Key terms and concepts within environmental legislation are often “ambiguous”, “opaque” or “provide potential for misunderstanding”
Devolution, the influence of EU legislation, and differing standards of drafting quality within government departments have all led to coherence problems, according to the interim report for a wide-ranging research project being carried out by the UK Environmental Law Association (UKELA) and King’s College London.
According to The state of UK Environmental Legislation in 2011, environmental lawyers may struggle to understand EU legal concepts that are transferred into UK statute law. Consequently, there is confusion about the application of the Habitats Directive in relation to development proposals, and there is so far no workable definition of the meaning of waste.
Devolution creates extra complexity. The interim report states: “While there remains extensive UK-wide environmental legislation, increasingly there are differences, whether with separate pieces of primary legislation being adopted by individual administrations, or varying secondary legislation under UK Acts applying in different devolved administrations.”
“Heavy reliance” on complex guidance documents to flesh out statutory obligations and frequent amendments sometimes muddies the waters further.
Transferring the obligations of EU Directives into a “patchwork” of legislation can create issues of transparency, the interim report states. For example, both the Water and Waste Framework Directives are implemented via an array of different statutes, statutory instruments, ministerial directions, and other means.
UKELA members and working parties have until mid-September to respond to the interim report.
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