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.

Weekly Environmental Law News Update

In this latest Environmental Law News Update, Mark Davies considers director disqualifications resulting from HSE and EA investigations, a no-deal Brexit plan from Defra and the publication of a National Adaption Programme report also from Defra.

 

Joint HSE and EA investigation leads to director disqualifications

9 July at Stoke-on-Trent Crown Court marked the culmination of a two-year investigation into the criminal activities of Alsager Contractors. The firm, which went into liquidation in 2016, was run by George Talbot and his two sons, Anthony and Stephen.

The HSE and the EA’s investigation, which reportedly started after a complaint to Newcastle Borough Council about the burning of waste and asbestos dust at a site in 2011, concerned waste management at three sites over a period of two years. An inspection of one of the sites and the surrounding highway yielded 42 samples, 36 of which were found to contain asbestos. Present at the same site was also reportedly an open skip containing asbestos-lagged pipework.

On 10 May 2012 the HSE served Alsager with a prohibition notice preventing work being undertaken (save for decontamination using a licensed asbestos contractor) using six road-going ejector trailers that had been found to contain, or were contaminated with, asbestos.

In February of 2013, an officer from the EA reportedly found that a door had been cut into one of the trailers, breaching the prohibition notice and enabling access to the asbestos waste. In light of this discovery the environmental permit for that particular site was suspended and subsequently revoked.

At the sentencing hearing the Court was told that, “…bags containing asbestos waste were loaded into skips using a mechanical loader and then crushed down, so creating the risk that the bags would split and the potentially carcinogenic contents released as large volumes of dust.”

In sentencing, Recorder Stephen Thomas noted that there had been a ‘flagrant breach of the prohibition notice’ and that it was clear that the company had, instead of heeding earlier warnings regarding the handling of asbestos, ‘continued to create risks and deliberately disregarded [the] prohibition notice’. It was found that both George and Anthony Talbot, company directors at the time in question, knew of and had failed to prevent work contravening the prohibition notice. All three were found to have known about waste containing asbestos being treated, kept or disposed of which could cause pollution or harm to human health at another site.
After guilty pleas the Defendants were sentenced as follows:

  • George Talbot was disqualified as a director for a period of seven years and fined £46,500 for five offences.
  • Anthony Talbot was disqualified for a period of four years and fined £4,800 for four offences.
  • Stephen Talbot was fined £6,000 for two offences.

The Recorder is reported to have been considering custodial sentences but found himself ‘constrained by the guidelines’.

Mark Harris prosecuted for the HSE and EA. Gordon Wignall appeared for the Defendants.

 

Defra no-deal REACH plan due in the autumn

Evidence was provided to a House of Lords select committee on 18 July that Defra’s ‘large and detailed’ draft statutory instrument is to be laid out in Parliament this autumn. The draft, which provides for chemical regulation in the UK in the event of a no-deal Brexit, will reportedly transfer the ‘responsibilities and operability’ of the European Chemicals Agency (ECHA) to a UK agency.

The select committee was told that the draft will, “essentially build the UK regulatory capacity by extending the role of the Health and Safety Executive and the Environment Agency and ensuring we put in place arrangements to ensure there is suitable transparency and a requirement to seek external advice to replace some of the work that is done in the ECHA and technical scientific committees.”

One could be forgiven for concluding that there may be some substantial difficulty in ‘transferring the responsibilities and operability of the ECHA’ to the HSE and EA.

Given that in the event of a no-deal scenario, existing REACH registrations submitted by UK entities will simply become non-existent from 30 March 2019, businesses may have been hoping to hear a little more than Defra’s offer to the select committee that it ‘would anticipate’ a mechanism for the transfer of registrations to be in place.

The message in relation to the proposed replacement IT system (replacing the ECHA one) was slightly more bullish, with Thérèse Coffey indicating that she is ‘confident’ that it will be in place by Brexit day.

As some have estimated that the base cost to the chemical industry across the UK and the EU could be as much as £450m it would seem imperative that some certainty is provided sooner rather than later.

