Edie Environmental Legislation Summary, July 2008

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 changes this month are publication of a new directive to protect Europe's marine environment, tax breaks on energy-saving items for residential landlords, and worries about forthcoming Scottish legislation on power generation.


Marine Environment

A new Directive aimed at protecting Europe’s marine environment has been published in the Official Journal of the European Union.

The Marine Strategy Framework Directive (Directive 2008/56/EC) sets out a policy framework within which European Member States must implement measures necessary to attain good environmental status within their marine environment and ensure sustainable use of the sea.

With a view to protecting, preserving and where necessary restoring the marine environment, the Marine Strategy Framework Directive requires Member States to develop and implement a number of strategies.

Member States will be required to adopt an ecosystem-based approach to the management of human activity, insofar as it impacts on the marine environment, in order to ensure that pressure exerted by human activity is kept within levels compatible with the objectives of the Directive.

The Directive also requires Member States to assess the environmental status of their marine waters and determine a set of characteristics for good environmental status.

Member States must also review and analyse the predominant pressures and impacts on their marine environment.

Member States will be required to set environmental targets and implement monitoring programmes in order to assess the ongoing environmental status of their marine waters.

Those Member States sharing a marine region or subregion will be required to cooperate with each other and follow a common approach to ensure compliance with the Directive.

The Directive will enter into force on the 15th July 2008. Member States are required to transpose the directive by 15 July 2010.

The text of the directive is available by following this link.

Air Quality

A new European Air Quality Directive (Directive 2008/50/EC), which will provide the new legislative framework for improving Europe’s air quality, entered into force on the 11th June 2008.

The new Directive repeals the existing framework Directive on ambient air quality and three of the four daughter Directives which set out threshold values for a number of air pollutants.

The overall aim of the Directive is to ensure the maintenance of air quality where it is good and its improvement in other cases.

The Directive lays down definitive air quality assessment criteria and requires Member States to operate ambient air quality management programs and implement air quality plans.

The new Directive sets out threshold limits and target values for ambient air quality in terms of a number of pollutants including: sulphur dioxide, nitrogen oxides, particulate matter, lead, benzene, carbon monoxide and ozone.

In addition to imposing limits on the coarser PM10 particles the new Directive introduces a limit for fine dust particles known PM2.5, one of the most dangerous air pollutants.

Under the Directive Member States will be required to ensure that information on ambient air quality is made available to the public.

The Directive also aims to promote increased cooperation between the Member States in reducing transboundary air pollution.

The Directive allows Member states to postpone compliance with some standards on the condition that appropriate measures have been taken and that an air quality plan is established.

Although Member States have two years in which to transpose the new directive, Member States must ensure that a sufficient number of PM2.5 monitoring stations are in place by January 2009.

The text of the new European Air Quality Directive is available by following this link.


Taxation – Energy saving items

Residential landlords are to receive corporation tax breaks under new energy saving regulations which extend the Landlords Energy Saving Allowance (LESA) to residential property businesses eligible to pay corporation tax.

The Energy-Saving Items (Corporation Tax) Regulations 2008, which come into force in July, specify certain items which are to be classed as energy saving items and thus enabling landlords to deduct expenditure on acquiring and installing energy saving items in residential properties from their corporation tax liability.

Hot water system insulation, draught proofing, cavity wall insulation, solid wall insulation, floor insulation and loft insulation are specified as items of an energy-saving nature.

The Regulations restrict the maximum amount of expenditure for which a deduction is allowed to £1,500 per dwelling-house in each tax year and excludes contributions made by persons not entitled to a deduction.

The Regulations also provide for making apportionments where the relevant expenditure benefits more than one property and where a property is owned jointly or in common.

The text of the new regulations can be found here and an explanatory memorandum is available by following this link.


Environmental Impact Assessment – Mineral Permissions

The Town and Country Planning (Environmental Impact Assessment) (Mineral Permissions and Amendment) (England) Regulations 2008 come into force on 22nd July 2008.

These Regulations apply the requirements of the Environmental Impact Assessment Directive to applications for the review of mineral planning permissions made prior to 15th November 2000 and which remain to be determined, also known as stalled reviews.

Under the Regulations the sanction of suspension of mineral development permissions for failure to provide the necessary environmental and other information is extended to such stalled reviews.

