm overflows

753. New section 141C sets out the legal requirement for annual reports by sewerage undertakers wholly or mainly in England on storm overflow activity.
754. Subsection (1) requires sewerage undertakers wholly or mainly in England to publish a report on their storm overflows.
755. Subsection (2) sets out the information that sewerage undertakers must provide in the report for each of their storm overflows, such as the location of the overflow.
756. Subsection (3) requires reports to be for successive calendar years starting with 2021. Subsection (4) requires it published before 1 April in the year after the calendar year to which it relates. The first report will be published in 2022.
757. Subsection (5) explains that the plan must be published in an accessible format.
758. Subsection (6) refers to enforcement powers at section 18 of the Water Industry Act 1991.

New section 141D Environment Agency reports

759. New section 141D sets out the legal requirements for Environment Agency to report annually on storm overflow activity.
760. Subsection (1) requires the Environment Agency to report annually on the storm overflow activity of sewerage undertakers wholly or mainly in England.
761. Subsection (2) sets out the information which the Environment Agency must include in the report, including the frequency and duration of discharges from the storm overflows, and, where the information is available, the volume of each discharge.
762. Subsection (3) requires reports to be for successive calendar years starting with 2021.
763. Subsection (4) requires the Environment Agency to publish the report before 1 April in the year after the calendar year to which it relates, and for it to be published in such a way as which the Environment Agency thinks appropriate.

New section 141E Interpretation of Chapter 4

764. New section 141E sets out the definition of a storm overflow and discharges from storm overflows.
765. Subsection (1) defines a storm overflow in relation to structures and the apparatus of a sewerage undertaker’s sewerage system.
766. Subsection (2) defines sewerage discharges which are not defined as storm overflows and are therefore exempt from the requirements of new chapter 4 (storm overflows) of Part 4 of the Water Industry Act 1991. These include discharges which occur because of an asset failure.
767. Subsection (3) explains that a ‘sewerage system’ as specific in subsection (1) is defined by way of section 17BA(7) of the Water Industry Act 1991 which states the following: "References in this Chapter to the sewerage system of a sewerage undertaker are references to the system comprising (a) the system of public sewers, the facilities for emptying public sewers and the sewage disposal works and other facilities for dealing effectually with the contents of public sewers that the undertaker is required to provide by section 94, and (b) the lateral drains that the undertaker is required to maintain by section 94.".

Section 81: Reporting on discharges from storm overflows

768. Section 81 inserts new section 141DA into Chapter 4 of Part 4 of the Water Industry Act 1991 after new section 141D. 

New section 141DA Reporting on discharges from storm overflows 

769. New section 141DA establishes the legal requirement for sewerage undertakers wholly or mainly in England to report in near real time on when a discharge starts and stops.
770. Subsection (1) sets out the specific information a sewerage undertake wholly or mainly in England must publish when a discharge from a storm overflow occurs. This includes its location and when it began.
771. Subsection (2) requires that the information must be reported within one hour of the discharge starting, and within one hour of it finishing.
772. Subsection (3) requires the information to be published in a format which must be both easily understandable and easily accessible by the public.
773. Subsection (4) refers to enforcement powers at section 18 of the Water Industry Act 1991.
774. Subsection (5) allows the Minister to make regulations that set out exemptions to the publication of information (under subsection (1)) and the time limit for doing so (under subsection (2)).
775. Subsection (6) requires the Minister to consult on the draft regulations with such persons as the Minister considers appropriate. 
776. Subsection (7) sets out that regulations made under new section 141DA are made by statutory instrument under the draft affirmative resolution procedure. 

Section 82: Monitoring quality of water potentially affected by discharges

New Section 141DB Monitoring quality of water potentially affected by discharges from storm overflows and sewage disposal works

777. Section 82 inserts new section 141DB into Chapter 4 of Part 4 of the Water Industry Act 1991 after new section 141DA.
778. New section 141DB establishes the legal requirement for sewerage undertakers wholly or mainly in England to monitor the quality of water affected by storm overflows and sewage treatment works.
779. Subsection (1) requires and sewerage undertaker to continuously monitor the quality of water upstream and downstream of discharges from storm overflows and sewage disposal works.
780. Subsection (2) defines the assets for which monitoring is required and that the monitoring is required where the discharge is into a water course.
781. Subsection (3) sets out the information which the monitoring exercise must collect, including for example levels of dissolved oxygen.
782. Subsection (4) refers to enforcement powers at section 18 of the Water Industry Act 1991.
783. Subsection (5) allows the Minister to make regulations that set out (a) requirements for the monitoring such as the type of monitor to be used; (b) exemptions to the assets to be monitored; (c) how sewerage undertakers should publish the monitoring information collected.
784. Subsection (6) requires the Minister to consult on the draft regulations with such persons as the Minister considers appropriate.
785. Subsection (7) sets out that regulations made under new section 141DB are made by statutory instrument under the draft affirmative resolution procedure.
786. Section 82 subsection (2) makes consequential amendments to section 213 of the Water Industry Act 1991 to include the new regulation making powers of new sections 141DA and 141DB.

Section 83: Reduction of adverse impacts of storm overflows

787. Section 83 inserts new section 141DC into Chapter 4 of Part 4 of the Water Industry Act 1991, after section 141DB.
788. Subsection (1) places a new legal duty on sewerage undertakers wholly or mainly in England to secure progressive reductions in the adverse impacts of discharges from their storm overflows.
789. Subsection (2) explains that this includes reducing the adverse impacts of storm overflows on the environment and public health. The water quality monitoring required through section 141DB will provide the evidence to illustrate the progressive reduction being achieved for environmental and public health purposes, such as to enable additional inland bathing sites to be established.
790. Subsection (3) provides for enforcement action through the Water Industry Act 1991 by the Secretary of State or Ofwat, under general authorisation from the Secretary of State.

Section 84: Report on elimination of discharges from storm overflows

791. Section 84 requires the publication of a report on the elimination of storm overflows of sewerage undertakers wholly or mainly in England.
792. Subsection (1) requires the Secretary of State to produce a report on the actions which would be needed to eliminate discharges from storm overflows of sewerage undertakers wholly or mainly in England and the cost and benefits of doing so.
793. Subsection (2) requires the Secretary of State to publish the report before 1 September 2022.
794. Subsection (3) requires that the report be laid before Parliament once published.

Section 85: Authority’s power to require information

795. Section 85 inserts new section 27ZA into the Water Industry Act 1991.

New Section 27ZA: Power to require information for purpose of monitoring

796. This new section provides the Water Services Regulation Authority ("Ofwat") with a strengthened information gathering power when performing its duties under section 27(1) (reviewing water and sewerage company and water supply and sewerage licensees performance of duties) and section 27(2) (collecting information on company and licensees activities under their licences to operate) of that Act.
797. Subsection (1) enables Ofwat to issue a notice to a water or sewerage undertaker or licensee requesting information in relation to its functions under section 27(1) and section 27(2). Ofwat has duties under the Water Industry Act 1991 to (a) keep under review the manner in which water and sewerage undertakers and licensees carry out their functions and activities (under section 27(1)); and (b) collect information with respect to the manner in which water and sewerage undertakers and licensees carry out their functions and activities, so as to enable Ofwat to become aware of matters relating to its statutory powers or duties (under section 27(2)).
798. Subsection (2) defines the notice as a notice which requires a person to produce specified documents by a particular time, to a particular location, or to provide specified information in a specific manner and form at a particular time and place.
799. Subsection (3) provides that the duties in this section are enforceable by Ofwat using the procedure set out under section 18 of the Water Industry Act 1991.
800. Subsection (4) provides clarification that nothing in this section requires a contravention of the data protection legislation.
801. Subsection (5) imports the "data protection legislation" definition in section 3(9) of the Data Protection Act 2018. That section currently defines the "data protection legislation" as the UK General Data Protection Regulation (UK GDPR); the Data Protection Act 2018 and regulations made under it, and other key legislation.
802. This section forms part of the law of England and Wales and applies to England and Wales.

Section 86: Water and sewerage undertakers in England: modifying appointments

803. Subsection (1) amends Part 2 (appointment and regulation of undertakers) of the Water Industry Act 1991, where the current provision for modification of appointment conditions of water and sewerage undertakers by agreement (section 13) is located.
804. Subsection (2) inserts nine new sections into the Water Industry Act 1991, setting out the new process for modification of appointment conditions.

New section 12A Modification by the Authority

805. Subsection (1) explains that new sections 12B to 12I apply to water and sewerage undertakers whose areas are wholly or mainly in England. The process for the modification of licence conditions of undertakers whose areas are wholly or mainly in Wales will remain unchanged by this Act.
806. Subsection (2) of new section 12A contains a power for the Water Services Regulation Authority ("Ofwat") to make modifications to appointment conditions.
807. Subsection (3) requires Ofwat to consult on any proposed modifications to appointment conditions. The consultation should set out that Ofwat proposes to make changes to a licence, set out the proposed changes, the effect of the changes, why the changes are being proposed, and when the consultation will close.
808. Subsection (4) requires that the consultation period under subsection (3) must be at least 42 days in length, starting from the date the notice is published.
809. Subsection (5) sets out who must be given notice of the consultation. Paragraph (a) requires Ofwat to publish notice in a way that ensures those affected by the modifications will be able to see it; paragraph (b) requires Ofwat to send a copy of the notice to each water or sewerage undertaker whose conditions Ofwat proposes to change, any undertaker or will be affected by the modifications, to the Secretary of State, and to the Consumer Council for Water.
810. Subsection (6) requires Ofwat to consider any responses received to the consultation within the time limit.
811. Subsection (7) enables the Secretary of State to direct Ofwat not to make a change or changes, during the period of the consultation.
812. Subsection (8) explains that subsections (9) to (11) will apply where Ofwat has undertaken the process under subsections (3) to (6) and decides to proceed with the change to the licence following consultation.
813. Subsection (9) requires Ofwat to publish its decision and proposed changes following consultation, including explaining the effect of the changes, how it considered consultation responses, and how the final decision differs (if at all) from the original proposal.
814. Subsections (10) and (11) require Ofwat to state the date on which each change will take effect, which must be at least 56 days after publication of the decision to make the change in question.

New section 12B Modification of conditions of appointment: early effective date

815. This new section allows for proposed modifications to licence conditions to be made sooner than 56 days if Ofwat considers an earlier date is necessary and has undertaken a consultation explaining its intention to do this. Ofwat’s consultation must have explained the proposed earlier effective date, the reasons for the earlier date, and why an earlier date would not have a material negative impact on undertakers.

New section 12C Modification of conditions under section 12A: supplementary

816. This new section enables Ofwat to make consequential amendments to other conditions where it is necessary or expedient as a consequence of the original modification. Paragraph 2 of new Schedule 2ZA allows the CMA to direct that, where the modification is appealed, the modification can be suspended from coming into effect, in full or in part, pending the outcome of the appeal, and will not come into effect until the appeal has been determined.

New section 12D Appeal to the CMA

817. Subsection (1) allows an appeal to be made to the CMA against a decision to modify a condition of an appointment.
818. Subsection (2) sets out the bodies that can bring an appeal: the affected undertaker; any other undertaker or licensee also affected by the change; the representative body of undertakers and licensees (currently a position held by Water UK); or the Consumer Council for Water.
819. Subsection (3) provides that the CMA must agree to an appeal being brought.
820. Subsection (4) enables the CMA to refuse permission to appeal on three specific grounds: where the appeal is brought by an undertaker or licensee whose interests are not materially affected by the decision being appealed; where the interests of undertakers or licensees that are represented (by the industry or consumer body) are not materially affected; or where the appeal is vexatious, is trivial or does not have a reasonable prospect of success.

New section 12E Procedure on appeal to CMA

821. This new section provides for the legal effect of new Schedule 2ZA. That Schedule sets out the process for appeals to CMA.

New section 12F Determination by CMA of appeal

822. Subsection (1) sets out that the process in this section applies to all appeals brought under new section 12D.
823. Subsection (2) requires CMA to have regard to Ofwat’s duties as set out in section 2 of the Water Industry Act 1991 and the strategic priorities set out in any Strategic Policy Statement issued to Ofwat by Defra Secretary of State under section 2A of that Act. Ofwat’s duties under section 2 include duties to further the consumer objective; secure that the functions of water and sewerage undertakers are properly carried out across Wales and England; secure that undertakers are able to finance the proper carrying out of their functions; secure that the activities authorised by the licence of a licensed water supplier and any statutory functions imposed on it in consequence of the licence are properly carried out; and to further the resilience objective.
824. Subsection (3) allows the CMA to consider any matter that Ofwat did not consider, provided Ofwat would have been entitled to do so, such as more recent company data. The CMA must not consider any matter Ofwat would not have been entitled to consider.
825. Subsection (4) sets out the grounds on which the CMA can allow an appeal: that Ofwat did not take proper account of its duties under the Water Industry Act 1991 or its strategic priorities; that Ofwat’s decision was based on a factual error; that the modifications do not achieve what Ofwat contended they achieve; that Ofwat did not follow the statutory procedure for making modifications; or that the decision was legally wrong.
826. Subsection (5) sets out that, where the appeal is not allowed, the CMA must confirm Ofwat’s original decision.

New section 12G CMA’s powers on allowing an appeal

827. Subsection (1) allows for the CMA, where it allows an appeal (in full or in part), to quash Ofwat’s licence modification decision and/or send the proposed modification back to Ofwat to reconsider and make a new decision based on any CMA direction.
828. Subsection (2) allows CMA only to direct Ofwat to do something that it has the power to do.
829. Subsection (3) requires Ofwat to comply with a direction.

