Environmental Law Flashcards
Where does most environmental legislation come from?
A significant proportion of environmental legislation in England and Wales originates from EU law.
Who are the main bodies responsible for enforcement?
The Environment Agency and the Local Authorities.
Where can environmental liability arise?
Criminal law.
Civil law.
Public or administrative law.
Company law.
What sanctions are used in criminal law?
The sanction for breach of most environmental laws (that is, the unauthorised or harmful deposit of waste, illegal discharges to air, land and water) is prosecution of an individual or company by the relevant regulator in the criminal courts.
What penalties are available for criminal breach of environmental law?
Large fines and imprisonment of company agents. Removal of any gain.
Are sanctions available in civil law?
Yes, Private persons can bring civil law claims for harm caused by environmental matters, usually under the common law of nuisance or negligence. Claims are usually for damages, but the courts can also grant an injunction.
Can an individual bring legal action against a polluter, owner or occupier?
An individual landowner may have a civil claim for nuisance against neighbouring landowners who have caused contamination where the contamination has migrated onto the individual’s land. In order for liability to arise, the neighbouring landowner must have made some non-natural use of its land (for example, industrial use), and the harm caused must have been foreseeable.
Rylands v Fletcher, Transco v Stockport and Smeatonv Ilford might be used as precedence.
In Public or administrative law?
Regulators can serve enforcement notices on operators requiring them to rectify breaches of environmental law. Failure to comply with enforcement notices can constitute a criminal offence. In some cases, regulators can shut down an operator’s activities until the breach has been rectified.
Is there any redress in company law?
Company law imposes a duty on directors to promote the company’s success for the benefit of its members as a whole, taking into account the effect of the company’s operations on the community and the environment.
What is the position with controlled water?
It is an offence to cause or knowingly permit a water discharge activity or groundwater activity except under, and to the extent authorised by, an EP (issued by the (EA).
When are Environmental Impact Assessments required?
An environmental statement (ES) must be submitted with an application for planning permission or development consent to the LA for certain developments that require an EIA under the Town and Country (Environmental Impact Assessment) Regulations.
The thresholds are: Either Five hectares (12 acres) of land or 10000m2 of commercial space or 1000 houses.
All large and complex major infrastructure projects. Where the area is of special importance this will be handled by the EA
How is waste managed?
Under the EPR and by the EA.
What is the regulatory regime for asbestos?
The main instrument regulating asbestos is the Control of Asbestos Regulations 2012. The dutyholder must manage any asbestos present in “non-domestic” buildings. The dutyholder is the owner, occupier and parties with control or with contractual responsibility for maintaining non-domestic premises and the common parts of certain other buildings. Duties include:
Taking reasonable steps to determine and record the location and conditions of asbestos-containing materials (ACMs), and updating the records.
Presuming that all materials contain asbestos unless there is strong evidence that they do not.
Assessing the risk of exposure to ACMs.
Taking necessary steps to manage risks. Licensed contractors must be used for these purposes.
Providing information on the location and condition of ACMs to anyone potentially at risk of exposure from asbestos.
What is the regulatory regime for contaminated land?
There is an overlap of legislation related to the clean-up of contaminated land between the Environmental Protection Act 1990 and the Environmental Damage (Prevention and Remediation) Regulations.
Part IIA of the Environmental Protection Act 1990 aims to ensure that contaminated land identified and remediate where it poses unacceptable levels of risk.
The principal enforcement authority is the relevant local authority (LA). However, certain types of sites or offences are regulated by the Environment Agency (EA)
Who is liable for the clean-up of contaminated land? Can this be excluded?
Under the Part IIA regime, liability for the remediation of contaminated land rests, initially, with those who caused or knowingly permitted the contamination (known as the Class A liability group).
If neither of the above persons can be found, liability passes to the Class B liability group (that is, owners and/or occupiers of the land regardless of whether they were responsible for the contamination or aware of its existence).
