Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Nicholas Ostrowski consider compliance with the Water Framework Directive, Law Commission proposals on reforming the confiscation regime and new proposals to hit net zero from the Climate Assembly UK.

A [watercourse in] Good Heart These Days Is Hard To Find

To comply with the Water Framework Directive, all surface water bodies in the UK must attain at least “Good” status by a date which has been extended from 2015 until 2021. It has recently been widely reported in both the specialist and popular press that in 2019 not a single one enjoyed Good status (which 14% of rivers, and a greater proportion of other water bodies, were able to achieve in 2016), an outcome which may be part of the explanation of why the 2019 figures have only just now been released. Nor is there any immediate prospect of improvement, and thus compliance, by either the 2021 deadline or the longest possible extension to 2027 (if forthcoming).

A major obstacle to compliance is the stringent “one strike and you’re out” or “one out, all out” nature of the classification system i.e. that if a watercourse fails to satisfy any one of the ecological or chemical criteria stipulated for the attainment of a particular status then it fails to achieve that status. A bit like having to get a minimum number of marks for each question set in an exam, instead of pinning all your hopes on your best three answers. If some cumulative pointing system were adopted instead, as the Environment Agency through its chief executive Sir James Bevan has proposed, then the pass rate would soar – in the case of rivers, the 2016 rate of achievement of Good status would have been 79%. The astute reader will, of course, have realised that this remarkable change of fortune would not be shared by the watercourses themselves or their fauna and flora – the dirty old rivers would just keep rolling along with exactly the same contents as before, including the chemicals from sewage, industry and agriculture which seem to be the principal problem (exacerbated by over-abstraction).

As well as a joint letter of protest from 18 NGOs, enter from stage left Feargal Sharkey OBE, former lead singer of The Undertones, a role which he followed with a successful solo career and then a stint as CEO of Music UK, the consortium of music copyright collection societies. Not content with all that, he is also a keen fly fisherman and has taken up the cause of the rivers and joined forces with the Good Law Project to seek judicial review of the failures of Defra and the Environment Agency to discharge their respective duties towards the aqueous environment. His expectations may be high, but he can’t blame it on his youth any more, and is certainly past the age for giving them both a good teenage kicking.

Could all of this have led to the recent summoning by the Environment Minister of the chief executives of 15 water and sewerage undertakers to “challenge” them to improve their environmental performance? And the announcement from Defra that it has earmarked over 700 storm overflows for investigation and over 200 overflows for improvement during the AMP 7 period (2020-25)?

Spot the songs: there are five allusions to four different songs in the above article. The first person to spot them all will be entitled to a free bottle of champagne. T&Cs below apply.

[Offer open for 7 days only, starting Thursday 24th September. Champagne must be collected and consumed on the premises of the Edgar Wallace Public House between the hours of 10pm and midnight. Correctly-fitted face mask must be worn throughout. Open to under-18s only].

Law Commission proposals on reforming the confiscation regime

£2,065,303,000. That is the amount of money which defendants have been ordered to pay under the Proceeds of Crime Act 2002 (‘POCA’) but which remains outstanding.

On any level that is a staggering amount of money and this unenforced debt as well as the large numbers of appellant POCA cases the senior courts have to deal with has led to a perception that the confiscation regime is ineffective and the legislation is too complex.

As practitioners working in criminal, planning or environmental law will know (particularly in waste cases), the threat of POCA proceedings is an important weapon in the prosecution’s armoury and does frequently result in large, sometimes eye-wateringly large, confiscation orders being made against defendants. The Law Commission has recently released a consultation on the POCA regime which, if enacted by Parliament, may have a significant impact on POCA proceedings in planning and environmental cases (https://www.lawcom.gov.uk/project/confiscation-under-part-2-of-the-proceeds-of-crime-act-2002/).

The Commission’s proposals are best described as ‘evolution not revolution’.

First, there are sensible proposals to simplify the timing in which confiscation proceedings take place.

Secondly, there are proposals to amend the way in which the system calculates the ‘benefit figure’ and the ‘recoverable amount’. The most important element of this change is a proposed amendment to the legislation to permit the prosecution and the court to disapply the ‘lifestyle assumptions’. These assumptions apply in certain cases (normally those where the offending has gone on for a long period) and require that a defendant’s benefit from crime for the purposes of calculating the confiscation order is not limited to what they have obtained from the offences for which they appeared before the court but is instead based on any benefit obtained over that period.

Finally, the Commission makes a number of proposals which address the way in which confiscation orders are enforced. Most strikingly there is a proposal that if a Defendant does not pay a confiscation order and is imprisoned then they should not be released unconditionally at the expiry of half the sentence (as they are currently) but should instead be released on licence subject to conditions which facilitate the enforcement of the confiscation order, and may be returned to custody during the licence period in the event that those conditions are breached.

For environmental law practitioners, the proposals to amend the way in which the ‘benefit figure’ is calculated will be of most interest. At the moment defendants in waste proceedings and planning cases often face confiscation proceedings on the basis that because the offences continued for some time the offences are ‘lifestyle’ offences and all the money which has passed through their accounts over the specified period is criminal proceeds even if they appear to have nothing to do with the actual waste/planning offence. As some defendants in waste/planning offences are not career criminals who may be operating legitimate businesses alongside their criminal undertaking, if the Commission’s proposals are enacted by Parliament defendants may well start to invite the court to disapply the lifestyle assumptions. This may result in very significant reductions to confiscation orders in such cases.

Responses to the consultation are due by 18 December 2020.

Climate Assembly UK publishes proposals to hit net zero

The UK’s Climate Assembly, a body of people intended to reflect all walks of life across the UK, has published its recommendations on how the UK should reach net zero.

Key recommendations include:

  • Taxes on flying should increase as people fly more often and as people fly further;
  • People in different parts of the country should be offered different solutions to zero carbon heating;
  • The future for food, farming and land should centre around local produce and local food production, a change in diet to reduce meat and dairy consumption by between 20% and 40% and a “managed diversity” of land use;
  • Emissions labels for food and drink;
  • Governments and employers should take steps to encourage lifestyles to change to be more compatible with reaching net zero;
  • The transition to net zero should be a cross-political party issue and not a partisan one;
  • We should get to net zero without pushing our emissions to elsewhere in the world.

There was little support for policies that would change income tax or working hours or that would introduce personal carbon allowances. There was also little support for the use of fossil fuels with carbon capture and storage to be part of how the UK generates electricity, with members preferring green technologies such as wind and solar power.

Interestingly, the assembly did not pass proposals that favoured getting to net zero at an earlier date than 2050.

The report can be found here

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, William Upton QC, Nicholas Ostrowski and Natasha Hausdorff consider a new planning White Paper, publication of the Environment Agency’s latest scorecard and it’s State of the Environment Report.

Planning – all change

The government has an agenda to ‘Build, Build, Build’. But it is also seeking to change the rules that guide and control this in England. According to the PM, the White Paper “Planning for the Future” that is out for consultation (until October 29; link here) proposes to tear the planning system down and start again. There is also an intention to review the use of environmental assessments (both EIA and SEA) and habitats law later this year. The new system would put all the emphasis on zoning land in a revamped local plan, with all land marked as areas for Growth, Renewal or Protection. The amount of new development, especially of new housing, that the plans would have to be accommodate would essentially be set centrally. It would also require local authorities to rewrite and adopt their new-style Local Plans within a 30-month timeframe, introduce formal design codes, and treat development control as a matter of simply complying with the rules that these establish. The opportunity for local people and councillors to influence this would be therefore become limited to the plan-making stage. It is a lot to absorb, and there are several areas that are lacking in detail – in particular the intention to overhaul section 106 and CIL payments with a single nationally-set levy on development. It is worrying how 70 years of experience is to be thrown aside, and that the White Paper naively asserts that Local Plans should be subject to a single statutory “sustainable development” test, as “The achievement of sustainable development is an existing and well-understood basis for the planning system”.

The White Paper has certainly sparked a debate. But it is also essential to note that, whilst none of this can be in place before the end of 2021 as it will require new legislation, the government has already made some significant changes this summer. It has expanded the ability to use permitted development rights and has rewritten the Use Classes that apply to offices, retail and businesses by putting them all in a single new “Class E” – thereby expanding what does not need to seek approval. It does mean that the other potential controls – in building control, nuisance and environmental permits have taken on a greater significance and it can no longer be assumed that these issues will be scrutinised at the planning stage.

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

On 10 September 2020 the Environment Agency published its ‘corporate scorecard’ for the fourth quarter of 2019-20 (covering January to March 2020) which is intended to provide the Agency’s Board and DEFRA with an ‘at a glance’ look at the Agency’s performance over a number of metrics set out in the Environment Agency action plan.

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

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

One striking feature of this quarter’s scorecard is that, due to COVID-19, much of the data provided is either incomplete or estimated. This is particularly disappointing given that, as the final quarterly report, this scorecard should have given us the most comprehensive assessment of how the Agency had fared against its own targets over the course of the year.

With that caveat aside, the trend of the Environment Agency failing in its plan to reduce water pollution incidents continues. While there were fewer serious (category one) incidents involving water companies, there were a depressing 443 incidents in the quarter alone against a target of 400 such incidents. The other main negative is that the number of high risk illegal waste sites remains stubbornly high with 233 such sites as against a target of 196 sites. While the Agency fairly points out that this is a reduction in the number of active sites, it is still a surprisingly high number considering that this does not even purport to include illegal sites which are not deemed high risk and so may simply be the tip of the iceberg in terms of illegal waste sites.

There will also be disquiet at the lack of diversity in the Environment Agency’s workforce where only 4% of staff are from a BAME background as against a target of 14% and where only 43% of managers are female as against a target of 50%. The lack of BAME staff members in the Agency is now a deep-seated problem with BAME representation increasing only 1.15% over 12 years. With a budget of £1.3 billion one might fairly ask if the people who spend all this money really reflect the ethnic makeup of the country it serves.

Environment Agency’s State of the Environment Report: health, people and the environment

Last week the Environment Agency (EA) published its State of the Environment Report, focusing on the relationship between human health and people’s access to and connection with a clean, high quality natural environment.

The report presents information on England’s environment, and people’s exposure to environmental pollutants, flooding and climate change and highlights environmental inequalities that contribute to differences in health outcomes.

EA Chair, Emma Howard Boyd, highlights in her forward that the coronavirus  pandemic has exposed and amplified green inequality in society, with those in urban areas having too little green space, too few trees, culverted rivers, poor air quality and being at risk of flooding. According to the government’s initiative this summer to build back “better, greener, and faster” the EA is seeking to speed up sustainable development by helping developers meet regulatory requirements efficiently, providing advice so they get it right first time.

The report’s main findings are as follows:

  • Air pollution is the single biggest environmental threat to health in the UK, shortening tens of thousands of lives each year.
  • After air pollution, noise causes the second highest pollution-related burden of disease in Europe, and is responsible for more life years lost than lead, ozone or dioxins.
  • There is emerging evidence of health effects from lower levels of pollution, although these are not currently well understood.
  • Antimicrobial resistant microbes are becoming more common in the environment due to contamination, meaning infectious illnesses may become harder to treat.
  • Mental health conditions are increasing – they are the largest single cause of disability in the UK, and can be caused or affected by pollution, flooding and climate change.
  • There is substantial and growing evidence for the physical and mental health benefits of spending time in the natural environment, but children are engaging less with nature.
  • Exposure to pollution, and access to the natural environment are not equally distributed across society – people living in deprived areas often have poorer quality environments with less accessible green space.
  • Equality of access to, and connection with, a healthy natural environment would save billions of pounds in healthcare costs and reduced economic activity every year.
  • There are opportunities to improve health through the choices government, regulators, businesses and individuals make in creating and contributing to healthier, greener and more accessible environments.

