All posts by Bridget Tough

Environmental Law News Update

In this latest Environmental Law News Update, Gordon WignallChristopher Badger and Natasha Hausdorff consider sentencing remarks in Environment Agency v Southern Water, the removal of climate commitments from the Australia trade deal and House of Lords amendments to the Environment Bill.

Environment Agency v Southern Water

No-one will ever want to read another case about such degrees of pollution as those deliberately and cynically caused by Southern Water, which was sentenced on 9 July 2021: seven years of untreated sewage discharged into coastal waters over a 6 year period. The fine of £90m (reduced by a third for an early plea) was widely publicised.

What can the sentencing remarks tell us about the judicial application of the Environmental Offences Definitive Guideline even where a very large organisation is not the defendant?

EA v Southern Water is best seen in conjunction with Regina v Thames Water Utilities Ltd, Practice Note [2015] EWCA Crim [2015 1 WLR 441, the first definitive guidance case which was heard by the Court of Appeal, and on which Southern Water draws.

The overarching message must be that, save in cases of low culpability where there is very minor harm, judges can be expected to sentence with full regard for punishment and deterrence: companies can expect to be hit hard in order to drive home the message that environmental damage will not be tolerated. The higher up the scale the offending falls, the more rigorously this principle will apply.

To mitigate the sentence, there must be the most extensive cooperation with the regulator, very early and genuine attempts to prevent the same incident from occurring, the earliest and most unhesitating expressions of genuine remorse and the prompt engagement of the most senior members of the board of directors.

In examining culpability, Mr Justice Johnson in Southern Water was prepared rather to stretch the evidence before him to draw inferences against the board of directors and even to establish a counterfactual world which would have existed if the board of directors had set up adequate working systems. The Court of Appeal in Thames Water, adopting the wording of the definitive guidance, was concerned only with the conduct of the “organisation as a whole”.

The cases show that nice distinctions on the facts and elaborate accounts of a company’s finances are of very limited assistance to a defendant.

In Southern Water Johnson J. took one specimen count, applied the culpability / harm matrix under the guidance, adopted a suitable starting point, and considered the aggravating and mitigating factors before deciding on the appropriate totality of the fine. He then established his own methodology for examining the economic benefit of the offence (applying a cross-check by an alternative assessment) and added this to the fine, ensuring that he considered the fine proportionate to the Defendant’s means. He then reduced the fine to reflect the plea, proportioning the total sum out among individual offences.

It is clear from both authorities that a sort of logarithmic sense of judicial exasperation will be applied to the combination of a defendant’s lawlessness and the extent of the environmental harm it causes.

At the same time, anyone needing to make clear their case in mitigation must do so fully, realistically and openly, in accordance with the correct procedures and in good time for the first hearing. There can be few other cases in which it is correctly said that a first hearing is not a dress rehearsal. There must be a correct basis of plea, the agreement of the prosecution must be obtained as necessary and the case must be correctly listed with the full cooperation of the judiciary.

Climate commitments removed from Australia trade deal

Is this evidence that the UK is prepared to prioritise trade over the environment?

It has been reported that the Government removed references to temperature goals from the deal and that the Australian prime minister is supposed to have asked for key Paris agreement climate commitments to be watered down.

Part of the issue may be that the Government needs to be seen to make Brexit a success. As one “government source” told the Telegraph in May: “If we can’t get Australia over the line, then we’re partly accepting our centre of gravity still revolves around Europe.”

The Government has estimated a gorecast benefit of a 0.02% boost to GDP over 15 years as a consequence of the trade deal.

The changes appear to make the Australia deal weaker than the Brexit agreement with the EU. According to European Commission data, Australia is the second-largest exporter of coal in the world and has a high per capita carbon footprint. The country has a notoriously weak record on climate action.

The UK’s Department of International Trade has stated that there will be a substantive article on climate change which reaffirms both parties’ commitments to the Paris Agreement and achieving its goals. However, the Department would not confirm whether “1.5°C” would actually be included in the agreement.

