The Environmental Liability (Scotland) Regulations 2009

Made: 23rd June 2009

Coming into force: 24th June 2009

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 2(2) of, and paragraph 1A of Schedule 2 to, the European Communities Act 1972 and all other powers enabling them to do so.

These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972 and it appears to the Scottish Ministers that it is expedient for the references to the Community instruments referred to in these Regulations to be construed as references to those instruments as amended from time to time.

In accordance with paragraph 2(2) of Schedule 2 to that Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.

Citation, commencement and extent

1

These Regulations—

• (a) may be cited as the Environmental Liability (Scotland) Regulations 2009;

• (b) come into force on the day after the day on which they are made; and

• (c) extend to Scotland only.

Interpretation

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• (1) In these Regulations, except where the context otherwise requires—

• “activity” means any activity carried out in the course of an economic activity, a business or an undertaking, irrespectively of its private or public, profit or non‑profit character;

• ...

• Directive 92/43/EEC” means Council Directive of 21st May 1992 on the conservation of natural habitats and of wild fauna and flora ;

• “Directive 2000/60/EC” means the Directive of the European Parliament and of the Council of 23rd October 2000 establishing a framework for Community action in the field of water policy ;

• “Directive 2001/18/EC” means the Directive of the European Parliament and of the Council of 12th March 2001 on the deliberate release into the environment of genetically modified organisms ;

• “Directive 2008/56/EC” means Directive 2008/56/EC of the European Parliament and of the Council establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive);

• “Directive 2009/147/EC” means Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds,

• “enactment” has the meaning assigned to it in section 126(1) (interpretation) of the Scotland Act 1998 ;

• “environmental damage” means damage falling within regulation 4;

• “genetically modified organisms” has the meaning assigned to it by Directive 2001/18/EC;

• “marine waters” means waters classified as marine waters pursuant to Directive 2008/56/EC;

• “protected species and natural habitats” means—the species mentioned in Article 4(2) of Directive 2009/147/EC or listed in Annex I to that Directive or the species listed in Annexes II and IV to Directive 92/43/EEC; andthe habitats of species mentioned in Article 4(2) of Directive 2009/147/EC or listed in Annex I to that Directive or the habitats of species listed in Annex II to Directive 92/43/EEC or the natural habitats listed in Annex I to Directive 92/43/EEC and the breeding sites or resting places of the species listed in Annex IV to Directive 92/43/EEC;

• “the water environment” has the meaning assigned to it by section 3(2) of the Water Environment and Water Services (Scotland) Act 2003.

• (2) Unless otherwise defined in these Regulations, an expression used in Directive 2004/35/CE of the European Parliament and of the Council of 21st April 2004 on environmental liability with regard to the prevention and remedying of environmental damage has the same meaning in these Regulations as it has in that Directive.

• (3) A reference in these Regulations to anything done in writing or produced in written form includes a reference to an electronic communication (as defined in section 15 of the Electronic Communications Act 2000 ) which has been recorded in written form and is capable of being reproduced in that form.

References to community legislation

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For the purposes of these Regulations, a reference in any EU instrument referred to in these Regulations—

• (a) to the “European Union” or otherwise to the area to which that instrument applies is to be taken to include the United Kingdom,

• (b) to a “Member State” is to be taken to include the United Kingdom.

Application

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• (1) Subject to regulation 5, these Regulations apply in relation to—

• (a) damage to protected species and natural habitats if—

• (i) it has significant adverse effects on reaching or maintaining the favourable conservation status of the protected species or natural habitat; and

• (ii) it is caused by an activity listed in Schedule 1 or by the fault or negligence of an operator whilst carrying on any other activity;

• (b) water damage, caused by an activity listed in Schedule 1, which is—

• (i) any damage that significantly adversely affects any or all of the—

• (aa) ecological status;

• (bb) chemical status;

• (cc) quantitative status;

• (dd) ecological potential,

of the water environment with the exception of adverse effects where regulations 8 or 9 of the Water Environment (River Basin Management Planning: Further Provision) (Scotland) Regulations 2013 applies; or

• (ii) any damage that significantly adversely affects the environmental status of marine waters, in so far as particular aspects of the environmental status of the marine environment are not already addressed through the assimilated law which implemented Directive2000/60/EC;

• (c) land damage, caused by an activity listed in Schedule 1, which is any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction in, on, or under land of substances, preparations, organisms or micro-organisms.

