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Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Nicholas Ostrowski consider compliance with the Water Framework Directive, Law Commission proposals on reforming the confiscation regime and new proposals to hit net zero from the Climate Assembly UK.

A [watercourse in] Good Heart These Days Is Hard To Find

To comply with the Water Framework Directive, all surface water bodies in the UK must attain at least “Good” status by a date which has been extended from 2015 until 2021. It has recently been widely reported in both the specialist and popular press that in 2019 not a single one enjoyed Good status (which 14% of rivers, and a greater proportion of other water bodies, were able to achieve in 2016), an outcome which may be part of the explanation of why the 2019 figures have only just now been released. Nor is there any immediate prospect of improvement, and thus compliance, by either the 2021 deadline or the longest possible extension to 2027 (if forthcoming).

A major obstacle to compliance is the stringent “one strike and you’re out” or “one out, all out” nature of the classification system i.e. that if a watercourse fails to satisfy any one of the ecological or chemical criteria stipulated for the attainment of a particular status then it fails to achieve that status. A bit like having to get a minimum number of marks for each question set in an exam, instead of pinning all your hopes on your best three answers. If some cumulative pointing system were adopted instead, as the Environment Agency through its chief executive Sir James Bevan has proposed, then the pass rate would soar – in the case of rivers, the 2016 rate of achievement of Good status would have been 79%. The astute reader will, of course, have realised that this remarkable change of fortune would not be shared by the watercourses themselves or their fauna and flora – the dirty old rivers would just keep rolling along with exactly the same contents as before, including the chemicals from sewage, industry and agriculture which seem to be the principal problem (exacerbated by over-abstraction).

As well as a joint letter of protest from 18 NGOs, enter from stage left Feargal Sharkey OBE, former lead singer of The Undertones, a role which he followed with a successful solo career and then a stint as CEO of Music UK, the consortium of music copyright collection societies. Not content with all that, he is also a keen fly fisherman and has taken up the cause of the rivers and joined forces with the Good Law Project to seek judicial review of the failures of Defra and the Environment Agency to discharge their respective duties towards the aqueous environment. His expectations may be high, but he can’t blame it on his youth any more, and is certainly past the age for giving them both a good teenage kicking.

Could all of this have led to the recent summoning by the Environment Minister of the chief executives of 15 water and sewerage undertakers to “challenge” them to improve their environmental performance? And the announcement from Defra that it has earmarked over 700 storm overflows for investigation and over 200 overflows for improvement during the AMP 7 period (2020-25)?

Spot the songs: there are five allusions to four different songs in the above article. The first person to spot them all will be entitled to a free bottle of champagne. T&Cs below apply.

[Offer open for 7 days only, starting Thursday 24th September. Champagne must be collected and consumed on the premises of the Edgar Wallace Public House between the hours of 10pm and midnight. Correctly-fitted face mask must be worn throughout. Open to under-18s only].

Law Commission proposals on reforming the confiscation regime

£2,065,303,000. That is the amount of money which defendants have been ordered to pay under the Proceeds of Crime Act 2002 (‘POCA’) but which remains outstanding.

On any level that is a staggering amount of money and this unenforced debt as well as the large numbers of appellant POCA cases the senior courts have to deal with has led to a perception that the confiscation regime is ineffective and the legislation is too complex.

As practitioners working in criminal, planning or environmental law will know (particularly in waste cases), the threat of POCA proceedings is an important weapon in the prosecution’s armoury and does frequently result in large, sometimes eye-wateringly large, confiscation orders being made against defendants. The Law Commission has recently released a consultation on the POCA regime which, if enacted by Parliament, may have a significant impact on POCA proceedings in planning and environmental cases (https://www.lawcom.gov.uk/project/confiscation-under-part-2-of-the-proceeds-of-crime-act-2002/).

The Commission’s proposals are best described as ‘evolution not revolution’.

First, there are sensible proposals to simplify the timing in which confiscation proceedings take place.

Secondly, there are proposals to amend the way in which the system calculates the ‘benefit figure’ and the ‘recoverable amount’. The most important element of this change is a proposed amendment to the legislation to permit the prosecution and the court to disapply the ‘lifestyle assumptions’. These assumptions apply in certain cases (normally those where the offending has gone on for a long period) and require that a defendant’s benefit from crime for the purposes of calculating the confiscation order is not limited to what they have obtained from the offences for which they appeared before the court but is instead based on any benefit obtained over that period.

Finally, the Commission makes a number of proposals which address the way in which confiscation orders are enforced. Most strikingly there is a proposal that if a Defendant does not pay a confiscation order and is imprisoned then they should not be released unconditionally at the expiry of half the sentence (as they are currently) but should instead be released on licence subject to conditions which facilitate the enforcement of the confiscation order, and may be returned to custody during the licence period in the event that those conditions are breached.

For environmental law practitioners, the proposals to amend the way in which the ‘benefit figure’ is calculated will be of most interest. At the moment defendants in waste proceedings and planning cases often face confiscation proceedings on the basis that because the offences continued for some time the offences are ‘lifestyle’ offences and all the money which has passed through their accounts over the specified period is criminal proceeds even if they appear to have nothing to do with the actual waste/planning offence. As some defendants in waste/planning offences are not career criminals who may be operating legitimate businesses alongside their criminal undertaking, if the Commission’s proposals are enacted by Parliament defendants may well start to invite the court to disapply the lifestyle assumptions. This may result in very significant reductions to confiscation orders in such cases.

Responses to the consultation are due by 18 December 2020.

Climate Assembly UK publishes proposals to hit net zero

The UK’s Climate Assembly, a body of people intended to reflect all walks of life across the UK, has published its recommendations on how the UK should reach net zero.

Key recommendations include:

  • Taxes on flying should increase as people fly more often and as people fly further;
  • People in different parts of the country should be offered different solutions to zero carbon heating;
  • The future for food, farming and land should centre around local produce and local food production, a change in diet to reduce meat and dairy consumption by between 20% and 40% and a “managed diversity” of land use;
  • Emissions labels for food and drink;
  • Governments and employers should take steps to encourage lifestyles to change to be more compatible with reaching net zero;
  • The transition to net zero should be a cross-political party issue and not a partisan one;
  • We should get to net zero without pushing our emissions to elsewhere in the world.

There was little support for policies that would change income tax or working hours or that would introduce personal carbon allowances. There was also little support for the use of fossil fuels with carbon capture and storage to be part of how the UK generates electricity, with members preferring green technologies such as wind and solar power.

Interestingly, the assembly did not pass proposals that favoured getting to net zero at an earlier date than 2050.

The report 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, Nicholas Ostrowski and Natasha Hausdorff consider a new planning White Paper, publication of the Environment Agency’s latest scorecard and it’s State of the Environment Report.

Planning – all change

The government has an agenda to ‘Build, Build, Build’. But it is also seeking to change the rules that guide and control this in England. According to the PM, the White Paper “Planning for the Future” that is out for consultation (until October 29; link here) proposes to tear the planning system down and start again. There is also an intention to review the use of environmental assessments (both EIA and SEA) and habitats law later this year. The new system would put all the emphasis on zoning land in a revamped local plan, with all land marked as areas for Growth, Renewal or Protection. The amount of new development, especially of new housing, that the plans would have to be accommodate would essentially be set centrally. It would also require local authorities to rewrite and adopt their new-style Local Plans within a 30-month timeframe, introduce formal design codes, and treat development control as a matter of simply complying with the rules that these establish. The opportunity for local people and councillors to influence this would be therefore become limited to the plan-making stage. It is a lot to absorb, and there are several areas that are lacking in detail – in particular the intention to overhaul section 106 and CIL payments with a single nationally-set levy on development. It is worrying how 70 years of experience is to be thrown aside, and that the White Paper naively asserts that Local Plans should be subject to a single statutory “sustainable development” test, as “The achievement of sustainable development is an existing and well-understood basis for the planning system”.

