Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Charles Morgan consider the new Environment Bill, DEFRA’s new Waste and Resources Strategy and a water pollution playlist.

 

The Environment Bill 2018!

It was promised before 26 December and it has been published the week before. The Environment Bill 2018!!!

Key points on the environmental principles are:

  • The policy statement on environmental principles (to be prepared) must explain how the environmental principles are to be interpreted and “proportionately applied” by Ministers of the Crown in making, developing and revising their policies;
  • The statement “may” also explain how Ministers of the Crown, when interpreting and applying the environmental principles, are to take into account other considerations relevant to their policies.

The concept of proportionality is therefore an overarching concept, to be taken into account in the application of all of the environmental principles. However, the Bill doesn’t set out any form of overarching objective. It is inherently difficult to assess the concept of proportionality in the absence of any form of priorities. Nothing in the Bill requires a Minister of the Crown to take action that would be disproportionate “to the environmental benefit” but that doesn’t assist with how proportionality should be applied across other valid considerations. Proportionality is a means of measuring the necessity of legitimate legal action against a defined objective, not a means of determining what the objective should be in the first place, or what factors should be taken into account. The current draft risks confusing this key point.

There is a discretion as to whether the statement will explain how other considerations should be taken into account. Presumably, if nothing is mentioned, this leaves the relevant Minister of the Crown with a wide ambit on how the environmental principles should be prioritised (or not).

The relevant environmental principles are the same as to be found in s.16 of the Withdrawal Act 2018.

There will be a consultation on the policy statement, although the policy statement can be revised at any time. A Minister of the Crown “must have regard to” the policy statement when making, developing or revising policies dealt with by the statement. The wording arguably limits the application of the policy statement to those policies that are specifically referred to within it but more importantly, this is an extremely low threshold for a Minister of the Crown to surpass. It is likely to prove extremely difficult to demonstrate that a Minister of the Crown has had no regard for the policy statement.

Specifically excluded from the scope of the statement are any policies that relate to “taxation, spending or the allocation of resources within government” or “any other matter specified in regulations made by the Secretary of State”. That is quite some caveat and doesn’t promote any certainty that the Government won’t create huge carve outs if the new environmental watchdog proves to be a little troublesome.

The watchdog will be called the Office for Environmental Protection (“OEP”). All non-executive members, including the Chair, are to be appointed by the Secretary of State. The OEP is to be funded by DEFRA through grant-in-aid. This will inevitably raise concerns with those that consider that such governance and funding arrangements will not provide sufficient independence for the watchdog to carry out its functions properly.

The OEP will be able to give an “information notice” to a public authority that it has reasonable grounds to suspect as failed to comply with environmental law and considers that the failure is serious – essentially a request for information – and give a “decision notice” where it is satisfied, on the balance of probabilities, that the public authority has failed to comply with environmental law and it considers that the failure is serious – essentially setting out steps that should be taken in relation to the failure. The OEP may then make an application for judicial review in relation to conduct described in the decision notice. This must be made within 3 months of the day by which the public authority was required to respond to the decision notice. A public authority that is the subject of a review application must publish a statement after the conclusion of the review proceedings that sets out the steps, if any, that it intends to take in light of the outcome of those proceedings. There is no power to impose a financial penalty on a public authority.

Failing to comply with environmental law, according to the Bill, means either:

  1. Unlawfully failing to take proper account of environmental law when exercising its functions; or
  2. Unlawfully exercising, or failing to exercise, any function it has under environmental law.

As to 1), as stated above, the threshold is to “have regard to”. At present, in the absence of a wholesale disregard for the environmental principles, it is difficult to see how this will be used in practice. As to 2) what is a “function under environmental law”? The commentary identifies that “various authorities are charged with establishing and implementing permitting regimes for different activities that can affect the environment. Failing to meet such requirements, or implementing them in a deficient way (for instance, by omitting certain prescribed activities or applying standards that are less rigorous than the law demands), could also constitute a failure to comply with environmental law.” This sounds a little like one of the key tasks of the watchdog will be to monitor the Environment Agency. Can that really be right?