• (2) Paragraphs (3) to (5) apply in relation to assessing whether damage has significant adverse effects for the purposes of paragraph (1)(a)(i).

• (3) The significance of any damage has to be assessed by reference to—

• (a) the conservation status of the protected species or natural habitat at the time of the damage;

• (b) the services provided by the amenities they produce; and

• (c) their capacity for natural regeneration.

• (4) Any damage is significant if it has a proven effect on human health.

• (5) The significance of any effects has to be assessed with reference to the baseline condition with significant adverse changes thereto being determined by means of measurable data such as—

• (a) the number of individuals, their density or the area covered;

• (b) the role of the particular individuals or of the damaged area in relation to the species or to the habitat conservation and the rarity of the species or habitat (assessed at the relevant level whether local, regional , or national or by reference to the natural range of the species);

• (c) the capacity of the species for propagation, its viability or the capacity of the habitat for natural regeneration;

• (d) the capacity of the species or habitat to recover within a short time of the damage being caused to a condition which leads to its state at the time of the damage or better without any intervention other than increased protection measures.

Exemptions

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These Regulations do not apply to—

• (a) in relation to damage to protected species and natural habitats, previously identified adverse effects resulting from an act by an operator which was expressly authorised by the relevant authorities in accordance with provisions implementing Article 6(3) and (4) or Article 16 of Directive 92/43/EEC or Article 9 of Directive 2009/147/EC;

• (b) environmental damage or an imminent threat of such damage caused by—

• (i) an act of armed conflict, hostilities, civil war or insurrection;

• (ii) a natural phenomenon of exceptional, inevitable and irresistible character; or

• (iii) pollution of a diffuse character where it is not possible to establish a causal link between the damage and the activities of individual operators;

• (c) environmental damage or an imminent threat of such damage arising from an incident in respect of which liability or compensation falls within the scope of—

• (i) the International Convention of 27th November 1992 on Civil Liability for Oil Pollution Damage;

• (ii) the International Convention of 27th November 1992 on the Establishment of an International Fund for Compensation for Oil Pollution Damage ; or

• (iii) the International Convention of 23rd March 2001 on Civil Liability for Bunker Oil Pollution Damage ;

• (d) radioactivity from an activity covered by the Treaty establishing the European Atomic Energy Community or caused by an incident or activity in respect of which liability or compensation falls within the scope of the Paris Convention of 29th July 1960 on Third Party Liability in the Field of Nuclear Energy and the Brussels Supplementary Convention of 31st January 1963 ;

• (e) activities—

• (i) the main purpose of which is to serve national defence or international security; or

• (ii) the sole purpose of which is to protect from natural disasters;

• (f) damage caused by an emission, event or incident that took place before the coming into force of these Regulations;

• (fa) environmental damage of the type defined in regulation 4(1)(b)(ii) to marine waters caused by an emission, event or incident that took place before 19th July 2015;

• (g) damage caused by an emission, event or incident that occurs after the coming into force of these Regulations which results from a specific activity that took place and finished before that date;

• (h) damage resulting from the release of genetically modified organisms if more than 75 years have passed since the release; or

• (i) damage not falling within paragraph (h) if more than 30 years have passed since the emission, event or incident occurred which resulted in the damage.

Other legislation

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These Regulations are without prejudice to—

• (a) the right of any responsible operator to limit liability in accordance with the Convention on Limitation of Liability for Maritime Claims 1976 ; and

• (b) any other enactment concerning damage to the environment.

Competent authority

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• (1) For the purposes of these Regulations, the competent authority in relation to instances of environmental damage or an imminent threat of such damage—

• (a) to protected species or natural habitats in the territorial sea or coastal water (within the meaning of section 3(8) of the Water Environment and Water Services (Scotland) Act 2003), is the Scottish Ministers;

• (b) to protected species or natural habitats in any other place, is Scottish Natural Heritage; ...

