Environmental Permitting and Flood Risk Activity
8 December 2020
Recent work undertaken to a stretch of the River Lugg in Herefordshire, a Site of Special Scientific Interest (SSSI) and a Special Area of Conservation, has been widely publicised. The Herefordshire Wildlife Trust reported that it had been “bulldozed, straightened and reprofiled into a sterile canal” damaging riverside habitats.
This news serves as a reminder that whilst it is possible to undertake works to rivers, waterways, banks sides and so on that might constitute flood risk activity, this must be done with the correct exemptions, permits and/or consents. Furthermore that any consents should be formalised and records kept of informal meetings and discussions with the relevant and various agencies.
The Environmental Permitting regime is designed so that those who require work to be undertaken can liaise with the Environment Agency to carry out works with minimal disruption to local wildlife and habitats.
Works undertaken such as these, where the correct authorisations are not in place, may be unlawful. Not only would they potentially breach the Environmental Permitting Regulations 2016 (EPR) but the perpetrator may well have fallen foul of other legislation such as the Salmon and Freshwater Fisheries Act, the Water Resources Act and the Wildlife and Countryside Act. Depending on the extent and purpose of the work planned or undertaken, it may be that planning permission would also have been required.
Regulation 38 of the EPR makes it an offence for anyone to knowingly operate a regulated facility which includes flood risk activity or to knowingly permit that activity unless authorised by a permit. This means that even those who did not physically undertake the works, but permitted or instructed it to be undertaken, would be guilty of an offence as much as, if not more than, those who drove the bulldozer.
The penalties for offences contrary to the EPR range widely depending on various factors. However, under the sentencing guidelines, culpability and harm will be indicating factors of where a starting point should be for an offender. In a case such as this on the River Lugg, there is potential for there to be a high level of harm and a high level of culpability to match. Fines would be high and individual offenders could be at risk of custodial sentences.
In general terms, some minor works or works to minor water courses may be covered by an exemption; however, more significant works will require a permit. If you need any advice in relation to permitting or planning permission do not hesitate to contact Birketts’ Planning and Environmental Team.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at December 2020.