Edie Environmental Legislation Summary, March 2007

Recent changes to legislation which will impact on the environmental sector in the UK, Europe and internationally come under the spotlight in this Semple Fraser and Edie News monthly round-up of new law and policy. Among the developments this month we see new regulations in Britain's green energy and bio-fuel sectors, as rules on co-generation plants guaranteeing the origin of the green electricity they produce enter into force.

Meanwhile, experimental eco-fuels will now be open to tax breaks after the Fuel-testing Pilot Projects regs entered into force on March 1st. Over in Scotland, the Conservation of Seals Order enters into force, banning the killing of seals in the Orkney and Shetland Islands, while in Northern Ireland the 2007 Renewables Obligation Order will compel electricity suppliers to source a portion of their electricity from renewables.

UK Legislation

Energy

The Electricity (Class Exemptions from the Requirement for a Licence) (Amendment) Order 2007 enters into force on 6th April 2007, adding a new class exemption from the requirement under section 4(1)(bb) of the Electricity Act 1989, which prohibits the distribution of electricity without a licence. The new exemption applies to those distributing electricity generated in offshore waters, although this exemption does not apply to those conveying electricity directly to domestic premises.

The Order can be accessed at the following link:-

http://www.opsi.gov.uk/si/si2007/20070629.htm

Extractive

The Petroleum Act 1998 (Third Party Access) Order 2007 entered into force on 8th February, implementing certain articles of a Framework Agreement between the UK and Norway on transboundary petroleum co-operation, signed in 2005.

The Order amends the Petroleum Act 1998 so that third party access to certain pipelines is governed by the Norwegian regulated access system, as opposed to under the Act. Where there is a dispute over whether an owner of a pipeline has complied with the terms of an award of access under the Norwegian system, the person awarded access can apply to the Secretary of State for a determination. On determination, the Secretary of State must notify the parties and state what, if anything, the pipeline owner must do to comply with the terms of the award of access. In certain circumstances determination will be made jointly with the Norwegian authorities. A person affected by a failure to comply with a determination may claim damages in respect of any loss that results.

The Order is available at the following link:-

http://www.opsi.gov.uk/si/si2007/20070290.htm

Cogeneration

The Guarantees of Origin of Electricity Produced from High-efficiency Cogeneration Regulations 2007 enter into force on 28th February, implementing Article 5 of Directive 2004/8/EC on promotion of cogeneration in England, Scotland and Wales. Article 5 of that Directive provides for the origin of electricity from high-efficiency combined heat and power to be guaranteed.

For the purposes of the Regulations, DEFRA is the competent authority, and will issue the guarantees of origin of the electricity. The procedure for the producer of electricity to follow in order to obtain a guarantee is set out, as is the information they must provide to DEFRA in this regard. The content of the guarantee is prescribed, and certain information that must be contained in the guarantee is set out.

Guarantees may be replaced, transferred or revoked under circumstances that are detailed in the Regulations. The issue or transfer of a guarantee may be subject to a charge. There is also provision for guarantees issued by authorities outside the UK to be recognised as valid.

The Regulations can be accessed at the following link:-

http://www.opsi.gov.uk/si/si2007/20070292.htm

Fuel

The Fuel-testing Pilot Projects (Biomix Project) Regulations 2007 enter into force on 1st March. The Hydrocarbon Oil Duties Act 1979 provides that the Commissioners for Her Majesty's Revenue and Customs may make regulations providing relief from tax on experimental fuel within fuel-testing projects that are approved by them. Such projects must be in relation to the technological development of more environmentally friendly fuels.

The fuel - biomix - that is to be subject to the relief in the context of these Regulations is described, and the relief will apply until August 2008. Relief will be in the form of a rebate of excise duty.

