Abstract
As 2017 ended, Brexit and the ‘withdrawal bill’ continued to trouble, frustrate and exercise the minds of all following its technical aspects. The Herculean task of producing a proper withdrawal bill seemed to become ever more apparent when the lawmakers looked to environment law. There was great concern that key principles in environmental law have been omitted deliberately from the UK withdrawal bill (The Guardian, 17 Oct 2017). First, the precautionary principle – which compels those seeking to take action that may harm the environment to prove they will not hurt the environment – as a means of challenge in domestic courts has been omitted from the bill. Second, the ‘polluter pays’ principle has been removed as a basis of challenge in UK Courts. This principle came before the Privy Council this quarter. Lord Carnwath explored the ‘polluter pays’ principle and said: ‘[t]he Polluter Pays Principle […] is now firmly established as a basic principle of international and domestic environmental laws. It is designed to achieve the “internalization of environmental costs”, by ensuring that the costs of pollution control and remediation are borne by those who cause the pollution, and thus reflected in the costs of their goods and services, rather than borne by the community at large’. It has nonetheless been omitted from the bill. Third, the principle of preventative action to avoid damage to the environment has similarly been omitted. These proposed omissions are troubling. It is hoped that prospective claimants and the courts will not be stopped from bringing or grappling with legal challenges seeking to protect the environment.
As 2018 began, the UN Aarhus Convention Compliance Committee asked the UK Government for an explanation (www.unece.org/fileadmin/DAM/env/pp/compliance/C2017-150/Correspondence_with_the_Party_concerned/ToPartyC150_05.01.2018.pdf). The Committee will consider in due course whether the UK is failing in its duties under the Aarhus Convention which governs, among other matters, public participation in decision making and access to justice in environmental matters. The complaint to the Committee was made by Friends of the Earth. The architect of the complaint – William Rundle – explained: ‘The Aarhus Convention requires effective consultation when new laws are being prepared that can significantly affect the environment, such as the EU withdrawal bill. This would have allowed environmental issues to be debated and understood, but also built democratic accountability and public confidence. The current approach by government in conducting Brexit fails to do this; they didn’t even try. Nobody thought Brexit would be easy, but the government cannot ignore its legal obligations or the views of the people’ (The Guardian, 9 Jan 2018). It is hoped that the UN may apply pressure on the government to comply with its obligations whether under the Convention or otherwise.
Lastly, the government has moved to ban the manufacture and sale of rinse off personal care products containing microbeads. This is a welcome move. The ban will come into force in a staged manner.
Update
TRINITY CHAMBERS:
Matthew R. Crowe and Rebecca Settle
Newcastle University
Jennifer Stephens
CASE LAW
INTERNATIONAL CASE LAW
Fishermen & Friends of the Sea v The Minister of Planning, Housing and the Environment (Trinidad and Tobago) [2017] UKPC 37, 27 November 2017
The Privy Council dealt with an appeal concerning the ‘polluter pays principle’. The local regulations concerning the principle, the National Environment Policy: (1) requires charges to be made in respect of applying for a licence or permit to pollute; and (2) directs that money collected will be used to correct environmental damage. The issue on appeal was whether the fixed annual permit fees under the Water Pollution (Fees) (Amendment) Regulations 2001 were unlawfully enacted because they failed to properly consider the ‘polluter pays’ principle (under the National Environment Policy and other instruments). The Court found that the permit fee under the 2006 Regulations was unlawful. The Court proposed to make an order of mandamus directed to the Minister to reconsider on the proper basis the fee to be prescribed and to make amended regulations accordingly.
Petroleum Co of Trinidad and Tobago Ltd v Ryan [2017] UKPC 30
The Privy Council upheld a first instance decision dismissing personal injury claims based on allegations that hydrocarbon emissions from a disused oil well had caused respiratory illnesses. Since no link had been established between the emissions and the damage claimed, it was not possible to apply a flexible approach to causation on policy grounds taking into account public awareness of environmental issues and the responsibilities of polluters.