The White Paper has certainly sparked a debate. But it is also essential to note that, whilst none of this can be in place before the end of 2021 as it will require new legislation, the government has already made some significant changes this summer. It has expanded the ability to use permitted development rights and has rewritten the Use Classes that apply to offices, retail and businesses by putting them all in a single new “Class E” – thereby expanding what does not need to seek approval. It does mean that the other potential controls – in building control, nuisance and environmental permits have taken on a greater significance and it can no longer be assumed that these issues will be scrutinised at the planning stage.

Environment Agency’s quarterly scorecard published – pollution incidents polluting the Agency’s performance

On 10 September 2020 the Environment Agency published its ‘corporate scorecard’ for the fourth quarter of 2019-20 (covering January to March 2020) which is intended to provide the Agency’s Board and DEFRA with an ‘at a glance’ look at the Agency’s performance over a number of metrics set out in the Environment Agency action plan.

The scorecard is full of numbers, tables and charts and uses a traffic light system to set out those targets which the Environment Agency is on track to hit, those which it may hit and those which it will probably fail.

The measures against which the  Environment Agency is assessed are spread across water, pollution, habitats, flooding, incident response and influencing planning decisions by local authorities. There are also ‘organisational’ targets  such as the management of the Environment Agency’s budget and the ethnic and gender diversity of its workforce.

One striking feature of this quarter’s scorecard is that, due to COVID-19, much of the data provided is either incomplete or estimated. This is particularly disappointing given that, as the final quarterly report, this scorecard should have given us the most comprehensive assessment of how the Agency had fared against its own targets over the course of the year.

With that caveat aside, the trend of the Environment Agency failing in its plan to reduce water pollution incidents continues. While there were fewer serious (category one) incidents involving water companies, there were a depressing 443 incidents in the quarter alone against a target of 400 such incidents. The other main negative is that the number of high risk illegal waste sites remains stubbornly high with 233 such sites as against a target of 196 sites. While the Agency fairly points out that this is a reduction in the number of active sites, it is still a surprisingly high number considering that this does not even purport to include illegal sites which are not deemed high risk and so may simply be the tip of the iceberg in terms of illegal waste sites.

There will also be disquiet at the lack of diversity in the Environment Agency’s workforce where only 4% of staff are from a BAME background as against a target of 14% and where only 43% of managers are female as against a target of 50%. The lack of BAME staff members in the Agency is now a deep-seated problem with BAME representation increasing only 1.15% over 12 years. With a budget of £1.3 billion one might fairly ask if the people who spend all this money really reflect the ethnic makeup of the country it serves.

Environment Agency’s State of the Environment Report: health, people and the environment

Last week the Environment Agency (EA) published its State of the Environment Report, focusing on the relationship between human health and people’s access to and connection with a clean, high quality natural environment.

The report presents information on England’s environment, and people’s exposure to environmental pollutants, flooding and climate change and highlights environmental inequalities that contribute to differences in health outcomes.

EA Chair, Emma Howard Boyd, highlights in her forward that the coronavirus  pandemic has exposed and amplified green inequality in society, with those in urban areas having too little green space, too few trees, culverted rivers, poor air quality and being at risk of flooding. According to the government’s initiative this summer to build back “better, greener, and faster” the EA is seeking to speed up sustainable development by helping developers meet regulatory requirements efficiently, providing advice so they get it right first time.

The report’s main findings are as follows:

  • Air pollution is the single biggest environmental threat to health in the UK, shortening tens of thousands of lives each year.
  • After air pollution, noise causes the second highest pollution-related burden of disease in Europe, and is responsible for more life years lost than lead, ozone or dioxins.
  • There is emerging evidence of health effects from lower levels of pollution, although these are not currently well understood.
  • Antimicrobial resistant microbes are becoming more common in the environment due to contamination, meaning infectious illnesses may become harder to treat.
  • Mental health conditions are increasing – they are the largest single cause of disability in the UK, and can be caused or affected by pollution, flooding and climate change.
  • There is substantial and growing evidence for the physical and mental health benefits of spending time in the natural environment, but children are engaging less with nature.
  • Exposure to pollution, and access to the natural environment are not equally distributed across society – people living in deprived areas often have poorer quality environments with less accessible green space.
  • Equality of access to, and connection with, a healthy natural environment would save billions of pounds in healthcare costs and reduced economic activity every year.
  • There are opportunities to improve health through the choices government, regulators, businesses and individuals make in creating and contributing to healthier, greener and more accessible environments.

The report also illustrates some of the great improvements that have been made in the quality of England’s air, land and water, tackling the polluted legacy of the Industrial Revolution. Research continues to increase understanding of the sources, pathways and health impacts of pollutants, while regulation reduces harm caused. With the population of England expected to grow by around 6 million by 2043, the report anticipates increasing pressure on the environment caused by increased production and consumption of resources.

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, Christopher Badger, Nicholas Ostrowski and Mark Davies consider a case dealing with the criminal liability of landowners for waste on their site, a report from Interpol on the sharp rise in plastic waste crime and a new policy paper from DEFRA on the inclusion of environmental targets in the Environment Bill.

R v  Green and Ryder [2020] EWCA Crim 110

Landowners were found to have criminally benefitted from waste left on their site despite that waste not being brought onto the site by them personally.

In Proceeds of Crime Act 2002 (‘POCA’) applications the court will determine the figure which a defendant has benefitted from through his or her criminal conduct. This is a powerful tool in the Environment Agency’s armoury when dealing with defendants who have been found guilty of waste offences as the benefit figure from such offences may be substantial and in this case was said to amount to £276,004.

In this appeal the unauthorised waste disposal site was owned and controlled by the two individual appellants but the waste was deposited at the site by a company which, although controlled by the appellants, was a separate entity and which, at the start, had lawfully deposited waste on the site in accordance with a permit. The appellants were, essentially, found guilty of operating a waste disposal facility without a permit because they continued to store and treat some of the waste that had been brought onto the site by the company.

The essential point in this appeal is whether a court is entitled to include in the benefit figure financial gain in the form of avoiding paying the costs of removing contaminated waste stored on a site owned by the appellants despite the fact that the benefit from depositing the waste originally accrued to the Company and not the individual defendants. In addition, as the appellants owned the site they argued that not only had they received no benefit when the waste was brought onto the site but that, as it would cost a significant sum of money to remove the waste, the value of the site was reduced pro tanto by the costs of removal of waste from the site. A confiscation order was, the appellants argued, disproportionate and, essentially, a double punishment and the benefit figure should have been limited to the modest proceeds derived from the sale of some of the treated waste to third parties.

The Agency argued that the fact that the waste had originally been lawfully deposited was irrelevant. In order to comply with the Environmental Permitting Regulations 2010 the appellants had to remove the waste from the site and by not doing so they had obtained a pecuniary advantage in avoiding the costs of procuring such removal.

The Court of Appeal dismissed the appeal in this case and unhesitatingly found that (per Stone v Environment Agency [2018] EWHC 994 (Admin)), simply storing the waste on the site was an offence and that (per Morgan [2013] EWCA Crim 1307), saving the costs of removal is a pecuniary advantage which can be considered as part of the benefit figure for POCA purposes even though the appellants may not have actually received cash directly when the waste was brought onto the site. Taken together, the appellants had spared themselves the costs of removing the waste from the site and the POCA benefit figure was not disproportionate.

This is yet another example of the punitive effects of POCA. While the Appellants’ arguments have some obvious merit in that they will have to pay a confiscation order comprising the benefit figure and if they want the site cleared then they will then have to remove the waste themselves (or sell the land at an undervalue taking account of the cost of removal), as the courts have repeatedly said, POCA does not adopt a balance-sheet approach.

The judgment of the Court of Appeal can be found here.

Interpol reports on sharp rise in plastic waste crime

A new Interpol strategic report on global plastic waste management has found a significant increase in illegal plastic pollution trade across the world since 2018.

