Environmental Law News

Posted on: 30 July 2018

Environmental Law News Update

In this latest Environmental Law News Update, Laura Phillips, Mark Davies and Angelica Rokad consider a parliamentary report on the Government’s 25 year plan for the environment, the Brexit White Paper and a recent Court of Appeal case clarifying sentencing in fire safety cases.

 

House of Commons Environmental Audit Committee report on the Government’s 25 Year Plan for the Environment

The House of Commons Environmental Audit Committee’s Eighth Report of Session on the Government’s 25 Year Plan for the Environment was published on Tuesday of last week. Put quite simply the Report is an excellent exposé of the lack of detail in the 25 Year Plan, drawing on the many contributions from environmental organisations, business leaders and leading academics, as well as submissions from the Chairs of the Committee on Climate Change, its Adaptation Sub-Committee and the Comptroller and Auditor General of the National Audit Office.

The Report sets out what legislation the Committee consider the Government should introduce, as a minimum, to meet the ambition (which is to be lauded) in the 25 Year Plan. As a flavour, it includes:

  • Replacing the one third of EU environmental legislation (air, waste, water, chemicals) that cannot be copied and pasted into UK law through the EU (Withdrawal) Act;
  • Put into UK law the environmental principles that the UK signed up to in international law and European Treaties, as well as the commitments contained in the 2015 Paris Agreement;
  • Establish an architecture of long-term, legally-binding environmental targets supported by a five-yearly planning and reporting process using the Climate Change Act 2008 as its model;
  • Create in UK law an independent oversight body – The Environmental Enforcement and Audit Office (EEAO) – reporting to Parliament and to replace the functions of the European Commission and European Environment Agency; and
  • Provide a robust statutory basis for natural capital and environmental net gain to ensure they enhance environmental protection and do not become licences to pollute and/or offset.

Importantly, the Report calls for the Government to ‘bring forward specific, measurable and achievable targets across the 25 Year Plan’s aims’ before the draft Environmental Principles and Governance Bill is published (due by December 2018).

The lack of targets in the 25 Year Plan is to be lamented when weighed up against its ambition: the cry from Dr Stephanie Wray, Chief Executive of the Chartered Institute of Ecologists and Environmental Management, in the Report of “Targets? What targets?” is only too true. Her conclusion that the Plan is “…long on ambition and very short on legally binding targets and actions” is one that many of us may have come to.

The full report may be downloaded here.

 

The Government’s White Paper on Brexit: “Legislating for the Withdrawal Agreement between the United Kingdom and the European Union”

Not long after the UK Supreme Court delivered its judgment in Miller, the Government formally conceded that it would bring forward primary legislation to implement the Brexit agreement reached (assuming, that is, one is) between the UK and the EU. The Bill giving rise to such primary legislation has been referred to as the European Union (Withdrawal Agreement) Bill and it is clear that its contents are ultimately dependent on the final terms reached between both sides.

Amidst criticism for the lack of clarity as to what those terms are, on 24th July 2018 the Government formally published its much awaited White Paper, “Legislating for the Withdrawal Agreement between the United Kingdom and the European Union”. The White Paper sets out the Government’s “early expectations” for what the Bill is likely to contain based on what has already been agreed, publishing it ahead of the end of current negotiations in order to deliver on its “ongoing commitment” to Parliamentary scrutiny of the Brexit process.

The White Paper confirms that the forthcoming Bill will: be the primary means by which the rights of EU citizens will be protected in UK law; legislate for a transition period and create financial authority to manage any “divorce payment” from the UK to the EU. The position in relation to the environment, however, remains as ambiguous as ever. The single mention made to it in the White Paper reads as follows:

“The high level of protection for […] the environment […] will be maintained.”

The lack of a detailed commitment in relation to the environment is somewhat disappointing but perhaps unexpected. This is not least because a statement from the Government on 6th July 2018 following a Cabinet meeting at Chequers suggested that both parties were agreed on the need to adhere to what was referred to as a “common rule book” for goods and a pledge to match EU standards post-Brexit. The statement suggested that the UK’s “commitment to uphold international standards” meant that both parties would:

“[…] agree to maintain high regulatory standards for the environment [and] climate change […and that the UK] would not let standards fall below their current levels.”

