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Articles 25th Apr 2017

Environmental Bulletin: Spring 2017

Environmental Bulletin: Spring 2017

Introduction

We are the Freeths’ Environment team, part of Freeths’ Planning and Environment Group. We are a strong team of environmental lawyers, using our experience and expertise to advise both public and private sector clients across a wide range of environmental matters including protected species and habitats, environmental permitting, waste, planning issues/Environmental Impact Assessment, contaminated land, corporate and real estate transactions and environmental crime defence.

In this edition we:

    • Explain the new “growth duty” applicable to regulators in England;

Habitats Regulations Assessments and Air Quality: Wealden District Council v Secretary of State for Communities and Local Government, Lewes District Council and South Downs National Park Authority [2017] EWHC 35 1

Summary

A High Court decision on 20 March 2017 has rocked the world of Air Quality and Habitats Regulations Assessments.

The decision has severely criticised the advice that Natural England (“NE”) (and by analogy others eg the Environment Agency) has been giving about there being no need to carry out an express “in combination assessment” in relation to plans and projects which, alone, have air quality impacts falling below a particular threshold. The result is that there is now a real question mark over the correct approach to assessment of plans or projects which, alone, are predicted to have only very small air quality impacts.

We believe, however, that there will still be projects and plans whose air quality impacts, whilst not entirely neutral, are so tiny as to mean that their emissions are not actually measurable or, even if they are, their effects on a SAC or SPA are imperceptible / not measurable so that, alone, significant effects are not likely. In such cases no “combined” impact with other plans or projects is likely and so no express in combination assessment would be required when assessing likely significant effects.

We believe that a greater level of expert evidence will need to be provided in future cases to establish where this threshold is in any one case and that simple reliance on a standard threshold, as has been the case to date, is unlikely to be acceptable. Further guidance from NE, in response to the case, is awaited.

The judgment in Wealden

A High Court judgment was handed down by Mr Justice Jay on 20 March 2017 in the case of Wealden District Council v Secretary of State for Communities and Local Government, Lewes District Council and South Downs National Park Authority [2017] EWHC 351.

The judgment relates to a challenge, brought by Wealden District Council (“WDC”), of the Joint Core Strategy 2010-2030 prepared by Lewes District Council (“LDC”) and South Downs National Park Authority (“SDNPA”) and adopted by LDC and SDNPA on 11 May 2016 and 23 June 2016 respectively.

The challenge relates to the manner in which LDC and SDNPA assessed the impacts of the Joint Core Strategy (“JCS”) on the Ashdown Forest Special Area of Conservation (“SAC”) which is designated pursuant to the Habitats Directive 92/43/EEC. The SAC is sensitive to nitrogen dioxide pollution from traffic.

In essence the judgement criticised the “plainly erroneous” advice provided by Natural England to LDC and SDNPA relating to the application of a threshold at the “screening” stage of the legislative “Habitats Regulations Assessment” regime. Due to this erroneous advice, which was “Wednesbury” unreasonable, the judge has quashed certain policies adopted in the JCS.

The Conservation of Habitats and Species Regulations 2010 set out the Habitats Regulations Assessment regime. They require that, where a plan or project is “likely to have a significant effect on any European site either alone or in combination with other plans or projects” then an appropriate assessment is required.

NE had advised that if the JCS would give rise to an expected increase in traffic (Annual Average Daily Traffic (“AADT”) flows) of less than 1,000 cars per day or 200 HGVs per day; or if the JCS would give rise to less than a 1% increase in traffic compared to that predicted at the end of the Core Strategy period, then it would have no likely significant effect on the SAC and no appropriate assessment would be required.

The JCS was predicted to give rise to 190 AADT on the A26 road (close to the SAC) and so, based on NE’s advice, it was concluded that it would not be likely to have a significant effect on the SAC.

This, however, ignored the fact that a neighbouring plan (the previously adopted Wealden Core Strategy) had also predicted traffic impacts on the same A26 road, with a predicted AADT of 950. The judge ruled that, in assessing the JCS, the traffic impacts of both plans should have been combined when applying the 1000 AADT screening threshold. If they had been combined in the assessment, this screening threshold would have been exceeded and an appropriate assessment would have been necessary.

The judge told NE to re-think its advice.

