Environmental Weekly News Round Up – 12 January 2024

Welcome to the latest edition of our weekly Environment Law news update. As ever, we bring you developments, insights, and analysis in the world of environmental law. 

Biodiversity net gain “go-live date” to be announced next week 

This week, the House of Commons’ delegated legislation committee debated and agreed the draft Biodiversity Gain (Town and Country Planning) (Consequential Amendments) Regulations 2024 and the draft Biodiversity Gain Site Register (Financial Penalties and Fees) Regulations 2024. In doing so, Rebecca Pow, Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs, announced the government will “confirm the legal go-live date for biodiversity net gain” next week. 

The Biodiversity Net Gain (BNG) policy had been due to come into force in November 2023, but was pushed back to January 2024. The awaited policy will require applicants of most developments to demonstrate how they will achieve a minimum ten percent increase in biodiversity so they may obtain planning permission. 

If developers provide false information in their application with regards to BNG, the Biodiversity Gain Site Register (Financial Penalties and Fees) Regulations 2024, discussed this week, allows for penalties of up to £5,000 to be awarded. It was said this will “encourage compliance, deter individuals from submitting incorrect information and remove illicit financial benefit”. 

Meanwhile, the Biodiversity Gain (Town and Country Planning) (Consequential Amendments) Regulations 2024 makes some technical changes to the Town and Country Planning Act 1990 to ensure the 1990 Act can work with the BNG requirements. 

Further statutory instruments, including details of how the BNG register will operate, will also be laid before Parliament next week alongside the crucial launch date. 

Second reading of the Offshore Petroleum Licencing Bill gets delayed

Due to lack of Commons time, the second reading of the Offshore Petroleum Licencing Bill was delayed. This was because MPs agreed that such an important piece of legislation could not be properly debated in the 45-minutes period that had been allocated for this week.

The Offshore Petroleum Licencing Bill, announced in the King’s speech in December 2023, is meant to introduce a new periodic system for granting new oil and gas licences on an annual basis. 

This will be a considerable change as currently the government has no fixed period for inviting applications for new production licences in the UK’s offshore waters (licensing rounds). Despite the lack of a duty to hold licensing rounds periodically, the North Sea Transition Authority (NSTA) usually had an annual round up until 2019. However, from 2019 to the present there has been only one licensing round, which took place in 2022 and awarded the licenses in October 2023. The lack of consistency in the periodicity of these rounds seems to have been one of the reasons for the introduction of this bill.

The bill will also replace the climate compatibility checkpoint. The source of this checkpoint is a governmental report in 2021, which concluded that continued licensing for oil and was not incompatible with the UK’s climate objectives. However, it acknowledged that this may not always be the case in the future, so it recommended the introduction of a “checkpoint”. The climate compatibility checkpoint includes three tests:

1. Reductions in operational greenhouse gas emissions from the sector vs. commitments;
2. Operational greenhouse gas emissions intensity from the sector benchmarked internationally; and
3. Status of the UK as a net importer of oil and gas.

The bill introduces two new tests that will replace the climate compatibility checkpoint as the tool to evaluate if oil and gas licensing will affect UK’s climate objectives:

1. Carbon intensity test: This would be met if the carbon intensity of domestic natural gas produced during the assessment period is lower than the carbon intensity of liquefied natural gas imported into the UK during that period. 
2. Net importer test: this would be met only if the UK is projected to be a net importer of both oil and gas over a period of 15 years.

Company to pay nearly £15,000 to local wildlife charity after failure to follow packaging waste regulations

Swanline Print, a Staffordshire-based paper supplier, are to pay £14,700 after failing to meet their obligations under the Producer of Responsibility Obligations (Packaging Waste) Regulations 2007. The money is to be paid to the Staffordshire Wildlife Trust and should ensure the company do not benefit financially from their non-compliance. 

The Regulations require “obligated packaging producers” to register as such and supply data evidencing their compliance with the obligations. This includes completing a certificate of compliance verifying their recovery and recycling targets have been met for the preceding year and demonstrating this through packing waste recycling notes and/or packaging waste export recycling notes. 

Obligated packaging producers are those with a turnover of more than £2m who have handled more than 50 tonnes of packaging in the previous calendar year. The amount to be recovered and recycled will depend on the type of producer and packaging materials. 

