Environmental Law News Update

In this latest Environmental Law News Update, Charles MorganChristopher Badger and Mark Davies consider a Court of Appeal case on the meaning of exempt waste operations, a new report on financing energy efficient buildings and the impact of COVID-19 on the aqueous environment.

Court of Appeal rules on the meaning of exempt waste operations

In Mustafa and Breslin v Environment Agency [2020] EWCA Crim 597 the Court of Appeal (Criminal Division) considered the nature of exempt operations.

Mustafa and Breslin were both Directors of a company called Prime Biomass Ltd. The company operated a facility for the storage and treatment of waste wood on premises at Dover’s Corner Industrial Estate. As part of its business operations, the company stored and shipped waste wood to Sweden.

On 21 January 2013 the company registered its operation as an “exempt facility” under a T6 exemption, allowing up to 500 tonnes of waste wood to be stored or treated at the site over a 7 day period. When EA officers visited the site in March there was no issue that the site was operating within the terms of its exemption. However, in visits in September and December, EA officers found the site to be storing significantly in excess of 500 tonnes of wood. Complaints were received in 2014 about nuisance caused by emissions of wood dust from the site.

Mustafa and Breslin were subsequently prosecuted under the parasitic ‘consent, connivance and neglect’ provisions for their role as Directors. The history of the case is complicated, with a successful application to dismiss, a subsequent voluntary bill of indictment and convictions after trial in 2018. The key issue for the Court of Appeal was the directions given to the jury on when an exemption could be considered invalid.

The central submission by the Appellants was that an exemption does not cease to be effective until it is removed from the public register. The Court of Appeal concluded that this was mistaken. There are three requirements for an exempt waste operation:

i) That the operation satisfies “the general and specific conditions” specified in Part 1 of Schedule 3 to the Environmental Permitting Regulations for the relevant description of the operation;

ii) That the exemption is registered; and

iii) That the type and quantity of waste, and the method of disposal or recovery, are consistent with the relevant objectives of the Waste Framework Directive – that it does not endanger human health or harm the environment.

The Court held that these three requirements are mandatory. A failure to satisfy any one of these requirements means that the operation cannot be considered an “exempt waste operation” for as long as that requirement is not met. Consequently, an exempt waste operation can temporarily cease to be exempt depending on the manner in which the operation is run, if, for example, that manner were to result in harm to the environment.

The fact that the exemption had not been deregistered at the time of the alleged offending did not impact on whether the waste operation was exempt or not. It also means that the moment that the site exceeded the tonnage limit found in the T6 exemption, the operations ceased to be exempt.

Green Finance Institute reports on ‘Financing energy efficient buildings: the path to retrofit at scale’

A lot is written about the impacts of burning fossil fuels and the impacts of transport on climate change, (rightly so) but often overlooked, or at least not spoken about at such length, is our profligacy in heating our own homes. The inefficiencies in the way we use oil and gas to heat our homes accounts (according to the Energy Saving Trust) for the greatest contribution per household to kg/CO2 emissions. In 2017, ‘Heating’ accounted for 2,745 kg/CO2 emissions per household compared to 2,376 kg/CO2 on ‘Transport’, 755 kg/CO2 on ‘Electricity’, 1,027 kg/CO2 on ‘Aviation’, 1,591 kg/CO2 on ‘Diet/Agriculture’ and a measly 305 kg/CO2 on ‘Waste’.

What do we need to reduce the average household kg/CO2 emissions for heating to by 2020 to achieve Net Zero? 138 kg/CO2. A reduction of 2,607 kg/CO2 per household. Or 95%. The scale of the task is staggering.

On that basis it is excellent to see that the Green Finance Institute published its report ‘Financing energy efficient buildings: the path to retrofit at scale’ on 20 May 2020. At 70 pages it isn’t a lightweight document, but then given the scale of the challenge, one wouldn’t expect it to be.

