Environmental Update: Winter 2016

Consultation responses to ending water abstraction exemptions published.

The responses from Defra’s consultation on the plans to end the majority of water abstraction exemptions were published on 29 September 2016. This consultation was the latest round of the long-running efforts to implement the water abstraction elements of the Water Act 2003.

The responses indicate broad support among respondents for ending exemptions to water abstraction licensing. The proposal to exclude new or increased abstraction applications from receiving compensation for loss or damage resulting from a refused or constrained application also garnered broad support.

However, respondents were wary of future uncertainty following the implementation of the proposals, and the negative impact which this would have on investment in sectors including farming, quarrying and mining industries.

Defra are considering the responses received and expect to publish their response to the consultation during the first quarter of 2017. This response plans to detail the final approach to discontinuing exemptions, with implementation projected for the early 2020s. Given that the exemptions were originally planned to be removed in 2009, it can be seen that the political implications of this delay are significant.

Contaminated land management quality mark launched

From 9 January 2017, land contamination documents submitted by developers to regulators, for example to discharge planning conditions, can bear the National Quality Mark Scheme for Land Contamination Management (NQMS).This voluntary quality mark is to show that land contamination management work has met current technical and regulatory standards. Alongside the quality mark, a suitably qualified person will sign a declaration form to confirm that the relevant aspects of the scheme have been complied with.

Interpretation of Paragraph 14 of the National Planning Policy Framework ("NPPF")

Paragraph 14 NPPF explains how the "presumption in favour of sustainable development" is to be applied. However, it is silent as to what happens when a proposed development is sustainable but inconsistent with a relevant up-to-date plan. The High Court has held in the recent case of East Staffs DC v SSCLG [2016] 2973 (Admin) that granting planning permission for such development should be the "exception rather than the norm".

See the judgment here.

EU nature directives will not be revised

The European Commission confirmed on 16 December 2016 that the Birds and Habitats Directives remain "fit for purpose" and they will not be revised at present. This was following the Commission’s review under the Regulatory Fitness and Performance Programme (REFIT).</spa

New consolidated Environmental Permitting Regulations

The Environmental Permitting (England and Wales) Regulations 2016 came into force on 1 January 2017 in England and Wales. These Regulations consolidate the Environmental Permitting (England and Wales) Regulations 2010 which have been amended many times since coming into force.

The new Regulations make two minor changes to the regime (relating to the crushing of lamps containing mercury and a correction to allow statutory undertakers to dredge under a flood risk activity scheme in England). Otherwise, the environmental permitting regime remains unchanged under the new regulations.

Environment Agency publish guidance on waste recovery

In October 2016, the Environment Agency published a package of guidance relating to recovery of waste by its permanent placement on land. This is relevant in many contexts including minerals restoration and development projects. The guidance aims to clarify what an applicant will need to demonstrate in order to be granted a recovery permit for the placement of waste, rather than a disposal permit. The guidance covers how to apply for a recovery permit, the waste acceptance procedures that must be used and how to create a construction quality assurance (CQA) plan.

The guidance can be found here.

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.