Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger comments on changes to costs limits in Aarhus claims, the issues involved in environmental permitting for local authorities, and fire prevention plans required for an environmental permit by the EA.

Changes to costs limits in Aarhus claims

The rules governing costs limits in Aarhus Convention claims have been completely replaced (one of the changes made by the Civil Procedure (Amendment) Rules 2017 (SI 2017 No. 95)). This came into force on 28 February 2017. As a result, there is now significant scope for arguments about costs and funding.

The principal changes include:

• A provision that the court may, subject to consideration of whether proceedings would be “prohibitively expensive” either vary the costs cap that a claimant or a defendant may be ordered to pay, or may remove altogether the limits on the maximum costs liability of any party in an Aarhus Convention claim;
• A provision that a claimant who wishes to argue that their case is an Aarhus Convention claim must submit a sworn statement about their financial resources together with the claim form, which takes into account any financial support which any person has provided or is likely to provide.

Unsurprisingly, the changes remain controversial. ClientEarth, Friends of the Earth and the RSPB have already challenged the legality of these new rules. The reference to “any person” is wide enough to include crowdfunding or financial support provided by an NGO. The new rules are likely to be used by defendants to argue that the normal costs rules should be applied.

William Upton has written an article on the changes. For further information, please click here.

Care needed for local authorities in environmental permitting

The London Borough of Newham (“LBN”) came unstuck recently in the case of R v Recycled Materials Supplies Ltd [2017] EWCA Crim 58. In a judgment that repeatedly highlights the tortuous nature of the complex web of environmental regulation, the Court of Appeal held that LBN had no power to issue an environmental permit or to seek to impose conditions on an operator where the waste operation in question fell under the regulatory function of the Environment Agency and not LBN.

LBN only had the power, in the circumstances of this particular case, to issue an environmental permit if the waste activities on site fell within the description of a “Part B mobile plant” carrying on “a Part B activity”. In reality, what was going on at the site was a massive operation recovering waste of multiple types without distinction and was not limited to the narrow definition of a “Part B activity”. The waste activity on site did not therefore fall within the sphere of LBN’s authority and accordingly LBN could not enforce the terms of their environmental permit.

Wood Recyclers Association begins design of fire prevention plan template

All sites operating under an environmental permit are required to submit fire prevention plans to the Environment Agency for approval. However, guidance on the content of the plans has been extremely controversial. The Environment Agency has rejected a large number of plans on the grounds that they have not been robust enough.

The template is intended to define ‘alternative measures’ to ensure that the three overall objectives of FPP guidance are still met. These are:

• Minimise the likelihood of a fire happening;
• Aim for a fire to be extinguished within 4 hours;
• Minimise the spread of fire within the site and to neighbouring sites.

There has been a long running difference in opinion between the Environment Agency and the wood waste industry on the appropriate way that fire prevention should be regulated and waste fires remain a critical area of importance for the Environment Agency. Figures show that the overall trend of waste fires has remained constant at around 250 incidents per year and more recently there have been a number of large scale protracted incidents that have caused significant disruption. The cost to the Fire & Rescue services is estimated to be £16 million per year.

A link to the Wood Recyclers Association news item can be found here

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