Environmental Law News Update

In this latest Environmental Law News Update, Gordon Wignall and Nicholas Ostrowski consider the government’s approach to plastic packaging tax and waste law and further clarification on costs in environmental statutory and judicial review.

 

Government wraps up on plastic packaging tax and tidies up waste law

Over 23-24 July 2019 the Government published its response to four waste consultations which were run broadly in tandem: “Plastic Packaging Tax“, “Reforming the UK Packaging Producer Responsibility System“, “Introducing a Deposit Return Scheme in England, Wales and Northern Ireland“and “Consistency in Household and Business Recycling Collections in England”.

The plastic packaging tax was announced in the 2018 Budget. The government will introduce this new tax on businesses that produce or import plastic packaging which uses “insufficient recycled content”. It will take effect from April 2022 and will be charged at a flat rate per tonne of packaging at the point of production. The consultation does little more than summarise points of agreement and disagreement between consultees and the government. The outcome will not be known until the 2019 Budget.

The plastic packaging tax will complement reformed packaging producer responsibility regulations, which were considered in the second consultation. These regulations will have a significant impact, their aim being to ensure that producers pay the full net cost of the recycling and disposal of their products, a proposal which (in its more detailed form) received just over 50% approval from consultees. The practical effect should be a transfer of the cost from local authorities to producers. A clear majority of respondents, however (60%), agreed that packaging for commercial / industrial applications should be out of scope for full net cost recovery.

In consequence, primary powers will be inserted into the Environment Bill to enable the government to implement new extended producer responsibility (‘EPR’) systems. Consultation as to detailed proposals on the specifics of an EPR system for packaging, together with associated secondary legislation, will take place in 2020 with a view to the new scheme being introduced in 2023.

The result of the third consultation is that a deposit recovery scheme for drinks containers will be introduced in England and Wales from 2023. The consultation summary states that “we will consider which drinks containers are to be included. We anticipate this could be drinks containers up to 3L in volume”. There will be a second consultation in 2020, with primary powers inserted into the Environment Bill.

The fourth and related consultation concerned a large number of questions, the answers to which are intended to boost recycling to the 65% set out in the government’s Resources and Waste Strategy. They have stagnated at about 45%. The headline issue is probably the proposal for the collection of food waste from kerbside properties, including flats. A majority of responses were in favour. The summary only collects responses, but states that it is intended to indicate the “direction of travel”. Proposals, whatever they may ultimately be, are intended to come into force in 2023.

 

“As in all questions to do with costs, the fundamental rule is that there are no rules”

Despite Lord Lloyd’s plaintive cry (in Bolton MBC v Secretary of State for the Environment [1995] 1 WLR 1176), the recent Court of Appeal case of Campaign to Protect Rural England – Kent Branch v Secretary of State for Communities and Local Government and another [2019] EWCA Civ 1230, gives important clarification on costs in environmental statutory and judicial review.

This case involved a failed application by the Kent branch of a well-known environmental pressure group to seek a statutory review of the Local Plan adopted by Maidstone Borough. There was a particular concern about the allocation of a large site which was allocated as employment floor space which was owned by a company called Roxhill Developments Limited.

The application for statutory review failed and Lang J, in accordance with the long-established rule in R (Mount Cook Land Ltd) v Westminster City Council [2004] C.P Rep. 12 ordered that the unsuccessful claimant pay the respondents’ costs of preparing their Acknowledgement of Service and Summary Grounds of Defence. In this case the respondents included both the Secretary of State (as the plan was found sound by an Inspector appointed by the Secretary of State) and the local authority itself.

However, the judge also ordered that the interested party, Roxhill Developments Limited, was entitled to have a proportion of its costs paid by the claimant.

The first ground of appeal was that the judge was wrong to order that CPRE pay the costs incurred by the interested party. The Court of Appeal, with Coulson LJ giving the lead judgement, clarified the judgments in Mount Cook and Bolton Metropolitan District Council and others v Secretary of State for the Environment [1995] 1 WLR 1176 and repeated the maxim that the watchword for the court when costs issues are determined is ‘proportionality’. Coulson LJ held that it is not necessary for an additional defendant or interested party to show ‘exceptional’ or ‘special’ circumstances in order to be awarded their costs of preparing and filing their Acknowledgement of Service and Summary Grounds of Defence and that any party who has been served with a claim form is prima facie entitled to its reasonable costs so long as they were incurred on a reasonable and proportionate basis. Whether such costs are reasonable and proportionate will be decided on a case by case basis.