The Green Finance Institute, itself only recently established, set up in December 2019 the Coalition for the Energy Efficiency of Buildings with a view to stimulating action across the finance sector to support the decarbonisation of homes. The Coalition hopes to bring to market a portfolio of ‘demonstrator’ financial solutions that are ‘commercial, scalable and mobilise capital flows towards the retrofit of UK homes to improved energy performance standards’, which are intended to assist in meeting the target (set out in the Government’s 2017 Clean Growth Strategy) of as many homes as possible achieving an EPC rating of C by 2035. Meeting that target alone will reportedly require a total investment of around £65 billion. The report carefully sets out both the financial and non-financial barriers to its achievement across various housing sectors (owner-occupied, private-rented, social-rented, etc.).

The ‘demonstrator’ products presaged in the report are split into the following areas: ‘Data and enabling frameworks’, ‘Tenancy agreements’, ‘Lending products’, ‘Saving and investment products’, ‘Energy service products’, and ‘Guarantee mechanism’.

Unfortunately, and unsurprisingly, the report is caveated by reference to the COVID-19 pandemic, with the exact timeline for the project noted as ‘uncertain’. Given the scale of the challenge faced, let us hope the policy announcements expected later this year in the National Infrastructure Strategy, Spending Review and Heat Strategy do not shy away from the issue.

COVID-19 and the aqueous environment

We try to avoid mentioning it, but its appearance in environmental law contexts is sometimes unavoidable. The COVID-19 pandemic has had numerous impacts on the aqueous environment, some benign and some not. We predicted one positive aspect:- way back on 12 March (still working in Chambers, that seems a lifetime ago) we published an article anticipating amongst other things improvement in the water quality of the Venetian canals, which did indeed come to pass, as was widely reported.

We also noted the countervailing prospect of increased discharge of pollutants into the sewerage system due to hygiene measures, but failed to spot the obvious one – the virus itself. It was, in hindsight, inevitable (for reasons too earthy to relate) that it would enter that system. The real concern is that it may then be capable of surviving indefinitely and remaining infectious, even after treatment and discharge into receiving waters, although tertiary treatment (disinfection) where available appears capable of being completely effective. A considerable body of science on the subject is now developing. The reciprocal consolation is that sewage testing may provide early warning of outbreaks and also enable some estimate of prevalence in a particular community.

Even if treatment does injure or kill the virus, the fact remains that discharges of untreated sewage from combined sewer overflows (CSOs) in the UK are not uncommon; indeed it is the very purpose of CSOs and their operation is expressly permitted by footnote 1 of Annex 1 to the Urban Waste Water Directive “during situations such as unusually heavy rainfall” – an expression which provides ample scope for interpretation. Fortunately, since March most of the UK has suffered from prolonged drought, which may limit any threat from this source.

Another less than obvious threat to the aqueous environment is that from increased numbers of burials (whether of victims or others). The Environment Agency has issued guidance (Protecting groundwater when developing or expanding cemeteries during coronavirus) purporting to waive the need for an environmental permit in respect of new or expanded cemeteries. A suite of pre-existing guidance seeks to determine whether a permit is needed by reference to risk to groundwater. The new guidance purports to waive altogether the need for a permit during the pandemic provided that it is followed, a pragmatic and understandable approach but one of potentially obscure legal effect.

There will no doubt be many other environmental consequences, known and unknown. We might as well continue to enjoy the more obvious positive ones while they last. Peace and quiet be with you.

Please also view our Covid-19 Guidance Tracker – a new resource set up by the Regulatory team to enable businesses and legal professionals to more easily navigate to the applicable Covid-19 guidance that is most relevant to their area of work.

To keep up-to-date follow us on Twitter @6pumpcourt or 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 – May 2020

This month the Podcast partners with the UK Environmental Law Association (UKELA), to bring you a COVID-19 special where we hear from environmental regulators on how the pandemic is affecting operations.

