Environmental Law News Update
September 18, 2017
In this latest Environmental Law News Update, Charles Morgan, William Upton and Laura Phillips consider a fine imposed on United Utilities for sewage pollution, some useful publications from the Environment Agency, and a decision on the new costs rules in environmental cases.
United Utilities fined £666,000 for sewage pollution in the River Medlock
United Utilities have been fined £666,000 and ordered to pay costs of over £32,000 for an incident in October 2014 in which around 21,700 cubic metres of raw sewage was discharged into the River Medlock following a fault in the company’s sewage tank. The pollution spread over four kilometres and had a significant impact on fish stocks and water quality in the river. The company had failed to recognise the fault three days before the EA were notified of the issue, but have now taken steps to prevent reoccurrence.
The EA’s press release is here
Useful stuff from the EA
The Environment Agency last week published useful information and data about both itself and the environment it regulates.
A chart entitled ‘Creating a better place’ sets out graphically the EA’s organisational structure and key personnel in its five internal divisions of Chief Executive’s Directorate, Finance, Environment and Business (E&B), Flood and Coastal Risk Management (FCRM) and Operations. Legal Services, Regulated Industry, Water, Land and Biodiversity and Sustainable Business and Development, the areas with which legal practitioners will most regularly interface, are all sub-divisions within Environment and Business. The chart can be found here.
The EA also recently published its “Water situation: area monthly reports for England” for August 2017. These collate data from the EA, the Met Office and water companies on rainfall, soil moisture deficit, river flows, groundwater levels and reservoir levels for the 13 areas into which England is divided and contain a wealth of information about both the current health and adequacy of water resources and trends. These reports can be found here.
Costs caps in environmental cases
The collection of NGOs interested in environmental issues have won most of their challenge to the new costs rules that the government introduced in this year (CPR 45.41 – 45.45, on Aarhus Convention claims). They brought their joint application for judicial review the day the new rules came into effect on 28th February and we now have the judgment: RSPB and Friends of The Earth v Secretary of State for Justice [2017] EWHC 2309 (Admin), 15 September 2017, Dove J., following a hearing in July. The final form of the Court’s order in this case has yet to be decided, and some changes to the CPR wording will be required. But the High Court has made it clear how the new rules should be applied.
A defendant’s ability to apply to change the standard amount of the cap (£5,000 on an individual and £10,000 on others, with a reciprocal cap of £35,000) has been limited. The NGOs had sought to argue that the effect of the new rules were unpredictable, as the cost caps could be changed at any time. But the Court accepted that the CPR already requires that any application needs to be made as soon as it becomes apparent that it is necessary and desirable to make it (CPR 23.5). So, a defendant must now request any variation to the costs cap in their Acknowledgement of Service, or expect the Court to rule that they have not made their application in time.
It looks like further rules will be necessary on how much financial information has to be supplied by the claimant, but the information will be kept as confidential as possible, by being decided on paper or at a private hearing. It was at least conceded that the claimant’s own legal costs should be included in the consideration of what is or is not prohibitively expensive.
So, the substance of the new rules remains standing, even if they will have to be applied more rigorously. The effect of the changes was summarised in William Upton’s note on 1st March 2017, “Challenging Costs limits in Aarhus Convention claims.”
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