New section 12H Time limits for CMA to determine an appeal

830. This new section sets the time limits for the CMA to determine appeals.
831. Subsection (1) sets out that there will be a four-month time limit for the CMA to determine an appeal, running from the date on which it gave permission for the appeal to proceed, unless certain conditions apply.
832. Subsections (2), (3) and (4) allow the CMA to extend the time limit to five months, if a party to an appeal asks them to and the CMA is satisfied that there are good reasons why the appeal cannot be determined within four months. If the CMA extends time, it must inform the parties to the appeal, and publish the revised time limit so that it is brought to the attention of any persons that it considers will be affected by the determination.
833. Subsection (5) provides that the permission date is the date the CMA gave permission to bring the appeal under new section 12D(3).
834. Subsection (6) explains that the definition for "a party" to an appeal in new sections 12H and 12I is that set out in new Schedule 2ZA: that is, "a party" to an appeal means either the appellant or Ofwat.

New section 12I Determination of appeal by CMA: supplementary

835. Subsection (1) sets out how the CMA must set out the determination of an appeal (in an order), what should be included in it, when and how it should be published, and whom the CMA must notify.
836. Subsection (2) allows the CMA not to publish any commercial information that could harm the business interests of an undertaking to which the determination relates, or any information that relates to an individual and could harm their interests.
837. Subsection (3) requires Ofwat to take any steps needed to comply with an order issued by the CMA.
838. Subsection (4) provides that Ofwat must comply with any order issued by the CMA by the time specified in the order or, if no time is specified, within a reasonable time.
839. Subsection (5) provides that new section 12C, under which a consequential change to other conditions linked with the original change could be made, applies as it applies where a condition of a licence is modified under new section 12A. Under new section 12G, Ofwat may be required to reconsider and redetermine a licence modification decision if an appeal is allowed by the CMA.
840. Subsection (3) of section 86 inserts a new heading before section 13 of the Water Industry Act 1991 to read "Modification of appointment conditions: Wales". This clarifies that, following the amendments made by this Act, sections 13 to 16B of the Water Industry Act 1991 will apply solely to undertakers whose appointments areas are wholly or mainly in Wales. The current process for modification of licence conditions by agreement will effectively continue for Wales only.
841. Subsection (4) of section 86 inserts a new subsection (A1) into section 13 of the Water Industry Act 1991, clarifying that that sections 13 to 16B apply only to undertakers whose areas of appointment are wholly or mainly in Wales.
842. Subsection (5) of section 86 inserts a new heading before section 17 of the Water Industry Act 1991 to clarify that section 17 applies to the modification of conditions in both England and Wales.
843. Subsection (6) of section 86 inserts a new Schedule 2ZA into the Water Industry Act 1991, which details the procedure for appeals made under section 12D of the Water Industry Act 1991.
844. Members of the CMA Panel will consider appeals made to the CMA in respect of water and sewerage undertaker licence modification decisions. Subsection (7) makes a consequential amendment to the CMA Panels provision in Schedule 4 to the Enterprise and Regulatory Reform Act 2013 (paragraph 35(3)), to ensure that appeals to the CMA under new section 12D of the Water Industry Act 1991 will meet the definition of a "specialist utility function" in the Enterprise and Regulatory Reform Act 2013. This will ensure that CMA panel experts are able to carry out new section 12D functions.

Section 87: Electronic service of documents

845. Section 87 inserts new subsections into section 216 (service of documents) of the Water Industry Act 1991, enabling the electronic service of documents served under that Act.
846. Subsection (4A) allows any document required or permitted to be served under the Water Industry Act 1991 to be served by electronic means.
847. Subsection (4B) provides that where the document is to be served on a consumer, it can only be served electronically where (a) a person has consented in writing to receiving documents electronically and has not withdrawn that consent, and (b) the document is sent electronically to the electronic address that the consumer has most recently provided to the sender.
848. Subsection (4C) defines the meaning of "consumer", as a person liable to pay charges in respect of (a) the supply of water any premises, or (b) the provision of sewerage services in respect of any premises, excluding any water or sewerage undertaker, water supply or sewerage licensee, or Ofwat (the Authority).
849. This section forms part of the law of England and Wales and applies to England and Wales.

Section 88: Water abstraction: no compensation for certain licence modifications

850. Section 88 inserts new sections 61ZA and 61ZB into the Water Resources Act 1991, and makes consequential modifications to section 27 of the Water Act 2003 and Schedule 8 to the Water Act 2014. The purpose of the two new sections is to allow permanent licences in England to be varied or revoked without the payment of compensation on or after 1 January 2028 where the change is necessary to protect the environment or to remove excess headroom.
851. Subsection (1) inserts two new sections 61ZA and 61ZB after section 61 of the Water Resources Act 1991.

New section 61ZA No compensation where modification to protect environment: England

852. New section 61ZA provides that permanent abstraction licences in England only can be varied or revoked on or after 1 January 2028 without the payment of compensation if the Secretary of State is satisfied that the revocation or variation is necessary having regard to a relevant environmental objective; or to otherwise protect the water environment from damage. This section extends the circumstances in which a permanent abstraction licence can be varied or revoked without the payment of compensation to protect the environment. Section 27 of the Water Act 2003 permits the revocation or variation of a licence without the payment of compensation in order to protect from "serious damage" to the water environment.
853. Subsection (1) sets out the circumstances where the section applies. Paragraph (a) sets out that the section applies to licences that are revoked or varied on or after 1 January 2028 pursuant to a direction made by the Secretary of State following a licence change proposal by the Environment Agency (section 54) or the owner of a fishing right affected by the licence (section 56). This date will allow time for the catchment-based approach to water resources to embed and produce solutions. (Defra proposed a stronger catchment focus following the catchment based approach in its Water Abstraction Plan , which involves working with abstractors and other local stakeholders to develop solutions to abstraction issues at a catchment level.) Paragraph (b) sets out the environmental reasons why a licence may be varied or revoked without paying compensation. These are that the Secretary of State is satisfied the change is needed in relation to "a relevant environmental objective" or "to otherwise protect the water environment from damage". The reference to ‘damage’ includes damage caused by low flow levels in a river due to unsustainable abstraction. Low flow levels could be a factor taken into account in a decision to revoke or vary an abstraction licence. (Subsections (2), (4) and (5) define the terms "relevant licence", "water environment" and "relevant environmental objective" respectively.)
854. Subsection (2) defines the term "relevant licence" used in subsection (1)(a). A relevant licence is a licence (a) that allows abstraction in England only, and (b) that does not have a time-limit – that is, one that would remain in force indefinitely unless revoked, commonly known as a permanent licence. As a result, licences that allow abstraction in Wales and licences with a time-limit are not affected by the provisions.
855. Subsection (3) provides that, where a licence is changed under this section, no compensation is payable under section 61 to the licence holder.
856. Subsection (4) defines the term "water environment" used in subsection (1)(b)(ii). The water environment is any inland waters (including lakes, ponds, rivers or other watercourses with dry bottoms, channels or beds); any water contained in rocks underground (commonly known as groundwater); and the underground rocks themselves (commonly known as aquifers). It includes both natural and man-made features. It also refers to the plants and animals that are dependent on any of this water or these physical features.
857. Subsection (5) defines the term "relevant environmental objective" used in subsection (1)(b)(i). A relevant environmental objective is an environmental objective as defined in the regulations that implemented the Water Framework Directive in England. In England, environmental objectives are set in relation to each water body in a river basin district by the Environment Agency, after public consultation, and approved by the Secretary of State. Environmental objectives include achieving compliance with protected area objectives, preventing any deterioration in the status of water bodies; and protecting, enhancing or restoring water bodies with the aim of achieving "good status". There are three pieces of secondary legislation that implemented the Water Framework Directive in England. There are separate regulations for the Solway Tweed River Basin District and the Northumbria River Basin District, which both span England and Scotland, and a further statutory instrument for all other River Basin Districts in England and Wales.

New section 61ZB No compensation where variation to remove excess headroom: England

858. New section 61ZB provides that permanent abstraction licences in England can be varied on or after 1 January 2028 without the payment of compensation where at least 25% of the licence volume remains unused for at least 12 years before the date the Environment Agency makes a proposal to vary the licence, as long as the Secretary of State is satisfied that the variation does not reduce the quantity of water the licence holder is authorised to abstract to a level below that which the holder reasonably requires.
859. Subsection (1) sets out that the section only applies to relevant licences that are varied on or after 1 January 2028 pursuant to a direction made by the Secretary of State under section 54, following a licence change proposal by the Environment Agency.
860. Subsection (2) defines the term "relevant licence" used in subsection (1). A relevant licence is a licence (a) that allows abstraction in England only, and (b) that does not have a time-limit – that is, one that would remain in force indefinitely unless revoked, commonly known as a permanent licence. As a result, licences that allow abstraction in Wales and licences with a time-limit are not affected by the provisions.
861. Subsection (3) provides that no compensation is payable under section 61 to the licence holder, if (a) the licence holder has abstracted 75% or less of the annual licensed volume in each of the 12 years preceding the relevant date, and (b) the Secretary of State is satisfied that the variation would not reduce the quantity of water the licence holder is authorised to abstract to a level below that which the holder reasonably requires.
862. Subsection (4) defines the term "relevant date" used in subsection (3). The relevant date is the date when the Environment Agency serves notice on the licence holder that it proposes to change the licence. It is the end of the 12-year period used to calculate under-use.
863. Subsection (2) of section 88 amends section 27 of the Water Act 2003 so that on or after 1 January 2028 it will only apply to licences that fall within the definition of a relevant licence as defined in new section 61ZA(2) of the Water Resources Act 1991 – that is, permanent licences that authorise abstraction in England. Section 27 will not apply to relevant licences on or after 1 January 2028, but will continue to apply to relevant licences up to and including 31 December 2027.
864. Subsection (3) of section 88 omits paragraph 30(4) of Schedule 8 to the Water Act 2014, so that the legislative changes introduced in this Act can be incorporated into the new Environmental Permitting Regulations regime. In future, it is intended that the water abstraction licensing regime will be moved into the Environmental Permitting Regulations regime under the Environmental Permitting (England and Wales) Regulations 2016. Making this change should ensure that the abstraction licensing regime is consistent with the regulation of other activities affecting the environment. The powers under which the regulations will be made include Schedule 8 to the Water Act 2014.

Section 89: Water quality: powers of Secretary of State

865. Subsection (1) provides a regulation–making power for the Secretary of State to make provision about the substances to be taken into account in assessing the chemical status of surface water or groundwater, and to specify standards for those substances, or in relation to the chemical status of water bodies. This will enable updates to the substances and standards currently used in that process, for example those set out in the list of priority substances and priority hazardous substances for surface waters in water quality legislation. The power can only be used to amend or modify the existing water quality legislation relevant to chemical status, listed in subsection (2).
866. Subsection (1)(a) would allow an entirely new substance to be included in the legislation, or the removal of an existing substance. Subsection (1)(b) allows the environmental quality standard (EQS) to be set for a substance, or for an existing EQS to be modified.
867. Subsection (3) enables additional provision that may need to be introduced as a result of exercising the powers under subsection (1). This may include, for example, specifying a date by which a standard for a specific substance must be achieved, changes to monitoring regimes to cover newly specified substances, or new measures to be introduced into river basin management plans in respect of such substances.
868. Subsection (4) establishes that the Secretary of State can only exercise the powers in this section to make provision that could be made by the Welsh Ministers or Northern Ireland Department of Agriculture, Environment and Rural Affairs under their own powers in sections 90 and 91 respectively with their consent.
869. Subsection (5) establishes that the Secretary of State cannot exercise the powers in this section to make provisions which would fall within the Scottish Parliament’s devolved competency, given effect by powers under an Act of that Parliament, with the exception of parts of the cross border river basin districts lying in Scotland, where the Secretary of State could exercise the powers to make provisions but only with Scottish Ministers’ consent.
870. Subsection (6) establishes the consultation requirements attached to the exercise of the powers. Paragraph (a) requires the Secretary of State, regarding regulations applying to England, to consult with the Environment Agency, which provides expert scientific opinion. Paragraph (b) requires the Secretary of State to consult with Welsh Ministers when making regulations applying to an England and Wales cross-border River Basin District (RBD) that lies in England, and when the Welsh Ministers’ consent is not required under subsection (4). This would mean consultation is only required if the provision being made is only for the English part and does not apply to the part in Wales. Paragraph (c) places the same consultation requirements on the Secretary of State in relation to the cross-border RBDs shared with Scotland.

Section 90: Water quality: powers of Welsh Ministers

871. Section 90 confers a regulation, broadly comparable to that in section 89, on the Welsh Ministers in relation to Wales. Subsection (4) requires consultation with the Natural Resources Body for Wales, other interested persons or bodies, and with the Secretary of State when exercising the power in relation to the Welsh part of a cross-border RBD.

Section 91: Water quality: powers of Northern Ireland department

872. Section 91 confers the same power on the Department of Agriculture, Environment and Rural Affairs in relation to Northern Ireland.

Section 92: Solway Tweed river basin district: power to transfer functions

873. Section 92 confers a power to be exercised by the Secretary of State to amend the Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004 ("the Solway Tweed Regulations") to allow future changes to the exercise of functions in the Solway Tweed River Basin District.
874. Subsection (3) enables regulations to be made that provide for functions under the Solway Tweed Regulations to be exercised in a different manner. For example, it would enable changes to functions that are currently joint between the Secretary of State and Scottish Ministers for the whole of the river basin district.
875. Subsection (4) would allow amendments to the functions of the Environment Agency and Scottish Environment Protection Agency. These could be split to enable, for example, monitoring of English water bodies by the Environment Agency alone.
876. Subsection (5) allows for changes to the geographical area in which the functions can be exercised. For example, the functions could be amended so that in future they are exercised by the Secretary of State alone in relation to the English part, and the Scottish Ministers alone in the Scottish part.
877. Subsection (6) would enable requirements to be imposed on such functions so that they are exercisable with the consent of the Secretary of State or the Scottish Ministers, or after consultation.
878. Subsection (7) requires the consent of the Scottish Ministers for any regulations under this section.
879. Subsection (8) states that regulations made under this section are subject to the negative procedure.
880. Subsection (9) provides a definition.
881. This section forms part of the law of England and Wales and Scotland, and applies to the area of the Solway Tweed river basin district which is partly in England and partly in Scotland.

