In this latest Environmental Law News Update, Christopher Badger, Mark Beard and Antony Bartholomeusz consider the Supreme Court’s decision in Mott v Environment Agency, a proposed Brexit bill amendment to maintain EU law environmental principles, and landfill tax on unauthorised disposals.
Environment Agency liable to pay damages for breach of Convention Rights
On 14 February 2018, the Supreme Court handed down judgment in R (Mott) v Environment Agency  UKSC 10, dismissing the Environment Agency’s appeal against the Court of Appeal’s ruling that it was liable to pay compensation under section 8 of the Human Rights Act 1998 for breaching Respondent’s right to peaceful enjoyment of his possessions under Protocol 1 Article 1 (“A1P1”) of the European Convention on Human Rights (“ECHR”).
The Respondent, Mr Nigel Mott, a septuagenarian fisherman held a leasehold interest in a fishery on the Severn Estuary. The fishery was a “putcher rank”, a traditional fishing technique involving the use of conical baskets to trap adult salmon as they returned to a river from the open sea to spawn. Catching salmon using this method was a commercial operation which had been Mott’s full-time occupation since 1979, requiring a licence granted annually by the Agency.
From 2012 the Agency imposed a condition on his licence limiting his annual catch very substantially. The Agency judged the conditions necessary to protect salmon stocks in the River Wye, a Special Area of Conservation designated under the Habitats Directive. Although the catch limit conditions limited the Mr Mott’s catch by 95%, the Agency paid him no compensation.
Mr Mott sought judicial review of the Agency’s decisions to impose the conditions claiming that the conditions made his fishery wholly uneconomic to operate. He also claimed that the decisions were irrational and in breach of his property rights under A1P1. In the Administrative Court, the Judge held that the decisions were irrational and that, under A1P1, the Agency could not properly have imposed the conditions, if otherwise lawful, without payment of compensation. The Court of Appeal allowed the Agency’s appeal on the issue of irrationality, but dismissed the appeal under A1P1.
The Agency’s appeal to the Supreme Court was limited to the A1P1 ground. The issues arising in the appeal were: (i) whether the conditions imposed by the Agency amounted to control or de facto expropriation under A1P1; (ii) if the former, whether the fair balance required compensation to be paid; and (iii) if the latter, whether exceptional circumstances justified the absence of compensation.
The Supreme Court unanimously dismissed the Agency’s appeal. Lord Carnwath gave the lead judgment with which the other Justices (Lady Hale (President), Lord Kerr, Lady Black, Lord Briggs) agreed.
The Court held that the ECtHR case law showed that the distinction between expropriation and control was neither clear-cut nor crucial to the analysis in the instant case (see Hutten-Czapska v Poland (35014/97) (2007) 45 EHRR 4). The need to attach special importance to the protection of the environment did not detract from the need to draw a fair balance between public and private interests. Nor did it detract from the potential relevance of compensation.
The Supreme Court was unable to fault the judge’s analysis of the applicable legal principles in this case. The fact that the conditions imposed by the Agency were closer to deprivation than mere control was clearly relevant to the fair balance. The Agency gave no consideration to the particular impact on Mr Mott’s livelihood, which was severe, and it was doubtful whether the leasehold interest retained any value.
The Court emphasised that this was an exceptional case on the facts, because of the severity and the disproportion (as compared to others) of the impact on Mr Mott. The Court reiterated that national authorities have a wide margin of discretion in the imposition of necessary environmental controls, and A1P1 gives no general expectation of compensation for adverse effects. Furthermore, where (unlike Mr Mott’s case) the authorities have given proper consideration to the issues of fair balance, the courts should give weight to their assessment.
Mark Beard represented Mr Mott in the Administrative Court, the Court of Appeal and was led by Stephen Hockman QC in the Supreme Court
The judgment and press summary are available on the Supreme Court’s website.