However, there is no detailed proposal on how either side will seek to ensure that current environmental standards are maintained. Despite previous discussions about the establishment of a new and independent oversight body to govern and enforce compliance with environmental laws, a role currently carried out jointly by the European Commission and CJEU, no mention of this has been made in the White Paper. It is also unclear whether a specific non-regression clause in respect of the environment or a binding commitment to continued co-operation on climate change will form part of any future Brexit agreement. Such an agreement could allow both the UK and the EU to work together in the future to legislate in areas currently not covered by any specific environmental laws, for example, soil or biodiversity quality targets.

Further, there is no detail about which rules the Government envisages being covered in any Brexit agreement. The commitment given in the White Paper is both as general as it is broad. For example, the current protection covering air, waste, water and chemicals have not been expressly included or referred to. Against the backdrop of the European Commission’s recent decision in May 2018 to take the UK to the CJEU for its long-standing failure to meet EU air limits for nitrogen dioxide, the importance of a detailed commitment to environmental laws, as opposed to an unchecked promise, should not be underestimated.

The White Paper can be found here.

The Chequers Statement made on 6 July 2018 can be found here.

 

Sentencing in fire safety cases – R v Butt [2018] EWCA Crim 1617

The Lord Chief Justice’s interest in regulatory prosecutions continues with R v Butt [2018] EWCA Crim 1617 in which the Court of Appeal confirmed the correct approach to sentencing in fire safety offences.

Mr Butt was the owner of large end of terrace house in East London which was being converted from an HMO to a hotel. To cut a long story short, the design for which Mr Butt had planning permission (which required an exposed external fire escape) did not comply with fire safety regulations (which required an enclosed external fire escape). Works nevertheless commenced. Building regulations approval was, predictably, refused on fire safety grounds. There followed an impasse between Tower Hamlet’s planning and building regulations departments, who, also predictably, could not agree on a design that would be acceptable to both. There were a number of other fire safety issues. LFEPA (the fire authority) became involved and eventually prosecuted.

Mr Butt pleaded guilty to three counts of failure to take reasonable general fire precautions to ensure that premises are safe contrary to articles 4(1)(c), 8(1)(b) and 32(1)(a) of the Regulatory Reform (Fire Safety) Order 2005 and one count of failure to equip premises appropriately with firefighting equipment and with fire detectors and alarms contrary to articles 13(1)(a) and 32(1)(a) of the same order. He was sentenced to six months’ imprisonment suspended for 18 months with a tagged curfew for six months between 21.00 and 06.00, together with a fine of £250,000 (evidence was provided indicating that he had limited cashflow, but a property portfolio of over £1.5m). He appealed on the basis that the sentence was manifestly excessive.

The judgment is of primarily of interest because of the Court’s remarks on the approach to sentencing in fire safety cases. The key points (see paras 23 to 31 of the judgment) are:

  • Fire is inherently dangerous and unpredictable and fire safety offences are always serious (they had been excluded from the Health and Safety Sentencing Guidelines because of the risk that they would distort sentencing levels upwards);
  • Nevertheless (and in that context) the structure of those guidelines might usefully be followed in fire safety cases in determining the seriousness of the offending;
  • Culpability should be assessed in the usual way;
  • The harm risked in fire safety cases will always be ‘Level A’ (risk of death of serious injury);
  • The likelihood of harm, however, depends on the evidence and the chances of a fire breaking out; and
  • the two factors referred to in paragraph 9 of the Guideline (risk to many and actual harm) are aggravating features when sentencing for fire safety offences.

In summary, apply the Guidelines and add some, particularly where there is evidence to demonstrate that there is a high risk of fire.

The court also confirmed:

  • that there was no difficulty with combining a substantial fine with a suspended sentence or community order in appropriate circumstances, particularly where the offending is related to a defendant’s employment and when dealing with offenders with substantial means; and
  • that a defendant’s resources include both income and capital (which may more accurately reflect the wealth of an individual than a tax return).

These comments appear to be of more general application and are a further indication that the Courts will continue to treat regulatory offences as serious. Sentences are only going to go one way. In this context, realistic and timely advice to clients facing such charges is crucial.

Finally, a warning to defendants who seek to mitigate on the basis of a failure to supervise others more directly responsible for the offending: the thrust of the mitigation was that Mr Butt had engaged an architect to design and carry out the conversion who was responsible for the inherently faulty design, and remedying the design had already cost Mr Butt a great deal of money (over £100k) and time. This went down before the sentencing judge and the Court of Appeal like a lead balloon, who both took the view that Mr Butt had made his own bed and should lie in it.

Nevertheless, the Court of Appeal agreed that in this case the fine was too high and reduced it to £150,000.

A transcript of the judgment can be found here.

Laura Phillips represented the successful appellant.