One potential inconsistency between the parties was that while the Australian Prime Minister stated emphatically that this was a trade agreement, not a climate agreement, the UK Government sought to argue that there were already a lot of environmental safeguards in the trade deal and that the text implicitly committed Australia to the Paris Agreement.

However, the failure to expressly refer to 1.5°C does imply that Australia is not as committed to the goals of the Paris Agreement as might have been considered when it was ratifed.

House of Lords amendments to the Environment Bill

As the House of Lords continues its scrutiny of the Environment Bill in Report stage, the Government was defeated in several votes. Peers agreed to amendments relating to the independence of the Office for Environmental Protection (OEP), exemptions from environmental legislation, the powers of Courts and the question of whether interim targets should be binding on Ministers.

Lord Krebs (Crossbench) was successful in proposing that the OEP should have “complete discretion in the carrying out of its functions”, including in preparing its enforcement policy, exercising its enforcement functions and preparing its budget, and that the consent must be obtained from the Environment, Food and Rural Affairs and Environmental Audit Committees for any changes to senior OEP appointments.

Baroness Parminter (Liberal Democrat) was successful (by two votes) in her amendment to remove exceptions for the armed forces, defence policy, tax, spending and resources from the requirement to have due regard to the policy statement on environmental principles.

Lord Anderson of Ipswich (Crossbench) won an amendment to allow courts to grant any remedy for non-compliance by an authority with environmental legislation that it could were a judicial review taking place.

Baroness Brown of Cambridge (Crossbench) was successful in advancing a statutory duty on the environment secretary to meet any interim targets set, bringing those targets into line with the suite of legally binding, long-term environmental improvement targets and the interim milestones in the Climate Change Act.

Further amendments, to be considered by the House this week, cover a range of subjects, including:

  • reducing single-use items;
  • reducing the risks to pollinators, such as bees, from pesticide use;
  • lowering speed limits to improve air quality;
  • establishing air quality improvement areas; and
  • monitoring and reducing storm overflows. 

It remains to be seen what impact the Government’s defeats and the further proposed amendments will have once the Bill returns to the House of Commons, given the Government’s majority.

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, Charles Morgan, James Harrison and Rukan Hazar consider a new regulatory statement on water and sewage effluent discharges, a legal challenge relating to the emission of noxious landfill site fumes and an announcement on the UK’s new ‘Heat Strategy’.

The New Normal?

“Normally, you need a permit under the Environmental Permitting (England and Wales) Regulations 2016 to discharge treated effluent from a waste water treatment works (WwTW) to surface water or groundwater”. So begins the Environment Agency’s latest “Regulatory Position Statement” B2 on the subject of “Water and sewerage company effluent discharges: supply chain failure.” The word “invariably” might be nearer the mark. But now, only “up to a point”, to be determined by an officer of the Agency.

We discoursed very recently on the subject of Regulatory Position Statements (see Environmental Law News Update 167) in the context of spreading of sewage sludge, where it seems that a significant “get out of jail free” card has been delivered to sewerage undertakers to ease the problems arising from lack of storage space. This time the relaxation is, according to Water UK as reported by ENDS, prompted by supply chain difficulties (specifically delivery problems due to a shortage of drivers) leading to a dearth of ferric sulphate which is used in tertiary treatment. The problem is thus not as bad as it might be (ENDS had to correct an earlier version of the story which suggested that the RPS would allow more raw sewage to be discharged into rivers) but the timing of the RPS could scarcely be worse, coming hot on the heels of the record fine imposed on Southern Water and the debate over the provisions in the Environment Bill concerning sewage discharges and on the eve of COP26. It is likely to be seen as a further unacceptable laxity in regulation of the undertakers, who are seemingly let off every hook on which they might conceivably become snagged.

The RPS is hedged with caveats. It is not available at all in the case of “high risk” discharges and available stocks must be prioritised for the most risky of the remaining discharges. Two weeks’ advance notice must be given to the Environment Agency and normal use must resume as soon as possible. The relaxation will end altogether on 31 December 2021 unless extended.