Comment on the judgment

It might be said that this judgement means that every single plan or project which, alone, is predicted to give rise to any increase in traffic or other air emission (however small) must be subjected to an in combination assessment with other plans or projects (which would include those plans or projects with a similar tiny impact).

This would be marked change from the position up until Wealden, where a plan or project has (in accordance with NE and EA advice) been assumed not to need an express in combination assessment where the project or plan alone falls below a certain threshold.

However we do not believe that this judgment should be taken this way:

  • There is no suggestion from the judgment that a “threshold approach” to assessing “likely significant effects” is unacceptable. On the contrary the judge states at paragraph 53 of the judgment “Competent authorities are quite entitled to use threshold levels and values to eliminate from further consideration de minimis environmental impacts which, on scientific evidence, fall short of engendering any relevant risk”. Therefore we would suggest that reliance on existing thresholds, in the context of a Habitats Regulations Assessment, should continue.
  • In addition there are in our view 3 key questions to consider:
    1. is your plan or project putting emissions into the air?;
    2. if so, are those emissions at a level where they could actually be measured / perceived?; and
    3. if so, is there a realistic (rather than hypothetical) risk that those emissions, alone, will have an adverse effect on the ecology of a SAC / SPA?
  • In our view there will still be plans or projects whose air emissions, whilst not neutral, will alone be so tiny as not to be measurable / perceptible or which will not have a realistic, appreciable effect on a SAC / SPA. For these the risk of a significant adverse effect in combination with other plans or projects is therefore also simply not realistic. For these plans or projects we would say that there is still no need for a detailed “in combination assessment”.
  • The following comments from the judge would appear to support our approach:
    • The judge himself reminds us in his judgement (paragraph 50) of the views of Advocate-General Sharpston in the Court of Justice of the European Union Sweetman case (at paragraph 48):“The requirement that the effect in question be “significant” lays down a de minimis threshold. Plans or projects that have no appreciable effect on the site are thereby excluded. If all plans or projects capable of having any effect whatsoever on the site were to be caught…….activities on or near the site would risk being impossible by reason of legislative overkill”.
    • The judge also made the following comment, distinguishing the facts before him from other more minor projects / scenarios:“On the facts of the instant case, it is not a question of a couple of minor developments or projects being sought to be taken in combination, but a Core Strategy [ie the Wealden Core Strategy] covering a twenty-year period which has already assessed the impact of additional traffic flows on an SAC within its borders….” (paragraph 92)“I should return to the AECOM Memo referred to under paragraph 64 above. It refers to correspondence with AQTAG in March 2015 which has not been made available. AECOM assert that AQTAG has always drawn a distinction between, I paraphrase, minuscule effects which can be ignored, even in combination, and effects which are capable of being non-neutral, once combined. I can discern no explicit or implied reference to that distinction in anything I have been shown. In any event, an AADT of 950 is not minuscule. Even so, I can well see that distinctions may be capable of being drawn in practice, because if it is known that specific impacts are very low indeed, or are likely to be such, these can properly be ignored (e.g. if each AADT were known to be 20, it would require 50 of these to attain the threshold: depending on the precise facts, a reasonable planning judgment could be made that 50 plans or projects is inherently unlikely)” (paragraph 95)

      “The advice that in-combination effects are somehow catered for by the 1,000 AADT threshold lacks coherence, particularly in a situation where both figures are known – and one of them is already close to the margin” [ie this is a reference to the Wealden Core Strategy AADT being close to 1000 AADT] (paragraph 109)

The facts before the judge in the Wealden case were, apparently, not in the “not appreciable” category of impact; or perhaps (alternatively) insufficient technical evidence was provided to the judge in the case to persuade him that the plan’s 190 AADT impacts were, as a matter of technical measurement, not perceptible. It is not clear from the judgement whether anyone actually presented details of the levels of emissions that 190 AADT would actually create. In the absence of such information, one can see very well why the judge would have come to this view. The key finding of the judgment was instead that the Wealden Core Strategy, with a predicted 950 AADT on the A26 (ie almost meeting the 1000 AADT threshold alone), could not logically or reasonably be ignored, when considering the predicted 190 AADT impact on the same road from the JCS. In this sense, one could say that this case presented an extreme set of facts.

