Environmental Law News Update

August 7, 2017

In this latest Environmental Law News Update, Christopher Badger, Charles Morgan and Nicholas Ostrowski consider money raised as a consequence of the WEEE Regulations, a recent authority on the balance between public powers and private rights in flood management works and Jackson LJ’s new report on costs and judicial review.


WEEE Local Project Fund raises £665,000

Valpak, a WEEE compliance scheme operator, has announced that £665,000 has been raised for a Local Project Fund to support projects, led by local authorities, to increase the re-use and recycling of WEEE though costs incurred relating to the collection and proper treatment of waste electrical and electronic equipment.

Producers of electrical and electronic equipment are subject to a number of obligations under the Waste Electrical and Electronic Equipment Regulations 2013 (“WEEE Regulations”) designed to address the environmental impact of WEEE.

The Distributor Takeback Scheme was established as a means for retailers to discharge their obligations under the WEEE Regulations to ensure arrangements for customers to recycle unwanted waste electrical and electronic equipment, an alternative to in-store take-back.

The WEEE Regulations also allow for a producer compliance fee, providing a means for producer compliance schemes to discharge obligations by paying into a fund where there was insufficient tonnage of WEEE collections to meet targets or where the costs that would be involved in meeting those targets would be excessive.

Despite the fact that the money will be used to fund creative local projects to reduce the amount of waste being sent to landfill, the level of money raised suggests that companies may be increasingly choosing to pay compliance fees rather than themselves providing an effective service for the collection and recycling of WEEE. In contrast, last year only £46,000 was raised for the Fund.

It remains a criminal offence for a properly obligated producer to fail to be a member of a relevant compliance scheme. To date, and perhaps surprisingly, civil sanctions are not available under the WEEE Regulations as a means of resolving criminal penalties for technical failures to register with an appropriate compliance scheme, despite the similarity in nature of these Regulations to the Producer Responsibility Obligations (Packaging Waste) Regulations 2007.

Guidance for local authorities who wish to apply to the Fund can be found here 


Court of Appeal strikes the balance between public powers and private rights in flood management works

In R (oao Sharp) v North Essex Magistrates Court, Environment Agency interested party [2017] EWCA Civ 1143 the Court of Appeal dismissed the claimant’s appeal against the decision of Haddon-Cave J. in the Administrative Court. Gross LJ summarised the question before the court as:

in the case of new works involving entry onto land or premises, absent consent from the landowner, is the EA confined by s.165(6) of the Water Resources Act 1991 to its powers of compulsory purchase (‘CPO’) under s.154 or compulsory works orders (‘CWO’) under s.168 … or is the EA entitled to exercise the powers of entry conferred by s.172 … ?”

and the court’s answer as:

in the case of new works involving entry onto land or premises, absent consent from the landowner, the EA is not confined by s.165(6) of the WRA to its CPO or CWO powers under s.154 or s.168 of the WRA; the EA is instead entitled to exercise the powers of entry conferred by s.172.”

S.165 provides the EA with “General powers to carry out works” in wide terms but subsection (6) limits any associated right of entry to works of maintenance only (thus not supporting any such right in respect of new works). However s.172 provides a freestanding general power of entry in very wide terms for the purpose of exercising any power conferred or duty imposed, which, as the Court of Appeal has just held, does include the powers given in s.165 in respect of new works.

The case arose out of the actions of the defendant magistrates court in granting the EA a warrant of entry under s.172 and refusing to state a case to be considered by the High Court. The context was the EA’s desire to execute flood defence works on private land swiftly and with the minimum of formality. In contrast, the landowner wished to be entitled to challenge in detail the substance of the EA’s plans through the medium of a CPO or CWO inquiry.

The EA accepted that whatever route was invoked, statutory rights to compensation would arise. It is also worth noting that in the instant case, as would be so in many others, the EA had needed to obtain planning permission before executing the works. The claimant had unsuccessfully challenged the grant of permission.