The report makes for interesting reading. Between 1992 and 2018, China imported a cumulative 45% of the world’s plastic waste, making the global plastic waste market heavily dependent on access to the Chinese recycling sector. However, in January 2018 China implemented new restrictions on the import of 24 types of solid waste including plastic waste.

As a consequence of this policy there has been a large re-routing of plastic waste exports, especially into South and South-East Asia. Shipments of waste to Central and Eastern Europe have also increased. This is likely to have led to a ‘waste surplus’ in these areas. Significantly, there has been a noted increase in illegal treatment of plastic waste in both export countries and in emerging import countries, with three key elements:

i) Export countries have experienced both a significant increase in waste disposal at illegal landfills as well as irregular waste fires in order to cheaply deal with large volumes of untreated domestic waste that would otherwise have been exported to China;

ii) Illegal recycling facilities have thrived in emerging Asian import countries, due to the increase in waste imports and a lack of enforcement capacity. This has circumvented licence costs, impacted on efforts to treat waste in an environmentally sound manner and led to an increase in illicit landfills;

iii) There has been an increase in accidental and deliberate waste fires.

The report makes four recommendations to fight criminality in the plastic waste sector:

i) Develop targeted and time-efficient inspection strategies;

ii) Improve inter-agency co-operation;

iii) Improve waste traceability;

iv) Use the Basel Convention, given that a broader range of plastic wastes are soon to be brought under its scope, as a means of better monitoring and control of the plastic waste stream.

The case studies referred to in the report include the illegal export of 2600 metric tons of mainly household waste to Poland from the UK, misdescribed as green list plastic, which was the subject of a significant fire in May 2018, one of 80 waste fires in Poland in 2018. The report also refers to the major repatriation of waste from Malaysia, with a combined volume of 3737 metric tons of plastic waste sent back to 13 different countries, including 42 containers to the UK.

The report specifically references an “innovative digital solution to track waste through the economy” being pioneered by the UK. The UK’s ‘Waste Tracking Project’ aims to improve the management of waste and reduce the risk of economic, environmental and social harm by ensuring that all businesses adopt legitimate waste management services. It is hoped that a prototype digital waste tracking service will be developed by October 2020.

The full report can be found here

Environmental targets and the Environment Bill

On 19 August DEFRA published its policy paper on the inclusion of environmental targets in the Environment Bill.

The paper notes that,

“It is a major new step to set environmental goals, beyond climate change mitigation, in a way that legal binds this government and future governments, and we want to get it right.”

Ignoring, for a moment, the obvious inaccuracy in that statement, (the Water Framework Directive, anyone? Or perhaps the Convention on Global Diversity? I could go on…,) the sentiment behind it is laudable – it is important that the targets set in the Environment Bill are ‘right’. So, how does the paper do?

“We believe that the best way to deliver targets is through a robust, evidence-led process that seeks independent expert advice, provides a role for stakeholders and the public, as well as scrutiny from Parliament” – so good so far (of course note the irony of a government containing Michael Gove MP backing expert advice – this author thought people ‘had had enough of experts’).

“This paper provides an overview of how we intend to develop and bring forward targets by October 2022” – wait, what? No targets until 2022? What about the period in between when the transition period ends and these targets come into force?

“Once proposed targets are developed, businesses, communities and civil society will have an opportunity to share their views in response to a public consultation that is expected in early 2022.” – so realistically the targets won’t be effective until the middle of 2022 at the earliest? This isn’t looking so promising.

So, what are the targets going to cover?

“The Environment Bill allows for long-term targets to be set in respect of any matter which relates to the natural environment, or people’s enjoyment of it. It requires government to set at least one target in four priority areas: air quality, biodiversity, water and resource efficiency and waste reduction, as well as a target for fine particulate matter (PM2.5). These targets need to be brought forward by 31 October 2022.”

Therein lies the problem with the paper; whilst the Environment Bill was introduced on 15 October 2019, it essentially builds on the 25 Year Environment Plan, which was published on 11 January 2018. It is difficult to understand how work couldn’t have already been in train to set these targets so that they are ready to fill the gap left by our exit from the European Union, particularly in circumstances where they seem to tread the same ground…

Find the full policy paper 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 Mark Davies consider a challenge from Plan B over the ‘unlawful allocation’ of Government and Bank of England funds, a commitment by Apple to achieve carbon neutrality by 2030 and liability for environmental damage from land drainage.

Plan B challenge the ‘unlawful allocation’ of Government and Bank of England funds

Readers may recall that last week we covered the ‘build back greener’ announcement and concluded that, although it is a step in the right direction, it is still a sticking plaster when compared to the recent recommendations of the Committee on Climate Change. Well…

On 21 July, Plan B sent its latest pre-action protocol letter to the Government. It alleges the unlawful allocation of UK Government and Bank of England funds, as well as the failure to take into account the Climate Change Act, the Paris Agreement, the Human Rights Act and other legal commitments when designing and implementing the COVID Recovery Programme.

As the letter makes clear, the challenge is to the totality of the financial measures designed to support the economy following the interruption caused by the pandemic including:

The UK Treasury’s support for the economy or any section of it that was announced after 1 March 2020; and

Any such future announcements up to and including the anticipated Autumn Budget of the UK Government.

What Plan B seeks to achieve by the judicial review (if it does not receive a satisfactory answer by 4 August) is:

A Declaration that the Recovery Programme must be consistent with the Government’s obligations under the Climate Change Act 2008, the Paris Agreement and the Human Rights Act 1998; and

The quashing of all parts of the Recovery Programme which are inconsistent with such obligations.

This presents a fascinating, extraordinarily wide field of challenge, which could ultimately be part of the challenge’s downfall; the remedy sought could require a court to perform a detailed, ‘red-line’ analysis of months’ worth of Government policy, rather than examining the lawfulness of a single, or even set of, policy choices.

Definitely one to watch unfold. 

Apple commits to carbon neutrality for its supply chain and products by 2030

With very little congratulations, simply ‘well, good’, or perhaps, ‘about time’ might be your response to Apple’s announcement that by 2030 all of its supply chain and products will be carbon neutral. But perhaps the company deserves a little more credit than that.

Apple is already carbon neutral across its own global operations, but this goal, if it can be met, will mean that every Apple device sold will have no impact on the climate. Given that the company’s market capitalisation is over $1 trillion (greater than many countries’ GDP) it is perhaps slightly more of an impressive commitment and one which is praiseworthy.

Apple’s plan is set out in its 2020 Environmental Progress Report, which outlines that it will reduce emissions by 75% by 2030, whilst developing ‘innovative carbon removal solutions’ for the remaining 25%. The company’s 10-year roadmap includes: low carbon product design; expanding energy efficiency; reliance on only renewable energy; innovations in processes and materials; and carbon removal.

So on this occasion (assuming they can stick to it), well done Apple… now it is up to other companies and countries to follow suit.

Liability for environmental damage from land drainage (and other public operations?)

How land drainage should be managed where there are important local nature conservation concerns has been a particular problem issue in recent years.  It has now come to court, in a reference by the German courts to the Court of Justice of the European Union – Naturschutzbund Deutschland– Landesverband Schleswig-Holstein e.V. v Kreis Nordfriesland (Judgment in Case C-297/19 , July 2020).

What we would think of as the local drainage board had been operating a pumping station to help drain land on the Eiderstedt peninsula, for the purposes of habitation and agricultural use.  However, a large part of the area had been designated as a protected area for black tern, a European Protected Species and – importantly – an aquatic bird. The local branch of the well-known NGO, Naturschutzbund Deutschland, considered that, by operating the pumping station, the local board had caused environmental damage harming the black tern and brought an action under the local laws based on the Environmental Liability Directive 2004/35 to get the drainage board to remedy it.

