Environmental and energy law - Autumn/Winter 2013

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Welcome
Welcome to the Autumn/
Winter 2013 issue of
Environment and Energy
Law. If you would like further
details on any of the areas
covered in this briefing then
please contact one of our
partners or have a look
on our website at www.
burges-salmon.com
Environment
and Energy Law
Newsletter
Contents
Water p1
Minerals p2
Waste p3
Carbon, Climate Change
and Sustainability p4
Nuclear p4
Chemicals p5
Energy and Power p6
Reporting
and Management p7
Case Law Update p8
Recent/upcoming events p8
Recent Publications p9
Autumn/Winter 2013
Water
Water Bill updates
The Welsh Government published a notification on
16 October 2013 in relation to the proposed Water
Bill (“the Bill”) which was introduced into Parliament
back in June.
Whilst the Secretary of State has responsibility
for undertakers operating in England, the Welsh
Government has responsibility for operators
wholly or mainly in Wales. Dee Valley Water, Dwr
Cymru Welsh Water and Severn Trent all operate
across the England/Wales border and therefore
the Welsh Government note in the Order that it
is more practical to legislate on policy relating to
water industry management and regulation in a UK
Government Bill which covers both England and
Wales. The written statement notes those provisions
of the Bill that modify the functions of Welsh
Ministers.
Another Bill update concerns the proposed changes
to charging rules. Defra issued in November
2013, “Charging Principles” which will underpin
the development of the Government’s “Charging
Guidance” that will be issued to Ofwat (the economic
regulator for water and sewerage industry). The
Charging Guidance is intended to establish the
boundaries of charging rules and help establish the
framework for market reforms contained in the Bill.
Under the Bill, Ministers have a duty to produce
this Charging Guidance with the intention that they
clearly set out Government policy to which Ofwat
must have regard when preparing charging rules.
The guidance will be issued in draft form and will
need to evolve as markets develop.
Just published - the updated Second Edition
of our Environmental Law Handbook
The First Edition of our Environmental Law Handbook was extremely
well-received by our clients and contacts. In such a fast-moving
area of law, even though the First Edition was only two years old, we
recognized that a new edition was required.
This Second Edition includes new sections and covers a wide range of
legal issues including Producer Responsibility, Climate Change/Carbon,
Energy, Environmental Litigation and Environmental Permitting. It is
intended to be a practical guide rather than a legal textbook. We hope
that it will be an extremely useful addition to the library of those who
may have to deal with these issues.
For further information or to request a copy, please contact either
Ross Fairley email: ross.fairley@burges-salmon.com or Michael
Barlow email: michael.barlow@burges-salmon.com
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The Charging Principles that have been recently released include:
1. Household customers will continue to be protected through the price control process and will not subsidise the development of competitive markets.
2. Charges need to evolve over time, but any transition to an improved reflection of resource costs will be delivered in a way to ensure that all customers face predictable and stable bills.
3. No category of consumer should be unfairly disadvantaged by the reforms.
4. The charging regime must support delivery of the Government’s approach to investment in water and sewerage infrastructure.
5. The charging regime will enable new entrants to compete on level terms with incumbent companies.
6. The charging regime will reflect the overarching requirement for new markets to complement environmental protections.
The Government has stated that it recognises that early visibility of the principles that will shape the guidance should help to reduce uncertainty and inform debate during the passage of the Bill.
We note the recent announcement by the Government as part of the “cost of living” agenda that it will look at charges by water utilities. We anticipate, therefore, that regulation in this area may be subject to intense scrutiny and policy changes as we have seen in the energy sector.
We are monitoring developments of the Water Bill and its implications for our clients closely. Our recent article for the In-House Lawyer on the Bill and key issues is available on our website - see the following link:
http://www.burges-salmon.com/Practices/environment/Publications/The_proposed_Water_Bill_the_key_issues.pdf
For further information on our water practice please contact Michael Barlow, Partner on +44(0)117 902 7708 or email: michael.barlow@burges-salmon.com or Joanne Attwood, Associate on +44(0)117 902 7257 or email: joanne.attwood@burges-salmon.com
Designation of revised nitrate
vulnerable zones
Two sets of regulations have recently been released which concern the designation of nitrate vulnerable zones in England and Wales. These regulations flow from the UK’s obligations under the Nitrates Directive 1991 which concerns the protection of waters against pollution caused by nitrates from agricultural sources. Member States must review their implementation of the Directive every four years.
