Environmental Law News Update

February 5, 2018

In this latest Environmental Law News Update, Christopher Badger, William Upton and Mark Davies consider the impact in the UK of China’s ban on imported waste, a human rights claim for flood damage, and the launch of our monthly environmental newscast.


China says our “foreign garbage” is a waste of space

In July of 2017 the Chinese Government informed the World Trade Organisation that it intended to introduce a ban on the importation of certain types of yang laji (or “foreign garbage”, waste). That ban came into force on 1 January and includes all unsorted mixed papers, eight types of plastic waste (including PET plastic bottles), eleven types of textile waste (excluding clothing) and four types of metal slag; it is anticipated that, in particular, the ban on waste unsorted paper and plastics will have far reaching implications for everyday householders in the UK.

The ban is set to be complemented by the introduction of new Chinese standards on imported waste in April of this year which will limit all recycled materials to a maximum contamination level of 0.5%, a standard that many believe will be simply impossible to meet.

Industry commentators have warned that the ban is a ‘massive crisis’ and that we may see higher gate fees, more waste going to landfill, and increases in council tax as local authorities struggle to deal with the increased costs of household recycling waste.

Finally, it must be said that the ban has been introduced at an interesting time for the waste industry in the UK; statements from the UK Government in recent months, including renewed commitments to minimise waste in the 25 Year Environment Plan and proposals to introduce fixed-penalties for householders who breach their waste duty of care, would suggest that the policy landscape and attitudes to waste are shifting – we will have to wait and see how the Chinese ban will impact upon those policies in the long term.


A human rights claim for flood damage

The High Court has dismissed a case taken by landowners in Gloucestershire who claimed that the Environment Agency had breached their human rights by allowing their farmland to flood to protect urban areas (King v Environment Agency [2018] EWHC 65 (QBD)). The case is notable for several reasons.

Firstly, there was no claim in negligence or nuisance before the court. It was only argued as a claim for compensation for a breach of the right to property and personal discrimination (Art 1 of Protocol 1 and Article 14 of the European Convention of Human Rights).

Secondly, the Court did find that there was an implicit Agency policy to use the claimants’ land for the purpose of floodwater storage in order to help protect the city of Gloucester, despite their denial.

Thirdly, the judge did not consider that this policy constituted a “control or interference” with the claimants’ property under A1P1. That is an odd conclusion, given that there was clearly an implicit interference with the claimants’ property rights to defend their own land as they saw fit. The better conclusion is the one the Court went on to make, by holding that “there had in any event been a fair balancing of the claimants’ rights with those of the general interest, as required by A1P1.” Flood management is clearly a matter of public policy, and a choice has to be made about what areas should be defended and to what level of defence, as well as about the amount of public money that can be spent on it. Both parties placed considerable reliance on Marcic v Thames Water Utilities Ltd [2004] 2 AC 42 as regards striking the fair balance. There will be instances when this does impose a disproportionate burden on certain individuals in the public interest.

Fourthly, the judge also ruled that there was no basis to the claim that the landowners had been the subject of unlawful discrimination contrary to Art.14 of the Convention. The claimed discrimination “was not on the basis of a personal characteristic”, and there was a clear difference between the claimants’ position and flood defence schemes where the Agency had compensated the landowners. This is perhaps one of the less satisfactory parts of the case, not helped by the fact that there had been a failure by the Agency team to disclose relevant information as a responsible public body should do. It was only on cross-examination of the Agency’s witness that it was learnt that there were some 150-200 schemes where compensation had been paid, despite earlier requests for such information.


Environmental Newscast launches

In association with Lexis PSL, Six Pump Court has launched a monthly environmental newscast. The video is intended to pick up on the month’s three biggest environmental law stories, providing comment and insight in a different format to our written weekly blog.

The newscast is hosted on Lexis PSL’s YouTube channel and we will provide a link from our website and via twitter.

For the latest update broadcast last week click here

Any comment or feedback is extremely welcome, so please do feel free to contact us with any suggestions.


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