 

National Adaption Programme published

On 19 July Defra published ‘The National Adaption Programme and the Third Strategy for Climate Adaptation Reporting – Making the country resilient to a changing climate’. It is the second National Adaption Programme report and is premised on the first aim of the earlier 2013 report: “A society which makes timely, far-sighted and well-informed decisions to address the risks and opportunities posed by a changing climate.”

The report responds to the second Climate Change Risk Assessment (CCRA – available here) and forms part of the five-yearly cycle set down by the Climate Change Act 2008. Key actions are to address:

  • Flooding and coastal change risks to communities, businesses and infrastructure;
  • Risks to health, well-being and productivity from high temperatures (as anyone who has had the misfortune to be working through the recent heatwave can attest, this is a real issue already!);
  • Risks of shortages in the public water supply for agriculture, energy generation and industry;
  • Risks to natural capital including terrestrial, coastal, marine and freshwater ecosystems, soils and biodiversity;
  • Risks to domestic and international food production and trade; and
  • New and emerging pests and diseases and invasive non-native species affecting people, plants and animals.

The CCRA identified that the first two areas (flooding and risks to health) carry a high-risk magnitude over the next five years with more action needed, whilst areas three to five are at medium to high risk over the same period with more action needed. It highlighted the final area as a ‘research priority’ with a risk magnitude of medium to high. The National Adaption Programme report draws heavily on the Government’s 25 Year Environment Plan in addressing how it will meet the challenges identified.

Keep your eyes peeled for the revised set of UK climate projections (replacing the 2009 set), which are due later this year and may impact upon these plans.

The full report may be read here.

Weekly Environmental Law News Update

In this latest Environmental Law News Update, Stephen Hockman QC. Mark Davies and Angelica Rokad consider the implications for climate change and energy law following the publication of the Brexit White Paper, the publication of a list of enforcement undertakings and a ‘Definition of Waste Services’ from the Environment Agency.

 

Energy and Climate Change Law: What Happens After Brexit?

In the field of energy and climate change policy, legal and commercial relationships between the UK and the EU are underpinned by a complex web of legal rules, some of which are binding on Member States, including the UK, for as long as it remains in the EU – these being essentially EU Directives – and some of which are directly applicable within Member States – such as EU Regulations. Key pieces of EU legislation that affect energy and climate change policy in the UK include, for example, the EU Emissions Trading System Directive (Directive 2003/87/EC), which ensures a price is placed on carbon emissions in the industrial, power and aviation sectors, and the Effort-Sharing Regulation (Regulation (EU) 2018/842), which provides legally binding decarbonisation targets for Member States between 2021 and 2030 for emissions not covered by the EU ETS.

As everyone knows, last week the Government published its long-awaited White Paper on “The Future Relationship Between the United Kingdom and The European Union” (CM9593). This White Paper provides a useful opportunity to review the legal position as regards energy and climate change law, which, in summary, can be set out as follows.

On the EU ETS, the Minister for Energy and Climate Change (Claire Perry) has stated that the UK would like to remain in the EU ETS until the end of 2020 (the end of Phase III of the 2020). The key question is whether the UK will remain in the EU ETS in Phase IV of the EU ETS (2021 – 2030). On this, the Government has not expressed a public preference and continues to explore all options for the continued decarbonisation of the ‘traded sector’ (those sectors covered by the EU ETS). These options would include a domestic carbon pricing solution (such as a domestic ETS or carbon tax) or remaining in the EU ETS. A domestic ETS could be designed to link with other ETS’ (including the EU ETS).

Significantly, in relation to climate change, the Government, in its White Paper, gives no specific indication as to whether or how the Government intends to progress matters. The White Paper states only that:

The UK’s world leading climate ambitions are set out in domestic law and are more stretching than those that arise from its current obligations under EU law. The UK will maintain these high standards after withdrawal.

As regards energy law, the Government’s position appears to be that it would like the present position to continue, so far as possible. It is seeking broad energy cooperation with the EU. These sentiments appear to recognise that much of the UK’s energy supply depends upon the EU, and therefore upon the legal matrix which is inherent in EU membership. The White Paper acknowledges that a common rule book with regard to electricity trading may be necessary, just as with regard to trading in other commodities; however, it is stated that the UK does not believe that there will be a need for a common rulebook on wider environmental and climate change rules. It is said that the UK is putting in place arrangements to ensure certainty for business when trading after exit; given the amount of work which it seems is still necessary in this area, it is hard to see on what basis the Government can be confident of achieving this objective.