The Directive applies to environmental damage and damage to protected species and natural habitats caused by any occupational activities.  The CJEU has put to rest the argument that this excludes public authorities acting under statutory duties.  The CJEU considers that an “operational activity” in Directive 2004/35 is not limited to market-related activities but would include all activities carried out in an occupational context – including those carried out by a public body under its statutory powers and duties. However, the other argument was that the pumping station was exempt from this liability as it resulted from the ‘normal management’ of the site concerned (an exemption allowed for in the Directive).  The CJEU has agreed with this, but only to the extent that the management takes account of the objectives and obligations laid down in the Habitats Directive and the Birds Directive, and not just the established farming practices.  It can only be regarded as ‘normal’ if it does. It is not enough therefore to show that the management measures are long-established and can be regarded as usual for the site concerned, as this will be insufficient if they call into question compliance with the objectives and obligations laid down in the Habitats Directive and the Birds Directive.  That is a difficult standard to meet in practice. The case now goes back to the German court to decide on the facts. But it leaves you wondering how many established practices and procedures will need reconsidering.

Please also view our Covid-19 Guidance Tracker and Blog – new resources set up by the Regulatory team to enable businesses and legal professionals to more easily navigate to the applicable Covid-19 guidance that is most relevant to their area of work.

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 and Mark Davies consider ongoing worries over water supply, delays to the planned incorporation of sewage sludge use within permitting regulations and plans to ‘build back greener’ after the lockdown.

Ongoing worries over water supply

“The responsible bodies – the Department for Environment, Food & Rural Affairs, the Environment Agency and Ofwat – have collectively taken their eye of the ball and urgent action is now required if we are to have a reliable water supply in the years ahead.”

That is the stark message from the House of Commons Public Accounts Committee in its report ‘Water supply and demand management’ published on 10 July. Depressingly, none of the underlying reasons are new; they are the usual culprits: unremedied leakage (20% of supply), increasing demand and inadequate resources. The Committee says in terms that the involvement of so many bodies (including the water companies themselves) has resulted in a lack of ownership of the problems. The dynamics of the quinquennial price-setting process create confusion as to the proper achievement of balance between improved performance, acceptable bills and the statutory entitlement of the companies to achieve a reasonable return on their assets.

Amongst the Committee’s recommendations are that Defra should publish an annual league tables of reductions in leakage and consumption. It starts the ball rolling by publishing in the report a table of losses by leakage per kilometre of pipe, which reveals a five-fold difference between the worst performer (Thames) and the best (Anglian). The Committee quotes Ofwat as saying that the water companies would “surprise themselves” at what they can achieve. The Committee says that it will be surprised if they do, without further incentives. It also concludes that water efficiency lags far behind energy efficiency in policy and public perception. A national message on the need to reduce water consumption is called for.

There are further interesting passages on the industry aim for net-zero by 2030 and on damage to the environment, with particular reference to the threats posed by HS2, which the Environment Agency has required to be specifically identified and mitigated.

Sticky times for sewage sludge

In our update for 25 March 2020 we commented upon the Environment Agency’s plans to bring the use of sewage sludge within the framework of the Environmental Permitting Regulations by 2021. Quite apart from the problems caused by the irreducible need to put the stuff somewhere, the ENDS Report reveals that the plan has now hit the buffers, or at any rate moved onto the slow line, for a quite distinct reason: the Covid-19 pandemic. It is now expected to be implemented in 2023 rather than 2021. At least that will provide more time for the underlying challenges to be satisfactorily addressed. Meanwhile, the Augean Stables continue to pour forth, as a recent drive down the A1 through the well-fertilised fields of County Durham and Yorkshire in an open-topped car made only too apparent at regular intervals. Sometimes it’s difficult to escape from one’s work.

Plans to ‘build back greener’

As the government’s plans to reopen following the lockdown continue to pick up pace, announcements as to what shape that recovery is going to take are being made.

In the Chancellor’s ‘summer statement’ several notable, welcome, commitments to support a green recovery were made:

  • A ‘kickstart’ jobs scheme as well as a new apprenticeship scheme to provide incentives to existing green companies;
  • £2bn in the form of green home grants (expected to cover insulation, glazing, boilers and other forms of energy efficiency in homes);
  • £1bn to improve the energy efficiency of public sector buildings; and
  • £50m to pilot the decarbonisation of social housing.

These measures, in concert, are expected to cut carbon emissions by more than half a megatonne a year, support thousands of ‘green’ jobs and make many thousands of homes more energy efficient.

Is it a bit of a sticking plaster when compared with some of the recent recommendations set out in Committee on Climate Change’s latest report? Yes.

Does it show that the government is moving in the right direction as we reopen then economy? Yes.

All in all, it’s not a bad start.


Please also view our Covid-19 Guidance Tracker and Blog – new resources set up by the Regulatory team to enable businesses and legal professionals to more easily navigate to the applicable Covid-19 guidance that is most relevant to their area of work.

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

COVID-19, employers and Government guidance

by Gordon Menzies

As the requirements to close premises and businesses of particular types are eased, the amount of governmental guidance for those business that can reopen (or will soon reopen) has correspondingly and substantially increased.

The starting point for any business is the gov.uk guidance produced by central government. The principal sets of guidance follow a set layout, beginning with a section dealing with ‘thinking about risk’, which emphasises the importance of carrying out a COVID-19 specific risk assessment, followed by a section which deals with ‘managing risk’ focused on reducing such risk to the lowest reasonably practicable level by taking preventative measures in order of priority.

Such an approach is uncontroversial and will be familiar to those involved in discharging the health and safety functions of an employer. The principle that risk assessments are not about creating large amounts of paperwork and that ‘the people who do the work are often the best people to understand the risks in the workplace and will have a view on how to work safely’ is clearly acknowledged at this point in the guidance available.

However, the difficulty that arises comes from the sections that follow. Again, the pattern adopted is generally the same. There are a series of sections which deal with identifying who should go to work, social distancing at work and managing particular aspects of what happens whilst at work. The formulation that is used again and again is to identify sections of particularised control measures as ‘steps that will usually be needed’. This appears to go much further than the type of industry and HSE guidance which those responsible for health and safety within an organisation may be familiar. This is because what is proposed in the gov.uk guidance is the setting down of a detailed list of steps that would be expected rather than matters to be considered in all the circumstances. For example, in the gov.uk guidance for factories, plants and warehouses, steps that will usually be needed include providing additional parking or facilities, having more entry points into a building and changing systems for processing those who pass through those entry and exit points. These specific ‘steps that will be usually needed’ are repeated in other sets of guidance such as those for offices, restaurants and shops. However, such expected ‘steps’ can be potentially onerous and require measures that may in the circumstances not usually be needed at all. However, the formulation adopted in the Guidance tends to suggest that there is a presumption or expectation that such steps are to be taken and a business will be assessed by any enforcing authority accordingly.

It seems that one practical answer is for businesses, in tandem with carrying out a risk assessment as they would for any other specific risk, to create a separate compliance document based on the government guidance. The risk assessment would  identify the risks and the controls that are going to be adopted in the usual way whilst the compliance document would deal with the controls identified in the government guidance that are not going to be adopted. This document could be used to identify the various ‘steps that would usually be needed’ which are either not applicable or, if they are, to record why a decision has been taken not to implement them. Thus, a business will be able to demonstrate, at a glance, that the government guidance has been taken into account and why steps that would usually be needed are not, in fact, needed.

The difficulties with the guidance are compounded by the fact that there is also industry led guidance which has been adopted by government and published on its website which sits beside the gov.uk guidance. These do not always appear to be consistent with each other. Taking the guidance available for the hospitality industry as an example, the gov.uk guidance formulates control measures in terms of ‘steps that will usually be needed’ but then refers the reader to ‘fuller’ industry guidance. The industry guidance that is on the Department of Culture, Media and Sport website is that produced by UK Hospitality in partnership with the DCMS. However, on one reading, the industry guidance is actually much less prescriptive than the gov.uk guidance. Social distancing may be the best example of this tension. As with other areas the gov.uk guidance is firmly anchored in identified ‘steps that will usually be needed’ whilst the language used in the industry guidance is much more flexible; for example, it notes that social distancing ‘will be a difficult subject but below are a few thoughts on what could be applied…’ and ‘consideration needs to be given to how social distancing measures can be applied’ .