Proposed Brexit Bill amendment to maintain EU Law environmental principles
Three peers, Baroness Jones of Whitchurch, Lord Krebs and Baroness Bakewell of Hardington Mandeville have proposed an amendment to the Brexit bill to incorporate EU law environmental principles into English law post Brexit. It is headed ‘Maintenance of EU environmental principles.’ It must be noted that this is a proposal that does not presently form part of the bill and would need to be accepted by both houses of Parliament in order for it to become the law.
The amendment has four parts. Firstly, it requires public authorities to ‘have special regard to, and apply’ five European environmental principles. These are:
- the precautionary principle;
- the preventative action principle;
- the principle that environmental damage should be rectified at source;
- the polluter pays principle; and
- the principle that environmental protection requirements should be integrated into policies, with a view to promoting sustainable development.
This duty on public authorities would be broader than present. Currently, EU law contains these principles, but they are focused on regulating the EU’s activities: they only apply to the Member States when they are implementing EU law. Consequently the proposers of this amendment would influence the basic principles underlying the UK’s post-Brexit environmental policy, rather than simply replicating the present substantive legal position.
Secondly, the amendment requires that public authorities would take into account the public interest in environmental protection in various specific ways. There is reference to promoting sustainable development in the United Kingdom and overseas, promoting international measures to tackle regional or global environmental problems such as climate change, guaranteeing participatory Aarhus-type rights (although Aarhus will continue to apply post-Brexit), and taking into account technical and scientific data.
Thirdly, there is a proposed requirement that public authorities take a high level of protection as a base and take into account new scientific facts when making proposals concerning environmental protection.
Finally, the amendment allows courts to make a ‘declaration of incompatibility’ when it determines that primary or subordinate legislation is incompatible with the environmental principles. Clearly the proposers sought to mirror the mechanism for a declaration of incompatibility contained in the Human Rights Act 1998. But much of the detail found in that act is not replicated here: it is not clear, for example, what the consequences of a declaration of incompatibility would be, nor is the concept of primary or subordinate legislation defined.
What is clear, however, is the intent that the environmental principles should be justiciable, rather than mere political commitments. The problem may be whether the words “have special regard to, and apply” are strong enough to meet the objectives of the proposers of the amendment. Declarations of incompatibility ordinarily require a fundamental norm to have been defined. Perhaps they should consider a mandatory obligation on local authorities to “contribute to the pursuit of” specific environmental goals, rather than having regard to principles.
Landfill tax on unauthorised disposals
The Landfill Disposals Tax (Tax Rates) (Wales) Regulations 2018 were published on 31 January 2018 and come into force on 1 April 2018. They introduce the first rates for the landfills disposals tax, which is a devolved landfill tax for Wales. These are:
- Standard rate of £88.95
- Lower rate for qualifying disposals of £2.80
- A new third category for unauthorised disposals of £133.45.
For a taxable disposal made at an authorised landfill site, tax is to be calculated by reference to the weight and type of material disposed of. For a taxable disposal made at a place other than an authorised landfill site, tax is to be calculated by reference to the weight of the material alone.
This new third category could be significant. In confiscation proceedings brought against operators responsible for illegal disposals, is not uncommon to debate what would it have cost the operator to dispose of this waste at an authorised landfill site. Working out the answer brings into play such questions as what the operator could have done with the waste, i.e. could he have had the waste sorted such that only a small proportion would have had to be landfilled? On the face of it, this third category for unauthorised disposals removes that debate and fixes a financial liability for unauthorised deposits. The only live issue will be how much waste was disposed of.
The Finance Bill is currently making its way through Parliament. It addresses the liability to landfill tax of those that dispose of waste an unauthorised landfill sites but it has no reference to a third category of tax for unauthorised disposals. As a result, the type of waste concerned and what could have been done with that waste remain relevant issues in the context of avoided costs. Devolution has created a divergent approach to unauthorised landfill sites, whether such divergence is justifiable is another matter.
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