In any event, there are also wider uncertainties.

Firstly, the Government conceded, following the Miller decision in the UK Supreme Court, that not only would Parliament have to legislate for the issue of an Article 50 notice, but that Parliament would, in due course, have to legislate specifically for our withdrawal from the EU. If that does not happen, then, as a matter of domestic law, we cannot leave. The EU Withdrawal Act, recently enacted after lengthy debate in both Houses, is not intended to, and does not, legitimise our withdrawal – it merely deals with the legal consequences of withdrawal, as and when this occurs (as to which, see below). It is still intended that Parliament enact a further piece of legislation, probably to be known as the EU Withdrawal Agreement Bill. This Bill will contain, and allow Parliament to approve, the terms of the Withdrawal Agreement, as and when known, and will legitimise our withdrawal. It is of course the current intention that this Bill will be enacted before 29th March 2019 when withdrawal is due to take place, however, an additional feature of this Bill will presumably be to provide for the so-called “transitional period” up to the end of 2020, for which, as yet, no legal provision has been made, but which is expected to be covered by the Withdrawal Agreement.

It follows from the above that certain key questions remain to be answered in relation to energy and climate change law, which are in large part questions which apply to our departure generally from the EU, and they are questions which remain of intense political controversy. The only area in which there has been, at least to some extent, a reasonably settled landing, is in relation to the EU Withdrawal Act, which is intended to ensure that EU legislation, such as an EU Regulation, which operates directly within the UK, should continue to form part of domestic law on and after exit day (see section 3), and also that subordinate legislation made under the European Communities Act 1972 should continue in force (see section 2). An important area for clarification, however, is the extent to which these provisions, by themselves, will be sufficient to underpin the UK’s continuing rights and obligations with regard to the supply of energy after our departure from the EU, at which point the mutual obligations between Member States will cease to apply.

The most notable international sets of rules with regard to cross border trade and investment in the energy sector are the Energy Charter Treaty (ECT) and the World Trade Organisation’s (WTO) trade rules. Currently, they gain their importance predominantly from regulating cross-border relations between the EU, and its Member States, and third countries. However, after the UK has left the EU, both legal regimes could see a significant rise in relevance with regard to the EU-UK relationship. It may be worth adding that currently the WTO system may be facing a crisis in its dispute resolution process, given the refusal of the US to consent to the appointment of new WTO Appellate Body members, and hence that the UK’s potential reliance on the WTO as a means for ensuring rules-based access to international trading opportunities outside membership of the EU could prove to be rather poorly timed.

 

Enforcement Undertakings and a First for Odour

The Environment Agency has published a list of the Enforcement Undertakings (“EUs”) accepted in the period between 1st February 2018 and 31st May 2018.

Water pollution continues to be a main concern. The largest offer is from Wessex Water Services Limited for a water discharge activity. The £200,000 reactive offer is broken down into: a £110,000 financial contribution to the Severn Estuary Partnership & Cardiff University; £50,000 to South Gloucestershire Council and £40,000 to the Farming & Wildlife Advisory Group, South West.

Second only to that is the offer made by another water company: Affinity Water Limited, for an amount of £110,000 related to an offence under section 4(1) of the Salmon & Freshwater Fisheries Act 1975.

It is difficult to compare either of these financial contributions with those previously accepted for similar offences. There is no further detail provided about the extent of harm caused or level of assessed culpability for any individual case. However, what is clear is that water pollution remains a key focus for the Environment Agency. This much is outlined in its recently published Report on Water and Sewerage Companies’ Environmental Performance (July 2018) which aims to rank the environmental performance of England’s nine major water utilities, across the fields of pollution, sewage management and permit compliance.

There was a small rise in the number of “Category 1” incidents, to 11, up from 9 in 2016. Conversely, there has been a slight reduction in the total number of pollution incidents in 2017 at 1,827, down from 1,902. Overall, the Report is clearly intended to send a strong warning to the industry, concluding that the sector as a whole is “not doing enough” to reduce serious pollution incidents and ensure compliance with discharge permits. It also warned that it is prepared to take “tough action” on any polluter – corporate or otherwise – who causes significant pollution and damage to the environment. The Report then singles out three water companies for their continued poor performance and lack of compliance with permit conditions.

