Flooding impacts across the country
The recent flooding across the UK has left many homes and businesses adversely affected. The Government has released guidance (“Flood Support Schemes - 24 February 2014”) which provides information for local authorities, businesses and homeowners about schemes to help homeowners and businesses in England to recover from the adverse effects of flooding events (for the period December 2013 to 31 March 2014). The guidance sets out the eligibility criteria for specific funds and provides high-level guidance to local authorities who will be responsible for administering the schemes locally.
In summary, the guidance sets out that support
for businesses includes:
100% business rate relief for three
months, regardless of length of time
of flooding (subject to the value of the
hereditament at the time being less than
Support for small and medium sized
businesses to help develop and
implement business recovery plans. This
new business support scheme will also
extend to those businesses that, whilst not
flooded themselves, have been negatively
impacted by the floods.
A new repair and renew grant which will
provide financial support to pay for future
flood defence actions.
These schemes are in addition to financial
support that is already available via other routes,
such as under the Severe Weather Recovery
Scheme and Farming Recovery Fund.
If you would like further information on any flood
associated legal issues, please contact us using
the details below.2
The Water Bill continues on its passage through Parliament. The
second reading debate took place on 27 January and was the
House of Lords’ first opportunity to debate the key principles and
main purpose of the Bill. Committee stage, which entails a line
by line examination of the Bill took place on 4, 6 and 11 February.
The next stage is Report stage in the House of Lords which is due
to take place on 25 and 31 March. This will be followed by the
Third Reading in the House of Lords.
Water UK reiterated on 5 March its support for a retail market
in water and for measures in the Bill to improve the resilience of
water supplies. During Committee Stage the Department for
Environment, Food and Rural Affairs (Defra) was keen to insist that
the introduction of competition in the non-household sector would
not put household customers at a disadvantage. Lord de Mauley,
the Parliamentary undersecretary of Defra stated that water
companies would be incentivised to introduce efficiencies and
invest in improved customer services in order to retain and attract
non-household customers, meaning household customers would
also be likely to benefit from these improvements.
We continue to monitor progress of the Bill and implications for clients.
For further information on our water practice please contact
Michael Barlow, Partner on +44(0)117 902 7708 or email:
email@example.com or Joanne Attwood,
Associate on +44(0)117 902 7257 or email: joanne.attwood@
Water Bill update
“Energy from waste - a guide to the
On 26 February 2014 Defra published an update to its 2011
guidance on energy from waste technologies. To accompany
the revised guide, a series of technology briefings were also
released, which provide greater detail on the various technologies
employed in modern waste treatment including specific energy
from waste technologies.
By providing a credible reference document to inform discussions
and decisions relating to energy from waste, the guide aims to
help households, businesses and the public sector understand
and value the recovery of energy from waste and its place in the
The 2014 update includes a new chapter 5 which considers
the future policy direction for energy from waste and identifies
underlying principles that are likely to continue as key
considerations for both government and the sector in the future.
A link to the guidance is available here: https://www.gov.uk/
We have significant experience of waste regulatory matters
and regularly advise waste contractors on their regulatory
duties. We also advise on waste PFI projects in England,
Scotland and Wales (and are very familiar with the regulatory
regime that governs such projects) as well as advising 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@
“...the guide aims to help households,
businesses and the public sector
understand and value the recovery of
energy from waste and its place in the
Climate change: evidence and causes -
The US Academy of Sciences and the UK Royal Society produced
a significant report on 26 February 2014 summarising the current
state of the scientific understanding of their leading specialists in
this key area. The report provides conclusions on a number of
areas including climate warming, the impact of human activities
and explanations of variances.
This is an authoritative summary from the leading climate scientists
in each jurisdiction and is a timely reminder of the seriousness
of the climate change issue. It also acts as a baseline for the
continued development of energy policy.
More information about the report can be accessed on the Royal
Society’s website http://royalsociety.org/news/2014/climatechange-evidence-causes/
For further information please contact William Wilson,
Barrister, on +44 (0) 117 939 2289 or email: william.wilson@
Carbon price floor freeze
It has been speculated that George Osborne will freeze the carbon
price floor when he unveils his budget on 19 March.
