Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Gordon Wignall and Natasha Hausdorff consider the anxiety over water resources in the UK, a DEFRA report into the progress of the reform of water abstraction in England and a challenge from ClientEarth over Highways England’s lack of progress over plans to cut pollution on its road network.

Saving it for a rainless day

Our contributor resident in the north-east of England has constant difficulty in persuading his southern colleagues that Newcastle upon Tyne suffers no more rainfall than London, as is in fact the case here

The map reveals that the true divide in this respect is not north-south but east-west, for the simple reason that the prevailing westerly winds blow in from the Atlantic and shed most of their load on reaching land. East of the Pennine Hills, there is a water shadow. One consequence is that the eastern regions suffer the greater risk of drought, and this year is proving no exception. Today, water company CEOs will join Sir James Bevan, chief executive of the Environment Agency to discuss current anxieties over water resources. You may not have noticed, but there’s been a bit of a drought already this spring (a good pub quiz question: what is statistically the driest month of the year in London? Answer: March). Last summer and autumn were also exceptionally dry. The result is that some rivers in the south-east presently have only 20% of typical flow. Indeed, so severe is the position that even United Utilities and Welsh Water, in the wetter west, are at some, albeit lesser, risk. Not for nothing did Sir James deliver a speech in March about water shortages entitled “Escaping the Jaws of Death: ensuring enough water in 2050”.

Ironically, one of the regions least at risk on resources is the north-east of England. Not because of its natural rainfall (see above) but thanks to Kielder Water. Located in north-west Northumberland, it is northern Europe’s largest man-made lake and an asset of Northumbrian Water (valued at £1 on privatisation). It holds ten times as much water as the largest reservoir in Yorkshire. As noted by Lord Bridge in the House of Lords in National Rivers Authority v The Newcastle & Gateshead Water Company [1990] RVR 48: “The Kielder facilities are described in the judgment of the Court of Appeal as a white elephant since, up to 1989, the natural flow of the region’s rivers had proved sufficient to meet the region’s demands for water without augmentation. In the summer of 1990, however, while the rest of the country was suffering a severe drought, the Kielder facilities enabled the authority’s area to escape its effects.”

This has remained the case ever since. Indeed during the drought of 1995, water from the Northumbrian system contributed to saving Yorkshire Water (and indeed Yorkshire itself) from disaster. Older readers may recollect the news footage of an endless fleet of tankers (designed for carrying everything from milk to petrol) streaming down the A1 in convoy 24/7 to replenish local reservoirs, where the scene resembled a “tanker city”. The area around Bradford came within two weeks of a rota of alternate days of water connection and disconnection. There was even a plan for mass evacuation. Since then, the Northumbrian network has been linked by pipework to the Yorkshire network at a cost of £50m so that Kielder can if need be supply Yorkshire rivers via the river Tees in a more orderly manner, thereby escaping the Jaws of Death. The rest of the country remains in a less fortunate position at times of water stress and there is no room for complacency that the circumstances in Yorkshire in 1995 could not be repeated elsewhere.

DEFRA water abstraction report May 2019

DEFRA has recently published its report into the progress of the reform of water abstraction in England, a report required by s.57 of the Water Act 2014.

The requirement for reform of the abstraction system has been a primary consideration of Parliament in relation to water since the Flood and Water Management Act 2010 and the December 2011 Water White Paper. DEFRA described proposals as unambitious, and the original timescale was brought forward.

DEFRA’s intention, at the hands of the EA as regulator, is to achieve “sustainable abstraction”. The aim is for its reforms to be brought about on a voluntary basis, but if regulatory intervention is needed, then the EA will exercise its formidable and wide discretionary powers.

One aim is to revoke unused abstraction licences, DEFRA being concerned that if they start to be used then this will impact on the deterioration of water stocks. 650 licences have been revoked, the EA having written to 4,500 abstractors inviting them to consider reducing or surrendering their licences.

282 licences have been amended or revoked under the Restoring Sustainable Abstraction programme in order to rectify environmental damage, and the programme will be completed by 2020.

1,077 of the 2,300 abstraction licences due to end by 2021 have been reviewed, the EA having an opportunity to make changes when a licence comes to an end and a new application has to be made. 5,000 of the 17,500 licences in force are time-limited.

In 2018 the EA selected four of the most challenging of the 80-odd catchments in England in order to encourage collaborative work. These are all in the east of England where there is heavy demand from the agricultural sector. A local catchment-based system is intended to inform a system of governance and stems ultimately from the Water Framework Directive. It is intended to be in place across the country in a final form by 2027 and will ultimately inform the EA’s approach to licensing and the contents of the permits which it is prepared to grant.

Licences will become permits by way of the transfer of the abstraction system to the complex Environmental Permitting Regulations, a statutory instrument which already runs to more than 500 A4 pages and 29 Schedules, and which covers radioactive substance activities, flood risk activities and anything in-between.

As to the current system of abstraction exemptions, many ‘significant’ exemptions (20 cubic metres per day and above) will require a “New Authorisation”. Transitional provisions are in place and all exempt activities which will need such an authorisation should apply by 31 December 2019, or they will be subject to new rules.

The Environment Agency has been acting under a tight timetable, hitherto without significant controversy. However, the requirements of government policy are beginning to have a more pronounced day-to-day effect on the water requirements of the consumer (via industrial undertakings), and the positions of the regulator and industry are becoming more hard-edged.

The government’s 25 Year Environment Plan places an emphasis on “unsustainable abstraction” reflecting on damage to plant and animal life. At some point, with continuing dry weather, there will be limits to which increased efficiencies (such as ‘trading’, storage and reduced leakage) will be able to ameliorate impending clashes between the consumer demand of today and the wider environment.

ClientEarth challenges Highways England over lack of action

In a letter to the government last week, ClientEarth has called out Highways England for not setting out how they plan to cut pollution across the road network. The latest figures across a small number of Highways England roads show that over a third have illegal levels of nitrogen dioxide; in some instances, the level is more than one and a half times the limit.

This step has coincided with reports that Highways England has only so far spent £7.7 million of its £100 million air quality fund, established under the Road Investment Strategy to address pollution hotspots along the 3000km of motorway and 4100km of major A-roads that it maintains. Highways England responded that they were aware of the letter and that they “remain committed to investing the £75m air quality fund through to the end of March 2020, as set out in the Government’s Road Investment Strategy”.

The Times has reported that nitrogen dioxide levels on 113 stretches of Highways England’s strategic road network exceed the legal limit. The latest available government monitoring data from 2017 suggests that the worst road, the M4 in Hounslow, West London, is more than 50 per cent over the limit.

Katie Nield speaking for ClientEarth said: “Thousands of people across the country are breathing toxic air which is making them sick. Children are particularly vulnerable. Illegal levels of pollution from traffic on major roads are a part of the problem, so it’s hard to understand why ministers are trying to shirk their legal and moral responsibility to do something about it.”

ClientEarth has said that by issuing directives to local authorities, including for the implementation of Clean Air Zones, the Government has “dumped the problem” on local authorities. It is also argued that this has led to an inconsistent approach and deadlines being missed. The organisation has called on Government to include in the proposed Environment Bill a duty for all public bodies to act on air pollution and to direct Highways England to produce a legally compliant plan with concrete time-bound proposals as soon as possible.

The campaign group has previously resorted to to court over illegal levels of NO2 across the country, to force action from ministers. It has won three previous rulings that the government’s air quality plans were inadequate.

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