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Introduction to statutory interpretation The aim of statutory interpretation is to determine the legal meaning of a statute, that is, the sense that expresses the legislator’s intention. The clearest guide to that intention is the statutory wording itself, read in its context and with its overall purpose in mind, and its broader legislative setting. Courts should seek to fulfil the purpose of legislation by construing its language, so far as they can, in the manner that most effectively serves that purpose. Put differently, the courts’ default method is purposive, and every enactment is to be construed with that end in view. There is a starting presumption that the grammatical and ordinary sense of an enactment reflects the meaning intended by the legislator. Where an enactment reasonably bears only a single meaning, and no other interpretative tools or
This Practice Note addresses identifying a fiduciary, fiduciary duties and obligations, the no conflict rule, the no profit rule, a fiduciary's duty of confidence, and the remedies available for breach of fiduciary duty. Who is a fiduciary? There is no definitive catalogue of relationships that give rise to fiduciary obligations at common law in every situation universally. Certain relationships are inherently fiduciary, eg trustee and beneficiary, solicitor and client, principal and agent, business partner and co-partners, together with mortgagor and mortgagee. The obligations of some fiduciaries have been set out in statute; for instance, trustees owe a statutory duty of skill and care under section 1 of the Trustee Act 2000 (TrA 2000), and directors' relationships with their companies are addressed in the Companies Act 2006 too. For guidance on directors' fiduciary duties, see Practice Note: of directors for further detailed
Definition of ADR Alternative dispute resolution (ADR) is defined in the CPR Glossary as a collective label for methods of settling disputes other than through the usual trial process. Some courts adopt the term ‘negotiated dispute resolution’ (NDR) to describe resolution by alternative means; for ease, this Practice Note uses ADR. For guidance on how ADR is addressed in the various court guides, see Practice Note: ADR and NDR in the court guides. In essence, ADR is a means of resolving a dispute outside the court system. It typically involves a neutral third party who either helps the parties reach a negotiated outcome, or issues a determination of the dispute that is legally binding. A binding result can follow where the agreement to refer the dispute to ADR so provides. There are multiple forms of ADR processes. For an outline of the different types and their
In brief The British constitution is uncodified, meaning it does not spring from a single constitutional document or code. It draws on a wide range of written and unwritten sources. Alongside the principal written sources of law in England and Wales—legislation (which has also introduced international and human rights principles into our constitution) and the common law—the constitution also rests on two further unwritten bases within this system: the prerogative, and non-legal constitutional conventions. In addition, on one view the basic or prevailing principle of our constitution, Parliamentary sovereignty, is ultimately grounded in political fact rather than in law. Legislation Legislation is the foremost source of constitutional law. Acts of Parliament may set out detailed constitutional rules, or even pass authority to create them to ministers or to others. Under the doctrine of Parliamentary sovereignty, legislation is traditionally regarded as taking precedence over any other form or kind of
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This Practice Note sets out how building energy performance is controlled via Energy Performance Certificates ( EPCs), the circumstances in which EPCs are required, and the obligations under the principal EPC legislation—the Energy Performance of Buildings ( England and Wales) Regulations 2012, SI 2012/3118 ( EPC Regs 2012), and the Building Regulations 2010, SI 2010/2214 ( Building Regs 2010)—which give effect to the recast Energy Performance of Buildings Directive 2010/31/ EU (recast EPBD directive). It forms part of a suite of notes on EPCs and the minimum energy efficiency requirements ( MEES). What is an Energy Performance Certificate ( EPC)? Buildings account for nearly 40% of the UK's energy use and carbon output, so knowing how to curb and manage that consumption is vital for meeting carbon reduction goals and cutting a building's operating costs. EPCs are designed to drive better energy...
UK energy projects commonly follow three principal procurement routes: engineering, procurement and construction ( EPC) contract procurement split EPC contract procurement multi-party contract procurement This Practice Note summarises each route and explores selected advantages, disadvantages and practical points to bear in mind. It is intended as a straightforward guide; seek professional legal advice before deciding on a procurement pathway for your specific scheme. EPC contract procurement The EPC route is the predominant procurement model for UK energy, as well as other large-scale, complex infrastructure developments. Under an EPC arrangement, a single contractor undertakes end-to-end delivery of the project, including design, engineering, procurement of materials, construction, and the testing of mechanical elements. For additional guidance on EPC arrangements, refer to the following Practice Notes: Introduction to EPC contracts; EPC contracts—handover, testing and commissioning; and EPC contracts—limits of liability. The diagram below depicts the core contractual structure for a project procured via the EPC...