It is to be expected that the OEP will prioritise cases with a broader, more widespread significance than purely local issues, in particular those which concern persistent issues, issues which could be of a significant nature with regard to environmental impacts or effects on human health or cases that deal with points of law of general public importance.

There is considerable scope within the current draft of the Bill for a “toothless” watchdog. Much will depend on the wording of the policy statement and the attitude of whoever is appointed to Chair the OEP. Expect fierce debate and opposition to the current draft – it doesn’t look likely to satisfy many.

 

DEFRA publishes Waste and Resources Strategy 2018

On 18 December 2018 DEFRA published its ‘Waste and Resources Strategy’ for 2018. Much has been made of the fact that producers will be forced to pay the full costs of disposal for the packaging that they place on the market and that weekly food waste collections are to be rolled out across the country. There is also to be a deposit return scheme for drinks containers to be in place by 2023.

Chapter 4 of the Strategy focuses on waste crime. It proposes a new strategic approach, concentrating on principles of prevention, detection and deterrence. It is proposes that:

  • Duty of care regulations and registers will be modernised, simplified and harmonised. Expect a consultation soon.
  • Fixed penalty notices for householders who breach their duty of care will be available from 7 January 2019.
  • The EA will strengthen intelligence sharing between organisations, including the police, local authorities, HMRC and the waste industry.
  • The ten waste exemptions most identified with illegality will be changed, which will include some being removed altogether such that an environmental permit will be required.
  • Written descriptions of waste will be both digital and mandatory.
  • A Joint Unit for Waste Crime will be set up, to sit within the EA with input from the waste industry, HMRC and the police. A dedicated disruption team will be set up that will use intelligence to take quick action against waste criminals on the ground. The progress and success of the Unit will be reviewed after approximately 12 months.
  • A consultation will be launched on bolstering the EA’s powers further to ensure that it is equipped to deal with the threat of serious and organised gangs.
  • An abandoned sites action plan will be developed to help EA staff detect early signs of a site being abandoned.
  • £10 million provided to the EA in the Budget will be used to pilot an approach to pay for the landfill tax due form the clearance of certain specific abandoned waste sites.
  • There will be a consultation on a financial provision system, proposing that the waste operator make a payment which can subsequently be drawn down if the operator or owner abandons the site.
  • DEFRA will work on steps to strengthen sentences, particularly in the Magistrates’ Courts.
  • The way in which the EA is resourced to tackle waste crime will be explored, including the proposal that a proportion of Landfill Tax receipts be committed to the EA for the purpose of combating waste crime.

These are exciting developments. Waste crime costs the economy hundreds of millions of pounds every year, irrespective of the social and environmental costs. The strategy gives every impression that significant steps are being taken.

 

Water Pollution in Song

Last year, we proposed to our readership for a Christmas sing-along the Victorian music hall song “They’re Moving Father’s Grave to Build a Sewer”: see here.

Such was the reception for that Yuletide offering that for 2018 we have scoured our memory banks, records collections, Spotify and YouTube to produce a suggested playlist of songs about water pollution in its various forms. It can fairly be said that songwriters were ahead of the media curve in their treatment of the subject.

A very early adopter of the environmental cause was Tom Lehrer, who in 1960 penned Pollution with its reference to the “hot and cold running crud” pouring forth from the taps in American cities and the annihilation of aquatic wildlife by detergents (near-rhymed with ‘sturgeons’). Following in his footsteps two years later was the estimable Malvina Reynolds (whose further work Little Boxes may be of interest to planning lawyers) with What Have They Done To The Rain, a protest at the entry into cow’s milk via rainfall of Strontium-90 from above-ground nuclear testing and a hit in England for The Searchers in 1964.

Joni Mitchell’s seminal Big Yellow Taxi (1970) was an alliterative complaint about loss of green space and trees to car parking (another one for the planners) but lacked any aqueous theme. The following year R. Dean Taylor made good the omission with Ain’t It A Sad Thing? and its repeated lament of “Down by the river where the river don’t flow”, a line whose first half reappeared the following year as the title of Albert Hammond’s Down By The River, reciting a panoply of problems including a fish kill, trade effluent pollution, reduction in bio-diversity and a dose of E. coli. Readers are recommended to seek out on YouTube the extremely obscure but beautifully-sung version by Sands of Time, although fans of the New Seekers or indeed Mr. Hammond himself can find their versions there too.