The second ground of appeal, apparently developed in oral argument, was that the rules for statutory review under the planning Acts were different to the rules for judicial review and that there was less scope for interested parties to receive their costs in statutory review. This received short shrift from the Court of Appeal who held that it would be unhelpful to have different costs regimes for judicial review and statutory review.

The third ground of appeal was that the Court had improperly applied the Aarhus cap. At first instance, Lang J ordered that CPRE pay the SSCLG’s costs claimed and assessed at £2,879; the Council’s costs claimed and assessed at £5,245.50; and Roxhill’s costs, claimed at £6,675 but assessed at £1,875.50. The total sum awarded thus reached £10,000 which was the full amount for which the claimant was liable under the Aarhus costs protection regime.

In essence, the Court of Appeal rejected the claimant’s submission that, because the claim failed at the permission stage, rather than failing subsequently at the conclusion of the substantive hearing, the costs should be subject to some sort of lower cap than the £10,000 stated in the CPR. In short, the court held that provided that the costs being assessed are reasonable and proportionate, there is no obligation under Aarhus to impose a further reduction in costs to reflect the fact that the case failed at the first hurdle.

This correspondent’s feeling was that the court, used to high-cost civil litigation, took the view that environmental claimants were already enjoying a high level of costs protection through the application of the Aarhus costs cap and that the appellants were simply pushing their luck. That view, unsurprisingly, does not seem to be shared by small, under-funded environmental pressure groups who have genuine concerns about every penny of costs for which they may ultimately be liable and who find that the £10,000 costs cap is a huge disincentive to bringing claims which they feel are in the public interest.

 

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Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC, Charles Morgan and Mark Beard consider the responsibilities of developers to protect wildlife, the latest water industry price reviews from Ofwat and a recent judgment ordering the Environment Agency to pay substantial damages for breach of Convention Rights.

 

New Development and wider environmental net gain?

The MHCLG press release’s headline on this Sunday 21 July was that “Brokenshire orders house builders to protect wildlife”. Whilst we can understand the dying wish of the current Secretary of State to work even on his last Sunday, his advisors could at least get the law right. The other Secretary of State vying to make policy in this area, Michael Gove MP, for Defra, got it right when he said that the government will have to change the law to make this a requirement. Gove said he intended to strengthen the duty of all English public bodies to not only “conserve” the environment, but to “enhance” it, when he made his own final speech about the possible content of the Environment Bill (perhaps due in October). He said the “old duty” on public bodies to “have regard”, in the exercise of their functions, to the purpose of conserving biodiversity (see s.40 of the Natural Environment and Rural Communities Act 2006) is not enough.

This is of course the whole point – that enhancing nature conservation is an option still. We only have specific legal requirements to protect designated sites, species and irreplaceable or priority habitats. These are properly reflected by MHCLG in the current National Planning Policy Framework. Defra’s ambition, as set out in its 25-Year Plan and in the consultation that closed in February, for the government to secure ‘net gain’ – that leaves the natural environment in a measurably better state than it was beforehand – is not yet matched by its powers.

It is no surprise that the actual substance of what the Rt Hon James Brokenshire MP said when launching the new text in the online PPG on the ‘Natural Environment’ was to the effect that “the government has set out its expectations on how developers can protect specific species, including using ‘hedgehog highways’ and hollow swift bricks”. The new PPG text is only a survey of the current possibilities. It describes how “net gain” could be secured by way of planning conditions and planning obligations, including by using off-site measures such as “habitat banks” . This government’s message to house builders remains, as Brokenshire said, to try to “harness” public support and to get building in a way that protects the environment for the next generation. Perhaps his advisors hoped the mention of hedgehogs would disguise the fact that it is still more a case of words and not deeds. Perhaps they also hope that enlightened developers will get ahead of the curve and act now rather than waiting for the law to catch up.

 

Ofwat makes a splash with PR19 draft determinations

On 18 July Ofwat published its draft determinations under PR19, the latest 5 yearly cycle of price reviews for the water industry. True to form, the occasion was marked with a colourful and graphical publication (see here):

Major targets include:

  • 40% reduction in sewer flooding
  • 64% drop in supply interruptions
  • 17% reduction in leakage
  • extra help for almost 2 million more vulnerable customers.

