Environmental Law Podcast – September 2018

The latest monthly environmental law news podcast presented by Christopher Badger, in association with LexisPSL, is now available.

This short update focuses on September’s key legal developments, which this month include a landmark Court of Appeal case on litigation in SFO v Eurasian National Resources Corporate, priority of environmental obligations in insolvency in Re Doonin Plant Hire Ltd (in liquidation) and the extension of the single-use plastic bag charge in England.

Please find September’s podcast below:-


Environmental Law News Update

In this latest Environmental Law News Update, William Upton, Christopher Badger and Nicholas Ostrowski consider the ‘Agent of Change’ concept as contained in the new NPPF, a report by ClientEarth that alleges that four more companies have failed to properly report on climate change risks and the release of further ‘no deal’ Brexit technical notices by the UK government.


Are you affected by an “Agent of Change”?

In amongst the revisions to planning policy introduced in the new NPPF in July 2018 the government has accepted the inclusion of the ‘Agent of Change’ concept. It has the capacity to generate considerable legal uncertainty.

On its face, it has satisfied the demands of the live music venue campaigners worried about the threat posed by new housing near existing pubs and clubs (such as new flats granted permission next to the Koko Club in Camden, the subject of the successful High Court challenge in 2015). The NPPF2 tells us that these venues should not have “unreasonable restrictions placed on them as a result of development permitted after they were established”. Any applicant for new development that could have a significant adverse effect on them “should be required to provide suitable mitigation before the development has been completed” (para 182).

That may be fine for nightclubs, but the wording in the NPPF2 is much more wide-ranging. The policy language refers to all “existing businesses and community facilities”. It gives a non-exhaustive list of examples “such as” places of worship, pubs, music venues and sports clubs. The airport industry lobbied hard through the consultation process to be named in this list, and may continue to push their claim to be covered. The definition could also arguably cover any ‘bad neighbour’ development.

The implications of this may not be limited to the planning regime. Writing as a lawyer, it may be easy to say that a change to planning policy should not change the fundamentals of nuisance law; but it may not be long before someone tries to use this concept far more broadly.

[P.S. If you are wondering about the source of the phrase ‘Agent of Change’, you are not the only one. The music venue campaign used it, but it is not a phrase used by UK planners or planning lawyers. There is some trace of it in Australian nuisance law. All contributions to this etymological research are very welcome.]


ClientEarth reports four more companies for failing to properly address climate change risks

ClientEarth has reported EasyJet, Balfour Beatty, EnQuest and Bodycote to the Financial Reporting Council over failures to address climate change trends and risks in their corporate reports to shareholders.

The NGO acknowledges that the companies do identify greenhouse gas emissions and their efforts to reduce them, but alleges that none of the four companies clearly confronts the risks or trends that climate change or the low carbon transition present to their business.

ClientEarth also identified that none of the companies auditors, PwC, KPMG, EY and Deloitte respectively, failed to signal any problems with the reports. ClientEarth has sent letters to the Big Four, asking them to explain their approach to these issues.

The goal for ClientEarth is for the FRC to clearly state that the companies have failed to report material climate-related risks and for the companies to be required to correct their reporting accordingly. The NGO takes the view that shareholders are not being provided with the necessary information on risks to the businesses caused by climate change and the energy transition.

This action falls hot on the heels of ClientEarth reporting three insurance companies, including Admiral, to the Financial Conduct Authority for failing to disclose climate risks in their annual reports.

ClientEarth’s press release can be found here


Government releases further ‘no deal’ Brexit technical notices

As part of the Government’s ongoing process of preparing for a potential ‘no deal’ Brexit outcome, last week four technical notices dealing with the environment were released by the Department for the Environment, Food and Rural Affairs and the Department for Transport.

These technical notices cover the upholding of environmental standards, industrial emissions standards (determining ‘best available techniques’), using and trading ozone depleting substances and reporting CO2 emissions for new cars and vans.

Although described as technical notices, in reality these documents are still pitched at a relatively high level and leave significant unanswered questions about the detail of a ‘no deal’ Brexit.