Don’t Go Near The Water (Mike Jardine, Al Love) sang the Beach Boys in 1972 (Surfers Against Sewage California-style). So did Johnny Cash in 1974, his different song of the same name being written by his daughter Rosanne. The latter opus is by far the more profound lyrically, a catchment-based water-quality analysis with the depressing conclusion that after passing through the city “the water isn’t water anymore”.

Finally, this one defies description: Twelve Days of Fatberg. Having introduced our readers to it, our work is done. Don’t click on the link whilst eating your Christmas lunch.

But Whilst On The Subject of Song Titles ….

There’s not a whole lotta love lost between Robbie Williams and Jimmy Page these days following something of a communication breakdown. Robbie has just succeeded in obtaining planning permission for a swimming pool basement extension (no doubt accessed by a quite heavenly stairway decorated with angels) at his new place to crash next door to Jimmy’s Grade 1 listed home in Holland Park, despite the latter’s spirited objections, which must be a heartbreaker for him. However Robbie should never forget that he can’t just do what he likes (even though everybody wants to rule the world) and that the grant of planning permission may not be the last word given the decision of the Supreme Court in Coventry v Lawrence in 2014 (in which appeared Six Pump Court’s Stephen Hockman QC and Will Upton). There remains the possibility of a claim in private nuisance should Robbie’s workforce do something stupid and the works produce the feared disturbance to Jimmy’s foundations. It would only take a minute and everything could change and relight the fire of the dispute. When the works are over, let’s hope that Robbie, who’s a bit of a raver, doesn’t want to party like a Russian and employ a loud rock DJ to the annoyance of his neighbour. That should entertain us, but let’s pray it doesn’t happen. Robbie’s a better man than that, certainly not a bully and capable of performing random acts of kindness. Etc. Etc. Etc. (A prize to anyone spotting all the song titles because we’ve lost count …)

Merry Christmas.

 

We look forward to resuming these updates in 2019 with the next update on Monday 7th January.

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, Christopher Badger considers new HSE guidance on chemicals regulation in the event of a ‘no deal’ Brexit, a reconsideration of the definition of “trade effluent” in a recent appeal case, and International Waste Shipments (Amendment) (EU Exit) Regulations 2018 recommended for consideration by Parliament.

 

HSE publishes guidance on chemicals regulation in the event of a ‘no deal’ Brexit

The HSE has published guidance on preparations for a ‘no deal’ Brexit.

The UK and EU negotiating teams have reached agreement on the terms of an implementation period and other separation issues including goods on the market. Subject to the ratification of the draft Withdrawal Agreement, the implementation period will start on 30 March 2019 and last until 31 December 2020.

But in the event of a ‘no deal’ Brexit, and the casting aside of the draft Withdrawal Agreement, it is the intention of the European Union (Withdrawal) Act 2018 to convert current EU chemicals regulation into domestic law. In the view of the HSE, this means that the requirements established through regulations will continue to apply in the UK after Brexit.

HSE is working with DEFRA, who are building a UK chemicals IT system to support the registration of chemicals placed on the UK market. This is intended to “guarantee continuity”, whatever the outcome of negotiations.

The key points are:

  • In order to continue exporting substances or mixtures to the EU/EEA market, UK based entities currently holding EU REACH registrations would need to transfer their registrations to an EU/EEA-based entity, or support their EU/EEA-based importers to become registrants;
  • Entities currently holding EU REACH registrations would also need a valid UK REACH registration to maintain access to the UK market;
  • UK downstream users (who do not hold an EU REACH) registration) currently purchasing chemicals from an EU/EEA country would need to ensure the substances they purchase are covered by a valid UK REACH registration;
  • UK downstream users using a substance subject to an EU REACH authorisation would need to provide information to the HSE to continue to benefit from the authorisation;
  • UK and EU regulatory agencies would operate independently from each other. If companies are supplying and purchasing substances, mixtures or articles to and from the EU/EEA and the UK, they will need to ensure that the substances are registered with both agencies (ECHA and HSE) separately in order to maintain or gain access to both markets.

