Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Charles Morgan consider the new Environment Bill, DEFRA’s new Waste and Resources Strategy and a water pollution playlist.

The Environment Bill 2018!

It was promised before 26 December and it has been published the week before. The Environment Bill 2018!!!

Key points on the environmental principles are:

• The policy statement on environmental principles (to be prepared) must explain how the environmental principles are to be interpreted and “proportionately applied” by Ministers of the Crown in making, developing and revising their policies;
• The statement “may” also explain how Ministers of the Crown, when interpreting and applying the environmental principles, are to take into account other considerations relevant to their policies.

The concept of proportionality is therefore an overarching concept, to be taken into account in the application of all of the environmental principles. However, the Bill doesn’t set out any form of overarching objective. It is inherently difficult to assess the concept of proportionality in the absence of any form of priorities. Nothing in the Bill requires a Minister of the Crown to take action that would be disproportionate “to the environmental benefit” but that doesn’t assist with how proportionality should be applied across other valid considerations. Proportionality is a means of measuring the necessity of legitimate legal action against a defined objective, not a means of determining what the objective should be in the first place, or what factors should be taken into account. The current draft risks confusing this key point.

There is a discretion as to whether the statement will explain how other considerations should be taken into account. Presumably, if nothing is mentioned, this leaves the relevant Minister of the Crown with a wide ambit on how the environmental principles should be prioritised (or not).

The relevant environmental principles are the same as to be found in s.16 of the Withdrawal Act 2018.

There will be a consultation on the policy statement, although the policy statement can be revised at any time. A Minister of the Crown “must have regard to” the policy statement when making, developing or revising policies dealt with by the statement. The wording arguably limits the application of the policy statement to those policies that are specifically referred to within it but more importantly, this is an extremely low threshold for a Minister of the Crown to surpass. It is likely to prove extremely difficult to demonstrate that a Minister of the Crown has had no regard for the policy statement.

Specifically excluded from the scope of the statement are any policies that relate to “taxation, spending or the allocation of resources within government” or “any other matter specified in regulations made by the Secretary of State”. That is quite some caveat and doesn’t promote any certainty that the Government won’t create huge carve outs if the new environmental watchdog proves to be a little troublesome.

The watchdog will be called the Office for Environmental Protection (“OEP”). All non-executive members, including the Chair, are to be appointed by the Secretary of State. The OEP is to be funded by DEFRA through grant-in-aid. This will inevitably raise concerns with those that consider that such governance and funding arrangements will not provide sufficient independence for the watchdog to carry out its functions properly.

The OEP will be able to give an “information notice” to a public authority that it has reasonable grounds to suspect as failed to comply with environmental law and considers that the failure is serious – essentially a request for information – and give a “decision notice” where it is satisfied, on the balance of probabilities, that the public authority has failed to comply with environmental law and it considers that the failure is serious – essentially setting out steps that should be taken in relation to the failure. The OEP may then make an application for judicial review in relation to conduct described in the decision notice. This must be made within 3 months of the day by which the public authority was required to respond to the decision notice. A public authority that is the subject of a review application must publish a statement after the conclusion of the review proceedings that sets out the steps, if any, that it intends to take in light of the outcome of those proceedings. There is no power to impose a financial penalty on a public authority.

Failing to comply with environmental law, according to the Bill, means either:

1. Unlawfully failing to take proper account of environmental law when exercising its functions; or
2. Unlawfully exercising, or failing to exercise, any function it has under environmental law.

As to 1), as stated above, the threshold is to “have regard to”. At present, in the absence of a wholesale disregard for the environmental principles, it is difficult to see how this will be used in practice. As to 2) what is a “function under environmental law”? The commentary identifies that “various authorities are charged with establishing and implementing permitting regimes for different activities that can affect the environment. Failing to meet such requirements, or implementing them in a deficient way (for instance, by omitting certain prescribed activities or applying standards that are less rigorous than the law demands), could also constitute a failure to comply with environmental law.” This sounds a little like one of the key tasks of the watchdog will be to monitor the Environment Agency. Can that really be right?

It is to be expected that the OEP will prioritise cases with a broader, more widespread significance than purely local issues, in particular those which concern persistent issues, issues which could be of a significant nature with regard to environmental impacts or effects on human health or cases that deal with points of law of general public importance.

There is considerable scope within the current draft of the Bill for a “toothless” watchdog. Much will depend on the wording of the policy statement and the attitude of whoever is appointed to Chair the OEP. Expect fierce debate and opposition to the current draft – it doesn’t look likely to satisfy many.

DEFRA publishes Waste and Resources Strategy 2018

On 18 December 2018 DEFRA published its ‘Waste and Resources Strategy’ for 2018. Much has been made of the fact that producers will be forced to pay the full costs of disposal for the packaging that they place on the market and that weekly food waste collections are to be rolled out across the country. There is also to be a deposit return scheme for drinks containers to be in place by 2023.

