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Environment weekly news round up - 7 June

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. 


Sustainable Futures: The Evolution of Habitat Regulations in the UK

DEFRA has initiated a public survey as part of a broader review aimed at assessing and potentially streamlining the Conservation of Habitats and Species Regulations 2017 alongside the Conservation of Offshore Marine Habitats and Species Regulations 2017 (the Regulations)

The purpose of the Regulations is to safeguard important natural habitats from damage and degradation to ensure biodiversity is maintained and enhanced. The Regulations are deemed crucial for the protection of various wildlife species particularly those that are rare, endangered, or vulnerable, ensuring their survival and well-being. The Regulations provide strict criteria for assessing plans or projects that may affect protected sites, requiring in certain incidents appropriate assessment and mitigation measures to prevent or minimise negative impacts upon species and the habitats they rely on. Overall, the Regulations are considered a fundamental tool for environmental conservation in the UK ensuring that economic development progresses in harmony with the natural environment.

The current survey by DEFRA forms an integral component of the Post-Implementation Review (PIR) required by law focusing on both the onshore and offshore Habitat Regulations. DEFRA objectives are to evaluate the effectiveness of the regulations, determine if their goals remain relevant and to explore possibilities for achieving these goals with reduced regulatory burden.

In the documentation accompanying the survey, DEFRA expressed an intent to use feedback not only for the PIR but also for broader policy implications, hinting at potential long-term enhancements to the regulatory framework that governs the UK’s valuable habitats.

Some of the key aspects of the survey that respondents to the survey are being asked to consider are whether the key objectives of the regulations still apply today and to identify any unforeseen impacts that may have arisen from their implementation. Additionally, the survey seeks to gather data on the compliance rates among organisations and the financial burdens they face due to these regulations.

The inquiry comes at a time when DEFRA is comparing the UK’s implementation of these regulations with practices across the EU, aiming to align more closely with international standards while considering the environmental and commercial needs of the UK.

There are however valid concerns raised that the purpose of DEFRA’s survey particularly within the context of evaluating whether the objectives of the Regulations could be achieved with ‘less regulation’ might suggest an intention to streamline or reduce the perceived burden of compliance. While efficiency in regulation is beneficial there is a risk that it could compromise the thoroughness and effectiveness of environmental protections if not carefully managed.

The UK government’s previous attempts to reform the Regulations have included proposals that were seen as reducing protections, such as the controversy over nutrient neutrality rules. This historical context may well heighten concerns about the current intentions behind reassessing the Regulations.

If there is an ambition by the UK government to reduce the ‘regulatory burden’ whilst developers may well support certain aspects of deregulation for its potential to reduce immediate costs and procedural hurdles there is also a need for developers to consider how a reduction in regulatory standards might be viewed negatively by the public, potentially harming a company’s reputation and that in sectors such as Real Estate, infrastructure and energy the impacts of climate change and biodiversity loss can directly affect asset values and operational stability.

In conclusion, whilst DEFRA’s survey on the Regulations presents an opportunity to streamline processes and potentially reduce regulatory burdens developers and other stakeholders must weigh these benefits with broader implications. Concerns about increased uncertainty and impacts on ESG obligations suggest a need for a balanced approach. Sustainability goals will be crucial for supporting economic development without compromising environmental integrity.


Rising Costs for Water Quality: England’s water discharge costs see major price hikes 

The Environment Agency Environmental Permitting and Abstraction Licensing) (England) Charging Scheme 2022 version 1.3 has come into force, as of 1 June 2024. This document sets the cost of permits required to make certain discharges into water in England, a number of which have now been drastically increased.

The Environment Agency (“EA”) held a consultation on the proposed increase at the beginning of this year, and the Scheme had not previously been updated for six years. 

Some of the costs have increased significantly. For example, the subsistence charges for statutory sewage undertakers (currently the ten water companies covering England) to discharge effluent have increased by up to 547%. The companies had expressed concern in their consultation responses about the scale of the proposed increased, as they had not been budgeted for. However, the Environment Agency have set out in their consultation response that “considering the economic impact analysis, we consider the increases to be proportionate and of a manageable scale”. They go on to say 

“The government has set a strong direction for us to urgently increase our level of regulatory activity across the water industry, to help reduce pollution incidents and drive improvements to water quality. Statutory sewerage undertakers have been underperforming for some time in respect of their environmental measures.” […] “HM Treasury guidance requires us to take a fair and proportionate approach to achieve full cost recovery for the additional regulatory activity required to address this”. 

