Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan and Nicholas Ostrowski consider new Environment Agency research on planning for the risk of flooding, a case concerning the impact of air quality considerations upon planning applications, and regulatory position statements from the Environment Agency.

 

Environment Agency research on Planning for the Risk of Flooding

The Environment Agency has recently released a detailed report on a joint research project about the risk of widespread flooding across England and Wales in which flooding emanates from a variety of sources such as rivers, surface water and from the sea.

The risk of widespread flooding is based on previous Environment Agency research which used historical river flow and rainfall data for England and Wales as well as expert judgment from Environment Agency meteorological and hydrology experts. This is then used to model the probability of rare flooding in any particular area.

The new research project essentially focussed on updating the Environment Agency’s models as set out in the National Risk Assessment 2016 and National Risk Register to consider the likelihood of severe flooding emanating from large scale climatological and meteorological drivers for flooding such as extreme rainfall. Particular attention was paid to the risks from surface water flooding (as opposed to coastal or fluvial flooding).

The detailed report gives an insight into the technical methodology used by the Environment Agency when assessing the likelihood and risk of flooding. A thorough understanding of the Environment Agency’s methodology may be of particular interest to practitioners who are grappling with the Environment Agency’s response (as statutory consultee) to an application for planning permission where objections have been made on the basis that, in the event of a serious meteorological event, the site would be a at risk of flooding.

 

Air quality and planning law

In R (oao Shirley) v Secretary of State for Communities and Local Government [2017] EWHC 2306 (Admin) the High Court dismissed an application for judicial review of the Secretary of State’s refusal to call in a planning application to Canterbury City Council on grounds concerning consideration of the impact of the proposed development upon air quality. The Council had resolved to grant the application subject to completion of a s.106 agreement.

The challenge followed, and relied heavily upon, the decisions in the ClientEarth cases concerning the UK’s failure to comply with the requirements of the Air Quality Directive (AQD). Dove J. steadfastly avoided any engagement with the substantive merits of the concerns over air quality in Canterbury but held that nothing in the AQD gave rise to any duty on the Secretary of State to call in an application which raised issues of compliance with air quality thresholds. In the event of exceedances his duties as the competent authority were limited to drawing up and implementing a compliant Air Quality Plan (AQP).

The court did acknowledge that the Council, despite its current resolution, might be obliged to re-open its consideration of the application in the light of the substantive concerns raised (on the principles enunciated in R(oao Kides) v South Cambridgeshire DC [2003] 1 P & CR 19) as “the question of air quality and the exceedance of any limit values or thresholds is clearly and obviously a material consideration in the decision as to whether or not to grant planning permission” and to the need for mitigation measures. Only once planning permission had been granted (or refused) would any right to seek judicial review of the Council’s processes arise.

The judgment can be found here

 

Environment Agency Regulatory Position Statements

The Environment Agency has collected together its ‘regulatory position statements’ which set out the circumstances in which the EA “isn’t currently enforcing the requirement for an environmental permit in specific circumstances for some activities.” These are listed in eight categories: Low risk waste activities, Disposing of waste, Radioactive Waste, Storing waste, Treating waste, Using waste, Onshore oil and gas, and Water Discharges. The circumstances listed all represent areas of perceived minor hazard and low risk (for example, the at first sight alarming Radioactive waste relaxation is in relation to “the management of radioactive items found in scrap metal”.)

The motivation behind the position statements is clear and laudable: the focussed use of scarce resources and a risk-based approach to regulation. However, they are not without their difficulties; many limit their scope by reference to compliance by the operator with a list of conditions of the EA’s own making, with the potential for dispute as to whether or not those conditions have been satisfied on the facts of an individual case. Such issues can only be aired through judicial review or possibly by challenging any resulting prosecution for operating without a permit as an abuse of process, since the conditions form no part of the actual permitting régime. The position bears some similarity to that concerning exemptions from permitting, where the absence of any statutory mechanism for challenge to the EA’s decisions to refuse to register or to deregister exemptions.

Links to the individual position statements can be found here

 

 

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Environmental Law News Update

In this latest Environmental Law News Update, Charles MorganWilliam Upton and Laura Phillips consider a fine imposed on United Utilities for sewage pollution, some useful publications from the Environment Agency, and a decision on the new costs rules in environmental cases.

 

United Utilities fined £666,000 for sewage pollution in the River Medlock

United Utilities have been fined £666,000 and ordered to pay costs of over £32,000 for an incident in October 2014 in which around 21,700 cubic metres of raw sewage was discharged into the River Medlock following a fault in the company’s sewage tank. The pollution spread over four kilometres and had a significant impact on fish stocks and water quality in the river. The company had failed to recognise the fault three days before the EA were notified of the issue, but have now taken steps to prevent reoccurrence.

The EA’s press release is here

 

Useful stuff from the EA

The Environment Agency last week published useful information and data about both itself and the environment it regulates.