Practice Note This Practice Note outlines the ban on unlicensed or damaging depositing, treating or discarding of waste under section 33 of the Environmental Protection Act 1990 ( EPA 1990) for England and Wales alone. For guidance on how the offence operates in Scotland, refer to Practice Notes: Key environmental offences in Scotland, Scottish Environment Protection Agency—powers to investigate environmental crimes, and Sentencing environmental offences in Scotland. EPA 1990, s 33 is among the most frequently prosecuted environmental crimes, spanning incidents from minor fly-tipping to extensive waste disposal undertaken without a permit. It creates strict liability for the ‘deposit’ of controlled waste, yet demands knowledge where a person is ‘knowingly causing or knowingly permitting’ the deposit of controlled waste. The Environmental Permitting ( England and Wales) Regulations 2016 ( EPR 2016), SI 2016/1154 likewise create offences for operating without an...
Reviewing technical reports If a buyer has secured a technical environmental report during due diligence (or the seller has placed one in the data room), it must be analysed and converted into clear, practical guidance for the client on potential liabilities, along with proposals to mitigate the risks. Key matters for lawyers to assess include: whether the report presents clear evidence of environment health and safety ( EHS) non-compliance, capex needs, or possible liabilities; whether an independent environmental consultant should be engaged to review and challenge the report’s conclusions; whether a conference call or meeting between the two environmental consultants (with clients and lawyers) would help resolve areas of concern; whether further investigations or enquiries are necessary and, if so, the associated timing and cost implications; which options are most practical to address the...
In the due diligence phase At this stage, the buyer’s solicitors and other advisers are able to scrutinise the target’s legal, technical and financial performance. The purpose of environmental due diligence is to: evaluate the risk of taking on contaminated land liabilities connected to properties or former properties identify any material non-compliance with environment, health and safety ( EHS) law, environmental permits, or capital expenditure duties that the buyer could become accountable for determine what protections are needed to reduce these risks as much as possible through further......
ARCHIVED: This Practice Note has been archived and is not maintained. This tracker tool outlines and condenses significant recent and forthcoming legislation and consultations in England and Wales connected to environmental taxes, reliefs and incentives. HM Treasury describes an environmental tax as one that satisfies these three principles: the tax is clearly tied to the government’s environmental aims the main purpose of the tax is to drive environmentally beneficial behaviour change, and the tax is designed with environmental goals in mind—for instance, the more polluting the conduct, the higher the charge imposed The environmental taxes currently in force in England and Wales include: landfill tax: a levy due on waste disposed of at authorised landfill facilities and on certain specified landfill activities climate change levy ( CCL): a compulsory charge on UK business energy consumption, applied at the point of supply, termed...
Context An environmental impact assessment ( EIA) evaluates the potentially significant environmental consequences of a scheme. Certain categories of development require an EIA before planning permission can be issued. Through this process, the public and the local planning authority ( LPA) can understand the importance of predicted impacts and how they might be reduced prior to any decision. See Practice Note: Environmental impact assessments—key points. The outcomes are captured in an environmental statement ( ES). Producing an ES helps developers integrate environmental considerations at the project design stage. Carrying out a thorough and comprehensive EIA may enhance the likelihood of obtaining planning permission... Legislation and guidance EIA for town and country planning matters is governed by: the Town and Country Planning ( Environmental Impact Assessment) Regulations 2017 ( English EIA Regulations), SI 2017/571 in England, and the Town and Country Planning (...
Environmental issues to consider Because environmental liability concerns can slow or derail transactions, the parties should decide at the heads of terms stage whether any environmental points ought to be raised, including: Will the seller supply any environmental reports? Does the buyer need to arrange site investigations? Has the seller shared asbestos documents, for example a recent survey, an updated register and an asbestos management plan? Is there a requirement to transfer or obtain environmental permits? What is the agreed stance on contaminated land liabilities—if the property is sold ‘with information’, will the buyer assume responsibility only under the contaminated land regime, or for all liabilities and losses under environmental law? Is environmental insurance required? For a general overview of environmental issues in property transactions, see Practice Notes and Checklist: Environmental issues in property transactions—acting for a buyer Environmental issues in property...