The Environment Agency has also accepted, for the first time, an EU in respect of odour pollution; the Environment Agency has revealed that the financial contribution of £60,000 to a local environmental charity comes from Shanks Waste Management Limited (now trading as Renewi UK Services Limited) after a history of odour complaints. The offence allegedly related to a breach of permit requirements at the company’s site in Sowerby Woods which currently processes part of Cumbria’s municipal waste.

The full list of published EUs can be found here

The Report can be found here

 

Environment Agency’s ‘Definition of Waste Service’ back open for business

At the end of June the Environment Agency launched its Definition of Waste Service to complement the ‘IsItWaste’ tool. If the Definition of Waste Service sounds familiar, don’t be surprised, it should; the Environment Agency mothballed a previous incarnation of it back in October of 2016.

By way of recap, since 2014 those involved in the waste industry have been able to use the free ‘IsItWaste’ tool (between the hours of 7am and 7pm, Monday to Friday) to perform a self-assessment in order to determine whether their material is likely to be waste or not. The tool is based on Article 5 (‘by-products’) and Article 6 (‘end of waste’) of the Waste Framework Directive 2008/98/EC, and case law from England and Wales. Strictly speaking, insofar as the tool is an Environment Agency function, it is only for use in England.

Now, in addition to the self-assessment function the tool provides, there is also an option to submit a request to the Environment Agency’s Definition of Waste Service. Unlike the tool, the Service is not free, with an initial interim charge of £750 plus VAT payable upon submission, and work thereafter charged at £125 per hour plus VAT in accordance with a cost estimate provided.

Insofar as the Service will be applying tests derived from case law it can presumably be safely concluded that the questions asked will be those set out on the relevant Guidance page, namely whether:

  • “the waste has been converted into a distinct and marketable product, this means:
    • the waste has been turned into a completely new product, for example a playground surface is produced from waste tyres
    • the new product is different from the original waste (minor changes to its composition may not be sufficient), for example non packaging plastic recycled material is processed to make new plastic products
    • there is a genuine market for the material so it will definitely be used – if it’s stored indefinitely with little prospect for use the material remains waste
  • the processed substance can be used in exactly the same way as a non-waste
  • the processed substance can be stored and used with no worse environmental effects when compared to the material it is intended to replace.”

Given that the guidance page (here) already sets out the questions the Service will ask, it will be interesting to see what the uptake is like, particularly amongst small and medium sized operators who might see the charges as prohibitive. That said, the advantage of having a degree of certainty, particularly certainty from the regulator’s mouth, may prove to be money well spent.

Environmental Law News Update

In this latest Environmental Law News Update, Charles MorganWilliam Upton and Nicholas Ostrowski consider a graphic scenario of the impact of the sentencing guideline, a case dealing with liabilities surrounding a failure to control Japanese knotweed, and nuisance from barbecues.

 

Graphic illustration of impact of sentencing guideline

You are a Crown Court judge who is about to pass sentence in a case about the unauthorised discharge of sewage to a watercourse involving the following facts:

  • The Defendant is a ‘very large organisation’ with a notional turnover of £400m+.
  • There is significant culpability, possibly in the ‘reckless’ category.
  • There is serious harm, possibly deemed as ‘category 2’.
  • The offence involved spillage of raw sewage into a watercourse resulting in water quality levels “142 times” over an EU Directive for poor water quality.
  • An alarm sounded at 02:24 notifying the organisation of the potential breach but the field manager did not alert the duty manager until 08:00 and no one was sent to survey the site until 10:30.
  • As the judge you consider that the company’s response to the spillage was ‘inexcusable’ and that ‘One can only conclude that the attitude of those who dealt with this matter was one of extraordinary complacency on this occasion.’
  • The Defendant has several previous convictions for similar offences.

Under the sentencing guideline this would suggest a starting point of £250,000 with a potentially significant increase to account for the fact that this was a ‘very large’ organisation.

In fact, the defendant was fined £40,000. How is that possible?