Section 93: Water quality: interpretation

882. This section contains definitions used in the sections on water quality.

Section 94: Valuation of other land in drainage district: England

883. Section 94 amends section 37 of the Land Drainage Act 1991 ("the LDA"), enabling the Secretary of State to make regulations, by the affirmative procedure, that establish the valuation calculation for the value of other land in an internal drainage district in England. Subsection (3) makes the main changes by inserting new subsections (5ZA) to (5ZH) into the LDA.
884. Setting out the valuation calculation in regulations is appropriate and proportionate, because these provisions deal with details of a subsidiary and technical matter and, accordingly, it is anticipated that these details will need to be updated again in future. By enabling the technical implementation of this policy to be set out in secondary legislation, future governments will be better able to make any future necessary updates in a timely manner.
885. New subsection (5ZA) provides the power for the Secretary of State to make such regulations.
886. New subsection (5ZB) sets out the provisions that the regulations may include when setting out the new valuation calculation. Paragraphs (a) to (g) detail the different components of calculations for the different types of land that comprise other land under the LDA, ensuring that the Secretary of State has the necessary powers to stipulate a comprehensive valuation calculation in secondary legislation.
887. New subsection (5ZC) sets out which internal drainage boards (IDBs) the Secretary of State can decide to apply the regulations to. Linked to this, new subsection (5ZD) enables the regulations to allow for an IDB to elect that the regulations apply to them, and for the regulations to specify a procedure for that election. These provisions mean that, where an issue associated with the existing valuation calculation only affects certain IDBs in England, the Secretary of State may provide an alternative calculation that other IDBs may elect to make use of, if they so choose. This is currently necessary because certain data referred to within existing subsection (5) is either missing or incomplete in some areas. However, the provisions also reflect the fact that, in future, the calculation may need to be updated for all IDBs (were an issue within the calculation to affect all IDBs). New subsection (5ZC) therefore enables a calculation stipulated in secondary legislation to be applied to all English IDBs in such cases.
888. Subsection (5ZE)(b) enables the Secretary of State to make changes, as a consequence of these new provisions being added to the LDA. This includes amending, repealing or revoking provisions in the LDA (pursuant to new subsection (5ZF)).
889. New subsection (5ZG) places a duty on the Secretary of State to consult such persons (if any) as are considered appropriate, taking into account the extent to which the regulations are likely to affect the valuation of other land.

Section 95: Valuation of other land in drainage district: Wales

890. Section 95 of the Environment (Wales) Act 2016 conferred powers on Welsh Ministers to make regulations which establish a valuation calculation for other land in respect of internal drainage districts in Wales. These powers are similar to those conferred on the Secretary of State in England under section 94 above.
891. Section 95 makes minor amendments to section 83 of that Act, with one key substantive amendment set out below.
892. Subsection (2)(b)(iii) inserts new subsection (5D) into section 37 of the Land Drainage Act 1991, which places a new duty on Welsh Ministers to consult such persons (if any) as are considered appropriate, taking into account the extent to which the regulations are likely to affect the valuation of other land. The existing subsection (5D) is renumbered as new subsection (5E).

Section 96 Valuation of agricultural land in drainage district: England and Wales

893. Section 96 inserts new section 41A into the Land Drainage Act 1991 ("the LDA"), which enables the appropriate national authorities (the Secretary of State in respect of internal drainage districts in England, and Welsh Ministers in respect of internal drainage districts in Wales) to make regulations that establish the valuation calculation for the value of chargeable property (agricultural land and buildings) in an internal drainage district.

New section 41A Alternative method of calculating annual value of agricultural land and buildings

894. Subsection (1) provides the power for the appropriate national authorities to make such regulations.
895. Subsections (3) and (4) set out the provisions the regulations may include when setting out the new valuation calculation. These provisions detail the different components of the calculation to assess the value of "chargeable property" under the LDA. This ensures that the appropriate national authority has the necessary powers to stipulate a comprehensive valuation calculation in secondary legislation in respect of the territories of England and Wales.
896. Subsections (7) and (8) set out which internal drainage boards (IDBs) the appropriate national authority can decide to apply the regulations to. Linked to this, subsection (9) enables the regulations to allow for an IDB to elect that the regulations apply to them, and for the regulations to specify a procedure for that election. These provisions mean that, where an issue associated with the existing valuation calculation only affects certain IDBs, the appropriate national authority may provide an alternative calculation which other IDBs may elect to make use of, if they so choose. However, the provisions also reflect the fact that, in the future, the calculation may need to be updated for all IDBs (were an issue within the calculation to affect all IDBs). Subsections (7) and (8) therefore enable the appropriate national authority to stipulate in secondary legislation that a calculation can be applied to all IDBs in such cases.
897. Subsection (10)(b) enables the appropriate national authority to make changes, as a consequence of these new provisions being added to the LDA. This includes amending, repealing or revoking provisions in the LDA (pursuant to subsection (11)).
898. Subsection (12) places a duty on the appropriate national authority to consult such persons (if any) as are considered appropriate, taking into account the extent to which the regulations are likely to affect the valuation of any chargeable properties.

Section 97: Disclosure of Revenue and Customs information

899. Section 97 inserts new sections 37A to 37C into the Land Drainage Act 1991 ("the LDA").

New section 37A Disclosure of Revenue and Customs information

900. New section 37A deals with the disclosure of revenue and customs information.
901. Subsection (1) provides a power to the Valuation Office Agency (VOA) to disclose Revenue and Customs information to certain "qualifying persons" for a "qualifying purpose". Internal drainage boards (IDBs) will require certain data to enable them to discharge their statutory duties and complete the valuation calculations referred to above. The data it is envisaged qualifying persons will need is the council tax valuation list and the non-domestic rating list, both of which are compiled and maintained by the VOA and are not otherwise publicly available.
902. Subsection (3) lists the qualifying persons. These are the bodies that will need access to the certain VOA data as they are involved in completing the valuation calculations for other land or chargeable property referred to above. The list includes IDBs, the Environment Agency and the Natural Resources Body for Wales. Paragraph (h) enables the appropriate national authority, via regulations, to name any other person as a qualifying person.
903. Subsection (4) lists the qualifying purposes: mainly to carry out any functions under Chapter 1 or 2 of the LDA, or section 75 of the Local Government Finance Act 1988. This definition captures the key purpose of the statutory gateway, being that qualifying persons are able to carry out the valuations calculations referred to above.
904. Subsection (5) stipulates that regulations, under subsection (3)(h), can only be made with the consent of the Commissioners for Her Majesty’s Revenue and Customs.

New section 37B Restrictions on onward disclosure of Revenue and Customs information

905. New section 37B deals with the restrictions on the onward disclosure of Revenue and Customs information.
906. Subsection (1) sets out when the onward disclosure of information may be permitted. This will enable one qualifying person to share the data with another qualifying person (such as those under new section 37A(3)(d) and (e)) for a qualifying purpose, to enable one person to complete the valuation calculation on behalf of another.
907. Subsection (2) requires, in certain circumstances, the consent of the Commissioners for Her Majesty’s Revenue and Customs before the onward disclosure of information is allowed.
908. Subsection (4) makes it an offence to disclose Revenue and Customs information relating to a person whose identity is specified in the disclosure or can be deduced from it; subsection (5) provides a defence, in certain circumstances, if a person is charged; and subsection (6) sets out the criminal sanctions if such a person is found guilty.

New section 37C Further provisions about disclosure under section 37A or 37B

909. New section 37C includes provisions stipulating how the disclosure of information permissible under new sections 37A and 37B relate to certain existing legislation. In particular, subsections (4) and (5) confirm that certain information disclosed under new sections 37A and 37B is exempt from disclosure under the Freedom of Information Act 2000.

Part 6: Nature and Biodiversity

Section 98: Biodiversity gain as condition of planning permission

910. Section 98 refers to Schedule 14, which applies a new general condition to all planning permissions granted in England, subject to exceptions. This condition requires that a biodiversity gain plan must be submitted and approved before development may lawfully commence.

Section 99: Biodiversity gain in nationally significant infrastructure projects

911. Section 99 introduces Schedule 15. This sets out a biodiversity net gain requirement for Nationally Significant Infrastructure Projects (NSIPs).

Section 100: Biodiversity gain site register

912. Subsections (1) to (3) make provisions for a public biodiversity gains sites register. They define some of the eligibility criteria for land to be included on the register, including that it must be maintained for at least 30 years after the completion of enhancement works, and set out how the benefits of habitat on the register might be allocated to a development. The register is intended to provide transparency in offsite enhancements for developers, planning authorities and others, and to help parties to confirm that any offsite biodiversity gains are only allocated to a single development and that the necessary agreements to deliver biodiversity gains are in place. The intention is that the register will also facilitate monitoring of biodiversity gain delivery and its outcomes by indicating what outcomes are expected where.
913. Subsections (4) to (6) set out what regulations under this section are likely to provide for, including details of the procedure for registering land in the biodiversity gains site register, the criteria that must be satisfied for the enhancement of land to be registered, and the arrangements for amending or removing land on the register. Subsection (5) also allows provisions under subsection (4)(c) to guide the process of making and determining applications to register land as biodiversity gain sites and to provide for financial penalties that could be incurred by providing false or misleading information when registering a biodiversity gain site. Subsection (6) sets out further information requirements which will be fundamental to the register, such as the location and area of land and who will be responsible for carrying out the works to enhance biodiversity. Subsection (6) also explicitly references the allocation of biodiversity enhancement to a particular development, which will be important in preventing the ‘double-counting’ of a given enhancement (or the units that it creates).
914. Subsection (7) allows the Secretary of State to change the minimum time for which biodiversity gains must be secured. This may not be changed to a period of less than 30 years, which is the initial duration specified in the Act’s provisions. The power applies to off-site biodiversity gain site enhancements. Schedule 14 paragraph 9 of this Act creates a similar power to increase the minimum period with respect to secured on-site habitat enhancements.
915. Subsection (9) sets a duty on the Secretary of State to keep under review the supply of off-site biodiversity gains and whether the minimum duration (of 30 years) can be increased without adversely affecting that supply. This is intended to encourage increases to the minimum duration provided that the Secretary of State is confident that the increase will not stifle the supply of biodiversity enhancements and therefore risk undermining the market for biodiversity gains and ability to deliver gains in appropriate locations for wildlife. Changes made to the minimum duration would apply to all new allocated biodiversity gain sites or biodiversity gain plans submitted for approval, but would not retrospectively change the terms of existing site agreements (for example, existing conservation covenants or planning obligations attached to approved biodiversity gain plans).
916. Subsections (8) to (11) set out procedures for making these regulations, and align definitions of some terms with those set out in Schedule 7A to the Town and Country Planning Act 1990.

Section 101: Biodiversity credits

917. Subsections (1) to (5) make provision for the Secretary of State to set up a system to sell a supply of statutory biodiversity credits to the habitat compensation market. The provision of statutory credits will be made in England only. The sold credits will be equivalent to a specified gain in biodiversity value, which will be eligible for inclusion in a biodiversity gain plan. Subsection (3) sets out the arrangements that may be made for the scheme and the operation of the scheme. Subsection (4) requires the Secretary of State, in considering the price of a biodiversity credit, to set this at a level that does not discourage the development of local market schemes and non-credit habitat creation projects. The government intends to conduct a further review of the price of units, following engagement with stakeholders, before setting a price. The intention is that the price of biodiversity credits will be higher than prices for equivalent biodiversity gain on the market. Subsection (5) will require the Secretary of State to make information on the price of the units and their operation publicly available.
918. Subsection (6) sets the framework that the Secretary of State must consider when handling the proceeds of the credits. Proceeds from the sale of credits will contribute to strategic ecological networks and provide long-term environmental benefits, and would be additional to existing requirements. This framework includes a provision that funds collected via this mechanism must be used for the purpose of securing biodiversity gain. Subsection (7) makes provision to exclude works to enhance habitat from the system where there is an existing requirement for the Secretary of State to act – for example, where land is subject to alternative legislative requirements such as where a public body manages a Site of Special Scientific Interest. Through the Wildlife and Countryside Act 1981 (as amended), public bodies have a duty to take reasonable steps to further the conservation and enhancement of the special features of Sites of Special Scientific Interest.
919. Subsections (8) to (10) require the Secretary of State to report on the operation of the biodiversity credit system on an annual basis. This includes setting out the total funding received and how this has been spent in securing habitat enhancement, which should include an assessment of the value of created habitats in terms of biodiversity units.

