Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Nicholas Ostrowski consider effectiveness of the Bathing Water Directive, the UK Citizens Climate Assembly’s efforts to explore how the UK can achieve net-zero greenhouse gas emissions by 2050 and further caselaw on Aarhus costs capping orders in judicial review.

When bad marks don’t count …

The big problem with bathing water is that sometimes it has sewage in it. That is why the Bathing Water Directive (BWD) is described in its recitals as “closely co-ordinated with” the Urban Wastewater Treatment Directive (UWWTD), which is, via its UK implementation, the principal driver for the regulation of sewage discharges into inland and coastal waters. The latter directive recognises as intended and inevitable, and therefore permits, discharges of untreated sewage from combined sewer overflows (CSOs) – but only “during situations such as unusually heavy rainfall”.

You might have thought, therefore, that a principal purpose and usefulness of the sampling régime created by the BWD would be to capture and evaluate the results of the operation of CSOs at such times – aren’t such discharges the very events whose effect needs to be known? There is however a respectable counter-argument. As well as curtailing the scope for discharges from CSOs, the UWWTD also regulates the continuous discharges to receiving waters that are the normal and inevitable consequence of properly-managed sewage treatment; an example of our maxim that, when it comes to pollution, “Nothing ever goes away; it just goes somewhere else”. In the case of final effluent from sewage treatment, that “somewhere else” is, either directly or via internal watercourses, the sea, with access to which the UK is abundantly blessed. Thus, in the absence of “unusually heavy rainfall”, i.e. during the state of affairs which usually prevails, there is a relatively steady sewage load upon offshore waters whose effect is prevalent and typical. The state of the water during these times is what the would-be bather will usually encounter and what needs to be used for classification purposes.

The argument goes further still. Few, if any, people will seek to bathe during, or in the immediate aftermath of, periods of “unusually heavy rainfall”. Therefore the consequences of these “outlier” events will be felt by very few. Thus, it is in effect positively misleading to assess the quality of the water by reference to data obtained during such events and indeed (as seen from the point of view of the sewerage undertaker responsible) “unfair”.

This argument has found favour with the Environment Agency for many years and given rise to the “wet weather waiver” or, to give it its proper title, “Abnormal Weather Exception”. Indeed it finds official sanction in article 6 of the BWD: “Samples taken during short-term pollution may be disregarded”. However, sight of them is not altogether lost: “When a waiver is granted the result is removed from this site but is still available to the public through our public register” the Environment Agency tells us. So it is still possible to find out just how bad things got (at any rate if that state of affairs corresponded with the taking of a waived sample). Nevertheless, the classification of bathing waters for the purposes of the BWD will be determined without reference to such data. Despite this “bunk-up” (the UK has a relatively high number of overflow events) the UK still comes 25th out of 30 in the quality league tables.

It is against this background that the ENDS Report this week relates that up to 15% of samples are excluded (to the great dismay of the estimable Surfers Against Sewage) and quotes an anonymous Environment Agency officer as stating that the practice “knocks the very thing that causes the problem out of the equation”. But, like the water, maybe things aren’t quite that clear.

UK Citizens Climate Assembly: Post lockdown steps to aid economic recovery should drive progress to net zero target

The UK Citizens Climate Assembly is a collection of 108 individuals selected to represent the UK’s population in terms of demographics and levels of concern about climate change. The Assembly met face to face for three weekends in Birmingham before reorganising itself online for a further three weekends across April and May. Its objective is to explore how the UK should reach its legally-binding target of net-zero greenhouse gas emissions by 2050.

Assembly members were also asked to discuss the changed context for reaching net zero created by the Covid-19 pandemic and the resulting lockdown and economic impacts.

The assembly has released its ‘Interim Briefing’. Key findings include:

  • 79% of assembly members ‘strongly agreed’ or ‘agreed’ that “Steps taken by the government to help the economy recover should be designed to help achieve net zero.”
  • 93% of assembly members ‘strongly agreed’ or ‘agreed’ that “As lockdown eases, government, employers and/or others should take steps to encourage lifestyles to change to be more compatible with reaching net zero.”

One interesting quote taken from the discussion of assembly members was as follows:

“Well it seems pretty silly to try [to] save the economy whilst shirking from problem solvers [albeit]…because of the costs. I understand we need to hopefully tackle this economic crisis, but it would make sense to incorporate both issues into one as we have made an agreement to hit net zero as that is beneficial for the future. I don’t want to be known as a coward when faced with these issues and bury my head in the sand. It just doesn’t make the issues change or go away.”

The assembly’s main recommendations on the path to net zero, on the topics of how we travel, heat and energy use in the home, what to buy, what we eat and how we use the land, where our electricity comes from and removing greenhouse gases from the atmosphere, will be presented in full in the assembly’s final report to be published in September this year. Judging from the detail provided in the Interim Briefing, that report promises to be an insightful guide into the feelings of the general public.