An undertaker is also required to show that the shortage has occurred despite reasonable contingency and response planning. Characteristically of RPSs, there is of course no orderly mechanism for the determination of any argument about whether or not such planning has taken place. It would certainly not be any defence to the strict liability offences whose effect it purports to relax. The “length of the Chancellor’s foot” by which the operation of the 17th century courts of equity was said to vary has re-emerged in the context of 21st century environmental law in the form of the impression of the Environment Agency officer determining the applicability of an RPS. Indeed in the case of the infamous H4 Odour Management Guidance it might not unfairly be suggested to depend upon the flare of the officer’s nostrils.

Local residents kick up a stink about noxious landfill fumes

The Administrative Court recently heard proceedings brought against the Environment Agency with respect of gases that are emanating from Walleys Quarry landfill near Newcastle-under-Lyme. Thousands of residents have complained of sleeplessness and breathing difficulties and claim it has gotten worse since the beginning of this year. However, the effects have been felt most acutely by Mathew Richards, a five-year-old claimant represented by his family, who is said to have a reduced life expectancy as a result of emissions from the site.

The landfill at Walleys Quarry produces hydrogen sulphide, which is a poisonous, corrosive gas with an ‘eggy’ odour, and, at times, the levels of the gas at the site have exceeded the World Health Organisation guidelines. The High Court was told that the local community (of which many members are elderly and 1,773 are children under the age of five) has suffered “with widespread physical and mental health conditions due to the emissions”. For Mathew the production of noxious gases has aggravated his chronic lung disease and underlying health conditions meaning that, in his mother’s words, he regularly has nights where he is “coughing, vomiting, [and] choking” and if the legal proceedings are unsuccessful the family may be forced out of their home.

The judicial review proceedings, of which the Richards family are a part, are brought against the Environment Agency with respect of their enforcement of Walleys Quarry Ltd and are intended to bring an immediate stop to landfill activities at the site. Human rights arguments are being advanced – under Articles 2 and 8 of the ECHR – as well as arguments that the Environment Agency failed to properly inform itself about the safe levels of hydrogen sulphide emissions. In response, the Environment Agency reject the claim that there is a ‘public health emergency’ at Walleys Quarry and argue there is not a real and immediate risk to Mathew’s life.

Mr Justice Fordham is expected to give his ruling at a later date.

Announcement of the UK’s new ‘Heat Strategy’

As readers will know, on 27 June 2019, the UK government set a legally binding target to achieve net zero greenhouse gas emissions from across the UK economy by 2050. A way in which the UK government is aiming to do this is by improving the energy efficiency of new and existing buildings to reduce heat demand.

The Department for Business, Energy & Industrial Strategy announced that it would carry out a consultation on regulatory options to phase out the installation of fossil fuel heating systems in off gas grid buildings. Following the publication of the Future Framework for Heat in Buildings in 2018, it was further announced that the Department for Business, Energy & Industrial Strategy would develop a new long-term policy framework for the future of heat – a ‘Heat and Buildings Strategy’. The strategy will aim to enable homes and businesses transition to low carbon alternatives and bring the UK a step closer to the net zero target.

The highly anticipated ‘Heat and Buildings Strategy’ was expected to be published in March. However, it has been announced that the publication will be further pushed back to September 2021 when the broader net zero strategy will also be published. This will coincide with the 26th UN Climate Change Conference of the Parties (COP26) in Glasgow on 31 October – 12 November 2021.

There have been recent suggestions by Business Secretary Kwasi Kwarteng that the ‘Heat and Buildings Strategy’ may include a plan for phasing out gas boilers. He also added the possibility of introducing incentives aimed at homeowners to make buildings more energy efficient and introducing a carbon tax so as to make polluters pay for their emissions. Although the UK Emissions Trading Scheme replaced the EU Emissions Trading Scheme on 1 January 2021, these comments from the Business Secretary indicate that a conclusive decision has not been reached in government as to whether a carbon tax will be introduced.

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, 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

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

If you have any comments or suggestions or if you would like to subscribe to the mailing list please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk

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:-

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