The Notice dealing with the upholding of environmental standards in the event of a no deal Brexit is just over 1100 words long and principally confirms that due to the operation of the EU Withdrawal Act 2018 all existing EU environmental law will continue to operate in UK law. The Notice goes on to state that the government ‘will amend current legislation to correct references to EU legislation, transfer powers from EU institutions to domestic institutions and ensure we meet international agreement obligations’ and that the legislative framework will then be changed to leave the natural environment in a better state than we inherited it. This is, on any estimation, a significant legislative undertaking but little detail is given about how and when this will occur and the Note suggests that much of that detail (about, for instance, the regulation of obligations in the absence of the EU Commission) will be fleshed out in the Environment Bill 2018.

The other technical notices are similarly pitched in terms of detail. For instance, with regard to industrial emissions standards and determining ‘best available techniques’, the government confirms that secondary legislation will be passed to ensure that existing Best Available Technique Conclusions continue to have effect in UK law after we leave the EU. However, the Note gives little tangible guidance on how the UK will determine future Best Available Techniques Conclusions once we have left the EU, other than that ‘the UK Government will put in place a process for determining future UK Best Available Technique Conclusions’.

There is little suggestion in the Note for the using and trading of ozone depleting substances that the government wishes to depart from the current EU system (which establishes a stepped reduction in the use of such gases until 2030) but it is suggested that the Environment Agency will be required to establish and administer a new IT system to track and report on the use of these chemicals.

As to the reporting of CO2 emissions for new cars and vans, given the interconnectedness of the automobile industry there is unsurprisingly little suggestion that the overall regulatory scheme would change but the Department for Transport suggests that the existing EU Regulations would be transposed into domestic law through a statutory instrument which would additionally correct a number of deficiencies. However, similarly to other Notes, we are told that ‘detail on the arrangements to maintain current environmental protections would be subject to stakeholder engagement and Parliamentary approval.’

In summary then, while these are a helpful set of papers they do no more than set out an outline of how the government sees a no-deal Brexit unfolding. Huge amounts of Parliamentary and stakeholder time will be required to effect the proposed changes and the needs of the environment will, of course, be competing with all the other government departments which will also need to develop their own alternative legislative frameworks.


To keep up-to-date click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Gordon WignallWilliam Upton and Nicholas Ostrowski consider a landmark case on litigation privilege, the opening up of the EU Commission’s pre-legislative file, a set of principles for future collaboration between stakeholders within the water industry, and the revised NPPF.


Landmark case on litigation privilege

In Serious Fraud Office v Eurasian National Resources Corporation Ltd [2018] EWCA Civ 2006 the Court of Appeal overturned the High Court decision in Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 (QB), holding that documents produced during an internal investigation are protected by litigation privilege.

The background to the High Court case was set out in the blog here and is not repeated, suffice to say that Andrews J held that notes made by ENRC’s former solicitors of interviews with ENRC’s current and former employees conducted as part of an internal investigation into allegations of corruption were not protected by litigation privilege and should be disclosed to the SFO. Fundamentally, Andrews J found that an SFO investigation (as opposed to a criminal prosecution) does not constitute adversarial litigation for the purpose of litigation privilege and that as the internal investigation conducted by ENRC’s former solicitors was to find out if there was any truth in a whistleblower’s allegations, they did not engage litigation privilege.

In the Court of Appeal a heavyweight bench (Lord Justices Leveson, Vos and McCombe) found that criminal proceedings against ENRC were reasonably in contemplation when it initiated its investigations noting that [93]:

the whole subtext of the relationship between ENRC and the SFO was the possibility, if not the likelihood, of prosecution if the self-reporting process did not result in a civil settlement.’

Significantly, even if at the time it starts its own inquiry, a company cannot be said to be under formal investigation, that does not prevent it from asserting litigation privilege over the documents prepared in its internal investigation [100]:

Andrews J was not right to suggest a general principle that litigation privilege cannot attach until either a defendant knows the full details of what is likely to be unearthed or a decision to prosecute has been taken. The fact that a formal investigation has not commenced will be one part of the factual matrix, but will not necessarily be determinative.’