We believe that more careful presentation / analysis of the three key questions above will be needed in the future to discern which plans and project are those where a detailed “in combination” assessment is required. Furthermore a “one size fits all” threshold of 1000 AADT or 1% may not be an appropriate approach without fuller justification.

It is essential that NE (and the EA) re-issues its advice as soon as possible in response to this case.

The Court of Appeal refuses to allow dual regulation of environmental permitting by local authorities and the Environment Agency

Overview

The Court of Appeal has held in R v Recycled Materials Supplies Ltd [2017] EWCA Crim 58 that the local authority, the London Borough of Newham (“LBN”), did not have the power to issue an environmental permit to a waste operator where the operator’s activities were under the regulatory function of the EA. The decision provides clarity for waste operators on the regulatory functions of both the EA and local authorities.

Facts

Recycled Materials Supplies Ltd (“RMS”) specialises in the crushing and recovery of construction and demolition waste to produce aggregates, which they then sell back to the construction industry. They operate a large site in East London called Sunshine Wharf, where materials are brought to be processed including, but not limited to, bricks, tiles and concrete.

RMS’s operation at Sunshine Wharf had the benefit of two environmental permits, one issued by LBN on 1 February 2014 and the other issued by the EA on 15 January 2014. LBN’s permit authorised RMS to operate three specified items of “mobile plant” and to carry out crushing, grinding and screening of bricks, tiles and concrete. Condition 6.3 of LBN’s permit provided that:

“All vehicles transporting materials under 75mm (including wastes) or finished products shall be totally enclosed as soon as possible after loading and before leaving the installation.”

In contrast, the environmental permit issued by the EA allowed RMS to treat a maximum of 75,000 tonnes of waste per year. The types of waste permitted included concrete, bricks and tiles as well as other materials which did not fall within the scope of LBN’s permit. Therefore, in order to carry out all of its activities at Sunshine Wharf, RMS needed the permit from the EA, and the scope of the permit from the EA was broad enough to cover all the activities at Sunshine Wharf.

On two occasions in January / February 2014, lorries containing aggregates were observed leaving Sunshine Wharf without being fully enclosed. On one lorry the sheeting was ripped, whereas the other lorry was unsheeted. Consequently, LBN prosecuted RMS for breaches of their permit. RMS was sentenced on two counts and fined £2,250 which also led to their being in breach of a two year conditional discharge for similar offences. RMS was granted leave to appeal the decision on four grounds.

Grounds of Appeal

RMS made the following arguments:

  1. There could not be dual regulation of the same activity by both LBN and the EA. Since the EA’s permit governed RMS’s activities at Sunshine Wharf, LBN’s permit was invalid.
  2. RMS’s activities involved crushing more than just tiles, bricks and concrete. LBN’s permit only covered these three materials and therefore, LBN did not have any jurisdiction to regulate RMS’s activities concerning other materials.
  3. Condition 6.3 of LBN’s permit (requiring all vehicles to be totally enclosed) did not reasonably relate to the purpose for which the permit was granted and therefore it was invalid.
  4. If the plant and machinery at Sunshine Wharf was mobile plant, then it was waste mobile plant under the definition of Regulation 2 of the Environmental Permitting (England and Wales) Regulations 2010 (“Regulations”) and therefore, regulated by the EA, not LBN.

In relation to Ground 1, regulations 32 and 33 of the Regulations provide that activities covered by regulation 32 are to be regulated by the local authority, whereas those falling under regulation 33 are to be regulated by the EA. As a result, LBN was responsible for Part A(2) activities and Part B activities, with the EA being responsible for Part A(1) activities and waste operations unless the waste operation is a Part B activity under the Regulations. On the facts, the Court of Appeal held that it was “quite impossible to view what was being done at Sunshine Wharf as a Part B activity”, given that the operations at Sunshine Wharf covered multiple types of waste, and therefore, LBN did not have the power to issue the environmental permit.

The appeal was also allowed on Grounds 2 and 4, although consideration of Ground 3 was not deemed necessary given that the Court of Appeal had ruled that LBN did not have jurisdiction to issue the environmental permit.

Caution for local authorities

The RMS case raises key points about the respective capacities of local authorities and the EA to grant environmental permits. The Court of Appeal confirmed that, generally speaking, more serious and potentially more harmful activities should be regulated by the EA, whereas less complex or less polluting activities should be left to the local authority to manage.

The Court of Appeal also dispelled any argument that the same waste activities could be regulated by both the local authority and the EA under the Regulations. Local authorities must be careful to ensure that any environmental permits which they issue are granted in accordance with the Regulations, and take extra care where the waste operator’s activities are complex or likely to cause significant pollution effects. In addition, where mobile plant is used on a site with an existing environmental permit, the regulators need to be clear about the regulatory requirements where there is an inconsistency between the two permits.

Permission in principle and brownfield registers

On 16 April 2017, the Town and Country Planning (Brownfield Land Register) Regulations 2017 came into force. These Regulations require every local planning authority (“LPA”) to prepare, publish and maintain a register of all brownfield land suitable for housing in their respective areas by 31 December 2017. The land must be at least 0.25ha or capable of supporting at least 5 dwellings. Unless specific exemptions apply, the land on the brownfield register will then be automatically granted “permission in principle” by a development order. Permission in principle (“PIP”) comes into force with effect from 15 April 2017 under the Town and Country Planning (Permission in Principle) Order 2017.

The aim of PIP is to enable the government to meet its commitment to providing more affordable housing, thereby giving more people the opportunity to own their own homes. PIP applies in respect of “housing-led” development of land, where the provision of housing is the main purpose of the development. It is worth noting that obtaining PIP does not by itself enable the land to be developed. After the grant of PIP, an applicant must then apply for technical details consent in order to obtain the equivalent of a full planning permission and be able to commence development. However, PIP does establish the principle of housing development of a particular scale on the site.

PIP is granted by a development order in respect of land which is contained in a “qualifying document”, and the permission takes effect when that qualifying document takes effect. A qualifying document may be a local / neighbourhood plan (though the order for this is yet to be published) or a brownfield register. Once PIP has been granted by a development order, it will expire within five years (unless a LPA directs otherwise). Alternatively, PIP can be granted by the LPA on application (eg for minor development), in which case it will expire within three years.

The Government hopes that the introduction of PIP and brownfield registers will provide the following benefits:

  1. Help to make the planning system more certain and efficient;
  2. Potentially increase the number of suitable sites for the development of housing;
  3. Reduce development risk for smaller sites; and
  4. Encourage the remediation of contaminated sites through development.

The need for the remediation of contaminated sites is particularly pertinent, as the central Government funding for the designation and remediation of contaminated land in England by local authorities under the contaminated land regime[1] ceased on 1 April 2017. This will make it very hard for local authorities to proactively identify and remediate contaminated sites because of constrained resources. Therefore most contaminated sites are unlikely to be cleaned up except through development.

Consultation response

The government conducted a technical consultation on the implementation of the planning changes for PIP and brownfield registers in early 2016. The consultation responses published in March 2017 raised concerns about whether the processes would be rigorous enough and whether the role of brownfield registers “should be to promote sites rather than as a vehicle to grant permission in principle”. Further comment was made that, rather than introducing the PIP regime, existing aspects of the planning system could be adapted to create a more efficient process, particularly the outline planning permission and reserved matters process, pre-application service and the use of permitted development rights. Nonetheless, the system has been implemented largely as proposed.

Exemptions

We mentioned above that certain land which is on the brownfield register must not be granted PIP. This is to deal with potential legal problems caused by LPAs granting consent for development for projects without necessary consideration of environmental impacts.

So, any development which would fall within Schedule 1 of the EIA Regulations [2], where an Environmental Impact Assessment is mandatory, may not be granted PIP through its inclusion in a brownfield register. Similarly, where development falls within Schedule 2 of the EIA Regulations (ie sites that are likely to have significant effects on the environment), PIP may only be granted where the LPA has obtained sufficient information to screen the project and determine that, as a result of that process, an Environmental Impact Assessment is not necessary. In addition, sites may not be granted PIP where they are likely to have significant effect (either alone or in combination with other projects) on a European Site designated under the EU Habitats Directive [3] or EU Birds Directive [4].

Delivery of housing on brownfield sites

So will the brownfield registers combined with the PIP regime lead to a step change in brownfield housing redevelopment?