In England the Nitrate Pollution Prevention (Designation and Miscellaneous Amendments) Regulations 2013 were made in October and come into force on 18 November 2013. These regulations give effect to the revised designation of Nitrate Vulnerable Zones (“NVZs”); require the Environment Agency to refuse applications from derogation of requirements in certain circumstances and make technical amendments to calculating the nitrogen content of fertilisers.
The Nitrate Pollution Prevention (Wales) Regulations 2013 came into force in October 2013. These regulations revoke and replace the Nitrate Pollution Prevention (Wales) Regulations 2008. The main changes are to revise NVZs and action programmes; provide transitional provisions for sites newly designated as within an NVZ and introduce exceptions to limits on spreading nitrogen in NVZs.
We advise various clients on the impacts of environmental and water regulation on their activities. For further information please contact Joanne Attwood, Associate on +44(0)117 902 7257 or email: joanne.attwood@burges-salmon.com
Minerals
Conflict minerals
As we have reported previously, businesses are coming under increasing pressure to audit their supply chains in respect of conflict minerals: precious, rare and other valuable metals mined in politically unstable areas and exploited, for instance, by warlords in the Democratic Republic of Congo.
The 2010 US Dodd-Frank law continues to be relevant as, in addition to financial regulation, it imposed controls on the way in which 6,000 US businesses account for their use of conflict minerals, such as gold, tantalum, tin, tungsten, and their derivatives. Controls applied by the US Securities and Exchange Commission have been estimated to cost between $3-4 billion, and compliance reporting in 2014 has to be based upon 2013 business usage, so demands for information from the supply chain have rippled outwards.
Pressure is also growing in the EU. From March to June 2013 the European Commission held a public consultation considering an equivalent EU initiative for the responsible sourcing of minerals from conflict-affected and high-risk areas. On 3 September 2013, in a speech to the Federation of German Industries in Brussels, Karel De Gucht, European Commissioner for Trade, made clear that Europe had a responsibility to take action on conflict minerals and expressed the hope that the Commission’s decision on the form of this action will be made before the end of 2013. We will continue to monitor developments in this area.
For further information on our minerals practice or to receive our regular briefings in this area, please contact William Wilson, Barrister, on +44(0)117 939 2289 or email: william.wilson@burges-salmon.com
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Waste
Consultation from HMRC on new guidance for landfill tax ratings
On 4 October 2013, HM Revenue & Customs (“HMRC”) published a consultation on draft guidance which seeks to clarify the position regarding which types of waste qualify for the lower rate of landfill tax (£2.50 per tonne). The first part of the guidance expands upon the meaning of the term ‘naturally occurring’ to assist in the interpretation of the qualifying materials table in the Schedule to the Landfill Tax (Qualifying Material) Order 2011. The guidance emphasises, for example, that although mechanical processing such as crushing or sorting will not in itself affect whether or not a material is ‘naturally occurring’, chemical or thermal processing will.
In addition, the draft guidance sets out advice on what evidence will be required to demonstrate that a material is eligible for the lower rate and, in particular, gives examples of what will or will not constitute a description of materials on waste transfer documentation sufficient to ensure that the lower rate is payable. The draft guidance also extends advice already contained in HMRC’s Notice LFT1, ‘A general guide to landfill tax’, specifically in relation to mixed loads and concerning the filling of quarries exemption.
The consultation closed on 20 October 2013, and HMRC hopes to have finalised and implemented revised guidance before the end of 2013.
We have significant experience of waste regulatory matters and regularly advise waste contractors on their regulatory duties with regards to waste and in prosecutions for breaches of environmental regulations. We are currently instructed in matters relating to seeking landfill tax exemptions for certain types of waste and advising landlords of waste sites on defence of prosecutions and claims against their tenants.