The Court of Appeal then went on to find (at [102] to [119]) that the disputed documents were brought into existence for the dominant purpose of avoiding or resisting criminal proceedings and thus litigation privilege was engaged. The Court of Appeal confirmed the continuing importance of the House of Lords regulatory case of Waugh v British Railways Board [1980] AC 520 which revolved around a report prepared by the British Railways Board into a fatal railway accident. In a passage that is particularly helpful to companies considering the appropriate response to an allegation of regulatory non-compliance the Court of Appeal held that [116]:

It is, however, obviously in the public interest that companies should be prepared to investigate allegations from whistle blowers or investigative journalists, prior to going to a prosecutor such as the SFO, without losing the benefit of legal professional privilege for the work product and consequences of their investigation. Were they to do so, the temptation might well be not to investigate at all, for fear of being forced to reveal what had been uncovered whatever might be agreed (or not agreed) with a prosecuting authority.

The judgment goes on to consider the law in relation to legal advice privilege which is outside the scope of this note.

The importance of this decision for any corporate entity considering an investigation into regulatory non-compliance is clear. As a starting point lawyers advising a company in such a situation should identify if adversarial proceedings with the regulator are reasonably contemplated and, if so, can advise their client that investigations can be conducted without fear that the regulator will later be able to demand the lawyers’ entire work on the investigation.


Access to the EU Commission’s pre-legislative file

ClientEarth has succeeded in using a combination of the EU’s and Aarhus principles as to openness in order to obtain pre-legislative files which the Commission held whilst deliberating as to what legislative steps to agree with Member States.

The files in question concerned (a) a draft impact assessment report relating to access to justice at Member State level (and an opinion of the Impact Assessment Board) and (b) proposals for a strategic framework for inspections and surveillance in environmental matters.

The key tools of battle were to be found in TEU Art.17 (the EU’s own legislative process) and Regulations 1049/2001 and 1367/2006 (which concern requests for environmental information and exceptions) and the Aarhus Convention.

The Commission argued that the process of producing a legislative outcome would be hindered if access were to be granted, and what is more, that it would have to start adding NGOs to its list of communicants during the early stages of legislative drafting. Disclosure would result in the requirement for multiple dialogues with interested parties. ClientEarth argued that this was all in accordance with the transparency promised by EU instruments.

The ECJ (case C-57/16) sided with ClientEarth (supported by Finland and Sweden), against the General Court. The Court decided that the Commission would have to make itself more open to ordinary citizens as well as to NGOs; this was the way to ensure the level playing field, the absence of which, the Commission had hinted, would itself be unfair.

Of more interest than the final result, was the argument presented by the Commission as to “general presumptions”. The Commission argued that there was a legal principle that it did not have to examine particular documents, but that the type of information sought was covered by a general presumption which meant that the class of documents requested should not be disclosed.

In response to this, the ECJ identified five limited categories of documents in respect of which there was a “general presumption of confidentiality” (para.81). These all concerned procedures that might result in sanctions (whether concerning State Aid, infringement, mergers, or EU court proceedings and related administrative or judicial proceedings). The attempt on the part of the Commission to establish a wider general presumption was brought to a close (or perhaps we should just say that it was “interrupted”).


Blue sky thinking for bluer waters

Blueprint for Water is a coalition of 18 third sector organisations sharing an interest in the English aqueous environment, the quality of which is greatly dependent upon the responsible conduct by the water and sewerage undertakers of their business activities. For many years Blueprint and its members have worked in collaboration (and from time to time in adversarial combat) with the water industry. In anticipation of the PR19 round of quinquennial price review Blueprint for Water and the undertakers have reached agreement upon a set of ‘shared principles’ for future work together. This follows close on the heels of the companies’ 2020-2025 business plans and Water UK’s ‘Manifesto for Water’, on which we commented last week (see here). The principles are, in summary:

  • collaboration in policy and planning, based on a joint recognition of the importance of the catchment-based approach (as enshrined in the Water Framework Directive)
  • joint recognition of respective roles as environmental stewards
  • joint work to support the principles of and to deliver the obligations in the Water Framework Directive and the effective implementation of current legislation
  • data-sharing, ‘making key datasets openly available’
  • joint recognition of the importance of maintaining services to customers and protecting the environment.

