Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger considers new draft waste enforcement regulations, the sentence imposed on the operator of an illegal landfill site and a report requested by the European Commission on financing a sustainable economy.

Draft Waste Enforcement (England and Wales) Regulations 2018

Draft Regulations have been laid before Parliament that allow the Environment Agency to serve a notice on the occupier of land requiring them to remove waste that is being illegally stored on land, irrespective of whether or not the waste was illegally deposited in the first place.

On appeal, a court must quash the requirements imposed by the notice if it is satisfied that the appellant did not keep or dispose of, or knowingly cause or knowingly permit the keeping or disposal of the waste or if there is a material defect in the notice and, in any other case, may modify the requirements or dismiss the appeal.

It will be a criminal offence to fail to comply with such a notice. Where there is no occupier of land, or the occupier cannot be found without incurring reasonable expense, the notice can be served on the landowner.

The same draft Regulations also enable Regulators to restrict access to a waste site by physical means where an authorised person is satisfied that there is actual, or risk of, serious pollution or serious harm to health at a waste site and that the notice is necessary to prevent that risk from continuing. This can be done either though a restriction notice that has effect for up to 72 hours or a restriction order issued by a court that can have effect for up to six months. Strict time limits apply to applications to the Magistrates’ Court and appeals are to be made to the Crown Court.

The Regulator can apply to the courts for reimbursement of expenditure for the purpose of securing premises in respect of which a restriction order is in force. However, the Regulator can also be ordered to pay compensation to either the occupier or owner of premises to which access was impeded by a restriction notice or a restriction order, where the Court considers that it is appropriate to do so.

The risk that landowners may find themselves financially at risk for the removal of waste legally brought on to their land may encourage the development of greater scrutiny of the financial circumstances of tenants and enhanced financial provision. Waste crime has been identified by the Government as one of the most urgent problems in the environmental sector. These new powers are part of the Government’s 2015 waste crime action plan and are just one element of the proposed extension of powers for the Environment Agency, other proposals being the current subject of consultation.

The draft Regulations can be found here

Suspended sentence for illegal landfill site

Eric Hale of Bank Top Farm near Frodsham has been sentenced to 12 months imprisonment suspended for two years, disqualified from driving, ordered to do 200 hours unpaid work and has had a three month curfew of 8am to 6pm imposed on him for operating an illegal landfill site. He has also had to pay £100,000 in costs. Two others received a conditional discharge for two years after pleading guilty to dumping and landfilling controlled waste.

A lengthy Environment Agency investigation identified significant amounts of waste brought on to the farm, linked to the activities of Eric Hale Skip Hire Ltd. Eric Hale, Steffan Street and Denis Whiting were all seen driving large waste vehicles which delivered, deposited and disposed of mixed waste, demolition waste including plasterboard and other waste including carpets and mattresses. Trommel fines, a by-product of recycling and consisting of wood, aggregate, ceramics and organics were also dumped at the Farm.

A 12-month sentence of imprisonment is the starting point for a deliberate category 2 offence. In this case 19 acres of Cheshire farmland was blighted by the illegal waste activities of the landowner. The Judge acknowledged that there were substantial personal mitigating circumstances in the case of Mr Hale that might explain why the sentence of imprisonment was suspended. The fact that the others received conditional discharges is a clear indication that the Court considered their roles to be demonstrably subordinate to Mr Hale’s role, although their imposition is a departure from the Guideline itself.

The Environment Agency’s press release can be found here

Final report on Sustainable Finance

The European Commission’s High-Level Expert Group on Sustainable Finance published its final report in financing a sustainable economy on 31 January 2018.

The Group was set up to provide advice on how to steer the flow of capital towards sustainable investments, identify steps that financial institutions and supervisors should take to protect the financial system from sustainability risks and deploy these policies on a pan-European scale.

Unsurprisingly, there is no single lever that will achieve these ambitions. The report recommends:

• Establishing an EU “sustainability taxonomy”, starting with climate change, to define areas where investment is needed most;
• Clarifying investor duties that will bring a greater focus on ESG factors into investment decisions;
• Upgrading disclosures to make sustainability opportunities and risks transparent;
• Enabling retail investors to invest in sustainable finance opportunities;
• Developing official European sustainability standards;
• Deploying development capacity in EU member states for infrastructure necessary for a more sustainable economy; and
• Integrating sustainability firmly into the governance of financial institutions as well as in financial supervision.

There are a number of headwinds. Short-termism in financial markets can have a negative impact on long-term corporate investment and development. Ordinary citizens do not often have the opportunity to engage with sustainable finance, nor is there much by way of financial market transparency or guidance on this issue. More needs to be done to promote better disclosure of ESG information.

The report recognises that its aim is not to increase the regulatory burden on businesses but to facilitate more investment. There is a clear appetite to make sustainable finance a permanent feature of both the financial markets and policy-making. However, the report recognises that it will take considerable time to make sustainable finance the norm across Europe. It is proposed that the Commission will now come forward with an action plan on sustainable finance drawing on the recommendations in the report. Success will be measured on the extent to which sustainable finance begins to affect investment decisions and becomes a permanent feature of the investment landscape.

The full report can be found here

Have you seen our NEW Environmental Law Video Newscast – a monthly round-up of the latest developments in environmental law. January’s edition can be viewed here. Future editions will be available at the end of each month on our website.

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