Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC and Charles Morgan consider a case concerning the consensual disposal of judicial review proceedings, developments near COMAH sites, the Southern Water saga and announce a new book on flood claims.

Defra found in compromising position

The case of R (WWF-UK, Angling Trust Ltd and Fish Legal) v Secretary of State for Environment, Environment Agency and Natural England [2021] EWHC 1870 (Admin) is interesting on two scores. Substantively it appears to be a win for Defra, whose failure to establish a comprehensive programme of Diffuse Water Pollution Plans (“DWPPs”) was excused by the court (Lang J). However, of potentially wider interest is the manner in which the obligation to produce such plans at all was held to have arisen. That was by the compromise of earlier judicial review proceedings brought in 2015 alleging non-compliance with the requirements of the Water Framework Directive by the failure to establish Water Protection Zones (“WPZs”).

Those proceedings were disposed of by a consent order, the only substantive terms of which were the withdrawal of the application for judicial review other than for the purpose of enforcing an attached schedule, and the grant of liberty to apply for that purpose. The schedule was termed a “Defra/Environment Agency Position Statement”. That set out the future approach to the designation of WPZs by an evaluation process, concluding that “The results will be set out as soon as reasonably practicable in the Diffuse Water Pollution Plans and/or Site improvement Plans as appropriate for each site, as amended from time to time.”

Roll forward to 2021 and only four DWPPs had been published. The claimants alleged that was a breach of the terms in the schedule. The first issue was whether and how those terms took effect legally, not least because there was no statutory obligation to draw up DWPPs at all. Nevertheless Lang J held that the form of the consent order was akin to a Tomlin order, a well-established mechanism for the compromise of private law proceedings, and was enforceable as if a contract. The judgment contains a very clear and succinct summary of the principles.

The most significant step in the court’s reasoning is Lang J’s conclusion that “I do not accept that it is unlawful for a public body to enter into a binding settlement agreement. It may legitimately do so in the exercise of its statutory powers and duties. There is no reason in principle why a minister or a public body should not agree with an opposing party that they will commit to taking certain steps, as part of a settlement agreement, in the exercise of their public functions. In my experience it is commonplace for such commitments to be given, often in the form of undertakings. The terms of a settlement agreement will often differ from the relief originally sought, because it is a compromise, but that does not affect its validity. As the case law indicates, in a Tomlin order, the scheduled agreement may extend beyond the pleaded case, and give rise to new obligations … Such agreements are enforceable, on application to the Court, and do not require a fresh claim to be commenced.”

This is a very valuable indication, from an extremely experienced and well-respected public law practitioner. Many legal representatives of public bodies are hesitant to agree to such arrangements, expressing precisely the concerns dispelled by the judge. It deserves to be well-publicised and widely-known and those of us engaged in judicial review arising out of the regulatory activities of bodies such as the Environment Agency would be well-advised to have the passage to hand as a valuable aid to negotiated outcomes in difficult cases.

Sadly for the claimants, that was the high water mark (aqueous metaphor time) of their success. Lang J went on to conclude that the qualification of the defendants’ assumed obligation by the words “as soon as reasonably practicable” imported the right to have regard to scarcity of resources and that doing so justified the defendants’ relative inactivity.

Who decides on Major Accident Hazards? – new development near COMAH sites

A recent decision of the Planning Court has shown how difficult it is to interest the court in overturning an expert judgment (Valero Logistics UK Ltd and another v Plymouth City Council and others [2021] EWHC 1792 (Admin)). It has at least re-affirmed the approach taken all those years ago in Gateshead MBC v Secretary of State (1994) about the extent to which a local authority can rely upon another regulator when regimes overlap – it is still necessary that the Council is satisfied that this will be regulated appropriately and it cannot just say, “leave it all to the EA”. 

In Valero, the applicants had sought planning permission for a commercial heliport near to fuel depots that were regulated under the Control of Major Accident Hazards Regulations  (‘COMAH’) because they handled and stored highly-flammable fuels in above-ground tanks.  You therefore had the unusual spectacle of local councillors being asked to judge the wisdom of building a heliport here, and judging what to make of the risks of an accident arising from low-flying helicopters.  Whilst this might have a low probability, and indeed were assessed at 1 in a billion, its consequences could be catastrophic.