The Court of Appeal recognised that any reconciliation of the patent stresses in the statutory provisions was bound to be less than perfectly tidy as a matter of statutory construction. However a narrow right of entry would “significantly circumscribe” the EA in the performance of its flood risk management functions. The price to be paid is the significant deprivation of a landowner’s traditional means of challenge to what amounts in many cases to a permanent expropriation by the EA of the beneficial use of the land concerned, with the landowner thereafter prohibited by criminal sanction from interfering with the works (s.176).

As a very hollow consolation to the claimant, the Court of Appeal did express the view that the magistrates court should nevertheless have stated a case on the point.


Jackson’s new report on costs and Judicial Review

On 31 July 2017, Jackson LJ issued his Supplemental Report on Fixed Recoverable Costs. While the principal focus of Jackson LJ’s report is on fixed recoverable costs in personal injury and clinical negligence, his recommendations for changes to the funding regime for judicial review are wide-ranging and potentially very significant. Essentially, he suggests that government should extend some form of costs protection to claimants in most judicial review claims and the costs capping system in place in the 1% of judicial reviews which are about the environment should be extended to most of the other judicial review cases.

Whether government will actually implement his proposals is another matter and so, for the time being, nothing changes. However, if they are implemented (and this would require amendment of primary legislation – so unlikely to happen pre-Brexit) then this would represent a ground-breaking change in the funding and availability of judicial review.

The current Aarhus costs cap

Pursuant to the Aarhus Convention, from 2013 claimants in environmental judicial reviews (about 1% of all judicial reviews) have had their liability in the event of an adverse costs order capped in the sum of £5,000 (£10,000, if corporate), and a defendant’s liability capped in the sum of £35,000 (CPR45.41 – 45.44).

From February 2017 the Aarhus rules were substantially modified and the CPR amended to practically limit the availability of the £5,000/£10,000 costs cap. This occurred by making costs protection conditional on the claimant filing and serving a schedule of their financial resources and allowing the court to vary the maximum costs liability if doing so would not make the claim ‘prohibitively expensive’ for the Claimant (though note that Friends of the Earth and RSPB have challenged a this amendment to the costs cap in the High Court and the outcome of that challenge is expected).

Jackson LJ’s report

Jackson considers his original proposal for Qualified One Way Costs Shifting (‘QOCS’) for all judicial review in which costs against a claimant in any judicial review are limited only to what is within the financial resources of the parties given their conduct in the dispute. Jackson LJ then goes on to consider the report of a working group which discussed extending the Aarhus model of costs capping rather that QOCS to judicial review more generally.

A QOCS system remains LJ Jackson’s preferred option but, if not taken up (and he concludes that this is unlikely ever to be implemented by government) Jackson LJ suggests extending the Aarhus system (i.e. £5,000/£10,000 costs protection for Claimants and £35,000 for Defendants) to the other 99% of JRs which do not involve the environment subject to a few exceptions. Firstly, an application can be made by either party to vary those figures up or down in an application made at the permission stage and secondly the system should be subject to some form of means testing for Claimants. In addition, Jackson LJ suggests that the regime should be optional and JR Claimants should be permitted to opt in or opt out of the costs regime. In commercial judicial review with well funded claimants this may well be attractive.

Separately, in what Jackson LJ describes as ‘heavy JR’ (i.e. cases listed to last more than 2 days or with costs of more than £100,000 per side) he suggests that there should be costs management brought in at the discretion of the judge in a similar manner to that which occurs in civil cases more generally in the County and High Court.

Jackson LJ’s attractively simple suggestion of extending the Aarhus system to all judicial review cases has much to commend itself. The big question now is what the government will make of it all. Given that Jackson LJ appears implicitly to accept that these rule changes would act as an encouragement for members of the public to challenge government decisions, the government may think of itself as a turkey being asked to vote for Christmas and may simply refuse to entertain or implement these ideas.

Please note the Environmental Law News Update will be on holiday next week and the next Update will be published and circulated on Monday 21st August.

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