Page 38 - Lawtext Environmental Law & Management Journal Sample

149
149
STRATEGIC ISSUES – SCOTLAND – HENDRY : (2008) 20 ELM 149
149
149
to moderate, or moderate to poor; this will by implication The draft regulations create civil liability based on the
only affect ‘bodies of water’ which have their status precautionary and preventive principles and that of
assessed under the WFD, and not diffuse groundwater, or ‘polluter pays’, with criminal offences for non-compliance.
wetlands, unless the harm then impacts on a body of water. They could be seen as representing a real shift towards a
For land damage, where there was some uncertainty in notion of ‘the environment’ as a legal concept meriting
the first consultation, the Defra approach has been protection outwith either a licensing regime for polluting
adopted; the test will be ‘significant risk’ of ‘adverse effect’ activities or the protection of private property.
on human health. This parallels the approach of the
contaminated land regime, but not for ecological harm Scottish Government 2008 Environmental Liability Directive:
which will be covered by the biodiversity provisions. The 2nd Consultation available at http://www.scotland.gov.uk/
ELD and the draft regulations go beyond the contaminated Publications/2008/05/14161737/0
land regime (Environmental Protection Act 1990 Part IIA)
in including organisms and micro-organisms, and more
generally by requiring operators to be proactive – to take Scotland’s Environmental and Rural Services
precautionary measures, and notify the authorities if there (SEARS) – a new approach?
is any damage or risk of damage.
There will be three competent authorities: SEPA for Some readers may be aware of a new initiative, formally
land and the water environment, SNH for biodiversity launched at the Highland Show in June, which will see
other than in the marine environment, and the Scottish greater coordination and integration between nine
ministers for biodiversity in the marine environment, agencies all involved with regulating, inspecting or advising
including both coastal waters and the territorial sea. Scotland’s rural land managers. The agencies include the
There will be a duty on operators to notify the Scottish Environment Protection Agency (SEPA) and
competent authority of any actual or potential damage Scottish Natural Heritage (SNH) (but not for all of their
and liability amongst operators will be allocated in one of functions), the Forestry Commission Scotland, the Deer
three ways at the discretion of the competent authority: Commission, Animal Health, the national parks authorities,
‘percentage liability’, joint and several liability, and shares the Crofters Commission and the Scottish Government
allocated by time or land area; presumably the third is a Rural Payments and Inspections Directorate (RPID).
way of allocating the first two. Authorities will be able to The intention is to provide a one-stop shop for land
do work and recover costs and those liable will be able to managers. In future, anyone contacting any of these
recover inter se. agencies will either have his or her queries dealt with by
Appeals will be made to the sheriff, and notices will the person to whom he or she speaks, or be handed on to
be suspended during the appeal unless there is imminent the more appropriate body or individual in the local SEARS
risk to human health or imminent risk of environmental teams. In addition, some inspections will be able to be
damage. Appeals must be brought within 21 days and carried out by personnel from different agencies, allowing
there is no further right of appeal. Appeals may be made better coordination and fewer visits overall. This will include
against requests for information and notification of either RPID staff carrying out groundwater inspections instead
preventive or remedial measures, which will allow operators of SEPA.
to challenge the determination of damage and presumably, A major piece of research amongst user groups
within that, any allocation of costs. indicated that in fact levels of satisfaction with existing
Third parties, including recognised environmental services are high, with 89 per cent having no difficulty
pressure groups, must have a right of representation under identifying the appropriate agency. Nonetheless there was
the ELD. After some uncertainty last year, authorities will general agreement with the principle of greater
be required to consider whether there is a ‘plausible’ coordination and integration, with support for rural offices
problem that they should investigate, and must, after staffed by all agencies – but it is not clear that this will
investigation, give reasons for their decision. In the actually materialise at least in the short term. The greatest
consultation document, the government says that disputes support for integrated visits and assessments came from
over this will be resolved by the courts ‘in the usual way’, dairy farmers and the least from those managing forestry
yet in the draft regulations only the key regulatory aspects and conservation sites. There was some concern about
of the regime are subject to appeal. Presumably then the data sharing between the agencies, which will be a
pressure groups (or other interested parties) will have to necessary part of the new set-up, but concerns here are
raise a judicial review, if the authority decides their only to be expected in the current climate.
argument is not ‘plausible’, or refuses to recognise their The quantitative study also indicated that some 1.8
interest in the first place. This must be a matter of concern. hours per week are spent on regulatory activity by land
The full guidance and quick guide are useful, although managers, which is less than for businesses in many other
no substitute for the regulations. The headline figures in sectors. It may well be that whilst it is something to
the RIA are unchanged from last year, with a suggested complain about, the role of government agencies in the
£2.8m cost, and £3m benefit in the first year, with the lives of our land managers is less burdensome than is
largest liability falling on farmers. Over 10 years, the sometimes suggested, which can only be a positive, if
estimate is £16.4m cost and £22m benefit, with the incidental, finding of this research. However the qualitative
average cost of a remediation action some £100,000. study still raised the regulatory burden as a major problem

ENVIRONMENTAL LAW & MANAGEMENT PUBLISHED BY LAWTEXT PUBLISHING LIMITED
www.lawtext.com