Defra consultation on revoking
Site Waste Management Plans
On 30 August 2013, the Department for Environment, Food and Rural Affairs (“Defra”) published its response to the consultation it held between 18 June and 16 July 2013 on proposals to repeal the Construction Site Waste Management Plans Regulations 2008 (“SWMP Regulations”). The proposed repeal comes as part of the Government’s broader ‘Red Tape Challenge’, which aims to free-up business by removing legislation that the Government considers to be unnecessary.
Defra’s response to the consultation acknowledged that the opinion of those questioned on the proposal to repeal the requirement for compulsory SWMPs was mixed, with equal numbers of respondents in favour of and opposed to the proposal. 73% of those responding to the consultation expect that they will continue to use SWMPs, or a tool similar to them, even if SWMPs are no longer compulsory.
Despite the mixed responses, Defra intends to continue with its proposal and has set 1 December 2013 as the date on which the repeal of the SWMP Regulations will come into effect.
We have advised on several waste PFI projects in England, Scotland and Wales and are very familiar with the regulatory regime that governs such projects. We also regularly advise waste operators on operational agreements including waste supply contracts for EfW facilities and feedstock agreements for anaerobic digestion facilities. We also prepare and negotiate ancillary agreements in waste projects including power purchase agreements and grid connection agreements.
For further information please contact Nick Churchward, Partner on +44 (0) 117 307 6998 or email: nick.churchward@burges-salmon.com
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Carbon, Climate Change and Sustainability
Aviation and the EU ETS
In September the International Civil Aviation Organisation agreed to introduce a global Market-based measures (“MBM”) approach to controlling aviation emissions, with a view to implementation by 2020. In response, on 16 October 2013, the European Commission issued proposals to adjust the EU Emissions Trading Scheme (“EU ETS”) in respect of aviation emissions.
The key provisions are that:
n Flights to and from the EU in 2013 will continue to be exempt from the EU ETS.
n From 2014:
n Flights within the European Economic Area (“EEA”) – i.e. the 28 EU member states plus Norway and Iceland – will be covered by the EU ETS.
n Flights to and from non-EEA countries will be exempt for those emissions taking place outside EEA airspace. EUAA (European Union Aviation Allowances) will only be required for emissions from that part of a flight which takes place within EEA airspace.
n Flights to and from developing countries which emit less than 1% of global aviation emissions (around 80 countries in all) will be exempt.
n Overflights of EEA countries will be exempt.
If agreed by the European Parliament and Council, these proposals will take effect once the current suspension of the aviation emissions aspect of the EU ETS comes to an end in January 2014.
Whilst the proposals appear logistically complex, the accompanying explanatory memorandum suggests that efforts will be made to simplify procedure where possible (in particular with regard to calculating the proportion of emissions of a given flight that will be covered by the EU ETS). It is possible that this complexity is in part intended to reduce the risk of carbon leakage: while, statutory exceptions aside, it will not be possible to fly a plane within EEA airspace without being subject to the EU ETS, it will only be that part of the flight that is affected and so there is, in theory, little incentive to try to avoid the EU ETS entirely. It is also important to note that these proposals have not been formed in a vacuum – they have been deliberately put together with a view to a global MBM system being in place by 2020.
The Commission hopes to see the proposal agreed by the European Parliament and Council by March 2014. If there is no alternative, aircraft operators will have to surrender EUAA in April 2014 for emissions resulting from all flights to, from or within the
EU in 2013. We are closely monitoring these proposals.
For further information or to sign-up to our regular carbon law briefings, please contact Rachel Blackburn, Senior Associate, on +44(0)117 307 6085 or email: rachel.blackburn@burges-salmon.com.
Nuclear
Chinese stake in Hinkley Point
forestalls China’s future involvement
in the UK’s nuclear plans
The new nuclear plant at Hinkley Point C site will be partly funded by Chinese investment – the first step following George Osborne’s recent announcement that Chinese companies will be allowed to take a stake in UK nuclear power plants. The new plant will be built by EDF in partnership with China General Nuclear Power Group, a 100% state owned nuclear corporation giant holding a minority stake in the project.
Chinese companies have always been eager to use the UK, with its global reputation for having stringent safety regulations, to showcase their nuclear expertise. However, Chinese involvement in UK nuclear had formed a topic of both political and public controversy for some time due to security and transparency concerns. The decision to finally accept Chinese investment is prompted to a large extent by the growing threat of power shortages over the next few years coupled with limited funding for expanding capacity.