Section 102: General duty to conserve and enhance biodiversity

920. Section 40 of the Natural Environment and Rural Communities Act 2006 ("the NERC Act") places a duty on public authorities to have regard for the conservation of biodiversity when delivering their functions. This section makes textual amendments to section 40 of that Act, to avoid repeating definitions. The revisions make more explicit the requirement for public authorities to assess how they can take action to conserve and enhance biodiversity, and then take these actions. This section also sets out how public authorities should abide by the revised duty.
921. Subsection (2) adds to the heading of the biodiversity duty in the NERC Act, setting out that this duty is changing from "conserving" to "conserving and enhancing" biodiversity.
922. Subsection (3) replaces existing subsections (A1) and (1) of the NERC Act with new subsections (A1) to (1F).
923. New subsection (A1) defines the term "general biodiversity objective", which is used in section 40 to direct the activity taken by public authorities under this duty. This extends the duty of public authorities beyond the original NERC Act, which referred only to conservation, so that it includes the enhancement of biodiversity in England. The aim is to provide for the enhancement or improvement of biodiversity, not just its maintenance in its current state.
924. New subsection (1) sets out that, in order to comply with the revised biodiversity duty, a public authority must periodically consider the opportunities available to improve biodiversity, across the full range of its functions. This represents a proactive, strategic assessment of a public authority’s functions, rather than considering each function in isolation as required by the original section 40 duty.
925. New subsection (1A) sets out the process that the public authority must undertake following the strategic assessment. It may decide there is no action it can reasonably take that is consistent with the proper exercise of its functions. For example, it may decide a particular action is not possible within existing budget constraints, not good value for money or conflicts with other priorities. If there is action it can take, however, then paragraph (a) sets out that it must decide how that action can be put into effect, through appropriate policies and objectives. Paragraph (b) then requires the public authority to take the action.
926. New subsection (1B) provides further detail on those activities considered to be contributing to the general biodiversity objective. It establishes that the duty can be satisfied by adjusting existing policies and objectives, rather than requiring public authorities to introduce new policies or undertake new projects.
927. New subsections (1C) to (1E) establish the frequency with which the public authority should consider how it can improve biodiversity and then take action. New subsection (1C) provides that the initial assessment must be completed within one year of the amended duty coming into force. New subsection (1D) sets out that subsequent assessments to determine whether there is action it can reasonably take, and what that action should be, must take place at least every five years. New subsection (1E) requires that the decisions around which policies and objectives can be used to further the biodiversity objective, as required by subsection (1A)(a), should then follow as soon as is practically possible.
928. New subsection (1F) explains that, although the requirement is to evaluate opportunities to fulfil the general biodiversity objectives "from time to time", a public authority is free both to carry out a strategic assessment of its policies and specific objectives and to take action for biodiversity at any interval, as long as this consideration takes place frequently enough to satisfy new subsections (1C) and (1D).
929. Subsection (4) of section 102 amends an existing reference in section 40(2) of the NERC Act to ensure it refers to new subsections (1) and (1A) of the same section.
930. Subsection (5) of section 102 requires that public authorities must have regard to any relevant Local Nature Recovery Strategies (LNRSs), Species Conservation Strategies and Protected Site Strategies as part of their strategic assessment of their functions, establishing the relationship between the measures. LNRSs map existing important areas for nature and show the opportunities that exist in an area to recover and enhance nature. LNRSs will support public authorities in deciding the most appropriate and effective action to take to further the biodiversity objective under new section 40(1A) of the NERC Act, and in turn subsection (5) will support the implementation of LNRSs. Species Conservation Strategies and Protected Site Strategies (introduced in sections 109 and 110 respectively) are more targeted measures intended to address a range of impacts on species and protected sites. They will also support public authorities in determining the most appropriate and effective action to take in those areas where such a strategy is in operation.
931. Subsection (5) also adds a requirement for the Secretary of State to give guidance to local planning authorities. The guidance will specify how they are to take a local nature recovery strategy into account when discharging their duties under new section 40(1) and (A1) of the NERC Act 2006 concerning the conservation and enhancement of biodiversity. The Secretary of State is required to publish this guidance within two years from when this section comes into force, in such manner as the Secretary of State thinks fit. The Secretary of State is then required to keep the guidance under review and revise it when they consider it appropriate.
932. Subsection (6) updates the existing explanation of "conserving biodiversity" by directing public authorities to give particular focus to the conservation, restoration and enhancement of species and habitats when deciding the actions to take under the biodiversity objective. This particular emphasis on species and habitats reflects their significance within biodiversity overall, and the wider benefits for nature and society that can be accrued through actions for species and habitats.
933. Subsection (7) provides that in the case of HMRC, the duty does not apply to its functions in England alone, but also extends to its functions in Wales. This is to maintain the amendment made to section 40 by the Environment (Wales) Act 2016. This subsection also clarifies the spatial extent of the general biodiversity duty, establishing that the territorial sea adjacent to England falls under the duty.
934. Subsection (8) amends section 41 of the NERC Act so that its references to section 40 correctly reflect the amendments made by this Act. It also adds a reference to enhancing biodiversity to section 41(1) of that Act. This reflects the increased level of ambition set out in the Act, for not only conserving the existing biodiversity of England but also enhancing biodiversity, where appropriate.

Section 103: Biodiversity reports

935. This section adds new section 40A to the NERC Act, which creates a power for the Secretary of State to designate public authorities who are required to report on the action they have taken under the biodiversity objective set out in section 102. It also defines, at a high level, the content of the biodiversity reports and their frequency. These reports will capture how public authorities with significant landholdings have sought to conserve and enhance biodiversity, and will contribute to the improvement of information on protected sites, priority habitats and priority species.
936. Subsection (1) sets out the public authorities to which new section 40A applies. The scope of this reporting requirement is limited in comparison to the general biodiversity duty, as the latter applies to all public authorities. All local authorities and local planning authorities, excluding parish councils, will be required to produce biodiversity reports. It would not be reasonable to require other public authorities that do not have landholdings or the potential to improve biodiversity to produce reports, and so additional public bodies that must report will be designated by the Secretary of State in subsequent regulations as stipulated in subsection (8)(a).
937. Subsection (2) requires the public authorities identified in subsection (1) to produce biodiversity reports.
938. Subsections (3) and (4) specify the required content of a biodiversity report. In subsection (3), paragraphs (a) and (b) set out that this report will both reflect on the action the public authority has taken under the duty over the reporting period, and look forward to the actions it will take in the subsequent five-year reporting period. This qualitative information will be accompanied by quantitative data, as provided by paragraph (c). The specific data required will be stipulated in regulations issued by the Secretary of State; it could, for example, include the proportion of local wildlife sites in favourable condition. In addition to the required qualitative and quantitative information, paragraph (d) sets out that the public authority is free to include any other information it considers relevant. Subsection (4) specifies additional reporting requirements for local planning authorities – namely, the provision of information on biodiversity net gain. Local planning authorities must give a qualitative summary of the action they have taken to comply with mandatory biodiversity net gain, and any gains within their jurisdiction.
939. Subsections (5) to (7) set out the timing and frequency of reporting. Under subsection (5), the report must be published within 12 weeks after the end of the period that it covers, in order to ensure that the information shared is up-to-date and relevant upon publication. Subsection (6) sets out that a public authority must publish its first biodiversity report within three years of being designated as required to report, although it is at liberty to decide when to publish within this window. This applies both in cases when the public authority is designated on the introduction of section 103 and when the public authority is brought into scope at a later point. After the first report, subsection (7) establishes that the public authority must publish subsequent reports at least every five years, though again it can choose when to publish within this window.
940. Subsection (8) creates a power for the Secretary of State to issue regulations that designate public authorities as required to report, and to further define what data must be included in the biodiversity report. This will ensure key quantitative data is reported in a consistent fashion across all reports, thereby making comparisons across the reports easier. Having such data defined in regulations will also allow for it to be updated in the future as required.
941. Subsection (9) clarifies that the reporting requirement will not apply to public authorities that do not exercise functions in England.
942. Subsections (10) and (11) establish that the regulations should be issued through a statutory instrument subject to the negative resolution procedure in Parliament.
943. Subsection (12) clarifies that the definitions within this section are the same as used in the wider section 40 duty and in section 102.

Section 104: Local nature recovery strategies for England

944. This section provides for the creation of Local Nature Recovery Strategies (LNRSs) in England, for how the geographical coverage of each LNRS will be determined, and for the relationship between LNRSs and the biodiversity duty under the NERC Act.
945. Subsections (1) and (2) set out that the requirement for LNRSs applies to England and that, taken together, all areas of England will be covered by an LNRS.
946. Subsection (3) sets out that the area covered by each LNRS will be determined by the Secretary of State. This approach allows flexibility to make sure that the area covered by each LNRS balances the potentially competing needs to be ecologically meaningful (that is, based on the common geographic, geological, topographical or other physical features that help define the ecology of an area, and of sufficient scale to include a range of habitats and land uses) and align with existing administrative boundaries. It will also allow alignment of boundaries between neighbouring LNRS areas to avoid gaps or overlap. It is anticipated that the area covered by each LNRS will be approximately county-scale, but with the potential to vary to best accommodate differing local circumstances.
947. Establishment of the area covered by an LNRS is closely linked to agreement on the identity of the responsible authority, which will lead on the production of the LNRS. The process for doing this is set out in section 105.
948. Subsection (4) states that the area of a local authority, other than a county council, may not be split between different LNRSs. This requirement reflects the importance of local authorities in producing and implementing the LNRS, and is intended to make it easier for individual local authorities to do so by making each LNRS area an aggregate of local authority areas. This requirement will also facilitate the agreement of individual LNRS boundaries, and make sure they operate at scales most relevant to local authorities.
949. The bodies included within the definition of "local authority" are listed in section 108(2). County councils are exempted from the general prohibition in splitting local authorities between LNRSs because of their larger size, and the potential that not doing so would result in a de facto requirement that LNRSs conform to county boundaries, irrespective of ecological or other practical considerations. Whilst in many cases there may be good reason for LNRS and county council boundaries to align, it is reasonable to anticipate situations where this would not be the case.
950. Subsection (5) highlights the relationship between LNRSs and the duty to conserve biodiversity under section 40 of the NERC Act. The existing duty is modified by this section to require that all public authorities must have regard to any relevant LNRS in the proper exercise of their functions.

Section 105: Preparation of local nature recovery strategies

951. This section sets out the process by which LNRSs are to be prepared, published, reviewed and republished. It also provides a power for the Secretary of State to make regulations regarding this process.
952. Subsection (1) sets out that each LNRS will be prepared and published by a "responsible authority". The requirement to publish the LNRS is to ensure that the LNRS is a publicly available document.
953. Subsection (2) states that the Secretary of State will appoint the responsible authority for each LNRS, and lists the authorities who may potentially be appointed. In addition to those local authorities listed at section 108(2), the Secretary of State may appoint a mayoral authority, national park (including the Broads Authority) or Natural England.
954. It is intended that the appointment of the responsible authority will be by mutual agreement between the Secretary of State and the authority. Where the LNRS area corresponds with county or mayoral boundaries, it may be that the county council or mayoral authority would be well-placed to act as responsible authority. Where this is not the case, it would be preferable for the responsible authority to be another local authority, mayoral authority or national park to foster strong links between the LNRS and the land-use planning system and to benefit from existing local democratic mechanisms. Alternatively, Natural England would act as responsible authority.
955. Subsection (3) requires that the LNRS is reviewed and republished from time to time to ensure it remains current, relevant and forward-looking. Updates may be periodic or triggered by the Secretary of State publishing an updated national habitat map under section 107(3). Regulations made under subsection (5) may introduce specific requirements regarding the timings for reviewing and republishing of LNRSs. Information collected and published under the NERC reporting duty is expected to provide an important resource when reviewing and republishing the LNRS.
956. Subsection (4) provides that the Secretary of State can make regulations to introduce further requirements regarding how LNRSs must be prepared and published; both in the first instance and in later versions. Subsection (5) provides a non-exhaustive list of some specific aspects of this process that regulations may provide for. These are:
     • provision of information by a local authority that is not the responsible authority;
     • agreement of the LNRS by all local authorities within the LNRS area;
     • the procedure for reaching agreement and resolving disagreements;
     • consultation requirements; and
     • timings for reviewing and re-publishing of the LNRS.

957. These regulations provide a mechanism for creating consistency and maintaining standards between LNRSs and for encouraging a broad, collaborative approach to producing LNRSs, involving a wide range of stakeholders from public, private and voluntary sectors. Regulations allow for a greater level of detail than would be appropriate in primary legislation, and can be updated more easily to reflect experience of good practice.
958. Subsection (6) sets out that regulations made under subsection (4) will be by statutory instrument subject to the negative resolution process.

Section 106: Content of local nature recovery strategies

959. This section defines the required content of an LNRS, setting out the general nature of the documents that each LNRS must comprise and the information that these documents must contain. It also provides for the Secretary of State to issue statutory guidance to provide further detail.
960. Subsection (1) provides that each LNRS must include (a) a statement of biodiversity priorities for the plan area and (b) a local habitat map for the full extent of the area under the plan, either through one or multiple maps.
961. Subsection (2) specifies what the statement of biodiversity priorities referred to under subsection (1)(a) must include. The required elements are:
     • a description of the plan area and its biodiversity;
     • a description of the opportunities for recovering or enhancing biodiversity;
     • the priorities for recovering or enhancing biodiversity; and
     • proposals of potential measures relating to those priorities.

962. In combination these elements are intended to provide a comprehensive vision of the current and future potential biodiversity value of the plan area, and some proposed practical steps that different bodies may choose to support to help make improvements.
963. Subsection (3) specifies what the local habitat map referred to under subsection (1)(b) must include. The required elements are:
     • national conservation sites;
     • local nature reserves (as designated under section 21 of the National Parks and Access to the Countryside Act 1949); and
     • other areas that, in the opinion of the responsible authority, are or could become of particular importance for biodiversity, or where the recovery or enhancement of biodiversity could make a particular contribution to other environmental benefits.