A chart entitled ‘Creating a better place’ sets out graphically the EA’s organisational structure and key personnel in its five internal divisions of Chief Executive’s Directorate, Finance, Environment and Business (E&B), Flood and Coastal Risk Management (FCRM) and Operations. Legal Services, Regulated Industry, Water, Land and Biodiversity and Sustainable Business and Development, the areas with which legal practitioners will most regularly interface, are all sub-divisions within Environment and Business. The chart can be found here.

The EA also recently published its “Water situation: area monthly reports for England” for August 2017. These collate data from the EA, the Met Office and water companies on rainfall, soil moisture deficit, river flows, groundwater levels and reservoir levels for the 13 areas into which England is divided and contain a wealth of information about both the current health and adequacy of water resources and trends. These reports can be found here.

 

Costs caps in environmental cases

The collection of NGOs interested in environmental issues have won most of their challenge to the new costs rules that the government introduced in this year (CPR 45.41 – 45.45, on Aarhus Convention claims). They brought their joint application for judicial review the day the new rules came into effect on 28th February and we now have the judgment: RSPB and Friends of The Earth v Secretary of State for Justice [2017] EWHC 2309 (Admin), 15 September 2017, Dove J., following a hearing in July. The final form of the Court’s order in this case has yet to be decided, and some changes to the CPR wording will be required. But the High Court has made it clear how the new rules should be applied.

A defendant’s ability to apply to change the standard amount of the cap (£5,000 on an individual and £10,000 on others, with a reciprocal cap of £35,000) has been limited. The NGOs had sought to argue that the effect of the new rules were unpredictable, as the cost caps could be changed at any time. But the Court accepted that the CPR already requires that any application needs to be made as soon as it becomes apparent that it is necessary and desirable to make it (CPR 23.5). So, a defendant must now request any variation to the costs cap in their Acknowledgement of Service, or expect the Court to rule that they have not made their application in time.

It looks like further rules will be necessary on how much financial information has to be supplied by the claimant, but the information will be kept as confidential as possible, by being decided on paper or at a private hearing. It was at least conceded that the claimant’s own legal costs should be included in the consideration of what is or is not prohibitively expensive.

So, the substance of the new rules remains standing, even if they will have to be applied more rigorously. The effect of the changes was summarised in William Upton’s note on 1st March 2017, “Challenging Costs limits in Aarhus Convention claims.

 

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Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan and Laura Phillips consider the publication of the Environment Agency’s latest waste management statistics, a BBC Report into Thames Water and an update on the EU Withdrawal Bill.

 

Environment Agency publishes waste management statistics for 2016

The Environment Agency this week published waste management statistics for England in 2016. A graphical summary shows that a total of 203 million tonnes of waste was managed during the year. Since 2000 the annual volume going to landfill has roughly halved whilst available landfill capacity is flattening out at c. 10 times the current annual input.

Other graphical charts analyse waste management activities by:

  • site type (hazardous merchant, hazardous restricted, non-hazardous with stable non-reactive hazardous waste cell, non-hazardous and non-hazardous restricted, inert)
  • nature of inputs (hazardous, household/industrial and commercial, clinical, civic amenity site and non-biodegradable)
  • type of treatment (biological, composting, chemical, physico-chemical, physical and material recovery)
  • incineration inputs (sewage sludge, municipal and/or industrial and commercial, hazardous, co-incineration of non-hazardous waste, co-incineration of hazardous waste, clinical and animal by-product)
  • fate of hazardous waste deposits (recovery, treatment, landfill and incineration)
  • geographic region (South West, South East, London, East of England, West Midlands, East Midlands, Yorkshire and Humber, North West and North East)

The variety of correlations thus providing a very accessible overview of the national activity from which a wealth of subsidiary information can be derived. For example, only two of the nine regions engaged in significant incineration of sewage sludge (North West and London) and only about one-third of the national capacity for this method of waste management is currently used. By far the largest waste type for incineration in all regions was municipal and/or industrial and commercial, for which the national capacity of c. 11.6 million tonnes was about 85% exploited. Overall, 22% of waste by weight still goes to landfill.

The charts can be downloaded here

 

BBC goes under the surface of Thames Water

Between 2006 and 2017 Thames Water was controlled through a complex corporate structure by the Australian merchant bank Macquarie, which in March 2017 sold its remaining interest to a Canadian pension fund and a Kuwaiti sovereign wealth fund.

A BBC Radio 4 programme broadcast last week investigates the financial mechanisms by which Macquarie acquired and controlled the company and the oversight of its corporate structure and governance by OFWAT, its economic regulator. In the programme Thames Water’s new chief executive officer Steve Robertson also acknowledges operational management failures during the Macquarie era which led to the record fine of £20,000,000 imposed upon Thames Water last March following sustained pollution of reaches of the River Thames.

The broadcast can be heard here.

 

EU Withdrawal Bill – Update

The Environmental Policy Forum has warned the government that the EU Withdrawal Bill, with its proposed ‘Henry VIII’ clauses, including Clause 7, which would give ministers far reaching powers to amend ‘deficiencies’ (laws that implement European laws that will no longer apply) after Brexit using regulations to amend existing primary legislation, fails to adequately provide for parliamentary scrutiny over environmental law after Brexit. It has called for the establishment of an independent body to scrutinise government actions affecting the Environment and for parliamentary committees to examine the use of these clauses, see further detail here.

