The Environmental Liability (Scotland) Regulations 2009
| Year | 2009 |
2009 No. 266
Environmental Protection
The Environmental Liability (Scotland) Regulations 2009
Made 23th 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 19721and 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
2.—(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 79/409/EEC” means Council Directive of 2nd April 1979 on the conservation of wild birds2;
“Directive 92/43/EEC” means Council Directive of 21st May 1992 on the conservation of natural habitats and of wild fauna and flora3;
“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 policy4;
“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 organisms5;
“enactment” has the meaning assigned to it in section 126(1) (interpretation) of the Scotland Act 19986;
“environmental damage” means damage falling within regulation 4;
“genetically modified organisms” has the meaning assigned to it by Directive 2001/18/EC;
“protected species and natural habitats” means—
(a) the species mentioned in Article 4(2) of Directive 79/409/EECor listed in Annex I to that Directive or the species listed in Annexes II and IV to Directive 92/43/EEC; and
(b) the habitats of species mentioned in Article 4(2) of Directive 79/409/EECor listed in Annex I to that Directive or the habitats of species listed in Annex II to Directive 92/43/EECor the natural habitats listed in Annex I to Directive 92/43/EECand the breeding sites or resting places of the species listed in Annex IV to Directive 92/43/EEC;
“waters” means all waters which comprise “the water environment” within the meaning of section 3(2) of the Water Environment and Water Services (Scotland) Act 20037.
(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 damage8has 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 20009) which has been recorded in written form and is capable of being reproduced in that form.
References to community legislation
3. References in these Regulations to Community instruments are references to those instruments as amended from time to time.
Application
4.—(1) Subject to regulation 5, these Regulations apply in relation to—
(a)
(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)
(b) water damage, caused by an activity listed in Schedule 1, which is any damage that significantly adversely affects any or all of the—
(i) ecological status;
(ii) chemical status;
(iii) quantitative status;
(iv) ecological potential,
of the waters concerned with the exception of adverse effects where Article 4(7) of Directive 2000/60/ECapplies;
(c)
(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)
(a) the conservation status of the protected species or natural habitat at the time of the damage;
(b)
(b) the services provided by the amenities they produce; and
(c)
(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)
(a) the number of individuals, their density or the area covered;
(b)
(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 higher, including the European Community);
(c)
(c) the capacity of the species for propagation, its viability or the capacity of the habitat for natural regeneration;
(d)
(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
5. 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/EECor Article 9 of Directive 79/409/EEC;
(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 Damage10; or
(iii) the International Convention of 23rd March 2001 on Civil Liability for Bunker Oil Pollution Damage11;
(d) radioactivity from an activity covered by the Treaty establishing the European Atomic Energy Community12or 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 196313;
(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;
(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
6. 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 197614; and
(b) any other enactment concerning damage to the environment.
Competent authority
7.—(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)
(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)
(b) to protected species or natural habitats in any other place, is Scottish Natural Heritage; and
(c)
(c) to waters or land, is the Scottish Environment Protection Agency.
(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)...
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