Environmental Law News Update

September 24, 2018

In this latest Environmental Law News Update, William Upton, Christopher Badger and Nicholas Ostrowski consider the ‘Agent of Change’ concept as contained in the new NPPF, a report by ClientEarth that alleges that four more companies have failed to properly report on climate change risks and the release of further ‘no deal’ Brexit technical notices by the UK government.


Are you affected by an “Agent of Change”?

In amongst the revisions to planning policy introduced in the new NPPF in July 2018 the government has accepted the inclusion of the ‘Agent of Change’ concept. It has the capacity to generate considerable legal uncertainty.

On its face, it has satisfied the demands of the live music venue campaigners worried about the threat posed by new housing near existing pubs and clubs (such as new flats granted permission next to the Koko Club in Camden, the subject of the successful High Court challenge in 2015). The NPPF2 tells us that these venues should not have “unreasonable restrictions placed on them as a result of development permitted after they were established”. Any applicant for new development that could have a significant adverse effect on them “should be required to provide suitable mitigation before the development has been completed” (para 182).

That may be fine for nightclubs, but the wording in the NPPF2 is much more wide-ranging. The policy language refers to all “existing businesses and community facilities”. It gives a non-exhaustive list of examples “such as” places of worship, pubs, music venues and sports clubs. The airport industry lobbied hard through the consultation process to be named in this list, and may continue to push their claim to be covered. The definition could also arguably cover any ‘bad neighbour’ development.

The implications of this may not be limited to the planning regime. Writing as a lawyer, it may be easy to say that a change to planning policy should not change the fundamentals of nuisance law; but it may not be long before someone tries to use this concept far more broadly.

[P.S. If you are wondering about the source of the phrase ‘Agent of Change’, you are not the only one. The music venue campaign used it, but it is not a phrase used by UK planners or planning lawyers. There is some trace of it in Australian nuisance law. All contributions to this etymological research are very welcome.]


ClientEarth reports four more companies for failing to properly address climate change risks

ClientEarth has reported EasyJet, Balfour Beatty, EnQuest and Bodycote to the Financial Reporting Council over failures to address climate change trends and risks in their corporate reports to shareholders.

The NGO acknowledges that the companies do identify greenhouse gas emissions and their efforts to reduce them, but alleges that none of the four companies clearly confronts the risks or trends that climate change or the low carbon transition present to their business.

ClientEarth also identified that none of the companies auditors, PwC, KPMG, EY and Deloitte respectively, failed to signal any problems with the reports. ClientEarth has sent letters to the Big Four, asking them to explain their approach to these issues.

The goal for ClientEarth is for the FRC to clearly state that the companies have failed to report material climate-related risks and for the companies to be required to correct their reporting accordingly. The NGO takes the view that shareholders are not being provided with the necessary information on risks to the businesses caused by climate change and the energy transition.

This action falls hot on the heels of ClientEarth reporting three insurance companies, including Admiral, to the Financial Conduct Authority for failing to disclose climate risks in their annual reports.

ClientEarth’s press release can be found here


Government releases further ‘no deal’ Brexit technical notices

As part of the Government’s ongoing process of preparing for a potential ‘no deal’ Brexit outcome, last week four technical notices dealing with the environment were released by the Department for the Environment, Food and Rural Affairs and the Department for Transport.

These technical notices cover the upholding of environmental standards, industrial emissions standards (determining ‘best available techniques’), using and trading ozone depleting substances and reporting CO2 emissions for new cars and vans.

Although described as technical notices, in reality these documents are still pitched at a relatively high level and leave significant unanswered questions about the detail of a ‘no deal’ Brexit.

The Notice dealing with the upholding of environmental standards in the event of a no deal Brexit is just over 1100 words long and principally confirms that due to the operation of the EU Withdrawal Act 2018 all existing EU environmental law will continue to operate in UK law. The Notice goes on to state that the government ‘will amend current legislation to correct references to EU legislation, transfer powers from EU institutions to domestic institutions and ensure we meet international agreement obligations’ and that the legislative framework will then be changed to leave the natural environment in a better state than we inherited it. This is, on any estimation, a significant legislative undertaking but little detail is given about how and when this will occur and the Note suggests that much of that detail (about, for instance, the regulation of obligations in the absence of the EU Commission) will be fleshed out in the Environment Bill 2018.

The other technical notices are similarly pitched in terms of detail. For instance, with regard to industrial emissions standards and determining ‘best available techniques’, the government confirms that secondary legislation will be passed to ensure that existing Best Available Technique Conclusions continue to have effect in UK law after we leave the EU. However, the Note gives little tangible guidance on how the UK will determine future Best Available Techniques Conclusions once we have left the EU, other than that ‘the UK Government will put in place a process for determining future UK Best Available Technique Conclusions’.

There is little suggestion in the Note for the using and trading of ozone depleting substances that the government wishes to depart from the current EU system (which establishes a stepped reduction in the use of such gases until 2030) but it is suggested that the Environment Agency will be required to establish and administer a new IT system to track and report on the use of these chemicals.

As to the reporting of CO2 emissions for new cars and vans, given the interconnectedness of the automobile industry there is unsurprisingly little suggestion that the overall regulatory scheme would change but the Department for Transport suggests that the existing EU Regulations would be transposed into domestic law through a statutory instrument which would additionally correct a number of deficiencies. However, similarly to other Notes, we are told that ‘detail on the arrangements to maintain current environmental protections would be subject to stakeholder engagement and Parliamentary approval.’

In summary then, while these are a helpful set of papers they do no more than set out an outline of how the government sees a no-deal Brexit unfolding. Huge amounts of Parliamentary and stakeholder time will be required to effect the proposed changes and the needs of the environment will, of course, be competing with all the other government departments which will also need to develop their own alternative legislative frameworks.


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