As reported in previous news items, the mot du jour is “resilience”. The phrase du jour is “resilience in the round”. This concept informs the approach to leakage, water saving, sustainable drainage systems, catchment management, investment in new infrastructure, governance and financial prudence.

The aspect of the proposals which has attracted the most press attention has been widely described as “£50 off water bills”. However the actual Ofwat headline is “12% fall in bills before inflation”, and at last week’s Westminster Forum conference on “England’s Water Market” David Black, Ofwat’s senior director for Water 2020, acknowledged that by the time the new prices come into operation in 2020, intervening inflation may well substantially reduce any actual numeric reduction in charges.

Three companies (Severn Trent, South West and United Utilities) have been awarded ‘fast track’ status to reflect the high quality of their plans. Four companies (Anglian, Thames, Yorkshire and SES) were singled out for “significant scrutiny” of their “much higher spending than we consider efficient”.

The determinations are certainly a tough ask for the water and sewerage undertakers. Ofwat says that “most water companies can be run more efficiently than their plans suggest”. Further evidence will now be submitted before the final determinations in December.

 

Environment Agency ordered to pay substantial damages for breach of Convention Rights

On 18 July 2019, the Administrative Court at Birmingham (HHJ Cooke) handed down judgment in Mott and Merrett v Environment Agency [2019] EWHC 1304 (Admin) in respect of Mr Mott’s claim for damages under section 8 of the Human Rights Act 1998, which was remitted to the High Court following the Agency’s unsuccessful appeal to the UKSC in February 2018 (see: Environment Agency liable to pay damages for breach of Convention Rights).

This judgment is the culmination of Mr Mott’s claims for judicial review challenging the lawfulness of the Agency’s decisions to impose conditions on his licence to fish for salmon in the river Severn using a putcher rank, greatly limiting his permitted catch. The High Court found that the Agency’s decisions were each unlawful interference with Mr Mott’s Convention rights in the absence of compensation, and made an order declaring that an award of damages was necessary to afford just satisfaction to Mr Mott for the Agency’s unlawful interferences with his rights to property under Article 1 of the First Protocol to the ECHR (“A1P1”). The Judge’s decision on the A1P1 point was upheld by the Court of Appeal and the UKSC.

HHJ Cooke has now considered the basis and quantum of compensation to be paid by the Agency. The parties agreed that Mr Mott should be compensated for his financial losses attributable to the breach and that, in principle, the basis for calculating compensation should be the difference between the value of the salmon catch he was permitted to make under the decisions challenged and that which he could have made but for the infringement of his A1P1 rights.

The main issue for the Court was whether this difference should be calculated, as Mr Mott contended, from the number of fish he could have caught if no catch limit had been imposed, or as the Agency asserted, from an assumption of a different catch limit which it could have imposed without any infringement of Mr Mott’s A1P1 rights.

The Agency’s approach to the assessment was based upon an assumption that, but for the catch limits actually but unlawfully imposed, an alternative lawful decision could and would have been taken such that Mr Mott would have been limited to a catch of not more than 60 fish in each year.

The Court comprehensively rejected the Agency’s approach and decided the main issue in Mr Mott’s favour, ordering the Agency to pay damages assessed the sum of £187,278 (the total amount claimed), plus interest and costs.

Addressing the Agency’s case, the Judge held that it is wrong in principle for the court to make findings as to a counterfactual alternative decision that might have been taken but was not. Rather, where a decision has been taken in breach of Convention rights, to determine the position the claimant would have been in if his rights had not been infringed, the proper comparison to be made is with the situation in which the unlawful decision had not been taken at all. The Judge also found that it would be wrong to accept the Agency’s alternative approaches, which in his view, “amount to no more than inviting the court to put its finger in the air and make a guess on an unprincipled basis as to what a properly acting decision maker would have decided.”

In respect of the proper approach to the assessment of damages, the Judge concluded that it would be objectionable in principle to permit the Agency to present a reasoned case as to what decision it might have reached, supported by evidence and compiled with the benefit of hindsight and the court’s findings. Where the citizen has been caused irrecoverable financial loss by an unlawful decision, the Judge decided that it would be unjust to permit the state to escape from responsibility to compensate him by, in effect, backdating a later decision.
As there are very few authorities addressing the proper approach to the assessment of damages under section 8 of the Human Rights Act 1998, the judgment provides welcome clarification on the practical application of the fundamental principle underlying the award of compensation, namely, that the applicant should, insofar as this is possible, be placed in the same position as if his Convention rights had not been infringed.

The full judgment can be found here.

