Environmental Law News Update

August 13, 2021

In this latest Environmental Law News Update, William Upton QC, Charles Morgan and James Harrison consider practical applications of Coventry v Lawrence, new regulations concerning the spreading of organic manure on agricultural land and a custodial sentence for deliberate offending.

Is it still a nuisance when the activity in question only disrupts a new sensitive use that you introduce to your land?

One of the loose ends from the leading decision on nuisance in Coventry v Lawrence [2014] has been the practical application of what the Supreme Court said about the ability for a defendant to argue that the claimants have created the problem for themselves by changing the use of their own land.  It may well be wrong to hold that a defendant’s pre-existing activity has given rise to a nuisance in these circumstances. Although it was not necessary to decide the point in our case in Coventry itself, Lord Neuberger PSC did seek to give clear advice about how to approach this situation.

We now finally have a High Court decision where this has turned out to be a decisive factor – Jones v Ministry of Defence  [2021] EWHC 2276 (QB).  The case concerned noise nuisance from RAF aircraft flying over a house and commercial buildings in Anglesey.  The judge had no doubt that the noise of aircraft flying close to, and occasionally over, the land was very loud and interfered with its current use and enjoyment.  But he was satisfied that  the claimant had not established that the defendant had committed an actionable nuisance.  His primary conclusion was that, whilst the locality was largely agricultural, this aircraft noise had been part of this environment for generations. But he also went on to consider the point that the Joneses had changed the use of their land, and introduced residential and commercial activities that were sensitive to the aircraft noise.  Previously, this noise had not created a material interference with the Welsh Water depot use to which the land had been put before the Joneses moved in. The judgment does still turn on the specific findings of fact that were made, as you would expect, and on the MoD also  showing that the RAF were using their land in a reasonable manner and that this use had not increased in intensity. 

This is of course a different argument to saying that the claimant is, in effect, a ‘blow-in’ and ‘came to a nuisance’, which still is no defence to a claim in nuisance.  But the case has confirmed that the claimant has to respect the character of the locality.  Looking at the matter in the round, as the judge in Jones said, “If an occupier of land has conducted an activity in a reasonable manner for many years, I do not consider it fair that a new neighbour who wishes to start doing something that is sensitive to the occupier’s activity can complain that the activity in question will disrupt the sensitive use of his land that the neighbour wishes to introduce.”  This may prove not to be the end of the argument, but may have resolved this particular dispute.

Spreading not so thinly

A “Regulatory Position Statement” (“RPS”) is an interesting thing. You will not find the expression in any statute, including the Environment Act 1995 which grants and delimits the Agency’s powers and duties. Yet it is a creature of the Agency, in a manner explained in “Environmental permits: regulatory position statements”, where numerous such statements are listed. They are a form of policy, informing the application by the Agency of its enforcement powers and generally amounting to an indication of circumstances in which the Agency will not take action in respect of an apparent criminal breach of environmental law, provided that the regulated entity acts in accordance with whatever conditions the Agency chooses to stipulate in the relevant RPS. It is akin in function to a regulatory exemption, but lacking any form of legislative scrutiny and of somewhat uncertain legitimacy (cf. Environment Agency v R Newcomb and Sons Ltd [2003] EnvLR 12 re purported relaxation of exemption requirements).

On 3 August the Environment Agency uttered RPS 252 concerning the spreading of organic manure on agricultural land. That is an activity regulated in law by the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018. Regulation 4 stipulates that the application of organic manure (including sewage sludge) must be planned so that it does not exceed the needs of the soil or crop and does not give rise to a significant risk of agricultural diffuse pollution. The RPS sanctions failures to observe the first of those limitations in certain circumstances – essentially “have run out of other ways of getting rid of the stuff”.

The relaxation is only available upon compliance with the conditions found within the RPS which stipulate the type of land and soil to be used and seek to protect watercourses and sources of abstraction from risk of pollution. It also requires prior notification to the Agency, with a further notification requirement if the second limitation, as clarified by guidance, cannot be satisfied.

Quite apart from the large debate about the legal character and consequences of this off-piste form of regulation in general, it is interesting to speculate as to the purpose of this one in particular. An example given of circumstances where the relaxation might be invoked is “no available storage for treated sludge from sewage plants treating domestic or urban waste waters (biosolids), supplied within a contract with the sludge producer, followed by unavoidable spreading on cropped land with an application that exceeds the needs of the soil and crop.” Hercules would have welcomed this accommodation in respect of his labours in the Augean stables, and it is probably equally welcomed by the sewerage undertakers of England and Wales.

Deliberate offending gets a custodial sentence

A case, notable for being the first in the North East of England in which the Environment Agency were granted a restriction order, concluded last week with the defendant sentenced to a 12-month custodial sentence.

On 2 August, Dominic Allen was sentenced by Recorder Mullarkey at Newcastle Crown Court. Mr Allen, who had pleaded guilty to two offences of operating a waste site without an environmental permit and three offences of burning waste, received the prison sentence and was also ordered to pay £1,000 in costs and given 18 months to clear the site. The Judge concluded that the offending had been deliberate, persistent, and financially motivated and so he said that he could have no confidence in Mr Allen complying with any suspended sentence requirements.

Mr Allen did not hold a permit to run any form of waste site but received waste at his property at Old Swarland, which he disposed of by burning. Indeed, the Environment Agency investigation began after Northumberland Fire and Rescue Service had attended a fire at the site. Efforts were made to regulate the site by officers regularly attending the site, by correspondence requiring the site to stop receiving waste and be cleared, and by a statutory notice that required the removal of the waste unlawfully kept at the site. However, Mr Allen continued to receive waste (including household goods, construction waste, garden waste, electricals and vehicle tyres) and to burn the waste.

Therefore, after the lapse of the clearance notice deadline in October 2020, the Environment Agency applied for and were granted a restriction order, we believe under s.109D of the Environment Act 1995. A court can only grant a restriction order if certain conditions are met. In this case the order was granted because there was non-compliance with the clearance notice, which was causing or had failed to prevent continued pollution to the environment or harm to human health, and the order as necessary to prevent that pollution or harm from continuing. The restriction order prohibited access to, and the importation of waste into, the site and enabled Environment Agency officers to lock the site’s access gate and place a warning notice at the entrance.

John Crowl, Environment Agency Enforcement Team Leader in the North East, said that he hoped the result would “serve as a warning for others” and would show that the Environment Agency is “determined to make life tough for those who damage the environment and blight local communities”. He also referred favourably to the efficacy of the restriction order, which suggests that it is a mechanism that could be used again in the future. Comments made by a spokesperson for Northumbria Police also hint towards future collaborative investigations: “We have proven we are stronger by working together [with the Environment Agency and with Northumberland Fire and Rescue Service], and that a joint approach to tackling this type of blatant offending has seen a man jailed … we will not tolerate this type of criminality”. This is a serious sentence and, when taken with the comments above, demonstrates that the Courts will continue to impose significant sentences where culpability is properly shown to be deliberate.

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