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Environment Bill – roadside litter excluded by DEFRA

On August 28, 2020, in DEFRA, Legislation, by PeterSilverman
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How the “environment” became the “natural environment” to exclude our littered highways from scrutiny by the Office of Environmental Protection

Summary

The Bill establishes the Office of Environmental Protection with the power to investigate complaints that a public authority has failed to comply with environmental law (C 29 (1)).

While the environment we live in includes everything we experience when we step outside – pavements, roads, parks, the countryside, our waterways, beaches, air and climate, this bill excludes our pavements and roads from the remit of the Office of Environmental Protection.

DEFRA have done this so that the OEP will not be able to investigate breaches by local authorities and Highways England of their Environment Protection Act S89 – duty to keep land and highways clear of litter etc.

To do otherwise would expose the long-term failings of the DfT to manage litter on the Highways England network and lead to demands for more funding from local authorities.

DEFRA have achieved this by drafting the bill as one focussed on the “natural” environment included in the definition of which is “land (except buildings and other structures)” (C41 (c)). Highways are “other structures” and will be excluded.

The OEP will therefore be able to investigate whether the local authority is keeping the park on the left ( = land) clear of litter but not the pavement on the right ( = other structures).

Currently it is up to the citizen to take his local authority to court under EPA S91 – Summary proceedings by persons aggrieved by litter if they fail to comply with their EPA S89 duty following which he or she may find themselves several thousand pounds out of pocket.

Contrast this with a complaint about the failure of a duty body to comply with FOI legislation. Anyone can complain to the Information Commissioner without any financial risk. ­­­­­

The Bill should be amended so that the OEP can investigate the failure of public authorities to comply with any duty they may have under EPA S89 to keep highways clear of litter. 

Further information

European Union Withdrawal Act

According to DEFRA’s explanatory notes the Bill fulfils a legal obligation set out in section 16 of the European Union (Withdrawal) Act 2018. This refers only to the “environment” and not to the “natural environment”. The latter is therefore an adjustment made by DEFRA.

What is environmental law?

The Bill establishes the OEP with the power to investigate complaints that a public authority has failed to comply with environmental law (C 29 (1)). But what is environmental law for the purposes of this clause?

“Environmental law” (C43 (1) is legislation concerned with “environmental protection”

This in turn means (C42): (a)  protection of the “natural environment” from the effects of human activity; (b)  protection of people from the effects of human activity on the “natural environment”; (c)  maintenance, restoration or enhancement of the “natural environment”; (d) monitoring, assessing, considering or reporting on anything in paragraphs (a) to (c).

But “natural environment” (C41) means—(a) plants, wild animals and other living organisms, (b) their habitats, (c)  land (except buildings or other structures), air and water, and the natural systems, cycles and processes through which they interact.

So as highways are “other structures” they are not part of the “natural environment”. Which means that legislation protecting them from human activity (e.g. littering) is not part of “Environmental law” for the purposes of C29(1).

Required amendment to the Bill

As a minimum the words “other than highways” should be inserted after “structures” and before “)” in Clause 41 (c)

However to do the job properly all references to the “natural environment” should be replaced by ones to the “environment” so that the built as well as natural environment comes under the aegis of the OEP.

Environment Bill 2019- 2020
Explanatory Notes
Passage through Parliament
Briefing note for MPs and Lords

 

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