Large Combustion Plants (National Emission Reduction Plan) Regulations 2007 (S.I. 2007/2325)

2.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in one respect.

2.2 Regulation 5(7) requires the Secretary of State to consult the operators of all large combustion plants before taking certain action. "Large combustion plant" is defined in regulation 2(1) as an existing plant, within the meaning given in Article 2(10) of Directive 2001/80/EC, the rated thermal input of which is equal to or greater than 50 megawatts. The Directive defines "existing plant" as any combustion plant for which the original construction licence, or in the absence of such a procedure, the original operating licence was granted before 1 July 1987.

2.3 Given this definition of "large combustion plant", the Committee asked the Department for Environment, Food and Rural Affairs to explain why the consultation requirement in regulation 5(7) was not expressly limited to such plants in the United Kingdom (in contrast to regulations 3(1) and 4(1)).

2.4 In a memorandum printed at Appendix 2 the Department does not accept that the definition of "large combustion plant" is "Community-wide", even though it refers to the term "existing plant" defined in the Directive. The Department states that the definition of "large combustion plant" is specific to the Regulations, which in accordance with the vires under which the instrument was made (section 2(2) of the European Communities Act 1972 and section 2 of the Pollution Prevention and Control Act 1999), extend no wider than the United Kingdom and which do not apply to plants outside the United Kingdom. The Committee takes the view that such constraints do not limit the scope of a mere definition.

2.5 The Department argues that when the Regulations are read as a whole and particularly when regulations 3 and 5 are read together, there is no doubt that the reference to "all combustion plants" in regulation 5(7) means all those plants within the geographical application of the Regulations, namely the United Kingdom; and that to construe this as an obligation to consult all operators in all member States would have required clear words to that effect. As to the presence of explicit geographical references in regulations 3(1) and 4(1), the Department states that this does not allow one to infer that the absence of such a reference in regulation 5(7) means that the obligation applies in respect of operators in all member States. The particular reasons for the references in regulations 3(1) and 4(1) are set out in the Department's memorandum.

2.6 The Committee does not find the Department's arguments convincing. The definition of "large combustion plant" in regulation 2(1) is not expressed to be confined to such plants in the United Kingdom. All the substantive provisions in the Regulations referring to "large combustion plants" are clearly and specifically limited (for whatever reason) to those in the United Kingdom, apart from regulation 5(7) which refers simply to "all large combustion plants". That wording looks clear enough on the face of it to apply to all such plants wherever they may be. In the Committee's view this raises a wholly avoidable doubt as to the intended scope of that provision. The Committee reports regulation 5(7) for defective drafting.