Whilst the Council did impose planning conditions to restrict the number of movements and the permitted flightpaths, the main reliance was placed on the requirement to satisfy the Civil Aviation Authority that the helicopter use was safe – particularly given that the site had had a previous unregulated and unrestricted domestic helicopter use.  The fuel storage operators argued that the Council had conspicuously failed to engage with the scale of the risk posed to their COMAH sites. 

The court considered that this was a question left to the reasonable judgment of the public authority, and the evidence showed that the Council had understood that it was ultimately a matter of planning judgment for it to make – and not for the CAA or the HSE – as to whether the risks and mitigation measures were acceptable and the new heliport should be given permission. Whilst this case may not make new law, it does confirm that the stage where the real effort needs to be made – where contentious technical issues arise – is at the application stage and not in any future legal challenge.  We can also have a lot of sympathy for the burden this can place on lay councillors.

The Southern Water saga

Much has already been written about the record fine for Southern Water that was imposed by Canterbury Crown Court last week of £90million. The sentencing hearing took 5 days, and it is apparent that the judge did not accept the company’s submissions that the illegal spills had been the result of negligence. As the BBC reported, the judge concluded that the offences had been “committed deliberately” by Southern Water’s board of directors at the time – although it is notable that no individuals have been named or separately proceeded against for these offences. Mr Justice Johnson is also reported as saying that the offences had been motivated by a desire to “focus the company’s attention on those metrics that increase its income, disregarding its wider compliance obligations”. In total, the 51 counts covered 6,971 illegal spills from 17 sites in Hampshire, Kent and West Sussex between 2010 and 2015. Yet, as the judge is also reported by the ENDS Report as saying, “Each offence does not stand in isolation. It is necessary to sentence the company for the totality of the offences to which it has pleaded guilty. But even that does not reflect the defendant’s criminality. That is because the offences are aggravated by its previous persistent pollution of the environment over very many years.” ENDS have also reported that the claim for prosecution costs of £2.5million has yet to be finally determined. In its press statement, Southern Water’s chief executive, who joined the company in 2017, said he was “deeply sorry for the historic incidents”.

This is certainly the sort of story that deserves more than one week in the news. So, there may be more to add by way of comment once we see the text of the judgment. For instance, we do not know what account the court took of the penalty that Ofwat imposed for breaches over essentially the same period. That penalty was also a record, and the £126million was stated to include a significant £32m as punishment. Meanwhile, it is said that investigations into other events after 2015 continue.

New book on flood claims

‘A Practical Guide to the Law of Flood Protection and Flood Claims’ by William Upton QC was published this week.  It is intended to be a helpful resource for established practitioners as well as an introduction to those new to the subject.  There is much that can be learnt from the caselaw, in a situation where, as Lord Justice Jackson once acknowledged, “the judge is required to carry out a somewhat daunting multifactorial assessment”. 

Whilst no flood event is the same, much of flood protection is about risk management and many of these issues have arisen in the past. The book describes the key concepts in the context of the current regulatory background, established by the Flood and Water Management Act 2010.  It also discusses why a measured Duty of Care is used in these type of nuisance and negligence claims, and what defending against flood water as the “common enemy” can mean. The subjects covered include the different roles of all the public authorities involved, and their potential duties and liabilities for compensation, including in terms of human rights law. 

The book is available to order here.  Readers of the blog can take advantage of the ‘friends of the author’ coupon for orders from the publisher’s site, 3X4VH, which will give a 10% discount (along with their usual free delivery). 

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 Noémi Byrd consider the countdown to Net Zero, the role of climate change in the Planning Bill reforms and why complaints to the Office of Environmental Protection already matter.

Counting down to Net Zero?

The Sixth Carbon Budget was brought into force on 24th June 2021. In line with the Climate Change Committee’s (CCC) advice, it places a cap on targeted emissions equating to 193MtCO2e annually between 2033 and 2037. In 2019 annual emissions stood at 522MtCO2e. The reduction needed is steep. The CCC’s annual report to Parliament on emissions reductions states the government’s problem plainly: “the willingness to set emissions targets of genuine ambition contrasts with a reluctance to implement the realistic policies necessary to achieve them”.

To date, no legal challenge relying on the 2050 target duty and the carbon budgets, or indeed the Secretary of State’s duty to prepare policies and proposals which he considers will enable the carbon budgets to be met (ss. 13-15 CCA), has succeeded. This is due principally to the extent of the Secretary of State’s discretion in how the target and budgets are to be met, as explained in R (Packham) v SST [2020] EWCA Civ 1004 at [87]:

“[…] the statutory and policy arrangements we have described, while providing a clear strategy for meeting carbon budgets and achieving the target of net zero emissions, leave the Government a good deal of latitude in the action it takes to attain those objectives […] “

The fate of recent challenges relying on the provisions of the CCA suggest that this latest, most ambitious, budget is unlikely to have a significant legal impact. For example, the absence of a requirement to assess quantitatively the GHG emissions from major energy infrastructure projects under the development consent regime, was confirmed by the Court of Appeal in R (ClientEarth) v SSBEIS [2021] EWCA Civ 43. The government has since agreed to review the Energy NPS following a separate legal challenge, but there is no clear indication that a quantitative assessment will be required in future.

In R (Finch) v Surrey County Council & Ors [2020] EWHC 3559 the assessment of GHG emissions against the carbon budget is directly in issue. The main argument that end-user emissions from drilled oil should be included in an environmental statement is innovative, and as the claimant acknowledges, represents “a difficult and uncertain exercise”. In separate but contingent ground, the claimant argues that estimate of the overall GHG emissions from the proposal should have been compared to a “metric” for carbon reduction, including the statutory carbon budgets. The “metric” argument was not explicitly addressed, as the principal ground was rejected. Permission to appeal has been granted.

The difficulty this lack of a metric poses in the planning context is illustrated by the grant of permission for a non-NSIP gas-fired power plant in East Devon last year. The Inspector found that the emissions would be “substantial”, yet there was “no way of meaningfully relating the resultant GHG emissions from the proposed development, either by itself, or cumulatively with other similar schemes, quantitatively with the national 2050 outcome duty or its associated five-yearly budgets”.

Nevertheless, there may be a gradual shift towards making the numbers count. In Transport Action Network’s (TAN) current challenge to the second Road Investment Strategy (RIS2) ([2021] EWHC 568 (Admin)), TAN argues that the Secretary of State erred in law by failing to take account of the 2050 target and the carbon budgets in exercising its powers under the Infrastructure Act 2015, and has obtained permission to adduce expert evidence on alleged inaccuracies in the government’s calculations. The court might (if the claim fails) be required to reject explicitly the argument that a project likely to undermine a “legally binding” carbon budget is unlawful. If that happens against the backdrop of COP26, the law and the United Kingdom’s ‘climate leadership’ will certainly look as if they are pulling in different directions.

A longer consideration of this question about Net Zero is discussed in Noemi’s further article in our Climate Change Blog, including how the courts have considered it in the recent ClientEarth, Elliott-Smith, Finch and TAN cases.

Climate change and the Planning Bill reforms

In its 2021 Report to Parliament on the Progress in reducing emissions, the Climate Change Committee has emphasised that climate change “must be a key consideration in the government’s planning reforms”.  Whilst there have been some actions in response to previous assessments, notably in tackling flooding and water scarcity, the CCC consider that overall progress in planning and delivering adaptation is not keeping up with the increasing risks.  In its view, the UK is less prepared for the changing climate now than it was when the previous risk assessment was published five years ago.  In an echo of some of its recent pronouncements, it has noted that decisions on road building, planning, fossil fuel production and expansion of waste incineration are not only potentially incompatible with the overall need to reduce emissions but also send mixed messages and could undermine public buy-in to the Net Zero transition.  It has recommended implementation of a ‘Net Zero Test’ to ensure that all Government policy decisions are compatible with the legislated emissions targets, and that amendments should be made to the Planning Bill to ensure that developments and infrastructure are compliant with Net Zero and appropriately resilient to climate change. 

