SCHEDULE 1Damage to Protected Species, Natural Habitats and Sites of Special Scientific Interest
Damage to a protected species or natural habitat1
In the case of a protected species or natural habitat (other than damage to a site of special scientific interest, to which paragraph 4 applies) the damage must be such that it has a significant adverse effect on reaching or maintaining the favourable conservation status of the protected species or natural habitat, taking into account—
a
the conservation status at the time of the damage;
b
the services provided by the amenities they produce;
c
their capacity for natural regeneration;
d
the number of individuals, their density or the area covered;
e
the role of the particular individuals or of the damaged area in relation to the species or to the habitat conservation and the rarity of the species or habitat assessed at the relevant level, whether local, regional F7, national or in their natural range;
f
the capacity of the species for propagation, its viability, or the capacity of the habitat for natural regeneration; and
g
the capacity of the species or habitat, within a short time of the damage being caused, to recover to a condition that leads to its state at the time of the damage or better without any intervention other than increased protection measures.
Conservation status of natural habitats2
1
A habitat's conservation status is the sum of the influences acting on that habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the long-term survival of its typical species.
2
The conservation status of a habitat is favourable if—
a
the natural range and areas covered within that natural range are stable or increasing;
b
the specific structure and functions which are necessary for the long-term maintenance of the natural habitat exist and are likely to continue to exist for the foreseeable future; and
c
the conservation status of its typical species is favourable.
Conservation status of species3
1
The conservation status of a species is the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations.
2
The conservation status is favourable if—
a
the population dynamics data on the species indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitat;
b
the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future; and
c
there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis.
Sites of special scientific interest4
1
In the case of a site of special scientific interest, the damage must be to—
a
the species or habitats notified under section 28 of the Wildlife and Countryside Act 1981; or
b
a protected species or natural habitat.
2
The damage must have an adverse effect on the integrity of the site (that is, the coherence of its ecological structure and function, across its whole area, that enables it to sustain the habitat, complex of habitats or the levels of populations of the species affected).
Express authorisationF25
1
Damage to a protected site or natural habitat and damage to a site of special scientific interest do not include damage caused by an act expressly authorised by the relevant authorities in accordance with—
a
the Conservation (Natural Habitats, &c.) Regulations 1994;
b
the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001;
c
the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007;
d
the Conservation of Habitats and Species Regulations 2010;
e
the Conservation of Habitats and Species Regulations 2017;
f
the Conservation of Offshore Marine Habitats and Species Regulations 2017.
2
Damage to sites of special scientific interest does not include, in the case of a site that is not a European site, damage caused by an act expressly authorised by the relevant authorities in accordance with Part 2 of the Wildlife and Countryside Act 1981.
3
In sub-paragraph (2), “European site” has the same meaning as in regulation 8 of F4the Conservation of Habitats and Species Regulations 2017.
SCHEDULE 2Activities causing damage
Operations to which this Schedule applies1
This Schedule lists the activities for which there is liability under regulation 5(1).
F6Interpretation1A
A reference in this Schedule to an activity being authorised, prohibited or managed pursuant to, or subject to a permit or registration under, a Directive includes, after IP completion day, any activity authorised, prohibited or managed pursuant to, or subject to a permit or registration under, any retained EU law which transposed that Directive.
Operation of permitted installations2
The operation of installations subject to permit in pursuance of—
b
Directive 2008/1/EC of the European Parliament and of the Council concerning integrated pollution prevention and control M2 (all activities listed in Annex I to that Directive with the exception of installations or parts of installations used for research, development and testing of new products and processes); or
c
Directive 2010/75/EU of the European Parliament and of the Council on industrial emissions (integrated pollution prevention and control) M3.
Waste management operations3
1
Waste management operations, including the collection, transport, recovery and disposal of waste and hazardous waste, including the supervision of such operations and after-care of disposal sites, subject to permit or registration in pursuance of—
a
Council Directive 75/439/EEC on the disposal of waste oils M4;
b
Council Directive 75/442/EEC on waste M5;
c
Council Directive 91/689/EEC on hazardous waste M6;
d
Directive 2006/12/EC of the European Parliament and of the Council on waste M7; or
e
Directive 2008/98/EC of the European Parliament and of the Council on waste M8F5....