EU CASE LAW
Commission v Slovakia, Case C-626/16, 11 January 2018
This Advocate General Opinion takes the view that Slovakia failed to fulfil its obligations under the Treaty for the Functioning of the EU. The Court found that Slovakia had not complied with the judgment of the Court of Justice in Case C-331/11 in which the Court found Slovakia to be in breach of Directive 99/31 on the landfill of waste. The Opinion concludes that the Court order to make declarations to this effect, order that Slovakia pay a penalty payment of €3,300 per day of delay in adopting the decision, and for Slovakia to pay the Commission € 600,000.
Case M.8717 – Engie/IPM Energy Trading/International Power Fuel Company, Case M.8717, COMP/M.8717: 2017/C406/04, C406/3, 30 November 2017
The Commission in this matter received notification of a proposed concentration in which Engie SA (France) indirectly acquires sole control of the whole of IPM Energy Trading Ltd and International Power Fuel Company Ltd.
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_8717
DOMESTIC CASE LAW
Environmental Impact
Dover DC v Campaign to Protect Rural England (Kent) [2017] UKSC 79
A local authority appealed against a decision to quash its grant of planning permission on the grounds that the reasons it had given were insufficient. The local authority conceded that its reasons for granting permission had not complied with the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, but argued that the breach could have been remedied by a declaration. The Appeal was dismissed. The Supreme Court set out the extent of the duty on local authorities to give reasons for their decisions to grant planning permissions including where applications involved environmental impact assessments. The Court also explained the legal consequences of a breach of that duty. In the current case the Court held that a declaration that the local authority had not complied with the EIA duty, with reasons to be supplied retrospectively, would not be sufficient. No attempt had been made to formulate reasons since permission was given. The defect in reasons went to the heart of the justification for permission. The only appropriate remedy was quashing the permission.
Climate Change
AL Challis Ltd v British Gas Trading Ltd [2017] EWCA Civ 1972
A company appealed against a decision construing payment provisions under its agreements with the respondent energy supplier (British Gas). The agreement concerned the supply of products to consumers which enabled the energy supplier to obtain carbon credits under the Government’s Carbon Emission Reduction Target scheme. The appellant contended that the judge was wrong both to draw a distinction between the concept of ‘carbon savings’ and ‘carbon credits’, and to hold that the agreements did not cover the credits obtained under the uplift. The appeal was dismissed. The Court held that the company was not entitled to an uplift based on a market transformation uplift available to the energy supplier under the scheme.
Access to Justice
McGurk’s Application for Judicial Review, Re [2017] NIQB 108
The applicant sought Judicial Review of a decision of the Department of Environment for Northern Ireland whereby it granted a consent to discharge to Northern Ireland Water Ltd for a Waste Water Treatment Works. The applicant argued that in granting the consent, the respondent acted in breach of domestic and EU laws including the Water (Northern Ireland) Order 1999, the Habitats Directive and the Human Rights Act. The application was dismissed. The Court was satisfied that the respondent acted legally, rationally and followed proper procedures.
Air Quality
Gladman Developments Ltd v Secretary of State for Communities and Local Government [2017] EWHC 2768 (Admin)
The claimant developer applied to quash a planning inspector’s decision on appeals against refusals of planning permission for 470 dwellings plus 60 extra care units at a site in Kent. The claimant submitted that the inspector had erred in failing to (1) apply the outcome of ClientEarth v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 2740 (Admin), [2017] PTSR 203 in his understanding of the effectiveness of air quality action plans; (2) give effect to the principle in paragraph 122 of the NPPF that the planning system presumed that other schemes of regulatory control were legally effective; (3) explain why application of the DEFRA damage cost analysis and associated contribution was not likely to be effective; (4) consider the imposition of a Grampian condition requiring a higher contribution to the mitigation fund and failed to give the claimant an opportunity to address those issues; (5) explain how the proposal was in conflict with the local air quality action plan when read as a whole; and (6) have regard to the fact that the emerging development plan contained an allocation for 115 dwellings within the Air Quality Management Area. The claim was dismissed. The Court held that the planning inspector had not erred in his decision on grounds of air quality.