The Interim Briefing can be found here

Further caselaw on Aarhus costs capping orders in judicial review

In R (Bertoncini) v London Borough of Hammersmith and Fulham HHJ Bird sitting in the Planning Court considered a discrete but interesting point relating to costs capping in judicial review cases, namely the question of whether a developer, acting as an interested party, can apply to the court to increase the size of a costs cap.

By way of a brief recap, as our knowledgeable readers will know, in order to implement the Aarhus Convention, the courts will impose a costs cap in appropriate environmental judicial and statutory review cases of £5,000 per Claimant (if the Claimant is an individual) and £10,000 per Claimant (if the Claimant is an organisation). Thus, a public-spirited Claimant’s costs exposure is limited.

Plainly, the presence of such a costs cap can be extremely aggravating for local authorities and developers who may spend comfortably more than £5,000 defending a planning or environmental decision and who have to swallow this expense even if the judicial review fails. However, that costs cap can be varied under CPR 45.44 so long as doing so would not make the costs ‘prohibitively expensive for the claimant’. That assessment is to be performed by a judge after considering the Claimant’s financial circumstances and other relevant matters.

This may be of particular significance for developers of major projects or regulated businesses who may intervene in important and substantial ways in judicial reviews and whose participation into a judicial review may be of great assistance in ensuring that the court understands the issues at play. Such interventions may well cost substantially more than the legal costs expended by local authorities and other public body defendants who will enjoy in-house legal teams.

Bertoncini considered whether CPR 45.44 permitted an Interested Party to apply to amend the costs cap or whether only the Claimant or Defendant had that power. After considering the rules in detail and adopting a purposive interpretation of the CPR HHJ Bird confirmed in Bertoncini that Interested Parties can also ask that the court vary the cap and increase the costs cap.

On the facts of Bertoncini the costs cap was increased at the Interested Party’s application from £5,000 to £20,000. As the application for judicial review had failed the Defendant local authorities’ costs of £4,991 was ordered to be paid in full and the Interested Party’s costs application was assessed at £12,000. Developers, regulated businesses or other entities involved in judicial and statutory reviews as interested Parties should be aware of this important addition to their armoury.

UKELA, Friday 26th June

In time-honoured fashion, Six Pump Court is pleased to be hosting ‘drinks’ at this year’s UKELA Conference. Our inspiration is to add some personal value to the virtual Conference. One of the joys of the annual conferences has been the opportunity to chat, swap ideas (both good and bad), and share personal news. This year has of course been an extraordinary one for all of us.

Sadly Chambers’ world-beating mobile drink delivery system isn’t quite up-and-running yet, so we won’t be able to provide actual drinks on the night. We can offer to take names so that attendance comes with a solemn promise of a real drink – just as soon as we’re all allowed back into the pubs, and our track and trace app is working.

For those of you who are attending, it would be a pleasure to see you at the end of the day. Our e-landlords will be Charles Morgan, Natasha Hausdorff, Chris Badger, Mark Davies, Richard Banwell, Laura Phillips, Nick Ostrowski, Mark Beard and William Upton QC.

Please also view our Covid-19 Guidance Tracker and Blog – new resources 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 News Update

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Mark Davies consider mustard gas dumped in a Nottinghamshire lake, a challenge to the Department for Transport’s ‘Road Investment Strategy 2’ and COVID-19 waste in the seas and on the beaches.

Mustard gas dumped in Nottinghamshire lake

Three wartime memorabilia hunters have received jail sentences for dumping WWII mustard gas bombs in a Lincolnshire lake, making them the first in the country to be sentenced for possession of a chemical weapon.

Martyn Tasker (40) was jailed for 5 years for possession of firearms, plus 16 months’ concurrent sentence for possession of a chemical weapon. His wife Michaela Tasker (32) and friend Stuart Holmes (50) were both handed a 12-month jail sentence suspended for two years for possession of a chemical weapon.

The court heard that in September 2017, the Taskers came across wartime memorabilia in Roughton Woods, near Woodhall Spa – land which was historically requisitioned by the MoD for military training – and dug up a half-buried box of mustard gas bombs. They messaged a friend who used to repair weapons in the Territorial Army to ask what they had found, but didn’t get an immediate identification.

Ten days later, the pair returned with Mr Holmes and uncovered a total of 16 canisters and three earthenware bottles. One bottle was prised open – exposing what Mr Tasker called ‘really smelly oil’ inside – before his friend texted, confirmed the containers were full of mustard gas, and advised alerting the authorities.

But Holmes had already poured the three bottles of mustard gas onto the ground so he could take the empty bottles home with him, along with 10 unopened canisters. The group left the other six canisters, but didn’t report their find. Later that day, they decided to dump the canisters in Stixwould Lake, where Holmes worked. They secretly took a dinghy, rowed out into the lake, and left the containers to sink to the bottom, before burning their clothes.

The next day, Martyn Tasker sought treatment for blisters on his forearms and soon after, Michaela Tasker was treated for breathing difficulties after she collapsed in a GP waiting room due to respiratory problems caused by the toxic substance. Only then did the pair alert the police – but they lied about the circumstances and still didn’t tell officers about the bombs they dumped in the lake.

