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Posted on: 25 September 2017
Environmental Law News UpdateTweet
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  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  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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