The answer, it appears, is not that a Six Pump Court barrister exercised their customary powerful advocacy in mitigation but that the offence took place in the Moyola River in Northern Ireland where the sentencing guideline does not apply.

Although no official transcript of the judge’s sentencing remarks has been obtained, press reports of the proceedings herehere and here suggest that the Defendant, Northern Ireland Water stated that the valve in question was not closed due to an error of judgment and that the company (the state owned water company) has now conducted a number of remedial actions. While NI Water may have advanced powerful mitigation it is inconceivable that, when applying the sentencing guideline, a similar offence involving a similarly sized Defendant in England and Wales would have resulted in a fine of anything like £40,000. Will there be calls for an environmental sentencing guideline in Northern Ireland?

 

Knotweed: Court of Appeal unravels the issues (or ties itself in knots?)

In Network Rail Infrastructure Ltd. v Williams and Waistell [2018] EWCA Civ 1514 the Court of Appeal grappled with the question of what kinds of damage give rise to an actionable claim in the tort of private nuisance. To do the case justice would require a long discourse (no doubt already somewhere in course of preparation). A lesser one follows.

The case concerned two neighbouring properties which had been affected (to use a neutral word) by the presence of highly invasive Japanese knotweed on Network Rail’s adjacent land. In the light of an RICS paper, the potential dangers from knotweed invasion have become so well-known and highly-feared that lenders will not lend if it is within seven metres of a property offered as security, even after treatment of that property to eradicate its presence on-site.

The first instance judge held that both properties had been the subject of actual encroachment by knotweed but neither had suffered any physical damage and there was thus no actionable nuisance in that respect. Each was nevertheless permanently devalued in the market by the resulting stigma from the continuing presence of nearby knotweed, which was actionable. He awarded damages to each claimant representing the cost of eradication and a guarantee, general damages for loss of amenity prior to treatment and ‘blight’, and a further sum for residual diminution in value. He refused to grant an injunction requiring network Rail to eradicate the knotweed. Network Rail appealed. The Court of Appeal upheld the judge’s decision, but for different reasons.

The Master of the Rolls Sir Terence Etherton (with whom the other two judges agreed) took the opportunity to seek to restate the general principles of nuisance in a modern form. The fundamental principle is that nuisance is a tort against property not people. Sir Terence doubted whether it was correct to say that damage was always an essential ingredient of the tort and considered that at the least the concept of ‘damage’ in that context was a highly elastic and artificial one. He considered whether any relevant distinction was to be drawn between nuisance by interference with enjoyment/amenity and other types of nuisance (by encroachment or direct physical injury). It is well-established that in the case of the first type, no physical damage to the affected property need be shown.

Sir Terence concluded that it was no function of the law of nuisance to protect a property against fall in market value. Its purpose was to protect owners against loss of use and enjoyment. A property’s amenity did not include its financial value. To hold otherwise would result in nuisance being extended to claims for pure economic loss. Nevertheless, the circumstances gave rise to liability on the Leakey principle, sufficient damage (if any were necessary at all) being constituted by “the diminished ability of the claimants to use and enjoy the amenity of their properties”. This gives a wide meaning to the concept of ‘amenity’, the relevant loss being it seems the immediate need to do something about the actual encroachment.

The Court also made some interesting observations on the availability of injunctions in cases of apprehended nuisance to prevent imminent damage or damages in lieu, in circumstances where actual damage is absent. Sir Terence considered that “what matters is the probability and likely gravity of damage rather than simply its imminence”. Given the recent indication by the Supreme Court in Coventry v Lawrence that courts should be more ready to award damages in lieu, this may indeed be a route to reconciling the principles in a manner enabling recovery in similar cases, if the concept of damages in lieu can be extended to reflect residual diminution in value due to stigma.

This decision really does rather raise more questions than it answers and those can only be authoritatively explored and answered by the Supreme Court. Such exploration might usefully include the relationship between ‘damage’ as a constituent of a cause of action in nuisance and ‘remoteness of damage’ as a principle for determining the measure of damages (including the exclusion of pure economic loss) once a cause of action is established. There is in such cases (as in other areas of tort) something of a Gordian knot to be cut in order to unravel the concepts of duty and recoverable losses for breach of duty.