Meanwhile, UKELA has published a useful report on ‘Brexit, Henry VIII Clauses and Environmental Law’ which analyses Clause 7 and where and how it should be used. It finds that the majority of core environmental primary laws in England (seventeen out of twenty nine Acts of Parliament) will not require amendment. As to the twelve Acts that would require amendment, it concludes it will be necessary to amend six provisions, advisable to amend (for clarity) a further thirty, and that, at present, in order to preserve regulatory continuity, there is no need to remove references to EU law and policy in existing legislation and in particular, that no change is needed to amend definitions that make reference to EU legislation. The report is available here. The report does not address the issue of Parliamentary scrutiny of the use of these powers.

 

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Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan and Laura Phillips consider the future relationship of DEFRA and the Environment Agency, recent clarification of the legal status of petroleum exploration and development, and a new Brexit position paper which aims to ensure continuity in the availability of goods for the EU and the UK.

 

DEFRA and the Environment Agency define their relationship

In a Framework Document published last month, DEFRA and the Environment Agency (one of DEFRA’s “delivery bodies”) set out the basis upon which they “will work together in an open, honest, trust-based partnership”, whilst acknowledging that the EA as a Non-Departmental Public Body will operate “at arm’s length from its principal sponsor”. The 30-page document “should be formally reviewed every three years with light touch annual reviews as necessary”. It sets out the status and purpose of the EA, providing in the process a useful summary of the EA’s statutory functions, duties and powers under the Environment Act 1995 and a statement of the respective responsibilities of its chairman, chief executive and board. The contents of the document also constitute the discharge by the Secretary of State of several statutory requirements imposed by that Act in relation to the functioning of the EA. The concept of Risk Management is specifically addressed, the EA stating that it will adopt the principles contained within the Treasury guidance Management of Risk: Principles and Concepts. The document also addresses (it is to be hoped not ominously) “Arrangements in the event that the Environment Agency is wound up”.

The Framework Document can be found here

 

Legal status of petroleum exploration and development licences clarified

In R (oao Dean) v Secretary of State for Business, Energy and Industrial Strategy and Dart Energy (West England) plc [2017] EWHC 1998 (Admin) the Administrative Court considered the effect of a consensual variation to the duration of the initial term of a Petroleum Exploration and Development Licence (‘PEDL’) granted by the Secretary of State under section 3 of the Petroleum Act 1998 to search for, bore and get petroleum (all petroleum deposits being vested in the Crown by virtue of the 1998 Act). Such licences are topical and controversial in the context of ‘fracking’ activities, which were indeed the subject-matter of the instant licence.

The main issue in the case was whether a PEDL was purely statutory in nature or took effect instead as a contractual licence. Statutory instruments set out model clauses for licences and an EU Directive further regulated their content. It had nevertheless been the practice of the Secretary of State both to grant such licences as deeds and to vary them by deed when expedient to reflect the multitudinous changes of circumstances encountered by operators in the field. Holgate J. held that this was in fact the only appropriate way in which to grant a PEDL, which he held to be a quite distinct thing from a planning permission or an environmental permit, requiring as it did both the grant of real property rights and the acceptance by the licensee of the terms offered. The 1998 Act and subsidiary legislation simply empowered the Secretary of State, as a public authority, to enter into such agreements in private law. It did not create a public law statutory code. The lawful content of PEDLs was circumscribed by domestic and EU legislative requirements, but that did not affect their essentially contractual nature.

Holroyd J. further indicated that even if he had found that PEDLs took effect only in public law, he would nevertheless have found also that there was a statutory implied power of variation by agreement with the licensee. He also found that the actual variations made were unobjectionable in nature.

 

New Brexit position paper published on ‘Continuity in the availability of goods for the EU and the UK’

This position paper is part of a series published prior to the third round of negotiations currently taking place. Its aims are to: ensure that UK and European goods which are placed on the market prior to Brexit can continue to be sold in both countries after Brexit; seek continuity and avoid unnecessary duplication of compliance activities in place before Brexit (e.g. through existing product approvals, certificates and registrations remaining valid); ensure cooperation in monitoring and enforcing against non-compliant products; and to place no restrictions on the provision of services supplied with goods between the EU and UK. It can be summarised as proposing business as usual and appears to suggest that little will change in the current regulatory regimes: “… The UK’s objective is to provide legal certainty and avoid disruption for businesses and consumers with respect to the continued availability of goods in the EU and the UK. In doing this, it makes sense to recognise our common regulatory systems and the UK’s ambition for cooperation in the future” (para 9). The details are all rather vague, as are the mechanisms for resolving legal disputes and dealing with conflicting regulatory standards, although recent comments from the Justice Minister Dominic Raab appear to suggest that ECJ case law could continue to influence UK decisions after Brexit (see news article).

The position paper, and others, are available here

 

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