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Posted on: 30 July 2019
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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  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  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  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  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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