2
The operation of—
a
landfill sites under Council Directive 1999/31/EC on the landfill of waste M9; or
b
incineration plants under—
i
Directive 2000/76/EC of the European Parliament and of the Council on the incineration of waste M10; or
ii
Directive 2010/75/EU of the European Parliament and of the Council on industrial emissions (integrated pollution prevention and control).
3
The activities to which these Regulations apply do not include the spreading of sewage sludge from urban waste water treatment plants, treated to an approved standard, for agricultural purposes.
Mining waste4
The management of extractive waste under Directive 2006/21/EC of the European Parliament and of the Council on the management of waste from extractive industries M11.
Discharges requiring authorisation5
1
All discharges into the inland surface water that require prior authorisation in pursuance of—
a
Council Directive 76/464/EEC on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community M12; or
b
Directive 2006/11/EC of the European Parliament and of the Council on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community M13.
2
All discharges of substances into groundwater that required prior authorisation in pursuance of—
a
b
Directive 2006/118/EC of the European Parliament and of the Council on the protection of groundwater against pollution and deterioration M15.
3
All discharges or injections of pollutants into surface water or groundwater that require a permit, authorisation or registration under Directive 2000/60/EC.
Water abstraction and impoundment6
Water abstraction and impoundment of water subject to prior authorisation in pursuance of Directive 2000/60/EC.
Dangerous substances, plant protection products and biocidal products7
Manufacture, use, storage, processing, filling, release into the environment and onsite transport of—
a
dangerous substances as defined in Article 2(2) of Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous substances M16;
b
hazardous substances as defined in Article 3 of Regulation (EC) No. 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures M17;
c
dangerous preparations as defined in Article 2(2) of Directive 1999/45/EC of the European Parliament and of the Council concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations M18;
d
plant protection products (which has the same meaning as in Article 2(1) of Regulation (EC) No. 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market M19; and
e
biocidal products as defined in Article 2(1)(a) of Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market M20, or as defined in Article 3(1)(a) of Regulation (EU) No. 528/2012 of the European Parliament and of the Council concerning the making available on the market and use of biocidal products M21.
Transport8
Transport by road, rail, inland waterways, sea or air of dangerous goods or polluting goods as defined in—
a
b
c
d
Directive 2002/59/EC of the European Parliament and of the Council establishing a Community vessel traffic monitoring and information system M25; and
e
Directive 2008/68/EC of the European Parliament and of the Council on the inland transport of dangerous goods M26.
Genetically modified organisms9
1
Any contained use, including transport, involving genetically modified organisms (including genetically modified micro-organisms as defined by Council Directive 90/219/EEC on the contained use of genetically modified micro-organisms) M27.
2
Any deliberate release into the environment, transport and placing on the market of genetically modified organisms as defined by Directive 2001/18/EC of the European Parliament and of the Council on the deliberate release into the environment of genetically modified organisms M28.
Transboundary shipment of waste10
Transboundary shipment of waste within, into or out of the Community F8or into or out of the United Kingdom, requiring an authorisation or prohibited under—
a
Council Regulation (EEC) No. 259/93 on the supervision and control of shipments of waste within, into and out of the European Community M29; or
b
Regulation (EC) No. 1013/2006 of the European Parliament and of the Council on shipments of waste M30.
Operation of carbon dioxide storage sites11
The operation of storage sites pursuant to Directive 2009/31/EC of the European Parliament and of the Council on the geological storage of carbon dioxide M31.
F9Schedule 2ZAModifications where regulation 9A applies
1
In relation to anything that is treated as environmental damage by regulation 9A, these regulations apply with the following modifications.
2
Regulation 17 does not apply.
3
Regulation 18 applies as if—
a
the opening words of paragraph (1) provided “Where excess nutrient pollution is treated as environmental damage by regulation 9A(2), the enforcing authority must notify the responsible operator—”;
b
for paragraph (a) there were substituted—
a
of the environmental damage;
4
Regulation 18A applies with the omission of paragraph (2).
5
Regulation 19(3) applies as if for paragraphs (a) to (e) (but not the “or” immediately following paragraph (e)) there were substituted—
a
the responsible operator did not fail to secure that the nutrient significant plant in question is able to meet the related nutrient pollution standard by the upgrade date;
b
the determination by the Environment Agency of the excess nutrient pollution mentioned in regulation 9A(2) was unreasonable;
6
Regulation 25(2) applies as if—
a
for paragraph (a) there were substituted—
a
determining the excess nutrient pollution mentioned in regulation 9A(2);
b
paragraph (b) were omitted.