Some commentators have speculated that the freeze could be in
place for up to four years for the price floor which is a tax on the
carbon dioxide emissions from power stations using fossil fuels.
If the permit price under the EU Emissions Trading Scheme (EU
ETS) drops below the floor level, generators pay the difference to
Some industry insiders had predicted the carbon price floor
would be watered down or scrapped altogether as part of the
Government’s review of “green levies” last autumn. However,
the tax remained untouched, with the review instead resulting in
major changes to the Energy Company Obligation (ECO) domestic
energy efficiency scheme.
The carbon price floor was set at £4.94 a tonne of carbon dioxide
in April 2013 and, according to the Treasury will rise to £18.08 a
tonne in for the year 2015-16.
Manufacturing bodies have warned that high energy bills are
making it difficult for UK manufacturers to compete overseas. The
price for permits under the EU ETS has fallen significantly over
recent years, leaving UK businesses with much higher bills than
their European counterparts.
Industry will await the Chancellor’s budget with significant interest.
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: firstname.lastname@example.org.
Carbon, climate change and sustainability
Batteries and accumulator developments
Following the passing of the Batteries Directive in 2006, the
European Parliament has taken another step to restrict batteries
and accumulator devices containing cadmium or mercury from
being placed on the market.
When the Batteries Directive came into force on 26 September
2006, it contained a number of exemptions to the general
prohibition on the placing on the market of batteries and
accumulators which contained mercury or cadmium. Importantly,
these exemptions included batteries which were incorporated into
cordless power tools and button cells. Since the availability of
cadmium and mercury free substitutes have become more widely
available however, the European Parliament has determined that
these two exemptions should be removed.
On 20 November 2013, the European Parliament subsequently
passed Directive 2013/56/EU thereby extending the ban on the
placing on the market of portable batteries and accumulators
containing more than 0.002% of cadmium to portable batteries
intended for use in cordless power tools. The Directive also
restricts the marketing of button cells (used in wrist watches and
hearing aids etc.) to those with a mercury content of less than
0.0005% by weight.
In order to enable the recycling industry and consumers to adapt
to the relevant substitute technologies however, affected power
tools will only be restricted from being placed on the market from
31 December 2016, whilst the button cells prohibition will apply
within the next two years.
Changes to the import and export
procedure for hazardous chemicals
With effect from 1 March 2014, manufacturers will be affected
by new import and export regulations with regards to hazardous
chemicals. Whilst not substantially changing the existing
arrangements, the recast Prior Informed Consent Regulation (EU
649/2012) will make a number of changes to the import and export
process of hazardous chemicals. This includes requiring chemical
exporters to notify the relevant Designated National Authority at
least 35 days before the first expected date of export of a chemical
to that authority’s country.
REACH Review and Enforcement
REACH continues to affect parties across multiple sectors
and the European Chemicals Agency’s (ECHA’s) annual 2013
evaluation report gives an insight into ECHA’s concerns and focus.
Highlighting the complex nature of the REACH regime, ECHA has
indicated that of the 1130 dossiers it reviewed in 2013, over 60%
of them did not comply with the REACH information requirements.
This is particularly worrying given that ECHA has also taken legal
action against 46 company registrants who may have incorrectly
registered their substances as intermediates under REACH
regulations. ECHA gave the relevant companies one month to
update their registration and correct the inconsistencies found in
their dossiers regarding intermediate chemical substances and
warned them that a failure to act would result in the engagement of
national enforcement authorities in the relevant member states.
This legal action by ECHA and its 2013 report are the latest
evidence of ECHA’s focus on compliance and enforcement,
with the penalties for non-compliance becoming increasingly
problematic for companies.
For further information on any aspect of our work on Chemicals
Regulation or product stewardship 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 or Simon Tilling, Senior Associate, on +44 (0)117 902 7794
or email: email@example.com.