 

Nuisance from barbecues

Barbecues can be a fun way to attempt some outdoor cooking. We can recommend our Australian-trained, in-house barbecue expert, Mark Beard, for some top cooking tips. But we still have to hope our guests are patient, and that our neighbours forgive the smoke and smells. The recent settlement in the statutory nuisance claim brought by Highbury Fields residents in Highbury Magistrates’ Court over barbecuing in the Fields illustrates what can happen when it gets out of hand. [see news item] The adverse impact on air quality was measured, but remained a contentious point. The nuisance issue was much clearer. The allegation was that it unreasonably interfered with the comfort and convenience of the neighbouring houses. So, if you do get tempted, please enjoy some responsible barbecuing in this heatwave.

 

Friday 13th July – Regulatory Law Conference 2018 (Birmingham)

Six Pump Court is very pleased to be hosting its Regulatory Law Conference 2018 which will take place in Birmingham on 13th July. The event will cover a variety of topics providing essential updates on specialist areas, informative discussion on topical issues and practical tips for those acting in regulatory matters. Click here for more information and to book last few remaining places.

 

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Environmental Law News Update

In this latest Environmental Law News Update, David Hercock, Natasha Hausdorff and Mark Davies consider a Court of Appeal ruling on the meaning of the term “recovery”, a report from the Climate Change Committee advocating legally binding targets on greenhouse gas emissions, and a decision from the Information Commissioner on disclosure and damage to legitimate economic interests.

 

Court of Appeal ruling on the meaning of the term “recovery”

Neal Soil Suppliers Limited & Others v Natural Resources Wales Ltd [2017] EWCA Crim 645 involved an appeal arising from a Crown Court ruling in the course of a preparatory hearing in relation to the meaning of the term “recovery”.

The Appellant held an environmental permit enabling it to accept and treat waste soil and aggregate so as to produce useable and saleable soil and aggregate at a site which is within the Gwent Levels, a Site of Special Scientific Interest. The permit authorised the Appellant to store waste soil on the site for a maximum of three years “prior to recovery”. The principal issue essentially concerned the meaning of the term “recovery” in the Waste Framework Directive, and in particular the meaning of the phrase “prior to recovery” in the environmental permit.

The Appellant argued that once material had been subjected to a recovery operation (such as sorting the waste into its component parts) then the recovery process must be taken to have been commenced, and it could no longer be said that the waste was being stored “prior to recovery”. Natural Resources Wales (“NRW”) contended that it is the state of affairs which results from the outcome of recovery operations which is described by the term “recovery”. On that basis, it submitted that the words “prior to recovery” in the permit were to be read as referring to the whole period prior to the achievement of the result whereby the material is recovered.

The Court of Appeal, whilst not committing themselves definitively to the Appellant’s proposition, gave the Appellant’s approach a green light for the purposes of the case. The Court of Appeal observed that the definition of “recovery” in the Directive does not proceed by reference to a result. On the contrary it describes “recovery” as meaning “any operation” which operation is then defined by reference to the result achieved.

On a slightly more straightforward point, the Court also confirmed that terminology in an environmental permit must be construed consistently with the Directive, and that an enforcement notice issued under the environmental permitting regime must itself be interpreted in conformity with the terms of the underlying environmental permit.

In the light of this ruling, NRW conceded that it could not, for the purposes of the prosecution, establish (as they had to do) that the waste in question had been stored for a period in excess of three years prior to recovery. The prosecution on that charge therefore could not proceed.

Stephen Hockman QC and David Hercock appeared for the successful Appellant, instructed by Dolmans of Cardiff.

 

Committee on Climate Change urges Government to set new policies on reducing greenhouse gas emissions

The Committee on Climate Change published on 28 June 2018 its 2018 Progress Report to Parliament on reducing carbon emissions, marking ten years since the Climate Change Act came into force. The report emphasises that failure to act now would entail unnecessary expense for a future shift to a low-carbon economy.

Overall, UK emissions are down 43% compared to the 1990 baseline while the economy has grown significantly over the same period and in the last ten years there has been a rapid reduction in emissions in the electricity sector in the UK. Nevertheless, the report highlights a “marked failure to decarbonise other sectors, including transport, agriculture and buildings”. As a result, the Committee warns that the UK is not on course to meet the fourth (2023-2027) or fifth (2028-2032) carbon budgets.

