Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC, Charles Morgan and James Harrison consider practical applications of Coventry v Lawrence, new regulations concerning the spreading of organic manure on agricultural land and a custodial sentence for deliberate offending.

Is it still a nuisance when the activity in question only disrupts a new sensitive use that you introduce to your land?

One of the loose ends from the leading decision on nuisance in Coventry v Lawrence [2014] has been the practical application of what the Supreme Court said about the ability for a defendant to argue that the claimants have created the problem for themselves by changing the use of their own land.  It may well be wrong to hold that a defendant’s pre-existing activity has given rise to a nuisance in these circumstances. Although it was not necessary to decide the point in our case in Coventry itself, Lord Neuberger PSC did seek to give clear advice about how to approach this situation.

We now finally have a High Court decision where this has turned out to be a decisive factor – Jones v Ministry of Defence  [2021] EWHC 2276 (QB).  The case concerned noise nuisance from RAF aircraft flying over a house and commercial buildings in Anglesey.  The judge had no doubt that the noise of aircraft flying close to, and occasionally over, the land was very loud and interfered with its current use and enjoyment.  But he was satisfied that  the claimant had not established that the defendant had committed an actionable nuisance.  His primary conclusion was that, whilst the locality was largely agricultural, this aircraft noise had been part of this environment for generations. But he also went on to consider the point that the Joneses had changed the use of their land, and introduced residential and commercial activities that were sensitive to the aircraft noise.  Previously, this noise had not created a material interference with the Welsh Water depot use to which the land had been put before the Joneses moved in. The judgement does still turn on the specific findings of fact that were made, as you would expect, and on the MoD also  showing that the RAF were using their land in a reasonable manner and that this use had not increased in intensity. 

This is of course a different argument to saying that the claimant is, in effect, a ‘blow-in’ and ‘came to a nuisance’, which still is no defence to a claim in nuisance.  But the case has confirmed that the claimant has to respect the character of the locality.  Looking at the matter in the round, as the judge in Jones said, “If an occupier of land has conducted an activity in a reasonable manner for many years, I do not consider it fair that a new neighbour who wishes to start doing something that is sensitive to the occupier’s activity can complain that the activity in question will disrupt the sensitive use of his land that the neighbour wishes to introduce.”  This may prove not to be the end of the argument, but may have resolved this particular dispute.

Spreading not so thinly

A “Regulatory Position Statement” (“RPS”) is an interesting thing. You will not find the expression in any statute, including the Environment Act 1995 which grants and delimits the Agency’s powers and duties. Yet it is a creature of the Agency, in a manner explained in “Environmental permits: regulatory position statements”, where numerous such statements are listed. They are a form of policy, informing the application by the Agency of its enforcement powers and generally amounting to an indication of circumstances in which the Agency will not take action in respect of an apparent criminal breach of environmental law, provided that the regulated entity acts in accordance with whatever conditions the Agency chooses to stipulate in the relevant RPS. It is akin in function to a regulatory exemption, but lacking any form of legislative scrutiny and of somewhat uncertain legitimacy (cf. Environment Agency v R Newcomb and Sons Ltd [2003] EnvLR 12 re purported relaxation of exemption requirements).

On 3 August the Environment Agency uttered RPS 252 concerning the spreading of organic manure on agricultural land. That is an activity regulated in law by the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018. Regulation 4 stipulates that the application of organic manure (including sewage sludge) must be planned so that it does not exceed the needs of the soil or crop and does not give rise to a significant risk of agricultural diffuse pollution. The RPS sanctions failures to observe the first of those limitations in certain circumstances – essentially “have run out of other ways of getting rid of the stuff”.

The relaxation is only available upon compliance with the conditions found within the RPS which stipulate the type of land and soil to be used and seek to protect watercourses and sources of abstraction from risk of pollution. It also requires prior notification to the Agency, with a further notification requirement if the second limitation, as clarified by guidance, cannot be satisfied.

Quite apart from the large debate about the legal character and consequences of this off-piste form of regulation in general, it is interesting to speculate as to the purpose of this one in particular. An example given of circumstances where the relaxation might be invoked is “no available storage for treated sludge from sewage plants treating domestic or urban waste waters (biosolids), supplied within a contract with the sludge producer, followed by unavoidable spreading on cropped land with an application that exceeds the needs of the soil and crop.” Hercules would have welcomed this accommodation in respect of his labours in the Augean stables, and it is probably equally welcomed by the sewerage undertakers of England and Wales.

