Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Gordon Wignall, Christopher Badger and Mark Davies consider the EU Exit Legal Position on the Withdrawal Agreement and the Attorney General’s Legal Advice, the Draft National Policy Statement for Water Resources Infrastructure and an important case about the courts’ approach to the balance between private rights and the public interest.

The EU Exit Legal Position on the Withdrawal Agreement and the Attorney General’s Legal Advice

On a morning when the Good Law Project (congratulations to Jolyon Maugham QC et al.) has succeeded in front of the European Court of Justice in showing that within the two-year notification period under Article 50 the UK may unilaterally revoke the notification to leave, we look at what implications the Attorney General’s advice has for the environment. Following the Good Law Project’s success, more than ever now that the Government’s legal advice has been published, we should be questioning the deal we’re being sold – is it worth it?

The Attorney General’s Legal Advice was published in two parts last week. The first part is little more than an exposition of what the Withdrawal Agreement supposedly means. Environmental matters are largely relegated to paragraphs 51-53 of the ‘Annex – Protocol on Ireland/Northern Ireland’:

“Article 2 sets out commitments on the EU and the UK not to lower the level of environmental protection below the common standards that apply in both the EU and UK at the end of the implementation period (with certain further commitments to be fleshed out by the Joint Committee), otherwise known as a non-regression commitment (Article 2(1)). The EU and the UK also commit to respect certain principles such as the precautionary principle in their respective environmental legislation, as well as to effective implementation of multilateral environmental agreements including on climate change, and the UK agrees to implement a carbon pricing system of at least the same effectiveness and scope as the EU’s Emissions Trading System (Article 2(2) to 2(6)).

Disputes in respect of these particular obligations are not subject to the arbitration mechanism of the Agreement, and are instead for resolution in the Joint Committee alone (Article 2(7)).

Under Article 3, the UK agrees to ensure effective domestic enforcement of the common environmental standards set out in its laws, regulations and practices, and must ensure public authorities and individuals are able to challenge such domestic laws or practices through administrative and judicial proceedings, with appropriate remedies (Article 3(1)). In addition, the UK agrees to provide for an independent monitoring body or bodies with necessary functions and powers to conduct enquiries or bring a legal action before a competent court (Article 3(2)). Because no exception is made from the dispute resolution provisions in the main Agreement, the EU could use the arbitration mechanism provided for in the Agreement if it considered the UK had not met its obligation to ensure effective domestic enforcement.”

The second part came in the form of the 6-page legal advice letter written on 13 November 2018, but only published after the Government was held to be in contempt of Parliament, states at paragraph 10:

“While it will not be directly bound by EU rules, GB will be obliged to observe a range of regulatory obligations in certain areas, such as environmental, labour, social and competition laws (the “level playing-field”), which reflects varying levels of correspondence to EU standards. GB will not be subject to the jurisdiction of the CJEU or the Commission in relation to these obligations – they will be monitored and enforced by independent UK authorities, and by its courts and tribunals. … Any breach would be actionable through the Joint Committee within the governance arrangements of the Withdrawal Agreement, and directly by the Commission as a party in the UK courts.”

So, what interest or questions arise from the above?

• The first is simply that this is clearly an area of the Withdrawal Agreement that is unfinished. “Certain further commitments” are “to be fleshed out”.
• The meaning of the phrase “commit to respect” is also unclear. Are EU environmental principles actually to be applied or will it simply be that decision makers must have regard to them? If the latter, is that acceptable?
• The advice quite boldly asserts that disputes in respect of these particular obligations are not subject to the arbitration mechanism but will be monitored and enforced domestically. However, it remains the position that the interpretation of European “concepts” may be referred to the CJEU. Does, for example, the precautionary principle fall within the definition of a European “concept”? If this is arguable, should the advice be so forceful on the jurisdiction of the CJEU?
• There is no analysis of whether the UK’s current proposals for the domestic environmental watchdog meets the requirements of equivalence and non-regression. The remit of the watchdog is still under review.
• Given the environmental matters are devolved in nature, if, once we’ve ‘taken back our laws’, should one (or more) of the devolved administrations decide to significantly lower environmental protections, does the EU have to take the whole of the UK to the Joint Committee/arbitration? If so, what power does Westminster have to compel a devolved authority to raise standards?