This is a laudable formal acknowledgement of the desirability of future co-operation rather than antagonism between those who in modern parlance are all ‘partners’ or ‘stakeholders’ in the management of the water environment. It strongly reflects the existing legal order, including the requirements of the Water Framework Directive and the Aarhus Convention and the outcome of the Shirley/Fish Legal litigation over environmental information (and the agreement is careful enough to qualify the data-sharing principle with the footnote “noting some data may be commercially or otherwise sensitive”). It is highly unlikely that it creates (or was ever intended to create) any new or enhanced legal relationship, save possibly in the realms of the doctrine of legitimate expectation. Of note is the express reference, in the context of the implementation of current legislation, to the European Union (Withdrawal) Act 2018 and its statutory introduction in section 16 of the precautionary principle (that principle’s first outing in primary legislation).

Blueprint for PR19 – Shared Principles for Collaboration can be found here.


The revised NPPF

The required summer reading for the planning professions has been the replacement National Planning Policy Framework (NPPF, 24 July 2018). Whilst the document is a revision, rather than a rewrite, it will repay careful reading. It is not just that there is an even greater emphasis on increasing the delivery of new housing, but also that the paragraphs have all been re-ordered and there are plenty of changes to the policy wording and footnotes.

For instance, the so-called ‘Presumption in favour of Sustainable Development” remains, and the ‘tilted balance’ in favour of granting permission where development plan policies are out of date will continue to apply. But it is now numbered as para 11 rather than para 14, and we will have to grapple with defining what is or is not “clear reason” for concluding that permission should be refused to protect an asset of particular importance, as opposed to what may be a “strong reason” for having a particular policy that prevents providing for the full needs of an area. Footnote 7 now states that policies can be ‘out of date’ not just because of a lack of a 5-year housing land supply but also if the planning authority fails the annual Housing Delivery Test. Apparently, it is indeed going to be their fault if the private developers are not building what they said they would build. It is also the case that whilst Design and the creation of high quality buildings and places has been given a greater emphasis in Chapter 12, this comes at the same time as emphasis is placed in Chapter 11 on significantly increasing densities and relaxing the daylight and sunlight rules. Quite how one elegantly squares that circle remains to be seen.

There will therefore be much to discuss, and digest. One additional nugget that may also cause considerable controversy is the inclusion of the ‘Agent of Change’ (whoever he or she may be) in para 182. On its face, it was included to deal with the problem of building housing near live music venues (such as the Koko Club in Camden) but it is much more widely-worded. We will come back to this and other points in next week’s blog.


To keep up-to-date click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk


Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Mark Davies consider the question of environmental obligations in insolvency cases, the extension of the single-use plastic bag charge in England and a vision for the future as set out by the water industry.


Priority of environmental obligations in insolvency: definitely not the last word

In Re Doonin Plant Hire Ltd (in liquidation) [2018] CSOH 89 the Scottish Outer House of the Court of Session (Lord Doherty) had to consider where liabilities under s.59 of the Environmental Protection Act 1990 ranked in priority on the liquidation of an occupier of land upon which waste had been unlawfully deposited. This is the first consideration of that question in either Scotland or England.

The courts of the two countries had already chosen to differ upon the approach to the treatment of environmental liabilities within the insolvency régime, even though both were interpreting essentially similar legislation (their respective versions of the Environmental Protection Act 1990 and the Insolvency Act 1996 and rules thereunder). In England, in the case of Re Celtic Extraction Ltd [2001] Ch 475 the Court of Appeal had held that a waste management licence was ‘property’ which was capable of being disclaimed by a liquidator if viewed as onerous in nature. This was founded upon the deep-rooted pari passu principle i.e. that the property of insolvents should be divided equally amongst their unsecured creditors, which was later strongly reaffirmed by the Supreme Court in Re Nortel GmbH [2013] UKSC 52; [2014] AC 209 (a case not concerning environmental liabilities, in which indeed its effect upon them was ignored in the judgments though raised in argument). In Scotland, in the case of Scottish Environmental Protection Agency v Joint Liquidators of the Scottish Coal Co Ltd 2014 SLT 259 the Second Division nevertheless held that a company’s environmental obligations under licences to discharge trade effluent could not be avoided by abandonment (there being no positive right of disclaimer of onerous property in Scots law), the effect of which would have been to vest the land in the Crown as bona vacantia. The court held that the company’s environmental obligations would be treated as liquidation expenses (and thus rank ahead of its debts). It regarded the pari passu principle as much “attenuated” anyway and in effect ‘trumped’ by the principles of environmental protection to be gleaned from the Scottish regulations and the Water Framework Directive which they implemented.