Simone Davidson, Head of Lexis PSL Environment, Trustee and a Vice Chair for UKELA and Mark Davies, Barrister at Six Pump Court talk to Peter Kellett, Director for Legal Services for the Environment Agency, Richard Broadbent, Principal Solicitor for Natural England and Terry A’Hearn, CEO of the Scottish Environmental Protection Agency.

To listen to the podcast, please use the link below:-

Environmental Law News Update

In this latest Environmental Law News Update, Charles MorganChristopher Badger and Natasha Hausdorff consider interpretations by the courts of s108 powers, how the lockdown has shaped environmental mindsets and another ‘fishy’ decision.

S.108(4)(j) powers restricted by the Administrative Court

In Walker v Chelmsford City Council [2020] EWHC 625 (Admin), the Queen’s Bench Division held that the power to request information pursuant to section 108(4)(j) of the Environment Act 1995 was not a “free-standing power” but in fact could only be utilised pursuant to the powers of entry found under section 108.

The decision is, on first review, surprising. There are a number of powers within s.108 that self-evidently do not require any entry into premises. These would include s.108(4)(c) “to make such examination and investigation as may in any circumstances be necessary” and s.108(4)(d) to direct that any part of premises for which there is a power to enter shall be left undisturbed for so long as is reasonably necessary for the purpose of any examination or investigation. It isn’t immediately clear why s.108(4)(j) should be limited to circumstances where an authorised officer has already entered premises.

The answer found in the authority rests on the legislative history of the provision. Under section 30 of the Environmental Protection Act 1990, as originally enacted, a local authority was a waste regulation authority and entitled, under section 71 of the EPA 1990, by notice in writing, to require any person to furnish such information as specified in the notice. The origin of s.108(4)(j) could be found in s.69(3)(i) of the EPA 1990. Consequently, there are two powers (one under s.108 EA 1995 but originally found in s.69 EPA 1990 and one under s.71 EPA 1990) whereby the local authority could require information.

It was argued that it would be incomprehensible for those two powers to be indistinguishable and pointed out that while s.108 prohibits such information being used in evidence against the compelled person, s.71 contains no such restriction. It appears that it was this distinction that persuaded the court that s.108 could only apply to a face-to-face request for information.

This has important ramifications. S.108(4)(j) cannot now be used to write to an individual requiring a response to written questions. It cannot be used unless the request is a face-to-face request for information. It also cannot be used unless the power is being used pursuant to the powers of entry. Consequently, it may well be argued that it is not open to an authorised officer to attempt to use s.108(4)(j) in circumstances where they have not already entered the relevant premises.

This is in marked contrast to the significantly wider interpretation given to section 20 of the Health and Safety at Work etc. Act 1974 found in R (on the application of Wandsworth LBC) v South Western Magistrates Court [2003] EWGC 1158 (Admin). The Court in Walker recognised that the wording of the two Acts was essentially identical but saw no difficulty in reaching a conclusion that means that the powers of authorised officers under EA 1995 should be more restrictively interpreted than under the HSWA.

The Court pointed out that it is open to the Secretary of State under s.108(4)(m) to make new regulations to confer new powers. We will have to wait and see whether this option is taken up in light of this restrictive authority.

Stephen Hockman QC and Natasha Hausdorff acted on behalf of Chelmsford City Council. Leave to appeal to the Supreme Court was refused.

How Lockdown has shaped the environmental mindset

According to research published this month by Hitachi Capital UK, lockdown has caused a majority of British workers to re-evaluate their own environmental impact and consider changes, such as greener commuting alternatives, once the lockdown restrictions ease.

The time and costs savings of ending the daily commute were cited by the majority as the reason for working from home being an attractive prospect. Over a quarter of the 1,800 UK adults consulted are now more likely to buy an electric car compared to before the pandemic. The greatest enthusiasm for home working after the lockdown emanated from recruitment and human resources professionals (69%), followed by IT workers (63%) and legal professionals (61%). Nevertheless, not all professionals consider themselves well suited to being out of the workplace; those in business and consulting (51%), marketing (50%) and education (46%) were the most eager to return to their regular place of work when restrictions end.

