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Angus Evers - COVID-19: How has environmental and planning regulation adapted?

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IES Forum Legal Environmental Challenges
Shoosmiths LLP

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Angus Evers - COVID-19: How has environmental and planning regulation adapted?

  1. 1. COVID-19: HOW HAS ENVIRONMENTAL AND PLANNING REGULATION ADAPTED? Angus Evers Partner, Head of Environment, Shoosmiths LLP IES Forum, 2 June 2020 www.shoosmiths.co.uk
  2. 2. AGENDA • What aspects of environmental regulation have been relaxed? • How has the planning system adapted? • How has the legal system adapted? • Civil courts • Criminal courts • What’s happening with the Environment Bill?
  3. 3. RELAXATIONS OF ENVIRONMENTAL LEGISLATION • Temporary suspension of single use carrier bag charges for online grocery home delivery services: • Single Use Carrier Bags Charges (England) (Amendment) Order 2020/324 • Single Use Carrier Bags Charge (Wales) (Amendment) Regulations 2020/414 • Single Use Carrier Bags Charge (Scotland) Amendment Regulations 2020/118 • Single Use Carrier Bags Charge (Coronavirus Amendment) Regulations (Northern Ireland) 2020/56 • Aim of regulations is to incentivise use of SUCBs instead of re-useable crates
  4. 4. RELAXATIONS OF ENVIRONMENTAL REGULATION (ENGLAND) • Use of Regulatory Position Statements by Environment Agency: https://www.gov.uk/government/collections/covid-19-regulatory-position-statements • 18 RPSs covering: • Agriculture (1) • Monitoring and reporting (2) • Radioactive substances regulation (2) • Regulated industry installations (non-waste) (2) • Waste management (excluding radioactive waste) (9) • Water industry (2) • Check conditions carefully, e.g. expiry dates, need to obtain EA agreement to use • Legal status: • Not a permit variation • Don’t amend legislation • EA “will not normally take enforcement action” if conditions complied with, no pollution / harm to human health and operator takes “all reasonable steps” to comply with permit • Natural England: https://naturalengland.blog.gov.uk/2020/04/22/coronavirus-guidance-on-implications-for- natural-englands-development-management-advice-and-wildlife-licensing/ • No removal of licence requirements, only postponement
  5. 5. RELAXATIONS OF ENVIRONMENTAL REGULATION (WALES, SCOTLAND, NI) • Natural Resources Wales: “proportionate and reasonable approach” - https://naturalresources.wales/about- us/news-and-events/statements/our-response-to-the- coronavirus-pandemic/?lang=en • SEPA: mix of guidance and temporary regulatory positions; “proportionate and reasonable approach” - https://coronavirus.sepa.org.uk/regulatory-position/ • DAERANI/NIEA: 11 Regulatory Position Statements - https://www.daera-ni.gov.uk/landing-pages/daeras-and- nieas-regulatory-response-covid-19 • “will not take regulatory and/or enforcement action” if RPS adhered to • Temporary variation of permit conditions for authorised waste facilities
  6. 6. HOW HAS THE PLANNING SYSTEM ADAPTED? • Issues: • Applications • Committees • Appeals • Legal proceedings
  7. 7. HOW THE PLANNING SYSTEM HAS ADAPTED - APPLICATIONS • Pre-application stage: • Face to face meetings? • Site visits – are they lawful? Reg 6(f) Health Protection (Coronavirus, Restrictions) (England) Regulations 2020: allowed to leave home “to travel for the purposes of work […] where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living” • In reality depends on local planning authority/individual • Increased reliance on Google Maps and pictures included with applications • Making an application: • Most procedures unaffected by lockdown (eg. online submission, storage of and access to documents, notification/consultation by email/post) • Site notices: • Not always required – eg. if no EIA, application accords with development plan and no PROW affected • LPA officers can also post site notices: Reg 6 Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 • In reality – many LPAs are currently asking applicants to post them, and to provide evidence that they’ve been posted
  8. 8. HOW THE PLANNING SYSTEM HAS ADAPTED - COMMITTEES • Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020/392: • In force from 4 April 2020 and apply to meetings held before 7 May 2021 • Not compulsory – local planning authorities can choose to use them, but don’t have to use them • Committee members can attend meetings remotely • Public/press can attend meetings remotely • Meetings are “open to the public” if held virtually • Documents are “available for inspection” if published on the authority’s website • Regulations override “any prohibition or other restriction contained in the standing orders or any other rules of the authority”
  9. 9. HOW THE PLANNING SYSTEM HAS ADAPTED - APPEALS • PINS not holding any physical inquiries or hearings, but “seeking to run inquiries and hearings in a virtual manner where possible” • First virtual hearing held on 11 May 2020, with “at least 10 hearings” to be held virtually in June • All appeals must be submitted online • Site visits “where it is safe to do so” • Check PINS guidance regularly: https://www.gov.uk/guidance/coronavirus-covid-19-planning- inspectorate-guidance
  10. 10. HOW THE LEGAL SYSTEM HAS ADAPTED • Check HMCTS guidance: https://www.gov.uk/guidance/coronavirus-covid-19-courts-and- tribunals-planning-and-preparation • Focus on essential cases only, increased use of telephone / videocon hearings • Judgments from pre-lockdown hearings are still being issued, eg: • Pigot v Environment Agency [2020] EWHC 930 (Ch) • Mustafa v Environment Agency [2020] EWCA Crim 597 • Issues for Planning Court challenges: • Proceedings must be physically issued in Court (this includes by post, so long as papers arrive in time) and served • Some proceedings must be served before issue (eg. s.289 Town and Country Planning Act 1990) • May issue in London, Birmingham, Cardiff, Leeds, or Manchester • Issues for criminal cases (and enforcement generally): • No jury trials • No interviews under caution in environmental and planning enforcement cases
  11. 11. WHAT’S HAPPENING WITH THE ENVIRONMENT BILL? • Second reading in House of Commons on 26 February 2020 • 7 Public Bill Committee sessions from 10-19 March 2020; Committee then adjourned • Committee scheduled to report by 25 June 2020 • Bill then has third reading in House of Commons before moving to House of Lords • Royal Assent in autumn 2020?

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