964. The term "national conservation sites" is defined in section 108(3). National conservation sites and local nature reserves are treated separately because information on them will be made available to the responsible authority via different mechanisms. Section 107 creates a duty on the Secretary of State to provide responsible authorities with mapped information on national conservation sites, whilst information on local nature reserves is held by local authorities. Where a local authority is not the responsible authority, a requirement for them to provide information on local nature reserves to the responsible authority could be introduced via regulations made under section 105(4) to make sure that this forms part of the LNRS.
965. Subsection (3)(c)(i) is what is sometimes referred to as ‘biodiversity opportunity mapping’. The government is aware of more than a dozen different examples of biodiversity opportunity maps that have been produced by local authorities or on their behalf – such as Surrey Nature Partnership’s Biodiversity Opportunity Areas: the basis for realising Surrey’s ecological network . It is intended that LNRSs will build on and seek to accommodate existing best practice.
966. Subsection (3)(c)(ii) allows for the opportunities included in the local habitat map to consider other environmental benefits alongside recovering and enhancing biodiversity. For example, planting a new area of woodland for biodiversity would also sequester carbon, and potentially reduce the likelihood of flooding downstream. Intentionally targeting such multiple benefits may prove more cost-efficient and, in turn, such proposals may be more likely to be acted upon. Statutory guidance made under subsection (5) provides a mechanism by which approaches to including multiple environmental objectives could be applied consistently across all LNRSs.
967. Subsection (4) establishes that a local habitat map that only partially covers the area within the plan must correlate to the area of at least one of the local authorities within the plan area. This is intended to avoid an individual local authority, other than potentially a county council, from having to contribute to and consider more than one local habitat map.
968. Subsection (5) allows the Secretary of State to issue guidance on the information that an LNRS must include, in relation to the biodiversity priorities, the local habitat map or any other matter. Guidance is intended to assist responsible authorities in preparing an LNRS and to promote consistency between LNRSs.
969. Subsection (6) sets out that when the responsible authority is preparing an LNRS, it must have regard to any guidance that has been issued by the Secretary of State under subsection (5). This gives the guidance issued under subsection (5) greater standing and effect in achieving its purpose. The issuing of new or revised guidance would not require a responsible authority to revisit an LNRS that has already been published.
970. Subsection (7) requires guidance made under this section to be laid before Parliament before it is published.

Section 107: Information to be provided by the Secretary of State

971. This section introduces a new duty on the Secretary of State to make available certain information to the responsible authority to assist with the production of the LNRS.
972. Subsection (1) requires the Secretary of State to prepare and publish a national habitat map for England.
973. Subsection (2) specifies that the national habitat map must contain:
     • national conservation sites; and
     • other areas that the Secretary of State considers to be of particular importance for biodiversity.

974. The term "national conservation sites" is defined in section 108(3). Information on these sites is held by central government. Other areas of particular importance for biodiversity might include locations of scarce habitats or habitats upon which scarce species depend outside of existing protected sites.
975. Subsection (3) allows for the Secretary of State to review and republish the national habitat map from time to time. The distribution of different habitat types can be expected to change over time, and it is anticipated that technology, such as satellite imaging, may present new options for habitat mapping. Publication of an updated national habitat map may potentially trigger a responsible authority to review and republish its LNRS, as provided for in section 105(3).
976. Subsections (4) and (5) require the Secretary of State to inform the responsible authority of any areas in the authority’s strategy area that the Secretary of State considers could both:
     • be of greater importance for biodiversity, or where the recovery or enhancement of biodiversity could contribute to other environmental benefits; and
     • contribute to establishing a network of areas for recovery and enhancement of biodiversity across England as a whole.

977. This provision is similar to that in section 106(3)(c), which specifies that such areas are a required component of local habitat maps. Whilst the intention is that the large majority of such "biodiversity opportunities" are identified locally by the responsible authority through an open collaborative approach, subsections (4) and (5) are intended to also allow the Secretary of State to propose national priorities for an area. This might theoretically include future landscape-scale biodiversity projects.
978. Similarly to section 106(3)(c)(ii), subsection (5)(a) allows for the opportunities identified by the Secretary of State to consider other environmental benefits alongside recovering and enhancing biodiversity. Thus, areas might include those identified for other environmental reasons that could also have a biodiversity benefit, such as forestry creation.
979. The requirement at subsection (5)(b) that the Secretary of State should consider that the areas identified could contribute to establishing a network of areas for recovery and enhancement of biodiversity reflects the intention that LNRSs should not exist in isolation but should aggregate together. The government has recognised the need for coordinated action to address biodiversity decline through, amongst other policies, the commitment to create a national nature recovery network in the 25 Year Environment Plan (which this Act will make the first statutory environmental improvement plan). The information provided by the Secretary of State under this provision is intended to help individual responsible authorities develop LNRSs that can form the basis of an England-wide network for the recovery and enhancement of biodiversity.
980. Subsection (6) extends the duty on the Secretary of State to provide the responsible authority with information to anything else that the Secretary of State holds that the Secretary of State considers would assist in the preparation of an LNRS. Examples of such information might include other mapped information, like climate change assessments, soils, geology or topography that the Secretary of State considers might help the responsible authority assess the potential of a location for recovering biodiversity.

Section 108: Interpretation

981. This section offers clarification on the definition of the terms used in the preceding sections on LNRSs.
982. Subsection (1) sets out that these interpretations apply to the entirety of this section on LNRSs.
983. Subsection (2) defines the term "local authority", setting out the different classifications of local government to which these sections apply.
984. Subsection (3) defines the term "national conservation site", setting out the types of sites that must be included. This definition applies at both the local level for the responsible authority in developing the local habitat map that makes up the LNRS, and also at the national level for the Secretary of State in providing information to the responsible authority through the national habitat baseline map.

Section 109: Species conservation strategies

985. This section establishes species conservation strategies, which may be prepared by Natural England with the purpose of improving the conservation status of a specified species. It further requires local planning authorities, and any other public authority specified in regulations by the Secretary of State, to cooperate with Natural England in preparing and implementing a strategy. It then establishes that these authorities must consider any relevant strategy as they carry out their functions.
986. Natural England has already developed such a strategic approach in relation to licensing activity impacting on great crested newts. Evidence from this existing scheme will be used to inform aspects of the development of future strategies for other species.
987. In the areas of the country where species conservation strategies are put into effect, the measures they include will be integrated into the relevant Local Nature Recovery Strategies. This will allow them to form part of a wider landscape-scale plan for nature.
988. Subsection (1) specifies that a strategy may be prepared by Natural England, and that Natural England should publish it. It further defines the overall purpose of the strategy as improving the conservation status of any species of flora or fauna. This is to ensure that Natural England can prepare a strategy for any species where it is beneficial, without being constrained to any specific list of endangered or threatened species.
989. Subsection (2) establishes the name of the new type of strategy.
990. Subsection (3) sets out that a strategy should apply to a specific area, which can consist of England or any part of England. This allows Natural England to define the area to best suit the needs of the population of the species to which the strategy applies.
991. Subsection (4) lists elements that may form part of a strategy. The list is not definitive, as each strategy will be prepared to best support the conservation needs of a particular species and those needs will vary.
992. Paragraphs (a) and (b) of subsection (4) establish that a strategy may identify areas or features in the strategy area that are important for the protection of the species (such as key habitat) and set out priorities for where habitat can be created or improved so as to improve the species’ conservation status. Paragraphs (c) and (d) further specify that the strategy may include Natural England’s proposal for improving the conservation status of the species and Natural England’s advice to other decision making bodies, for example about conditions relating to the species that should attach to any approval given. Finally, paragraph (e) specifies that the strategy may set out how the mitigation hierarchy (avoid, mitigate, compensate) should be applied to addressing impacts on the strategy area from activity such as development.
993. Subsection (5) gives Natural England a power to periodically amend a strategy. This will allow strategies to be updated as evidence emerges showing how effective they are in improving the conservation status of the species.
994. Subsection (6) places a duty on local planning authorities and other prescribed authorities (as established by the Secretary of State through regulations as set out in subsection (9)) to cooperate with Natural England in preparing and implementing a strategy. The duty only applies if the cooperation required is relevant to the functions of the authority. This duty is a proportionate way to ensure Natural England has the data and support required to efficiently and effectively establish and lead a strategy.
995. Subsection (7) provides a power for the Secretary of State to produce guidance for authorities setting out what is required by the duty to cooperate in subsection (6). The power allows bespoke guidance to be prepared for each strategy, as the cooperation required will vary for different species and strategy areas.
996. Subsection (8) requires guidance made under this section to be laid before Parliament before it is published.
997. Subsection (9) requires authorities to consider any relevant strategies as they carry out their functions. This will have the effect that strategies are considered when local plans are developed or authorities carry out any other relevant functions which might impact on the conservation status of the species in the strategy area.
998. Subsection (10) defines some terms used throughout the section. It clarifies that the scope of the strategies extends to the territorial sea adjacent to England, but not the sea adjacent to Wales or Scotland as the legislation only applies to England. It further defines "local planning authority" as the definition used in the Town and Country Planning Act 1990.
999. Subsection (10) also gives the Secretary of State a power to specify in regulations other prescribed public authorities in addition to local planning authorities that may be required to cooperate with natural England in preparing and operating a strategy. While cooperation will largely be required only from local planning authorities, a specific strategy might require cooperation from other public authorities such as a marine management organisation or the Environment Agency.
1000. Subsection (11) establish that the regulations in subsection (10) should be issued through a statutory instrument subject to the negative resolution procedure in Parliament.

Section 110: Protected Site Strategies

1001. This section establishes Protected Site Strategies, which may be prepared by Natural England with the purpose of improving the conservation and management of a protected site, and managing the impact of activity, such as off-site development, on those sites. It requires local planning authorities and other appropriate public bodies to cooperate with Natural England in preparing a strategy. It then establishes that public bodies must consider any relevant strategy as they carry out their functions.
1002. Suitable Alternative Natural Green spaces (SANGs) in the Thames Basin Heaths are an example of a strategic approach established by Natural England in cooperation with local planning authorities and other appropriate public bodies. The section will place Protected Site Strategies prepared by Natural England on a legislative footing.
1003. In the areas of the country where Protected Site Strategies are put into effect, the measures they include will be integrated into the relevant Local Nature Recovery Strategies. This will allow them to form part of a wider landscape-scale plan for nature.
1004. Subsection (1) specifies that a strategy may be prepared by Natural England, and that Natural England should publish it. It further defines the overall purpose of the strategy as improving the conservation and management of a protected site. This is to ensure that Natural England can prepare a strategy for any protected site where it is beneficial.
1005. Subsection (2) establishes the name of the new type of strategy.
1006. Subsection (3) sets out the definition of a protected site for which a strategy can be prepared within England and its adjacent territorial sea.
1007. Subsection (4) lists elements that may form part of a strategy. The list is not definitive as each strategy will be prepared to best support the conservation and management of a protected site, and those needs will vary.
1008. Paragraph (a) of subsection (4) establishes that a strategy may include an impact assessment of development on the conservation or management of the protected site. Paragraph (b) establishes that a strategy may also include Natural England’s advice on how the mitigation hierarchy (avoid, mitigate or compensate) should be applied to address adverse impacts identified by the impact assessment. Paragraphs (c) and (d) further specify that a strategy may include any measures that Natural England considers necessary for the conservation or management of a protected site.
1009. Subsection (5) sets out the bodies that Natural England must consult in preparing a strategy. These include local planning authorities, the Secretary of State and any other public bodies for whom the strategy may be of relevance. It ensures strategies are prepared with input from key stakeholders.
1010. Subsection (6) defines the term "an adverse impact on the conservation or management of a protected site" for the different types of protected sites. The definitions align with existing legislation for consistency.
1011. Subsection (7) places a duty on local planning authorities and others (listed in subsection (5)) to cooperate with Natural England in preparing a strategy. The duty only applies if the cooperation required is relevant to the functions of the authority. This duty is a proportionate way to ensure Natural England has the data and support required to efficiently and effectively establish and lead development of a strategy.
1012. Subsection (8) provides a power for the Secretary of State to produce guidance for authorities setting out what is required by the duty to cooperate in subsection (7). The power allows bespoke guidance to be prepared for each strategy, as the cooperation required will vary for different protected sites.
1013. Subsection (9) requires guidance made under this section to be laid before Parliament before it is published.
1014. Subsection (10) requires bodies to consider the strategies as they carry out their duties under protected sites legislation. This will ensure that strategies are taken into account when local plans are developed, or when authorities carry out any other functions which might impact on the conservation or management of a protected site.
1015. Subsection (11) gives Natural England a power to periodically amend a protected site strategy. This will allow strategies to be updated as evidence emerges showing how effective they are in improving the conservation or management of a protected site.
1016. Subsection (12) places a duty on Natural England to consult with relevant local authorities and others (listed in subsection (5)) when amending a strategy (under subsection (10)) to the extent that those amendments are relevant to the authorities’ functions.
1017. Subsection (13) defines some terms used throughout the section. The definitions align with other relevant legislation for consistency. It clarifies that the scope of the strategies extends to the territorial sea adjacent to England, but not the sea adjacent to Wales or Scotland as the legislation only applies to England. It further defines "local planning authority" as the definition used in the Town and Country Planning Act 1990.