In the Doonin case, Lord Doherty held firstly that the potential liability under section 59(6) to meet SEPA’s own costs of removal was not a contingent debt, given that SEPA had a clear policy that it would not exercise its power of removal (having no funds to do so). More importantly, he held that expenditure in discharging the obligations arising under two notices served under section 59(1) (one pre-liquidation and the other post-liquidation) requiring the removal of waste would be a liquidation expense, in view of “the nature of the liability imposed by a section 59(1) notice through the prism of the directive which Part II of the EPA was intended to implement” (i.e. the Waste Framework Directive), thus following the decision in Scottish Coal. “Otherwise it is very likely that polluters who become insolvent would frequently escape paying for the damage to the environment which their conduct has caused.” He considered the continuing liability of the company in liquidation to be mandated by the ‘polluter pays’ principle, a result which he considered could be arrived at legitimately as a matter of statutory construction rather than (potentially illegitimately) by the application of some wider perceived policy of maximising environmental protection (although he felt that such an approach might equally well “have carried the day”): He thus concluded that: “ … the exercise upon which I am engaged does not involve weighing the relative importance of protection of the environment on the one hand and the expeditious and equal distribution of available assets on the other. The exercise involves the proper characterisation of section 59(1) notice liabilities in an insolvency.”

Lord Doherty also held that such liquidation expenses would rank behind the liquidators’ remuneration, so liquidators need not fear accepting appointments in respect of companies subject to environmental obligations.

In reaching his primary conclusion Lord Doherty expressly declined to follow the reasoning in Re Celtic, in particular Chadwick LJ’s proposition that: “There is nothing in the Directive to suggest that the ‘polluter pays’ principle is to be applied to cases where the polluter cannot pay so as to require that the unsecured creditors of the polluter should pay to the extent of the assets available for distribution among them.” In Lord Doherty’s view, the polluter would still be paying (albeit probably not in full). He thus essentially followed the approach in Scottish Coal.

This reflects an interesting but unfortunate dichotomy of approach. In many aspects of commercial law a difference between two jurisdictions is simply another interesting channel for cross-border practitioners to navigate. However environmental law is meant to embody general principles of environmental protection which should be consistently and coherently applied everywhere – and certainly across the internal borders of the UK. If the wider reasoning in the Celtic decision is adopted in a similar case in England and supremacy afforded to the pari passu principle then there would be clear practical consequences: a waste site blighted by insolvency of its owner would be significantly more likely to be cleaned up if it were situated in Eyemouth rather than in Berwick-upon-Tweed, 9 miles to the south. Conversely, unsecured creditors of the owner in Eyemouth would be far less likely to recover any dividend in such circumstances. The question is ripe for consideration by the Supreme Court. The Scottish approach is good for the environment, but relies upon a very strong application of the ‘polluter pays’ principle in order to reach the conclusion that unsecured creditors should in effect be treated as if they were themselves polluters in a way that the public generally was not, merely because they have elected to give credit to a waste company. Further, it might be said that the ‘polluter pays’ principle is in truth expressed at such a high degree of abstraction that its application by a court in any particular set of circumstances is indeed the very exercise in the weighing of factors which Lord Doherty disavowed as a potentially illegitimate judicial technique.

It will surely not be long before these issues arise before an English court.


Extension of the single-use plastic bag charge in England

Hot on the heels of the Government publishing the responses to the consultation, ‘Tackling the plastic problem’, DEFRA announced plans on 30 August to extend the single-use plastic bag charge to all retailers and to increase the minimum charge to 10p, subject to consultation.

The ban, introduced in 2015, has seen a drop of 86% in plastic bag sales in major supermarkets. That drop equates to a reduction from 140 bags per person to just 19 per person in 2016/17.

Under the current regulations, the 5p charge must be levied on all single use plastic bags sold in England by businesses with more than 250 employees. Extending it to all retailers would therefore mean having to remember to take a bag with you when you pop to the local convenience store for a pint of milk and the other bits and pieces you forgot to get with your weekly shop (which doesn’t sound too difficult). Admittedly that may not mean a change in behaviour for all of us with 42% of independent retailers reportedly having voluntarily introduced a charge on plastic bags in their stores.