Certainly, the broad provisions currently in the Planning Act 2008 and in the Infrastructure Act 2015 that require consideration to be given to government policy on climate change, or the effect of a project on the environment, would not go far enough to achieve what is being recommended.  Political realities will no doubt determine what appears in the final draft of the Planning Bill.  But we will have to wait a while to see what is produced. The government has not followed the CCC’s recommendation and included an explicit responsibility for sustainability in the remit of the new building safety regulator in the Building Safety Bill, published this week.  This new Bill talks about the safety of people in or about buildings in relation to risks arising from buildings, and about improving the technical standard of buildings, but remains silent about climate change mitigation and adaptation.

Why complaints to the Office of Environmental Protection already matter

The announcement that the Interim OEP commenced its work on 1st July 2021 may not have caused many immediate ripples in the news. There is a fair amount of preparatory work and staff recruitment for them to do, in readiness for being able to operate on Day One after the relevant sections of the Environment Act come into force. They have provided their own advice to Defra about the draft environmental principles policy statement, following a Ministerial request. One job that they have also ticked off the list is that they have a logo.

One immediate point to highlight is that they say that the interim Office is open to receiving complaints. A complaint can be made by members of the public if they think that a “public authority” has broken “environmental law” (using the definitions in the Bill), and it is a free service. Two examples that the OEP website specifically identifies is that a public authority may have failed to carry out an environmental impact assessment, or failed to exercise a function it has – for instance, when it applies licensing standards that are less rigorous than the law demands.

Given that part of the role of the OEP is to fill the gap left by the removal of the ability to complain to the European Commission, this is a timely reminder that the delay in setting up the OEP does not represent an enforcement holiday. Indeed, the OEP website trumpets the fact that anyone can complain about an event that has happened “at any point in time”, and the Bill does allow the OEP to waive the time limits “if it considers that there are exceptional reasons for doing so”. This has yet to be tested, but making a complaint now should assist in showing that there is good reason to extend the time limit. Otherwise, according to the Environment Bill, complaints should normally be submitted within one year after you say the environmental law was last broken, or three months since the public authority’s internal complaints procedure has been exhausted (and that complaints system must be used, if there is one).

The one note of caution is that the Interim OEP still only has a limited role. It will receive and validate complaints about public authorities, but it will not be making any final decisions about them. The complaints will still need to be considered by the OEP once it is established as an independent body. Indeed, the predecessor body within Defra, the Interim Environmental Governance Secretariat (IEGS) had to take the same approach. As stated in its report on its first 3 months (from January and March 2021), it received 13 complaints. Only 3 have been closed, as one was not about environmental law, one was about the activity of a private company, and one was about a devolved matter. The other 10 are awaiting the OEP’s determination. But at least they are in the queue for consideration by the OEP, together with a preliminary assessment.

Interestingly, the interim OEP acknowledges there is the potential for a conflict of interest given that they are not yet independent of government. After all, the interim Office is still staffed by a team within Defra, with input from the relevant Northern Irish office, DAERA. They have at least stated that all of the complaints that they receive, together with their initial assessment of them, will be stored separately.

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

Counting down to Net Zero?

Posted by: Noémi Byrd

The Sixth Carbon Budget covering 2033-2037 was brought into force on 24th June 2021. In line with the Climate Change Committee’s (CCC) advice, it places a 965 million tonne cap on the emission of targeted greenhouse gases for the period, representing a 73% reduction relative to the 1990 baseline and including – for the first time – the UK’s contribution to international aviation and shipping emissions. This cap equates to 193MtCO2e emissions annually. In 2019 annual emissions stood at 522MtCO2e. The reduction needed is steep.

