Keeping compliant across the UK: Some differences in environmental legislation

In comparison with many other parts of the world, the UK has a commendable record of protecting the environment from damage and for working constructively with engineers and contractors to mitigate the effects of necessary operations, writes Simon Knott (pictured), managing director of environmental consultancy Naturally Compliant.

The relevant legislation is by its nature complex, and busy construction professionals engaged in engineering activities need to be up to speed with what they can and cannot do while remaining compliant with the regulations.

The picture is complicated by the fact that, since devolution of powers to the nations of the UK – a process which has accelerated in recent years – there are significant differences of approach between England and Wales and Scotland.

This article, which is for the purpose of information only and does not constitute legal advice, attempts to illustrate some of the main differences between the countries and to remove potential confusion over definition and context.

In Scotland, working on or near water is covered by the Water Environment (Controlled Activities) (Scotland) Regulations 2011 (as amended) while on the rest of the UK mainland the Environmental Permitting (England and Wales) Regulations 2016 pertain.

In England and Wales, for engineering purposes, works on or near a main river will be completed under an exemption, a standard rule permit or bespoke permit. The Environment Agency has clearly defined what a main river is, through issuing an official map to make the information accessible.

However; any engineering works that has the potential to obstruct flow in an ordinary water course, requires consent from a flood defence consenting authority. An ordinary water course is defined as every river, stream, ditch, drain, sluice, sewer (other than a public sewer) and passage through which water flows and which does not form part of a main river.

In Scotland, work on any surface water on a 1:50,000 scale map requires either registration, a simple licence or a complex licence.

If the water in question, however, is not on a 1:50,000 scale map – for example a small burn which needs to be bridged – contractors do not need to contact the Scottish Environmental Protection Agency (SEPA). But they do still have to follow the General Binding Rules for their activity or they may be deemed non-compliant.

The Scottish system is in some ways preferable, since everyone is working to the same guide-book. In England, contractors have to contact the Environment Agency or the flood defence consenting authority – usually the council – and interpretations of the regulations by individual council officers can vary.

There are differences, too, in the wording of the regulations regarding pollution. Scotland and the Controlled Activities Regulations refers to a pollution control regime where activities are controlled by General Binding Rules, Registrations, Simple Licences and Complex Licences. Importantly, this applies to the whole water environment and unlike some engineering activities, authorisations may be required for discharges to a receiving body not on a 1:50,000 scale map.

In England and Wales the Environmental Permitting Regulations are again relevant however your activity may be authorised by a Regulatory Position Statement, an Exemption, a Standard Rules Permit or a Bespoke Permit. However, the receiving body is defined as surface waters, e.g. rivers, streams, estuaries, lakes, canals, coastal waters, or on to or into the ground.

In regard to protected species, the Wildlife and Countryside Act covers the whole of the UK. However, through various acts, it is implemented differently. One of the major differences is that the Scottish wording of the Act includes often “Recklessly”, for example:

“Subject to the provisions of this Part, if any person intentionally or recklessly

1. kills, injures or takes any wild bird;
2. takes, damages, destroys or otherwise interferes with the nest of any wild bird while that nest is in use or being built”

Meaning that an offence is committed if harm is done – whether or not there was prior intent to harm.

In both cases, the legislation is well-intentioned and should be embraced by responsible professionals in the construction sector for whom best practice should in any case be second nature.

However, a breach of the regulations – even if unintentional – can have ramifications for companies far beyond the penalties imposed by the regulatory agencies. In our environmentally aware and hyper-connected age, reputations built over years can be damaged in a day.

No working contractor can know the ins and outs of all compliance requirements and that is why it is imperative to seek professional advice at the earliest stage in any proposed project, large or small.

For further information visit www.naturallycompliant.com