Thus, the problem for business is having to deal with two sets of guidance, one which may be more exacting than the other. The less prescriptive approach taken by the available industry guidance is arguably far more consistent with the general established principles in health and safety law, namely that the responsibility for identifying what control measures will usually be needed is actually for the business who knows its activities best. These principles are acknowledged in the introductory sections of the gov.uk sets of guidance but are apparently in a degree of tension with what follows in terms of ‘steps that will usually be needed’.

The prudent employer will, no doubt, wish to err on the side of caution and comply with the higher standard if there is a conflict. Producing a compliance document which shows that an employer has properly considered, if only to reject, ‘steps that will usually be needed’ will also go a long way to being able to demonstrate compliance. However, it is disappointing that a raft of guidance which is designed to assist employers may in some cases actually make their task more difficult.

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Gordon Wignall and Natasha Hausdorff consider the extent of overflows from the sewerage system, the assessment of waste within the Transfrontier Shipment Regulations and new legislation making e-scooters legal.

More leaky pipes?

Much has been said recently about escapes from the amount of leakage from the pipes of water undertakers. Now attention is turning (not for the first time) to what might be seen as designed “leakage” from the pipes owned and operated by the sewerage undertakers (in most cases the same entities as the water undertakers in any particular region).

The two systems differ fundamentally. The inputs to the water supply system are capable of very precise control and such leaks as occur, however numerous, are unintended and represent some physical or operational failure within the system. Hence the strict liability of water undertakers for damage caused by escapes from their pipes (s.209, Water Industry Act 1991). In contrast, the combined system of sewers which endures from the Victorian era in this country is designed to overflow. That is because, as well as the (reasonably predictable) flows of domestic and industrial waste water the same pipes receive also the (highly variable and unpredictable) flows from rainwater drainage systems, the latter being capable of overwhelming the capacity of the pipes. To create a system capable of carrying to treatment all flows at all times would be at the least extremely expensive and probably physically impracticable. Hence the need for designed overflows, as mentioned in the context of bathing water quality in our blog on 24 June 2020. These are accordingly permitted by the Urban Wastewater Treatment Directive “during situations such as unusually heavy rainfall” (subsequently interpreted by the CJEU in Case C-301/10 Commission v UK as being limited in effect to “exceptional circumstances”).

The Guardian (1 July 2020) has established via environmental information requests that such situations arose on “more than 200,000 occasions last year”. Many overflows are still unmonitored. One enduring problem remains that of “deemed consents”. On the eve of privatisation in 1989 the Government woke up to the fact that many pre-existing overflows (c. 10,000) were not the subject of any formal consent at all. In order to ensure that the new sewerage undertakers were not born into “original sin”, the legality of such discharges was ensured by the wholesale granting of temporary consents to discharges from scheduled overflows, with only the broadest of conditions of general application. The plan was that these would be systematically replaced by more detailed bespoke consents more precisely defining the parameters of permitted discharges with due regard to their environmental impact. Until then, there was in effect “deemed consent” to the discharges in fact taking place.

The Environment Agency then set about the enormous task of individually “permitting” the overflows in question, in particular during the AMP3 period. However by 2010 approximately 4,000 remained the subject of “deemed consents”. The EA then sought to impose a new, improved set of “blanket” conditions but appeals by six sewerage undertakers resulted in a much diluted (*) standard suite of conditions being substituted by the Inspector determining the appeals. It seems unlikely that much progress has been achieved since given the strictures upon the EA’s expenditure and one suspects that these overflows are making a significant contribution to the numbers reported by The Guardian (or contributing further uncounted instances of overflow).

Enter in February 2020 the Sewage (Inland Waters) Bill 2019-21, a private members’ bill introduced by Philip Dunne MP and described as “A Bill to place a duty on water companies to ensure that untreated sewage is not discharged into rivers and other inland waters; and for connected purposes.” Its first (undebated) reading was on 5 February 2020 and its second reading will take place on 13 November 2020. No text of the bill is yet available. If it sets out to achieve what its title literally suggests, then it appears to be seeking to go further than the Urban Waste Water Directive by imposing an absolute prohibition without even the “get-out-of-jail-free” card of “exceptional circumstances”. Watch this space.

*yet another aqueous metaphor, sorry.

Transfrontier Shipment Regulations

In a criminal prosecution, what evidence is admissible to show that the process of recovery of waste at a receiving plant is relevant for the assessment of its waste characteristics when it is exported?

This was the key question of the recent Court of Appeal decision in R. v. Biffa Waste Services Ltd [2020] EWCA Crim 827 (3 July 2020), Biffa having appealed against two convictions contrary to the Transfrontier Shipment Regulations 2007.

Biffa had sorted out mixed household waste received at its Edmonton plant.  It then sold consignments of the waste on as green list scrap paper to China.  On examination at Felixstowe, the consignments were found to contain a quantity of soiled nappies, incontinence pads, sanitary towels and other contaminants.

The prosecution explicitly relied solely on the argument that the material being exported was household waste (a Y46 categorisation).  Although household waste can become green list waste, whether there has been such a transformation is a question of the quality of the sorting process which takes place in the country of export.  Exportation begins when a consignment starts its journey.

It is perhaps easy now, with the benefit of hindsight, to say that the legal outcome was clear-cut once the Crown had pinned its colours to a prosecution on the basis that what was consigned was household waste (given the detailed wording of the underlying EU Regulation, 1013/2006).  This is because the export of household waste to a country such as China (and other ‘non-OECD’ countries) is expressly prohibited.

That said, part of the notes to the EU Regulation specify that B3020 and other green list waste is only prohibited for export if contamination levels “[prevent] the recovery of the waste in an environmentally sound manner”.  The Holy Grail of a defence to a prosecution is to be able to argue that recovery of such waste in the country of importation is therefore relevant to a criminal tribunal’s assessment.  However, as the Court of Appeal has bluntly confirmed, the Regulation cannot be read to import this defence, available only in respect of one type of waste as categorised under the Regulation (i.e. green list waste) into that section of the Regulation which concerns other riskier types of wastes (in this context, household waste).  Ultimately, this is by reason of the classification system which applies under the exports prohibition as mapped out by Article 36 (in particular under Article 36(1)(b) as distinct from 36(1)(g)).

The Court of Appeal has also gone on to provide guidance, should a tribunal of fact ever decide that waste material, once sorted by the exporter to become a green list waste (such as waste paper), nevertheless contains a small quantity of contaminants.  In such a case, evidence may be admissible to show that the nature and character of the contaminants is such that recovery of the waste will not be impeded in an environmentally safe manner.  This would protect a shipper where the tribunal might be offended by the nature of the contaminants (such as soiled nappies).  (This was not the type of case which the court was considering.)

R. v. Biffa Waste Services Ltd does not provide a particular gloss or clarification on the ECJ judgment in C-654/18, Interseroh (recently covered in this blog).  That case too, however, included speculation as to the point at which contaminants might cease to be considered de minimis, and also with the problem whether the recovery process is relevant to the classification of waste when exported.

The judgment is of interest for other reasons.  First, it sets out the judge’s direction as to the factual assessment to be carried out.  Secondly, it shows the manner of the dismissal of Biffa’s appeal against the judge’s ruling that Biffa’s previous convictions could be adduced to the jury in order to correct the false impression a witness had given that it was not the sort of company to commit an offence, whilst at the same time avoiding the risk of any unfair prejudice which might have arisen from evidence about the company’s various previous convictions (s.105, Criminal Justice Act 2003).

Rental e-scooters made legal with legislative revisions prompted by pandemic

This week rental e-scooters became legal on roads in Great Britain in a concerted effort to ease pressure on public transport during the pandemic. In order to help support the green restart of local travel, trials will soon be operational, following the changes to legislation, which came into force on 4 July 2020.