Section 111: Wildlife conservation: licences

1018. Many wild animals and their habitats are protected under the Wildlife and Countryside Act 1981 ("the 1981 Act") and the Conservation of Habitats and Species Regulations 2017 ("the 2017 Regulations"). A licence may be required for activities that might otherwise be offences under the legislation, such as demolishing an unsafe derelict building that contains a bat roost. This section removes inconsistencies between the licensing provisions in the 1981 Act and the 2017 Regulations, particularly those that may impede species conservation strategies. It enables licences to be issued under section 16(3) of the 1981 Act for reasons of overriding public interest. It also ensures that no licence may be issued unless there is no other satisfactory solution and the granting of the licence is not detrimental to the survival of any population of the species concerned. It also extends the maximum period for which a licence may be issued by Natural England from two to five years.
1019. Subsection (1) establishes that, if a licence has been granted by Natural England under the 2017 Regulations for an activity, the licence will provide a defence in relation to carrying out that same activity under the 1981 Act. This clarifies that Natural England only needs to issue one licence to cover an activity in relation to a particular species.
1020. Subsection (2) sets out that protected species licences can be issued for "reasons of overriding public interest" in England under the 1981 Act. An equivalent licensing purpose is currently set out in the 2017 Regulations, but not in the 1981 Act, which can lead to uncertainty about how activities should be licensed for species that are covered by both pieces of legislation. Removing this uncertainty ensures a legally consistent approach to licensing under the 1981 Act and the 2017 Regulations, and also helps to clarify that Natural England only needs to issue one licence to cover an activity for a particular species. This does not weaken the strict protections that are in place for the most vulnerable species.
1021. Subsection (3) specifies that no licence may be issued under section 16(3) of the 1981 Act unless there is no other satisfactory solution and the granting of the licence is not detrimental to the survival of any population of the species concerned. These additional safeguards apply to all species licences issued under section 16(3), not just those granted under the new "overriding public interest" purpose. The first safeguard requires applicants to demonstrate that there is no suitable alternative to undertaking an activity under licence. The second ensures that licences will only be granted after full consideration of the impact of an activity and where this will not be detrimental to populations of the protected species at local, regional or national levels.
1022. Subsection (4) establishes that licences granted by Natural England under section 16(3) of the 1981 Act can be for a period of up to five years instead of up to two years. The availability of a longer licensing period supports species conservation strategies which aim to achieve the best long-term outcomes for the species concerned. It may also be beneficial in other circumstances where longer licences pose no risk to the conservation status of the species concerned. It therefore provides Natural England with the discretion to set a longer licence period when that is appropriate.
1023. Subsection (5) ensures that the definition of "appropriate authority" includes the "relevant conservation body" for the purposes of section 16(3) of the 1981 Act and applies to the new licensing purpose established by subsection (2). The relevant conservation body is Natural England.
1024. Subsection (6) establishes that licences granted by Natural England under regulation 55 of the Conservation of Habitats and Species Regulations 2017 can be for a period of up to five years instead of up to two years, in a similar way and for similar reasons to subsection (4).

Section 112: Habitats Regulations: power to amend general duties

1025. Regulation 9 of the Conservation of Habitats and Species Regulations 2017 ("the Habitats Regulations") sets out duties for relevant public authorities to exercise their nature conservation functions in compliance with the requirements of the Habitats Directive and the Wild Birds Directives ("the Directives") to maintain or restore protected habitats and species.
1026. This section provides the Secretary of State with the power to amend regulation 9 to support delivery of domestic biodiversity priorities, rather than remaining bound by legacy EU legislation, without reducing the level of environmental protection provided. The power is designed with the aim of conserving and enhancing biodiversity. 
1027. Subsection (1) provides the Secretary of State with the power to amend the Habitats Regulations in England only, for the purposes set out in subsection (2). 
1028. Subsection (2) sets out the purpose of the section. Subsection (2)(a) requires public authorities covered by regulation 9(1) to comply with the requirements imposed and the objectives specified in regulations made under this power. Subsection (2)(b) requires competent authorities covered by regulation 9(3) to have regard to the matters specified by regulations under this power. 
1029. Subsection (3) allows for requirements to be imposed or objectives and matters specified in relation to biodiversity targets set out in Part 1 of the Environment Act and the measures relating to biodiversity in the Environmental Improvement Plan.
1030. Subsection (4) enables the Secretary of State to impose additional requirements or specify additional objectives or matters if appropriate for the conservation or enhancement of biodiversity. Subsections (3) and (4) enable the Habitats Regulations to be aligned with domestic biodiversity priorities without reducing the level of environmental protection. 
1031. Subsection (5) provides for consequential amendments to be made to any references to requirements, objectives or provisions of the Directives within the Habitats Regulations. The purpose is to ensure consistency within the regulations.
1032. Subsections (6) to (10) provide a number of requirements which must be met before the power in subsection (1) can be exercised.
1033. Subsection (6) places a duty on the Secretary of State to have regard to the particular importance of furthering the conservation and enhancement of biodiversity when making amendments to regulation 9.
1034. Subsection (7) stipulates that the Secretary of State can make amendments using this power only if satisfied that the new regulations do not reduce the level of environmental protection currently provided by the Habitats Regulations.
1035. Subsection (8) requires the Secretary of State to lay before Parliament and publish a statement prior to making any regulations to explain how the condition in subsection (7) is met.
1036. Subsection (9) places a duty on the Secretary of State to consult as appropriate prior to using the power under this section to make regulations. 
1037. Subsection (10) stipulates that the power to amend regulation 9 can only be used from the 1 February 2023. This is the date set out in section 7(5) of the Act in relation to "the significant improvement test", and section 10(3) of the Act in relation to when the first review of the Environmental Improvement Plan must be completed. 
1038. Subsection (11) defines the term ‘the Directives’ and the definition is in alignment with the existing use of the term in the Habitats Regulations to ensure consistency. It also sets out the definition for the use of the term ‘England’ as including the territorial sea up to 12 nautical miles, however, it does not include any territorial waters adjacent to (a) Wales or (b) Scotland as the legislation only applies to England. The Habitats Regulations apply to inshore areas up to 12 nautical miles. The offshore area, 12-200 nautical miles, is covered by the Conservation of Offshore Marine Habitats and Species Regulations.  
1039. Subsection (12) establishes that any regulations made under the power to amend regulation 9 must be made through a statutory instrument subject to the affirmative procedure. This means it must be laid before and approved by a resolution of each House of Parliament.

Section 113: Habitats Regulations: power to amend Part 6

1040. This section confers a power on the Secretary of State to amend Part 6 of the Conservation of Habitats and Species Regulations 2017 ("the Habitats Regulations"). This part of the Regulations sets out the requirements for the assessment of plans and projects on European protected sites, restricts the approval of such plans or projects unless the decision-maker is satisfied that the site is not adversely affected and provides for appropriate mitigation or compensation. This ensures that habitats and species are properly protected and adverse impacts avoided.
1041. The national site network of European sites provides protection for habitats designated for a particular purpose and supports delivery of international and domestic biodiversity objectives.
1042. This power would enable changes to be made where evidence suggests that amending the regulations can make the processes clearer and more legally certain to improve the condition of protected sites and the broader natural environment. 
1043. Subsection (1) provides a power for the Secretary of State to amend Part 6 of the Habitats Regulations in England.
1044. Subsections (2) to (5) provide a number of requirements which must be met before the power in subsection (1) can be exercised.
1045. Subsection (2) places a duty on the Secretary of State to have regard to the particular importance of furthering the conservation and enhancement of biodiversity when making amendments to Part 6 of the Habitats Regulations.
1046. Subsection (3) stipulates that the Secretary of State can make amendments using this power only if satisfied the new regulations do not reduce the level of environmental protection currently provided by the Habitats Regulations.
1047. Subsection (4) requires the Secretary of State to publish and lay before Parliament a statement prior to making any regulations to explain how the condition in subsection (3) is met.
1048. Subsection (5) places a duty on the Secretary of State to consult as appropriate prior to using the power under this section to make regulations.
1049. Subsection (6) defines the term ‘England’ and the definition is in alignment with the use of the term in section 112 (power to amend general duties).
1050. Subsection (7) establishes that any regulations made under the power to amend Part 6 must be made through a statutory instrument subject to the affirmative procedure. This means it must be laid before and approved by a resolution of each House of Parliament.

Section 114: Controlling the felling of trees in England

1051. Section 114 introduces Schedule 16, which enables the Commission to create a local land charge where illegal felling has taken place or a licence has not been complied with. A local land charge is a public record and the buyer will take the land subject to the charge.

Section 115: Local highway authorities in England to consult before felling street trees

1052. Section 115 inserts new section 96A into the Highways Act 1980.

New section 96A Duty of local highway authorities in England to consult before felling street trees

1053. Subsection (1) requires local highway authorities to consult the public before felling any street trees. Defra has used the definition of highway authority as set out in section 1 of the Highways Act 1980. This includes the council of a county or metropolitan district, Transport for London as the highway authority for major roads in London, and the council of a London borough for other London roads. Roads managed by other highway authorities that are not local highway authorities – such as trunk roads managed by the Secretary of State through Highways England – are out of scope. Only trees on land legally adopted as a highway, and therefore in scope of local highway authorities powers/duties, are in scope.
1054. Local highway authorities must consult on all street trees they are considering felling, unless the tree is exempt. If appropriate, several street trees can be consulted on at once.
1055. Subsection (2) lays out the requirement for local highway authorities to consider any guidance released by the Secretary of State. The government intends to publish guidance to cover how this duty should be applied and the process that should be used.
1056. Subsection (3) sets out trees that are exempt from the consultation required in this duty. This means that any tree meeting the criteria as laid out in this subsection would not require a consultation before being felled. Further explanation of some of the exemptions have been provided below:
      • The tree size exemption used in paragraph (a) is consistent with the standard tree size definitions used by the British Tree Nursery sector.
      • The tree is required to be felled under the Plant Health Act 1967. Under this Act, statutory plant health notices can be issued that require the owner or manager to eradicate or contain notifiable pests and diseases. This can include felling a tree and failure to comply can result in enforcement action and prosecution.
      • The tree is required to be felled under any enactment on the basis that the tree is dangerous. This covers trees that need to be felled urgently because they present an immediate danger to life or property.
      • The tree is required to be felled in order to comply with section 20 or 29 of the Equality Act 2010 because the tree is causing an obstruction. This means that a tree can be felled where it is blocking, or otherwise making the pavement a danger for disabled people to use. This would result in the footway being unusable for people with a disability.
      • The tree is required to be felled as part of development authorised either by a granted planning permission or by an outlining planning permission as defined by the Town and Country Planning Act 1990. Specific sections of this are specified in the sections.

1057. "Street trees" are those situated on urban roads as defined under subsection (4).
      • Subsection (1)(a) references section 81 of the Road Traffic Regulation Act 1984, which specifies a general speed limit for restricted roads. It states that a restricted road is one where a speed limit of 30 miles per hour is in place.
      • Subsection (1)(b) references roads that would otherwise have a 30 miles per hour speed limit but have their speed limit increased to 40 miles per hour. These roads will also be in scope of the duty to consult.
      • Subsection (1)(c) brings into scope urban streets excluded by the above definitions, for example because the road, although urban, has a higher speed limit.

Section 116: Use of forest risk commodities in commercial activity

1058. Section 116 introduces Schedule 17, which sets out requirements on prescribed businesses using forest risk commodities in their UK commercial activities to tackle illegal deforestation in their supply chains. ‘Forest risk commodities’ are defined in Schedule 17 as agricultural commodities whose production is associated with wide-scale conversion of forest.
1059. Subsection (1) of this section lays out what each part of Schedule 17 makes provision for. Part 1 of the Schedule makes provision on the use of forest risk commodities in commercial activity, Part 2 contains enforcement provisions, and Part 3 contains a requirement to review the effectiveness of the Schedule, and definitions of terms used in the Schedule.
1060. Subsection (2) specifies which regulations made under Schedule 17 are subject to the affirmative procedure. These are regulation specifying the commodities in scope, additional categories of relevant local law, regulated persons in scope, setting exemption thresholds, and details on enforcement provisions.
1061. Subsection (3) specifies which regulations made under Schedule 17 are subject to the negative procedure. These are details on the due diligence system and annual report, as well as information required when giving a notice for exemption to the enforcement authority.

Part 7: Conservation Covenants

Section 117: Conservation covenant agreements

1062. Subsection (1) defines a conservation covenant agreement. It is a voluntary, private agreement between a landowner and a "responsible body" (as defined in section 119), executed as a deed by the parties, and containing provision which meets specified conditions as set out in subsection (1)(a). These conditions are that the provision is of "a qualifying kind", has a "conservation purpose", and is intended by the parties to be for the public good. The meaning of "qualifying kind" is covered in subsection (2). Subsection (3) defines "conservation purpose" and the meaning of "conserving" is dealt with in subsection (4).
1063. Subsection (1) also states that for the agreement to be a conservation covenant it must be apparent from the agreement that the parties intend to create a conservation covenant. No particular wording is specified for that purpose. The intention of that requirement is to ensure that agreements do not take effect as conservation covenants contrary to the wishes of the parties.
1064. Subsection (2) states that a provision of a "qualifying kind" is of one of two kinds. First, it may require the landowner to do, or not to do, something on specified land in England, or require the landowner to allow the responsible body to do something on such land. Second, it may require the responsible body to do something on such land.
1065. Subsection (2) also provides that the landowner must hold a "qualifying estate" in the land to which the provision in question relates and this must be specified in the agreement. As set out in subsection (4), a "qualifying estate" is a freehold, or a leasehold estate of more than seven years; subsection (4)(b) provides that a conservation covenant can only be created by a lessee during the fixed term of the lease, and not during any subsequent period of statutory continuation of the lease (for example, under section 24(1) of the Landlord and Tenant Act 1954).
1066. Subsection (3) sets out what qualifies as a conservation purpose. It extends to the natural environment of the land, such as plants and animals and their habitats; the land’s natural resources, such as water on the land; the land as a place of archaeological, architectural, artistic, cultural or historic interest; and the setting of the land. The reference to setting provides for the protection of land around a conservation site, which may affect its conservation status. For example, the architectural or artistic value of a country house could derive in part from the landscape in which it is set.

Section 118: Conservation covenants

1067. Section 118 defines a conservation covenant. It is that part of a conservation covenant agreement that is given statutory effect by this section.
1068. This section gives statutory effect to any provision contained in a conservation covenant agreement which is of a qualifying kind, has a conservation purpose, and is intended by the parties to be for the public good – the conditions specified in section 117(1)(a).
1069. This section also gives statutory effect to any provision in a conservation covenant agreement that is ancillary to a provision that meets those conditions. An "ancillary provision" is a provision that does not itself meet the conditions in section 117(1)(a), but is related to the performance of a provision that does – for example, provision for payment for work done on the land, or provision relating to the way in which work is to be performed. Ancillary provisions may not themselves have a conservation purpose or, taken in isolation, be intended to be for the public good; they are nevertheless closely linked with provision of the agreement that does meet the relevant conditions, and so are given statutory effect along with them.
1070. This section also provides that provision for public access to land that is the subject of a conservation covenant is to be treated as ancillary to provision given statutory effect by the section. Provision for public access to land may not itself meet the conditions specified in section 117(1)(a) because it may not itself have a conservation purpose. By treating such provision as ancillary provision, subsection (3) makes sure that the public access provision is given statutory effect.
1071. Both types of provisions of conservation covenant agreements given statutory effect by this section (those that meet the conditions specified in section 117(1)(a) and ancillary provisions) are referred to in the rest of Part 7 as obligations under a conservation covenant (subsection (4)(a)).