Mark Beard represented Mr Mott at all stages of this litigation, led by Stephen Hockman QC in the Supreme Court.

 

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Environmental Law Podcast – June 2019

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

In this short update Chris and Mark consider and discuss:

– Ofwat’s flexing of its regulatory muscles and the recent performance assessment of the water industry

– the performance of the Environment Agency and its continued use of civil sanctions

– the UK’s commitment to net zero carbon emissions by 2050

 

Please find a link to June’s podcast here:-

 

Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC and Christopher Badger consider the law on exports of waste and waste classification, the Environment Agency’s report on the performance of water companies in 2018 and publication of the first international standard for climate change.

 

Waste categorisation – do we just leave it to a jury?

The UK relies on exporting large quantities of its waste for recovery abroad, both to OECD and non-OECD countries. This trade is regulated under the Basel Convention and the Waste Shipment Regulation (EC) No 1013/2006 (as applied by the Transfrontier Shipment of Waste Regulations 2007), and certain types of export to non-OECD countries are prohibited, including the shipment of household waste.

Getting it wrong can lead to criminal prosecution, as seen in R. v Biffa Waste Services Ltd [2019] EWCA Crim 20 (reporting restrictions have now been lifted). When the Environment Agency intercepted consignments of ‘mixed waste paper’ bound for China at the dockside, their examination revealed that some of the containers included significant contamination – and they found examples of soiled nappies and sanitary wear, clothing, food packaging, plastic bottles and so on in amongst the waste paper. The Agency argued that these were still really consignments of what had been collected, namely mixed household waste and not mixed paper waste.

Whilst it must be difficult to accept that waste paper may be contaminated with soiled items, there is no such thing as zero contamination. The case illustrates how our recycling industry works – the initial loads of household waste had been the subject of rigorous mechanical and manual sorting processes, which had achieved a high degree of separation of the relevant elements, and it was said that any remaining degree of contamination was residual and minimal. It has to be remembered that these consignments were still loads of waste, being sent for recovery.

The Court of Appeal were asked to rule on what case the defendant actually had to meet. They agreed with the Agency that this technical categorisation point was for the jury to decide. It was a matter of fact and degree whether there was sufficient household waste contamination for a consignment properly to be styled as Y46 household waste (rather than the B3020 mixed paper designation given in the export documentation).

There is a real oddity about this case. It is clear from the Court of Appeal judgment that the Agency was careful to reduce the prosecution to a case about waste categorisation. They said that this was not a case about proving whether contamination in the shipment would prevent the recovery of the waste in an environmentally-sound manner (which most would think is actually the primary purpose of the Basel Convention). They also avoided saying what level of ‘minimal’ contamination might still be allowed, even though, at the time of the offences in 2015, China accepted waste shipments for import and onward processing and recovery so long as the residual contamination of the waste paper was 1.5% or less.

It feels like this story is far from over, and the standards to which the UK’s recycling industry are being asked to work remain uncertain.

 

Water company performance for 2018

The Environment Agency has published its assessment of the environmental performance of the 9 water and sewerage companies operating in England, reporting that it was “simply unacceptable”.

The report identifies that:

  • With one exception, none of the companies are performing at the level that the environment needs;
  • The performance of most companies has deteriorated, reversing the trend of gradual improvement since environmental performance assessment was introduced in 2011;
  • Serious pollution incidents (category 1 and 2) have increased, from 52 in 2017 to 56 in 2018.

Southern Water, South West Water and Yorkshire Water received a two star rating, ‘requiring improvement’. The best performing company was Northumbrian Water, which received four stars or ‘industry leading’.

There were 5 prosecutions against water companies in 2018, with fines totalling £2,227,000, ranging from £15,000 to £2 million. 15 Enforcement Undertaking offers were accepted, totalling £3,432,150, with offers ranging from £35,000 to £975,000.

The Environment Agency have identified that they are setting up an ‘Improving Water Company Performance’ programme which is intended to adjust the Environment Agency’s approach to regulation and to help water companies to drive what it considers are the necessary improvements. This will result in closer regulation and use of enforcement and sanctions outcomes for poorer performing companies. The Environment Agency are also continuing to discuss with OFWAT how they can work closely to use financial penalties and incentives associated with the environmental performance of the companies.

