Environmental Law News Update

March 20, 2017

In this latest Environmental Law News Update, Christopher Badger and William Upton provide comment on the OFWAT consultation, the Bar Council’s Environmental Brexit Paper, and recent tightening of air quality mitigation.


DEFRA launches OFWAT consultation

DEFRA is seeking views on the government’s strategic priorities and objectives for OFWAT’s regulation of the water sector in England. As part of the consultation, DEFRA wants OFWAT to work with water companies to ensure that they assess the resilience of their “system and infrastructure against the full range of potential hazards and threats and take proportionate steps to improve resilience where required”.

Other priorities include ensuring water companies plan and invest to meet the needs of “current and future” water and wastewater customers, promote markets to drive innovation in resilience, protect and support vulnerable customers, and focus on the needs of small business customers.

The consultation inevitably focuses on a broad range of Government priorities for the water sector and makes reference to the “forthcoming” 25-year environment plan. Yet there is a risk of a disconnect between references to “environmental resilience” that brings “value for money” to customers and improving current infrastructure with a view to avoiding pollution incidents. Water companies have been the subject of the most severe criminal penalties since the introduction of the Definitive Guideline on Sentencing Environmental Offences. Although some reference is made to ageing infrastructure, it’s a little surprising that greater emphasis is not placed by DEFRA on prioritising the integrity of current infrastructure.

The consultation can be found here


Bar Council begins draft of Environment Brexit Paper

The Bar Council, as part of its Brexit Paper series, has begun drafting a Paper on the future of environmental regulation. The Paper seeks to make recommendations to the Government for any short-term transitional arrangement after Article 50 is triggered as well as long-term arrangements for environmental regulation.

The Brexit Papers are written to help evaluate a range of pressing public interest concerns arising from the UK’s decision to leave the EU. The Papers seek to identify the key legal issues in order to facilitate a transition that minimises the risk of legal uncertainty, the loss of rights and possible adverse consequences to the national economy.

The current published papers can be found here


Tightening up Air Quality Mitigation

The package of measures being introduced to deal with the continuing failure of the UK to comply with the Air Quality limits keeps on growing. Merton Council have been in the news for introducing a £150 diesel levy on resident, business and trade parking permits from April 2017 – click here for local coverage of the case. The Mayor of London has also been announcing various measures, such as the 12 Low Emission Bus Zones and the introduction of an Emissions Surcharge (“T-charge”) for older polluting vehicles entering the Congestion Charge zone from October 2017.

The main hope for improvement still rests on the new National Air Quality Plan. As keen observers will recall, the Mayor of London took part in ClientEarth (No.2) v Defra [2016] EWHC 2740 (Admin) and welcomed the High Court ruling which held that the Government has broken the law by failing to tackle illegal levels of nitrogen dioxide (NO2) air pollution as quickly as possible. The Court has ordered that the Secretary of State must aim to achieve compliance by the soonest date possible, and must choose a route to that objective which reduces exposure as quickly as possible, and that she must take steps which mean meeting the value limits is not just possible, but likely. The High Court ordered that the draft modified Plan should be produced by 16.00 on 24 April 2017 and a copy provided to ClientEarth. The new plan should then be published and sent to the European Commission by 31 July 2017.

William Upton has already seen a planning appeal refused on Air Quality grounds this year. Given the failure of the national air quality plan, the inspector considered that it was unsafe to rely on emission levels falling between 2015 and 2020 to the extent that had been assumed in the local modelling. He dismissed the application for 300+ houses in Swale because of its effect on a nearby AQMA. The decision is under appeal.


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