• (c) to land or, in relation to environmental damage of the type defined in regulation 4(1)(b)(i), to the water environment, is the Scottish Environment Protection Agency; and

• (d) to marine waters, in relation to environmental damage of the type defined in regulation 4(1)(b)(ii), is the Scottish Ministers.

• (2) In relation to environmental damage of the type defined in regulation 4(1)(a), the competent authority shall decide whether or not the damage has occurred or will occur as a result of the fault or negligence of an operator.

• (3) Where—

• (a) more than one instance of environmental damage has occurred; and

• (b) the competent authority is unable to ensure the remedial measures are taken at the same time,

the competent authority shall determine which instance of environmental damage is to be remedied first.

• (4) When determining which incidence of environmental damage is to be remedied first for the purposes of paragraph (3), the competent authority shall have regard to the following matters—

• (a) the nature, extent and gravity of the instances of environmental damage concerned;

• (b) the possibility of natural recovery; and

• (c) any risk to human health.

• (5) Before making a determination under paragraph (3), the competent authority shall, if practicable, consult—

• (a) any interested person (as defined in regulation 14(1)); and

• (b) the owner or occupier of the land upon which, or any part of the water environment or any marine waters in respect of which, remedial measures are to be taken.

• (6) A person consulted under paragraph (5) may make representations to the competent authority within such time limit as specified by the authority to the person and the competent authority shall take into account any representations in making its determination.

• (7) Any decision taken by a competent authority under these Regulations which imposes requirements as to preventive or remedial measures on an operator shall—

• (a) be notified to the relevant operator;

• (b) state the grounds on which it is based; and

• (c) advise the operator of any available appeal and any time limit to which such an appeal is subject.

Assistance by public bodies

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• (1) A competent authority may impose a requirement on a public body to take preventive or remedial measures under these Regulations where it appears to the competent authority that—

• (a) those measures need to be taken as a matter of urgency; and

• (b) the public body is better able than the competent authority to take the measures.

• (2) A public body must comply with a requirement imposed under paragraph (1).

• (3) The costs of a public body in complying with a requirement under paragraph (1) are to be met by the competent authority which imposed the requirement.

• (4) When requested to do so, a public body must provide a competent authority with any advice or information which that body is able to give which would assist the competent authority in carrying out its functions under these Regulations.

• (5) Any decision taken by a competent authority under paragraph (1) shall—

• (a) be notified to the relevant public body; and

• (b) state the grounds on which it is based.

Powers of entry and inspection

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• (1) Any person authorised in writing by a competent authority for the purpose of carrying out its functions under these Regulations may exercise the powers specified in paragraph (2).

• (2) The powers which an authorised person may exercise under paragraph (1) are—

• (a) to enter at any reasonable time (or, in an emergency, at any time and, if need be, by force) any premises which the person has reason to believe it is necessary to enter;

• (b) on entering any premises by virtue of sub‑paragraph (a), to—

• (i) be accompanied by any other person duly authorised by the competent authority and, if the authorised person has reasonable cause to apprehend any serious obstruction in the execution of the duty, a constable; and

• (ii) have any equipment or materials required for any purpose for which the power of entry is being exercised;

• (c) to make such examination and investigation as may in any circumstances be necessary;

• (d) as regards any premises which the person has power to enter, to direct that those premises or any part of them, or anything in them, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under sub‑paragraph (c);

• (e) to take such measurements and photographs and make such recordings as the person considers necessary for the purpose of any examination or investigation under sub‑paragraph (c);

• (f) to take samples, or cause samples to be taken, of any articles or substances found in or on any premises which the person has power to enter, and of the air, water or land in, on, or in the vicinity of, the premises;

• (g) in the case of any article or substance found in or on any premises which the person has power to enter, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it, unless that is necessary);

• (h) in the case of any such article or substance as is mentioned in sub‑paragraph (g), to take possession of it and detain it for so long as is necessary for all or any of the following purposes—

• (i) to examine it, or cause it to be examined, and to do, or cause to be done, to it anything which there is power to do under that sub-paragraph;

• (ii) to ensure that it is not tampered with before examination of it is completed;

• (iii) to ensure that it is available for use as evidence in any proceedings for an offence under these Regulations;