In this latest Environmental Law News Update, Charles Morgan, Gordon Wignall and Christopher Badger consider toxic algae in Lake Windermere, challenging an environmental regulatory notice by way of a judicial review rather than statutory appeal, and two recent Environment Agency enforcement cases.
Faulty algae rhythms*
To a water industry lawyer it’s gratifying, in a sad sort of way, that things which have actually been happening for years are suddenly in the news. The latest is that Lake Windermere is said by the 130,000 signatories to the “Save Lake Windermere” petition to be turning from a beautiful inland water body into a giant puddle of pollution from sewage discharges, in quantities greatly exacerbated by tourism, reports LancsLive. Not only Windermere but also Killington, Bassenthwaite, Ullswater, Derwentwater, Coniston and Thirlmere are suffering from toxic blue-green algal blooms which are alleged to be the product of such discharges. Certainly, one cause of such algae is de-oxygenation of the water, one cause of which is rich organic content, one source of which is sewage.
Some algal blooms occur naturally, and as the Environment Agency advises: “Some non-toxic blooms can be mistaken for sewage pollution. One of the most common bloom-forming algae in English coastal waters forms a brown, frothy scum. This is often blown onto the shore where it breaks down into an unpleasant brown slime that smells like sewage. This soon breaks down and disappears.”
However, blue-green algae in inland waters are very bad news and the “Love Windermere” partnership, whose members include United Utilities, appears to accept that sewage is at least a cause of the problem. Nevertheless, UU has stated that “the wastewater systems around Windermere now operate to the highest possible standards.” So no quick or obvious solution there, then. In the meantime, whilst the algae are present, people are advised by the Environment Agency to avoid the water and to keep their pets out too. Fish, to which the algae are also toxic, appear nevertheless to be incapable of receiving or acting upon this advice, despite it being in their own best interests to do so.
“Nature never did betray the heart that loved her.” (William Wordsworth, Grasmere, Lake District)
*(you can rely on Environmental Law News for Sun-style punny headlines)
Judicial review or statutory appeal: how accommodating is the alternative remedy?
When is it appropriate to challenge a regulatory notice in the environmental sector by way of judicial review, rather than on a statutory appeal? Does the appeal route provide an adequate remedy, for instance when all of the alleged defects are those typically made in a public law challenge?
“Never say never” is the cautious conclusion of the Court of Appeal in Northern Ireland in respect of an abatement notice under the statutory nuisance regime, whilst at the same time dismissing the renewed application for judicial review, in Alpha Resource Management Ltd v a Decision of Belfast City Council  NICA 27.
In its judgment, the Court set out all the most useful authorities derived from textbooks, academic discussions and case law, so that this is an excellent place to try and find a straw to which a claimant might cling. It is surprising how differently the principles can be summarised. However, a new analysis based on the tri-partite interests in an environmental context began to be explored by the Court: the position of the regulator (under a duty to serve a notice), of the operator (required to ameliorate any nuisance) and of the public (interested in a safe and clean environment).
The only acceptable basis for allowing a judicial review of an abatement notice, so far as the appeal judges could tell, is when no (or next to no) evidence is required and when the matter can be determined by reference to the notice itself (see the Court of Appeal in R v Falmouth and Truro PHA, ex p. SWW Ltd  QB 445). Judicial review is otherwise decidedly a “last resort”.
It may well have helped in this case that the respondent spiked the claimant’s guns by accepting that the district judge was entitled to make a determination as to procedural fairness, the lack of reasons, bias, inadequate inquiry, and indeed all the other grounds relied on by the claimant in its application: “Mr McLaughlin on behalf of the proposed respondent has expressly accepted that all matters may be heard on appeal including the procedural issues. Therefore, the applicant may challenge all of the evidence and have evidence called to determine whether or not the abatement notice was justified. This leads us to a conclusion in line with that of the trial judge that the statutory appeal provided for is an effective alternative remedy.”
This is a judgment which will apply in other regulatory areas, such as environmental permitting, although in permitting cases, the lack of any interim relief has been found to tip the balance in favour of a granting a claimant’s application.
Environmental claims in a wider p.i. / educational setting
A first tier tribunal found that a child was disabled on the basis that her condition prevented or hindered her making use of computers operating on wifi, her problems with electro-magnetic radiation seriously affecting her normal day-to-day abilities. However, it failed to go on to require the making of an Education, Health Care Plan under the Children and Families Act 2004, a decision which has now been overturned by the Upper Tribunal. See Eam v East Sussex County Council  UKUT 193 (AAC). Little is said in the judgment about the underlying issues, but anyone with an interest in the wider circumstances of environmental claims may find the case worth noting.
Environment Agency enforcement in the headlines
Press reports on two cases brought by the Environment Agency have just been released on the gov.uk website, bringing environmental enforcement back into focus.
In Northampton Crown Court, David Wells and Daniel Hancock have both been sentenced to 8 months in prison, suspended for 2 years, and ordered to perform 100 hours of unpaid work, after storing and burning waste without any environmental permit outside the village of Boughton, just to the north of Northampton.
During lockdown of spring and summer 2020, witnesses reported ‘very thick dense smoke’ which smelt ‘acrid and very toxic’. Reports of fires that were ‘frequent and troublesome’ and smoke with ‘a very unpleasant odour’, were also reported. Neighbours explained they were unable to sit in their gardens, hang out washing or open their windows. One elderly neighbour was reported to have experienced breathing difficulty when fires were in progress.
Environment Officers visited on several occasions to warn and provide advice on what material could be burnt legally. Despite these visits, the two men continued to burn material without permission and to store mixed waste illegally on site.
In February 2021, officers visited unannounced after further blazes were reported. On arrival they found a fire made up of green waste in plastic bags, laminated wood, furniture, cans, and other general waste. There was black smoke, with a ‘toxic’ smell. Piles of items including toilets, scrap metal, 3 metres squared of spent printer cartridges, sacks of domestic waste, carpets, toys and clothes were found at the site. Much of the waste was stored on bare ground, risking contamination to soil and water, creating odour and attracting flies and vermin.
In July 2021, the pair were still storing illegal mixed waste.
Although the press release doesn’t identify the offence categorisation by the Judge, the starting point in the Environmental Guideline for a deliberate category 2 offence is 12 months imprisonment, with a range of 26 weeks to 18 months’ custody. It is anticipated that aggravating features would have included both the history of non-compliance with warnings by the EA and the evidence of community impact. The men had pleaded guilty, entitling them to credit for their early guilty pleas.
In a separate case, Tianyong Wang, former director of dissolved company Berry Polymer Ltd, was sentenced for exporting 382 tonnes of household waste in 22 sea containers from his site in Droitwich via Southampton and Felixstowe. The waste included 1,590 nappies and sanitary items, 1,338 electrical items and 33,639 tins and cans. Shipping documents described the waste as plastic, to be exported to Indonesia for recycling.
Inspections of the containers on 4 July 2019 discovered the waste and the onward shipment was prevented.
Mr Wang told the Court that the material supplied was not as described because his company’s usual bale inspection had either not happened or was substandard. Berry Polymer has invoiced its broker over £103,000 for ‘plastic bottles’. There is no indication of what action, if any, was taken against the broker.
Mr Wang was fined £1,200 at Kidderminster Magistrates’ Court and ordered to pay costs of £10,000. The low level of the fine isn’t explained in the press release and contrasts sharply with Interpol’s recent report on pollution crime (see last week’s blog – link here).
Both press releases can be found here and here
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