There have been further increases implemented for statutory sewage undertakers. For example, the subsistence charges for storm sewage discharge have increased by 102% and for emergency sewage discharges by 209%. The EA have again robustly defended these increases saying:

“Pollution from intermittent discharges of storm sewage and emergency sewage discharges by sewerage undertakers is a matter of growing public concern that continues to receive high profile attention. Our charges will fund increased levels of regulatory activity to allow for greater scrutiny and transparency around when and where such discharges take place, and how they affect the environment”. 

However, not all of the proposals from the consultation have been implemented. The National Farmers Union have welcomed the news the permit application charge for sheep dip disposal is not currently increasing. The EA have said this is to allow for a long-term management strategy to be developed with stakeholders. 


Supreme Court refuses to consider appeal from campaigners seeking to challenge new nuclear facility in Suffolk 

Since August 2022 the campaign group, Together Against Sizewell C (TASC), have been seeking to overturn the Development Consent Order (DCO) granted by the then Secretary of Business, Energy and Industrial strategy, Kwasi Kwarteng granted for the nuclear power station, Sizewell C in Suffolk.

As this is classed as a Nationally Significant Infrastructure Project, a DCO application was required in order to give the project the greenlight. This is different to the ordinary planning permission process as the decision is made directly by the Secretary of State (“SoS”), following a review and recommendation of the application by the Planning Inspectorate. 

Five planning inspectors considered the application and concluded that despite there being imperative reasons of overriding public interest for the development, the difficulties presented in obtaining sufficient potable water to serve the site meant they recommended to the SoS that the case for granting development consent had not yet been made out. 

Despite this recommendation, the SoS granted the DCO on the grounds that the construction of the power station and the creation of a permeant water supply solution were 2 separate projects and should not be a barrier to granting consent. 

TASC first launched a judicial review claim of the project back in August 2022 but this was dismissed by the High Court in June 2023, with Judge Holgate ruling there was “nothing artificial or unlawfully limiting” about the project and noting that several parts of the challenge were “totally without merit.”

TASC subsequently submitted an appeal of this dismissal to the Court of Appeal in December 2023, holding that Judge Holgate correctly concluded that the SoS was entitled to conclude the water supply formed a separate project. 

This resulting in the subsequent and final appeal to the Supreme Court which refused permission to appeal the judicial review claim against the decision on the grounds the application “did not raise an arguable point of law.”


Accelerating Transport Decarbonisation: The Launch of the Council for Net Zero Transport

In a significant stride towards combating climate change, a new independent body has been launched: Council for Net Zero Transport. This independent body is set to revolutionise the transport sector by accelerating its decarbonisation. The council’s primary role is to provide expert advice and strategic oversight to the forthcoming UK Government, aiming to deliver a well-defined, consensus-based strategy for future policy.

The establishment of the council is an initiative by the non-profit Zemo Partnership, formerly known as the Low Carbon Vehicle Partnership. For the past two decades, Zemo Partnership has been a guiding force in policy-making, providing valuable insights to the Government.

The council is chaired by Lord Deben, the former chair of the UK’s Climate Change Committee, and comprises several other distinguished members. Their collective expertise will be instrumental in shaping the future of transport in the UK.

The council’s ambitious plan involves developing a comprehensive roadmap to decarbonise UK transport. This roadmap will be underpinned by detailed sectoral plans, outlining the optimal pathways to achieve net-zero emissions by 2050.

The timing of the council’s creation is crucial, coinciding with the upcoming general election and legal challenges faced by the Government’s climate action plan. The council’s chair, Lord Deben, emphasised the urgency of the situation, stating that progress on net-zero has stalled and, in some areas, regressed.

To ensure transparency and engagement, the council will regularly report on its progress through quarterly briefings. The next update is scheduled for 3 September. Furthermore, a broader summit is planned for 3 October to engage with the Partnership’s members and other stakeholders, aiming to refine and inform the sectoral roadmaps.

In conclusion, the launch of the Council for Net Zero Transport marks a pivotal moment in the fight against climate change. As Claire Haigh, Zemo’s executive director, rightly pointed out, “We urgently need to move beyond targets to the delivery of net-zero transport.” The council’s work will be instrumental in achieving this goal.