But it wasn’t long until inconsistencies emerged from their stories and all three were arrested.

Authorities then launched a major operation to secure the woods, lake, and suspects’ homes, and to recover the hazardous chemical.

In what has since been hailed the biggest operation of its kind, Lincolnshire Police led more than two dozen organisations including the Environment Agency, emergency services, and the Army, in an 11-day response. It saw roads closed, drones deployed, safety cordons put in place, and at least one home evacuated while teams worked around the clock to tackle the tactical challenges of safely removing the bombs from the lake while keeping themselves, and nearby residents, safe.

Environment Agency sonar equipment usually used for fish surveys finally determined the bombs’ location in the lake before Royal Navy divers were sent in to safely retrieve them.

The bombs were immediately transferred to the specialist defence science and technology lab in Porton Down. There, testing confirmed that the containers were still sealed and had not leaked.

You may not be aware but the disposal of chemical weapons after WWII was a significant problem. Scientists did not know how to destroy the massive arsenals of chemical weapons. Ultimately, Russia, the UK and the USA opted largely for what they considered to be the safest and cheapest method of disposal – chemical weapons were dumped directly into the ocean. It is estimated that 1 million metric tonnes of chemical weapons currently lie on the ocean floor.

The EA’s press release can be found here

Department for Transport’s ‘Road Investment Strategy 2’ challenged

As we suggested might happen in this blog on 4 March when covering the Heathrow Third Runway litigation, challenges to major infrastructure projects continue to be brought on environmental grounds, and particularly in respect of the government’s (supposed) failure to account for climate change targets.

On 1 June 2020 the Transport Action Network deposited its Statement of Facts and Grounds at the High Court, challenging the Secretary of State for Transport (with the Highways England Company Ltd as Interested Party) on the legality of his ‘Second Roads Investment Strategy’ (“RIS2”), which covers the period 2020 to 2025. RIS2 was made on 11 March 2020 pursuant to section 3 of the Infrastructure Act 2015.

RIS2 allocates funding as well as determining which specific road projects will be taken forwards by Highways England within the five-year period of the strategy.

The challenge has been brought on four grounds:

  1. Failing to take account of the impact of RIS2 on specific climate change objectives, namely achieving carbon budgets (particularly the fifth carbon budget covering 2028-2032), meeting the Net Zero target and adhering to the objectives of the Paris Agreement;
  • That in setting RIS2 the Secretary of State unlawfully breached the Claimant’s legitimate expectation that the strategy would include the establishment of a metric for measuring the emissions of greenhouse gases from road users;
  • That the Secretary of State failed to take account of duties placed on him by regulation 17 of the Air Quality Standards Regulations 2010; and
  • That the Secretary of State failed to carry out a Strategic Environmental Assessment of RIS2 contrary to regulation 5(1) of the Environmental Assessment of Plans and Programmes Regulations 2004.

We will endeavour to keep you up to date as this latest challenge wends its way through the judicial review process. The full Statement of Facts and Grounds may be read here

Plenty more (masks than) fish in the sea?

Many of us will be lamenting lost planned visits to the Mediterranean coast over the past three months (by bicycle, of course). It is perhaps cold consolation to learn that a dip in the sea at a Riviera resort might not have been so pleasant after all. The French non-profit organisation Opération Mer Propre began to report findings of Covid-19 waste on its Facebook page last month (to clarify, the waste was found in the sea and on beaches, not on the Facebook page) surmising that people were disposing of face masks with the same insouciance as cans and plastic bottles. Thus on 23 May 10 latex gloves and 4 disposable surgical masks were found in the sea at Antibes. On 24 May at Golfe-Juan, 5 masks and 4 gloves. On 28 May a latex glove turned up at Juan-les-Pins (and, to be fair, also a plastic coffee table and a plastic crate). On May 31 in Golfe-Juan Bay a mask and a dozen gloves washed up on the shore (again, to be fair, in the sea were also found, amongst many other items, 4 car tyres, a hood for an off-board motor and another plastic coffee table). Another glove turned up at Cannes on 14 June (as well as one boat hull in pieces, 25 tyres etc.).

Perhaps not yet quite enough evidence to substantiate fully Opération Mer Propre’s prediction that “Knowing that more than 2 billion disposal masks have been ordered, soon there will be more masks than jellyfish in the waters of the Mediterranean”, but you get what they mean. Many aspects of the human response to the coronavirus pandemic are, in the final analysis, examples of the anthropocentric nature of our attitude to the environment. In the dim and distant past of February 2020, single-use plastic items were the villain of the piece. Suddenly, there aren’t nearly enough of them …

It’s also interesting to note from the lists of detritus the apparent complete absence of the sort of items which are commonplace on some British beaches as a result of the outpourings of combined sewer and storm overflows, such as cotton buds and other (ahem!) less mentionable latex items than gloves. The French sewerage system is essentially similar to ours, but the standards imposed upon discharges into the bathing waters of the Côte d’Azur are known to be extremely high. You wouldn’t know it as you were strolling along it, but under the Promenade des Anglais at Nice lies lots of sewerage infrastructure which seems rarely if ever to make its presence felt (or smelt) either on the beaches or offshore.