F3SCHEDULE 2AEnforcing authority: activities not requiring a permit or registration under the Environmental Permitting (England and Wales) Regulations 2016
Sch. 2A inserted (1.4.2018) by The Environmental Damage (Prevention and Remediation) (England) (Amendment) Regulations 2017 (S.I. 2017/1177), regs. 1, 8, Sch.
Type of environmental damage (in bold) and (where limited) area of environmental damage | Enforcing authority |
|---|---|
Damage to land. | The local authority |
Damage to surface water or groundwater. | The Environment Agency |
Damage to marine waters out to 12 nautical miles from the baselines in England. | The Marine Management Organisation |
Damage to marine waters beyond 12 nautical miles from (a) the baselines in England, or (b) the baselines in Northern Ireland, extending to the outermost reach of the area where the United Kingdom exercises jurisdictional rights. | The Secretary of State |
(a) within the Welsh zone; or |
|
(b) within the Scottish zone, or outside the Scottish zone, but nearer to any point on the baselines from which the breadth of the territorial sea adjacent to Scotland is measured than to any point on the baselines in any other part of the United Kingdom. |
|
Damage to a protected species or natural habitat or a site of special scientific interest on land. | Natural England |
Damage to a protected species or natural habitat or a site of special scientific interest in water, but not in the sea. | The Environment Agency |
Damage to a protected species or natural habitat or a site of special scientific interest on any other part of the continental shelf or in the sea up to the limit of the exclusive economic zone. | (1) The Environment Agency, if the damage is due to an activity authorised by the Environment Agency. (2) In any other case, the Secretary of State. |
(1) For the definition of “specified marine activity”, see regulation 11(2). | |
(2) For the definition of “sea”, see regulation 11(2). | |
SCHEDULE 3Remediation
PART 1Remediation of Damage to Natural Resources other than Land
Application of Part 11
This Part relates to remediation of damage to natural resources other than land.
Risk to human health2
Remediation must remove any significant risk to human health.
Objective3
The objective of remediation is to achieve the same level of natural resources or services as would have existed if the damage had not occurred.
Primary and complementary remediation4
1
The remediation must consist of such primary remediation or complementary remediation or both as will achieve the objective.
2
Primary remediation is any remedial measure which returns the damaged natural resources or impaired services to, or towards, the state that would have existed if the damage had not occurred (and for this purpose natural recovery is a permitted form of primary remediation in appropriate cases).
3
Complementary remediation is any remedial measure taken in relation to natural resources or services to compensate for the fact that primary remediation does not result in fully restoring the damaged natural resources or impaired services to the state that would have existed if the damage had not occurred.
Compensatory remediation5
1
In addition compensatory remediation must be provided to compensate for interim losses of natural resources or services that occur from the date of damage until remediation has achieved its objective; and in this paragraph “interim losses” means losses which result from the fact that the damaged natural resources or services are not able to perform their ecological functions or provide services to other natural resources or to the public until the primary or complementary remediation has been carried out.
2
Compensatory remediation does not include financial compensation.
Choice of remediation6
The remediation options must be evaluated using best available methods, and based on—
a
the effect of each option on public health and safety;
b
the cost of implementing the option;
c
the likelihood of success of each option;
d
the extent to which each option will prevent future damage and avoid collateral damage as a result of implementing the option;
e
the extent to which each option benefits each component of the natural resources or services;
f
the extent to which each option takes account of relevant social, economic and cultural concerns and other relevant factors specific to the locality;
g
the length of time it will take for the restoration of the environmental damage to be effective;
h
the extent to which each option achieves the restoration of the site of the environmental damage; and
i
the geographical linkage to the damaged site.
Identification of complementary and compensatory remediation7
1
If possible, complementary and compensatory remedial measures must provide natural resources or services of the same type, quality and quantity as those damaged.
2
Where this is not possible, similar but different natural resources or services must be provided (for example, by offsetting a reduction in the quality of natural resources or services by increasing their quantity).
3
Where the provision of similar natural resources or services is not possible, different natural resources or services may be provided and the remedial measures must have the same monetary valuation as the lost natural resources or services.
4
If valuation of the lost natural resources or services is practicable, but valuation of the remedial measures cannot be made within a reasonable time or at a reasonable cost, then remedial measures may be provided the cost of which (instead of monetary valuation) is equivalent to the value of the lost natural resources or services.
