Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Mark Davies and Antony Batholomeusz consider the implications of failing to comply with a Remediation Order, a vote by the House of Lords for greater environmental protection post-Brexit, and the continuation of legal controversies over discharges into the Manchester Ship Canal.

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Ensuring compliance with a Remediation Order

What should a criminal court do when a company fails to comply with a Remediation Order (made under reg.44 of the Environmental Permitting Regulations (England and Wales) 2010 (‘the EPR’))? The Oxford Crown Court had made a Remediation Order requiring a defendant company, Tapecrown Ltd, to remove the waste from their site in addition to fining the company for its criminality. However, Tapecrown failed to comply with the Remediation Order to the extent that, following a contested hearing, they were held in contempt of court.

Curiously, the EPR does not provide a mechanism to enforce a Remediation Order. The Environment Agency proposed a creative solution. The Crown Court has the same powers as the High Court to enforce its orders. Where a party fails to carry out an act required by a court order, the Civil Procedure Rules allow the court to appoint someone to do the act. The disobedient party bears the expenses of the person appointed by the court. So Oxford Crown Court appointed a waste management company to clear Tapecrown’s site. The order made provision to allow Tapecrown to challenge the reasonableness of the costs charged.

Tapecrown subsequently argued that too much waste had been removed and applied to challenge the costs. Initially Oxford Crown Court held that the application was out of time and had no merit. That decision was quashed by the Administrative Court, which granted a judicial review application to to allow for Tapecrown to apply to extend time to be able to challenge the reasonableness of the amount of waste removed.

That decision has thrown up at least two interesting points.

First, the Administrative Court recognised the use of the CPR as a means of ensuring that the site would be cleared. This is an important development for Remediation Orders. Providing that a willing contractor can be found to undertake the work, there is now a genuine mechanism for ensuring remediation that will not unduly impact on the public purse.

Second, although the order had been made following contempt proceedings, Tapecrown’s assertion that it had an automatic right of appeal to the Court of Appeal (Criminal Division) was rejected. The order had not been made under the Crown Court’s jurisdiction to punish for contempt of court but was in fact entirely ancillary to that jurisdiction.

Christopher Badger (of Six Pump Court) acted for the Environment Agency.

House of Lords win through on environmental protection post-Brexit

On Wednesday last week the House of Lords voted 294 to 244 in favour of approving what was the government’s 15th defeat on the Withdrawal Bill. The aim of the latest amendment? Bolstering environmental protection post-Brexit.

The amendment, proposed by Lords Krebs and Deben and Ladies Jones of Whitchurch and Bakewell of Hardington Mandeville, is worth reading in full. It inserts the following new clause after the current Clause 3:

“Maintenance of EU environmental principles and standards

(1) The Secretary of State must take steps designed to ensure that the United Kingdom’s withdrawal from the EU does not result in the removal or diminution of any rights, powers, liabilities, obligations, restrictions, remedies and procedures that contribute to the protection and improvement of the environment.

(2) In particular, the Secretary of State must carry out the activities required by subsections (3) to (5) within the period of six months beginning with the date on which this Act is passed.

(3) The Secretary of State must publish proposals for primary legislation to establish a duty on public authorities to apply principles of environmental law established in EU law or on which EU environmental law is based in the exercise of relevant functions after exit day.

(4) The Secretary of State must publish proposals for primary legislation to establish an independent body with the purpose of ensuring compliance with environmental law by public authorities.

(5) The Secretary of State must publish—
    (a) a list of statutory functions that can be exercised so as to achieve the objective in subsection (1); and
    (b) a list of functions currently exercised by EU bodies that require to be retained or replicated in UK law in order to achieve the objective in subsection (1).

(6) The Secretary of State must before 1 January 2020 lay before Parliament a Statement of Environmental Policy which sets out how the principles in subsection (7) will be given effect.

(7) The principles referred to in subsection (3) include—
    (a) the precautionary principle as it relates to the environment,
    (b) the principle of preventive action to avert environmental damage,
    (c) the principle that environmental damage should as a priority be rectified at source,
    (d) the polluter pays principle,
    (e) sustainable development,
    (f) prudent and rational utilisation of natural resources,
    (g) public access to environmental information,
    (h) public participation in environmental decision making, and
    (i) access to justice in relation to environmental matters.