George Osborne’s announcement follows the signing in Beijing of a new memorandum of understanding on civil nuclear collaboration between the two countries. The memorandum sets the strategic framework for collaboration on investment, technology, construction and expertise. Initially, Chinese companies are likely to hold only minority stakes, but over time may take majority stakes in subsequent new power stations. Also as a part of the memorandum, the UK’s International Nuclear Service will be collaborating with the Chinese Nuclear Power Engineering Company to share UK experience on radioactive waste management and provide training to Chinese technicians.
In addition to facilitating Chinese investment in the UK, the memorandum will enable UK companies to be involved in China’s nuclear plans.
For further details on our Nuclear Practice or to receive
our regular Nuclear Law Briefing please contact Ian Salter, Partner on +44 (0) 117 939 2225 or email: ian.salter@burges-salmon.com
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Chemicals
Regulation updates:
Mercury, CLP and Biocidal Products
The EU has taken another significant step to control the use of Mercury since the launch of the EU Mercury Strategy in 2005. On 10 October 2013, the EU signed the Minimata Convention thereby banning or controlling in 3 to 5 years (when the Convention is expected to come into force) the use of mercury in a range of products and processes, including medical devices, low-energy light bulbs, mining, cement making and power generation.
The EU has also continued in its updating of the Classification, Labeling and Packaging (“CLP”) Regulation. The most recent amendment, published on 3 October 2013, aligns the CLP Regulation with the fifth revised edition of the United Nation’s Globally Harmonised System of Classification and Labeling of Chemical Substances. As a historic part of this alignment, from 1 June 2015 the Dangerous Substances Directive and the Dangerous Preparations Directive will be replaced by the direct acting CLP Regulation.
Finally, the provisions of the Biocidal Products Regulation came into effect on 1 September 2013, thereby revoking and replacing the Biocides Directive. Whilst the Regulation has only just come into effect, it is hoped that the streamlined authorisation process and member states mutual recognition provisions will improve the Biocides market.
REACH, chemicals regulation
and nanotechnology
Developments continue in relation to REACH. Whilst the Candidate List of Substances of Very High Concern (“SVHCs”) has not changed since June 2013 (144 substances), the European Chemicals Agency (“ECHA”) has been consulting since 2 September 2013 over whether to add 7 new chemicals to the Candidate List. Given the objective of the SVHC Roadmap to have all currently known SVHCs included in the candidate list by 2020 and the International Chemical Secretariat’s current list of 626 SVHCs, we expect there to be an ever increasing amount of activity in this area, particularly with regards to data sharing.
Efforts are on-going to adapt the REACH regulation to provide a framework for the regulation of nanotechnology. In June the European Commission issued a technically-focussed consultation aimed at modification of the REACH annexes on Nanomaterials and providing further clarity on how these materials are to be addressed and safely demonstrated in REACH registration dossiers. The consultation closed on 13 September and, following evaluation of the evidence submitted, the Commission aims to amend the annexes to the regulation later this year. We will continue to closely monitor developments.
In addition, on the subject of REACH registration, ECHA recently announced that registration numbers have been granted to 9,030 dossiers submitted by the second REACH registration deadline of 31 May 2013. This deadline applied to existing (or “phase-in”) substances manufactured or imported in quantities of 100 tonnes or more each year. 9,084 dossiers were submitted in total: those dossiers that have not received a registration number are cases where the registrant has had to resubmit, following a request for further information, or where there has been a rejection for non-payment of fees. The next deadline for phase-in substances is 30 May 2018, and applies to substances manufactured or imported in quantities of one tonne or more per year.
For further information on any aspect of our work on Chemicals Regulation or to receive our regular briefings in this area, please contact William Wilson, Barrister, on +44(0)117 939 2289 or email: william.wilson@burges-salmon.com
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Energy and Power
Electricity market reform –
quarterly update
As the Energy Bill 2013 draws closer to receiving Royal Assent, the number of government announcements and policy amendments has increased markedly. Within the past four months the government has proposed to introduce power purchase agreements (“PPAs”) of last resort and increase the support available for community energy schemes, published draft secondary implementing legislation for consultation and made a number of important decisions with regard to nuclear power in
the UK.