Bonnes vacances à la mer once travel restrictions are lifted and wanderlust returns.

Please also view our Covid-19 Guidance Tracker and Blog – new resources 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

Safe workplaces and the commute to work – how far does section 44 of the Employment Rights Act 1996 go?

by Angelica Rokad

On 11 May 2020, the Government published practical Guidance[1] in a bid to encourage workplaces to be made as safe as possible for returning employees during the Covid-19 pandemic. Whilst the Guidance has been developed in consultation with unions and industry bodies, there still exists the very real possibility that employees do not have sufficient confidence that their workplaces are, in fact, ‘Covid-19 secure’ and consider that by returning, they have been subjected to a detriment by their employer.

What recourse is open to these concerned employees? One potential avenue lies with section 44 of the Employment Rights Act 1996 (‘ERA 1996’) under which there exists the right not to be subjected to a detriment arising from a deliberate failure to act, or any act, by an employer on specified grounds, relating to health and safety. Such claims rarely appear before Employment Tribunals. However, the recent Presidential Guidance[2] has hinted that, as a result of the global pandemic, an increase in these types of claims is expected – and will be prioritised. Employers would, therefore, be well advised to take these claims seriously. Unlike other employment claims which are subject to statutory caps and require employees to have minimum qualifying periods of service, a claim under section 44 of the ERA 1996 is a “day one” right and is not subject to any limit on the level of financial compensation.

Two of the specified grounds which are most likely to be of use to employees who seek to pursue Covid-19 related detriments are found in section 44 (1)(d) and (e) of the ERA 1996. Under those subsections, an employee may refuse to return to a place of work or take appropriate steps to protect themselves or others at work, if they can go on to establish that: (i) the danger is both serious and imminent; (ii) one which they could not reasonably be expected to avert and (iii) that their belief in that regard is both genuine and reasonable.

Traditionally, Employment Tribunals have given the word ‘danger’ a broad interpretation which is not restricted to the circumstances of the workplace itself. As such, it is quite likely that Covid-19 crosses the first hurdle of amounting to a ‘serious and imminent’ danger. The difficulty for employers, however, is that section 44 of the ERA 1996 does not prescribe what is expected of them in order to address an employee’s concerns about that danger when considering the second or third hurdles, summarised above.

In order to reduce the risk of a successful claim, employers may wish to consider reviewing the general practical Guidance[3] for all businesses, as well as the Guidance[4] which has been produced for specific sectors, before carrying out a thorough risk assessment and updating any written health and safety policy, if applicable. Given that there is no ‘one size fits all’ formula, there is also no bar on the thinking of creative solutions in order to achieve a safe workplace. Once plans have been designed, it would be advisable to consult with employees and unions in advance regarding the measures which have been taken, and attempt to seek agreement on a return to work plan.

One unknown is whether an employee’s concern regarding their commute to work falls on the shoulder of an employer. It is also currently unclear whether a refusal to return to work for this reason alone is reasonable. The Government has recently confirmed that wearing face masks will be compulsory for users of public transport from 15 June[5] and there have been various measures taken by travel companies to make a commute as safe as possible for both travellers and employees. However, if that is still insufficient to allay concerns, employers may wish to consider whether: an employee is at specific risk because of their health; alternative tasks could be given to the employee to work at home; a change of shift patterns to off-peak hours is possible or whether there exist adequate facilities to travel to work via private travel. It remains to be seen whether claims falling within this fact pattern may indeed fall within a successful section 44 claim, given that usually, travelling to work does not form part of the employment relationship, and so within an employer’s duties.


[1] https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

[2] https://www.judiciary.uk/wp-content/uploads/2020/06/FAQ-edition-date-1-June-2020.pdf

[3] https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/5-steps-to-working-safely

[4] https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

[5] https://www.gov.uk/government/news/face-coverings-to-become-mandatory-on-public-transport

Environmental Law News Update

In this latest Environmental Law News Update, Charles MorganGordon Wignall and William McBarnet consider whether a green industrial revolution is on the horizon, another case dealing with the treatment of waste material on shipment and a useful report on the economic regulation of the water industry in England and Wales.

Time for the Green Industrial Revolution?

The Covid-19 crisis has caused major economies around the world to grind to a halt as governments have imposed lockdowns to control the spread of the disease. Whilst the effects of Covid-19 have been tragic, the period has also been viewed by environmental organisations such as Greenpeace as an opportunity for society to reflect on how it uses resources, a chance to reset and build back ‘green’ by putting the environment at the heart of any post-Covid-19 economic stimulus package.