The UK REACH IT system will be launched by the point that the UK leaves the EU. There will be additional costs for UK companies, not least a duplication in fees. However, there will also be a phased approach. Companies currently holding EU REACH registrations will have 60 days to submit basic data and two years to submit the full data package to register chemicals under UK REACH. UK downstream users who don’t have EU REACH registrations have 180 days to provide the basic data and must provide the full registration data within two years.

The publication notes that access to the technical information used for ECHA registration may require renegotiating commercial contracts/letters of access originally put in place for EU REACH!

 

Definition of “trade effluent” reconsidered

On 13 December 2018 Boots UK Ltd lost its appeal in an attempt to claim back what it perceived as substantial overpayments to Severn Trent Water Ltd for the disposal of its trade effluent.

The trade effluent was discharged to a private sewer, but before this was done it was metered. At the time that the trade effluent reached the meter, it had mixed with surface water (essentially rainwater). Charges were levied in two ways. First, Severn Trent applied a charge to the metered volume of mixed liquid passing through the meter. Second, it levied a charge for the drainage of surface water by rateable value or area. Boots argued that it was not open for Severn Trent to charge it for the whole of the mixed liquid but only on that part which it considered to be its trade effluent.

The issues in the case were as follows:

i) Was the mixed liquid “trade effluent”, as defined by s.141(1) of the Water Industry Act 1991?
ii) If not, it is deemed to be trade effluent as a consequence of the arrangements between Boots and Severn Trent?

S.141 reads:

“trade effluent” –

(a) means any liquid, either with or without particles of matter in suspension in the liquid, which is wholly or partly produced in the course of any trade or industry carried on at trade premises; and

(b) in relation to any trade premises, means any such liquid which is so produced in the course of any trade or industry carried on at those premises,

but does not include domestic sewerage”

Boots argued that it was entitled to discharge surface water into the public sewer under s.106 of the Water Industry Act 1991, which provides an owner or occupier of premises the right to connect his drains or sewers to the public sewers. Consequently, s.141 should not be construed so as to remove that right. The purpose of the regime for the discharge of trade effluent was to create a “carve out” from what had been the prohibition on the discharge of trade effluent now contained in s.106. It was not intended to remove the pre-existing right to discharge surface water. Further, trade effluent could only be that “directly produced” in the course of any trade or industry.

In ruling against Boots, Lord Justice Lewison held that the argument was contrary to authority. The words “wholly or in part” relate to the composition or constitution of the trade effluent, which may be only partly composed of the product of the trade or business (see Yorkshire Dyeing and Proofing Co Ltd v Middleton BC [1953] 1 WLR 393). In this case, all of the mixed liquid was produced at Boots’ factory.

He also held that Boots’ construction of the definition “pays scant regard to the laws of physics”. Once two liquids mix, they cannot be separated. “Once you have added milk to your coffee or tonic to your gin, even though you can identify the sources from which the components of the mixed liquid originate, you have created a new and different liquid.”

Weight was also given to the fact that Boots had chosen to construct its facility in such a way as to allow the mixing to happen. It was in control of the arrangement of its own internal infrastructure. This was persuasive, even though Boots adduced evidence that it would now be impracticable or prohibitively expensive to retrofit the drainage.

As Boots failed on the first issue, the second issue did not arise.

One interesting potential consequence of the court’s acceptance that adventitious admixture does not prevent the product being ‘trade effluent’ is that it must be arguable that nor does deliberate admixture. If so, then a business discharging trade effluent would be entitled, provided that it could do so within its permitted volumetric limits and in the absence of any express prohibition, to dilute its trade effluent as necessary to achieve compliance with concentration limits which would otherwise be exceeded by the concentrated effluent – a practice not considered acceptable by at least some sewerage undertakers.

The judgment can be found here

 

International Waste Shipments (Amendment) (EU Exit) Regulations 2018 recommended for consideration by Parliament.

Despite the arguably dull headline above, this is a concrete example of the potential impact on Brexit on the waste industry. The House of Lords has recommended that a draft statutory instrument relating to international waste shipments should be considered by Parliament due to the risk that the UK will cease to be able to export waste to EU Member States following Brexit.