Energy and power
Contracts for Difference - update
Since our last Environment and Energy Law Update, the
Department of Energy and Climate Change (DECC) has
announced some key shifts in original thoughts on allocation of
Contracts for Difference (CfDs), as well as publishing final strike
prices for renewables technologies.
Key points to note from the publication of the final strike prices
are that certain technologies incentivised under the Renewables
Obligation are not going to benefit from CfDs as it stands at
present including dedicated biomass plants without combined
heat and power (CHP), biomass co-firing, standard bioliquids
and geopressure. In addition, some technologies (tidal range
and large hydro >50MW)) are going to have to negotiate CfDs at
the time their projects are ready. In addition, the “nuclear” strike
price - negotiable at the time of each project - will be £92.50/
MWh at Hinkley Point (although this is currently the subject of
an investigation by the European Commission as to whether it
constitutes illegal state aid).
In addition, largely as a result of recently published EU State Aid
guidelines, the latest consultation issued by DECC on allocation
suggests that ‘established’ technologies (onshore wind (>5 MW),
solar photovoltaic (>5MW), energy from waste with CHP, hydro
(>5MW and <50MW), landfill gas and sewage gas) will, from the
start of allocation, be competing for a limited pool of CfDs.
For more detail, see our article “Electricity market reform: an
update on contracts for difference” in the March 2014 edition of
The In-House Lawyer magazine.
As a result of the increasing amount of intermittent generation
expected to be added to the UK’s electricity mix over the coming
decade and the anticipated increase in demand, the Capacity
Market is intended to ensure sufficient investment in the overall
level of reliable capacity needed to meet the UK’s future electricity
needs. Successful participants will receive regular payments, in
return for which they must produce energy (or reduce demand)
when the system is tight.
Both new and existing generating capacity, including CHP, will be
eligible (provided it is not already receiving support under one of
a number of other incentives), as well as demand-side response.
The Government will also run a pilot scheme in relation to
permanent reductions in electricity demand (such as more efficient
motors, air conditioning and lighting).
The EMR Delivery Plan, published by DECC in December 2013,
provided further detail of the Capacity Market’s proposed design.
National Grid will run the first auction in November 2014 for
delivery of capacity from the winter of 2018/19, subject to EU State
Whilst many commentators remain to be convinced that the
Capacity Market will deliver security of supply in the most cost
effective manner, it is inevitable that the opportunities it creates
will have a huge impact for many proposed new thermal electricity
projects, as well as potential demand-side response providers.
For more detail, see our article “Electricity market reform: the
Capacity Market explained” in the February 2014 edition of The
In-House Lawyer magazine - http://www.inhouselawyer.co.uk/
We advise clients on all aspects of energy projects and
continue to monitor closely the proposed electricity market
reforms. For further information please contact Ross Fairley,
Partner on +44(0)117 902 6351 or email: firstname.lastname@example.org, James Phillips, Partner, on +44(0)117 902 7753 or
email: email@example.com or Emma Andrews
on +44(0)117 902 6697 or email: firstname.lastname@example.org
Community Ownership - The
Government’s “carrot and stick”
In the latest effort of an increasing stream of publications from
DECC affecting the renewables sector, the Government published
its Community Energy Strategy on 27 January 2014.
The Government is committed to establishing more projects with
community energy ownership and a task force has been set up
to report on this by the summer (2014). The clear signal is that
“By 2015 it will be the norm for communities to be offered the
opportunity of some level of ownership of new, commercially
developed, onshore renewables projects”.
If progress by 2015 is limited, the Government will “Consider
requiring all developers to offer the opportunity of a shared
ownership element to communities”. It is likely the Government will
want to consider legislation to back this up.
No mention is made of the cap on the size of the projects which
have to offer community ownership. The Government has clearly
been looking at the community ownership model in Denmark.
Developers in Denmark are required to offer up to 20% of shares
in a project to the community living within a certain radius of the
project. Shares which are not taken up are then offered to other
householders in the wider community.
Innovative developers are already working with experts in community
structuring and engagement to work out the best way of developing
their renewables development strategy going forward and how best
to engage the communities and offer them stakes in projects.
