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					Doncaster Property & Professional
Forum Meeting
DLA Piper Safety Health &
Environment Team
Environmental Law Update - Thursday 30 September 2010



                                             DLA Piper UK LLP
                                            30 September 2010
     The Coalition Government - the greenest Government ever?
                          Matthew Shaw
            Overcoming conservation law hurdles to development
                            Penny Simpson
               A guide to the CRC Energy Efficiency Scheme
                               Rachel Scales
       Penalties, more penalties and voluntary agreements - new
           Environment Agency Sanctions from December
                              Anna Naylor




9279959.1                                              30 September 2010   2
The Coalition Government -
the greenest Government
ever?



                   Matthew Shaw, Solicitor
                        DLA Piper UK LLP
                       30 September 2010
Con-Lib Coalition




        "I want to see real action. I want this to be the
                  greenest Government ever"
                David Cameron, 14 May 2010




9279959.1                                        30 September 2010   4
The Coalition Government - the
greenest Government ever?

  Greenhouse gas reduction
       push for EU 30% reduction by 2020
       carbon floor price
       EU ETS fully auctioned
       central Government 10%↓ in 12 months
       CCS investment and emissions performance standard for coal
        fired power stations




9279959.1                                                30 September 2010   5
The Coalition Government - the
greenest Government ever?

  Transport
       establishment of a high speed rail network
       no further runways for Heathrow, Gatwick and Stansted
       tax per flight not per passenger (1 November 2010)
       national recharging network for electric/hybrid vehicle and
        temporary measures to halve company car tax on zero-emissions
        company cars.




9279959.1                                                    30 September 2010   6
The Coalition Government - the
greenest Government ever?

  Renewable energy
       increase renewables target
       development of marine energy in UK to be promoted
       promote huge increase in EFW through an anaerobic digestion
       deliver off shore grid to support wind power  60 million funds.
       encourage community owned renewable energy schemes
       Monday 9 August 2010: Green light for councils to start selling
        renewable electricity
  Green investment bank
  Improve energy efficiency of homes and businesses through
   "Green Deal"


9279959.1                                                     30 September 2010   7
The Coalition Government - the
greenest Government ever?

  Smart grid and smart meters
  Green taxes - CCL and landfill tax
  Company reporting on environmental issues
  Review of the role of OfGEM  Spring 2011
  The Decentralisation and Localisation Bill




9279959.1                                       30 September 2010   8
The Coalition Government - the
greenest Government ever?

  How much is really new?
  What level of detail have we seen?
  When will all this happen?
  Where will the cash come from?




9279959.1                               30 September 2010   9
Overcoming Ecological Hurdles to
Development




                         Penny Simpson, Associate
                                DLA Piper UK LLP
                               30 September 2010
Overview


  Conservation of biodiversity: the international perspective and
   emerging themes
  Recent changes in law and policy: impacts on developers and
   others:
       stricter protected species offences
       stricter approach of Natural England licensing department
       case law: Woolley vs East Cheshire Borough Council
       common problems/solutions
  The future:
       new planning policy
       "Conservation credits" for developers: the way forward?


9279959.1                                                    30 September 2010   11
The international perspective:
emerging themes

  Climate change:
       climate change adaptation: biodiversity / ecosystems = crucial
       need for "Wildlife corridors" to allow species to survive
  "Whole ecosystem" / holistic approach to new legislation:
       Environmental Damage Regulations 2009; The Marine and
       Coastal Access Act 2009
  EU Commission consultation on need for green infrastructure
   and "no net loss" of biodiversity
  Defra: 26 July 2010: “An invitation to shape the Nature of
   England”.
  Natural Environment White Paper due in Spring 2011


9279959.1                                                       30 September 2010   12
Conservation law


  Domestic conservation law - two aspects:
       Site protection legislation eg "European sites", SSSIs, AONBs,
        Local sites
       Species protection legislation eg European Protected Species (eg
        bats, great crested newts), domestically protected species (eg
        water vole)




9279959.1                                                   30 September 2010   13
Species protection law


  Species protection law:
       Creates most common hurdles for developers
       Especially "European Protected Species" under the EU Habitats
        Directive eg great crested newts, bats, otters, dormice
       Long list of criminal offences: eg
             deliberate capture, killing or injury
             deliberate disturbance
             damage / destruction of a breeding site / resting place
       No useful defences
       Licenses from Natural England to allow development which would
        lead to a criminal offence BUT only if 3 strict tests are met
  Ecology of species:
       Leads to constraints on timing of works

9279959.1                                                               30 September 2010   14
European Protected Species:
significant changes

      Stricter regulations for European Protected Species:
           Stricter offences as of Jan 2009
           Statutory guidance is crucial - but not yet published
      Natural England licensing:
           Need licence as well as planning permission
           Developer is now the licence holder - personal liability follows
           Stricter approach to 3 licensing tests (Habitats Directive)
             1. must demonstrate a clear imperative and overriding public interest "need"
             2. must show "no satisfactory alternative" eg somewhere else? delay?
             3. must provide adequate compensatory habitat
           Two "forms" to complete: Method Statement (ecology) and
            Reasoned Statement (the planning/legal tests)
           30 day application turn around; and problems with refusals

