Environmental Law News Update

May 26, 2020

In this latest Environmental Law News Update, Charles MorganChristopher Badger and Mark Davies consider a Court of Appeal case on the meaning of exempt waste operations, a new report on financing energy efficient buildings and the impact of COVID-19 on the aqueous environment.

Court of Appeal rules on the meaning of exempt waste operations

In Mustafa and Breslin v Environment Agency [2020] EWCA Crim 597 the Court of Appeal (Criminal Division) considered the nature of exempt operations.

Mustafa and Breslin were both Directors of a company called Prime Biomass Ltd. The company operated a facility for the storage and treatment of waste wood on premises at Dover’s Corner Industrial Estate. As part of its business operations, the company stored and shipped waste wood to Sweden.

On 21 January 2013 the company registered its operation as an “exempt facility” under a T6 exemption, allowing up to 500 tonnes of waste wood to be stored or treated at the site over a 7 day period. When EA officers visited the site in March there was no issue that the site was operating within the terms of its exemption. However, in visits in September and December, EA officers found the site to be storing significantly in excess of 500 tonnes of wood. Complaints were received in 2014 about nuisance caused by emissions of wood dust from the site.

Mustafa and Breslin were subsequently prosecuted under the parasitic ‘consent, connivance and neglect’ provisions for their role as Directors. The history of the case is complicated, with a successful application to dismiss, a subsequent voluntary bill of indictment and convictions after trial in 2018. The key issue for the Court of Appeal was the directions given to the jury on when an exemption could be considered invalid.

The central submission by the Appellants was that an exemption does not cease to be effective until it is removed from the public register. The Court of Appeal concluded that this was mistaken. There are three requirements for an exempt waste operation:

i) That the operation satisfies “the general and specific conditions” specified in Part 1 of Schedule 3 to the Environmental Permitting Regulations for the relevant description of the operation;

ii) That the exemption is registered; and

iii) That the type and quantity of waste, and the method of disposal or recovery, are consistent with the relevant objectives of the Waste Framework Directive – that it does not endanger human health or harm the environment.

The Court held that these three requirements are mandatory. A failure to satisfy any one of these requirements means that the operation cannot be considered an “exempt waste operation” for as long as that requirement is not met. Consequently, an exempt waste operation can temporarily cease to be exempt depending on the manner in which the operation is run, if, for example, that manner were to result in harm to the environment.

The fact that the exemption had not been deregistered at the time of the alleged offending did not impact on whether the waste operation was exempt or not. It also means that the moment that the site exceeded the tonnage limit found in the T6 exemption, the operations ceased to be exempt.

Green Finance Institute reports on ‘Financing energy efficient buildings: the path to retrofit at scale’

A lot is written about the impacts of burning fossil fuels and the impacts of transport on climate change, (rightly so) but often overlooked, or at least not spoken about at such length, is our profligacy in heating our own homes. The inefficiencies in the way we use oil and gas to heat our homes accounts (according to the Energy Saving Trust) for the greatest contribution per household to kg/CO2 emissions. In 2017, ‘Heating’ accounted for 2,745 kg/CO2 emissions per household compared to 2,376 kg/CO2 on ‘Transport’, 755 kg/CO2 on ‘Electricity’, 1,027 kg/CO2 on ‘Aviation’, 1,591 kg/CO2 on ‘Diet/Agriculture’ and a measly 305 kg/CO2 on ‘Waste’.

What do we need to reduce the average household kg/CO2 emissions for heating to by 2020 to achieve Net Zero? 138 kg/CO2. A reduction of 2,607 kg/CO2 per household. Or 95%. The scale of the task is staggering.

On that basis it is excellent to see that the Green Finance Institute published its report ‘Financing energy efficient buildings: the path to retrofit at scale’ on 20 May 2020. At 70 pages it isn’t a lightweight document, but then given the scale of the challenge, one wouldn’t expect it to be.

The Green Finance Institute, itself only recently established, set up in December 2019 the Coalition for the Energy Efficiency of Buildings with a view to stimulating action across the finance sector to support the decarbonisation of homes. The Coalition hopes to bring to market a portfolio of ‘demonstrator’ financial solutions that are ‘commercial, scalable and mobilise capital flows towards the retrofit of UK homes to improved energy performance standards’, which are intended to assist in meeting the target (set out in the Government’s 2017 Clean Growth Strategy) of as many homes as possible achieving an EPC rating of C by 2035. Meeting that target alone will reportedly require a total investment of around £65 billion. The report carefully sets out both the financial and non-financial barriers to its achievement across various housing sectors (owner-occupied, private-rented, social-rented, etc.).

The ‘demonstrator’ products presaged in the report are split into the following areas: ‘Data and enabling frameworks’, ‘Tenancy agreements’, ‘Lending products’, ‘Saving and investment products’, ‘Energy service products’, and ‘Guarantee mechanism’.

Unfortunately, and unsurprisingly, the report is caveated by reference to the COVID-19 pandemic, with the exact timeline for the project noted as ‘uncertain’. Given the scale of the challenge faced, let us hope the policy announcements expected later this year in the National Infrastructure Strategy, Spending Review and Heat Strategy do not shy away from the issue.

COVID-19 and the aqueous environment

We try to avoid mentioning it, but its appearance in environmental law contexts is sometimes unavoidable. The COVID-19 pandemic has had numerous impacts on the aqueous environment, some benign and some not. We predicted one positive aspect:- way back on 12 March (still working in Chambers, that seems a lifetime ago) we published an article anticipating amongst other things improvement in the water quality of the Venetian canals, which did indeed come to pass, as was widely reported.

We also noted the countervailing prospect of increased discharge of pollutants into the sewerage system due to hygiene measures, but failed to spot the obvious one – the virus itself. It was, in hindsight, inevitable (for reasons too earthy to relate) that it would enter that system. The real concern is that it may then be capable of surviving indefinitely and remaining infectious, even after treatment and discharge into receiving waters, although tertiary treatment (disinfection) where available appears capable of being completely effective. A considerable body of science on the subject is now developing. The reciprocal consolation is that sewage testing may provide early warning of outbreaks and also enable some estimate of prevalence in a particular community.

Even if treatment does injure or kill the virus, the fact remains that discharges of untreated sewage from combined sewer overflows (CSOs) in the UK are not uncommon; indeed it is the very purpose of CSOs and their operation is expressly permitted by footnote 1 of Annex 1 to the Urban Waste Water Directive “during situations such as unusually heavy rainfall” – an expression which provides ample scope for interpretation. Fortunately, since March most of the UK has suffered from prolonged drought, which may limit any threat from this source.

Another less than obvious threat to the aqueous environment is that from increased numbers of burials (whether of victims or others). The Environment Agency has issued guidance (Protecting groundwater when developing or expanding cemeteries during coronavirus) purporting to waive the need for an environmental permit in respect of new or expanded cemeteries. A suite of pre-existing guidance seeks to determine whether a permit is needed by reference to risk to groundwater. The new guidance purports to waive altogether the need for a permit during the pandemic provided that it is followed, a pragmatic and understandable approach but one of potentially obscure legal effect.

There will no doubt be many other environmental consequences, known and unknown. We might as well continue to enjoy the more obvious positive ones while they last. Peace and quiet be with you.

Please also view our Covid-19 Guidance Tracker – a new resource 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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