The proposed PPA amendment will, if passed, enable the government to require electricity suppliers to offer PPAs to generators of renewable electricity (subject to certain conditions being satisfied). The amendment follows commentary from numerous stakeholders that the power purchase market has become increasingly hostile, as the Renewables Obligation closes to new generation in 2017. Independent renewables generators have expressed particular concern as they have seen their ability to secure long term funding diminish in line with the decline in the PPA market. It is hoped that the amendment will reinvigorate the PPA market, enabling independent generators to continue to develop renewables projects.
The government has also proposed to increase the level of support that it provides to community energy schemes. To date the government has only been able to offer enhanced support to community energy schemes of up to 5MW in generation capacity under the Feed in Tariff (“FIT”). The proposed amendment, if accepted, will enable the government to offer support under the FIT for community renewable projects of up to 10MW. As attitudes to onshore wind and ground mounted solar developments harden, we believe this enhanced community support will become increasingly attractive to developers.
Supplementing these amendments, the government has published secondary legislation for consultation outlining, among other things, the eligibility criteria for the contracts for difference and the allocation process.
Of more immediate effect, the strike price for nuclear generation at Hinkley Point C was published on 21 October.
We advise clients on all aspects of energy projects, including community energy schemes and continue to monitor closely the proposed electricity market reforms. For further information please contact Ross Fairley, Partner on +44(0)117 902 6351, email: ross.fairley@burges-salmon.com or James Phillips, Partner, on +44(0)117 902 7753, email: james.phillips@burges-salmon.com
Shale gas
To date the EU position on shale gas and fracking has been cautiously supportive. Various papers have highlighted the economic case for shale gas extraction, as well as claiming that local shale gas extraction will result in fewer greenhouse gas emissions than from the long-distance transport of gas from outside the EU. Unfortunately, at the same time various parties within the Commission have identified risks to human health and the environment from fracking operations.
At present there is still no comprehensive proposal on the EU regulation of fracking though the general principle appears to be to impose an increased regulatory burden on fracking operations. Indeed the Commission work programme for 2013 proposed a Europe-wide framework for shale gas and other unconventional hydrocarbons, (with the stated aim of creating a level playing field across the EU), but this has yet to be developed further.
Of more immediate concern, the European Parliament’s recent review of the Environmental Impact Assessment (EIA) Directive could have a significant impact on the shale gas industry. Under the current form of the Directive, an Environmental Impact Assessment (“EIA”) is mandatory where 500,000 cubic metres of natural gas per day is extracted. Under UK law EIAs can be required in certain other cases, however UK operators have generally taken care not to meet the qualifying criteria. On 9 October the European Parliament voted to require mandatory Environmental Impact Assessments for all exploratory fracking operations. If the Council agrees to this, the consequences for UK shale gas operators will be significant.
We are monitoring developments very closely and advise clients on all aspects of unconventional gas, including environmental compliance. For further information please contact James Phillips, Partner, on +44 (0) 117 902 7753, email: james.phillips@burges-salmon.com or, William Wilson, Barrister, on +44 (0) 117 939 2289, email: william.wilson@burges-salmon.com
Introduction of Heating Network Subsidies
On 20 September, the bidding process for access to the £6 million grant funding programme for the development of new heating and cooling networks, and the expansion of existing networks, opened. It is hoped that the introduction of these subsidies will help local authorities develop heating networks that use energy from renewable, sustainable or recoverable sources.
In order to gain access to the funding, local authorities have been tasked with submitting “ambitious and innovative” proposals to develop and deliver heat networks. Many university campuses,
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new commercial and residential developments, and high rise flats already use such systems to generate heat and therefore the technology is not new. The criteria for assessment of applications include: potential for commercial development, contribution towards low carbon and energy reduction objectives, and compatibility with the wider low carbon agenda.
A prominent example of a successful heat network project is the Olympic Park District Heating and Cooling Network, which comprises of 18km of distribution pipes that served the Olympic Games in 2012.
Amendments to the Renewable Heat Incentive Scheme
Whilst it is only a six months since the last set of amending regulations took effect, new regulations amending the Renewable Heat Incentive (“RHI”) Scheme came into force on 24 September.
