Environmental Law News Update

June 15, 2021

In this latest Environmental Law News Update, William Upton QC, Charles Morgan and Natasha Hausdorff consider lawful development certificates, the Environment Agency’s National Waste Crime Agency and the dangers of sewage sludge.

Nocado: not about air quality, but important points of law nevertheless

You would be forgiven, when reading the headlines this week about the quashing of Ocado’s permission linked to a new distribution centre, that it was a case about air quality and its location next door to a primary school.  However, you will not find the phrase “air quality” even mentioned in judgment at all.  It was not a case about those issues, although it is easy to understand why those were the issues that motivated the local residents’ group (catchily called ‘Nocado’) to make such great efforts to halt the development.

Nevetheless, as the opening words of the judgment confirm, this Planning Court case – full name R (oao Ocado Retail Ltd) v Islington BC , Telereal Trillium Limited and Concerned Residents of Tufnell Park [2021] EWHC 1509 (Admin) – was about important issues of planning law.  Islington BC has issued and then revoked a lawful development certificate  (‘LDC’) which would have allowed a warehouse use. The judge had to consider what the legal nature of the right is which accrues when a breach of condition becomes immune from enforcement and lawful, and what is the scope of the power to revoke a certificate if it is based on false statements or documents, or any material information was withheld from the Council. It also confirms that you could have a LDC granted for the breach of one condition, and all the other conditions would still apply. The judgment is a masterclass in how these issues should be approached.

Certificates of Lawful Use can be a real headache when it comes to enforcement, as they can be too broadly worded.  There may well be little in the way of restrictions placed on the land use with regard to any environmental or amenity issues. We have seen this problem of the gaps between the planning and environmental regimes arise several times in cases about old waste and industrial sites.   New occupiers and owners are then able to lawfully push the boundaries of what everyone had thought had been permitted.  In the Ocado case, the court held that the certificate had been lawfully revoked, but it would have otherwise supported the high level of use proposed in the sensitive residential location.

The Environment Agency’s National Waste Crime Survey

Last week saw reports of the results of the Environment Agency’s (“the Agency”) National Waste Crime Survey, assessing the impact of waste crime on the waste industry, land owners, farmers and associated sectors, and investigating how regulation could more effectively combat this growing problem. Commissioned by the Agency and supported by the Chartered Institution of Wastes Management (CIWM), Environmental Services Association (ESA), the United Resource Operators Consortium and the National Farmers Union (NFU), it elicited 836 responses. The Agency is due to publish its findings in the autumn.

For those responding, the issues of most concern were large scale fly-tipping (with 55% of respondents estimating that this had increased over the past 12 months) and illegal waste sites. The economic impact of waste crime was cited as the biggest problem; 73% of respondents reported that they had covered the financial cost of clean-up and 58% experienced disruption to their business as a result. Nearly 3 out of 10 people impacted by illegal exports of waste, or illegal waste sites, had incurred over £50,000 of costs in the last year. Respondents estimated that only 25% of waste crime incidents are reported to the Agency. Waste industry employees estimated that 18% in their industry sector committed some form of waste crime.

Malcolm Lythgo, Head of Waste Regulation at the Agency stated that “waste criminals show complete disregard for communities and the environment, and they need to know we are ready to take action. Last year the EA prosecuted nearly 100 individuals and companies for waste crime offences, with fines exceeding £900,000, 28 custodial sentences and £1 million of confiscation orders”.

The survey, which was launched in March, came just over a year after the Agency launched the Joint Unit for Waste Crime in January 2020. Tackling serious and organised crime, this Unit has facilitated multi-agency operations, intelligence sharing and enforcement. The ‘week of action’ tackling waste and metal crime in October 2020, saw joint operations between the Agency and British Transport Police in which over 1,100 vehicles were stopped and 550 sites were visited, resulting in 29 arrests and 150 offences being detected. The Agency will use the survey results, and the insights they offer, to inform its enforcement action and sector engagement. This includes increasing awareness of waste regulation and the role of the Agency amongst customers, businesses and impacted communities.

Gently shaken, but still … [rhymes with “stirred”]

We’ve banged on about sewage sludge before – see “Sludge won’t budge despite proposed regulatory nudge”, “Sticky times for sewage sludge” and “Plumbing the depths of sludge disposal regulation”. Our theme has been the manifest “light touch” of regulation because, essentially, you have to get rid of the stuff somehow, at the same rate at which it is continuously produced – a process not susceptible to legislative control. As a result, attention has focussed on setting limits for a very confined set of substances and ensuring that nothing in the regulations renders difficult or unlawful the existing practices of sewerage undertakers and others who are in the business of sewage disposal, including the collection of the contents of septic tanks.

Things are coming home to roost. Tales have emerged of Cumbrian cattle at two separate locations falling ill and dying en masse after grazing on land spread with sewage sludge, the presence of a cocktail of carcinogens and toxins being suspected as the cause. In the USA, “forever chemicals” have been identified in sludge. In Australia, concern is being expressed at the presence of medium-chain chlorinated paraffins. The truth is that sewage is a fantastically complex combination of all manner of synthesised and refined substances created and used by humans and casually disposed of into the domestic sewage system (be it public sewers or private tanks), supplemented by run-off from land strewn with similar products. Many of these, including micro-plastics, pass through the entire treatment system unabated. A recent ENDS report lists, by way of example of the content of the sludge, substances whose origins may have been paint stripper, rubber tyres (which wear away on road surfaces), brake fluid (likewise), cosmetics and immuno-suppressant and chemotherapy drugs.

When it comes to sewage, we are all sinners.

To keep up-to-date follow us on Twitter @6pumpcourt or click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk