Environmental Law News Update

Case law reviews

In R (on application of River Action UK) v Environment Agency and others [2024] EWHC 1279 (Admin), the Court heard a case brought by an environmental charity against the pollution of the River Wye. While the underlying nature of the complaint was that the intensive livestock farms in the River Wye basin were allowing significant runoff into the rivers and causing excessive phosphate pollution, the strategic litigation was targeted at the enforcement regime as applied by the Environment Agency.

Grounds 1 and 2 of the JR were that the Environment Agency was acting unlawfully in failing to apply and enforce the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 appropriately. These grounds failed because the Court was satisfied that there was “a suite of policy documents and guidance” for the Environment Agency to deploy, recently updated and that the Environment Agency’s approach was “a proportionate approach” (at [134]). The Environment Agency had given evidence (at [74]) that between 1st January 2020 and 30th October 2023 the defendant had visited 409 farms and carried out 515 inspections within the Wye catchment, and various steps were taken to bring failing organisations back into compliance. This satisfied the Court.

Ground 3 was that the Environment Agency was breaching the Conservation of Habitats and Species Regulations 2017, by failing to have regard to the protected status of the Wye and the requirement for it to be maintained in favourable conservation status, according to the precautionary principle. Ground 3 failed because the Environment Agency gave evidence showing (at [142]) “a clear focus of investment in enforcement activity in the Wye catchment”,  with the recruitment of additional officers to conduct farm inspections and the use of satellite and drone technology to identify sources of diffuse pollution. These additional resources demonstrated that “regard is being had to the requirements of the Habitats Regulations, and they are being afforded the necessary priority.” The claim was therefore dismissed.

An interesting similar example of litigation whose underlying purpose was preventing pollution on the River Wye was R (on the application of Sahota) v Herefordshire Council [2022] EWCA Civ 1640. It was argued that the LPA’s grant of planning permission for a farmer to have an expanded cattle shed was unlawful, given that it would increase manure spreading and consequential runoff into the Wye. The Court of Appeal disagreed, and we commend that judgment to readers, particularly paragraphs [20-30] concerning how the Courts should approach both the High Court judge’s reasoning and how planning committees makes decisions.

We also profile the case of Friends of the Earth, ClientEarth and the Good Law Project v Secretary of State for Energy Security and Net Zero [2024] EWHC 995 (Admin). It was argued that the Secretary of State for Energy Security and Net Zero (SOS) failed to fulfil his obligation under section 13(1) of the Climate Change Act 2008 (“CCA 2008”) to prepare proposals and policies that would enable Carbon Budget 6 to be achieved, and applied the wrong legal test under section 13(3) by concluding that proposals and polices were “likely” to contribute to sustainable development. This case concerned the statutory process underpinning the UK’s pathway to net zero greenhouse gas emissions (“GHG”) by 2050. Section 13 of the CCA 2008 requires the government to prepare proposals and policies that will enable carbon budgets to be met, and section 14 requires the government to lay before Parliament a report setting out those proposals and policies. This litigation followed R (Friends of the Earth Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2023] 1 WLR 225 (“FoE (No.1)”) whereby Holgate J decided that the Government’s ‘Net Zero Strategy’ failed to comply with sections 13 and 14 of the CCA 2008, and ordered the Government to lay before Parliament a compliant report by 31 March 2023. The result was the Carbon Budget Delivery Plan (“CBDP”) and that was the subject of the challenge in this litigation. A key issue was whether the SOS had sufficient information to determine that the proposals and policies would enable CB6 to be met, considering that quantified proposals and policies were projected to achieve 97% of the required emissions savings, thereby leaving a 3% shortfall.

Sheldon J found that there had been a breach of section 13(1), Sheldon J considered that the SOS proceeded on the basis of a mistaken understanding of the true factual position that all of the individual proposals and policies would be delivered in full. While it had been argued that the SOS proceeded on the basis that some of the policies would outperform others, Sheldon J concluded that proceeding on this basis was also irrational. Sheldon J found that it was essential that information on the delivery risk of individual proposals and policies was provided to the SOS, so the SOS could “work out for himself whether the proposal or policy was likely to miss the target by a small or large amount and if so by how much” [134]. Sheldon J considered that in concluding that the proposals and policies were “likely” to contribute to sustainable development, the SOS also breached section 13(3) which states that proposals and policies “must” contribute to sustainable development.  Ground 5 was dismissed, in that Parliament did not have to be provided with the same information on delivery risk as the SOS: and what was placed before Parliament was sufficient to discharge the duty in section 14.

The Government have until 2 May 2025 to lay before Parliament a new section 14 report demonstrating how they will enable the relevant carbon budgets to be met in compliance with section 13. This case illustrates that the procedures in which government officials make decisions are subject to scrutiny, albeit a low intensity of review. Looking ahead, it will be interesting to observe how courts respond to other challenges being brought against the Government in this area. In particular, Chris Packham’s judicial review of the Government’s decision to remove key policies relied on to achieve CB6 from the CBDP, which he alleges breaches section 13.[1] In June, the Government’s National Adaptation Plan, published pursuant to section 56 of the CCA 2008, will also come under scrutiny for failing to outline lawful ‘adaptation objectives’ and to publish an assessment of delivery risks to plans and policies.[2]

[1] https://www.leighday.co.uk/news/news/2024-news/chris-packham-granted-permission-for-judicial-review-of-government-decision-to-abandon-green-policies/

[2] https://friendsoftheearth.uk/climate/climate-government-faces-legal-challenge-over-failure-protect-frontline-communities

Environment Agency Prosecutions

We highlight two prosecutions of interest recently published by the Environment Agency.

The first concerns failure to provide information. The director of a company that carried waste has been ordered to pay fines totalling £4,250, costs of £5,650 and a victim surcharge following a conviction (after a guilty plea) for failing to provide information about where he transported the waste. Waste transfer notes from between September 2020 and September 2022 showed that B&S Recycling Ltd, of which the Defendant was a director, collected 170 loads of waste, totalling 25,000 tonnes from two sites. During the investigation as to where the waste had been deposited the Defendant initially denied that any of the waste had been deposited at his own County Durham site, claiming it had been mixed with mag-lime and spread on farmers’ fields. The Environment Agency served a notice requiring him to provide information on where each of the 170 loads had been taken by 31 October. No response was received from the Defendant, and so the Environment Agency commenced a prosecution. The Environment Agency did not announce under which authority the Defendant was prosecuted. However, under s.71 Environmental Protection Act 1990, the Secretary of State, a waste regulation authority and a waste collection authority can require any person to provide them with such information as specified within a notice issued under s.71 as they reasonably consider that they need and within a time period that they specify. Failure, without reasonable excuse, to comply with the notice can result in up to 2 years’ imprisonment. The prosecution is a reminder of the importance of keeping up-to-date and accurate records with a view to being able to assist an investigation by the Environment Agency, as well as cooperating fully with the regulator.

The second is a farmer prosecuted for breach of slurry regulations. A farmer has been sentenced to a community order of 60 hours unpaid work, ordered to pay costs of £15,388.40 and a surcharge of £114 for three environmental offences. The Environment Agency prosecuted the farmer for causing an unpermitted water discharge activity (contrary to the Environmental Permitting (England and Wales) Regulations 2016), failing to ensure that slurry was stored in accordance with regulatory requirements and failing to notify the Environment Agency of the slurry storage area (contrary to the Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010. The farmer had constructed a slurry store made from farmyard manure and it subsequently collapsed, causing a significant amount of environmental damage. A takeaway from this case is that farmers seeking to expand capacity must ensure that any expansion meets the requirements laid out in the regulations. The liability arising from a failure to do so, as well as the pollution that might arise from a slurry store that fails, can be serious. The Government runs a Slurry Infrastructure Grant, available to help replace, build additional or expand existing slurry stores to provide 6 months’ storage.

The links to the Environment Agency prosecutions articles are here:

https://www.gov.uk/government/news/county-durham-man-fined-for-illegal-waste-transportation; https://www.gov.uk/government/news/community-service-for-farmers-polluting-dam-of-manure

The link to the slurry grant is here: https://www.gov.uk/government/publications/slurry-infrastructure-grant/about-the-slurry-infrastructure-grant-who-can-apply-and-what-it-can-pay-for#what-the-grant-can-pay-for