On the face of legislation already in place, and in the light of having achieved a 40% reduction in territorial greenhouse gas emissions during the period 1990-2019 (1) (more than any other G20 member) the United Kingdom can, credibly, call itself a climate leader. Section 1 of the Climate Change Act 2008 (CCA) requires the Secretary of State to “ensure” that the 2050 target for targeted greenhouse gas emissions reductions is met. This Net Zero target, i.e. 100% reduction relative to the 1990 baseline, has been in force since June 2019. Section 4 CCA requires the Secretary of State to set five-yearly carbon budgets leading up to 2050, and, again “ensure” that the UK’s net carbon account for a budgetary period does not exceed the carbon budget. The UK’s carbon account for the first and second carbon budget periods remained within the statutory limit, and is on track to do so for the current (third) budget ending in 2022.

However, according to the CCC, the UK is not on track to remain within the fourth and fifth climate budgets which have been set – let alone the sixth (2). The consequence – given that the budgets are intended to function as steps down to Net Zero – is that the 2050 target will not be met, unless action is urgently taken to steepen the downwards trajectory. The CCC’s annual Progress Report to Parliament on emissions reductions (June 2021) makes very plain that an absence of targets is not the problem. The requisite legislation is in place. Yet “the willingness to set emissions targets of genuine ambition contrasts with a reluctance to implement the realistic policies necessary to achieve them”. So what legal impact is the Sixth Carbon Budget, the most ambitious target so far, likely to have?

To date, no legal challenge relying on the 2050 target duty and the carbon budgets, or indeed the Secretary of State’s duty to prepare policies and proposals which he considers will enable the carbon budgets to be met (ss. 13-15 CCA), has succeeded. This is due principally to the extent of the Secretary of State’s discretion in how the target and budgets are to be met, as explained by the observations of the Court of Appeal in R (Packham) v SST [2020] EWCA Civ 1004 at [87]:

As [counsel for the Secretary of State] submitted, the statutory and policy arrangements we have described, while providing a clear strategy for meeting carbon budgets and achieving the target of net zero emissions, leave the Government a good deal of latitude in the action it takes to attain those objectives—in [counsel’s] words, “as part of an economy-wide transition”. Likely increases in emissions resulting from the construction and operation of major new infrastructure are considered under that strategy. But—again as [counsel] put it—“it is the role of Government to determine how best to make that transition””.

If a quick look back at the fate of recent challenges relying on the provisions of the CCA is the best indicator of what legal impact the sixth carbon budget will have, the answer is: probably not much. For example, major energy infrastructure projects are likely to have a significant emissions impact. Yet, there is no requirement in the (currently under review) Energy National Policy Statements (ENPS) governing the grant of development consent under the Planning Act 2008 for such projects, either to assess the need for a particular project or its likely impact on carbon budgets. The absence of this requirement to assess impact quantitatively is made explicit in the ENPSs, as confirmed by the Court of Appeal in R (ClientEarth) v SSBEIS [2021] EWCA Civ 43. The government has since agreed to review the ENPSs following a separate legal challenge(3), but there is no clear indication that a quantitative assessment of GHG emissions will be required as part of the revised policies, or if the Sixth Carbon Budget will have any impact here at all.

In R (Finch) v Surrey County Council & Ors [2020] EWHC 3559] the assessment of GHG emissions against the carbon budget is directly in issue. The GHGs in question are those generated offsite, by the combustion – i.e. the end use – of refined oil to be extracted onsite. The argument that end-user GHG emissions should be included in an environmental statement is innovative, and as the claimant acknowledges, represents “a difficult and uncertain exercise”. Nevertheless, these emissions occur and need to be counted somewhere.

A separate but contingent ground in Finch is that an estimate of the GHG emissions from the operation of the development on the site, and from the combustion of refined products emanating from the site, should have been compared to a “metric” for carbon reduction, notably the net zero target at national level, national carbon budgets, and sectoral allowances. Holgate J rejected the principal ground, and so the contingent ground fell away and the “metric” argument was not explicitly addressed. Permission to appeal has been granted.

The difficult question of whether, how, and where GHG emissions should be counted against the statutory carbon budget has yet to be explicitly addressed. The UK Emissions Trading Scheme (ETS) does provide a framework for counting (and trading) emissions within sector allowances, but it “does not necessarily have to achieve a reduction in the activities consisting of greenhouse gas emissions or causing or contributing such emissions: it is sufficient that the design of the scheme limits or encourages the limitation of those emissions” (Elliott-Smith v SSBEIS [2021] EWHC 1633 (Admin) per Dove J at [66]). In any event, the ETS covers energy intensive industries, power generation and aviation, which represent one third of the UK’s total emissions. What about the other two thirds?