The report also illustrates some of the great improvements that have been made in the quality of England’s air, land and water, tackling the polluted legacy of the Industrial Revolution. Research continues to increase understanding of the sources, pathways and health impacts of pollutants, while regulation reduces harm caused. With the population of England expected to grow by around 6 million by 2043, the report anticipates increasing pressure on the environment caused by increased production and consumption of resources.

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, Christopher Badger, Nicholas Ostrowski and Mark Davies consider a case dealing with the criminal liability of landowners for waste on their site, a report from Interpol on the sharp rise in plastic waste crime and a new policy paper from DEFRA on the inclusion of environmental targets in the Environment Bill.

R v  Green and Ryder [2020] EWCA Crim 110

Landowners were found to have criminally benefitted from waste left on their site despite that waste not being brought onto the site by them personally.

In Proceeds of Crime Act 2002 (‘POCA’) applications the court will determine the figure which a defendant has benefitted from through his or her criminal conduct. This is a powerful tool in the Environment Agency’s armoury when dealing with defendants who have been found guilty of waste offences as the benefit figure from such offences may be substantial and in this case was said to amount to £276,004.

In this appeal the unauthorised waste disposal site was owned and controlled by the two individual appellants but the waste was deposited at the site by a company which, although controlled by the appellants, was a separate entity and which, at the start, had lawfully deposited waste on the site in accordance with a permit. The appellants were, essentially, found guilty of operating a waste disposal facility without a permit because they continued to store and treat some of the waste that had been brought onto the site by the company.

The essential point in this appeal is whether a court is entitled to include in the benefit figure financial gain in the form of avoiding paying the costs of removing contaminated waste stored on a site owned by the appellants despite the fact that the benefit from depositing the waste originally accrued to the Company and not the individual defendants. In addition, as the appellants owned the site they argued that not only had they received no benefit when the waste was brought onto the site but that, as it would cost a significant sum of money to remove the waste, the value of the site was reduced pro tanto by the costs of removal of waste from the site. A confiscation order was, the appellants argued, disproportionate and, essentially, a double punishment and the benefit figure should have been limited to the modest proceeds derived from the sale of some of the treated waste to third parties.

The Agency argued that the fact that the waste had originally been lawfully deposited was irrelevant. In order to comply with the Environmental Permitting Regulations 2010 the appellants had to remove the waste from the site and by not doing so they had obtained a pecuniary advantage in avoiding the costs of procuring such removal.

The Court of Appeal dismissed the appeal in this case and unhesitatingly found that (per Stone v Environment Agency [2018] EWHC 994 (Admin)), simply storing the waste on the site was an offence and that (per Morgan [2013] EWCA Crim 1307), saving the costs of removal is a pecuniary advantage which can be considered as part of the benefit figure for POCA purposes even though the appellants may not have actually received cash directly when the waste was brought onto the site. Taken together, the appellants had spared themselves the costs of removing the waste from the site and the POCA benefit figure was not disproportionate.

This is yet another example of the punitive effects of POCA. While the Appellants’ arguments have some obvious merit in that they will have to pay a confiscation order comprising the benefit figure and if they want the site cleared then they will then have to remove the waste themselves (or sell the land at an undervalue taking account of the cost of removal), as the courts have repeatedly said, POCA does not adopt a balance-sheet approach.

The judgment of the Court of Appeal can be found here.

Interpol reports on sharp rise in plastic waste crime

A new Interpol strategic report on global plastic waste management has found a significant increase in illegal plastic pollution trade across the world since 2018.

The report makes for interesting reading. Between 1992 and 2018, China imported a cumulative 45% of the world’s plastic waste, making the global plastic waste market heavily dependent on access to the Chinese recycling sector. However, in January 2018 China implemented new restrictions on the import of 24 types of solid waste including plastic waste.

