Environmental Law News Update

February 19, 2020

In this latest Environmental Law News Update, Charles Morgan, Gordon Wignall and Natasha Hausdorff consider recent flooding events in the UK, the Tate Gallery viewing platform case and the rise in fly-tipping and organised crime.

Flood of the century?

The last few days have seen residents of flood-stricken towns and villages understandably protesting that defences built to withstand a “one in a hundred years flood event” have failed them more than once in the past few years. What are the odds of that?

Anyone who wants to know the full answer is referred to the Wikipedia article “100-year flood” (all four A4 pages of it if converted to PDF). Like most things statistical, the concept is not at all straightforward to digest. The starting point is the definition: “a flood event of a magnitude which has a 1 in 100 chance of being equalled or exceeded in any given year”. One then has to go on to determine that magnitude for a particular location, by reference to historic data, which must then be “tweaked” to reflect a prediction as to the manner in which the future behaviour of the weather might differ from that to date. The scope for uncertainty is obvious and many previous assessments have failed, for example, to take any or sufficient account of climate change.

The next point to take on board is that such an event, once defined and attributed a magnitude, is not bound to occur even in any full period of 100 years. (The likelihood of it so occurring is in fact about 63.4%). Conversely, such an event can indeed occur in two consecutive years, although that is very unlikely (0.01%). If such an event does occur repeatedly within a return period much shorter than 100 years then one has to start questioning the correctness of either the historical data from which the threshold magnitude was determined or the predictions made as to future weather behaviour and the hydraulic performance of the catchment area in question.

The Met Office has just announced investment of £1.2bn into a new supercomputer which will predict weather by reference to grids only 100m square (as opposed to the current 1500m square). Such high resolution, if made available to the Environment Agency and other bodies concerned with the design of flood defences, should enable much improved determinations of the 1-in-a-100-years figures. Whether the resources will then be available to build to the more accurately-determined standards is a different matter altogether. Rather than greater resources, there may well need to be greater realism.

Privacy and private nuisance

(1) “Overlooking” a person’s private property cannot give rise to a claim in private nuisance, and (2) an Article 8 right to privacy cannot be superimposed on the tort of private nuisance.

These are the headlines of the Tate Gallery viewing platform case, recently before the Court of Appeal (Fearn v. The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104).  This was the case which concerned the tens of thousands of prying visitors at Tate Modern who liked to enjoy the view into the flats of Richard Rogers’ glass masterpiece next door as much as the views of the rest of London.

There is no right not to be overlooked because the previous cases say so.  This was the judgment of the Court of Appeal.  Moreover, there is no Article 8 right because Article 8 is not always about property rights, whereas the tort of private nuisance is so restricted.

About every ten years or so the higher courts like to assert that nuisance responds to the varying social and economic circumstances of the era.  But it is extraordinarily difficult to think of any case in which the court has ever demonstrated such a response.

Indeed, judges always seem pleased to take up the opportunity to discuss what is meant by Bramwell B in Bamford v. Turnley (1862) 3 B&S 66 when he said: “Those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action”.   There is a usefully pragmatic assessment of this phrase by this Court of Appeal for those who are interested.

The Court of Appeal dismissed the appeal against the trial judge’s order in language which would have pleased any 19th century jurist.

When the courts do appear to move nuisance incrementally forwards, what they are more likely to be doing is to make some error as to the traditional understanding of the relevant principles.

There is a good case for saying that the Court of Appeal mixed up the rules when it decided in Williams v. Network Rail Infrastructure Ltd [2019] QB 601 that undue sensitiveness does not affect the assessment of whether or not there is a nuisance.  Plainly in the case of a nuisance by emanation (such as noise, dust, smell), this is a relevant factor, since it goes to the overriding question of “reasonableness” or give and take.

There was an opportunity to set matters straight in this case, but unfortunately it was lost, in an otherwise typically conservative approach to what is meant by a “nuisance”.

The rise in fly-tipping and organised crime

The increasing problem of large-scale fly-tipping across England has recently been blamed on organised criminal gangs. The illegal and uncontrolled disposal of waste can cause serious pollution of the environment, risk to human health and harm to wildlife and farm animals. The costs to local authorities and landowners in clearing up waste have been spiralling and the practice has been undermining legitimate waste management companies who are undercut by illegal operators.

The BBC has reported on the issue, noting an increase in fake companies hiring out, or breaking into, buildings in order to dump clients’ waste, which has cost local authorities almost £60m in clean-up costs since 2012. The crisis caused by illegal waste removal services has hit parts of London and Manchester. It is thought that the introduction of fees at many recycling centres has prompted the rise of organised criminal fly-tipping.

Marc Lidderth, an area manager for the Environment Agency (“EA”), indicated on BBC radio that fly-tipping crime was “the new narcotics“, with the EA estimating the cost to the economy of at least £600m a year. Sir James Bevan, chief executive of the EA, has said organised crime gangs linked to slavery, drugs and firearms were exploiting the waste industry in massive fraud and fly-tipping schemes.

The relevant offences under the Environmental Protection Act 1990 (“EPA”) are: (i) waste deposit offences under Section 33 of the EPA; (ii) waste duty of care offences under Section 34 of the EPA; and (iii) failure to remove waste as required under Section 59 of the EPA. Although anyone can bring a prosecution for fly-tipping under the EPA, they are most commonly brought by the Environment Agency, in the case of larger scale fly-tipping, hazardous waste and fly-tipping by organised gangs, and by local authorities which investigate, prosecute and clear small scale fly-tipping on public land (including public highways). Councils have been clamouring for further funding in order to combat this growing problem, as Defra recorded that more than half of all local authorities in England posted an increase in the number of large fly-tipping incidents recorded between 2011-12 and 2018-19.

In accordance with the 2014 ‘Environmental Offences – Definitive Guideline’ published by the Sentencing Council, for the worse offences, individual offenders face a maximum of five years custody and corporations unlimited fines. Nevertheless, Countryside Alliance head of policy Sarah Lee called for tougher sentences to address the crisis.

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