What is environmental risk assessment? Environmental risk assessment ( ERA) is applied to many environmental concerns, including contaminated land, flood risks, asbestos, radon and subsidence. The specific study undertaken is selected once the hazard has been recognised and the assessment's aims and objectives are set. The scope and detail of an ERA differ according to the various environmental factors considered. Nonetheless, every assessment adheres to a core approach for quantifying risk. Calculation of risk Defra guidance on environmental risk assessment and management defines risk as the potential consequence(s) of a hazard together with the likelihood/probability of those outcomes......
Originally prepared in partnership with Freya Foster of Henderson Chambers Background The Environment Act 2021 ( EA 2021) obtained Royal Assent in November 2021 (see the Practice Note: Environment Act 2021—snapshot). It was brought forward to meet, in particular, section 16 of the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), which required, among other matters, legislation to create an independent body delivering post- Brexit oversight, compliance, and enforcement of environmental law (see the Practice Note: Environment Act 2021—developments [ Archived] for a summary of EA 2021’s legislative history). The Office for Environmental Protection EA 2021, s 22 established the Office for Environmental Protection ( OEP), tasked with scrutinising, advising on, and enforcing environmental law as it applies to organisations and individuals exercising public law functions, e.g. central departments, ministers, regulators, and local authorities. Its remit also extends to certain private entities, such as water...
What is Energy from Waste ( Ef W)? Energy from waste ( Ef W) turns waste materials into a usable form of energy from a sustainable energy source. Outputs can include electricity, heat, gas and transport fuels (e.g. diesel). A variety of approaches are used, with incineration being the most familiar. Using waste as a fuel can deliver notable environmental gains: it offers a safe, cost‑effective route for disposing of waste and can help reduce carbon dioxide emissions. For further details on Ef W, see Practice Notes: Biomass and waste to energy projects—overview, Waste to energy—technologies, Regulation of energy from waste and Energy from waste—consents. What is environmental permitting? The Environmental Permitting ( England and Wales) Regulations 2016, SI 2016/1154, as amended, ( EPR Regs 2016) require operators to obtain permits for certain facilities and to register others as exempt. They...
Introduction Environmental permitting is among the principal environmental regulatory frameworks in the UK. Its purpose is to oversee and limit pollution and emissions into the environment arising from industrial and other operations across the UK. It forms a central strand of UK business regulation, created to manage and oversee activities that could pollute the environment or pose risks to human health. Permits place a suite of conditions on the design and build, running and, in due course, closure of a regulated installation, as well as stipulating how regulated activities are undertaken. The main regulators are the Environment Agency ( EA) in England, Natural Resources Body for Wales ( NRW), the Scottish Environment Protection Agency ( SEPA) and the Northern Ireland Environment Agency ( NIEA). Local authorities likewise regulate the less polluting processes and sites. The lead government...
History of environmental permitting From 6 April 2008, these regulatory frameworks have been absorbed into the current environmental permitting system: the Integrated Pollution Prevention and Control Directive 2008/1/ EC and the Industrial Emissions Directive 2010/75/ EC waste management licensing the Mining Waste Directive 2006/21/ EC permitting elements of the Batteries Directive 2006/66/ EC water discharge consents and flood defence consents formerly handled under the Water Resources Act 1991 the groundwater permitting regime previously covered by the Groundwater ( England and Wales) Regulations 2009, SI 2009/2902 control of radioactive substances, previously under the Radioactive Substances Act 1993 solvent emissions, previously governed by various directives including the Integrated Pollution Prevention and Control Directive 2008/1/ EC, the Waste Incineration Directive 2000/76/ EC, and the Solvent Emissions Directive 1999/13/ EC The Environmental Permitting ( England and Wales) Regulations 2016 ( EPR 2016), SI 2016/1154 took effect on 1 January 2017. EPR 2016, SI 2016/1154...
This Practice Note explores the aims and guiding principles of radioactive substances regulation in England and Wales, including justification, safeguarding wildlife, best available techniques ( BAT), and key environmental permitting requirements for radioactive substance activities. What are the key principles and purpose of radioactive substances regulation? In December 2021, the Environment Agency ( EA) released guidance outlining its objectives and principles for radioactive substances regulation. The central objective is to protect people and the environment from the harmful impacts of ionising radiation, both now and in the future, while also protecting and enhancing the environment as a whole. The EA pursues this by applying the relevant legislation, government policy, and international standards. justification — a permit for any practice involving radioactive substances will only be issued where it is justified; decisions on remediating radioactively contaminated land, or in emergencies, should result in more good than harm ...