At the same time, Thames Water have just been ordered to pay over £700,000 in fines and costs following the release of up to 30 million litres of sewage from its Maidenhead Sewage Treatment Works, entering the Maidenhead Ditch which joins the River Cut. Hundreds of fish died. There were repeated discharges of untreated or poorly treated raw sewage into the river and failures to react adequately to alarms used to alert Thames Water to problems. The Environment Agency’s press release can be found here

The environmental performance assessment can be found here

 

First international standard for climate change launched

 

ISO 14090:2019 ‘Adaptation to climate change – principles, requirements and guidelines’ has been published by the International Organisation for Standardisation. It is intended to provide organisations with an approach that will allow them to give appropriate consideration to climate change adaptation when designing, implementing, improving and updating policies, strategies, plans and activities. The document notes that climate change adaptation activities should be carried out in parallel with, or integrated with, climate change mitigation activities and other sustainability priorities.

It is hoped that applying the approach set out in the standard will assist in demonstrating that a particular organisation’s approach to climate change adaptation is credible and that it ought to provide reassurance to investors or insurance companies when seeking to understand another organisation’s climate change adaptation.

The ISO is also developing other related standards which include:

  • ISO 14091 ‘Adaptation to climate change: vulnerability, impacts and risk assessment;
  • ISO 14092 ‘GHG management and related activities: requirements and guidance of adaptation planning for organisations, including local government and communities.

The ISO’s press release can be found here

 

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Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC, Nicholas Ostrowski and Mark Davies consider Peter Kellett’s UKELA presentation on how to achieve environmental compliance, the publication of the Environment Agency’s quarterly scorecard and the UK Government’s new Green Finance Strategy.

 

What achieves environmental compliance ?

At the UKELA Annual Conference in Sheffield, we heard some personal reflections from Peter Kellett, the Director of Legal Services for the Environment Agency, about what can secure high levels of business compliance with environmental laws. The Agency has reviewed the evidence from its own actions in 2013-2018. In his view, the benefits of regulation (or dis-benefits from the lack of effective regulation) have come under scrutiny through the harrowing Grenfell inquiry. It is almost inconceivable that every regulator has not reconsidered its regulatory approaches in consequence.

Enforcement interventions do not work in isolation, and all appear to need an ultimate backstop of a civil penalty or prosecution. The overall background is that there have been non-compliance issues with less than 3% of the 14,000 industrial permits the Agency regulates (as at 2018). Appeals against their decisions to grant a permit subject to conditions, or to refuse, suspend or revoke them are unsuccessful in almost all cases.

When Enforcement Notices are used, they are complied with in roughly 60% of cases (and there is then no need for further immediate regulatory action in those cases). Whilst they are prosecuting fewer cases, those that they do take have about a 95% success rate (our note: which may have a lot to do with strict liability but also raises a query about which cases are not being pursued). There has been a significant increase in custodial and financial penalties and ancillary orders, including Proceeds of Crime Act Orders and Orders to remedy the cause of the offending. Conversely, the Sentencing Guidelines’ structured approach has led to high fines for large companies which has appeared to encourage defendants to contest cases more vigorously. The use of Enforcement Undertakings is seen so far to have been a great success, with offenders being brought into compliance without the stigma of prosecution, making amends locally for the harm they have caused (through some £11,500,000 contributed towards environmental projects), and crucially (with the exception of water and sewerage undertakers) no reoffending. There have been almost 400 acceptances of Enforcement Undertakings, although they have turned a number of offers down.

There are some less successful areas. Notices requiring the removal of waste on land are complied with in only roughly 33% of cases, which probably reflects the type of enforcement situation where they have to be used as part of a range of regulatory actions. Another area that was highlighted was the use of Injunctions, as the Agency’s experience is that they do not appear to work as a remedy where the Agency has had to seek to enforce them in the Courts.

Peter Kellett’s thoughtful piece comes at a time when there is continued pressure to reduce regulatory burdens. As he said as part of his conclusions, “Over the next 12 years, as we try to mitigate the worst impacts of climate change, should we listen to attacks on regulation or to the evidence which suggests that direct regulation actually works?

 

The Environment Agency’s quarterly scorecard published – pollution incidents polluting the Agency’s performance

Peter Kellett’s comments on effective regulation is well timed. On 27 June 2019 the Environment Agency published its ‘corporate scorecard’ for the third quarter of 2018-19 which is intended to provide readers with an ‘at a glance’ look at the Agency’s performance over a number of metrics set out in the Environment Agency action plan.

The scorecard is full of numbers, tables and charts and uses a traffic light system to set out those targets which the Environment Agency is on track to hit, those which it may hit and those which it will probably fail.