E-scooters have been found to fall within the definition of “motor vehicle” under Section 185(1) of the Road Traffic Act 1988 (RTA), as “a mechanically propelled vehicle intended or adapted for use on roads” (DPP v Saddington [2000] 10 WLUK 691).  The Department for Transport (DfT) this week published guidance for e-scooter-for-hire firms.

The e-scooter will continue to fall within the statutory definition of a “motor vehicle”, as a new sub-category providing that it:

  • is fitted with no motor other than an electric motor with a maximum continuous power rating of 500W and is not fitted with pedals that are capable of propelling the vehicle;
  • is designed to carry no more than one person;
  • has a maximum speed not exceeding 15.5 mph;
  • has 2 wheels, 1 front and 1 rear, aligned along the direction of travel;
  • has a mass including the battery, but excluding the rider, not exceeding 55kg;
  • has means of directional control via the use of handlebars that are mechanically linked to the steered wheel; and
  • has means of controlling the speed via hand controls and a power control that defaults to the ‘off’ position.

Vehicle orders will be issued under s44 and s63(5)–(7) of the RTA for vehicles of particular operators assessed as being suitable to participate in trials. The approach to regulation is similar to that established for electrically assisted pedal cycles (EAPCs).

Under the new regime, local authorities and devolved administrations in England, Scotland and Wales can allow or run e-scooter sharing schemes in their areas as part of 12-month trials. Some 50 local authorities have expressed an interest to the government in having e-scooter trials, which were originally meant to run in 2021, but have been brought forward to encourage alternatives to public transport.

The vehicles are banned on pavements and limited in speed. There is a recommendation, but not a requirement, that riders wear helmets. Riders under the schemes will need a full or provisional car, motorcycle or moped licence to use the vehicles, and they must be aged 16 or over. Privately owned e-scooters remain illegal on roads. The DfT said in a statement that the regulations only cover rental schemes “to avoid a flood of poor-quality scooters onto the streets”.

Covid-19 Guidance Tracker: Environment

Please also have a look at the Environment section of our Covid-19 Guidance Tracker  which tracks the official guidance being published in a wide range of sectors including coverage of the environment sector.

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, Nicholas Ostrowski, Natasha Hausdorff and Mark Davies consider a new consultation on the England Tree Strategy, a progress report from the Committee on Climate Change and the launch of a new National Framework for Water Resources.

Consultation on the England Tree Strategy

The Department for Environment, Food & Rural Affairs, Forestry Commission has launched a public consultation as part of its strategy for trees, woodland and forestry in England. The March Budget saw the new ‘Nature for Climate Fund’ of £640million earmarked for projects including the England Tree Strategy, to deliver manifesto tree planting commitments, alongside peatland restoration and wider nature recovery.

Running for 12 weeks, until 11 September 2020, the initiative seeks views on how to increase tree planting and tree and woodland management, as part of the Government’s initiative to combat biodiversity and climate crises. The new strategy envisages policies to expand tree cover, support woodland management and increase public engagement with trees and woodlands. It is of course closely concerned with the Government’s tree planting commitment, which is to increase tree planting to 30,000 hectares per year across the UK by 2025.

The consultation seeks information on:

  • How to improve the management and protection of existing public and private trees and ancient woodlands;
  • How best to further connect people to nature;
  • How to accelerate tree planting to combat climate change;
  • How to further connect people to nature to enhance personal wellbeing; and
  • How to enhance the role that trees and woodlands play in supporting the economy.

Close cooperation with the devolved administrations, communities and landowners has been recognised as integral to these plans to design a strategy that increases and balances the different benefits that woodlands provide, to nature, the public and to the economy. The consultation widens the pool of desired input to include farmers, foresters and land managers, experts and environmental organisations, as well as ordinary members of the public. The opinions sought on the future creation and management of trees, woodlands and forests also have a view to the target of reaching net zero emissions by 2050.

The consultation has a focus on the increased role that trees and woodlands can play in supporting the economy, as part of the recovery from the coronavirus pandemic, building back better, more secure and resilient. Forestry Minister Lord Goldsmith, said of the consultation: “In many ways the coronavirus pandemic has shone a light on the importance of nature. Growing and protecting our nation’s forests will be an integral part of our recovery, and the England Tree Strategy will give us the tools to do this.

Committee on Climate Change: 2020 Progress Report

On 25 June the Committee on Climate Change published its report to, ‘Reducing UK emissions: Progress Report to Parliament’ under section 36 of the Climate Change Act 2008. It is 196 pages of excellent, sometimes surprisingly direct, optimistically spun grim reading.

The report is structured, for the first time, with a section immediately after the text of the Executive Summary comprising tables that break down the Committee’s recommendations into steps that each Government Department(s) (Cabinet Office and No.10, FCO, BEIS and DFID, etc.) should take and by when. This is a clever move by the Committee, and one which should be welcomed; there can now be no excuse from Government for not implementing (or at least no excuse for not explaining why it is not implementing) the Committee’s recommendations when they have been so carefully set out in a clear and easily digestible manner.

The report then moves through to consider the impact of COVID-19 on the climate challenge (chap. 1) (in summary, short term: priority, medium term: opportunity, long term: no change to the Net Zero target) before looking at progress and lessons learned since 2008 (chaps. 2-3), progress in the last 12 months (chap. 4), planning a resilient recovery (chap. 5) and finally ‘What is needed now – UK climate policy’ (chap. 6).

The final chapter, ‘What is needed now’ is broken down into three core recommendations that are then explained in more detail:

  1. Net Zero needs to be integrated into all Government policy;
  2. Adaptation needs to be integrated into all Government policy; and
  3. Departments must work together to deliver ambitious policy.

“Act courageously – it’s there for the taking,” is the suggestion to the Government by the Committee as to how they should approach its recommendations.

“For heaven’s sake, just get on with it,” would be this author’s alternative suggestion.

The National Framework for Water Resources

In the Spring, the Environment Agency launched a National Framework for Water Resources which it described as a long-term plan for meeting the challenges facing water supplies as a result of climate change and population growth.

It is an ambitious undertaking which (contrary to the direction of travel over the last decade in planning policy) is a move towards strategic regional planning. The framework brings together all the water companies in each part of the country and requires them to produce a regional plan which takes into account increasing resilience to drought, greater environmental improvement, reducing long term water usage, reducing leakage, reducing the use of drought permits and orders and increasing supplies.

The genesis for this new approach stems from a realisation that water companies’ Water Resources Management Plans, which they are required to produce every five years, has meant that water companies are not required to take a wider regional view but can concentrate solely on their own patch which has obvious limitations.

The requirement for operators to co-operate and develop new supplies across their regions is, perhaps, the most interesting and controversial part of the Framework. The summary emphasises that 700 Mega Litres per day comes from unsustainable river abstractions and that that water will need to be replaced from alternative sources along with additional supplies to take account of population growth and to withstand drought. So, where will all the additional water come from? While new reservoirs and desalination plants may seem like the obvious answer, it is often suggested that new reservoirs and desalination plants (which, although expensive, are assets which increase the value of a water company) could be reduced or avoided if water companies in water-stressed regions were willing to buy more water through bulk transfers from water companies outside their catchment or region. This is a particularly hot topic in the South East region where there are well organised groups campaigning against reservoir development who suggest that the gap in supply could be filled from bulk transfers of water to the Thames from the Severn which is less water-stressed.

The framework plainly encourages further exploration of this topic and makes clear that regional groups should ‘scope a wide range of supply options such as reservoirs, water reuse and desalination [and]…investigate the potential for increasing connectivity within and between regions through –longer distance transfers, such as those over 100km in length.’

Although at the moment the regional plans will have no statutory basis and there is no formal requirement to consult, the Framework authors note that this may change as the Environment Bill includes a proposal that the Minister may direct that water undertakers prepare and publish joint (i.e. regional) proposals.

