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Posted on: 15 May 2020
Environmental Law News UpdateTweet
In this latest Environmental Law News Update, Charles Morgan, Christopher 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  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 Under section 30 of the Environmental Protection Act 1990, as originally enacted, a local authority was a waste regulation authority and entitled, under section 71 of the EPA 1990, by notice in writing, to require any person to furnish such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  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.
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  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  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.
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