Environmental Law News Update

In this latest Environmental Law News Update, William Upton KC, Mark Davies and Doug Scott consider the duties required of the Environment Agency under the Habitats Regulations, the results of a crackdown on waste crime in Lincolnshire and evidence that tuna stocks are recovering in marine protected areas.

Getting the Agency to do its duty under the Habitats Regulations

Back in September, Mr and Mrs Harris succeeded in persuading the High Court that the Environment Agency had failed to carry out its duties under the Habitat Regulations to review all pre-1994 water abstraction licences which are likely to have a significant effect on the Norfolk Broads SAC, rather than the limited number that they had reviewed (reported as [2022] EWHC 2264 (Admin)). That in itself is a notable case to add to the list of difficulties caused by the Regulations and the need to take account of climate change. But the High Court has now added to the case’s significance with the unusual order that it has made, in a judgment this month – [2022] EWHC 2606 (Admin).

There has always been an understanding that a public authority will not need a mandatory order to tell out what to do if it has lost a judicial review. Occasionally, the court will be concerned that this is not enough and will require steps to be taken. Given the extended history of this case, Johnson J decided that any remedy would be illusory if it did not enable the Claimants to know what the Environment Agency plans to do – and so he has ordered the Agency to produce a revised plan. In doing so, he drew on the EU law principle of what would be an effective remedy (proving that EU law is a legal source of remaining value).

So, we now have another example in the field of environmental law where the court is prepared to be more interventionist – as it did when Client Earth persuaded the court to order the government to produce a new Air Quality Strategy within a fixed timetable (R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2018] EWHC 315 (Admin)).

It is worth quoting Johnson J’s order in full:

“The defendant shall, by 4pm on 7 December 2022, provide to the claimants details of the measures it intends to take to comply with its duties under Article 6(2) of the Habitats Directive (“Art 6(2)”) in respect of The Broads Special Area of Conservation. The details shall include an indication as to the time by which the defendant intends to have completed those measures. It shall also include, so far as practicable, the scientific and technical basis for the defendant’s assessment of the measures that are necessary to comply with Art 6(2).”

The Agency has in effect been given three months (from the September judgment) to say what its plan will be. It is not being required to publish it, or to tell Natural England, but the Claimants have been given permission under the CPR Rules to do so should they wish. It is to be hoped that they will.

Crackdown on illegal waste activities in Lincolnshire and South Yorkshire

Operation Desert Storm, Urgent Fury, Overlord, Dynamo. Emphatic operational codenaming appears to be a lost art. Not for environmental law enforcement in Lincolnshire, who last week reported on … Operation Clean Sweep.

On 11 October 2022 the Environment Agency, police, local council and other agencies joined together to target illegal waste activities in Lincolnshire. The operation included stop-checking vehicles, visiting sites suspected of operating illegally and gathering evidence to be used in future enforcement action. As a result of the operation four fixed penalty notices were issued to unlicensed waste carriers, four prohibition notices were served and a site storing thousands of tyres illegally was instructed to stop all activities. Other enforcement enquiries remain outstanding. Clean sweep by name, clean sweep in nature.

Over Lincolnshire’s north-western border, in Barnsley, the Environment Agency have also successfully prosecuted a landowner for failing to keep Waste Transfer Notes. In October 2020 Agency officers advised the landowner to remove excess waste from her land and to retain Waste Transfer Notes to demonstrate how this was achieved. In June 2021 officers returned to the site to find the vast majority of the waste had been removed. However, also missing – the Waste Transfer Notes. Whilst the landowner eventually provided some information about the waste, the Agency deemed it insufficient. The Magistrates’ Court ordered the landowner to pay over £5,000 in fines, costs and victim surcharge.

Different counties, different offences, similar consequences. Whether a perpetrator contributes to the illegal disposal of waste directly or indirectly, environmental law enforcement agencies appear determined to act.

Marine protected areas shown to boost tuna stocks

 In happy news, the Papahānaumokuākea (don’t ask the author how it is pronounced) Marine National Monument in Hawaii has been shown to have led to the recovery of tuna and other migratory fish, both within the area itself and around its borders.

Fishing is banned within the area, which is reportedly almost four times the size of the California (the Golden State is c.160,000 square miles – the UK, by comparison, is a mere c.93,000 square miles) and this had led to an overall increase in catch rates for all fish species of 8%, with bigger increases seen for yellowfin tuna (54%) and bigeye tuna (12%).

The area was established in 2006 to protect biological and cultural resources and the benefits to fish populations are an incidental benefit.

One can only hope that the patchwork of 91 Marine Conservation Zones (“MCZs”) and other marine protected areas (including Special Protection Areas, Special Areas of Conservation, Marine Nature Reserves, etc.) around the coast of England and the wider United Kingdom will, in time, be shown to have had (and be having) the same positive effects on marine flora and fauna in our own waters.

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If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk