Schedule 19: Application of Part 7 to Crown land
Part 1: General
1863 Schedule 19 makes provision for Part 7 to have effect with modifications in certain cases where an interest in Crown land is held by or on behalf of the Crown.
Interpretation
1864 Paragraph 2 defines “Crown land” and who is the appropriate authority in relation to each of the categories of Crown land. In cases where it is the appropriate authority that holds an interest in Crown land held by or on behalf of the Crown, Part 7 can be left to operate in the normal way. The appropriate authority is the landowner and can create a conservation covenant. Any obligation of the authority under the covenant will be an obligation of the landowner in the ordinary way. Where that is not the case, the intention is that any obligation under a conservation covenant created by the Crown, or under a conservation covenant affecting land acquired by the Crown, should be an obligation of the appropriate authority, rather than of the Crown entity that holds the relevant estate in land. Provision is made to this effect in paragraphs 5 to 20 (see below).
Demesne land, land subject to escheat and bona vacantia
1865 Paragraph 3 deals with the situation where no freehold estate in land exists and, as a result of the feudal origins of land law and the fact that the Crown has dominion over all land as lord paramount, the Crown owns the land directly. This is “demesne land”. For the purposes of Part 7, demesne land will be treated as if the Crown held a freehold estate in the land. This enables the Crown to create a conservation covenant over demesne land. Further, the owner of an estate in land granted or created out of demesne land will be treated as a successor and the normal rules governing whether a successor is bound by a conservation covenant will apply.
1866 Paragraph 4 deals with the situation where land reverts to the Crown through escheat. This occurs when the freehold interest in land ceases to exist, for example where it is disclaimed by a trustee in bankruptcy or liquidator. Where there is no freehold in land, the Crown resumes its ownership of the land. A conservation covenant is not terminated when ownership of land reverts to the Crown through escheat. A future owner of the land can also be bound by the conservation covenant (see section 122, as modified by paragraph 9 of Schedule 19). Where land to which an obligation under a conservation covenant relates reverts to the Crown through escheat, the Crown will not be liable under the obligation in respect of any period before it takes possession or control of the land, enters into occupation of the land, or becomes the holder of an estate in the land. This replicates the general rule of land law regarding the Crown’s liability in respect of land that vests in it by operation of law.
1867 Paragraph 5 deals with the situation where an estate in land transfers to the Crown as bona vacantia. This occurs in particular where a person dies intestate and no one is entitled to his or her estate under the intestacy rules (contained in the Administration of Estates Act 1925), or where a company is dissolved. In these circumstances, property becomes vested in the Crown. Where an estate in land to which an obligation under a conservation covenant relates passes as bona vacantia, the appropriate authority will not be liable under the covenant in respect of any period before it takes possession or control of the land or enters into occupation of the land.
This replicates the general rule of land law in relation to property that vests in the Crown by operation of law.
Part 2: Conservation covenants relating to Crown land held by a person other than the appropriate authority
Agreements for the purposes of section 117
1868 Paragraph 6 enables a conservation covenant to be created, not by the Crown entity that holds the relevant estate in land, but by the appropriate authority acting in its place. An obligation of the appropriate authority under such a conservation covenant is then treated for the purposes of Part 7 as an obligation of the landowner.
Modification of Part 7 in relation to obligations under certain Crown conservation covenants
1869 Paragraphs 7 to 12 modify various provisions in Part 7 to deal with the fact that, in this special case, the appropriate authority will act in place of the Crown entity holding the relevant estate in land (for example, an obligation of the landowner needs to bind the appropriate authority), but the provisions about successors still have to operate by reference to the actual landowner.
These Explanatory Notes relate to the Environment Act 2021 (c. 30) which received Royal Assent on 9 November 2021
Part 3: Other modifications of Part 7
Cases where estate in land to which conservation covenant relates has been acquired by the Crown and is held by person other than the appropriate authority
1870 Paragraphs 13 to 17 deal with the case where an interest in land to which an obligation under a conservation covenant relates is acquired by the Crown and the relevant estate in land is not held by the appropriate authority. In this case, the intention is that it should be the appropriate authority that is subject to any obligation of the landowner under the covenant, or entitled to the benefit of any obligation of the responsible body under the covenant, instead of the Crown entity that holds the relevant estate in land. To that end, paragraphs 14 to 17 provide for various provisions in Part 7 to have effect, in this special case, with appropriate modifications.
Agreements under sections 127(1) and (3), 128(1) and 129(1)
1871 Paragraphs 18 to 21 provide for sections 127 to 129 to have effect with modifications to deal with the fact that Parts 2 and 3 of the Schedule may produce the result, exceptionally, that the appropriate authority may be bound by an obligation of the landowner under a conservation covenant, or entitled to the benefit of an obligation of the responsible body under a conservation covenant, without being the holder of the relevant estate in land.
Schedule 20: Consequential amendments relating to Part 7
1872 Schedule 20 makes consequential amendments relating to two main issues. Firstly, it ensures that holders of conservation covenants will be notified if a public authority seeks compulsorily to acquire the burdened land. Secondly, it enables public authorities to develop land that has been acquired for planning purposes in accordance with planning permission, even if it requires overriding conservation covenants (except conservation covenants held by the National Trust).
Acquisition of Land Act 1981 (c. 67)
1873 Paragraphs 2 and 3 amend section 12 of and paragraph 3 of Schedule 1 to the Acquisition of Land Act 1981 to ensure that a person entitled to the benefit of an obligation under a conservation covenant will be notified if a compulsory purchase order is made or proposed with respect to land to which the obligation relates. Any objection made in response to such a notice will be treated as a “relevant objection” for the purposes of that Act.
Housing and Planning Act 2016 (c. 22)
1874 Paragraphs 4 to 7 amend the Housing and Planning Act 2016 to cover a number of points in respect of developing land acquired for planning purposes which is subject to a conservation covenant.
1875 Paragraph 5(2) amends sections 203(1)(b) and 203(4)(b) of that Act so that local authorities and other public and quasi-public bodies, in carrying out their normal functions for the public benefit, can rely on section 203 of the Act to override the covenant’s obligations in land that has been acquired for planning purposes and is developed or used in accordance with that section.
1876 Paragraph 5(3) amends section 203(10) of that Act to ensure that obligations under a conservation covenant owed to the National Trust cannot be overridden under section 203 of that Act.
1877 Paragraph 6 amends section 204 of that Act so that compensation is not available to the beneficiary of an obligation under a conservation covenant under this section of the Act by virtue of the conservation covenant having been overridden under section 203. This reflects the nature of conservation covenants as distinct from an interest in property and as agreements entered into for the public good.
Neighbourhood Planning Act 2017 (c. 20)
1878 Paragraphs 9 to 12 amend the Neighbourhood Planning Act 2017 in connection with the use, in accordance with section 27 of that Act, of land which an acquiring authority has temporarily possessed. Paragraph 9 amends section 20 of that Act so that a person entitled to the benefit of an obligation under a conservation covenant is to be notified before an authority takes temporary possession of the land to which the obligation relates. Paragraphs 10 and 11 amend section 23 and 27 of that Act so as: (i) to make clear that the acquiring authority is not bound by obligations under a conservation covenant relating to the land by virtue of acquiring a right to use land under section 27 of that Act and that in using land under that section it may cause a person to be in breach of an obligation under a conservation covenant relating to the land; (ii) to provide that a person entitled to the benefit of an obligation under a conservation covenant is not eligible for compensation under section 23 of that Act; and (iii) to provide that in using land under section 27 of that Act, the acquiring authority may not cause a person to be in breach of an obligation owed to the National Trust under conservation covenants (or use land in such a way that, if a person permitted or suffered such use, that person would be in breach of such an obligation). The relevant provisions of the Neighbourhood Planning Act 2017 are not currently in force.
Part 8: Miscellaneous and General Provisions
Section 140: Amendment of REACH legislation
1141 Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals etc. (the REACH Regulation) forms part of retained EU law by virtue of the European Union Withdrawal Act 2018. Section 140 gives effect to Schedule 21, which gives the Secretary of State the power to amend the Articles of the REACH Regulation, as it applies in the UK, amended by the REACH Exit Statutory Instrument.
1142 This allows the Secretary of State to amend, or add to, the transitional provisions in Title 14A to ensure an effective regulatory transfer of the REACH Regulation into the UK, and facilitate future changes. The provision excludes certain Articles, including those which set out the fundamental aims and principles of REACH.
1143 The REACH Enforcement Regulations 2008 (the “REACH Enforcement Regulations”) were made under section 2(2) of the European Communities Act 1972. Section 1 of the European Union (Withdrawal) Act 2018 repealed the European Communities Act 1972. This meant that there was no longer any power to amend the REACH Enforcement Regulations. Section 140 and paragraph 2 of Schedule 21 give the Secretary of State and the Devolved Administrations the power to amend the REACH Enforcement Regulations.
1144 Section 140 extends, and applies, to the whole of the United Kingdom.
Section 141: Amendments to Schedule 7B to the government of Wales Act 2006
1145 Sections 50 to 54 and 89 of this Act establish powers that are exercisable concurrently by the Secretary of State and the devolved authorities. Restrictions in Schedule 7B to the government of Wales Act 2006 prevent the Senedd from removing a Minister of the Crown function that is exercised concurrently or jointly with a Minister of the Crown without the consent of the UK Government. This section would disapply the relevant restrictions in respect of the concurrent powers in the Act, by adding the Environment Act to the lists of enactments in paragraphs 9(8)(b) and 11(6)(b) of Schedule 7B. This will allow the Senedd to alter the concurrent arrangements in future without needing the UK Government’s agreement.
General provisions
Section 142: Consequential provision
1146 Section 142 confers on the Secretary of State a regulation-making power to make further consequential amendments which arise from this Act or regulations made under it. Regulations that make consequential provision may amend, repeal or revoke an enactment. Any regulations that amend or repeal primary legislation are subject to the affirmative procedure. Any other regulations under this section are subject to the negative procedure. Equivalent powers are provided for Scottish and Welsh Ministers and for the Department of Agriculture, Environment and Rural Affairs, subject to respective legislative competence.
Section 143: Regulations
1147 Subsection (1) provides that, where regulations are made under this Act (apart from Commencement regulations), those regulations may make supplementary, incidental, transitional or saving provision. Subsection (1)(b) also allows regulations to make different provision for different purposes or places.
1148 This section also provides that regulations made under this Act are to be made by statutory instrument or statutory rule (Northern Ireland only). Where regulations made by the Secretary of State are subject to the negative resolution procedure, they are subject to annulment in pursuance of a resolution of either House of Parliament. Where such regulations are subject to the affirmative resolution procedure, a draft of the regulations must be laid before Parliament and approved by a resolution of each House of Parliament. The section contains equivalent provision for regulations made by Welsh Ministers, Scottish Ministers and DAERA.
Section 144: Crown application
1149 This Act does not contain any provision to exempt the Crown from its requirements. Subsection
(2) of this section sets out that, where this Act amends or repeals other legislation, the Crown is bound by that provision to the same extent as in the amended or repealed legislation.
Section 145: Financial provisions
1150 Costs from the Environment Act will include, but are not limited to:
- The establishment and running of the Office for Environmental
- Additional activities for public bodies, such as local authorities; arms-length bodies (for example, Environment Agency and Natural England); other government departments (for example, additional costs for the justice system and additional
responsibilities for policymakers across government); and Defra.
- Additional resources to support the delivery of activities, such as enforcement officers and policymakers.
- Infrastructure and other assets, such as estates costs for the Office for Environmental Protection, and enhanced IT systems to deliver certain measures.
Section 146: Extent
1151 Section 146 sets out the extent of the Act. Annex A provides further information.
Section 147: Commencement
1152 Part 8 of the Act (Miscellaneous and General Provisions) will come into force on the day this Act is passed. Subsection (2) sets out those provisions in the Act which come into force two months after the day this Act is passed.
1153 Subsection (3) sets out those provisions which will come into force on such day as the Secretary of State may by regulations appoint. Corresponding provision is made in respect of Welsh Minsters and Scottish Ministers respectively in subsections (4) and (5).
1154 DAERA also has a corresponding commencement power, the details of which are provided for in subsection (6). Exercise of that power is subject to the consent of the Secretary of State in the cases described in subsection (7). Subsections (8) and (9) provide that exercise of the power is through statutory rule subject to the affirmative procedure.
1155 Subsection (10) allows for commencement regulations or orders to appoint different days for different purposes or places.
Section 148: Transitional or saving provision
1156 This section provides that Commencement regulations made under this Act may also make transitional or saving provision. Subsection (8) allows those regulations to make different provision for different purposes or places. Equivalent powers are provided for Scottish and Welsh Ministers and for DAERA, subject to respective legislative competence.
Section 149: Short title
1157 This section confirms the short title of the Act.
Schedule 21: Amendment of REACH legislation
Amendment of the REACH Regulation
1879 Paragraph 1 of Schedule 21 gives the Secretary of State the power to amend the Articles of the REACH Regulation, as it applies in the UK as retained EU law. This will, for example, allow the Secretary of State to amend, or add to, the transitional provisions in Title 14A to ensure an effective regulatory transfer of the REACH Regulation into the UK, and facilitate future changes.
1880 Any regulations made under this power must be consistent with Article 1 of the REACH Regulation which sets out its aim and scope. The Secretary of State must publish a statement to explain how this condition is met. Certain protected provisions are excluded from the power to amend the REACH Regulation, except where this is supplementary etc. to another amendment. These protected provisions are listed in paragraph 6 of this Schedule. Regulations made under this power are subject to the affirmative procedure.
Amendment of the REACH Enforcement Regulations 2008
1881 Paragraph 2 of Schedule 21 gives the Secretary of State and the Devolved Administrations the power to amend the REACH Enforcement Regulations 2008 (the “REACH Enforcement Regulations”). These Regulations were made under section 2(2) of the European Communities Act 1972. Section 1 of the European Union (Withdrawal) Act 2018 repealed the European Communities Act 1972. This meant that there was no longer any power to amend the REACH Enforcement Regulations.
1882 Any regulations made under this power must be necessary or appropriate for, or in connection with, the enforcement of REACH. Regulations may create new criminal offences or extend the scope of existing ones connected to the enforcement of REACH. Penalties are restricted to the maximum levels that could have been provided for under section 2(2) of the European Communities Act 1972 by virtue of paragraph 1(d) of Schedule 2 to that Act as it applied in the different parts of the UK. Regulations made under this power are subject to the affirmative procedure.
1883 The REACH Regulation and the REACH Enforcement Regulations relate to a mixture of devolved and reserved matters. Under paragraph 2 of the Schedule, a Devolved Administration can only amend the REACH Enforcement Regulations where the provision would be within the competence of the relevant legislature.
Consent of the devolved administrations
1884 Paragraph 3 states that the Secretary of State can only make regulations under this Schedule with the consent of the Devolved Administrations to the extent that the function is within devolved competence.
Requests by devolved administrations for exercise of powers under this Schedule
1885 Paragraph 4 provides for the Devolved Administrations to be able to request that the Secretary of State makes regulations.
Consultation
1886 Paragraph 5 of the Schedule requires the Secretary of State to consult the UK REACH Agency (the Health and Safety Executive) and other people they consider appropriate before exercising these powers. The Secretary of State must also consult people nominated by a Devolved Administration. Paragraph 5 also places a similar consultation requirement on the Devolved Administrations.
The protected provisions
1887 Paragraph 6 lists the protected provisions in the REACH Regulation that cannot generally be amended under this Schedule (see paragraph 1). These protected provisions relate to the fundamental principles of REACH, the role of the Devolved Administrations, transparency, and collaboration between the Agency and other bodies. The Annexes to the REACH Regulation are also excluded because the REACH Regulation itself contains the necessary powers to amend them.
1888 Schedule 21 extends, and applies, to the whole of the United Kingdom.
Commencement
1889 Part 8 of the Act (Miscellaneous and General Provisions) will come into force on the day this Act is passed. Section 147(2) sets out those provisions in the Act which will come into force two months after the day this Act is passed.
1890 Section 147(3) sets out those provisions which will come into force on such day as the Secretary of State may by regulations appoint. Corresponding powers are provided for Welsh Minsters, Scottish Ministers and DAERA.