The calls for such change are not just coming from organisations like Greenpeace. On 1 June, over 200 chief executives of some of the UK’s top firms signed a letter asking the prime minister to use the Covid-19 lockdown as a springboard to “deliver a clean, just recovery”. Greenpeace itself has produced a 62 page manifesto containing specific policy, spending and tax measures to try and explain how we might achieve this ‘green recovery’. The recommendations include:

  • Clean transport – measures to speed up the transition to electric vehicles; to expand, electrify and increase the affordability of public transport; and to fundamentally redesign urban transport to prioritise walking and cycling.
  • Green buildings – measures to kick-start a nationwide home and public sector energy efficiency programme; to require all new buildings to support a net zero emissions future; and to establish a new Warm Homes Agency which, amongst other things, would guarantee the delivery of targets.
  • Smart power – measures to make off-short wind the backbone of the UK’s energy system; to support the onshore wind and solar sector to reignite domestic supply chains; and to upgrade the electricity grid to ensure a ‘smart’ and flexible energy system.
  • Nature and a circular economy – measures to significantly restore and enhance nature and wildlife; to establish world-leading environmental legislation; and to get the UK on track to a zero-waste economy through, amongst other things, an improved waste infrastructure.

The manifesto comes in the context of a world which looks set to struggle to meet the targets it has set for itself under the Paris Agreement – the key aim being to keep global temperatures “well below” 2.0C above pre-industrial times and to “endeavour to limit” them even more, to 1.5C. This, says Greenpeace, is the scale of the change required to meet those targets.

Cynics will argue that Britain’s actions will count for little unless the world’s major powers start supporting similar levels of change. Indeed, how far Britain would be wise to go is hotly contested – the imposition of a carbon tax on British industry for example would expose it to international competition where producers overseas do not pay for the pollution they create.

But in Europe at least, there are signs of a new consensus with the EU pledging €750bn as part of its own “green” stimulus package. Teresa Ribera, deputy prime minister of Spain, was quoted as saying that the bloc would in fact be taking on much more risk was if action was not taken to reduce carbon emissions to net zero by 2050. The UK government may consider that the time is right to make bolder pledges than they have done in the past.

Contamination in waste shipments in the dock yet again

The recent decision of the ECJ in Interseroh concerns the vexed question of the treatment of waste material on shipment: when can a shipment be subject to the green list provisions rather than the much more onerous notification and consent provisions (Curia ref. C-654/18, given on 28 May 2020)?

The case concerns mixed paper with 10% impurities.  The authorities of the jurisdiction of receipt (Netherlands) were content that the material could be adequately dealt with in the Netherlands.  The authorities of the country of export (Germany) did not agree with the classification of the waste and considered that the notification and consent process had to be followed.

The main issue was a technical one concerning the definition of a particular waste category, namely B3020, as to which there are different EU-language versions.  (“International agreements concluded by the Union take precedence over secondary legislation, [so that] Regulation No 1013/2006 should be interpreted, as far as possible, in accordance with the Basel Convention”.)

Of more general interest is the question of the treatment of impurities.  In particular, if impurities can be dealt with at the plant of reception, then what does it matter that the impurity level is 1%, 2% or 10%? 

This key question was not directly answered by the ECJ, the Court following the same track as that previously beaten out by AG Sharpston (30 January 2020).

Both the A-G and the Court were stymied by the fact that the Commission has failed over the years to provide subordinate legislation which might provide legal certainty, the Commission having also hinted heavily in guidance that anything other than a minimal degree of impurities should not be acceptable to any Member State.  The default position is that whilst there is a margin of discretion, if the regulators of two States cannot agree, then the notification and consent procedure prevails (see Art.28).

A battery of interpretative provisions have been laid out on the lawns of both the A-G and the Court, deriving from Art.191 TFEU and general legal principles: a high level of protection of the environment, the precautionary principle and the principle of preventive action.

The A-G was prepared to commit to the comment that “In my view the presence of impurities at a level of 10% cannot readily be classified as trifling or insignificant”.

However, that all said, this case has already excited comment on the basis that it has been accepted judicially that it is open to a shipper to submit evidence as to how its waste will be processed at a receiving facility (see the A-G at 68 and the ECJ at 72).

The factual basis for the assessment of permitted impurity levels will be considered by the Court of Criminal Appeal of England & Wales at the end of this month, so that this is an issue to which the blog will no doubt return.

 

Who writes this stuff??

We ask in admiration. House of Commons Briefing Papers, generally written neither by nor for lawyers, but by professional journalists for busy politicians, often represent superbly succinct and readable summaries of their subject-matter and a valuable aide to legal practitioners. A very good recent example, published on 4 June 2020, is Economic regulation of the water industry in England and Wales, 25 pages of well-delivered information replete with useful hyperlinks to other material. Anyone engaging for the first time with this aspect of water industry law would be well-advised to dip into this briefing paper before plunging into the treacherous and murky depths of the relevant parts of the Water Industry Act 1991 (as you know, we like our water-related metaphors in this blog). Compact and clear narratives describing the functioning of the industry are hard to find, especially for free.

The paper describes in pellucid terms the structure of economic regulation and the operation of the quinquennial price review mechanism. It goes on to inform the reader about the outcome of the most recent review (PR19), the ongoing challenges to its determinations and the factors likely to shape the next review. Current issues concerning economic regulation are identified and summarised in neutral terms, with links to source material where the rival contentions can be found.