Covid-19 Guidance Tracker: Environment

Please also have a look at the Environment section of our Covid-19 Guidance Tracker  which tracks the official guidance being published in a wide range of sectors including coverage of the environment sector.

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, Christopher Badger and Nicholas Ostrowski consider effectiveness of the Bathing Water Directive, the UK Citizens Climate Assembly’s efforts to explore how the UK can achieve net-zero greenhouse gas emissions by 2050 and further caselaw on Aarhus costs capping orders in judicial review.

When bad marks don’t count …

The big problem with bathing water is that sometimes it has sewage in it. That is why the Bathing Water Directive (BWD) is described in its recitals as “closely co-ordinated with” the Urban Wastewater Treatment Directive (UWWTD), which is, via its UK implementation, the principal driver for the regulation of sewage discharges into inland and coastal waters. The latter directive recognises as intended and inevitable, and therefore permits, discharges of untreated sewage from combined sewer overflows (CSOs) – but only “during situations such as unusually heavy rainfall”.

You might have thought, therefore, that a principal purpose and usefulness of the sampling régime created by the BWD would be to capture and evaluate the results of the operation of CSOs at such times – aren’t such discharges the very events whose effect needs to be known? There is however a respectable counter-argument. As well as curtailing the scope for discharges from CSOs, the UWWTD also regulates the continuous discharges to receiving waters that are the normal and inevitable consequence of properly-managed sewage treatment; an example of our maxim that, when it comes to pollution, “Nothing ever goes away; it just goes somewhere else”. In the case of final effluent from sewage treatment, that “somewhere else” is, either directly or via internal watercourses, the sea, with access to which the UK is abundantly blessed. Thus, in the absence of “unusually heavy rainfall”, i.e. during the state of affairs which usually prevails, there is a relatively steady sewage load upon offshore waters whose effect is prevalent and typical. The state of the water during these times is what the would-be bather will usually encounter and what needs to be used for classification purposes.

The argument goes further still. Few, if any, people will seek to bathe during, or in the immediate aftermath of, periods of “unusually heavy rainfall”. Therefore the consequences of these “outlier” events will be felt by very few. Thus, it is in effect positively misleading to assess the quality of the water by reference to data obtained during such events and indeed (as seen from the point of view of the sewerage undertaker responsible) “unfair”.

This argument has found favour with the Environment Agency for many years and given rise to the “wet weather waiver” or, to give it its proper title, “Abnormal Weather Exception”. Indeed it finds official sanction in article 6 of the BWD: “Samples taken during short-term pollution may be disregarded”. However, sight of them is not altogether lost: “When a waiver is granted the result is removed from this site but is still available to the public through our public register” the Environment Agency tells us. So it is still possible to find out just how bad things got (at any rate if that state of affairs corresponded with the taking of a waived sample). Nevertheless, the classification of bathing waters for the purposes of the BWD will be determined without reference to such data. Despite this “bunk-up” (the UK has a relatively high number of overflow events) the UK still comes 25th out of 30 in the quality league tables.

It is against this background that the ENDS Report this week relates that up to 15% of samples are excluded (to the great dismay of the estimable Surfers Against Sewage) and quotes an anonymous Environment Agency officer as stating that the practice “knocks the very thing that causes the problem out of the equation”. But, like the water, maybe things aren’t quite that clear.

UK Citizens Climate Assembly: Post lockdown steps to aid economic recovery should drive progress to net zero target

The UK Citizens Climate Assembly is a collection of 108 individuals selected to represent the UK’s population in terms of demographics and levels of concern about climate change. The Assembly met face to face for three weekends in Birmingham before reorganising itself online for a further three weekends across April and May. Its objective is to explore how the UK should reach its legally-binding target of net-zero greenhouse gas emissions by 2050.

Assembly members were also asked to discuss the changed context for reaching net zero created by the Covid-19 pandemic and the resulting lockdown and economic impacts.

The assembly has released its ‘Interim Briefing’. Key findings include:

  • 79% of assembly members ‘strongly agreed’ or ‘agreed’ that “Steps taken by the government to help the economy recover should be designed to help achieve net zero.”
  • 93% of assembly members ‘strongly agreed’ or ‘agreed’ that “As lockdown eases, government, employers and/or others should take steps to encourage lifestyles to change to be more compatible with reaching net zero.”

One interesting quote taken from the discussion of assembly members was as follows:

“Well it seems pretty silly to try [to] save the economy whilst shirking from problem solvers [albeit]…because of the costs. I understand we need to hopefully tackle this economic crisis, but it would make sense to incorporate both issues into one as we have made an agreement to hit net zero as that is beneficial for the future. I don’t want to be known as a coward when faced with these issues and bury my head in the sand. It just doesn’t make the issues change or go away.”

The assembly’s main recommendations on the path to net zero, on the topics of how we travel, heat and energy use in the home, what to buy, what we eat and how we use the land, where our electricity comes from and removing greenhouse gases from the atmosphere, will be presented in full in the assembly’s final report to be published in September this year. Judging from the detail provided in the Interim Briefing, that report promises to be an insightful guide into the feelings of the general public.

The Interim Briefing can be found here

Further caselaw on Aarhus costs capping orders in judicial review

In R (Bertoncini) v London Borough of Hammersmith and Fulham HHJ Bird sitting in the Planning Court considered a discrete but interesting point relating to costs capping in judicial review cases, namely the question of whether a developer, acting as an interested party, can apply to the court to increase the size of a costs cap.

By way of a brief recap, as our knowledgeable readers will know, in order to implement the Aarhus Convention, the courts will impose a costs cap in appropriate environmental judicial and statutory review cases of £5,000 per Claimant (if the Claimant is an individual) and £10,000 per Claimant (if the Claimant is an organisation). Thus, a public-spirited Claimant’s costs exposure is limited.

Plainly, the presence of such a costs cap can be extremely aggravating for local authorities and developers who may spend comfortably more than £5,000 defending a planning or environmental decision and who have to swallow this expense even if the judicial review fails. However, that costs cap can be varied under CPR 45.44 so long as doing so would not make the costs ‘prohibitively expensive for the claimant’. That assessment is to be performed by a judge after considering the Claimant’s financial circumstances and other relevant matters.

This may be of particular significance for developers of major projects or regulated businesses who may intervene in important and substantial ways in judicial reviews and whose participation into a judicial review may be of great assistance in ensuring that the court understands the issues at play. Such interventions may well cost substantially more than the legal costs expended by local authorities and other public body defendants who will enjoy in-house legal teams.

Bertoncini considered whether CPR 45.44 permitted an Interested Party to apply to amend the costs cap or whether only the Claimant or Defendant had that power. After considering the rules in detail and adopting a purposive interpretation of the CPR HHJ Bird confirmed in Bertoncini that Interested Parties can also ask that the court vary the cap and increase the costs cap.

On the facts of Bertoncini the costs cap was increased at the Interested Party’s application from £5,000 to £20,000. As the application for judicial review had failed the Defendant local authorities’ costs of £4,991 was ordered to be paid in full and the Interested Party’s costs application was assessed at £12,000. Developers, regulated businesses or other entities involved in judicial and statutory reviews as interested Parties should be aware of this important addition to their armoury.

UKELA, Friday 26th June

In time-honoured fashion, Six Pump Court is pleased to be hosting ‘drinks’ at this year’s UKELA Conference. Our inspiration is to add some personal value to the virtual Conference. One of the joys of the annual conferences has been the opportunity to chat, swap ideas (both good and bad), and share personal news. This year has of course been an extraordinary one for all of us.

Sadly Chambers’ world-beating mobile drink delivery system isn’t quite up-and-running yet, so we won’t be able to provide actual drinks on the night. We can offer to take names so that attendance comes with a solemn promise of a real drink – just as soon as we’re all allowed back into the pubs, and our track and trace app is working.