Section 119: Responsible bodies

1072. As above, a conservation covenant is an agreement between a landowner and a responsible body. The responsible body is able to enforce compliance with the landowner’s obligations under the conservation covenant (see section 122). It may or may not also be made subject to obligations under the conservation covenant.
1073. Section 119 defines "responsible bodies" as, on the one hand, the Secretary of State and, on the other hand, bodies which are designated by the Secretary of State. Bodies will need to apply to be designated (subsection (2)). An application from a local authority in England will need to satisfy the Secretary of State that it is suitable to be a responsible body, and other bodies will, additionally, have to satisfy the Secretary of State that at least some of its main purposes, functions or activities relate to conservation (subsections (3), (4) and (5)).
1074. Subsection (6) allows the Secretary of State to revoke a designation by notice in certain circumstances, including if the relevant body no longer meets the conditions for designation.
1075. The Secretary of State must publish and keep up to date a document setting out the criteria which will be applied to determine if an applicant body is suitable to be or to remain a responsible body, which may stipulate that applicants should have a connection with the United Kingdom (subsections (7) and (8)). The Secretary of State must also publish and keep up to date a list of designated responsible bodies.
1076. Subsection (9) defines "charity", "conservation" and "local authority" for the purposes of section 119.

Section 120: Local land charge

1077. Subsection (1) provides that a conservation covenant is a local land charge.
1078. As a result, section 5(2) of the Local Land Charges Act 1975 applies. This imposes a duty upon the responsible body to apply for registration of the conservation covenant as a local land charge.
1079. Subsection (3) amends the application of section 2 of the Local Land Charges Act 1975 so as to ensure that a conservation covenant between a lessor and a lessee is not excluded from being a local land charge.
1080. Subsection (4) modifies section 10(1) of the Local Land Charges Act 1975 in its application to conservation covenants. The modifications reflect the fact that a conservation covenant is effective against subsequent owners of the land only once it has been registered as a local land charge (see section 122(5)(b)). This differs from the general position where the enforceability of a local land charge is unaffected by whether or not it is registered. Accordingly, the registering authority cannot incur liability for non-registration. However, liability for a defective search result remains in the usual way.

Section 121: Duration of obligation under conservation covenant

1081. This section provides that each obligation in a conservation covenant has a specified duration, either as a result of this section or as a result of an explicit provision in the agreement.
1082. The parties can specify the duration of an obligation under a conservation covenant. If they do not do so, an obligation under a conservation covenant has effect for the "default period" which is:
      • a period of indefinite duration where the relevant qualifying estate is a freehold estate; or
      • the remainder of the term where the relevant qualifying estate is a leasehold estate.

1083. Accordingly, a conservation covenant created by a freeholder will be of indefinite duration if the parties do not specify a shorter duration. The duration of a conservation covenant created by a leaseholder cannot exceed the remainder of the term of the lease but, again, the parties may specify a shorter term.

Section 122: Benefit and burden of obligation of landowner

1084. This section sets out who is responsible for complying with an obligation under a conservation covenant entered into by a landowner and, therefore, the person against whom any enforcement action can be taken in the event of breach. It also spells out who may take such action (that is, the person to whom the obligation is owed).
1085. Subsection (1) provides that an obligation under a conservation covenant is owed by a landowner to the responsible body under the conservation covenant.
1086. Subsection (2) has the effect that a conservation covenant will bind the landowner who created it (referred to in these notes as "the original covenantor"), and burden the estate in land which enabled the landowner to create it ("the qualifying estate"). A conservation covenant will bind any successors of the original covenantor – that is, anyone who acquires the original covenantor’s estate in the land (or part of that land) or who holds an estate derived from that estate (for example, a lease of the whole or part of the land) – unless one of the exceptions in subsection (5) applies.
1087. A conservation covenant will not bind anyone whose interest in the land predates the conservation covenant. If a freeholder grants a lease, and then enters into a conservation covenant relating to the land which is the subject of the lease, and the lessee is not a party to the conservation covenant, the lessee will not be bound by any obligation of the landowner under the conservation covenant. On the other hand, where a freeholder enters into a conservation covenant of indefinite duration and then grants a lease of the land then, unless one of the exceptions in subsection (5) applies, the leaseholder will be bound by the conservation covenant throughout the term of the lease.
1088. Subsection (4) provides that a landowner’s liability in respect of an obligation under a conservation covenant comes to an end on parting with the whole of the estate by virtue of which he or she is bound by the obligation, or if the land is no longer bound by the conservation covenant. If the landowner ceases to own only part of the land, he or she will continue to be bound by the obligation but only in relation to the retained land. If an obligation is partially discharged, the application of subsection (2)(b) is correspondingly reduced because the land to which the obligation relates diminishes. In the case of modification, the obligation continues, but needs to be read as modified as respects the land to which the modification relates.
1089. Subsection (5) provides for three situations in which a successor will not be bound by the conservation covenant:
      • Subsection (5)(a) provides that a lessee under a lease granted for seven years or less is not bound by positive obligations under a conservation covenant. Accordingly, where a freeholder creates a conservation covenant which is registered as a local land charge (as set out in subsection (5)(b)), and then grants a periodic tenancy (e.g. one which lasts from week to week or month to month), the lessee will be bound by negative obligations in the conservation covenant but not by positive ones. The same result follows if a lessee with a lease of more than seven years (see section 107(4) and the definition of "qualifying estate") creates a conservation covenant and then grants a sub-lease of seven years or less, or a periodic tenancy.
      • Subsection (5)(b) provides that a successor will only be bound by a conservation covenant if it was registered as a local land charge at the time they acquired the land. An estate in land is "acquired" for these purpose at the time of the disposition (for example, a sale, a gift, a grant of a lease) even if that disposition is required to be completed by registration at the Land Registry (subsection (7)).
      • Subsection (5)(c) provides that a successor will not be bound by a conservation covenant if their immediate predecessor was not bound. This could arise in the context of the discharge of a conservation covenant in respect of part of the land to which it related or where a conservation covenant is registered late. For example, a landowner, A, and a responsible body enter into a conservation covenant agreement. Before the responsible body registers the conservation covenant as a local land charge, A transfers part of the land to B, who later transfers it to C. Even if the conservation covenant is subsequently registered as a local land charge, C will not be bound by it because B was not bound by it at the time B transferred it to C. "Immediate predecessor" is defined by subsections (8) and (9).

1090. Subsection (6) deals with the fact that the changes made to the system of local land charges registers by Schedule 5 of the Infrastructure Act 2015 are being introduced incrementally. The changes in question are the replacement of the system where local authorities maintain their own separate local land charges register by a system where a unified local charges register is maintained by HM Land Registry.

Section 123: Benefit of obligation of responsible body

1091. This section sets out who is owed an obligation of the responsible body under a conservation covenant and who can, therefore, enforce it.
1092. It provides that such an obligation is owed to the landowner with whom the responsible body entered into the conservation covenant (referred to in these notes as "the original covenantor") and anyone who later holds either the relevant qualifying estate or an estate in land derived from this. For example, a transferee of the land, or a lessee, can enforce the responsible body’s obligations. However, the original covenantor or a successor can only do so while he or she holds the relevant estate (subsections (3)(b) and (3)(c)).
1093. Subsection (4) ensures that if a successor to the original covenantor is not bound by certain obligations – in particular, by positive obligations because he or she holds a lease for seven years or less – then the responsible body will not owe the successor any obligations that are ancillary to the obligations that do not bind the successor.

Section 124: Breach of obligation

1094. Subsections (1) and (2) set out what amounts to a breach of negative and positive obligations, respectively. Where a landowner undertakes a negative obligation, they must not breach or allow others to breach it. Where they take on a positive obligation there is a responsibility to ensure that it is performed. These will be relevant considerations where the landowner grants a lease of the land after the creation of the covenant.

Section 125: Enforcement of obligation

1095. Section 125 sets out the remedies that are available in proceedings for the enforcement of an obligation under a conservation covenant. It also provides that when considering, in the context of an application for equitable relief, what remedy is appropriate, the court must take into account any public interest in the performance of the obligation concerned.
1096. Contract principles apply to awards of damages (subsection (3)), and in particular the rules that determine remoteness of damage. Contractual damages compensate the claimant for loss; and, in most cases, the direct loss to the responsible body as a result of breach of an obligation in a conservation covenant may be insignificant. For that reason, it is expected that in most cases the remedy sought will be an injunction, or an order for specific performance of the obligation. In considering claims for an injunction, the court has discretion to award damages instead, and in that context it is expected that a consideration of the public interest will be particularly significant.
1097. Subsection (4) enables the court to award exemplary damages where a landowner has breached obligations. This is to ensure that a landowner is not able to profit from a breach of an obligation in a conservation covenant – for example, by developing the land in contravention of the covenant in circumstances where compensatory damages may be very small. In such circumstances, the court can make an award of damages that will strip the landowner of any profit from the beach of covenant.
1098. Subsection (5) provides that the limitation period in respect of an action for breach of an obligation under a conservation covenant is the same as the limitation period under section 5 of the Limitation Act 1980 for an action founded on simple contract. This means that any proceedings in respect of a conservation covenant cannot generally be brought after the expiration of six years from the date on which the cause of action accrued.

Section 126: Defences to breach of obligation

1099. Section 126 sets out defences to proceedings for breach of an obligation under a conservation covenant. These are: where the breach occurred because of something beyond the defendant’s control (subsection (1)(a)), as a result of something done in an emergency to prevent loss of life or injury (for example, to control flood water)(subsection (1)(b)), or in circumstances where it is not possible to comply with an obligation under a conservation covenant without breaching a statutory control applying as a result of the designation of the land for a public purpose (subsection (1)(c)).
1100. The latter defence will only be available if the land was designated for a public purpose after the conservation covenant was created (subsection (3)) and, in the event that the defence is relied on only because of a failure to obtain authorisation that would have enabled compliance with the obligation, the defendant can show that he or she took all reasonable steps to obtain such an authorisation (subsection (2)).
1101. For example, land may be subject to a conservation covenant which requires the landowner to carry out specified works, and the land, or part of it, may be subsequently designated as a Site of Special Scientific Interest (SSSI). The works specified in the conservation covenant are likely to damage the special interest features for the site and cannot be done without the consent of Natural England. Natural England refuses consent. If the landowner carries out the works required by the conservation covenant he or she will commit an offence under section 28P of the Wildlife and Countryside Act 1981. In these circumstances the landowner could rely on this latter defence.
1102. Subsection (4) provides that the defence of statutory authority applies to conservation covenants. The intention is that when a public body such as a local authority acquires, and uses, land in accordance with its statutory powers it can override a conservation covenant that binds the land, in the same way that it can override an easement affecting the land.

Section 127: Discharge of obligation of landowner by agreement

1103. This section provides that the responsible body under a conservation covenant and a landowner bound by (or having the benefit of) a conservation covenant can by agreement discharge any of the relevant land from the obligation (insofar as it relates to the landowner’s estate). An agreement to do this must be executed by deed by the parties and identify the relevant land, obligation and qualifying estate.
1104. If the whole of the land to which an obligation of the landowner under the conservation covenant relates is discharged from the obligation, the effect is to modify the covenant or, if it is the only obligation under the covenant, to discharge it entirely. Rules 8(1) and (2) of the Local Land Charges Rules 1977 require details to be given to the registering authority in relation to the Local Land Charges Register following the modification or discharge of a registered charge.
1105. If an area of land is discharged from an obligation of the landowner under the conservation covenant, the effect will be that the obligation relates to a smaller area of land because some land will have been freed from the obligation. Subsection (4)(a) ensures that a landowner is no longer bound by an obligation in respect of land which has been discharged from it.

Section 128: Discharge of obligation of responsible body by agreement

1106. This section provides that a person to whom a responsible body owes an obligation under a conservation covenant may agree with the responsible body to discharge the obligation in respect of the estate in land by virtue of which that person is owed the obligation. This can be done in respect of part or all of the relevant land. An agreement to do this must be executed as a deed by the parties and identify the relevant land, obligation and qualifying estate.
1107. If the responsible body under a conservation covenant is released from an obligation under the covenant, that is a modification of the covenant for the purposes of rules 8(1) and (2) of the Local Land Charges Rules 1977. As above, the details of the modification have to be given to the registering authority in relation to the Local Land Charges Register.

Section 129: Modification of obligation by agreement

1108. Subsection (1) creates a means of modifying an obligation by agreement between the responsible body and a landowner bound by (or having the benefit of) an obligation under a conservation covenant. The power can be exercised in relation to any of the land in respect of which the landowner is bound by, or entitled to the benefit of, the obligation under the conservation covenant.
1109. Subsection (2) means that an obligation under a conservation covenant cannot be modified such that, had the relevant provision (as modified) been included in the original agreement, it would not have met the qualifying conditions for having effect as a provision of a conservation covenant (that is, the conditions in subsection 117(1)(a)). For example, an obligation could not be modified so that it does not serve a conservation purpose.
1110. Subsection (3) sets out the requirements for the form and content of the agreement; it must be executed as a deed by the parties and identify the relevant land, obligation and qualifying estate. Subsection (4) provides that any modification will bind the parties to the agreement and their successors in respect of any of the land to which the modification relates.
1111. For example, X enters into a conservation covenant and then transfers part of the land to Y, leases another part to Z, and retains part of the land. The original obligation may, following devolution of parts of the original landowner’s interest, bind X, Y and Z. X then enters into an agreement with the responsible body to modify the obligation. This particular modification will only bind X. It will not bind Y and Z as they are not parties to the modification agreement. In the case of X (and his or her successors), the obligation under the conservation covenant is then read with the modification. In the case of Y and Z (and their successors), the obligation under the covenant has effect without modification.
1112. Rules 8(1) and (2) of the Local Land Charges Rules 1977 require details to be given to the registering authority in relation to the Local Land Charges Register following the modification of a registered charge.