Burges Salmon has been at the forefront of developing
innovative community energy models and strategies. We
have advised parties on the regulatory rules surrounding joint
ventures with the community, turbine ownership scenarios as
well as share offerings to the general public and community.
If you require further information please contact Ross Fairley,
Partner on +44 (0) 117 902 6351 email: email@example.com.
Nuclear Law briefing
The next edition of our Nuclear Law briefing is out shortly. To
receive a copy or for further details on our nuclear practice please
contact Ian Salter, Partner on +44 (0) 117 939 2225 or email:
Reporting and management
Consultation on greenhouse gas reporting
On 24 February 2014 Defra launched a consultation on a further
updating of guidance on how companies report their greenhouse
The consultation is as a result of calls made during the July 2013
consultation for a change to the way that companies reported
renewable electricity that they specifically purchased from their
The February 2014 consultation includes proposals to enable
companies to reflect purchases of biogas and biomethane, if they hold
corresponding documents certifying that the gas has been injected
into the gas grid by reporting reduced emissions figures. There is a
similar proposal for reporting a reduced emissions figure, based on
purchased renewable electricity, without the need for any additional
carbon offsets (as is currently required). In order to do so, a customer’s
electricity supplier would need to hold the requisite number of
Renewable Energy Guarantees of Origin (REGOs) and redeem or retire
any Levy Exemption Certificates (LECs) associated with the electricity.
This would be a significant change for many reporting entities.
Defra is consulting on how these figures should be presented in
reports. The consultation closes on Monday 24 March 2014 and
full details can be found at https://consult.defra.gov.uk/climatechange/ac04ad33
For further information please contact Nick Churchward,
Partner on +44 (0) 117 307 6998 or email: nick.churchward@
Reporting Obligations under the new
The UK, along with Germany and Poland, have recently
managed to ‘water down’ many proposed changes to the way
in which companies need to report on their environmental and
social impacts as part of the EU’s proposed corporate social
responsibility directive (the CSR Directive).
The CSR Directive was initially proposed in April 2013 to
consolidate and replace the EU Accounting Directives 78/660/
EEC and 83/349/EEC. However, in June 2013 the EU Accounting
Directives were repealed and replaced with Directive 2013/34/EU
(the Current Directive). The CSR Directive has since been amended
and in its new form is proposed to amend the Current Directive.
While the UK was not opposed to the concept of reporting,
indeed it already has some reporting requirements that go beyond
the CSR Directive, it was opposed to the additional obligations
affecting a large number of companies.
The main concession that was successfully won in the European
Parliament means that only around 5,000 of the largest EU
companies will have to report non-financial issues under the
agreement. These companies fall into the category of having more
than 500 employees and being listed on the stock market.
Critics of the CSR Directive have branded it as containing weak,
flexible wording, which allows companies to choose their form of
reporting from existing national, EU and international frameworks,
or no framework at all. They can also produce separate financial 6
and non-financial reports on their annual performance.
The proposed CSR Directive still has to be approved by the full
European Parliament and Council of Ministers before it can enter
into force and the EU Member States will then be given until a
certain date by which they have to incorporate the rules of the
directive with their national law.
It is expected that guidelines on how companies should be
reporting under the CSR Directive will be produced by the
Commission within the next two years.
Good practice reporting by portfolio and
private equity companies
On 5 February 2014, the Guidelines Monitoring Group (GMG)
published guidance in order to assist private equity owned portfolio
companies in improving the transparency and disclosure in their
financial and narrative reporting in compliance with the Guidelines
for Disclosure and Transparency in Private Equity (the Guidelines).
While the Guidelines do not have any legal force, all private equity
firms and portfolio companies are encouraged to abide by them in
order to improve their transparency and disclosure.
Reporting requirements in respect of environmental matters are set
out in section eleven of the Guidelines. Business reviews must,
to the extent necessary for an understanding of the development,
performance or position of the company’s business, include
information about environmental matters. This includes the impact
of the operations of the business on the environment as well as
details of any policies of the company in respect of such matters
and their effectiveness.