5
In the case of complementary remediation at a new site, where possible and appropriate this site should be geographically linked to the damaged site.
Options8
1
When evaluating the different identified remedial options, primary remedial measures that do not fully restore the damaged water or protected species or natural habitat to its state at the time of the incident, or that restore it more slowly, may be decided on (for example, when the equivalent natural resources or services could be provided elsewhere at a lower cost).
2
This decision can be taken only if the natural resources or services foregone as a result of the decision are compensated for by increasing complementary or compensatory actions to provide a similar level of natural resources or services.
3
The enforcing authority may at any time decide that no further remedial measures need be taken if—
a
the remedial measures already taken have removed any significant risk of adversely affecting human health, water or protected species and natural habitats; and
b
the cost of the remedial measures needed for restoration to its state before the incident would be disproportionate to the environmental benefits to be obtained.
PART 2Remediation of Damage to Land
Remediation of damage to land9
1
This Part applies in relation to damage to land.
2
The remediation must ensure, as a minimum, that the relevant contaminants are removed, controlled, contained or diminished so that the land, taking account of its lawful current use or any planning permission in existence at the time of the damage, no longer poses any significant risk of adverse effects on human health.
3
The presence of such risks must be assessed through risk-assessment procedures taking into account the characteristic and function of the soil, the type and concentration of the harmful substances, preparations, organisms or micro-organisms, their risk and the possibility of their dispersal.
4
Natural recovery is a permitted form of remediation in appropriate cases.
SCHEDULE 4Permits etc.
1
The following are permits for the purposes of regulation 19(3)(d) in so far as they relate to an activity in Schedule 2—
a
a permit granted under F1the Environmental Permitting (England and Wales) Regulations 2016 or a registration under those Regulations;
b
a marine licence granted under Part 4 of the Marine and Coastal Access Act 2009 M32;
c
an ordinary or emergency drought order or a drought permit under the Water Resources Act 1991 M33;
d
a water abstraction or impoundment licence under the Water Resources Act 1991;
e
an authorisation of, or permission for, a plant protection product granted, or deemed to be granted, in accordance with Regulation (EC) No. 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market;
f
a consent for the deliberate release of genetically modified organisms granted by the Secretary of State under section 111(1) of the Environmental Protection Act 1990 M34 or a consent given in any other member State for the placing of a genetically modified organism on the market as a product or in a product in accordance with Directive 2001/18/EC of the European Parliament and of the Council on the deliberate release into the environment of genetically modified organisms M35; and
g
an authorisation given in any member State in accordance with Article 7 or 19 of Regulation (EC) No. 1829/2003 of the European Parliament and of the Council on genetically modified food and feed M36.
SCHEDULE 5Procedures for Appeals
PART 1General
1
In this Schedule, the “appointed person” means the person appointed by the Secretary of State in accordance with paragraph 10 of Part 2.
PART 2Appeals When the Secretary of State is Not the Enforcing Authority
2
This Part applies when the Secretary of State is not the enforcing authority.
3
Notification of appeal must contain—
a
a copy of the notification or remediation notice appealed against; and
b
the grounds of appeal.
4
When notification is received—
a
the Secretary of State must send a copy of the notification of appeal to the enforcing authority; and
b
the enforcing authority must—
i
immediately send a copy to any person who appears to it to have a particular interest in the subject matter of the appeal; and
ii
notify the Secretary of State of the persons to whom a copy has been sent.
5
The Secretary of State must notify the appellant of the time limit within which the appellant must provide in writing—
a
a statement of case; and
b
all relevant correspondence.
6
When these are received, the Secretary of State must send all the documents to the enforcing authority, giving the enforcing authority a time limit within which it must provide a written response.
7
At the same time the Secretary of State must notify any person notified under paragraph 4(b)(i) of the time limit under paragraph 5 and invite that person to make representations before that date.
8
The Secretary of State must then decide whether further evidence is needed, and give directions accordingly.
9
The Secretary of State must then decide whether or not the appeal must be dealt with by written procedure or whether a hearing must be held.
10
The Secretary of State must then refer the appeal to a person appointed by the Secretary of State to deal with the appeal, and specify to the appointed person the decision made under paragraph 9.
11
Following the conclusion of the appeal by the appointed person, the appointed person must decide the appeal or, if so directed by the Secretary of State at any stage before the decision is made, make a recommendation to the Secretary of State, who must decide the appeal.
