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Posted on: 11 March 2019
Environmental Law News UpdateTweet
In this latest Environmental Law News Update, our new silk William Upton QC, Christopher Badger and Nicholas Ostrowski consider challenges to national planning and environmental policy, the consequences for employees if they fail to co-operate with the Environment Agency and continuing scrutiny of the draft Environment (Principles and Governance) Bill.
Challenging National policy – the NPPF, SEA and fracking
The Planning Court has just rejected the only general challenge that has been made to the adoption of the NPPF. One can have a lot of sympathy for the argument made in Friends of the Earth v Secretary of State for Housing, Communities and Local Government  that there should have been a Strategic Environmental Assessment of the revised NPPF. It clearly, despite MHCLG’s protestations, sets the framework for future development consents of projects. Many also treat it as a binding policy document, and indeed the MHCLG itself referred to it as the “Government’s new planning rulebook” in their accompanying Press release in July 2018. But the Court was persuaded by the caselaw that the NPPF is not, as a matter of law, “required” by any legislative, regulatory or administrative provisions and therefore that the SEA Directive does not apply to it. Whilst this may look like a legal fiction, it is worth recalling that no SEA was required of the first NPPF nor for most of the National Policy Statements for NSIPs.
However, of more immediate impact is the successful challenge to the specific policy supporting fracking – para. 209(a) of NPPF 2 (regarding on-shore oil and gas development). The case was brought by an individual on behalf the ‘Talk Fracking’ campaign group – Stephenson v Secretary of State  (and also heard by Dove J). The evidence showed that MHCLG had attempted to cut and paste the 2015 Written Ministerial Statement into the NPPF, and did not consider that it was making any new policy which required its own consultation. Unfortunately for them, this is not what the consultation process stated, and not – as Dove J identified – “what a member of the public engaging in the consultation process and reading the publicly available material as a reasonable reader, would have concluded the Defendant was doing”. The consultation had therefore been unfair, and unlawful. It was also unlawful to fail to take into account the Talk Fracking representations about the change in the state of scientific knowledge about the impact from fracking on climate change in deciding on the final form of the NPPF, given that it was clearly relevant to the questions posed. Dove J also confirmed that the ‘in principle’ support for unconventional hydrocarbon extraction, provided by the NPPF, will still have to be considered alongside any objections and evidence produced relating to the impact of shale gas extraction on climate change. Whilst the form of relief to be given in the court order is yet to be finalised, this judgment has already caused one public inquiry to be adjourned that we know of.
If employees do not co-operate with the Environment Agency there will be consequences!
S.108 Environment Act 1995 is the statutory source of most of the Agency’s investigative powers and is therefore of vital importance in the investigation of most environmental offences in this country. However, for such an important provision there are comparatively few reported authorities about how it should be interpreted.
A recent decision of the Divisional Court (Millmore and others v Environment Agency  EWHC 443 LJ Legatt and Holgate J) arising out of some extraordinary facts does discuss the ambit of S.108(1)(c), (j), (k) and (l) which give the Agency power to make examinations, to require persons to give information, to require the production of information and to require persons to afford facilities and assistance to the Agency officers.
In July 2016, an investigation was brought by the Agency into Southern Water Services Limited and as part of its investigations, Agency officers visited a number of waste water treatment works where they received what was described as, at best, a lack of co-operation from employees of Southern Water. This included:
The corporate entity was prosecuted but was acquitted on the basis that the Agency had failed to prove that it was criminally liable for the relevant actions of its employees. Five employees were though successfully prosecuted under S.110 Environment Act 1995 for obstructing Agency officers.
The main finding by the Divisional Court in the appeal was that that mere omission (such as refusing to open a door or gate) can be obstruction under S.110 1995 Act and that a positive act is not required to amount to an offence of obstruction under the Act. In addition, the court went on to find that there is no requirement for the consent of an occupier to be obtained before the Agency is permitted to exercise its power under S.108 1995 Act.
On the facts the court upheld the convictions for three of the five employees and directed that two of the employees were acquitted. This will be an important decision for any lawyers advising clients as to what they should advise their employees to do if the Agency comes calling.
Continuing scrutiny of the draft Environment (Principles and Governance) Bill
The Environment, Food and Rural Affairs Committee continues its pre-legislative scrutiny of the draft Environment (Principles and Governance) Bill. On 6 March this year, it was the turn of Michael Gove, Thérèse Coffey and Davide Minotti to give evidence.
Michael Gove emphasised that he wanted the OEP to be properly resourced and that the OEP can have at its command a battery of experts and legal staff and opinions. This highlights concerns that have been raised by many participants to the inquiry that the OEP is too dependent on DEFRA and the Secretary of State. Thérèse Coffey chipped in that the OEP will be able to make a statement essentially on whether they have had enough money or not, which no doubt will be seriously considered. In her view, the OEP is not undertaking to be a delivery partner for the Government but is very much about scrutinising Government.
It was emphasised that it is constitutionally challenging for Parliament to have an OEP that is directly accountable to it, like the National Audit Office, but which could also take the Government to Court. Michael Gove’s response was that it was the Government’s intention to make sure they had the most stable constitutional footing. When asked directly “are you convinced that this new OEP will be independent and strong enough not just to take DEFRA on, but take on the whole of Government” the response of both Thérèse Coffey and Michael Gove was effectively a resounding “yes”, in contrast to almost all of the evidence that has been received by the Committee. Davide Minotti sought to support the Secretary of State by emphasising that the Secretary of State does not have the power to direct the Board of the OEP in any way.
Reference was made to the power of the OEP to challenge the Environment Agency on its application of the law. Thérèse Coffey did not think that it would be right for the OEP to be able to legally override the decisions of the Environment Agency by issuing a legally binding notice.
Michael Gove’s response to criticisms that have been made of the reliance on judicial review to resolve disputes was to state that the Government has sought to replicate an easily understandable process, as far as possible. He didn’t rise to the suggestion that there should be an expanded role for the Environmental Tribunal, although he didn’t rule it out. Thérèse Coffey’s response was that the process that the CJEU undertakes is similar to, in effect the same as, the JR process. However, Professor Macrory has already highlighted the difference in approach between traditional judicial review and the application of Wednesbury unreasonableness and the European Court’s approach of adopting a proportionality test involving a more structured examination of the balancing interest involved. There is a real concern that reliance on judicial review will not bring the same degree of review as currently adopted by the CJEU in infringement proceedings.
The OEP’s advisory role is specifically on whether measures the Government are taking are in line with the improvement plan that is required in the draft Bill. “Are you on track” is the key question, considering the goals of the 25-year plan. Yet there is a genuine fear that nothing will actually be achieved. The Committee cited the fact that, since Michael Gove took over as Secretary of State, there have been 77 consultations, just one piece of primary legislation and 45 of the consultations have not resulted in any action whatsoever.
And on the inherent weakness in the fact that Government need only “have regard to” the environmental principles, Michael Gove simply did not accept that the provision on environmental principles was took weak. His response was that the words “have regard to” were thought to be the closest in terms of achieving the same legal effect as European provisions and he fell back on the fact that he considered this to be a well understood phrase.
The repeated approach of the Secretary of State was to insist that he was open-minded, not ruling anything out but at the same time refusing to accept that criticisms that had been made of the current draft were valid and would result in improvements. The recommendations of the Committee will prove very interesting indeed, but whether they will be taken up is another matter entirely.
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