Deliberate offending gets a custodial sentence

A case, notable for being the first in the North East of England in which the Environment Agency were granted a restriction order, concluded last week with the defendant sentenced to a 12-month custodial sentence.

On 2 August, Dominic Allen was sentenced by Recorder Mullarkey at Newcastle Crown Court. Mr Allen, who had pleaded guilty to two offences of operating a waste site without an environmental permit and three offences of burning waste, received the prison sentence and was also ordered to pay £1,000 in costs and given 18 months to clear the site. The Judge concluded that the offending had been deliberate, persistent, and financially motivated and so he said that he could have no confidence in Mr Allen complying with any suspended sentence requirements.

Mr Allen did not hold a permit to run any form of waste site but received waste at his property at Old Swarland, which he disposed of by burning. Indeed, the Environment Agency investigation began after Northumberland Fire and Rescue Service had attended a fire at the site. Efforts were made to regulate the site by officers regularly attending the site, by correspondence requiring the site to stop receiving waste and be cleared, and by a statutory notice that required the removal of the waste unlawfully kept at the site. However, Mr Allen continued to receive waste (including household goods, construction waste, garden waste, electricals and vehicle tyres) and to burn the waste.

Therefore, after the lapse of the clearance notice deadline in October 2020, the Environment Agency applied for and were granted a restriction order, we believe under s.109D of the Environment Act 1995. A court can only grant a restriction order if certain conditions are met. In this case the order was granted because there was non-compliance with the clearance notice, which was causing or had failed to prevent continued pollution to the environment or harm to human health, and the order as necessary to prevent that pollution or harm from continuing. The restriction order prohibited access to, and the importation of waste into, the site and enabled Environment Agency officers to lock the site’s access gate and place a warning notice at the entrance.

John Crowl, Environment Agency Enforcement Team Leader in the North East, said that he hoped the result would “serve as a warning for others” and would show that the Environment Agency is “determined to make life tough for those who damage the environment and blight local communities”. He also referred favourably to the efficacy of the restriction order, which suggests that it is a mechanism that could be used again in the future. Comments made by a spokesperson for Northumbria Police also hint towards future collaborative investigations: “We have proven we are stronger by working together [with the Environment Agency and with Northumberland Fire and Rescue Service], and that a joint approach to tackling this type of blatant offending has seen a man jailed … we will not tolerate this type of criminality”. This is a serious sentence and, when taken with the comments above, demonstrates that the Courts will continue to impose significant sentences where culpability is properly shown to be deliberate.

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 Podcast – August 2021

In this podcast produced by Lexis PSL, Christopher Badger and Mark Davies discuss some of the key developments over the previous month, including:

  • Southern Water’s record £90 million fine – listen from 0.34 mins
  • Valero Logistics UK Ltd v Plymouth City Council – listen from 5.33 mins
  • The UK Innovation Strategy and the potential for the precautionary principle to be revisited – listen from 8.23 mins

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

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and James Harrison consider problems with the disposal of sewage sludge, a DEFRA Consultation on Environmental Review and a new UK Innovation Strategy from the BEIS.

More Sludge

We’ve written several times before about both microplastics in the water and sewerage systems and the somewhat under-explored problems relating to the disposal of sewage sludge by spreading on agricultural land, most recently in June. The Environment Agency has now obliquely acknowledged that the former is indeed an aspect of the latter. On 27 July it published “Appropriate measures for the biological treatment of waste: consultation response document”. The consultation is intended to inform the future regulation of permitted facilities which transfer or treat biowaste. Obviously, sewerage undertakers formed a major component of the responding consultees, with six of them amongst the total of 22. There are numerous references in the responses to the treatment of sewage sludge. Interestingly, one undertaker appears to have asserted that sludge was not a waste at all if destined for agricultural use, to which the Agency’s blunt retort is “Sewage sludge is a waste”, with reasons given. The Agency makes clear its view that the spreading of sludge is regarded as an entirely separately regulated activity from its prior treatment as waste.