12
The person deciding the appeal may make such order as to the costs of the parties (including parties who make representations) as appears to that person to be fit.
PART 3Appeals When the Secretary of State is the Enforcing Authority
13
If the Secretary of State is the enforcing authority, the procedures in Part 2 of this Schedule apply except that—
a
the Secretary of State must appoint an appointed person as soon as notification of appeal is received;
b
the appointed person must carry out the functions of the Secretary of State specified in paragraphs 4 to 9;
c
the notification under paragraph 4(b)(ii) must be made to the appointed person; and
d
the appointed person must in all cases decide the appeal.
SCHEDULE 6Compensation
Compensation for grant of rights1
This Schedule prescribes—
a
the period within which a person who grants, or joins in granting, any rights pursuant to regulation 30 may apply for compensation for the grant of those rights;
b
the manner in which, and the person to whom, such an application may be made; and
c
the manner of determining such compensation, for determining the amount of such compensation and for making supplemental provision relating to such compensation.
Interpretation2
In this Schedule—
“the grantor” means the person who grants, or joins in granting, any right; and
“relevant interest” means an interest in land out of which a right has been granted or which is bound by a right granted.
Period for making an application3
An application for compensation must be made before the expiry of a period of 12 months beginning with the later of—
a
the date of the grant of the rights in respect of which compensation is claimed; or
b
where there is an appeal against the notice in relation to which those rights were granted, the date on which the appeal is determined or withdrawn.
Manner of making an application4
1
An application for compensation must be made in writing and delivered at or sent by pre-paid post to the last known address for correspondence of the person to whom the right was granted.
2
The application must contain—
a
a copy of the grant of rights in respect of which the grantor is applying for compensation and of any plans attached to such grant;
b
a description of the exact nature of any interest in land in respect of which compensation is applied for; and
c
a statement of the amount of compensation applied for, distinguishing the amounts applied for under each of sub-paragraphs (a) to (e) of paragraph 5 and showing how the amount applied for under each sub-paragraph has been calculated.
Loss and damage for which compensation is payable5
Compensation is payable for loss and damage of the following descriptions—
a
any depreciation in the value of any relevant interest to which the grantor is entitled which results from the grant of the right;
b
loss or damage, in relation to any relevant interest to which the grantor is entitled, which—
i
is attributable to the grant of the right or the exercise of it;
ii
does not consist of depreciation in the value of that interest; and
iii
is loss or damage for which the grantor would have been entitled to compensation by way of compensation for disturbance, if that interest had been acquired compulsorily under the Acquisition of Land Act 1981 M37, in pursuance of a notice to treat served on the date on which the grant of the right was made;
c
damage to any interest in land to which the grantor is entitled which is not a relevant interest and which results from the grant of the right or from the exercise of it;
d
any loss or damage sustained by the grantor, other than in relation to any interest in land to which the grantor is entitled, which is attributable to the grant of the right or the exercise of it; and
e
the amount of any valuation and legal costs reasonably incurred by the grantor in granting the right and in the preparation of the application for compensation and the negotiation of the amount of such compensation.
Basis on which compensation is assessed6
1
The rules set out in section 5 of the Land Compensation Act 1961 M38 (rules for assessing compensation) have effect, so far as applicable and subject to any necessary modifications, for the purpose of assessing any compensation as they have effect for the purpose of assessing compensation for the compulsory acquisition of an interest in land.
2
Where the relevant interest in respect of which any compensation is to be assessed is subject to a mortgage—
a
the compensation must be assessed as if the interest were not subject to the mortgage;
b
no compensation is payable in respect of the interest of the mortgagee (as distinct from the interest which is subject to the mortgage); and
c
any compensation payable in respect of the interest that is subject to the mortgage must be paid to the mortgagee or, if there is more than one mortgagee, to the first mortgagee and must, in either case, be applied as if it were proceeds of sale.
Determination of disputes7
1
Any question of disputed compensation must be referred to and determined by the Upper Tribunal.
2
In relation to the determination of any such question the provisions of section 4 M39 of the Land Compensation Act 1961 apply as if—
a
the reference in sub-section (A1) of that section to section 1 of that Act were a reference to sub-paragraph (1) of this paragraph; and
b
references to the acquiring authority were references to the person to whom the rights were granted.
Sch. 2ZA inserted (26.12.2023) by Levelling-up and Regeneration Act 2023 (c. 55), ss. 170(3), 255(6) (with s. 247)