Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Nicholas Ostrowski consider the Committee on Climate Change’s response to the UK’s Clean Growth Strategy, a nuisance case brought against a homeowner building a mega basement, and  a consultation which will examine crime and poor performance in the waste sector.

Committee on Climate Change response to the Clean Growth Strategy

On 17 January 2018 the Committee on Climate Change published its independent assessment of the UK’s Clean Growth Strategy. The key conclusions are:

• The Government has made a strong commitment to achieving the UK’s climate targets, placing the low-carbon economy at the heart of the UK’s industrial strategy and framing the Clean Growth Strategy as a positive contribution to the economy.
• Policies and proposals need to be firmed up. Whilst there are some new policies to reduce emissions, in other areas there are some ambitious proposals but policy to deliver those aspirations has not yet been worked up – for example, how to phase out the sale of new conventional petrol and diesel cars and vans by 2040.
• Gaps to meeting the fourth and fifth carbon budgets remain. Whilst the Strategy sets out a ‘2032 Pathway’ for sectoral emissions that would just meet the fifth carbon budget, there is no clear link to the policies, proposals and intentions that the Strategy presents. In particular, the fourth carbon budget begins in only five years time and plans set out so far are insufficient.
• For both new and existing policies significant risks of under-delivery remain. The Government should aim to outperform the carbon budgets in order to provide contingency.
• Although there is an ambitious programme of innovation spending to support the low-carbon transition, it will contribute little to existing legislated carbon budgets, particularly the fourth, due to lead-times.
• Carbon capture and storage is an essential technology for decarbonising the power sector and heavy industry. A business model for carbon capture and storage will be needed before 2025 to ensure that industrial projects with the technology can be in operation by the mid-2020s.
• Key milestones and timings (set out in the table below), beyond those identified by the Government, are set out that need to be achieved to close the gaps to meeting the carbon budgets and provide greater confidence that the policies, proposals and intentions announced to date will be delivered in full.

Key milestones and timings

Sector: Power
Key Action required and timings
Continue to contract for low-carbon electricity generation sufficient to meet the fifth carbon budget, beyond the Spring 2019. Contracts
for Difference auctions already announced (2019 onwards)

Sector: Buildings
Key Action required and timings
Targeted support for lower-carbon heat networks (by 2021)
Extend support for biomethane through the 2020s (by 2021)
Tighten new-build standards including futureproofing for low-carbon heat (by 2020)
Tighten standards for all new-build properties to drive uptake of low-carbon heating in the 2020s (by 2023)

Sector: Industry
Key Action required and timings
Put in place mechanism to support industrial carbon capture and storage, including storage and transport infrastructure (by 2021)

Sector: Transport
Key Action required and timings
Set out measures for HGVs to improve logistics, increase eco-driving and fuel saving technologies (2018)

Sector: Agriculture
Key Action required and timings
Set out policies to deliver emissions reductions through a range of measures including: crop & soil management; livestock diet, health & breeding; waste & manure management; energy efficiency (by 2020)

Sector: Land-use and Forestry
Key Action required and timings
Ensure rate of tree planting is accelerated in a timely manner in order to deliver around 70,000 hectares afforestation in England by 2025 (by 2020)

Sector: Waste
Key Action required and timings
Commitment to ban by 2025 all biodegradable waste streams – including food waste – from entering landfill (by 2020)

Sector: F-gases
Key Action required and timings
Investigate cost – effective opportunities to reduce emissions beyond the EU F-gas Regulation (by 2019)

It is rare to have such concrete analysis of the UK’s environmental strategy. The timings are those of the Committee on Climate Change but there appears to be no reason why the Government cannot adopt them. The full report can be found here.

(Brian) May I have my costs back please?

An appeal has recently been handed down against a decision of a Costs Judge in a claim by Brian May in nuisance against his neighbours in Holland Park who were building a mega basement which involved disruptive piling works.

The Queen guitarist (and astrophysicist) issued a claim in nuisance for damages between £50,00 and £100,000 and an injunction restraining the piling works in various ways.

Six months after issue of the claim the case was settled on payment of £25,000 (by this point the disruptive piling works had stopped so no injunction was required) and Dr May submitted a costs bill for £208,236.54. The costs judge held that reasonable costs were £99,655.74 and that the proportionate costs were only £35,000 + VAT and so granted costs judgment in that amount.

This decision (equal to 20% of the costs bill) was appealed and on appeal the judge held that a reasonable and proportionate costs for this claim was £75,000 + VAT (i.e. 36% of the total costs).

Although this decision is limited to its facts, helpfully for Claimants the appeal judge adopted a more generous approach to potential damages in this case and, perhaps of more help for those advising claimant practitioners in this area, held that nuisance cases can be of great complexity and this was ‘relatively sophisticated’ case and little can be read into the fact that it settled so soon after being issued. This decision is required reading for anyone involved in the fraught question of funding for nuisance claims.

Yet another consultation

Yet another consultation has been launched, this time looking at proposals to tackle crime and poor performance in the waste sector and introduce a new fixed penalty for the waste duty of care.

Part A seeks views on raising the standard of operator competence across all permitted waste sites by strengthening the regulator’s assessment and enforcement abilities. It is suggested that the most effective way to tackle poor performance is for regulators to intervene at the permit application stage to ensure that operators have the appropriate level of competence in the first place or not issuing a permit if an operator cannot demonstrate the appropriate level of competence. In order to raise standards the proposals are:

• To widen the scope of offences, behaviour and relevant persons that the regulators can take account of when assessing competence;
• To require all permitted waste operators to manage and operate in accordance with a written management system;
• To require all permitted waste operators to demonstrate technical knowledge of their waste site and provide details of the Technically Competent Manager;
• To require the operator of any permitted site to be financially capable of running their waste business and provide financial security.

The first and last bullet points appear to be the most controversial. The majority of waste and environmental convictions result in a fine, which becomes spent for the purposes of the Rehabilitation of Offenders Act 1974 after 12 months, restricting the extent those convictions can be taken into account by regulators. In addition, the transfer of permits into another name, whilst disguising the person making the decisions on the running of the site, is a problem recognised in this consultation. Steps are proposed to address both.

The insurance market is reluctant to offer insurance products that would cover abandonment of waste sites. It is also believed that this would provide a perverse incentive. Consequently, the consultation proposes requiring all waste site operators to provide financial provision, based on the nature of their operation or their performance as an operator, to reflect the cost of clearing the maximum quantity of wastes allowed on to the site under the permit at any one time and disposing of that waste to landfill.

Part B looks at reforming the exemptions regime. Exemptions are intended to provide a light touch form of regulation for small-scale, low risk waste management activities. Regulators currently inspect exempt waste sites only after problems arise or intelligence suggests illegal activity. There is a concern that exemptions are being abused to hide illegal waste operations. A recent campaign by the Environment Agency to visit 589 exempt sites found that 30% were either illegal or that it was not possible to establish compliance. Proposals include prohibiting an exempt waste operation from being carried out on an already permitted area and limiting the number of exemptions that can be registered at any one site.

Part C seeks views on introducing a fixed penalty notice for household duty of care offences for fly-tipping. It is intended to target householders who breach their duty of care by not taking steps to ensure their waste is passed to an authorised person. Views are also sought on how to improve household awareness of the waste duty of care.

The full consultation can be found here. The consultation closes on 26 March 2018.

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