The Renewable Heat Incentive Scheme (Amendment) (No. 2) Regulations (the “2013 Regulations”), which were passed following a consultation, make several amendments to the existing RHI Scheme. The 2013 Regulations simplify the metering requirements of the RHI Scheme, thereby removing one of the key perceived disincentives of applying for the RHI subsidy and introduce emission limits (designed to protect air quality) for solid biomass plants, including combined heat and power (“CHP”) plants.
The amendments precede the widely anticipated commencement of phase 2 of the RHI Scheme (scheduled to occur in April 2014) when the RHI Scheme will be extended to provide subsidies for domestic renewable heat projects.
For more information concerning the impact of the RHI amendments or community heat networks generally, please contact James Phillips, Partner, on +44 (0) 117 902 7753, email: james.phillips@burges-salmon.com or Sam Sandilands, Associate, on +44 (0) 117 307 6963 or email: sam.sandilands@burges-salmon.com
Resolution of Chinese
solar panels dispute
Following our reporting on the European Commission’s decision earlier this year to impose emergency anti-dumping levies on Chinese solar panel imports, the Commission has agreed a targeted and innovative tariff settlement with the Chinese Government.
From 6 August, Chinese solar panel providers have been required to comply with a voluntary price undertaking, thereby committing to keep solar panel prices above a certain floor price. However, any Chinese companies which do not comply with the agreement and any Chinese solar panel imports exceeding the agreed annual volume are subject to the average anti-dumping duty of 47.6% of the import value of the goods.
It is hoped that the Commission’s agreement will provide certainty on the issue and enable solar developers to once again bring projects to the market.
Our team has full Chinese language capabilities and we continue to work with our network of preferred Chinese law firms on international issues. For further information please contact Ross Fairley, Partner on +44(0)117 902 6351 or email: ross.fairley@burges-salmon.com
Reporting and Management
The Companies Act 2006 (Strategic Report and Directors’ Report) Regulations 2013
On 6 August 2013, the Companies Act 2006 (Strategic Report and Directors’ Report) Regulations 2013 were made (the “Regulations”). The Regulations for the most part came into force on 1 October 2013 and have effect in respect of financial years ending on or after 30 September 2013.
The Regulations amend Part 15 (Accounts and Reports) of the Companies Act 2006 and require companies not entitled to the small companies’ exemption to draw up strategic reports – which must include certain environmental information – each financial year. More specifically, the reports must include information about environmental matters to the extent that such information is necessary to understand the development, performance and position of the company in question’s business.
The Regulations also serve to insert into the Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations 2008 a new Part 7 to Schedule 7. This new Part 7 requires the directors of quoted companies to state certain environmental information in their annual financial report. For example, the report must state the annual quantity of emissions arising from the company’s activities, including the combustion of fuel and the operation of any facility. The company must also declare the quantity of emissions arising from the purchase of electricity, steam, heat, or cooling by the company for its own use. If it is impractical to obtain such information, the report must state what information it has not included and why it has not done so.
For more information please contact Sam Sandilands, Associate, on +44 (0) 117 307 6963 or email: sam.sandilands@burges-salmon.com
Case Law Update
Private companies may have a duty to disclose environmental information related to public functions
Private utility companies might be required to disclose environmental information to the public, if the Court of Justice of the European Union adopts the opinion of Advocate General Cruz Villalón in the case of Fish Legal v The Information Commissioner.
The opinion states that, under European law, private companies expressly empowered to exercise public authority should be subject to the same duties of disclosure as the state itself and as such they must grant access to all the environmental information that they hold in any capacity. Private companies under state control that engage in activities unconnected with their relationship with the state should still be required to disclose environmental information in relation to their state controlled activities. The opinion makes clear that any ambiguity should be resolved in favour of disclosure of the information.
The final decision of the Court of Justice is now awaited. The decision will be particularly significant for the UK where privatised industries such as electricity, gas, rail and telecom services could be impacted.
Our environment and energy team has several experts in environmental information rights. Simon Tilling, Senior Associate recently addressed the Academy of European Law in Trier, Germany, on access to environmental information and has recently published an article on “Access to Commercially Sensitive Environmental Information” in the journal ERA Forum.