Robert Gordon, CEO of Hitachi Capital UK, was quick to cite the environmental aspects arising, stating that the “research shows that people are not only re-evaluating how they work, but also the impact they have on the environment and what long term changes they are prepared to make”.

The cleaner city air and quieter roads have clearly created a positive and fundamental shift in attitude when it comes to the environment. It would seem that the extreme nature of the current circumstances has influenced the majority of people consulted to place more importance on reducing their carbon footprint than ever before.

On the other side of the equation, however, airlines have been seeking to scale back their targets in the wake of the crisis, demanding the rewrite of a global agreement designed to cut aviation carbon emissions. The International Air Transport Association (IATA), the global trade association for airlines, claimed a scheme to offset any rise in emissions would place an “inappropriate economic burden” on operators already struggling with the impact of the worldwide Covid-19 lockdown. IATA also warned that airlines could pull out of the United Nations-led carbon offsetting and reduction scheme for international aviation (Corsia) unless it was amended.

The question will be how this approach might be received by the general public when the data appears to establish that the enforced lockdown has altered the outlook of many on the long term future and the environment.

A fishy decision

In Borwick Development Solutions Ltd v Clear Water Fisheries Ltd [2020] EWCA Civ 578 the Court of Appeal engaged in a florid deployment of legal Latin (usually discouraged). The judgment is replete with discussion of the distinction between animals ferae naturae and domitae naturae and, in the former case, the qualified ownership which may nevertheless arise per industriam, ratione impotentiae et loci, ratione soli or ratione privilegii, accompanied by citation of authority dating back to the 16th century (Greyes case (1593) Owen 20).

The context was a dispute over the property rights in fish confined within artificial lakes at a commercial fishery. The poor creatures had been condemned to a life of being repeatedly caught and returned to the water by anglers, an activity of modern commercial value despite being described by Lindley LJ a century earlier in Fitzgerald v Firbank [1897] 2 Ch 96 as “not what is understood by lawyers or men of sense as a right of fishing”.

The owner of the lakes and operator of the fishery had invested a great deal of money in the stocking of the lakes for the purpose of its business. However the lakes were sold by a receiver appointed by a mortgagee, who, spotting the knotty legal problem which was looming, declined to provide the purchaser with any warranty in relation to ownership of the fish. The Court of Appeal nevertheless held that ownership of the fish as animals ferae naturae had passed with the land, the mortgagor’s qualified property in them per industriam being inherently bound up with possession of the lakes and lost as soon as that possession was given up without any reservation of rights over the fish.

The Court of Appeal declined to create a third category of captive wild animals which could, like animals domitae naturae, be subject to absolute ownership. At least this spared them the task of coming up with a new Latin name for such mythical creatures, but it seems a harsh decision for the former owner and something of a windfall (or perhaps “an easy catch” would be a better metaphor) for the purchaser, who got the fish, worth hundreds of thousands of pounds, for nothing.

As for fish, so too for water. Blackstone in his Commentaries noted that “Water is a moveable, wandering thing and must, of necessity, continue common by law of nature, so that I can only have a temporary, transient, usufructory property therein.” But that’s another story for another case on another day.

To keep up-to-date follow us on Twitter @6pumpcourt or 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

‘Loosening the Lockdown in the Workplace’

by Grace Cullen

Today, the Government published its detailed plan for lifting the lockdown. The Plan makes clear that the Government is balancing competing risks, namely the spread of Covid-19 in communities and the need to safeguard the NHS versus the impact on the economy, the impact on other health issues (including mental health) and the impact on education. The plan makes clear that funding the NHS is dependent on a strong economy. With that in mind, the Government has encouraged workers to go back to work, where it is not possible for them to work from home. The following guidance has been given to take effect from the 13th May 2020:

‘For the foreseeable future, workers should continue to work from home rather than their normal physical workplace, wherever possible. This will help minimise the number of social contacts across the country and therefore keep transmissions as low as possible…

All workers who cannot work from home should travel to work if their workplace is open.’

