In this latest Environmental Law News Update, Gordon Wignall, Brendon Moorhouse, Christopher Badger and James Harrison consider a successful appeal by the Environment Agency in the Walleys Quarry litigation, draft documents issued by the new Office of Environmental Protection and the launch of a new consultation into the implementation of the biodiversity net gain (BNG) provisions for planning purposes.
Environment Agency succeed in Walleys Quarry appeal
On 17 January 2022, the Court of Appeal allowed the appeal by the Environment Agency against the decision of Fordham J (previously covered in our blog here). The judgment underlines the limits of the role of the courts to prescribe actions to be taken by public bodies in the face of allegations that the body is acting in a way that is incompatible with rights derived from Articles 2 and 8 of the ECHR. The context here was the risk to a five-year old boy from hydrogen sulphide emissions from a regulated landfill site.
The judgment of Fordham J had been that a declaration should be granted prescribing what was to be done by the Environment Agency in relation to emissions and by what timetable. He had considered that this relief was “necessary” since that the Court had to “step up” given the very real impact that was (and is) felt by Mathew Richard and his family. As is clear from the length and complexity of his judgment, Fordham J considered the relevant ECtHR jurisprudence in great detail. However, the Court of Appeal decided that he had not applied it correctly.
The Court of Appeal concluded that Fordham J had gone beyond his permitted remit in ensuring that no manifest error had been made by the national authorities when striking a fair balance between the interests of the applicant and the community as a whole. As submitted in the successful first ground: the Environment Agency is a statutorily appointed and expert regulator better able to determine how to action compliance with guidance and advice from Public Health England as regards hydrogen sulphide emissions than the Court.
Further, in the absence of a finding of any past or current breach of Articles 2 or 8, and without assessing the evidence of the Environment Agency’s officers as to the steps the Environment Agency was proposing to take in future, it was wrong for the Court to have granted a declaration. Whilst declaratory relief is flexible and can address proposed unlawful action, there was no evidential basis for the declaration in this instance.
Lindblom LJ succinctly summarised the position in the few paragraphs that he contributed to the end of Lewis LJ’s judgment:
In this case, the relief sought in the claim was predicated squarely on asserted breaches of the Environment Agency’s obligations under Articles 2 and 8 of the Convention, which were said to be extant and continuing. But as is clear from his judgment, the judge did not find that any such breach had occurred … There was no unlawfulness requiring a remedy. Yet the judge nevertheless granted relief. And he did so not by way of an advisory declaration, but in the form of an order framed in terms which were both mandatory and prescriptive … To grant such relief in this case was, in my view, to step beyond the role of the court in determining the claim on the facts as they were at the time.
The necessary consequence of finding that there had been no past or current breach put pay to the cross-appeal by the Respondent.
James Harrison and Gordon Wignall’s commentary can be found here and as it appeared in the Local Government Lawyer magazine here.
Draft documents issued by the new Office of Environmental Protection
The Office of Environmental Protection functions came into force on Monday 24th January 2022, marking one of the biggest changes to the scrutiny, regulation and enforcement of environmental laws in the UK in decades.
The OEP has published its draft strategy that is open to consultation, and also its draft enforcement policy that sets out how the OEP intends to use its powers to receive complaints, conduct investigations and bring proceedings in response to serious failures by government and public authorities to comply with environmental law.
Of particular interest are the relevant factors suggested for assessing the seriousness of any alleged breach of environmental law. These are recorded in the draft as:
- Whether a public authority’s conduct raises any points of law of general public importance;
- The frequency of the conduct over time;
- The behaviour of the public authority, including a consideration of ‘compounding’ or ‘mitigating’ factors;
- The harm or potential harm to the natural environment or to human health associated with the failure;
- Any other relevant factors.
One of the compounding factors includes whether the public authority has a high degree of responsibility for the failure, for example by acting deliberately, recklessly or negligently. The current phraseology raises an eyebrow. The culpability of an offender would ordinarily be the first thing that a Court would assess – it wouldn’t be considered as a ‘compounding’ factor or, to put it another way, an aggravating feature of the offence. Here, the draft enforcement policy reads as if the level of culpability isn’t actually key to any determination of how the OEP should act, especially as it is suggested that even a negligent failure results in a high degree of responsibility on the part of the local authority. Where there has been a failure resulting in a breach of environmental law, it isn’t particularly difficult to suggest that culpability is at least negligent.
The draft strategy, draft enforcement and consultation documents can be found here
Government launches consultation into the implementation of the biodiversity net gain (BNG) provisions for planning purposes
Following the passage of the Environment Act in November 2021, the Government has launched a consultation into the implementation of the biodiversity net gain (BNG) provisions for Planning purposes (see here). The consultation is due to close on 5th April, and BNG is set to become mandatory in November 2023. (BNG provisions are already ‘live’ in respect to Marine Planning).
The overall objective will be for a developer to demonstrate 10% BNG over a 30-year period, and a key change is the dropping of brownfield sites as an exemption. This could pose problems for urban developers where brownfield sites already contain significant biodiverse content and where net gain cannot be identified on-site.
The details are not yet in place, but the direction of travel suggests that BNG plans will be expected to deliver on-site within 12 months of the commencement of development which is likely to impact multi-phase developments.
Another key area will also be the practical implementation of off-site gain. This subject has already stoked significant controversy in Australia where a similar scheme operates and has been criticised by many in the conservation sector.
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