The most interesting response is to the assertion from one consultee that “Removal of plastics is impossible for sewage sludge.” The Agency says simply “We acknowledge that microplastic in sludge is an issue and extremely difficult to remove. Larger fragments of plastic and other litter are usually removed by screening. Further work on microplastics in the environment will inform future policy and regulation.” That is another way of saying that at present there is no regulation (and no very clear policy) concerning this large area of concern, within either waste regulation or the Sludge (Use in Agriculture) Regulations. The fact is that even if the microplastic content of sewage sludge were found tomorrow to be a clear and direct source of serious injury to health or the environment, the present manner of treatment and disposal by spreading would both have to continue without modification for many years – they are essential components of a vast disposal system for an absolutely relentless waste stream, with considerable inertia built-in physically, economically and legally.

As we concluded last time, “When it comes to sewage, we are all sinners.” Anyone seriously concerned to take immediate personal steps to improve the situation should (a) stop using a washing machine and (b) visit their doctor (or possibly Dignitas) immediately.

DEFRA Consultation on Environmental Review

Are you a stakeholder or interested party in the new environmental review process, the Office for Environmental Protection’s bespoke litigation mechanism? In the recycled words of Lord Kitchener, DEFRA wants you!

When the Environment Bill becomes the Environment Act (anticipated to be in the Autumn), the Interim OEP will become the OEP and its whole gamut of enforcement powers, including environmental review, will become available. Whilst DEFRA takes the view that cases will “usually” be resolved by the OEP via the process of information and decision notices, the environmental review mechanism will exist for those matters that cannot be resolved through dialogue. The Court will apply the same principles as in judicial review to determine whether a public authority has failed to comply with environmental law and may grant standard judicial review remedies (other than damages).

Clause 38 of the Environment Bill sets out the new mechanism of environmental review but amendments will be required to the Civil Procedure Rules (CPR) to establish the mechanism in practice, and to specify important matters of procedure. Given the similarities between the environmental and judicial review processes it is likely that the new rules for the former will largely mirror the existing provision for the latter (set out in Part 54 of the CPR). However, the differences in procedure will require bespoke rules. For example, in environmental review both parties will be public authorities, the OEP will always be the applicant and will have engaged in the preliminary notice stage, and, in many circumstances, it may be appropriate for ‘the relevant Minister’ to join proceedings as an interested party. The early dialogue between the parties will mean that it is easier to deal with environmental review matters without a hearing than is the case with judicial review, the process for the inclusion of interested parties and interveners may sensibly be different from that of judicial review given that there is a greater likelihood of including such parties, and the publicly funded nature of the parties could justify a different default costs position (perhaps as in the Upper Tribunal). In addition, the time limits are different and there is no permission stage with environmental review. How best to deal with these differences, and more practical points such as the contents of the claim form, the requirements for service, and the provision of evidence, is the focus of this consultation. The consultation opened on 26 July and will run until 6 September 2021. Responses can be sent by email or post but are preferred by online survey. The survey and further information are available here.

BEIS publishes UK Innovation Strategy

“Historically, regulation has sometimes stifled innovation. Some of the current regulatory standards inherited from the EU are based on an overly restrictive interpretation of the precautionary principle.”

So reads the newly published UK Innovation Strategy produced by the Department for Business, Energy & Industrial Strategy. The document provides a useful insight into what role the Government considers ‘proportionality’ has to play in the current Environment Bill. After praising the outcomes that can be generated from a ‘correct’ proportionate application of the principle, the Strategy goes on to state:

“The precautionary principle can be interpreted in ways that produce more harm than good. In some cases, the precautionary principle has become a policy of blocking all potential harms, even a possibility of harm, without a balanced analysis of likely benefits.”

The example of genetically modified crops is given and the lack of any significant adoption of GM crops in the EU. The Strategy later continues:

“We will consult on how regulation can ensure that the UK is well-placed to extract the best value from innovation – including on the need for a benefit of a new proportionality principle for regulation.”

The document doesn’t attempt to resolve how innovation and equivalence may interact, nor expand on how proportionality in a regulatory context may be redefined. It doesn’t address previous attempts to consider the role of regulation – for example the Macrory Review or the Better Regulation Framework – or provide further examples of how the UK has had its hands tied behind its back by EU law.

The Strategy does state that “without risk there is no innovation”. Key then to the Strategy is risk management, unlocking skills and investment, as well as providing strategic direction to tackle the current challenges as the Government seeks to ‘Build Back Better’. The forthcoming statement on environmental principles due to accompany the Environment Bill will therefore make for interesting reading, if the Government is to try and rebalance ‘caution’ and ‘environmental risk’ in the context of proportionality and a need for innovation.

The UK Innovation Strategy 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