Good practice is to be evidenced by discussion of specific actions
taken to address environmental matters affecting the business
(supported by quantifiable evidence and specific targets where
applicable), a clear explanation and alignment of the specific
environmental matters and strategy and cross-references to relevant
extracts from the Corporate Social Responsibility (CSR) report.
The Guidelines give case study examples of good practice taken from
the reporting of the Brakes Group, AWAS and Edinburgh Airport.
The GMG is in the process of reviewing the definition of a ‘portfolio
company’ for the purposes of the reporting Guidelines and whether
the criteria should be widened to bring more portfolio companies
into scope. It is expected that the GMG will publish further
guidance in June 2014.
For more information please contact Sam Sandilands,
Associate, on +44 (0) 117 307 6963 or email: sam.sandilands@
Supreme Court clarifies the law
surrounding private nuisance
On 26 February 2014 the Supreme Court handed down its decision
in the case of Coventry and others (Respondents) v Lawrence and
another (Appellants)  UKSC 13. The Supreme Court decided
in favour of the appellants in restoring an injunction to prevent noise
nuisance emanating from a motocross stadium and track.
This is the first time that the Supreme Court has considered the
law of nuisance. The court’s judgment touched on a range of
important issues including:
Prescription as a defence to nuisance - A prescriptive right
to make noise could potentially defeat a claim of nuisance. A
defendant can attain a right to make noise by prescription i.e.
long use (usually acquired after 20 years). Noise does not have
to be continuous over this period.
Pre-existing conduct - A defendant cannot argue that a
claimant ‘came to a nuisance’. However, there may be a
defence where the claimant builds on his or her property or
changes the use of the property after the defendant had initially
commenced the activity causing the alleged nuisance.
Consideration of the defendant’s activities in assessing
character of a locality - The defendant’s activities causing
the alleged nuisance may only be considered as comprising
a part of the character of the neighbourhood to the extent
that the activities do not constitute a nuisance. If they
cannot be carried out without creating a nuisance they must
be entirely discounted.
The scope for an award of damages rather than an
injunction - The usual remedy for a claimant in nuisance is an
injunction (in addition to damages for past nuisance), although
the court may exercise its discretion to award damages in the
alternative. In Coventry v Lawrence the court extended judicial
discretion to award damages rather than an injunction.
Reassessment of the relationship between planning and
nuisance - The grant of planning permission for a particular
development does not mean that the development is lawful,
regardless of whether it concerns a large or small area of land,
and is therefore of no assistance to the defendant. The issue
of common law nuisance is reserved to the court rather than
the relevant planning authority. However, where planning
permission stipulates limits as to the frequency and intensity
of noise which the claimant argues are being exceeded then
such conditions within a planning permission may be relevant
in assisting the claimant’s action.
This is a key moment in the development of the law of nuisance.
The Supreme Court has taken an opportunity to clarify some
important points in relation to the law of nuisance and, in particular,
areas where practitioners and commentators thought that the area
of law had not kept pace with industrial development.
Case law updateFor further information on this case, please see our full briefing (see
the ‘Recent publications’ section).
Sentencing guideline published for
On 26 February 2014 the Sentencing Council published the
definitive guideline on the sentencing of environmental offences (The
Guideline). The Guideline covers a number of offences including:
the unauthorised or harmful deposit, treatment or disposal etc.
of waste; and
illegal discharges to air, land and/or water.
A 12-step sentencing process is prescribed (with separate
procedures for corporate and individual offenders). Essentially,
the Guideline looks to ascertain the category of the offence (by
reference to harm caused and the culpability of the offender - i.e.
the level of blame attaching to the offence) and then gives a range
of suitable fines (with an indicative starting point) and guidance on
factors that might increase or decrease the level of fine.
For corporate offenders the Guideline differentiates between large,
medium, small and micro organisations, determined by level of
turnover. The following tables give a sense of the range of fines that
can be imposed for the most serious offences, but also show that
mid-level fines can also be significant.