Key industries such as food production, manufacturing, logistics, scientific research and distribution workers have been identified where employees are actively encouraged to return to work. Whereas hospitality and non-essential retail are currently required to remain closed.

What does that mean in practice?

As part of the Guidance, the Government has referred to its ‘Covid-19 Secure Guidelines’ which must be adhered to in workplaces. The Government is working with relevant bodies including the Health and Safety Executive, unions, local authorities, industry bodies and Public Health England to provide guidance for employers and companies to provide safe working environments for their staff.

The detail has not been published but is expected later this week. One key difference from pre-lockdown and post-lockdown is the use of face masks or coverings in public areas and public transport. The Covid-19 Secure Guidelines will likely include reference to provision of PPE (personal protective equipment) to the workforce, how social distancing will be managed and what precautions can be taken if it is not possible to socially distance.

It is worth remembering that employers remain under a duty of care to their employers and workers, which includes a duty to keep them safe. As well as regulatory (statutory) duties on employers, the employer is also subject to the implied term of mutual trust and confidence which is a term included in every employment contract. It is likely to be a breach of this term if an employer requires its employees to work in an environment which is unsafe. In such circumstances, employees may be entitled to treat unsafe working environments as a breach of the implied term and therefore a fundamental breach of contract. This could mean constructive dismissal and a possible claim for unfair dismissal.

Employers will be very aware of the need to keep their workforce safe under very difficult circumstances. Hopefully, most employers will be working hard to ensure that workers who are required to attend their workplace in person are protected and safe. It is therefore essential that the Government provides clear guidance that make it easy for employers to adopt and ensure the safety of their staff (and therefore the community) is protected.

Redundancy and Coronavirus: Picking up the Pieces

by Gordon Menzies

1. Clearly recent events have had a huge impact on business and substantial changes to the nature and size of workforces is expected which will, unfortunately, require consideration of redundancies.

2. The threshold conditions for redundancy are well known as set out in s139 ERA:

139.— Redundancy .
(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to—
(a) the fact that his employer has ceased or intends to cease—
(i) to carry on the business for the purposes of which the employee was employed by him, or
(ii) to carry on that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business—
(i) for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish

3. As will be appreciated Employment Tribunals will be unlikely to consider in detail why there has been such a cessation or diminution of work of a particular kind (it is legally irrelevant) but the pressures that events of the past months have put on business may be readily apparent.

4. As ever, the key to dealing with such scenarios is fair procedure. Consultation time limits for companies with larger numbers of employees are not going to change but for smaller businesses it may be that Employment Tribunals will take into account any acute time pressures caused by the current situation.

5. Clearly the core elements of fair procedure are warning, consultation, fair selection of pool and criteria and consideration of alternative employment.

6. In relation to warning it may be that employees are well aware of the risk of a long-term downturn in the work of a business but it is important that specific warning is given to specific employees of a specific redundancy exercise. An employer cannot rely on any general perception by employees about the problems a business may be facing.

7. Consultation can go hand in hand with warning although sight should not be lost of the fact that Employment Tribunals treat these as two separate elements. It is here, perhaps, that Employment Tribunals may give some more leeway than otherwise as far as time for consultation is concerned if there is a need to act quickly and statutory time limits do not apply.

8. It is likely that it will be in this context that flexible working may be raised and will need to be considered as a way of preventing redundancies. Employers will be alive to the fact that working from home may not necessarily avoid a redundancy situation because any cost saving may be marginal. However clearly short time/part time working arrangements may be attractive in this context. If such arrangements are proposed then a separate agreement is advised as it may amount to an attempt to vary the present contract. Also if this proposal is for a temporary period then the agreement should make the proposed duration clear and/or specify a mechanism for termination. The benefit of having such arrangements in writing is obvious.