Shipments of notified waste (comprising hazardous wastes, mixed municipal wastes and wastes which are destined for disposal) between the UK and other EU Member States (of which England exported just under four million tonnes to the EU in 2017) are subject to a procedure of prior notification and consent according to rules set out in EU Regulation 1013/2006 on shipments of waste.

It had been proposed that the draft Regulations could be passed without debate – indeed, the House of Commons had already agreed to such a course of action. However, the House of Lords sifting committee has identified that the European Commission has indicated in a notice to stakeholders published on 8 November 2018 that those notifications which currently apply past 29 March 2019 will no longer be valid on exit day. DEFRA has explained that the UK’s competent authorities (including the Environment Agency) have written to their counterparts in other Member States to agree that the process of waste shipments can continue as normal after Brexit. Unfortunately, of the 533 letters written to date, only 61 responses have been received agreeing to roll-over existing notifications.

If an EU competent authority does not agree to roll-over an existing notification, new consents will need to be approved for those shipments to continue, which may impact on the UK’s ability to export notifiable waste.

The UK lacks the capacity to cope with the amount of waste that it generates. If it cannot export notifiable waste, even for a short period, the effects could be significant. This also provides an opportunity for EU Member States to reassess if they want to receive the UK’s waste. Capacity and issues over contamination are not problems isolated to the UK.

The report of the House of Lords Secondary Legislation Scrutiny Committee (Sub-Committee B) can be found here

 

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

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 Wignall, Christopher Badger and Mark Davies consider the EU Exit Legal Position on the Withdrawal Agreement and the Attorney General’s Legal Advice, the Draft National Policy Statement for Water Resources Infrastructure and an important case about the courts’ approach to the balance between private rights and the public interest.

 

The EU Exit Legal Position on the Withdrawal Agreement and the Attorney General’s Legal Advice

On a morning when the Good Law Project (congratulations to Jolyon Maugham QC et al.) has succeeded in front of the European Court of Justice in showing that within the two-year notification period under Article 50 the UK may unilaterally revoke the notification to leave, we look at what implications the Attorney General’s advice has for the environment. Following the Good Law Project’s success, more than ever now that the Government’s legal advice has been published, we should be questioning the deal we’re being sold – is it worth it?

The Attorney General’s Legal Advice was published in two parts last week. The first part is little more than an exposition of what the Withdrawal Agreement supposedly means. Environmental matters are largely relegated to paragraphs 51-53 of the ‘Annex – Protocol on Ireland/Northern Ireland’:

Article 2 sets out commitments on the EU and the UK not to lower the level of environmental protection below the common standards that apply in both the EU and UK at the end of the implementation period (with certain further commitments to be fleshed out by the Joint Committee), otherwise known as a non-regression commitment (Article 2(1)). The EU and the UK also commit to respect certain principles such as the precautionary principle in their respective environmental legislation, as well as to effective implementation of multilateral environmental agreements including on climate change, and the UK agrees to implement a carbon pricing system of at least the same effectiveness and scope as the EU’s Emissions Trading System (Article 2(2) to 2(6)).

Disputes in respect of these particular obligations are not subject to the arbitration mechanism of the Agreement, and are instead for resolution in the Joint Committee alone (Article 2(7)).

Under Article 3, the UK agrees to ensure effective domestic enforcement of the common environmental standards set out in its laws, regulations and practices, and must ensure public authorities and individuals are able to challenge such domestic laws or practices through administrative and judicial proceedings, with appropriate remedies (Article 3(1)). In addition, the UK agrees to provide for an independent monitoring body or bodies with necessary functions and powers to conduct enquiries or bring a legal action before a competent court (Article 3(2)). Because no exception is made from the dispute resolution provisions in the main Agreement, the EU could use the arbitration mechanism provided for in the Agreement if it considered the UK had not met its obligation to ensure effective domestic enforcement.