Swanline Prints had failed to register itself between 2010 and 2021, and to recover and recycle the required amounts. The Environment Agency estimated their non-compliance meant the company avoided costs of at least £14,670 and will have led to them trading at a financial advantage when compared to competitors. 

Ultimately, the Environment Agency accepted an enforcement undertaking of £14,700 to bring matters to a close. Enforcement undertakings can be used when such offences occur to ensure the offence does not continue, restore the position so far as possible, benefit a third party (in this instance, the local Wildlife Trust), and secure benefit or improvement to the environment if not possible to restore the harm caused. 

The Environment Agency’s article on the matter can be read here

Environmental Oversight Leads to £64k penalty for Stroud-Based Pet Crematorium

A pet cremation service located near Stroud known as Time Right and situated at Limekiln Farm in Lypiatt, has been fined a substantial sum namely £50,000 for environmental breaches. The company admitted to three charges of failing to implement optimal methods to minimise air emissions.

The prosecution, brought by Stroud Council, was heard at Cheltenham Magistrates Court on 14^th December 2023. Evidence presented to the court highlighted that the company frequently violated its permit conditions by releasing dense, dark smoke from its facility.

As a result, Time Right was fined £50,000 and ordered to pay costs and a victim surcharge bringing the total amount to just over £64,000. The Judge presiding over the case determined that the company had negligently operated for a considerable period.

In mitigation, Time Right stated that it has undertaken significant measures to rectify the issues. It expressed acknowledgement of its past shortcomings, emphasising its cooperation with Stroud District Council during the investigation and its subsequent prompt guilty plea.

Time Right also emphasised its commitment to preventing future breaches of its environmental permit. It has already invested £250,000 in the facility which included £100,000 for a new incinerator, pending planning and permit approval. The company has also improved its procedures and monitoring systems. A recent inspection of the facility in January 2023 found no issues, indicating that it was compliant with its permit.

The case highlights the necessity for air pollution control in relation to pet cemeteries and indeed all activities that have the ability to cause air pollution. Air pollutants contribute to environmental issues such as acid rain, eutrophication, and climate change. In addition, health problems due to air pollution result in increased health care costs and lost productivity. Properly managed pet cemeteries ensure that the burial process of our pets is environmentally friendly, preventing soil, and water contamination as well as air pollution. The case also exemplifies the critical role of regulations in balancing the operational needs of pet cemeteries with the need to protect the environment and human health from the harmful effects of air pollution.

Legal complaint lodged against Natural Resources Wales over ‘failure’ to protect the River Wye 

In October, we reported that River Action had received permission to proceed to a full hearing which will challenge the Environment Agency over their alleged failure to protect the River Wye from agricultural pollution.

This week, on Monday, Fish Legal submitted a claim to the interim Environmental Protection Assessor for Wales, arguing that the regulator has not delivered its monitoring, assessment, and investigation responsibilities of pollution of the River Wye, which is not in accordance with Welsh environmental law. 

Fish Legal state that they notified the NRW that environmental damage was being caused by intensive poultry units in Wales in June 2020 and again in 2021, after noting successive years of algal blooms starting high up in the Wye catchment. NRW concluded in 2022 that there was no evidence of a deterioration or environmental damage linked to the poultry industry, although the data covered the period of 2009-2015. Now, Fish Legal are claiming that the regulator has backtracked, confirming to them that at least 7 out of the 43 Wye water bodies are failing on key measures of river health such as levels of phosphate pollution, which is linked to agricultural activity. 

Fish Legal have recently won a landmark judicial review in the High Court against the Government and the Environment Agency of their defective river improvement plans, in which the Court ruled that they had each failed in their mandatory legal duties to review, update and put in place measures to restore rivers and other water bodies under the Water Framework Directive Regulations. Fish Legal have commented that they are now turning their sights to exposing similar issues in Wales. 

However, NRW have stated that they received correspondence from Fish Legal with regards to their legal duties to protect the Wye before Christmas. They state that they wrote back detailing their intention to respond to significant questions raised, prior to the end of January. NRW provided it is “disappointing to see that Fish Legal have escalated this, before allowing us sufficient time to respond.” Whilst it is uncertain whether Fish Legal intend to bring this matter towards another landmark ruling, it is clear to see that the River Wye’s protection is being called into question by many campaigners.