The Regulations can be accessed at the following link:-

http://www.opsi.gov.uk/si/si2007/20070314.htm

Scottish Legislation

Conservation

The Conservation of Seals (Scotland) Order 2007 enters into force on 23rd March 2007, prohibiting the killing, injuring or taking of common seals in the Orkney and Shetland Islands and territorial waters adjacent to the islands, and in the territorial sea adjacent to the east coast of Scotland, from Garron Point in the north to Torness Point in the south. The prohibitions in the Order supplement those in the Conservation of Seals Act 1970. Contravention of the Order is an offence, with the exception of certain general exceptions and where actions are carried out under a licence, and those contravening the Order are liable on summary conviction to a fine.

The Order can be accessed at the following link:-

http://www.opsi.gov.uk/legislation/scotland/ssi2007/20070126.htm

Conservation of Habitats

The Conservation (Natural Habitats etc) Amendment (Scotland) Regulations 2007 entered into force on 15th February, implementing further the Habitats Directive (92/43/EEC) in Scotland. They amend the Conservation (Natural Habitats etc) Regulations 1994 by providing that National Park authorities are relevant authorities in respect of marine areas and European marine sites. It also extends the definition of 'European site', so as to include all sites in the UK proposed under regulation 7(1) of the 1994 Regulations. The Regulations also make provision for the conservation status of natural habitat types and species of Community interest to be kept under surveillance, and for arrangements to be made that ensure that the taking of certain species does not affect their conservation status in certain circumstances.

The protection of certain wild animals is extended such that it is an offence to deliberately or recklessly injure or harass a wild animal that is a European protected species, and the circumstances in which disturbance of such an animal constitutes an offence are extended. The Regulations also make it an offence to sell or exchange or offer to sell or exchange any protected species listed in Annex IV(a) of the Directive. There are offences in relation to possession, control or transport of such species from 1st May 2007. There is a defence where species are not native to the UK and were taken in the wild where such taking was lawful in the place where the animal was taken and the Habitats Directive was either not yet in force or does not apply in that country. Other defences in relation to mercy killing, tending to injured animals and acts carried out in relation to animals bred and lawfully held in captivity are restricted by the amendments to the 1994 Regulations. It is also an offence to use indiscriminate means for taking or killing certain animals where it could cause certain effects.

The Scottish Ministers are to make arrangements to monitor capture and killing of certain animals, and to carry out research and various other conservation measures.

The protection of certain wild plants is also extended to all protected species listed in Annex IV(b) of the Habitats Directive, with the exception of bryophytes, and a similar defence is created in respect of plants as in respect of non-native species of animal.

There is provision for the grant of licences for the taking, possession or control of European protected species of animal and plant, and for conditions to be attached to such grant. Breach of the conditions is an offence.

A new regulation provides that where authorisations are to be granted or varied under CAR for activities in the water environment, this must be subject to the requirement in the 1994 Regulations to consider the effect this would have on a European site. There is also provision in terms of land-use plans likely to have a significant effect on a European site in the UK and not directly connected with or necessary for the management of the site. The planning authority must, in this situation, conduct an appropriate assessment of the implications of the plan for the conservation objectives associated with the site and undertake any necessary consultation. The planning authority may only implement the plan after it has ascertained that it will not have an adverse effect on the integrity of the site, unless it has satisfied itself that there are no alternative solutions and there are reasons of overriding public interest in the implementation of the plan. Where there has been a negative assessment of a plan and the planning authority intends to give effect to the plan despite this, it must notify the Scottish Ministers, and any necessary compensatory measures must be taken to ensure that the overall coherence of Natura 2000, the European network of sites, is maintained.

The Regulations can be accessed at the following link:-

http://www.opsi.gov.uk/legislation/scotland/ssi2007/20070080.htm

Water

The Water Environment and Water Services (Scotland) Act 2003 (Commencement No. 5) Order 2007 brings into force certain provisions of section 24 of the 2003 Act on 6th February in respect of enabling provisions to be made by order, and in respect of all other purposes on 31st March.

Section 24 of the 2003 Act introduces planning controls over marine fish farming in transitional and coastal water, by amendment to the Town and Country Planning (Scotland) Act 1997. The definition of development is altered to encompass certain works in marine waters. The section also empowers the Scottish Ministers to make modifications to the definitions of fish farming and equipment, as they think necessary or appropriate. The effect of a proposed marine fish farming development on the water environment must be considered prior to planning permission being granted.