As a consequence of this policy there has been a large re-routing of plastic waste exports, especially into South and South-East Asia. Shipments of waste to Central and Eastern Europe have also increased. This is likely to have led to a ‘waste surplus’ in these areas. Significantly, there has been a noted increase in illegal treatment of plastic waste in both export countries and in emerging import countries, with three key elements:

i) Export countries have experienced both a significant increase in waste disposal at illegal landfills as well as irregular waste fires in order to cheaply deal with large volumes of untreated domestic waste that would otherwise have been exported to China;

ii) Illegal recycling facilities have thrived in emerging Asian import countries, due to the increase in waste imports and a lack of enforcement capacity. This has circumvented licence costs, impacted on efforts to treat waste in an environmentally sound manner and led to an increase in illicit landfills;

iii) There has been an increase in accidental and deliberate waste fires.

The report makes four recommendations to fight criminality in the plastic waste sector:

i) Develop targeted and time-efficient inspection strategies;

ii) Improve inter-agency co-operation;

iii) Improve waste traceability;

iv) Use the Basel Convention, given that a broader range of plastic wastes are soon to be brought under its scope, as a means of better monitoring and control of the plastic waste stream.

The case studies referred to in the report include the illegal export of 2600 metric tons of mainly household waste to Poland from the UK, misdescribed as green list plastic, which was the subject of a significant fire in May 2018, one of 80 waste fires in Poland in 2018. The report also refers to the major repatriation of waste from Malaysia, with a combined volume of 3737 metric tons of plastic waste sent back to 13 different countries, including 42 containers to the UK.

The report specifically references an “innovative digital solution to track waste through the economy” being pioneered by the UK. The UK’s ‘Waste Tracking Project’ aims to improve the management of waste and reduce the risk of economic, environmental and social harm by ensuring that all businesses adopt legitimate waste management services. It is hoped that a prototype digital waste tracking service will be developed by October 2020.

The full report can be found here

Environmental targets and the Environment Bill

On 19 August DEFRA published its policy paper on the inclusion of environmental targets in the Environment Bill.

The paper notes that,

“It is a major new step to set environmental goals, beyond climate change mitigation, in a way that legal binds this government and future governments, and we want to get it right.”

Ignoring, for a moment, the obvious inaccuracy in that statement, (the Water Framework Directive, anyone? Or perhaps the Convention on Global Diversity? I could go on…,) the sentiment behind it is laudable – it is important that the targets set in the Environment Bill are ‘right’. So, how does the paper do?

“We believe that the best way to deliver targets is through a robust, evidence-led process that seeks independent expert advice, provides a role for stakeholders and the public, as well as scrutiny from Parliament” – so good so far (of course note the irony of a government containing Michael Gove MP backing expert advice – this author thought people ‘had had enough of experts’).

“This paper provides an overview of how we intend to develop and bring forward targets by October 2022” – wait, what? No targets until 2022? What about the period in between when the transition period ends and these targets come into force?

“Once proposed targets are developed, businesses, communities and civil society will have an opportunity to share their views in response to a public consultation that is expected in early 2022.” – so realistically the targets won’t be effective until the middle of 2022 at the earliest? This isn’t looking so promising.

So, what are the targets going to cover?

“The Environment Bill allows for long-term targets to be set in respect of any matter which relates to the natural environment, or people’s enjoyment of it. It requires government to set at least one target in four priority areas: air quality, biodiversity, water and resource efficiency and waste reduction, as well as a target for fine particulate matter (PM2.5). These targets need to be brought forward by 31 October 2022.”

Therein lies the problem with the paper; whilst the Environment Bill was introduced on 15 October 2019, it essentially builds on the 25 Year Environment Plan, which was published on 11 January 2018. It is difficult to understand how work couldn’t have already been in train to set these targets so that they are ready to fill the gap left by our exit from the European Union, particularly in circumstances where they seem to tread the same ground…

Find the full policy paper here

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