A visit to the library website and the appropriate search will lead to many other papers of use to the environmental lawyer. Another topical offering relating to the water industry is Water: non-household retail competition, which includes information on support for business customers during the coronavirus epidemic.

Fortunately our opening question is easily answered. Authorship of both reviewed articles is attributed to one Georgina Hutton, who deserves to be acknowledged for this work, unlikely as it is ever to find its way into the Amazon Best Sellers list. (Is anyone aware of any creative work of literature set in the context of the water or sewerage industries? Let us know – or why not write one in your idle lockdown hours?  “Reservoir of Passion” or “Love in a CSO” are offered as possible titles).

Please also view our Covid-19 Guidance Tracker and Blog – new resources 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

Retailers and social distancing – what does the latest guidance say?

by Nicholas Ostrowski

We all know what ‘the 2 metre’ rule is – how does that translate to retailers and what does the latest guidance say?

The Government (the Department for Business, Energy & Industrial Strategy) published guidance on ‘Working Safely during Coronavirus (COVID-19)’ in late May.

This had specific guidance for shops and branches much of which is helpful and detailed.

However, one issue which has caused significant anxiety for retailers is the question of how many customers they should allow into their stores to ensure that their customers can maintain social distance?

The government guidance says that the following steps ‘will usually be needed’ in order to manage customers, visitors and contractors:

Defining the number of customers that can reasonably follow 2m social distancing within the store and any outdoor selling areas. Take into account total floorspace as well as likely pinch points and busy areas.

It further states:

“Shopping centres should take responsibility for regulating the number of customers in the centre and the queuing process in communal areas on behalf of their retail tenants.”

But what does that actually mean? How many people should a retailer allow into any particular store and how many customers will be able to reasonably follow 2m social distancing? If customers are going to congregate in a particular area how should that factor into the calculations?

The HSE has not published guidance on this issue for retailers and its guidance on ‘Working safely during the coronavirus outbreak – a short guide’ is not helpful on this issue nor does the guidance from the British Retail Consortium shed much light on the issue.

That hole has now been filled with detailed guidance commissioned by the High Streets Task Force and undertaken by the Institute of Place Management, Manchester Metropolitan University released on 4 June.

This guidance is detailed, scientific and academic. It considers retail space allocation, crowd science, and ergonomics and biomechanics and is based on a methodology for establishing occupancy levels for three town centre environments. The guidance sets out the minimum amount of square meters needed in order to adhere to social distancing measures in a given situation.

In summary, the guidance suggests that 

  • In typical high street store space (individual retailers under 500 square metres), each person requires 10m2 of dynamic space
  • Larger retailer or managed commercial space (individual retailers over 500 square metres or commercial space where a number of stores trade together): each person requires 11m2 of dynamic space
  • Public urban space: each person requires 12m2 of dynamic space

In order for retailers to demonstrate that they have followed best practice when developing risk assessments for opening up their stores they are well advised to consider this guidance in detail.

BEIS Govt guidance – https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/shops-and-branches

HSE Guidance – https://www.hse.gov.uk/news/working-safely-during-coronavirus-outbreak.htm

BBRC Guidance – https://brc.org.uk/news/corporate-affairs/social-distancing-in-retail-stores-and-warehouses/

High Street Task Force guidance – https://www.highstreetstaskforce.org.uk/resources/details/?id=bc16b6bc-0ebb-4b7b-8df8-d8aa6b9a3a9f

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Nicholas Ostrowski and William McBarnet consider development consent orders for nationally significant infrastructure projects, further clarification of the circumstances in which an Environmental Impact Assessment (‘EIA’) will be required and the practical ability of the water industry to react to supply shortages.

R (ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 1303 (Admin)

This was an application made by ClientEarth under s.118 of the Planning Act 2008 for judicial review of the decision of the Secretary of State (“SOS”) to grant the application made by Drax Power Limited for a development consent order (“DCO”) for a “nationally significant infrastructure project”: the construction and operation of two gas-fired generating units at Drax’s premises in North Yorkshire.

Holgate J, giving judgment, upheld the decision of the SOS to grant development consent against the recommendation of the Examining Authority (“ExA”). The judgment is relevant to energy infrastructure projects covered by the National Policy Statement for Energy (“NPS EN-1”) and, in particular, provides clarity regarding:

• How need should be considered by the SOS when determining DCO applications; and

• How the planning balance under s.104 of the Planning Act 2008 (“PA 2008”) should be considered.

Need

ClientEarth contended that on a proper interpretation of NPS EN-1 the decision maker is required to assess the individual contribution that any particular project will make towards satisfying the general need for a type of infrastructure set out in the NPS. It submitted that the SOS wrongly assumed that because the proposal fell within one of the types of infrastructure said to be needed, it would necessarily contribute to that need for the purposes of NPS EN-1. The Claimant contended that the NPS required a quantitative need assessment.

