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Posted on: 16 July 2021
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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  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  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).
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