The second part came in the form of the 6-page legal advice letter written on 13 November 2018, but only published after the Government was held to be in contempt of Parliament, states at paragraph 10:

While it will not be directly bound by EU rules, GB will be obliged to observe a range of regulatory obligations in certain areas, such as environmental, labour, social and competition laws (the “level playing-field”), which reflects varying levels of correspondence to EU standards. GB will not be subject to the jurisdiction of the CJEU or the Commission in relation to these obligations – they will be monitored and enforced by independent UK authorities, and by its courts and tribunals. … Any breach would be actionable through the Joint Committee within the governance arrangements of the Withdrawal Agreement, and directly by the Commission as a party in the UK courts.

So, what interest or questions arise from the above?

  • The first is simply that this is clearly an area of the Withdrawal Agreement that is unfinished. “Certain further commitments” are “to be fleshed out”.
  • The meaning of the phrase “commit to respect” is also unclear. Are EU environmental principles actually to be applied or will it simply be that decision makers must have regard to them? If the latter, is that acceptable?
  • The advice quite boldly asserts that disputes in respect of these particular obligations are not subject to the arbitration mechanism but will be monitored and enforced domestically. However, it remains the position that the interpretation of European “concepts” may be referred to the CJEU. Does, for example, the precautionary principle fall within the definition of a European “concept”? If this is arguable, should the advice be so forceful on the jurisdiction of the CJEU?
  • There is no analysis of whether the UK’s current proposals for the domestic environmental watchdog meets the requirements of equivalence and non-regression. The remit of the watchdog is still under review.
  • Given the environmental matters are devolved in nature, if, once we’ve ‘taken back our laws’, should one (or more) of the devolved administrations decide to significantly lower environmental protections, does the EU have to take the whole of the UK to the Joint Committee/arbitration? If so, what power does Westminster have to compel a devolved authority to raise standards?

Now, what light does the Attorney General’s advice shed on all of these knotty issues? Quite simply, nothing. Given that the key question that the Attorney General was asked to advise on was the legal effect of the UK agreeing to the backstop and the relative importance of environmental protection, should this not have been looked at in a little more detail?

 

Alexander Devine Children’s Cancer Trust v. Millgate Developments Limited

The Alexander Devine Children’s Cancer Trust v. Millgate Developments Limited [2018] EWCA Civ 2679 (28 November 2018) is an important case about the courts’ approach to the balance to be struck between private rights and the public interest. The decision is relevant to contractual rights, but also to remedies in nuisance (in particular the issue of damages in lieu of an injunction).

The case arises in the context of s.84, Law of Property Act 1925 (the power to discharge or modify restrictive covenants affecting land). The case concerned the effect of the statutory provisions which allows the Upper Tribunal to discharge a restrictive covenant where the restriction “is contrary to the public interest” (s.84(1A)(b)).

Millgate breached restrictive covenants in order to construct affordable housing units in satisfaction of a s.106 agreement. It did so, and went on doing so, despite being warned of the existence of the covenants and their effects, namely seriously impairment of the amenity of the neighbouring use of land as a children’s hospice.

The Upper Tribunal, presented with a fait accompli, was substantially influenced by the potential waste of the affordable housing units (a public interest issue). It decided that a monetary award was adequate compensation for the discharge of the covenants.

The Court of Appeal, on the other hand, gave priority to the private rights created by the law of contract. Upholding previous Tribunal case law concerning the ‘sanctity of contract’, it took the view that the enforcement of contractual and property rights is itself an overriding matter of public interest.

There is a great deal in the judgment which merits consideration, including the relevance of planning permission in the context of private rights (little), whether it should count against an objector that it failed to apply for an interim injunction (it should not), the relevance of an off-hand but prejudicial remark in cross-examination (very limited), the almost misleading use of inference in the absence of real evidence in order to create what might almost be described as an erroneous submission (disagreeable, but surely common practice), and so on.

There has been some discussion in Chambers about whether Lord Sumption’s guidance in Fen Tigers that “damages are ordinarily an adequate remedy in nuisance” has been given a decent burial by this judgment, this forming part of the primary ground of appeal (see Lawrence v. Fen Tigers [2014] AC 822).

The answer to this question is surely “no” (or perhaps “not yet”), since the Court of Appeal went out of its way to point out that the discretionary balance by a Court at the stage of remedies where there are competing private law rights, is an entirely different exercise from the protection merited to obligations entered into by mutual agreement.