Six figure fines for damaging
protected sites
The Courts have demonstrated that landowners who damage protected sites can expect to receive hefty criminal fines and onerous restoration orders.
An East Sussex landowner was recently ordered to pay £135,000 for damaging an ancient coastal conservation site after undertaking a range of activities without consent including erecting cabins and barbecues and planting non-native species. The landowner was also issued with a restoration order, which required him to remove the non-consented structures and plants, and sow local vegetation.
In another recent case in Cumbria, a landowner was fined £900,000 for felling trees on protected ancient woodland. The landowner argued that he had removed the trees following a landslip, but the court held that the principal motive was to construct a track. The landowner avoided a court imposed restoration order by negotiating a voluntary restoration program.
As these two cases demonstrate, the fines can be significant, but so too can the restoration obligations. In fact, in many cases the expense of restoration far exceeds the level of the criminal court fine. Early engagement on the terms of restoration is encouraged and specialist advice from ecologists is often needed. Our team has negotiated a number of restoration schemes with regulators both following National England prosecutions and action from the Environment Agency and other regulators.
For further information on our specialist environmental litigation practice please contact Michael Barlow, Partner on +44(0)117 902 7708 or email: michael.barlow@burges-salmon.com or Simon Tilling, Senior Associate on +44 (0)117 902 7708 or email: simon.tilling@burges-salmon.com
Simon Tilling, Senior Associate addressed the Welsh branch of the RICS on the topic of contamination, pollution and enforcement trends at Cardiff City Stadium on 3 October 2013.
William Wilson, Barrister spoke at an Institute of Mechanical Engineers conference on Carbon Capture and Storage on 16 October 2013.
Ross, Fairley, Partner spoke at the American Bar Association’s Annual Conference in Maryland in October 2013 on UK/European Environmental & Energy Law Developments - Key things US Corporates and their US Legal Advisers should know.
Recent/upcoming events
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This newsletter gives general information only and is not intended to be an exhaustive statement of the law. Although we have taken care over the information, you should not rely on it as legal advice. We do not accept any liability to anyone who does rely on its content.
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Environment and Energy team partners
Ian Salter
Partner
+44 (0) 117 939 2255
ian.salter@burges-salmon.com
Ross Fairley
Partner
+44 (0) 117 902 6351
ross.fairley@burges-salmon.com
Michael Barlow
Partner
+44 (0) 117 902 7708
michael.barlow@burges-salmon.com
James Phillips
Partner
+44 (0) 117 902 7753 james.phillips@burges-salmon.com
Nick Churchward
Partner
+44 (0) 117 307 6998
nick.churchward@burges-salmon.com
Environment and Energy Law is collated and edited by Joanne Attwood, Associate. For further information please contact Joanne on +44(0)117 902 7257 or email:
joanne.attwood@burges-salmon.com
30 October 2013
Protests and direct action: be prepared
Simon Tilling and Alice Yan discuss the ways in which businesses can prepare for direct action by climate change protestors. This article originally appeared in Oil&GasCONNECT (November 2013).
25 October 2013
A-Z of issues in renewable energy projects
In this series of articles, our Energy team provides an “A-Z” of key legal and practical issues in renewable energy projects. This first edition covers “A to D” and sets out a number of issues that our construction and power teams regularly encounter.
14 October 2013
The proposed Water Bill: the key issues
Michael Barlow and Joanne Attwood discuss the proposals set out in the Bill and the implications for current water and sewerage companies, current and potential licensees and customers. This article was published in the October 2013 issue of The In-House Lawyer.
18 September 2013
Mandatory Carbon Reporting from 1 October 2013
Ross Fairley and Rachel Blackburn discuss the new burden for quoted companies in the UK to report certain greenhouse gas emissions.
16 September 2013
Guaranteeing tax relief for decommissioning: what will it mean?
James Phillips and Alice Yan examine the potential impact of the Decommissioning Relief Deeds on tax relief for UKCS oil and gas operators. This article appeared in Oil&GasCONNECT (August 2013).
23 August 2013
Keeping the lights on
Nick Churchward and Emma Andrews outline how the Government’s electricity market reform will support new renewable energy generation. This article featured in Energy Engineering.
Recent Publications