9. Changes to terms and conditions may also have to be considered. Employment Tribunals are particularly concerned about the way such changes are proposed. In the context of a potential claim for constructive dismissal arising from such an exercise the emphasis, as far as Employment Tribunals are concerned, has been on fair procedure rather than substantive perceived unfairness.

10. In relation to fair selection of a redundancy pool it should be noted that the pool does not have to be drawn from those doing exactly the same kind of work so long as an employer has genuinely applied its mind to the issue of the pool.

11. As far as objective criteria for selection from the pool is concerned, it is worth remembering that criteria can sometimes be too objective. In the case of Biluan v Mental Health Care (UK) Ltd UKEAT/0248/12 [2013] All ER 265 the redundancy criteria were split into three: 20% for disciplinary record, 20% for sickness absence and 60% for competency. This led to some ‘surprising’ choices and ultimately it was held to be unfair as there should have been some input by managers to ‘moderate’ the results.

12. Using sickness absence as one of the criteria is likely to become more controversial in the current climate.

13. Lastly, there will need to be consideration of alternative employment. The obligation is to take reasonable steps – not every conceivable step.

Environmental Law News Update

In this latest Environmental Law News Update, Charles MorganChristopher Badger and Natasha Hausdorff consider the refusal of the High Court for a judicial review of the HS2 decision, the Supreme Court judgment on the proper ambit for “ESG” considerations in relation to public pension schemes, and the powers of the Environment Agency regarding ‘fish passes’.

High Court refuses permission to JR decision to continue with HS2

On 6 April 2020, the High Court comprising of Coulson J and Holgate J refused permission to bring judicial review proceedings challenging the Secretary of State for Transport’s decision to continue with the HS2 rail project on the ground that the challenge did not have a realistic prospect of success. Alternatively, even if the Claimant did have a reasonable prospect of success, the balance of convenience favoured continuation of the clearance of ancient woodland.

In Packham v Secretary of State for Transport [2020] EWHC 829 (Admin) the Claimant, TV personality Chris Packham, challenged the decision to continue with the HS2 project on 4 grounds (summarised below):

i) That alleged deficiencies in the Oakervee Review (a specific review tasked with looking at “whether and how HS2 should proceed”) were not properly considered by the Secretary of State;
ii) That there was a failure to give full consideration to environmental impacts;
iii) That insufficient attention was paid to the effect of the project on greenhouse gas emissions during the period up to 2050; and
iv) That the Oakervee Review breached the public’s legitimate expectation of what should be part of the nature, scope and extent of the Review.

All four grounds were dismissed fairly summarily in the Judgment.

In light of the decision preventing the development of the third runway at Heathrow, it is the third ground that is the most interesting. In this case, the High Court found that the argument that the Secretary of State had failed to address the importance of reducing the cumulative burden of carbon emissions in the period leading up to 2050 was wholly unarguable. The Court found that the effects of the project before and after 2050, resulting from construction and the first 60 years of operation had been considered, including a conclusion by the Secretary of State that the project is “likely to be close to carbon neutral”.

It is understood that permission to appeal is currently being considered.

In view of the coronavirus pandemic, the hearing took place remotely, observed by many members of the Press over Skype. It was considered to be a success.

Supreme Court splits over the proper ambit for environmental social and corporate governance “ESG” considerations for public pensions schemes

This week, in [2020] UKSC 16, the Supreme Court split over its consideration of a judicial review concerning how ESG considerations are taken into account by the authorities which administer the local government pension schemes.