Nature Conservation
R (on the application of North Norfolk Planning Watch Ltd) v North Norfolk DC [2017] EWHC 3345
Application for Judicial Review of a decision of North Norfolk District Council to grant planning permission for the demolition of a house at 8 Wiveton Road, Blakeney, Norfolk, and the erection of a modern replacement on the same site. The applicants claimed that the grant of planning permission was unlawful for four reasons: 1. The Council did not have jurisdiction to permit the demolition. 2. The Committee had been provided with insufficient information to enable it to properly consider whether the demolition was justified. 3. Inadequate consideration had been given to the issue of local listing raised by objectors. 4. The Council had failed to consider the preservation or enhancement of the Conservation Area as required by sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990. The claim was dismissed and none of the grounds of challenge were accepted.
Nuisance
Davies v Campfield [2017] EWHC 2746 (Ch)
The defendants appealed a decision that flooding caused to the claimant’s land was a result of the defendants diverting a watercourse flowing through their land. The appeal was dismissed. The Court held that the judge had correctly approached findings of fact relating to the cause of the flood by deciding what the primary facts were and then considering how expert evidence stood against those findings. The Court found that if one expert’s theory fit the facts and the others did not, the judge was entitled to prefer the theory that fit the facts.
Ineos Upstream Ltd v Persons Unknown [2017] EWHC 2945 (Ch)
The claimants applied to continue interim injunctions which had been granted ex parte; the sixth and seventh defendants applied to vary and/or discharge the injunctions. The claimants were fracking operators and the lessors/lessees/freeholders/proprietors of certain sites. The operators had applied for planning permission to commence fracking exploration on those sites. There had been significant protest activity against other fracking operators and sites, some of which was alleged to have involved unlawful acts harmful to operators and third-party contractors. The claimants had successfully applied for ex parte injunctions to prevent future unlawful acts by protestors, including trespass, public nuisance, harassment and conspiracy to injure by unlawful means. The Court continued the injunctions restraining the protests, holding that the risk of interference with the operators’ rights was real and imminent enough to justify the injunctions.
Southampton City Council v Odysseas Ltd (unreported)
The local authority appealed by way of case stated against a decision of the Crown Court that it had to pay the respondent’s costs following proceedings involving a noise abatement notice. The local authority submitted that (1) there was a distinction between a public authority exercising a discretionary power and a public authority complying with a mandatory statutory duty as in the instant case; (2) in statutory duty cases, the test for reasonableness should not be assessed within the wisdom of hindsight; (3) it was only in exceptional circumstances that the public interest would be outweighed by financial prejudice to an otherwise successful appellant. The appeal was dismissed. The Court held that the Crown Court had been entitled to order the local authority to pay the respondent’s costs even though it was purporting to comply with a statutory duty when issuing an abatement notice. The local authority had behaved unreasonably in issuing the notice before investigating the nuisance or warning the respondent about it.
MISCELLANEOUS
Habitats and Biodiversity
EU Leads the Way with Ambitious Action for Cleaner and Safer Seas
The European Commission issued a press released detailing that at the EU-hosted Our Ocean Conference in Malta (on 5–6 October 2017), the European Union committed to 36 tangible actions to foster healthier, cleaner, safer and more secure seas.
England Natural Environment Indicators
On 2 November 2017, Defra published a reporting detailing the indicators developed to assess progress against the Natural Environment White Paper, published in 2011 under the 2010 to 2015 Coalition Government.
www.gov.uk/government/statistics/england-natural-environment-indicators
European Integrated Maritime Policy: Commission Decides to Refer Bulgaria, Finland and Greece to the Court
On 7 December 2017, the European Commission announced its decision to refer Bulgaria, Finland and Greece to the Court of Justice of the EU for not notifying or partially notifying its measures transposing EU rules establishing a framework for maritime spatial planning (Directive 2014/89/EU). Member States had to transpose the directive into national law by 18 September 2016.
