IES Forum Legal Environmental Challenges Shoosmiths LLP

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. 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. 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. 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. 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. HOW HAS THE PLANNING SYSTEM ADAPTED?
• Issues:
• Applications
• Committees
• Appeals
• Legal proceedings

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. 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. 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. 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. 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?