Chapter 4 of the Strategy focuses on waste crime. It proposes a new strategic approach, concentrating on principles of prevention, detection and deterrence. It is proposes that:

• Duty of care regulations and registers will be modernised, simplified and harmonised. Expect a consultation soon.
• Fixed penalty notices for householders who breach their duty of care will be available from 7 January 2019.
• The EA will strengthen intelligence sharing between organisations, including the police, local authorities, HMRC and the waste industry.
• The ten waste exemptions most identified with illegality will be changed, which will include some being removed altogether such that an environmental permit will be required.
• Written descriptions of waste will be both digital and mandatory.
• A Joint Unit for Waste Crime will be set up, to sit within the EA with input from the waste industry, HMRC and the police. A dedicated disruption team will be set up that will use intelligence to take quick action against waste criminals on the ground. The progress and success of the Unit will be reviewed after approximately 12 months.
• A consultation will be launched on bolstering the EA’s powers further to ensure that it is equipped to deal with the threat of serious and organised gangs.
• An abandoned sites action plan will be developed to help EA staff detect early signs of a site being abandoned.
• £10 million provided to the EA in the Budget will be used to pilot an approach to pay for the landfill tax due form the clearance of certain specific abandoned waste sites.
• There will be a consultation on a financial provision system, proposing that the waste operator make a payment which can subsequently be drawn down if the operator or owner abandons the site.
• DEFRA will work on steps to strengthen sentences, particularly in the Magistrates’ Courts.
• The way in which the EA is resourced to tackle waste crime will be explored, including the proposal that a proportion of Landfill Tax receipts be committed to the EA for the purpose of combating waste crime.

These are exciting developments. Waste crime costs the economy hundreds of millions of pounds every year, irrespective of the social and environmental costs. The strategy gives every impression that significant steps are being taken.

Water Pollution in Song

Last year, we proposed to our readership for a Christmas sing-along the Victorian music hall song “They’re Moving Father’s Grave to Build a Sewer”: see here.

Such was the reception for that Yuletide offering that for 2018 we have scoured our memory banks, records collections, Spotify and YouTube to produce a suggested playlist of songs about water pollution in its various forms. It can fairly be said that songwriters were ahead of the media curve in their treatment of the subject.

A very early adopter of the environmental cause was Tom Lehrer, who in 1960 penned Pollution with its reference to the “hot and cold running crud” pouring forth from the taps in American cities and the annihilation of aquatic wildlife by detergents (near-rhymed with ‘sturgeons’). Following in his footsteps two years later was the estimable Malvina Reynolds (whose further work Little Boxes may be of interest to planning lawyers) with What Have They Done To The Rain, a protest at the entry into cow’s milk via rainfall of Strontium-90 from above-ground nuclear testing and a hit in England for The Searchers in 1964.

Joni Mitchell’s seminal Big Yellow Taxi (1970) was an alliterative complaint about loss of green space and trees to car parking (another one for the planners) but lacked any aqueous theme. The following year R. Dean Taylor made good the omission with Ain’t It A Sad Thing? and its repeated lament of “Down by the river where the river don’t flow”, a line whose first half reappeared the following year as the title of Albert Hammond’s Down By The River, reciting a panoply of problems including a fish kill, trade effluent pollution, reduction in bio-diversity and a dose of E. coli. Readers are recommended to seek out on YouTube the extremely obscure but beautifully-sung version by Sands of Time, although fans of the New Seekers or indeed Mr. Hammond himself can find their versions there too.

Don’t Go Near The Water (Mike Jardine, Al Love) sang the Beach Boys in 1972 (Surfers Against Sewage California-style). So did Johnny Cash in 1974, his different song of the same name being written by his daughter Rosanne. The latter opus is by far the more profound lyrically, a catchment-based water-quality analysis with the depressing conclusion that after passing through the city “the water isn’t water anymore”.

Finally, this one defies description: Twelve Days of Fatberg. Having introduced our readers to it, our work is done. Don’t click on the link whilst eating your Christmas lunch.

But Whilst On The Subject of Song Titles ….

There’s not a whole lotta love lost between Robbie Williams and Jimmy Page these days following something of a communication breakdown. Robbie has just succeeded in obtaining planning permission for a swimming pool basement extension (no doubt accessed by a quite heavenly stairway decorated with angels) at his new place to crash next door to Jimmy’s Grade 1 listed home in Holland Park, despite the latter’s spirited objections, which must be a heartbreaker for him. However Robbie should never forget that he can’t just do what he likes (even though everybody wants to rule the world) and that the grant of planning permission may not be the last word given the decision of the Supreme Court in Coventry v Lawrence in 2014 (in which appeared Six Pump Court’s Stephen Hockman QC and Will Upton). There remains the possibility of a claim in private nuisance should Robbie’s workforce do something stupid and the works produce the feared disturbance to Jimmy’s foundations. It would only take a minute and everything could change and relight the fire of the dispute. When the works are over, let’s hope that Robbie, who’s a bit of a raver, doesn’t want to party like a Russian and employ a loud rock DJ to the annoyance of his neighbour. That should entertain us, but let’s pray it doesn’t happen. Robbie’s a better man than that, certainly not a bully and capable of performing random acts of kindness. Etc. Etc. Etc. (A prize to anyone spotting all the song titles because we’ve lost count …)

Merry Christmas.

We look forward to resuming these updates in 2019 with the next update on Monday 7th January.

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