The Order can be accessed at the following link:-

http://www.opsi.gov.uk/legislation/scotland/ssi2007/20070050.htm

Northern Irish Legislation

Renewables

The Renewables Obligation Order (Northern Ireland) 2007 enters into force on 1st April 2007, imposing an obligation on all electricity suppliers to either supply a specified amount of electricity generated from renewable sources, or to demonstrate that other licensed electricity suppliers have supplied electricity from renewable sources for them. Failing either of these options, the electricity supplier must make a payment to the Northern Ireland Authority for Energy Regulation. In terms of the Order, renewable sources are defined to include energy from wind, water, solar and biomass.

The 2006 Order of the same name is revoked and replaced by the new Order, and the primary changes are that under the new Order small generators can aggregate their output and also appoint agents to act on their behalf.

In order to demonstrate that other suppliers have supplied electricity generated from renewable sources instead of a certain supplier, that supplier must show Northern Ireland Renewables Obligation Certificates (NIROCs) issued by the Authority to that effect. There is also provision for the suppliers to provide GB Renewables Obligation Certificates (GBROCs) in evidence of their discharge of the obligation. The amount of a supplier's electricity that must come from renewable sources is determined according to a Schedule to the Order.

The Order is available at the following link:-

http://www.opsi.gov.uk/sr/sr2007/20070104.htm

Welsh Legislation

Energy Efficiency

The Home Energy Efficiency Schemes (Wales) Regulations 2007 entered into force on 14th February. The Regulations revoke and re-enact the 2000 Regulations of the same name, which set out schemes for providing grants to people on low incomes with children, or who are elderly, disabled or in poor health. The schemes are pursuant to s15(1) of the Social Security Act 1990, which provides that the Welsh Assembly may make or arrange for grants towards the cost of work or advice on improving thermal insulation or otherwise reducing or preventing energy being wasted in their homes.

The Regulations detail eligibility for receiving a grant, determination by the Assembly of the categories of work, maximum levels of grants that are available, the purposes for which they may be approved and procedure for application.

Substantial changes effected by the 2007 Regulations include that people in receipt of child tax credit and working tax credit and with an income under £15,460 and people living with a partner in receipt of certain specified benefits, or people living with a pregnant partner who has been given a maternity certificate are now eligible to apply for a grant under the scheme. Those who are, or whose partner is, 80 years of age or older, or who are in receipt of State Pension Credit qualify for assistance under the scheme. The list of purposes for which a grant may be made is extended by the 2007 Regulations to include solid fuel central heating systems and systems that generate electricity, as well as space and water heating systems based on renewable sources of energy.

The Regulations can be accessed at the following link:-

http://www.opsi.gov.uk/legislation/wales/wsi2007/20070375e.htm

Environmental Impact Assessment (EIA)

The Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) (Wales) (Amendment) Regulations 2007 entered into force on 9th February, implementing Directive 2003/35/EC on public participation in environmental decision making in so far as the Directive affects the environmental impact assessment of uncultivated land and semi-natural areas. The amendments also implement a change in legislation relating to disclosure of environmental information.

The National Assembly is required to consider whether any alternative kind of assessment of a project would be appropriate when it is exercising its power to make a direction that a project is exempt from an assessment under the principal Regulations. It must also make publicly available certain information in relation to the exercise of this power.

The Regulations provide that a consultation body does not have to make information which it can refuse or must refuse to disclose under the Environmental Information Regulations 2004 available to a person applying for consent. The National Assembly must publish the notice of an application for consent online, and must include certain additional information in the notice. Any notice of additional environmental information must also be published online.

The National Assembly must also provide certain additional information when notifying of a decision to grant or refuse consent for a project.

The Regulations can be accessed at the following link:-

http://www.opsi.gov.uk/legislation/wales/wsi2007/20070203e.htm

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