UNITED KINGDOM ENVIRONMENTAL REGULATION
The United Kingdom (“UK”) is located off the north-western coast of continental Europe and has a total area of approximately 94,060 sq mi. It includes England, 1/6 of the island of Ireland (Northern Ireland), Wales and Scotland, including many small islands. It shares a 360 km international land boundary with the Republic of Ireland and is connected to France via a tunnel bored beneath the English Channel. The geography and climate of the UK varies. England consists of mostly lowland terrain with upland or mountainous terrain found in the northwest. Scotland is distinguished by the Highland Boundary Fault, which traverses the Scottish mainland and separates two distinctively different regions. Wales is mostly mountainous; and Ireland includes the Mourne Mountains and the Lough Neagh, the largest body of water in the UK.
The ecology in the UK is somewhat impoverished compared to that of continental Europe. Since the mid eighteenth century, UK has gone through industrialisation and increasing urbanisation, resulting in over 100 species becoming extinct.
PRINCIPAL LEGISLATION AND REGULATOR
The primary legislation applicable to the UK is the Town and Country Planning Act 1990 (“TCPA”) and the Town and Country Planning (EIA) Regulations 2011 (“Regulation”). Both combine to provide the legal and institutional framework for mineral development and the sustainable management of the UK environment. In England and Wales, planning permission is granted by the mineral planning authority (“MPA”). In areas where there is a County Council, the MPA is the County itself, which grants planning permission for mineral working. In unitary areas, metropolitan districts and London boroughs, the local planning authority grants permission. In Scotland, the local planning authority grants mineral planning permissions and in Northern Ireland it is the strategic planning unit. If permission is refused, there is a right of appeal to the central Government (“Secretary of State”), which also has the power to recover jurisdiction of certain applications where it considers them to have more than local importance.
Other important legislative enactment include; the Land Registration Act 2002, the Coal Industry Act 1994 and the Planning and Compensation Act 1991.
There are five stages to the EIA process in the UK: Staging, Scoping, EIA, Planning Application and Consultation, and Decision.
Mineral development is generally considered a ‘Schedule 2’ development, unless it concerns an open-cast mine where the surface of the site exceeds 25 hectares. A ‘Schedule 1’ project requires an assessment in every case; a ‘Schedule 2’ project requires the relevant authority to consider whether or not the impact on the environment will be significant (s. 4(6) and Schedule 3, Regulation).
The applicant must compile the information reasonably required to assess the likely significant environmental effects of the proposed mineral development and the totality of information compiled by the applicant is known as an “environmental statement” (ss. 15(1)-(5), Regulation). The environmental statement (and the application for mineral development) must be publicised. The statutory ‘Consultation Bodies’ and the public must be given the opportunity to give their views about the proposed mineral development and the environmental statement (ss. 16(1)-(2), Regulation)
The environmental statement, together with any other information that is relevant to the decision, and any representations made in respect of it, must be taken into account by the MPA and/or the Secretary of State in deciding whether or not to give consent for the mineral development. The public must be informed of the decision and the main reasons for it (ss. 24(1)-(3), Regulation). The MPA also has wide powers to modify, suspend, or cancel permissions once a mineral development project has been approved (s. 97, as well as Schedules 5 and 9, TCPA).
Since the right to mine hinges on the grant of an EIA and planning approval, the focus by the MPA is whether or not the planned development is an acceptable (and best) use of the land; the control of processes and emissions are subject to approval under pollution control regimes and are generally not part of the EIA process itself. One test that will be applied is whether or not the EIA provides appropriate mitigation and remedial provisions so as to ensure that the land is not classified as contaminated following the completion of mining. Of course, in areas of tranquillity, recreation or natural beauty, the miner is unlikely to obtain planning approval.
Other licensing, permits and permissions required to operate a mine will include: permits relating to surface water, groundwater and mining waste, which the Environment Agency is responsible for issuing; a licence for any extraction of coal granted by the Coal Authority, if applicable; and permission from landowner/s to access their land and conduct mining operations.