The Government have stated that the guidance to support the introduction of brownfield registers and PIP will be published in June 2017 and this may provide more useful details on how the system will work in practice. However, based on the statutory regime in force to date, whilst there may be specific situations where PIP will help developer and investor confidence in a particular site, it is difficult to see how the changes will lead to significant changes for development on brownfield sites. In particular, most of the land on the brownfield registers which is suitable for housing is likely to have already been allocated for housing through local plans, so it’s unlikely to identify large areas of new development land. However, securing PIP may give developer and investor confidence for some more marginal sites.

In terms of addressing the housing need, it is the larger housing developments which will provide the greatest assistance to addressing the UK’s housing shortage. As larger schemes are more likely to have significant effects on the environment, whether this is during the construction phase or, for example, through increased traffic or pollution caused by residents, PIP is likely to be of limited assistance because of the exemptions set out above for EIA developments.

Nonetheless, the new PIP regime coupled with the brownfield registers may be a useful additional tool for developers for certain sites.

_________________________

[1] Set out in Part IIA Environmental Protection Act 1990

[2] Town and Country Planning (Environmental Impact Assessment) Regulations 2011

[3] Council Directive 92/43/EEC

[4] Directive 2009/147/EC

New “growth duty” for regulators

Summary

On 29 March 2017, the “Growth Duty” came into force under the Deregulation Act 2015 (“DA 2015”). It is found in section 108 of the DA 2015 and it requires all national regulators in England, including the Environment Agency, Natural England, the Health and Safety Executive, to “have regard to the desirability of promoting economic growth” when exercising regulatory functions.

In full, section 108 (1) and (2) state that:

  1. “ A person exercising a regulatory function to which this section applies must, in the exercise of the function, have regard to the desirability of promoting economic growth.
  2. In performing the duty under sub-section (1), the person must, in particular, consider the importance for the promotion of economic growth of exercising the regulatory function in a way which ensures that:

(a) regulatory action is taken only when it is needed; and

(b) any action taken is proportionate”.

A “regulatory function” under section 108 of the Deregulation Act 2015 is effectively any function up to and including the decision to refer a case to a prosecutor to review whether criminal proceedings should be instigated. Actual decisions to institute criminal proceedings and the conduct of criminal proceedings are excluded from the growth duty.

Statutory guidance on this has also been published (dated March 2017) entitled “Growth Duty: Statutory Guidance – Statutory Guidance under section 110(6) of the DA 2015”[5] . Under section 110(3) of the 2015 Act, all those exercising the regulatory functions to which the growth duty applies must have regard to this guidance. The statutory guidance says (paragraph 1.12) that this means that “regulators must consider the provisions of the statutory guidance and give them due weight in determining how they will exercise their regulatory functions. They are not bound to follow a provision of the statutory guidance in a particular case if they properly conclude that the provision is either not relevant or is outweighed by other considerations. However, the reasons for such a conclusion should be recorded”.

Why is this of interest?

Based on the statutory guidance, it is expected that the new growth duty will provide regulators with the opportunity to develop better relationships with the business community and encourage them to understand the business environment, which includes:

  1. considering how to minimise burdens on business productivity;
  2. taking action which is proportionate; and
  3. demonstrating how they have shown regard for the growth duty.

What does this means for businesses?

Based on the statutory guidance regulators must understand the likely impact of their actions on businesses that they regulate, particularly in respect of growth and take a proportionate risk-based approach in their day-to-day activities. They must ensure that they only act where needed and consider the effect which any action they take may have on the business environment / business community.

Since regulators are now required to take only proportionate action and keep records of their decisions (including the reasons for those decisions) in the interests of transparency, this enables the business community to hold the regulator accountable for any decision which they take. The reasons given by regulators should have regard to the desirability of economic growth and they should show how they have considered the provisions contained in the statutory guidance. If a business is of the opinion that the regulator has not taken into consideration all of the relevant factors, they would be able to ask for a copy of that decision to be provided to them.

What does this means for Regulators?

Regulators must now consider the growth duty before allocating their resources, setting enforcement policies and imposing sanctions.

The statutory guidance will assist regulators in discharging their responsibilities under the growth duty but it does not legitimise non-compliance and the purpose of the duty is not to pursue economic growth at the expense of providing the necessary protections. It is worth noting that regulators are not bound to follow a provision of the guidance in a case if they feel that it is either not relevant or is outweighed by other relevant considerations. However, regulators must record their decisions and the reasons for them in order


The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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