Rather shamefully, if you are English, the plastic bag charge already applies to all businesses in Wales and Scotland. Given that the Future of the Sea report states that plastic in the ocean is projected to treble between 2015 and 2025, the revised and extended single-use plastic bag charge surely cannot come soon enough.

The announcement regarding the charge may be found here


Water companies set out vision for the future

On 3 September 2018 the water industry published a ‘Manifesto for Water’ at the same time as the respective water companies submitted their business plans for 2020-2025 to Ofwat for approval.

It is proposed that water companies will increase their level of investment by £6 billion or 13% compared to the current 5-year period, equating to more than £50 billion for 2020-25. It is proposed that efficiency improvements will be introduced in order to avoid the need to increase bills.

On leakage, the manifesto identifies that water companies are proposing to reduce leakage by 461 million litres every day over the 2020-25 period, more than a 16% reduction. We are told that this represents the most ambitious programme to fix leaks in 20 years.

Part of the difficulty is the sheer size of infrastructure operated by water companies. Severn Trent, in its business plan submitted for 2020-2025, identifies that its wastewater system consists of over 94,000km of sewers and drains, 4400 pumping stations and 1010 treatment works. Pressures that feed into the need to improve performance include climate change, population growth, European standards on water quality and customer expectations. Severn Trent’s approach appear to be to attempt to characterise the most significant problems in each of its particular catchments, before undertaking options development and appraisal in order to understand both current and future risks. This will lead to the development of a Drainage and Wastewater Management Plan.

Thames Water’s 2020-2025 plan aims to reduce network pollutions by 18% between 2020-2025 and achieve 100% treatment works compliance, spending £1.496 billion to run base operations and £1.142 billion in extra investment. The extra investment is broken down into a number of different areas, including £319 million on reducing pollutions and £157 million on ensuring treatment works comply with legislation. At the same time, the plan aims for a 15% reduction in leakage by 2025. According to the plan, Thames Water set its pollution target after consulting with its customers. The company reports that 70% of customers supported a target of between 24 and 26 pollutions per 10,000km per year. Thames Water has identified that it intends to go beyond this and target 23 pollutions per 10,000km by 2025.

It should be noted that the plans have only recently been submitted to Ofwat and have not been approved.

Water UK’s publication ‘Manifesto for Water’ can be found here
Severn Trent’s 2020-2025 plan can be found here
Thames Water’s 2020-2025 plan can be found here


We published August’s Environmental Law Podcast recently – a monthly round-up of the latest developments in environmental law.


Environmental Law News Update

In this latest Environmental Law News Update, Charles MorganMark Davies and Angelica Rokad consider the Government’s response to a consultation on plastic waste, a new consultation on cleaner domestic burning of solid fuels and wood, and further thoughts on the definition of waste.


Government publishes responses to plastic waste call for evidence

HM Treasury has revealed that its call for evidence on how the tax system could be used to reduce single-use plastic waste has received strong public support. The consultation, entitled “Tackling the plastic problem”, ran from 13 March to 18 May this year and attracted 162,000 responses – the largest ever to a call for evidence in the Treasury’s history.

The Chancellor of the Exchequer, Phillip Hammond, launched the consultation following the Spring Statement in March this year. During the Statement, the Chancellor also announced a £20 million plastic innovation fund to help businesses, organisations and universities develop alternatives to the material, with half of that funding to go to business-led research.

The Consultation asked respondents a range of questions, including their opinion on the definition of “single-use” plastics, the most important problems associated with them and what the alternatives were.

The responses revealed particular support for using the tax system to encourage greater use of recycled plastic in manufacturing, rather than new plastic, and discourage the use of plastics which were difficult to recycle (for example, carbon black plastics). There was also strong support to reduce the demand for commonly littered single-use plastic items (for example, coffee cups) and encourage further recycling, as opposed to incineration.

Now with the responses received, the Government will consider implementing complimentary policies, with further input from industry and other stakeholders. One policy which the Government has committed to explore further is a tax on commonly used “on-the-go” plastic items – most notably, coffee cups by way of a “Latte Levy”.