9279959.1                                                                 30 September 2010   15
European Protected Species:
relevance to LPAs

  Woolley vs East Cheshire - May 2009
  LPA's duty where planning applications likely to cause criminal
   offence to "European protected species"
  Mr Woolley challenged a planning permission granted for
   demolition and re-development of large house with bats
  Argument:
       LPA had not discharged its legal duty to "have regard to the
        requirements of the Habitats Directive in the exercise of its
        functions"
       LPA should have considered the 3 Habitats Directive licensing
        tests
  He won and planning permission was quashed


9279959.1                                                     30 September 2010   16
Woolley vs East Cheshire - the
judgment

      Judgement:
      Natural England is the EPS licensing authority
      But LPA's duty = engage with Habitats Directive
       requirements
      Is a criminal offence to an EPS likely to arise?
      If so, LPA should grant permission only if 3 tests likely to be
       met:
            1. imperative and overriding public interest need?
            2. satisfactory alternative?
            3. what compensatory habitat is being offered?
      Not sufficient for LPA to impose a condition "you must get a
       licence from Natural England"

9279959.1                                                        30 September 2010   17
Woolley vs East Cheshire -
implications

  Planning officers must highlight this legal duty on LPAs in their
   reports
  LPAs must be seen to apply the 3 tests where offence is likely
   (otherwise risk of judicial review)
  You should look for opportunities for planning conditions or
   obligations to secure "no criminal offence"
  You need to provide detail re how 3 tests are satisfied
  Take advice: developers need careful understanding of
   Habitats Directive case law
  Answers given will set the scene for NE licence application
  Plan for biodiversity impacts early


9279959.1                                              30 September 2010   18
And the future…..Conservation
Credits?

  Conservative Party's 2010 election manifesto: commitment to
   a system of "conservation credits";
  Coalition Government: "We will introduce measures to protect
   wildlife and promote green spaces and wildlife corridors in
   order to halt the loss of habitats and restore biodiversity"
  An invitation to shape the Nature of England:
       "We need to make sure that we have a framework which allows
        innovation, led by communities, to happen. In particular we want to
        look at the scope for actions to offset the impact of development
        on biodiversity"




9279959.1                                                    30 September 2010   19
And the future …..


  New requirement on land-based developments to secure "no
   net loss" in biodiversity
       avoid / mitigate against negative impacts of developments;
       if not, buy "credits" from a "bank" equal to the biodiversity lost
       the "bank" to work with partners to deliver centralised conservation
        projects around the country.
  Landowners with spare land?- register that land with a "bank",
   thereby generating credits
  How does it fit with existing strict legal conservation regimes?
       "No weakening of existing protection"
  Further development tax?
  Good for biodiversity or a licence to trash?

9279959.1                                                        30 September 2010   20
Conclusions


  Biodiversity emerging as a key theme in the sustainability
   agenda
  Regulation for biodiversity only likely to increase
  Plan, consider and integrate these issues early
  Take advice where European Protected Species involved:
       to avoid criminal offences being triggered or to satisfy LPA that 3
        Habitats Directive tests are met
       for Natural England licence applications / challenge of licence
        refusals




9279959.1                                                      30 September 2010   21
Contact details




                  PENNY SIMPSON
                  Associate
                  T 0114 283 3353
                  F 0114 276 6720
                  M 07968 559059
                  penny.simpson@dlapiper.com




9279959.1                                 30 September 2010   22
A GUIDE TO THE CRC ENERGY
EFFICIENCY SCHEME




                   Rachel Scales, Solicitor
                        DLA Piper UK LLP
                      30 September 2010
CRC overview


  Government drive to decrease carbon and increase energy
   efficiency

  1 April 2010

  Cap and trade scheme with a difference

  Introductory phase followed by auction phase

  Surrender allowances

  "Revenue neutral"




9279959.1                                         30 September 2010   24
Qualification criteria


  Supplied with electricity by at least one Settled Half Hourly
   Meter (HHM)

  Supplied with over 6,000 MWh of half hourly electricity through
   all of its HHMs

       Electricity bills of approximately £500,000 per year




9279959.1                                                      30 September 2010   25
Which organisations are affected


  Companies/groups

  Government departments

  Franchisors/franchisees

  Schools and local authorities

  Universities

  JVs, PFIs, PPPs




9279959.1                          30 September 2010   26
  What are CRC emissions

                                                                         Must: Remove all energy use from
                                          Total                          excluded sources (transport, domestic
                                        energy use
                                        emissions                        accommodation, for use outside the UK,
                                                                         unconsumed supply)



                    Total energy use
                                                        Relevant
                       emissions
                                                       emissions


                                                                                   Must: Remove all of emissions from
                   Relevant emissions                                              CCA exempt members


                     Total footprint                           Total
                      emissions                              footprint
                                                            emissions