 

Draft National Policy Statement for Water Resources Infrastructure

On 29 November Dr Thérèse Coffey laid before Parliament for consultation a draft National Policy Statement for water resources infrastructure. This 99-page document provides planning guidance for applicants for permission for nationally significant infrastructure projects (‘NSIPs’) for water resources (principally reservoirs, transfer facilities and desalination plants) and in its final form will constitute the primary basis for preparation, consideration and determination of applications for development consent.

Section 2 outlines government policy, with a strong emphasis upon ‘resilience’, reflecting the new duty upon the Secretary of State, the Welsh Ministers and OFWAT to secure the resilience objective introduced by section 22 of the Water Act 2014 (by amendment of section 2 of the Water Industry Act 1991).

Section 3 addresses assessment principles and creates a presumption in favour of granting development consent for water resource NSIPs which fall within the need for infrastructure established by the Statement. There are subsections on Water Resource Management Plan Assessments, environmental impact assessments, habitats regulation assessments, environmental net gain, assessment of alternatives, criteria for ‘good design’ for water resources infrastructure, climate change adaptation, environmental regulation, common law nuisance and statutory nuisance, safety, security and health.

Section 4 addresses generic impacts: air quality, biodiversity and nature conservation, carbon emissions, coastal change, dust, odour, artificial light, smoke and steam, historic environment, flood risk, landscape and visual impacts, land use (including open space, green infrastructure and Green Belt), noise and vibration, resource and waste management, socio-economic impacts, traffic and transport and water quality and resources. In each case the proper decision-making process is set out in some detail.

Anyone who thinks that something has nevertheless been missed out or has any other observations has until 31 January 2019 to respond.

The full document can be found here

Further related links can be found here

 

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

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 Podcast – November 2018

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

This short update focuses on November’s key legal developments, which this month include the Withdrawal Agreement and Political Declaration, the recent independent review of the current system of waste regulation and the latest on the new Environment Bill.

This will be our last podcast for 2018. We will return in January 2019 with some commentary on the first half of the Environment Bill, which should be published before 26 December 2018.

Environmental Law News Update

In this latest Environmental Law News Update, William UptonChristopher Badger and Mark Davies consider another reminder of the responsibilities of landowners, the government’s response to a recent consultation on the waste sector, and new regulations banning combustible materials on new high-rise homes.

 

Another reminder of the responsibilities of landowners

On 19 November, Anthony Joyner, owner of several nursery sites in Devon, was fined £3,600 and ordered to pay £5,000 in costs after pleading guilty to knowingly permitting the keeping of controlled waste on land without an environmental permit and in a manner likely to cause pollution of the environment or harm to human health. He was further ordered to pay the Devon and Somerset Fire and Rescue Service £4,250 in compensation.

Mr Joyner had leased part of land he owned and used as a nursery near Totnes to Steven Loveridge and David Weeks who set up ‘Woody’s Recycling’ at the site. In a pattern with which we are all far too familiar, waste (unsurprisingly wood) entered the site, but never left. When Mr Joyner closed the site in early 2016 – Mr Loveridge, who operated the site on a day-to-day basis, having been sent to prison for an unrelated offence – there was approximately 10,000 tonnes of waste wood and approximately 3,000 tonnes of tree stumps left at the site.

Waste transfer notes were obtained by the Environment Agency in the course of its investigation accounting for only 1,075 tonnes of the material, not only leaving a massive shortfall in the provenance of the material on site, but also taking the site above its exemption limit of 1,000 tonnes.

In April 2016 Mr Joyner apparently approached another recycling company to see if it was interested in the waste. The response was reportedly that the wood was of low quality and that it would cost £750,000 to remove. Mr Joyner was being paid a monthly rent of £1,500 by Messrs. Loveridge and Weeks.

On 16 May 2016 the Environment Agency received reports of a massive fire at the site, which lasted for 5 days and covered an area the size of a football pitch. Joyner apparently himself admitted having moved the waste wood around the site despite the risk of combustion.