For those of you who are attending, it would be a pleasure to see you at the end of the day. Our e-landlords will be Charles Morgan, Natasha Hausdorff, Chris Badger, Mark Davies, Richard Banwell, Laura Phillips, Nick Ostrowski, Mark Beard and William Upton QC.

Please also view our Covid-19 Guidance Tracker and Blog – new resources set up by the Regulatory team to enable businesses and legal professionals to more easily navigate to the applicable Covid-19 guidance that is most relevant to their area of work.

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, Christopher Badger and Mark Davies consider mustard gas dumped in a Nottinghamshire lake, a challenge to the Department for Transport’s ‘Road Investment Strategy 2’ and COVID-19 waste in the seas and on the beaches.

Mustard gas dumped in Nottinghamshire lake

Three wartime memorabilia hunters have received jail sentences for dumping WWII mustard gas bombs in a Lincolnshire lake, making them the first in the country to be sentenced for possession of a chemical weapon.

Martyn Tasker (40) was jailed for 5 years for possession of firearms, plus 16 months’ concurrent sentence for possession of a chemical weapon. His wife Michaela Tasker (32) and friend Stuart Holmes (50) were both handed a 12-month jail sentence suspended for two years for possession of a chemical weapon.

The court heard that in September 2017, the Taskers came across wartime memorabilia in Roughton Woods, near Woodhall Spa – land which was historically requisitioned by the MoD for military training – and dug up a half-buried box of mustard gas bombs. They messaged a friend who used to repair weapons in the Territorial Army to ask what they had found, but didn’t get an immediate identification.

Ten days later, the pair returned with Mr Holmes and uncovered a total of 16 canisters and three earthenware bottles. One bottle was prised open – exposing what Mr Tasker called ‘really smelly oil’ inside – before his friend texted, confirmed the containers were full of mustard gas, and advised alerting the authorities.

But Holmes had already poured the three bottles of mustard gas onto the ground so he could take the empty bottles home with him, along with 10 unopened canisters. The group left the other six canisters, but didn’t report their find. Later that day, they decided to dump the canisters in Stixwould Lake, where Holmes worked. They secretly took a dinghy, rowed out into the lake, and left the containers to sink to the bottom, before burning their clothes.

The next day, Martyn Tasker sought treatment for blisters on his forearms and soon after, Michaela Tasker was treated for breathing difficulties after she collapsed in a GP waiting room due to respiratory problems caused by the toxic substance. Only then did the pair alert the police – but they lied about the circumstances and still didn’t tell officers about the bombs they dumped in the lake.

But it wasn’t long until inconsistencies emerged from their stories and all three were arrested.

Authorities then launched a major operation to secure the woods, lake, and suspects’ homes, and to recover the hazardous chemical.

In what has since been hailed the biggest operation of its kind, Lincolnshire Police led more than two dozen organisations including the Environment Agency, emergency services, and the Army, in an 11-day response. It saw roads closed, drones deployed, safety cordons put in place, and at least one home evacuated while teams worked around the clock to tackle the tactical challenges of safely removing the bombs from the lake while keeping themselves, and nearby residents, safe.

Environment Agency sonar equipment usually used for fish surveys finally determined the bombs’ location in the lake before Royal Navy divers were sent in to safely retrieve them.

The bombs were immediately transferred to the specialist defence science and technology lab in Porton Down. There, testing confirmed that the containers were still sealed and had not leaked.

You may not be aware but the disposal of chemical weapons after WWII was a significant problem. Scientists did not know how to destroy the massive arsenals of chemical weapons. Ultimately, Russia, the UK and the USA opted largely for what they considered to be the safest and cheapest method of disposal – chemical weapons were dumped directly into the ocean. It is estimated that 1 million metric tonnes of chemical weapons currently lie on the ocean floor.

The EA’s press release can be found here

Department for Transport’s ‘Road Investment Strategy 2’ challenged

As we suggested might happen in this blog on 4 March when covering the Heathrow Third Runway litigation, challenges to major infrastructure projects continue to be brought on environmental grounds, and particularly in respect of the government’s (supposed) failure to account for climate change targets.

On 1 June 2020 the Transport Action Network deposited its Statement of Facts and Grounds at the High Court, challenging the Secretary of State for Transport (with the Highways England Company Ltd as Interested Party) on the legality of his ‘Second Roads Investment Strategy’ (“RIS2”), which covers the period 2020 to 2025. RIS2 was made on 11 March 2020 pursuant to section 3 of the Infrastructure Act 2015.

RIS2 allocates funding as well as determining which specific road projects will be taken forwards by Highways England within the five-year period of the strategy.

The challenge has been brought on four grounds:

  1. Failing to take account of the impact of RIS2 on specific climate change objectives, namely achieving carbon budgets (particularly the fifth carbon budget covering 2028-2032), meeting the Net Zero target and adhering to the objectives of the Paris Agreement;
  • That in setting RIS2 the Secretary of State unlawfully breached the Claimant’s legitimate expectation that the strategy would include the establishment of a metric for measuring the emissions of greenhouse gases from road users;
  • That the Secretary of State failed to take account of duties placed on him by regulation 17 of the Air Quality Standards Regulations 2010; and
  • That the Secretary of State failed to carry out a Strategic Environmental Assessment of RIS2 contrary to regulation 5(1) of the Environmental Assessment of Plans and Programmes Regulations 2004.

We will endeavour to keep you up to date as this latest challenge wends its way through the judicial review process. The full Statement of Facts and Grounds may be read here

Plenty more (masks than) fish in the sea?

Many of us will be lamenting lost planned visits to the Mediterranean coast over the past three months (by bicycle, of course). It is perhaps cold consolation to learn that a dip in the sea at a Riviera resort might not have been so pleasant after all. The French non-profit organisation Opération Mer Propre began to report findings of Covid-19 waste on its Facebook page last month (to clarify, the waste was found in the sea and on beaches, not on the Facebook page) surmising that people were disposing of face masks with the same insouciance as cans and plastic bottles. Thus on 23 May 10 latex gloves and 4 disposable surgical masks were found in the sea at Antibes. On 24 May at Golfe-Juan, 5 masks and 4 gloves. On 28 May a latex glove turned up at Juan-les-Pins (and, to be fair, also a plastic coffee table and a plastic crate). On May 31 in Golfe-Juan Bay a mask and a dozen gloves washed up on the shore (again, to be fair, in the sea were also found, amongst many other items, 4 car tyres, a hood for an off-board motor and another plastic coffee table). Another glove turned up at Cannes on 14 June (as well as one boat hull in pieces, 25 tyres etc.).

Perhaps not yet quite enough evidence to substantiate fully Opération Mer Propre’s prediction that “Knowing that more than 2 billion disposal masks have been ordered, soon there will be more masks than jellyfish in the waters of the Mediterranean”, but you get what they mean. Many aspects of the human response to the coronavirus pandemic are, in the final analysis, examples of the anthropocentric nature of our attitude to the environment. In the dim and distant past of February 2020, single-use plastic items were the villain of the piece. Suddenly, there aren’t nearly enough of them …

It’s also interesting to note from the lists of detritus the apparent complete absence of the sort of items which are commonplace on some British beaches as a result of the outpourings of combined sewer and storm overflows, such as cotton buds and other (ahem!) less mentionable latex items than gloves. The French sewerage system is essentially similar to ours, but the standards imposed upon discharges into the bathing waters of the Côte d’Azur are known to be extremely high. You wouldn’t know it as you were strolling along it, but under the Promenade des Anglais at Nice lies lots of sewerage infrastructure which seems rarely if ever to make its presence felt (or smelt) either on the beaches or offshore.

Bonnes vacances à la mer once travel restrictions are lifted and wanderlust returns.

Please also view our Covid-19 Guidance Tracker and Blog – new resources set up by the Regulatory team to enable businesses and legal professionals to more easily navigate to the applicable Covid-19 guidance that is most relevant to their area of work.

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