The Public Service Pensions Act 2013 (“The 2013 Act”) empowers the Secretary of State to make regulations providing for the issue of guidance to authorities on the scheme’s “administration and management” (section 3 and para 12 of Schedule 3). The Local Government Pension Scheme (Management and Investment of Funds) Regulations 2016 (“The 2016 Regulations”), made pursuant to these provisions, require an authority to formulate an investment strategy. This must be in accordance with the guidance and must include the authority’s policy on “how social, environmental and corporate governance considerations are taken into account” in its investment decisions (reg. 7).

The Appellants challenged, inter alia, guidance issued in 2016 that where there is no material financial consequence attached to a decision, authorities “[s]hould not pursue policies that are contrary to UK foreign policy or UK defence policy”. By a majority, the Supreme Court held that this exceeded the statutory power. Giving the leading judgement, Lord Wilson said: “Power to direct HOW administrators should approach the making of investment decisions by reference to non-financial considerations does not include power to direct (in this case for entirely extraneous reasons) WHAT investments they should not make” [31].

Nevertheless, in a strong dissenting judgement Lady Arden and Lord Sales highlighted the artificiality of this distinction [84] and found the guidance to be within the wide discretion of the Secretary of State. In their view, the issue was “clearly one of policy as to what was in the public interest” and limited to boycotts which would undermine UK foreign and defence policy and which constitutionally were outside the competence of local government.

While the administrators of funds have a primary responsibility to their beneficiaries’ best financial interests, the question of what extraneous considerations are appropriate with respect to ESG remains fraught. This is a particular issue where public and private interests co-exist, as where the benefits for scheme members are guaranteed by statute and so are underwritten by the state. The Prime Minister noted in December that the Queen’s Speech included a Bill to stop public bodies from taking it upon themselves to boycott goods from other countries, in pursuit of their own pseudo foreign policy against countries. In all likelihood therefore we would expect now to see legislation precluding the apparent politicisation of local government, which was the subject of this appeal.

“(Le saum)on ne passe pas!”

In Pigot v Environment Agency [2020] EWHC 930 (Ch) the High Court had to consider in some depth the duties and the powers of the Environment Agency in relation to the creation and operation of fish passes pursuant to section 10 of the Salmon and Freshwater Fisheries Act 1975. For the uninitiated, the purpose and effect of a fish pass is to permit the safe passage of fish across an artificial barrier in a river such as a weir, sluice or dam. The contest in the case was ultimately between the interests of the salmon in the River Kennet at Padworth in Berkshire and those of an upstream proprietor, the potency of whose water-driven turbine was diminished by the opening of the fish pass at times of low flow.

S.10 gives the EA power to construct and maintain fish passes but only “so long as no injury is done to the milling power, or to the supply of water of or to any navigable river, canal or other inland navigation”. It was agreed that the turbine was a “mill”, which was defined as including any erection for the purpose of developing water power. Its owner sought declarations that the EA was liable in nuisance and/or breach of statutory duty for any injury he might suffer by the operation of the pass to the prejudice of his turbine. The EA relied upon the defence of statutory authority.

The deputy judge (Stephen Jourdan QC) delivered a 25-page long judgment which cannot be adequately summarised in this blog item. At its shortest, he held that the EA was prima facie liable in the tort of nuisance and unable to rely upon the defence of statutory authority to justify operation of the pass at times of low flow. The judgment contains a very careful analysis of the principles of that defence and in particular the distinction between the performance of a statutory duty and the exercise of a statutory power as the origin of the claimed authority. The only point on which the claimant failed was that the judge held that S.10 did not impose upon the EA any statutory duty to prevent injury to the claimant, there being no need or room for such an interpretation.

This area of law is turgid* and unsettled. It is also of wide and diffuse application, not least in other aspects of water law such as the activities of water and sewerage undertakers. There seems ample scope for a visit to the Court of Appeal to settle some important points.

Note: the transcript of the judgment in this case is not yet available on BAILII or other non-subscription services. It can be found on LexisNexis, Westlaw, Practical Law and Lawtel.

  • we like our aqueous metaphors

To keep up-to-date follow us on Twitter @6pumpcourt or 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