Section 130: Discharge or modification of obligation by Upper Tribunal

1113. Section 130 gives effect to Schedule 18, which makes provision about the discharge or modification of an obligation under a conservation covenant on application to the Upper Tribunal.
1114. An application for discharge or modification may, in some circumstances, be found useful as a response to proceedings brought to enforce an obligation under a conservation covenant. Subsection (2) gives a person who is the subject of enforcement proceedings the right to apply to the High Court or the county court for an order giving permission to apply to the Upper Tribunal and suspending the enforcement proceedings in the meantime.
1115. Subsection (3) provides that an application cannot be made under section 84(1) of the Law of Property Act 1925 to discharge or modify an obligation under a conservation covenant. This ensures that obligations under a conservation covenant are modified or discharged by the Lands Chamber of the Upper Tribunal only on the basis designed for conservation covenants.

Section 131: Power of responsible body to appoint replacement

1116. Subsection (1) enables the responsible body under a conservation covenant ("the appointor") to transfer both the benefit and the burden of its obligations to another responsible body ("the appointee") by appointing it the responsible body under the covenant by agreement executed as a deed by the appointor and appointee (subsection (2)). A conservation covenant can exclude the power to do this.
1117. Subsection (3) provides that where the conservation covenant has been registered as a local land charge, the transfer to the appointee only has effect if the appointor gives to the Chief Land Registrar (or, by virtue of subsection (4)(a), in the case of land in an area in relation to which section 3 of the Local Land Charges Act 1975 (as substituted by paragraph 3 of Schedule 5 to the Infrastructure Act 2015) has not yet taken effect, the authority responsible for the appropriate local land charges register) sufficient information to enable the Registrar (or appropriate authority) to amend the register, as they are required to do by rule 8(2) of the Local Land Charges Rules 1977. In the case of a conservation covenant relating to land in an area in relation to which section 3 of the Local Land Charges Act 1975 has not yet taken effect, subsection (3) does not apply where the appointor is itself the registering authority (which may be the case where the responsible body is a local authority: subsection (4)(b)).
1118. Subsection (5) describes the effect of the appointment. It transfers to the appointee the benefit of every obligation of the landowner under the conservation covenant and the burden of every obligation of the responsible body. This is subject to the qualification in subsection (6) that the transfer of a conservation covenant does not transfer to the appointee any rights or liabilities in respect of an existing breach of an obligation under the conservation covenant. It only has effect in relation to future performance. The appointee cannot take, or continue, enforcement action in respect of a breach which pre-dates the transfer. If the breach is a continuing one the appointee may be able to take enforcement action in respect of the continuing breach after the transfer.
1119. Subsection (7) requires the appointee to give notice of its appointment to every person who is bound by an obligation of the landowner under a conservation covenant.

Section 132: Body ceasing to be a responsible body

1120. This section deals with the situation where the responsible body under a conservation covenant ceases to be a qualifying body or ceases to be designated as a responsible body under section 119(1)(b) (section 119(6) sets out the grounds on which the Secretary of State may revoke a designation). There is no specific provision for the situation where a responsible body has itself ceased to exist because in these circumstances it will cease to be a qualifying body and, therefore, automatically be captured by this provision.
1121. Subsection (2) provides that in such circumstances the body will cease to be the responsible body under the covenant.
1122. Subsection (3) describes what happens in these circumstances. The benefit of every obligation of the landowner under the covenant and the burden of every obligation of the responsible body under the covenant will transfer to the Secretary of State. The transfer does not have effect as regards any rights or liabilities in respect of an existing breach of obligation. It only has effect in relation to future performance (subsection (4)).
1123. Subsection (5) provides that, when the transfer described in subsection (3) takes place, the Secretary of State becomes the custodian of the conservation covenant until either they appoint another responsible body and transfer the conservation covenant to it, or decide to take on the role of responsible body.
1124. Subsection (6) provides that as custodian the Secretary of State may elect to become the responsible body under the conservation covenant by giving written notice to every person who is bound by an obligation of the landowner under the covenant.
1125. Subsection (7) gives the Secretary of State the power as custodian of a conservation covenant to enforce any obligation of the landowner under the covenant in respect of land, and to exercise any power that was conferred on the responsible body in respect of such land.
1126. Subsection (8) states that no enforcement action can be taken against the Secretary of State during the period for which they are the custodian of a conservation covenant or subsequently in respect of the period of custodianship. The Secretary of State will only become liable to perform the obligations of the responsible body under the conservation covenant if they make an election under subsection (6).

Section 133: Effect of acquisition or disposal of affected land by responsible body

1127. Generally when land that is burdened by an obligation or interest (for example, a restrictive covenant or an easement), and the land that benefits from that interest, come into the same ownership, the interest comes to an end. If the land subsequently returns to separate ownership, the interest does not revive. This is known as the doctrine of unity of seisin, or unity of ownership.
1128. By contrast, section 133 provides that where the responsible body under a conservation covenant acquires an estate in land to which an obligation under the covenant relates, this does not extinguish the obligation. The responsible body is bound by the obligation. When the responsible body disposes of land, the obligation remains in force.

Section 134: Effect of deemed surrender and re-grant of qualifying estate

1129. Section 117 requires that a conservation covenant be created by a landowner who holds a "qualifying estate" in the land to which the agreement relates. The qualifying estate must be a freehold, or a lease granted for a term of more than seven years.
1130. Section 134 sets out what is to happen where the qualifying estate is a lease which is surrendered and re-granted by operation of law. This takes place in circumstances where a radical amendment to its terms is agreed between the lessor and lessee. In particular, where the lessor and lessee agree an extension of the term of the lease, there is a deemed surrender and re-grant. Special provision is needed owing to the role in this Part of the qualifying estate. The position of successors under section 122 and 123 depends upon those successors holding the qualifying estate. But the qualifying estate ceases to exist on a surrender and re-grant.
1131. Section 134 provides that in these, circumstances, sections 122, 123 and 127 are to be read as if the "qualifying estate" is a reference to the term of years deemed to be granted by the operation of law. Accordingly, the tenant of the extended lease, and successors, remains liable under the conservation covenant.
1132. However, section 121 is not affected. The duration of the conservation covenant therefore remains unchanged: it will either be the length of the original lease (that is, the default period under section 121(2)(b)) or such shorter period as the parties originally agreed (under section 121(1)).

Section 135: Declarations about obligations under conservation covenants

1133. Subsection (1) gives the High Court, the county court or the Upper Tribunal, on application of any person interested, the power to make a declaration as to the validity of a conservation covenant, whether land is subject to an obligation under a conservation covenant, who is bound by or has the benefit of such an obligation, and the true construction (that is, meaning) of such an obligation. It will be for the court or the Upper Tribunal to decide whether an applicant has sufficient interest to make an application. The power to make a declaration extends to any agreement or order that modifies a conservation covenant. A person might seek a declaration under subsection (1) in circumstances where they needed to know the status of a conservation covenant – for example, in order to resist an action enforcing a breach or because the land was wanted for a different use.
1134. Subsection (2) provides that an application cannot be made under section 84(2) of the Law of Property Act 1925 in respect of an obligation under a conservation covenant.

Section 136: Duty of responsible bodies to make annual return

1135. Section 136 requires a body designated as a responsible body to make an annual return to the Secretary of State, specifies certain information that the return should contain, and provides the Secretary of State with a power to specify by regulations other information that must be provided as part of the annual return.
1136. Subsections (4) and (5) give the Secretary of State the power to prescribe by regulations the information to be included in an annual return, the twelve-month period to which the return is to relate, and the date by which the return is to be made. In default of regulations making provision as to that period and that date, subsection (6) provides that the period and date are such period and date as the Secretary of State may direct.
1137. Subsection (10) clarifies that any information to be included in an annual return prescribed in regulations must relate to the responsible body, its activities, its conservation covenants, or the land covered by its conservation covenants.

Section 137: Crown application

1138. This section gives effect to Schedule 19, which provides that the provisions on conservation covenants in the Act apply to Crown land, and modifies those provisions insofar as they apply to Crown land.

Section 138: Index of defined terms in Part 7

1139. Section 138 sets out an index of definitions of terms used in this Part.

Section 139: Consequential amendments relating to Part 7

1140. Section 139 gives effect to Schedule 20 which makes consequential amendments.

Part 8: Miscellaneous and General Provisions

Section 140: Amendment of REACH legislation

1141. Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals etc. (the REACH Regulation) forms part of retained EU law by virtue of the European Union Withdrawal Act 2018. Section 140 gives effect to Schedule 21, which gives the Secretary of State the power to amend the Articles of the REACH Regulation , as it applies in the UK, amended by the REACH Exit Statutory Instrument.
1142. This allows the Secretary of State to amend, or add to, the transitional provisions in Title 14A to ensure an effective regulatory transfer of the REACH Regulation into the UK, and facilitate future changes. The provision excludes certain Articles, including those which set out the fundamental aims and principles of REACH.
1143. The REACH Enforcement Regulations 2008 (the "REACH Enforcement Regulations") were made under section 2(2) of the European Communities Act 1972. Section 1 of the European Union (Withdrawal) Act 2018 repealed the European Communities Act 1972. This meant that there was no longer any power to amend the REACH Enforcement Regulations. Section 140 and paragraph 2 of Schedule 21 give the Secretary of State and the Devolved Administrations the power to amend the REACH Enforcement Regulations.
1144. Section 140 extends, and applies, to the whole of the United Kingdom.

Section 141: Amendments to Schedule 7B to the government of Wales Act 2006

1145. Sections 50 to 54 and 89 of this Act establish powers that are exercisable concurrently by the Secretary of State and the devolved authorities. Restrictions in Schedule 7B to the government of Wales Act 2006 prevent the Senedd from removing a Minister of the Crown function that is exercised concurrently or jointly with a Minister of the Crown without the consent of the UK Government. This section would disapply the relevant restrictions in respect of the concurrent powers in the Act, by adding the Environment Act to the lists of enactments in paragraphs 9(8)(b) and 11(6)(b) of Schedule 7B. This will allow the Senedd to alter the concurrent arrangements in future without needing the UK Government’s agreement.

General provisions

Section 142: Consequential provision

1146. Section 142 confers on the Secretary of State a regulation-making power to make further consequential amendments which arise from this Act or regulations made under it. Regulations that make consequential provision may amend, repeal or revoke an enactment. Any regulations that amend or repeal primary legislation are subject to the affirmative procedure. Any other regulations under this section are subject to the negative procedure. Equivalent powers are provided for Scottish and Welsh Ministers and for the Department of Agriculture, Environment and Rural Affairs, subject to respective legislative competence.

Section 143: Regulations

1147. Subsection (1) provides that, where regulations are made under this Act (apart from Commencement regulations), those regulations may make supplementary, incidental, transitional or saving provision. Subsection (1)(b) also allows regulations to make different provision for different purposes or places.
1148. This section also provides that regulations made under this Act are to be made by statutory instrument or statutory rule (Northern Ireland only). Where regulations made by the Secretary of State are subject to the negative resolution procedure, they are subject to annulment in pursuance of a resolution of either House of Parliament. Where such regulations are subject to the affirmative resolution procedure, a draft of the regulations must be laid before Parliament and approved by a resolution of each House of Parliament. The section contains equivalent provision for regulations made by Welsh Ministers, Scottish Ministers and DAERA.

Section 144: Crown application

1149. This Act does not contain any provision to exempt the Crown from its requirements. Subsection (2) of this section sets out that, where this Act amends or repeals other legislation, the Crown is bound by that provision to the same extent as in the amended or repealed legislation.

Section 145: Financial provisions

1150. Costs from the Environment Act will include, but are not limited to:
      • The establishment and running of the Office for Environmental Protection.
      • Additional activities for public bodies, such as local authorities; arms-length bodies (for example, Environment Agency and Natural England); other government departments (for example, additional costs for the justice system and additional responsibilities for policymakers across government); and Defra.
      • Additional resources to support the delivery of activities, such as enforcement officers and policymakers.
      • Infrastructure and other assets, such as estates costs for the Office for Environmental Protection, and enhanced IT systems to deliver certain measures.

Section 146: Extent

1151. Section 146 sets out the extent of the Act. Annex A provides further information.

Section 147: Commencement

1152. Part 8 of the Act (Miscellaneous and General Provisions) will come into force on the day this Act is passed. Subsection (2) sets out those provisions in the Act which come into force two months after the day this Act is passed.
1153. Subsection (3) sets out those provisions which will come into force on such day as the Secretary of State may by regulations appoint. Corresponding provision is made in respect of Welsh Minsters and Scottish Ministers respectively in subsections (4) and (5).
1154. DAERA also has a corresponding commencement power, the details of which are provided for in subsection (6). Exercise of that power is subject to the consent of the Secretary of State in the cases described in subsection (7). Subsections (8) and (9) provide that exercise of the power is through statutory rule subject to the affirmative procedure.
1155. Subsection (10) allows for commencement regulations or orders to appoint different days for different purposes or places.

Section 148: Transitional or saving provision

1156. This section provides that Commencement regulations made under this Act may also make transitional or saving provision. Subsection (8) allows those regulations to make different provision for different purposes or places. Equivalent powers are provided for Scottish and Welsh Ministers and for DAERA, subject to respective legislative competence.

Section 149: Short title

1157. This section confirms the short title of the Act.