Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC, Charles Morgan and Natasha Hausdorff consider lawful development certificates, the Environment Agency’s National Waste Crime Agency and the dangers of sewage sludge.

Nocado: not about air quality, but important points of law nevertheless

You would be forgiven, when reading the headlines this week about the quashing of Ocado’s permission linked to a new distribution centre, that it was a case about air quality and its location next door to a primary school.  However, you will not find the phrase “air quality” even mentioned in judgement at all.  It was not a case about those issues, although it is easy to understand why those were the issues that motivated the local residents’ group (catchily called ‘Nocado’) to make such great efforts to halt the development.

Nevetheless, as the opening words of the judgment confirm, this Planning Court case – full name R (oao Ocado Retail Ltd) v Islington BC , Telereal Trillium Limited and Concerned Residents of Tufnell Park [2021] EWHC 1509 (Admin) – was about important issues of planning law.  Islington BC has issued and then revoked a lawful development certificate  (‘LDC’) which would have allowed a warehouse use. The judge had to consider what the legal nature of the right is which accrues when a breach of condition becomes immune from enforcement and lawful, and what is the scope of the power to revoke a certificate if it is based on false statements or documents, or any material information was withheld from the Council. It also confirms that you could have a LDC granted for the breach of one condition, and all the other conditions would still apply. The judgement is a masterclass in how these issues should be approached.

Certificates of Lawful Use can be a real headache when it comes to enforcement, as they can be too broadly worded.  There may well be little in the way of restrictions placed on the land use with regard to any environmental or amenity issues. We have seen this problem of the gaps between the planning and environmental regimes arise several times in cases about old waste and industrial sites.   New occupiers and owners are then able to lawfully push the boundaries of what everyone had thought had been permitted.  In the Ocado case, the court held that the certificate had been lawfully revoked, but it would have otherwise supported the high level of use proposed in the sensitive residential location.

The Environment Agency’s National Waste Crime Survey

Last week saw reports of the results of the Environment Agency’s (“the Agency”) National Waste Crime Survey, assessing the impact of waste crime on the waste industry, land owners, farmers and associated sectors, and investigating how regulation could more effectively combat this growing problem. Commissioned by the Agency and supported by the Chartered Institution of Wastes Management (CIWM), Environmental Services Association (ESA), the United Resource Operators Consortium and the National Farmers Union (NFU), it elicited 836 responses. The Agency is due to publish its findings in the autumn.

For those responding, the issues of most concern were large scale fly-tipping (with 55% of respondents estimating that this had increased over the past 12 months) and illegal waste sites. The economic impact of waste crime was cited as the biggest problem; 73% of respondents reported that they had covered the financial cost of clean-up and 58% experienced disruption to their business as a result. Nearly 3 out of 10 people impacted by illegal exports of waste, or illegal waste sites, had incurred over £50,000 of costs in the last year. Respondents estimated that only 25% of waste crime incidents are reported to the Agency. Waste industry employees estimated that 18% in their industry sector committed some form of waste crime.

Malcolm Lythgo, Head of Waste Regulation at the Agency stated that “waste criminals show complete disregard for communities and the environment, and they need to know we are ready to take action. Last year the EA prosecuted nearly 100 individuals and companies for waste crime offences, with fines exceeding £900,000, 28 custodial sentences and £1 million of confiscation orders”.

The survey, which was launched in March, came just over a year after the Agency launched the Joint Unit for Waste Crime in January 2020. Tackling serious and organised crime, this Unit has facilitated multi-agency operations, intelligence sharing and enforcement. The ‘week of action’ tackling waste and metal crime in October 2020, saw joint operations between the Agency and British Transport Police in which over 1,100 vehicles were stopped and 550 sites were visited, resulting in 29 arrests and 150 offences being detected. The Agency will use the survey results, and the insights they offer, to inform its enforcement action and sector engagement. This includes increasing awareness of waste regulation and the role of the Agency amongst customers, businesses and impacted communities.

Gently shaken, but still … [rhymes with “stirred”]

We’ve banged on about sewage sludge before – see “Sludge won’t budge despite proposed regulatory nudge”, “Sticky times for sewage sludge” and “Plumbing the depths of sludge disposal regulation”. Our theme has been the manifest “light touch” of regulation because, essentially, you have to get rid of the stuff somehow, at the same rate at which it is continuously produced – a process not susceptible to legislative control. As a result, attention has focussed on setting limits for a very confined set of substances and ensuring that nothing in the regulations renders difficult or unlawful the existing practices of sewerage undertakers and others who are in the business of sewage disposal, including the collection of the contents of septic tanks.

Things are coming home to roost. Tales have emerged of Cumbrian cattle at two separate locations falling ill and dying en masse after grazing on land spread with sewage sludge, the presence of a cocktail of carcinogens and toxins being suspected as the cause. In the USA, “forever chemicals” have been identified in sludge. In Australia, concern is being expressed at the presence of medium-chain chlorinated paraffins. The truth is that sewage is a fantastically complex combination of all manner of synthesised and refined substances created and used by humans and casually disposed of into the domestic sewage system (be it public sewers or private tanks), supplemented by run-off from land strewn with similar products. Many of these, including micro-plastics, pass through the entire treatment system unabated. A recent ENDS report lists, by way of example of the content of the sludge, substances whose origins may have been paint stripper, rubber tyres (which wear away on road surfaces), brake fluid (likewise), cosmetics and immuno-suppressant and chemotherapy drugs.

When it comes to sewage, we are all sinners.

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 and James Harrison consider the precautionary principle, the new Dutch case about Shell’s climate change obligations, the latest list of Enforcement Undertakings, and look forward to the UKELA conference.

The Precautionary Principle as an answer to uncertainty

Trying to satisfy the tests under the Habitat Regulations to allow new housing to proceed near to a European protected site is a challenge at the best of times. The decision maker has to be satisfied, at the time of the consent, that the project will not adversely affect the integrity of the European site.  When a site is declared to be in an unfavourable condition, there is then little, if any room for additional adverse impacts, as many local authorities across the country are discovering. The recent case of R (oao Wyatt v Fareham Borough Council [2021] EWHC 1434 (Admin), before Mr Justice Jay, has seen the advice in respect of the Solent Estuary come under close scrutiny, and has highlighted how far the precautionary principle can provide an answer to the conundrum. The case itself may have only been about 8 new houses, but the advice at issue affects 12 local planning authority areas. 

The advice from Natural England is that there remains a considerable degree of scientific uncertainty surrounding the likely impact of the wastewater from new housing development on the Solent Estuary sites, which are in unfavourable condition. Applying the precautionary principle, this means that NE’s advice is that only proposals which can show that they will be, at worst, “nutrient neutral”, should be granted permission. 

Many see this as a moratorium on new development.  Indeed, the claimant in effect tried to argue that the uncertainty about the effects of new houses near the Solent ruled out any new development in the region. This was described by the judge as “an unattractive submission given the exigencies of the real world.” It also “misunderstands the precautionary principle. We are in the realm of the empirical sciences where uncertainty is inevitable”. As he said, the whole point of the principle is that the uncertainty is addressed by applying precautionary rates to the variables included in the assessment.  In that manner, reasonable scientific certainty can indeed be given as to the absence of an adverse outcome and satisfy the legal requirements.   In the case of the Solent, in order to calculate the likely nutrient impact from housing, NE advise using an algorithm that uses a number of variables, and then adding a further cushion of 20% as a precautionary buffer. Whilst the judge considered that one element (the use of a national average occupancy figure) was open to criticism, he considered that the overall algorithm was “sufficiently precautionary” and not – given the court’s role – irrational. 

The story of nutrient neutrality continues, as Natural England are now in the process of producing national guidance, and have been waiting on the results of case.  But the case is an important reminder of the proper role of the Precautionary Principle, and that a requirement in an assessment for absolute certainty would be impossible of scientific attainment as well as being disproportionate.

Fossil fuels, Shell and Friends of the Earth (Netherlands)

Headlines have been grabbed by the Dutch case of Milieudefensie et al v Royal Dutch Shell, (26 May 2021), where the Court of First Instance of The Hague has ruled that Royal Dutch Shell (“RDS”) has an independent obligation to reduce its CO2 emissions by 45% by 2030 compared to 2010 levels and to zero by 2050, in line with the Paris Agreement.