The summary of the call for evidence also revealed that the Government will publish a new strategy on resources and waste later this year, as well as consult on the reform of the packaging waste regulations and a deposit return scheme for beverage containers.

The summary of the call for evidence can be found here


Consultation on cleaner domestic burning of solid fuels and wood

On 17 August 2018 DEFRA opened its consultation (yes, another one) on cleaner domestic burning of solid fuels and wood.

The overview to the consultation notes that with the emissions from transport or industrial level burning of fossil fuels having decreased, it is now time that we tackle other sources of air pollution, including those caused by heating our homes. In effect, the Clean Air Strategy has already picked the low hanging fruit, and we are now all going to have to work a bit harder to bring emissions down.

In the Clean Air Strategy the government sets out its aim to reduce particulate matter emissions by 30% by 2020, and by 46% by 2010. Quite staggeringly, according to the consultation, approximately 38% of UK primary particulate matter emissions come from burning wood and coal in domestic open fires and solid fuel stoves, compared to industrial combustion (16%) and road transport (12%).

All is not lost however. Michael Gove is not (yet) going to come and take away your homely wood-burning stove. DEFRA has developed simple guidance for all local authorities to share with residents on steps to bring down emissions and it really does contain some simple steps: use cleaner fuels (dry wood, not coal), burn in a clean appliance installed by a competent person, know how to operate it efficiently, keep it swept by a professional or registered chimney sweep.The proposed measures to ensure cleaner domestic burning include:

  • Restrictions on the sale of wet wood for domestic burning so that it can only be purchased in volumes up to a specified cut-off point;
  • Applying sulphur standards and smoke emission limits to all solid fuels; and
  • Phasing out the sale of bituminous or traditional house coal.

The consultation closes on 12 October 2018 and may here found here

The guidance is available here


Definition of waste (1837)

… there is no new thing under the sun.” (Ecclesiastes 1:9, King James Bible)

Muck and money go together” (John Ray, A collection of English proverbs, 1678).

We commented recently upon the case of R (Protreat Ltd) v Environment Agency [2018] EWHC 1983 (Admin) concerning the “end of waste” (see here) and also upon the reinstatement of the Environment Agency’s Definition of Waste panel (see here). Over recent decades thousands of pages of commentary and judgments have been written on the meaning of ‘waste’. Despite it all, one wonders whether there has been any real advance in clarity or understanding since the judgment of Baron Parke in 1837 in the case of Filby v Combe (1837) 2 M&W 677 upon which one of us recently alighted by chance.

The case concerned the activities of statutory ‘scavengers’ appointed under the provisions of the Metropolitan Paving Act 57 Geo. 3 c.29. Their vital job was to gather waste from the streets of London and they were appointed by parishes to “take and carry away from the respective houses and premises of the inhabitants or occupiers their soil, ashes, cinders, rubbish, dust, dirt, and filth” of the parish. Title to the waste was vested by the statute in the scavengers, who made their living by finding what value they could in it. Brewers in Long Acre in the parish of St. Martin-in-the-Fields burnt coal but then transported the ashes to other premises in a different parish where their residual energy-generating capacity was used to heat water. The scavengers appointed for St. Martin-in-the-Fields demanded the ashes but the brewers refused and were sued for their value (£45).

After brief reported argument Parke B. delivered the extempore judgment of the Court of Exchequer of Pleas in the following terms (this is the whole of the judgment):

The question is, what is the meaning of the enactment in the 59th section of this act of Parliament? I think it is clear, if you look at the whole context, that it applies to such things as are in the contemplation of the owner rubbish, and which he desires to dispose of in that character. If there be any other purpose to which the dust, &e. can be applied, except treating it merely as rubbish, he has a right to do so, either where it was produced, or on any other premises. If it be combustible as fuel, he has a right so to use it on any premises he may have. The right of the scavenger only attaches when the owner has no use for the articles mentioned in the act except as rubbish. Perhaps he may not be entitled to sell or dispose of them in the character of rubbish; but it is not necessary now to decide that.”

Could/will there ever be any improvement upon that?


We published August’s Environmental Law Podcast recently – a monthly round-up of the latest developments in environmental law.