(8) Before complying with subsections (3) to (6) the Secretary of State must consult—
    (a) each of the devolved administrations;
    (b) persons appearing to represent the interests of local government;
    (c) persons appearing to represent environmental interests;
    (d) farmers and land managers; and
    (e) such other persons as the Secretary of State thinks appropriate.”

Interestingly, the amendment’s Third Reading had been delayed pending the publishing of DEFRA’s consultation paper on ‘Environmental Principles and Governance after EU Exit’. It was thought that the consultation paper would assuage any fears the House of Lords might have and obviate the need for the amendment at all. So, what did the inimitable Lord Krebs think about the proposals in the consultation paper?

“At first sight, the Government’s consultation appears to address our concerns, as the Minister assured us that it would. It includes discussion both of the environmental principles, such as the precautionary principle and the polluter pays principle, and of a new green watchdog to ensure that environmental standards are upheld, thus filling the governance gap that otherwise would be created by Brexit…

However, on closer inspection, the Government’s proposals are simply too weak. There is no commitment to enshrine in legislation the environmental principles to which I have referred. Instead, the preferred option is to create a policy statement, which, as the consultation document says, would allow the Government,

“to balance environmental priorities alongside other national priorities”,

and,

“offer greater flexibility for Ministers”.

The favoured option for the green watchdog’s enforcement role is that it would be able to serve advisory notices to the Government or other public bodies. To quote again from the consultation document:

“government believes that advisory notices should be the main form of enforcement”.

That is far weaker than the current arrangements, under which the Commission has the power to initiate court action. In contrast, an advisory notice can be ignored and there is no sanction if it is. The consultation document even acknowledges the need for strong enforcement when it says:

“there is a special case to act on the environment. Most EU infringement proceedings against all Member States have related to environmental law, indicating a greater need for oversight in this area. In addition, while there are individuals or bodies with direct interests to protect in other areas of EU law, the environment is in a different position”.

Finally, the Government’s timetable for their proposals, weak as they are, show that their new mechanisms would not be in place by Brexit day.
…
Noble Lords who care about the preservation of our environment for future generations should support this amendment.”

Hear, hear.

More Falling Out Over the Outfalls

Legal controversies over discharges into the Manchester Ship Canal continue. In The Manchester Ship Canal Company Ltd. v Vauxhall Motors Ltd. [2018] EWCA Civ 1100 the Court of Appeal upheld the decision of the High Court (HHJ Behrens) that Vauxhall Motors Ltd. (formerly General Motors UK Ltd.) was entitled to relief from the forfeiture of its perpetual licence to make such discharges from its factory at Ellesmere Port following its inadvertent failure to pay the annual licence fee of £50. The current value of the right was estimated at £300,000 – £440,000 per annum.

The licence was granted in 1962. It allowed GM to construct infrastructure, mainly pipework, on land owned by MSCC and to discharge surface water and trade effluent into the canal.

The Court of Appeal held that the effect of the licence was to grant GM possessory rights over the infrastructure on MSCC’s land by dint of GM’s degree of use and control. Thus the jurisdiction to grant relief from forfeiture was engaged and the judge had been entitled on the facts to exercise it in GM’s favour.

The Court of Appeal also considered a second basis of GM’s claim founded upon provisions in the Manchester Ship Canal Act 1885 enacted for the protection of GM’s predecessor in title. The court held that if relief from forfeiture had not been granted then the relevant provisions would not have allowed GM to continue to make the discharges. The protective provisions were intended merely to protect the rights which subsisted in 1885 by virtue of the predecessor’s riparian ownership, including the ”natural right” to allow naturally occurring water to drain onto lower land. Even assuming those rights to have included also a prescriptive right of artificial drainage, the construction by GM of its factory and the use thereafter made by GM pursuant to the licence constituted a “radical change in the character” of the dominant tenement beyond the scope of such an easement.

The full judgment can be found here.

We published our Environmental Law Video Newscast recently – a monthly round-up of the latest developments in environmental law.

Chambers UK Guide to Environmental Law 2018 was published this month and written by Six Pump Court’s Environmental Law Team. You can also use this link to access the full-text pdf version. The Guide provides easily accessible information to help navigate environmental law in the UK and covers the environmental regulatory framework, environmental protection, developments in policy and law, enforcement, liability and disclosure requirements as well as the law as it relates to contaminated land, waste, asbestos, climate change and emissions.

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