The difficulty this lack of a metric poses for local planning authorities (and Inspectors) is illustrated by the grant of permission for a gas-fired power plant East Devon last year (4). The proposal fell well below the nationally significant infrastructure project threshold and so fell to be determined under the TCPA 1990. Nevertheless, emissions from the scheme were credibly estimated by objectors to amount to 28.5% of 2019 baseline emissions in the local authority’s area. The Inspector found that the emissions would be “substantial”, but that there was “no way of meaningfully relating the resultant GHG emissions from the proposed development, either by itself, or cumulatively with other similar schemes, quantitatively with the national 2050 outcome duty or its associated five-yearly budgets”. The Inspector therefore turned to support in the Energy National Policy Statements for an ‘energy mix’ including (unquantified) fossil fuel back-up for renewable energy generation, and found that this high level policy support tipped the balance in favour of granting permission – despite imminent review of the ENPSs by the government. In its latest report the CCC advises that economy-wide reductions are necessary and “any new source of emissions could put the Net Zero path at risk”, but as long as the 2050 statutory target and the carbon budgets remain a material consideration, rather than providing the basis for calculable limits to emissions from proposed development, they will remain “legally binding” in theory only.

There may be the beginnings of a shift towards making the numbers count. In Transport Action Network’s (TAN) current challenge to the second Road Investment Strategy (RIS2) ([2021] EWHC 568 (Admin)), TAN argues that the Secretary of State erred in law by failing to take account of the 2050 target and the carbon budgets in exercising its powers under the Infrastructure Act 2015. The government argues that the budget and targets were not express material considerations under the IA 2015, nor ‘so obviously material’ that there was an obligation to take them into account, and further that RIS2 emissions will be “an extremely small component” of all UK road transport emissions. Significantly, TAN has obtained permission to adduce expert evidence on alleged inaccuracies in the government’s calculations. There is potential for this claim to be the first in which the court may, if rejecting it, have to reject explicitly the argument that a project threatening the achievement of a “legally binding” carbon budget is unlawful.

The CCC emphasises that climate change “must be a key consideration in the government’s planning reforms” and that “the current Planning Bill does not ensure that developments and infrastructure are compliant with Net Zero […] it would be serious were this opportunity to be missed.” This is a clear signal that the climate impacts of development need to be assessed quantitatively, in relation to the carbon budgets, as well as qualitatively. The question is: how ? Yet more broad provisions like those in the Planning Act 2008 and the Infrastructure Act 2015 requiring (respectively and in summary) consideration to be given to government policy on climate change, or the effect of projects on the environment, will lead to yet more irrationality challenges which ultimately fail. A fixed legislative emissions threshold in line with Net Zero is one answer, but political realities will no doubt determine what appears in the final draft of the Bill.

(1) CCC Progress Report to Parliament, June 2021, page 8. (The reduction in emissions from imported goods and services is not nearly as impressive).
(2) https://www.theccc.org.uk/about/our-expertise/advice-on-reducing-the-uks-emissions/
(3) https://www.endsreport.com/article/1713981/government-begins-review-energy-national-policy-statements
(4) PINS Appeal Ref 3247638

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Environmental Law Podcast – July 2021

Following the pandemic induced hiatus to the podcast series, we are delighted to bring you a new edition of this podcast presented by Christopher Badger and Mark Davies in association with LexisPSL.

In this July 2021 update, they take us through:

  • the climate change litigation judgment of the Dutch Court in Milieudefensie et al v Royal Dutch Shell plc – listen from 0.38 mins
  • the Environment Agency’s National Crime Survey results – listen from 4.17 mins
  • the meaning of waste case looking at ‘fluff’ in Customs and Excise Commissioners v Devon Waste Management Ltd; Customs and Excise Commissioners v Biffa Waste Services Ltd [2021] All ER (D) 86 (Apr) – listen from 7.48 mins

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