Now, what light does the Attorney General’s advice shed on all of these knotty issues? Quite simply, nothing. Given that the key question that the Attorney General was asked to advise on was the legal effect of the UK agreeing to the backstop and the relative importance of environmental protection, should this not have been looked at in a little more detail?

Alexander Devine Children’s Cancer Trust v. Millgate Developments Limited

The Alexander Devine Children’s Cancer Trust v. Millgate Developments Limited [2018] EWCA Civ 2679 (28 November 2018) is an important case about the courts’ approach to the balance to be struck between private rights and the public interest. The decision is relevant to contractual rights, but also to remedies in nuisance (in particular the issue of damages in lieu of an injunction).

The case arises in the context of s.84, Law of Property Act 1925 (the power to discharge or modify restrictive covenants affecting land). The case concerned the effect of the statutory provisions which allows the Upper Tribunal to discharge a restrictive covenant where the restriction “is contrary to the public interest” (s.84(1A)(b)).

Millgate breached restrictive covenants in order to construct affordable housing units in satisfaction of a s.106 agreement. It did so, and went on doing so, despite being warned of the existence of the covenants and their effects, namely seriously impairment of the amenity of the neighbouring use of land as a children’s hospice.

The Upper Tribunal, presented with a fait accompli, was substantially influenced by the potential waste of the affordable housing units (a public interest issue). It decided that a monetary award was adequate compensation for the discharge of the covenants.

The Court of Appeal, on the other hand, gave priority to the private rights created by the law of contract. Upholding previous Tribunal case law concerning the ‘sanctity of contract’, it took the view that the enforcement of contractual and property rights is itself an overriding matter of public interest.

There is a great deal in the judgment which merits consideration, including the relevance of planning permission in the context of private rights (little), whether it should count against an objector that it failed to apply for an interim injunction (it should not), the relevance of an off-hand but prejudicial remark in cross-examination (very limited), the almost misleading use of inference in the absence of real evidence in order to create what might almost be described as an erroneous submission (disagreeable, but surely common practice), and so on.

There has been some discussion in Chambers about whether Lord Sumption’s guidance in Fen Tigers that “damages are ordinarily an adequate remedy in nuisance” has been given a decent burial by this judgment, this forming part of the primary ground of appeal (see Lawrence v. Fen Tigers [2014] AC 822).

The answer to this question is surely “no” (or perhaps “not yet”), since the Court of Appeal went out of its way to point out that the discretionary balance by a Court at the stage of remedies where there are competing private law rights, is an entirely different exercise from the protection merited to obligations entered into by mutual agreement.

Draft National Policy Statement for Water Resources Infrastructure

On 29 November Dr Thérèse Coffey laid before Parliament for consultation a draft National Policy Statement for water resources infrastructure. This 99-page document provides planning guidance for applicants for permission for nationally significant infrastructure projects (‘NSIPs’) for water resources (principally reservoirs, transfer facilities and desalination plants) and in its final form will constitute the primary basis for preparation, consideration and determination of applications for development consent.

Section 2 outlines government policy, with a strong emphasis upon ‘resilience’, reflecting the new duty upon the Secretary of State, the Welsh Ministers and OFWAT to secure the resilience objective introduced by section 22 of the Water Act 2014 (by amendment of section 2 of the Water Industry Act 1991).

Section 3 addresses assessment principles and creates a presumption in favour of granting development consent for water resource NSIPs which fall within the need for infrastructure established by the Statement. There are subsections on Water Resource Management Plan Assessments, environmental impact assessments, habitats regulation assessments, environmental net gain, assessment of alternatives, criteria for ‘good design’ for water resources infrastructure, climate change adaptation, environmental regulation, common law nuisance and statutory nuisance, safety, security and health.

Section 4 addresses generic impacts: air quality, biodiversity and nature conservation, carbon emissions, coastal change, dust, odour, artificial light, smoke and steam, historic environment, flood risk, landscape and visual impacts, land use (including open space, green infrastructure and Green Belt), noise and vibration, resource and waste management, socio-economic impacts, traffic and transport and water quality and resources. In each case the proper decision-making process is set out in some detail.

Anyone who thinks that something has nevertheless been missed out or has any other observations has until 31 January 2019 to respond.

The full document can be found here

Further related links can be found here

We published November’s Environmental Law Podcast recently – a monthly round-up of the latest developments in environmental law.

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