The risk of high penalties for corporate bodies charged with
environmental offences is clear, making it all the more important
for companies to be aware of environmental responsibilities and
compliance in the first instance, but also to obtain proper advice in
the event that an environmental offence is committed.
Court of Appeal considers the meaning
of “knowingly permitted” under the
Environmental Permitting Regulations
Under the Environmental Permitting Regulations 2010 it is an
offence to “knowingly permit” the operation of a regulated facility
without an environmental permit.
On 6 February 2014 the Criminal Division of the Court of Appeal
handed down its decision in the case of Walker and Son (Hauliers)
Ltd v Environment Agency  EWCA Crim 100 where it
considered the meaning of “knowingly permit”. In this case, the
defendant company had instructed its contractor to demolish old
buildings on a site owned by the defendant. The contractor had
illegally transferred waste on to the site, some of which was burnt.
The defendant had not been involved with this activity and had
believed that the contractor’s work on site was consistent with the
The Court of Appeal held that the Environment Agency, as
prosecutor, only had to establish four facts, being that:
waste operations were taking place on site;
such waste operations were unlawful;
the defendant was aware of such waste operations; and
the defendant failed to take any steps to prevent such waste
The court held that it was not necessary to further establish that
the defendant knew that the waste operations in question were not
authorised by an environmental permit.
The case makes it clear to owners and occupiers of land that
they must actively ensure that operations on their site comply with
environmental permitting requirements. It will not be possible to
argue one was unaware that an environmental permit was required
or that such a permit was not obtained.
This decision emphasises the low threshold of “knowingly
permitting” and the importance, for owners and occupiers of land,
to ensure that operations are in compliance with environmental
permitting regulations. The publication of sentencing guidelines for
environmental offences (see above) makes clear the consequences
of failure in this regard.
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: firstname.lastname@example.org.
Most serious offence and
highest culpability range
Large £450,000 - £3 million £1 million
Medium £170,000 - £1 million £400,000
Small £45,000 - £400,000 £100,000
Micro £9,000 - £95,000 £5,000
Range for medium
category and mid-level
Large £60,000 - £350,000 £140,000
Medium £25,000 - £140,000 £55,000
Small £6,000 - £55,000 £13,000
Micro £1,000 - £13,000 £6,500Ian Salter
+44 (0) 117 939 2255
Environment and Energy team partners
One Glass Wharf
Bristol BS2 0ZX
Tel: +44 (0) 117 939 2000
Fax: +44 (0) 117 902 4400
6 New Street Square
London EC4A 3BF
Tel: +44 (0)20 7685 1200
Fax: +44 (0)20 7980 4966
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.
© Burges Salmon LLP 2014.
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A list of members, all of whom are
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Bristol BS2 0ZX.
Stephen Lavington, Solicitor spoke at the RICS
Wales Rural Conference, providing an update on the
Habitats Directive and European protected species
and recent developments in Environmental law on 5
December 2013 in Llandrindodd Wells, Wales.
Rachel Blackburn, Senior Associate spoke at the
Westminster Energy, Environment and Transport
Seminar on the EU ETS: structural reform, the
aviation industry and prospects for international
integration on 5 December 2013 and at an ADS
meeting on the EU ETS and the aviation sector in
January 2014 in London.
Ian Salter, Partner spoke at the Westminster
Energy Forum on new nuclear build, legal and
regulatory update, on 6 February 2014 at KPMG’s
offices at Canary Wharf.
Michael Barlow, Partner participated in a webinar
on the Water Bill (as joint speaker) hosted by
LexisNexis/UKELA on 14 February 2014.
Nick Churchward, Partner was a panel member
at The Energy from Waste conference on 26
February at the Royal College of Surgeons, London
discussing how to improve confidence for investors
and wider stakeholders in merchant waste projects.
Ross Fairley, Partner spoke on future deployment
scenarios for offshore wind and marine energy in
Scotland on 5 March alongside Scottish Energy
Minister Fergus Ewing at a Royal Haskoning event.
Joanne Attwood, Associate is speaking at the
University of Brighton on 7 May 2014 on water