In order to facilitate reviews and to ensure compliance with the objectives of the EIA Directive, these Regulations also apply, to all reviews of mineral planning permissions, additional sanctions for non-provision of environmental and other information.

The text of these regulations can be found by following this link and an explanatory memorandum can be found here.


Electricity Works

New legislation, heralded to streamline consent procedures for future power generating facilities, could actually result in further delays for renewable projects.

The new regulations, due to come into force later this year, will amend existing legislation, implementing the European Environmental Impact Assessment Directive in Scotland, with respect to applications to construct, operate and extend electricity generating facilities.

The new regulations will also implement the European Directive on Public participation by amending existing consent procedures to provide for increased public participation.

The European Directive on Public Participation put into effect certain provisions of the Aarhus Convention on public participation in public decision making processes concerning environmental matters. However, national legislatures were supposed to put these provisions into effect by 25th June 2005.

The Scottish Government itself acknowledges that recent moves, encouraging more electricity generation to come from renewable sources, has resulted in a significant increase in the number of consent applications, which has in turn put pressure on the consenting process, resulting in consent applications taking an increasingly longer time to reach conclusion.

However, they still state that a key objective of their streamlining measures is to increase the quality of applications through better public and community consultation.

The new regulations increase the amount of information within the notice to be published where an environmental statement is submitted to the Scottish Ministers; and, imposes new requirements on the publication of such notices.

The regulations also set out a new procedure which the Scottish Ministers must follow upon receipt of additional information; and, provides for the form of the notice that an applicant submitting such additional information must publish.

The range of documents to be placed on the planning register is also widened as is the information to be included in the statement of the Scottish Ministers’ determination of the application.

The new regulations also require the applicant to publish notice of the determination.

The Scottish Government states that, although it has committed itself to streamlining consent timescales for new applications through procedural and legislative changes, this must be balanced against European legislation which commits Member States to operate an open and fair assessment and consultation of large scale energy applications.

The text of the new regulations can be found here and an explanatory memorandum is available by following this link.

The Water Environment

The Water Environment (Relevant Enactments and Designation of Responsible Authorities and Functions) Order 2008 will come into force on 22nd September 2008.

This order specifies various enactments, relating to the water environment, as relevant enactments within the meaning of the Water Environment and Water Services (Scotland) Act 2003.

The effect of specification is to require the Scottish Ministers and SEPA to exercise their functions, under these enactments, so as to ensure compliance with the requirements of the Water Framework Directive.

The Order also designates certain public bodies and office holders, whose plans and activities impact on the water environment, as responsible authorities in respect of specified functions relating to the water environment.

The text of this order can be found here.

The Water Environment and Water Services (Scotland) Act 2003 (Commencement No. 8) Order 2008 brings into force, on 10th July 2008, further provisions of the Water Environment and Water Services (Scotland) Act 2003.

Scottish Ministers will be empowered to make regulations providing for remedial or restorative measures in relation to land or water where they consider that such regulations would facilitate the achievement of the environmental objectives set out in river basin management plans.

This Order also amends the Water (Scotland) Act 1980 in order to make provision for the laying of mains and communication pipes by persons other than Scottish Water.

The text of this Order is available by following this link.


Environmental Impact Assessment – Agriculture

The Environmental Impact Assessment (Agriculture) (Amendment) Regulations (Northern Ireland) 2008 come into operation on 31st July 2008.

These Regulations amend the Environmental Impact Assessment (Agriculture) Regulations (Northern Ireland) 2007 to correct some drafting errors.

The term “EIA Directive” is defined to mean the Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment as amended.

The Regulations also clarify the role of the appointed person with regard to appeals against stop notices issued by the Department of Agriculture and Rural Development.

The text of these regulations is available by following this link.

Energy Performance of Buildings

The Energy Performance of Buildings (Certificates and Inspections) (Amendment) Regulations (Northern Ireland) 2008 came into operation on 30th June 2008

These Regulations amend the Energy Performance of Buildings (Certificates and Inspections)Regulations (Northern Ireland) 2008 by making some minor corrections and removing some erroneous references to inspection reports.

The Regulations also replace an incorrect reference concerning offences relating to enforcement officers.

The text of these regulations is available here.

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