Relevant Legislation The Environmental Permitting ( England and Wales) Regulations 2016 ( SI 2016/1154) establish the permitting and compliance framework for England and Wales across a range of sectors. Activities involving solvent emissions are addressed in Schedule 14. The 2016 Regulations consolidate and revoke the Environmental Permitting ( England and Wales) Regulations 2010 ( SI 2010/675) and implement the necessary provisions of the Industrial Emissions Directive 2010/75/ EU. Under Schedule 14, regulatory functions must be carried out to secure compliance with specified IED articles. After Brexit, any references to the IED are to be read in accordance with Schedule 1A, paragraph 6 of the 2016 Regulations. For further information on the IED, see the EU Practice Note: Industrial and Livestock Rearing Emissions Directive 2010/75/ EU. Requirement for an environmental permit Permits are required for identified operations that may pose a risk to the...
This Practice Note sets out many different categories of permits, licences, exemptions, notifications, registrations and consents that may often be needed in relation to environmental matters in England and Wales. environmental permitting water abstraction and impounding licences trade effluent consents reservoir registration waste carrier registration CRC energy efficiency scheme registration greenhouse gas permits wildlife licences marine licences hazardous substances consents Environmental permitting Summary Historically, separate regulatory authorities managed pollutant releases to air, land and water, often without a full picture of the cumulative environmental impacts that a single installation could impose on the wider environment. A system of partially integrated pollution control ( IPC) was first introduced in England and Wales in 1990, and in 1996 moved under the control of the EA and local...
The Sentencing Council has released offence-specific sentencing guidance for use in magistrates’ courts and the Crown Courts in England and Wales concerning, specifically, unauthorised or harmful depositing, treatment or disposal of waste, and also illegal discharges to air, water and land, directly contrary to section 33 of the Environmental Protection Act 1990 ( EPA 1990) and the Environmental Permitting ( England and Wales) Regulations......
‘ Caveat emptor’, or ‘let the buyer beware’, is a common law doctrine under which a seller has no obligation to disclose material facts to a prospective purchaser, and this extends to insolvency disposals. However, if a seller wishes to rely on the ‘sold with information’ exclusion under the contaminated land regime in Part IIA Environmental Protection Act 1990 ( EPA 1990), information must be provided. See Practice Notes: Property—enquiries before contract, Pre‑contract searches and Types of environmental investigations. Responsibilities Compliance with environmental law lies with the company, whether solvent or insolvent. That said, it is essential to determine the accountability of the insolvency practitioner and any lender if a company enters insolvency, as the office‑holder may incur liability. Insolvency practitioners should understand a company’s environmental obligations before taking an appointment, and lenders should be aware of any potential liabilities. In addition to...
Environmental insurance provides a practical route to managing environmental risks that stem from work undertaken by contractors and consultants. For general guidance on environmental insurance, refer to the following Practice Notes: Environmental insurance—when is it needed? Environmental insurance—extent of coverage Environmental insurance—types Environmental insurance—advantages and disadvantages Scope of activity For the purposes of this note, contractors and consultants are parties engaged to deliver work on a client’s behalf. Contractors typically carry out the works, while consultants may undertake design or investigative tasks. Although these activities are relevant to contaminated land consultants and contractors, the potential scope is much wider, including: architects who may produce a design for fuel storage a foundation and earthworks contractor who may disturb soils, and internal fix contractors who may handle chemicals (even glue) in confined...
ARCHIVED: This Practice Note is archived and not maintained This Environment consultations tracker sets out the status and latest updates on consultations run by government departments, regulators and other organisations concerning environmental law in England and Wales across 1 January–31 December 2021. Any consultations that remained open on 1 January 2022 are available in: Environment consultations tracker 2022. This Environment consultations tracker tool presents the status and most recent developments for consultations open from 1 January 2021, undertaken by government departments, regulators and other bodies on environmental law in England and Wales. The tracker is organised into two sections: open consultations and closed consultations. For details of consultations carried out by EU institutions (for example, the European Commission), see: Environment EU tracker 2021 [ Archived]. Closed consultations Entries are arranged chronologically by the date they closed. The consultation that closed most recently appears first in the table, which...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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