Now, this is not a case where an otherwise innocent landowner has been left to pay whilst the real actors have got off scot-free; Loveridge received a 6-month prison sentence after pleading guilty and Weeks was fined £9,553 and ordered to pay £1,767 in costs, but the point would be this: having received £1,500 a month in rent, if the true cost of the removal of the material was in fact £750,000, what was Joyner to do? His case provides a reminder that landowners who rent out space for others to conduct waste activities must be vigilant as to the true nature of the activities taking place on their land.

In this case, the criminal conviction is not the end of the matter for Mr Joyner with the Environment Agency apparently taking ongoing action against him this month regarding the clearing up of the site. Recalling the recent independent review into organised waste crime (covered in this blog here) that suggested that waste producers should be held accountable for the end destination of their waste products, including a requirement that they contribute to the clean-up, it may be considered that this case provides a further reminder of the pressing need for reform in this area.

The Government press release regarding Mr Joyner’s case may be read here

 

Government publishes response to consultation on the waste sector

On 26 November the Government published its response to a consultation on ‘Proposals to tackle crime and poor performance in the waste sector and introduce a new fixed penalty for the waste duty of care’.

It is now intended to amend the Environmental Permitting (England and Wales) Regulations 2016 to require all regulated facilities that undertake waste operations to be managed and operated in accordance with a written management system, which identifies and minimises the risks of pollution arising from the waste operation. Environmental permits issued since 2008 already include this requirement, but there are at least 2000 operating without this condition.

It is also intended to amend the Environmental Permitting Core Guidance to widen the scope of offences, behaviour and relevant persons that the regulator can take account of when assessing competence.

Further legislation will be introduced to clarify the legal requirement for technical competence and introduce a de-registration system for technical competence.

DEFRA is committed to reforming the exemption system and are further considering the impacts of proposed changes.

The Government will also consult on specific financial provision options in 2019, with the aim to include that in the same legislation. Financial competence checks will be able to be carried out at any time. There was a divergence in views as to whether financial provision should apply to all waste site operators (mainly advocated by local authorities and individuals), or just high risk operators (as advocated by the waste industry). We can anticipate that the Government will be keen not to impose an unnecessary burden on operators through the requirements of financial provision, as well as considering allowing operators to be able to choose the particular financial provision mechanism with the regulator.

Fixed penalty notices will also be introduced for breaches of the household waste duty of care, to provide authorities with an alternative enforcement option to prosecuting offenders through the courts. There will also be a supplementary consultation on updating the Waste Duty of Care Code of Practice to provide more detail on meeting the household waste duty of care and new guidance for local authorities in England on the use of the FPN.

The Government’s response can be found here

 

Bringing down the cladding

Last week the government finally announced it was introducing new regulations “banning combustible materials on new high-rise homes” and “giving support to local authorities to carry out emergency remediation work”.

The easier part has been to amend the Building Regulations so that materials used in building work which become part of an external wall, or specified attachment to it, of a relevant building are of the necessary European Classification standard. This is intended to cover the external walls of new buildings over 18 metres containing flats, as well as new hospitals, residential care premises, dormitories in boarding schools and student accommodation over 18 metres. New Building (Amendment) Regulations 2018 (SI No. 1230) have been laid before Parliament and will come into force on 21st December 2018.

The more difficult part, and one which is limited to work carried out on private residential buildings, is to empower the local housing authorities to carry out emergency work in order to remove unsafe aluminium composite material (ACM) cladding and recover the costs from building owners. This has been done by amending the guidance given in the “Housing Health and Safety Rating System” (HHSRS) used by the local housing authorities under the Housing Act 2004, and the expectation is that the LHAs will use their enforcement powers under that Act.

It is revealing that the change is to the risk assessment required. The Building Regulations are an example of ‘black letter’ law that give clear and precise regulatory requirements. By contrast, the HHSRS is not in itself a standard. It relies on the informed professional judgements of both of these to provide a simple means of representing the severity of any dangers present in a dwelling. Up until now, the HHSRS Operating Guidance did not specifically cover assessment of cladding. It predominantly focused on assessing the risk of hazards within individual dwellings, rather than assessing the common parts of the building, including the exterior of building. In other words, the change is being made to the statutory guidance to the same risk assessment tool that was in place when the refurbishment of Grenfell Tower was designed, built and approved.

 

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