                       Regulated
                       emissions                                                      Can: Remove up to 10% of your total
                                                                                      footprint emissions, but not where
                                                                                      these are from core supplies or
                                                        Regulated                     covered by EU ETS or a CCA. At least
                                                        emissions
                                                                                      90% of your total footprint must be
                    CRC emissions
                                                                                      regulated by CRC, EU ETS or CCAs



                                             CRC
                                           emissions
                                                                    Must: Remove all emissions covered by
                                                                    EU ETS and CCAs

Step-by-step method for determining your CRC emissions                                  Reproduced from the diagram in Chapter 3 of the DECC CRC
                                                                                        Efficiency Scheme User Guide. Subject to Crown copyright

   9279959.1                                                                                            30 September 2010       27
Buying allowances


  Buy in April for following year
  Starts April 2011
  Fixed price
       £12/tonne
       unlimited

  Auction - starts in April 2013
       capped total which will decrease over time
       price depends on auction

  Secondary market
  Safety valve: price greater of EU ETS or £14
9279959.1                                            30 September 2010   28
Surrendering allowances


  End of July after compliance year

  Surrender allowances equivalent to CO2 tonnes emitted

  Carry forward but not from introductory phase  capped
   phases




9279959.1                                          30 September 2010   29
League tables


  Ranks all participants

  Recycling payment based on three metrics

       early action metric

       absolute metric (change)

       growth metric (intensity change)

  Ranking determines bonus/penalty

  Bonus/penalty increase over time from 10% to 50%



9279959.1                                         30 September 2010   30
Weighting of the league table metrics



                                15%                20%              25%



                                45%

             100%                                  60%

                                                                    75%


                                40%
                                                   20%

            CY 2010/11         CY 2011/12        CY 2012/13        CY 2013/14


                         EAM   Absolute Metric     Growth Metric


9279959.1                                                                 30 September 2010   31
Penalties, More Penalties and
Voluntary Agreements - New EA
Sanctions From December




                         Anna Naylor, Associate
                             DLA Piper UK LLP
                            30 September 2010
EA Civil Sanctions


  Toolbox of powers
  Sanctions for the "middle class"
  Which laws are in and which are out
  EA timeline - now questionable
                                                   Guidance?
            Legislation in                         (21 June)      Use of civil
            force                                                 sanctions starts?



2010        APRIL     MAY      JUNE   JULY   AUG    SEP    OCT   NOV     DEC         2011




                                                                              Environmental
                    Consultation                                                permitting
                    closed 7 May                                                 added?



9279959.1                                                              30 September 2010   33
EA Civil Sanctions


  Fixed monetary penalties
       £300/£100
       minor non compliance
       little or no environmental harm
       example - paperwork
       no criminal record
  Variable monetary penalty - most worrying bit
       up to £250,000 and set by EA
       more significant damage to environment but reason not to
        prosecute
       eliminate financial gain
       examples eg packaging waste offences; water pollution offences

9279959.1                                                  30 September 2010   34
How to work out a VMP


(FINANCIAL BENEFIT + DETERRENT) - DEDUCTIONS = VMP


  •   Permit fees                   Highest of:                   •   Regulator's cost recovery
  •   Operational savings           • Financial benefit               notice
                                    • Statutory maximum           •   Compliance notice costs
                                    • Restoration costs           •   Restoration notice costs
                                                                  •   Discretionary deduction for
                                                                      voluntary restoration



                             Then aggravating / mitigation
                             factors

                •   History                       •   Prevention measures
                •   Blameworthiness               •   Co-operation
                •   Foreseeablity of harm         •   Self reporting
                •   Ignoring advice               •   Immediate/voluntary restoration
                •   Attitude                      •   Attitude
                                                  •   Case specific matters
9279959.1                                                                      30 September 2010   35
Civil sanctions


  Compliance Notice - to prevent occurrence/re-occurrence
  Restoration Notice - to restore the position to before the
   occurrence
  Stop notices
       only if serious harm to human health or the environment eg some
        waste offences; oil storage offences
       compensation if EA get it wrong
       the only civil sanction which can be used with prosecution
  Enforcement undertakings - voluntary agreements
       promise that offender will take certain actions
       stop non-compliance, restore position, compensation


9279959.1                                                     30 September 2010   36
Civil sanctions - the commercial
issues

  Unwieldy appeal mechanism
  Complex VMP system
  Public perception
  More enforcement, greater penalties?
  Higher insurance premiums
  Inconsistency of approach?




9279959.1                                 30 September 2010   37
Contact details




                  ANNA NAYLOR
                  Associate
                  T 0114 283 3382
                  F 0114 276 6720
                  M 07738295416
                  anna.naylor@dlapiper.com




9279959.1                                    30 September 2010   38
Questions and Answers




9279959.1               30 September 2010   39
Doncaster Property & Professional
Forum Meeting
DLA Piper Safety Health &
Environment Team
Environmental Law Update - Thursday 30 September 2010



                                             DLA Piper UK LLP
                                            30 September 2010

				
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