This case owes a debt to the Urgenda case for the principle that the State has a positive duty under human rights law to act against climate change. But the legal basis of the Milieudefensie judgment is novel in the way that it utilises Dutch private law to extend this principle to apply international human rights law to RDS in a way that could potentially in future be applied to “all companies, no matter size, sector, operational context, property relations or structure”.

The Dutch Civil Code stipulates inter alia that tortious behaviour can consist of “what according to unwritten law is contrary to what is required in societal interrelations”. The Court has used this to hold that RDS are under a duty of care to reduce all its global emissions, because these will increase global temperatures and hence harm Dutch citizens.  It relied on a list of 14 relevant elements, including that global warming beyond 1.5°C will heavily impact upon human rights (per Urgenda) and that corporations must respect human rights and do their share to reduce climate change and its effects.

The Court acknowledged that RDS “cannot solve this global problem on its own” but that RDS was not absolved of its “individual partial responsibility to do its part regarding the emissions of the Shell group, which it can control and influence”.  The Court stated that RDS has what it referred to as an “obligation of result” to reduce the emissions directly resulting from its activities (‘Scope 1 emissions’), and an “obligation of best efforts” to reduce the emissions resulting both from the production of the energy used by the Shell Group (‘Scope 2 emissions’), and from its consumers (‘Scope 3 emissions’). RDS was given flexibility in allocating emissions cuts between Scope 1, 2, and 3 emissions, so long as in aggregate, the total emissions were reduced by 45%.

Shell has already announced its intention to appeal the judgment and it will be fascinating to see how far the Dutch appeal court will go in upholding the decision and the distinction between the two types of obligations. Whilst at first glance this case seems to impose a very wide-reaching standard of care, it has also featured in the Norwegian courts.  The legal status of environmental targets – whether they are absolute or merely require reasonable efforts – also remains a live issue for many governments.

Meanwhile, Shell has not been let off the hook – the Dutch court has made its decision provisionally enforceable so that RDS will be required to meet its reduction obligations even as the case is appealed.

Recent update to Enforcement Undertakings in England

The Environment Agency has published its list of the 29 undertakings it has accepted in the 6 months between October 2020 and March 2021. It can be viewed here.

As ever, the actual details given are brief, and relate more to the actions that will be taken than the details of the underlying offence.  Whilst each entry could tell a very interesting story, all that we really know is that the Agency decided – in line with its enforcement policy – that it was not in the public interest to prosecute, that they consider that the offer has addressed the cause and effect of the offending, and that it will protect / restore and/or enhance the country’s natural capital.

It is striking that most of the list is taken up by breaches of the producer responsibility for packaging waste regulations. There are 20 undertakings listed. Indeed we cannot recall when the last prosecution for this type of offence was last reported.  The sums involved range from about £1,700 to £54,000.

Seven entries relate to environment permitting, and the sums involved  range from some £2,000 (for some silage pollution) up to £380,000 (for a failure to comply with a permit condition, resulting in chemical pollution to nearby streams). They also cover offences such as effluent discharges, sewage pollution, and even operating an illegal waste site for a year. There are then two single entries for Water Resources Act 1991 (a water abstraction offence) and for the Salmon and Freshwater Fisheries Act 1975.

The use of this form of civil sanction has become well embedded. It is therefore regrettable that, as the ENDS Report has noted, hundreds of previous undertakings have been removed from view as the newest list replaces those that went before on www.gov.uk. ENDS have done a public service by collating the previous entries, and in publishing a complete list on their web pages.

UKELA CONFERENCE week

We look forward to the UKELA Annual conference next week, starting on 14 June, and we are pleased to be able to support it as one of the sponsors.  The main plenaries are on Thursday and Friday. Members of chambers are also involved on:

Monday June 14, at the Water Working Party session (12.30-2pm), Charles Morgan and Nick Ostrowski will be leading the session on “Combined Sewer Overflows – what are they and what is all the fuss about?” with Rachel Salvidge, journalist at ENDS; Andrea Poole, water/waste water consultant at Atkins; and Philip Dunne, MP for Ludlow and author of the Sewer (Inland Waterways) Bill 2019-2021.

Tuesday, June 15, Climate Change and Energy Working Party (8.30-10am) where  Stephen Hockman QC will be leading a session on the “Energy Sector after Brexit”, with Christopher Badger; and Silke Goldberg, Herbert Smith Freehills.

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