The measures against which the Environment Agency is assessed are spread across water, pollution, habitats, flooding, incident response and influencing planning decisions by local authorities. There are also ‘organisational’ targets such as the management of the Environment Agency’s budget and, importantly, the ethnic and gender diversity of its workforce.

As readers may recall from the last quarterly scorecard in June 2019, the Environment Agency is currently failing in its plan to reduce serious pollution incidents. The numbers have in fact got worse over the last quarter and while the ceiling target is to have no more than 400 such events in a year, the actual number of incidents rose from 492 such events to 514 events recorded in first three quarters of the year. The other main negative is that the number of illegal waste sites remains stubbornly high and the Agency confirms that it is unlikely to hit its ambitious target of improving 2000km of water environment.

The Environment Agency goes on to set out the ways in which it is investing in a ‘review and overhaul [of] how we regulate to improve water company performance’ so that may have an impact on how pollution incidents from water companies are addressed but, as it stands, there are few details about how the Environment Agency plans to address the other sources of water pollution which it accepts have increased as sources of such pollution in the last quarter. The Environment Agency frequently describes the targets which have been set as ‘challenging’ and this may be a hint that, in future, it will invite DEFRA to agree less ambitious targets for pollution and waste.

 

Government publishes its Green Finance Strategy

On 2 July 2019 the Government published its ‘Green Finance Strategy: Transforming Finance for a Greener Future’. Regular readers of this Blog will be familiar with the ongoing shift towards a ‘greening’ of the financial sector and this is the latest instalment. The Strategy sets out to achieve the ‘ambition of the Green Finance Taskforce’ and ‘accelerate the growth of green finance’.

The Strategy sets out two initial principles:

  • Aligning private sector financial flows with clean, environmentally sustainable and resilient growth; and
  • Strengthening the competitiveness of the UK financial services sector.

These principles are to be achieved by three main drivers: ‘greening finance’, ‘financing green’ and ‘capturing the opportunity’. Greening finance and capturing the opportunity are relatively familiar phrases, but financing green is perhaps not. Encouragingly under it the Strategy indicates that ‘robust, long-term policy frameworks’ should be established, with ‘improved access to finance for green investment’. It is anticipated that all listed companies and large asset owners will disclose in line with the recommendations of the Task Force on Climate-related Financial Disclosures (“TCFD”) by 2022, and that the government will clarify the responsibilities of the Prudential Regulation Authority, the Financial Conduct Authority and the Financial Policy Committee.

However, the tone of the Strategy seems somewhat out of step with some of the Government’s previous decisions in relation to ‘financing green’ (think the moratorium on on-shore wind, the scrapping of subsidies for the UK’s solar industry or the reduction in subsidies for battery powered vehicles). To expand on the last example, whilst the Strategy highlights that £1.5 billion is to be invested between April 2015 and March 2021 in grants for ULEZ vehicles, just last week The Society of Motor Manufacturers and Traders (SMMT) (see link here) reported that the sales of low emissions had dropped for the first time in two years with the chief executive of the SMMT reporting that:

“Manufacturers have invested billions to bring these vehicles to market but their efforts are now being undermined by confusing policies and the premature removal of purchase incentives.

“If we are to see widespread uptake of these vehicles, which are an essential part of a smooth transition to zero emission transport, we need world-class, long-term incentives and substantial investment in infrastructure.”

Quite how the Government proposes to reconcile its previous decisions with the ‘financing green’ aspect of the Strategy is unclear, but action is clearly required if the Strategy is to be effective.

As a side note, it is interesting to see that the Ministerial Foreword reiterates the commitment made by Theresa May that the UK will be ‘legislating for net zero emissions by 2050’ in ‘response to the latest science’. Setting aside that the science has for a long time been saying that the 80% reduction by 2050 was inadequate (and accepting that at the time of the Climate Change Act in 2008 it was an ambitious, long-term target) one has to wonder whether any decisions that have been taken, or indeed decisions that are made before the new target is legislated for, could be attacked on the basis of the commitment. Time will tell.

 

Planning, Development and Environmental Law’: UK Supreme Court Yearbook

Stephen Hockman QC and Nicholas Ostrowski have written a chapter in the latest UK Supreme Court Yearbook. The chapter, entitled ‘Planning, Development and Environmental Law’ focuses on the developments in this area of law during the 2017-18 legal year. More here

 

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