Environmental Law News Update

February 18, 2019

In this latest Environmental Law News Update, Charles Morgan, Gordon Wignall and William Upton consider the new Rivers Authorities and Land Drainage Bill, de minimis interpretations of environmental permit exemptions and privacy issues relating to high rise buildings.


The spirit of co-operation: the Rivers Authorities and Land Drainage Bill 2019

The Water Resources Act 1963 created ‘river authorities’ in place of the ‘river boards’ constituted under the River Boards Act 1948. Then in their place came the ‘regional water authorities’ constituted under the Water Act 1973. Many of their functions were assumed by the National Rivers Authority created by the Water Act 1989. The NRA turned into part of the Environment Agency in 1996 and the terminology of ‘river(s) authority’ then lay moribund. It has now re-emerged in a rather different context.

The Flood and Water Management Act 2010 created for its specific purposes rather more obscure bodies called ‘lead local flood authorities’ and ‘risk management authorities’, which were simply new titles given to existing public authorities to reflect newly-defined responsibilities. Section 13 imposed upon risk management authorities a duty to co-operate with one another, in response to the lamentable lack of co-ordination with which the various bodies involved in the process of water level management had acted during recent floods.

As part of that process of co-operation the Somerset Rivers Authority came into being after the flooding of the Somerset Levels in 2013-14. It describes itself as a ‘partnership’ of local flood risk management authorities. It has no statutory basis (beyond the above) and no fund-raising powers of its own. It is essentially voluntary and has been successful.

This initiative prompted a private members’ bill which has now reached the Committee stage in the House of Commons: the Rivers Authorities and Land Drainage Bill 2019. Clause 1 provides for the insertion of a new Part 3A into the Flood and Water Management Act 2010 enabling the creation by the Secretary of State, on the initiative of local flood risk management authorities, of ‘rivers authorities’ as bodies corporate with power to raise funds by local precept. The main functions of such bodies will be the preparation and publication of an annual plan of the activities to be carried out by relevant risk management authorities (with a power to ‘plug the gaps’ between individual strategies) and to promote opportunities for co-operation between them.

The Explanatory Notes with the Bill make it clear that one major purpose behind it is to provide the Somerset Rivers Authority with more ‘clout’. It adds that “the government is not currently considering establishing Rivers Authorities in other parts of England” – although that presumably, like the reach of the Bill, extends to Wales too.

The Bill also makes provision for the revision by the Secretary of State of the methods by which internal drainage boards established under the Land Drainage Act 1991 conduct land valuations for the purposes of their charging schemes and further permits information sharing between the IDBs and HMRC.

It is gratifying to note in these interesting times that the spirit of co-operation has reached Parliament itself: the Bill has received cross-party support.


Is a de minimis interpretation of permit exemptions possible?

Is there room for anything other than a strict interpretation of the exemptions contained in the Environment Permitting (England and Wales) Regulations 2016? What happens when the conditions of an exemption are overtaken by contemporary habits and practices?

These were the questions asked by the Court of Appeal in R (CSG) v. Environment Agency (14 February), the Court of Appeal having retained the judicial review application after having granted permission.

The Claimant was aggrieved that, by reason of the presence of 0.04% of material in septic tank sludge which was not expressly permitted by the S4 exemption, the Agency required it to obtain either a fully bespoke permit or one of the larger standard rules permits, at great additional cost. The Claimant had added a grid to the inlet of its storage tanks to extract the additional material (wet wipes and so on, definitely not material which might be used as fertiliser – use of sludge in agriculture being the core of the S4 exemption).

The Claimant did not much like the Agency’s insistence that the Claimant could raise its de minimis argument during any criminal prosecution.

The 2016 Regulations, the conditions attaching to permits and to exemptions, and the terms of the many regulatory position statements, are nothing if not prescriptive. They make up a complete and exclusive system regulating how waste is to be treated. This is the regulator’s (and DEFRA’s) intention.

If there are changes in people’s behaviour which mean that those conditions are not expressly met, then there will inevitably be periods when new exemptions have to be consulted on and drafted. This will take time.

The Court of Appeal sided with the Agency, despite authorities in other regulatory contexts which have said that mandatory compliance can be interpreted to mean substantial compliance. There is no room for any ancillary de minimis treatment in the waste permitting scheme.

Some will think that this approach is unduly prescriptive. As soon as an exemption cannot meet contemporary circumstances, then it will become worthless before there is sufficient time to re-draft the exemption or finalise a new one.

Moreover, this approach will benefit competitors who happen to be able to offer alternative treatments, it is to the disadvantage of SMEs and will add to compliance costs. It is difficult to see where the benefit of the Court of Appeal’s approach lies. It can always ensure, by its enforcement options, that there is no breach of the overarching Article 13 provision in the Waste Framework Directive ensure the protection of the environment and human safety.

So, by this judgment, we have a definitive expression of the basis of the exemption system and indeed of the 2016 Regulations. Any de minimis argument is a matter for the defence of an enforcement action. Should habits and behaviour render the conditions of a current exemption inapplicable, then operators will need to find a new permitted basis for their operations, even though it might require the labour and expense of a full bespoke permit.


Privacy, nuisance and over-sensitivity

The High Court has decided that the unfortunate neighbours to the Tate Modern’s new viewing gallery do not have an actionable case for the invasion of their privacy or in nuisance – see judgment here. The residents were living in new glass-fronted flats, without much in the way of blinds. It was estimated that some 500,000 visitors a year can enjoy a view of their living arrangements and habits.

There is a good discussion in the judgment of the right to privacy, which is a novel cause of action. Part of the claim for it rested on trying to show that the Tate Gallery as a public authority was subject to the Human Rights Act. It was not. But the more important part – and one that succeeded in principle – is that an invasion of privacy can amount to a nuisance.

The weakness of the claimants’ case was that the flats’ design and their way of living in them had created a sensitivity to privacy which is greater than would the case of a less-glass fronted flat. Other architectural designs would have reduced the invasion of privacy to levels which should be tolerated. The court considered that the concept of over-sensitivity remained relevant as part of the ‘give and take’ between neighbours in different locations. In a nutshell, as the defendant submitted:

“… What can reasonably be expected by way of protection from view in an isolated cottage in rural Dorset will be very different from that which can reasonably be expected in a curtainless window by a bus stop, or an uncurtained glass box in a congested sky.

The case does represent something of a perfect storm. There cannot be many public viewing platforms built at the same time as new flats, where the residents’ future privacy gets overlooked (to borrow a phrase) at the planning permission stage. But the case is an example of how careful designers must still be when building high rise. It is not yet known if there will be an appeal.


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