Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger, William Upton and Nicholas Ostrowski consider the most recent attempt by ClientEarth to force the Government to review the consultation process for the National Air Quality Plan, the most recent authority on claims against the Environment Agency where flood defence work has been inadequate, and an updated list of penalties imposed for EU ETS breaches.

ClientEarth No.8?

ClientEarth were back in court last week, trying to get the High Court to intervene even before the Government publishes its new version of the National Air Quality Plan on nitrogen dioxide emissions on 31 July. They lost this skirmish about the quality of the consultation on the draft plan, but they will no doubt be looking to return to court if needs be, come 1 August.

So the judicial review proceedings brought by ClientEarth keeps going. This is unusual for such cases – normally the judgment and the remedy can be dealt with in one go. But the government still needs to satisfy the Court about its compliance with the national and European requirements. As Mr Justice Garnham has reiterated, the Secretary of State is required to seek to achieve compliance with the Air Quality Directive by the soonest date possible, to choose a route to that objective which reduces nitrogen dioxide as quickly as possible and to take steps which mean meeting the values prescribed by the Directive were not just possible, but likely.

A proper National Plan is therefore still required. This was discussed at the UKELA annual conference in Nottingham this weekend in the plenary session. In the follow-up Climate Change and Energy Working Party session, William Upton also spoke on how this will also affect the local measures which would be required and how planning decisions are made. Regardless of what we may want to happen in the future, decisions still need to be made now as well.

High Court determines the appropriate forum for claims following negligently performed flood defence work

The High Court (Technology and Construction Court) has recently handed down judgment in the case of Anthony Hall v Environment Agency [2017] EWHC 1309 (TCC) which provides important guidance for practitioners when dealing with claims brought against the Environment Agency (or other statutory bodies such as Internal Drainage Boards, District Councils or Lead Local Flood Authorities) for negligently performed flood defence work performed under their statutory powers set out in the Water Resources Act 1991 (and equivalent legislation).

Schedule 21 of the Water Resources Act 1991 provides that where injury is sustained by reason of the exercise of any drainage/flood defence work undertaken by the Environment Agency, the Agency shall be liable to make full compensation to the injured party and, in case of dispute, the amount of compensation shall be determined by the Upper Tribunal.

HHJ Havelock-Allan QC’s judgment (sitting as a judge of the High Court) considered whether the statutory scheme for compensation in the Water Resources Act 1991 is an exclusive code for compensation or whether claimants can choose whether to bring an action for negligence at common law (determined by the County Court) or an application for compensation under the statutory scheme which would be determined by the Upper Tribunal (Lands Chamber).

In this case, the Agency undertook works to the roof of a culvert in Morpeth but, mid-way through the works and after a period of heavy rain, water escaped from the culvert roof and damaged the claimant’s property. Nicholas Ostrowski acted for the Agency in this case.

The Agency suggested that any claim for compensation, if not agreed, should be determined by the Upper Tribunal while the Claimant brought an action in negligence at the County Court.

After considering the case of Marriage v East Norfolk Rivers Catchment Board [1950] 1 KB 284 the judge ruled that given the drafting of the statutory scheme set out in the Water Resources Act 1991 there were exceptional circumstances in which a claim in damages for negligence could be brought against the Agency.

In the light of this judgment practitioners are advised to consider carefully the facts of the alleged negligence before issuing proceedings against the Environment Agency in order to ensure that any claim is brought in the correct forum.

EA updates list of penalties for EU ETS breaches

On 21 June 2017, the Environment Agency updated its published list of penalties imposed for breaches of the legal requirements of the EU Emissions Trading Scheme for aviation and for stationary installations. The most significant penalties include:

• CHC Scotia Limited (aviation): Penalised £344,949.48 for a failure to surrender sufficient allowances to cover annual reportable emissions in 2013;
• Mizkan Euro Ltd, Mizkan Bury St Edmunds (stationary installation): Penalised £84,826.88 for carrying on a regulated activity at their installation without a permit, in breach of regulation 9 of the Greenhouse Gas Emissions Trading Scheme Regulations 2012.

The published list of penalties provides very little detail on the factual circumstances that led to each breach.

The full lists for aviation can be found here and for stationary installations here.

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