Emissions
Commission Welcomes Agreement on Key Legislation to Tackle Climate Change
On 14 December 2017, the European Commission released a statement detailing the reaching of a provisional agreement by the European Parliament and Council on a key legislative proposal for implementing the EU’s 2030 climate objectives – on accounting of emissions from land use, land use change and forestry (LULUCF).
http://europa.eu/rapid/press-release_STATEMENT-17-5286_en.htm
Commission Welcomes Ambitious Agreement on Key Legislation to Cut Down Greenhouse Gas Emissions
On 21 December 2017, the European Commission released a statement detailing the reaching of a provisional agreement by the European Parliament and Council on the effort sharing regulation – a major Commission proposal for implementing the EU’s 2030 climate target.
http://europa.eu/rapid/press-release_STATEMENT-17-5382_en.htm
Waste
Fly Tipping Incidents and Actions Taken in England
In October 2017, Defra published the latest annual figures on fly tipping incidents and actions taken by local councils.
See both: www.gov.uk/government/statistical-data-sets/env24-fly-tipping-incidents-and-actions-taken-in-england and www.gov.uk/government/statistics/fly-tipping-in-england
Global Commitment at United Nations Assembly to Reduce Pollution
The UK is one of a number of nations to sign a resolution to help reduce the amount of plastic in the world’s seas. In December 2017, UN Member States agreed to work together to tackle this problem by reducing the amount of plastic and litter in the world’s oceans.
www.gov.uk/government/news/global-commitment-at-united-nations-assembly-to-reduce-pollution
Other
UK Ratifies New Agreement to Tackle Global Warming
On 14 November 2017, the UK became one of the first nations to ratify a landmark agreement that will play a major role in preventing global warming by reducing emissions from appliances such as air conditioning units and refrigerators. The Kigali amendment to the UN Montreal Protocol commits nations to reducing hydrofluorocarbon greenhouse gases (HFCs) by 85 per cent between 2019 and 2036.
www.gov.uk/government/news/uk-ratifies-new-agreement-to-tackle-global-warming
Agricultural Statistics and Climate Change
On 22 November 2017, DEFRA published agricultural statistics for England as they relate to climate change.
www.gov.uk/government/statistics/agricultural-statistics-and-climate-change
Prime Minister launches 25-year Environment Plan
On 10 January 2018, the Prime Minister launched a plan outlining steps for a cleaner, greener UK.
www.gov.uk/government/news/prime-minister-launches-25-year-environment-plan
New York to sue oil companies over global warming
This article by Robin Pagnamenta published on 10 January 2018 in The Times reports that BP, Royal Dutch Shell, Chevron, Conoco Phillips and Exxon Mobil are to face a damages claim worth billions of dollars from New York City (NYC), which claims that the companies have contributed to global warming.
www.thetimes.co.uk/article/oil-firms-face-global-warming-lawsuit-bl7fc9xf9
Nuclear Safeguards Bill 2017–2019: ‘Keeling’ schedule
This document published on 11 January 2018 from the Department for Business, Energy and Industrial Strategy shows changes to the Energy Act 2013, arising as a result of the Nuclear Safeguards Bill 2017.
www.gov.uk/government/uploads/system/uploads/attachment_data/file/673070/Energy_Act_2013_Part_3_-_Nuclear_Safeguards_Bill_Keeling_.pdf and www.gov.uk/government/publications/nuclear-safeguards-bill-factsheets
Directions to the Oil and Gas Authority in the exercise of its powers to grant completion work approval
On 30 November 2017, the Department for Business, Energy and Industrial Strategy published a Direction mandating that the Oil and Gas Authority must consult with it concerning onshore hydraulic fracturing operations.