Holgate J decided that the NPS does not set out a general requirement for a quantitative assessment of need in the determination of individual applications for DCOs. The NPS establishes that such a need exists and that need is not to be re-examined as part of the examination of an individual project. The court stated that the case advanced by ClientEarth was a barely disguised challenge to the merits of the policy on the basis that it was out of date. If they wished to make such a challenge it should have been brought under s.6 of the PA 2008.

Planning Balance

ClientEarth also contended that the SOS had incorrectly applied s.104(7) of the PA 2008 in that she merely repeated the exercise she had carried out under s.104(3). s.104(3) requires the SOS to determine applications for consent in accordance with applicable NPSs, but s.104(7) allows departure from that principle if the SOS is satisfied that the adverse impacts of the proposed development outweighs its benefits. ClientEarth had also submitted that because para.5.2.2 of NPS EN-1 states that “CO2 emissions are not reasons in themselves to prohibit the consenting of projects” the SOS had incorrectly interpreted that as requiring her to treat GHG emissions as irrelevant or as having no weight, thus unduly fettering her discretion.

Holgate J referred to the decision of Lord Hoffman in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 at 780 F-G where it was determined that treating a consideration as irrelevant (a question of law and therefore for the court) was not the same as giving it no weight (a question of fact for the decision maker). The SOS had not treated GHG emissions as irrelevant or as having no weight but rather disagreed with the ExA’s assessment of their weight such that the impact of GHG emissions did not carry determinative weight in the overall planning balance.

As for ss.104(3) and (7), their relationship has to be considered in the context of ss.87(3) and 106(2). The object of the latter provisions is that matters settled by a NPS should not be revisited in the DCO process. Where appropriate, a policy can be reviewed under s.6. This avoids policy being made ‘on the hoof’. s.104(7) cannot be used to circumvent the application of the above subsections (see R (Spurrier) v Secretary of State for Transport [2020] PTSR 240 at [103] to [108]).

Environment Impact Assessment required for former animal carcass facility used to slaughter BSE infected cows

The recent case of R (Swire) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1298 (Admin) clarifies the circumstances in which an Environmental Impact Assessment (‘EIA’) will be required for developments when the contamination concerns are not scientifically proven.

The site in question was located in the Kent Downs Area of Outstanding Natural Beauty and was previously developed for industrial use having been a sawmill and then an animal carcass rendering facility. Planning permission was granted by the developer to convert the site to residential use.

Unsurprisingly given that history, it was common ground between the developer, the local Planning Authority and the Secretary of State for Housing, Communities and Local Government (‘SSHCLG,’ the Defendant in the case) that the land was contaminated with hydrocarbons and asbestos but the developer maintained that the contamination was not at such a level as to make the conversion of the site to residential use unacceptable in principle. The developer and Local Planning Authority maintained that the proposed measures to mitigate the environmental impacts (effectively a planning condition requiring that, before the site is developed, it should be fully investigated and all contamination completely removed) was sufficient to obviate the need for an EIA because there would not be significant effects on the environment. The SSHCLG agreed after being asked to provide a screening direction.

However, it emerged that those who had undertaken the site investigation and risk assessment had not been made aware that, in the mid 1990s, the site was designated by the government as one of four sites in the UK licensed by DEFRA to dispose of cattle infected with bovine spongiform encephalopathy (“BSE”), which resulted in the outbreak of Creutzfeldt-Jakob disease (“CJD”) in humans. The exact means by which CJD can be transmitted to humans is not settled scientifically and there is a lack of scientific consensus about the way in which BSE infected prions in the soil may be capable of transmitting the disease to humans even after many years.

Notwithstanding this, the SSHCLG held that an EIA was not required because the proposed conditions which required the remediation of all contamination on the site would bring it up to a standard suitable for residential use and would safeguard the health of prospective residents of the development.

In a lengthy judgment which helpfully summarises much of the law relating to EIAs, Lang J held that as there was limited evidence about the presence of contamination from BSE-infected carcasses at the site, the hazards which any such contamination may present and the absence of any safe and effective means of eliminating any such contamination, it was wrong for the SSHCLG to conclude that the measures set out in the proposed planning condition were sufficient to obviate the need for an EIA. Essentially, in seeking to rely upon a planning condition that development could not begin until a study had been undertaken and all contamination removed, the SSHCLG had assumed, without sufficient scientific evidence, that the measures proposed would be successful. Applying the precautionary principle, an EIA was required in this case and the SSHCLG’s screening opinion was quashed.

Those involved in making screening decisions when the science is unclear will need to bear this case in mind.

Lovely weather we’re having …

One of the great consolations of the confinement caused by the current pandemic has been the wonderful spring weather enjoyed by the whole of the country. This blog item is being written outdoors on a glorious June day in lockdown Tyneside. The whole of England, Wales, Northern Ireland and lowland Scotland received 75% or less of its average rainfall during the driest May in 124 years (which followed a distinctly dry April). However, it all comes at a price. A drought is already happening and Water UK has made an informal plea to the public to use less water, at this stage purely, it is said, in order to maintain water pressure. Tyneside itself has little to worry about in terms of water resources, despite its (little-credited) dry climate thanks to Kielder Water (as to all of which see our blog item “Saving it for a rainless day”, written almost exactly a year ago in a period of similar weather). Other regions are not so fortunate and there is the usual round of images in the press of the cracked earth of dry reservoirs and the resurfacing of long-submerged structures.