In this vein the report sets out four key messages to Government:

1- ‘The simple, low-cost options’. The report notes that these options to reduce emissions are not being supported by Government and this penalises the consumer. In particular withdrawal of incentives has cut home insulation installations to 5% of their 2012 level and there is no route to market for cheap onshore wind.

2- ‘Commit to effective regulation and strict enforcement’. The committee notes that more robust standards operating in the long term for construction and vehicle emissions can positively effect consumer demand, innovation, and cost reduction. A long-term strategy for regulation also reduces the overall economic costs of compliance and value for the consumer.

3- ‘End the chopping and changing of policy’. Programs such as Zero Carbon Homes and the Carbon Capture and Storage (CCS) Commercialisation Programme have been cancelled at short notice, generating uncertainty. The report emphasises that a consistent policy environment keeps investor risk low, reduces the cost of capital, provides clear signals to the consumer and gives businesses the confidence to build UK-based supply chains.

4- ‘Act now to keep long-term options open’. The report notes the need for a new national infrastructure. The deeper emissions reductions implied by the Paris Agreement make these developments even more important. The key message is that technologies should be pulled through now in anticipation of the 2050 systems for carbon capture, zero-carbon transport, hydrogen or electrification of heat, to bring down costs and to support the growth of the low-carbon goods and services sector

The Committee Chairman, Lord Deben, said of the report: “We welcomed the Government’s commitment in the Clean Growth Strategy to put green growth at the heart of its economic policy … We now have to ensure that the Government learns from this experience and presents a programme to tackle emissions right across the economy … This action is now urgent in order to meet the UK’s legally-binding climate change targets, and to prepare to fulfil the obligations of the Paris Agreement.

 

Information Commissioner decision on disclosure and damage to legitimate economic interests

On 7 June 2018 the Information Commissioner’s Office (“ICO”) handed down its decision in a complaint relating to alleged failings to disclose by Gloucestershire County Council (“the Council”) under the Environmental Information Regulations 2004 (“the EIR Regulations”).

The complainant had requested information relating to Council’s agreement with Urbaser Balfour Beaty (“UBB”) to develop and run an Energy from Waste (“EfW”) plant in the county. The Council complied with most of the disclosure request but redacted elements of an Ernst & Young LLP report dealing with “value for money and affordability analysis,” citing Regulation 12(5)(e) – confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest – as the reason.

The Information Tribunal had already ruled on the disclosure of an earlier version of the Ernst & Young report and had directed that the predecessor schedule in that report be disclosed.

In the course of the decision the ICO has provided a useful exposition of the principles to be considered in determining whether Regulation 12(5)(e) applies:

  • Is the information commercial or industrial in nature?
  • Is the information subject to confidentiality provided by law?
  • Is that confidentiality provided to protect a legitimate economic interest?
  • Would the confidentiality be adversely affected by disclosure?

The ICO found the first three elements proved (indeed noting that disclosure would ‘consequently harm the legitimate economic interest of the Council and UBB’) and so went on to consider whether in all the circumstances of the case the public interest in upholding the exception outweighed the public interest in disclosure of the requested information.

Having taken into account the presumption in favour of disclosure required by Regulation 12(2) the ICO found that:

• Disclosure of the redacted information would add to the understanding of the report, which was itself to assess whether the Council were obtaining value for money.
• It would be extremely difficult for the public to understand the financial decision in choosing EfW without the specific figures such as estimates used for the sale of the electricity generated. Here the Commissioner noted that EfW plants are a controversial solution to Gloucestershire’s waste problems.
• Some of the redacted information, such as interest rates, debt rates and operating costs of UBB did not relate to the value for money question but rather solely to UBB’s commercial sensitivities.

On the basis of those findings the Commissioner ordered the disclosure of the material sought aside from that identified in the final bullet point.

The ruling is a useful reminder of the principles to be applied when seeking to rely upon the commercial confidentiality exception and would support the conclusion that the public interest in assessing the decisions of public bodies will often outweigh any commercial sensitivities at play.

The full decision may be read here.

 

Have you seen our International Climate Change Blog
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