The report of the National Infrastructure Commission, “Anticipate, React, Recover: Resilient infrastructure systems” is thus timely, including as it does consideration of the water industry and some criticism of its current practical ability to react to supply shortages. Nevertheless, “resilience” is already the legislative watch word for the industry following the creation of the “resilience objective” and the imposition upon Ofwat of the “resilience duty” in the Water Act 2014 (amending section 2 of the Water Industry Act 1991), provisions which came into force in 2015. Given this, it is curious to read that the Commission wants the Government to impose a resilience duty upon Ofwat (and Ofgem and Ofcom too) by 2021 and to require the imposition of resilience standards by 2023. This seems, at any rate in the case of Ofwat, to add little to its existing obligations (which are not identified in the report) save perhaps for requiring some increased degree of specificity. There is, however, no doubting the importance of these matters. Only yesterday, Sir James Bevan, the chief executive of the Environment Agency, told a Parliamentary select committee that the predicted deficit in supply by 2050 is 4.7 billion litres per day.

The Commission’s chairman Sir John Armitt has described climate change as “the fundamental challenge” to resilience. It is interesting to note that the record-breaking dry spell in May was heralded in by some extraordinarily high winds and flash flooding in parts of Wales. Such extreme events seem to have become new, staple parts of late spring weather. Regardless of any lingering debate over the relative contributions of various causes, such changes seem incontrovertibly real and they all impose huge new demands upon existing infrastructure not designed with them in view.

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

Can COVID-19 be spread through air conditioning and ventilation systems and what precautions should businesses take?

As many businesses begin the process of re-starting operations, businesses and their advisors may face questions from employees, clients and visitors about what steps they should take to control the COVID-19 virus through air conditioning and ventilation systems. This short article by Nicholas Ostrowski attempts to address that question.

On 19 March 2020 the World Health Organisation published guidance on ‘Getting your workplace ready for COVID-19’. Frustratingly though, while it refers to ‘open[ing] windows and doors whenever possible to make sure the venue is well ventilated’ it doesn’t provide any assistance on the question of whether COVID-19 can be spread by air ventilation or conditioning systems and what control measures should be taken.

On 29 May 2020 the Government released amended guidance on Working Safely during coronavirus (COVID-19). This emphasises the need for good ventilation but again says very little other than to state that business should ‘check whether you need to service or adjust ventilation systems’.

Fortunately, a number of industry bodies have grasped the nettle and provided a suite of useful, technical guidance on what, exactly, businesses should do. The Federation of European Heating, Ventilation and Air Conditioning associations (REHVA) published detailed guidance in April which sets out in some detail the science behind the transmission of the virus. This has been supplemented by helpful guidance from the Chartered Institution of Building Services Engineers and also guidance from the National Association of Air Duct Specialists UK.

Taking the available guidance as a whole, the following points emerge:

  • There are two exposure mechanisms – close contact transmission through large droplets formed by coughing and sneezing which typically fall on nearby surfaces and airborne transmission through small particles which may stay airborne for hours and can be transported long distances.
  • Although the science is not entirely settled, the possibility of airborne transmission of COVID-19 through small particles via air ventilation and air conditioning systems cannot be discounted (and airborne transmission of previous SARS epidemics has been documented).
  • In buildings with mechanical ventilation systems the primary objective is to maximise the air exchange rate with outside air and to minimise the risk of any pockets of stagnant air. Business should:
  • use extended operation times for air conditioning, starting any cycle before the building starts being used (and ideally operating systems continuously)
  • In demand-controlled ventilation systems change the CO2 setpoint to a lower value (400ppm is recommended)
  • Avoid recirculating air and switch air handling units to 100% outdoor air
  • clean and maintain ventilation systems and filters appropriately but there is no need to clean ducts beyond normal duct cleaning and maintenance procedures (and indeed there may be risks in doing so if employees cleaning the equipment are exposed to contaminated particles and do not have suitable PPE)
  • In buildings without mechanical ventilation systems:
    • Open windows where possible (especially if a room has been previously occupied by others)
    • Consider using localised, portable air cleaning and disinfection devices (likely to be local HEPA filtration units or those that use germicidal UV) but be aware that because the airflow through such cleaners is typically limited, the floor area that they serve will be quite small.
  • Ensure that employees and visitors are reminded to flush toilets with the lids down and that toilet ventilation systems are working

PLEASE ALSO VIEW OUR COVID-19 GUIDANCE TRACKER – A RESOURCE SET UP BY OUR REGULATORY TEAM TO FACILITATE EASIER NAVIGATION OF THE APPLICABLE COVID-19 GUIDANCE.