Environmental Bulletin - Spring 2018

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 consider:



A recent decision by the Court of Justice of the European Union ("CJEU") People Over Wind and Sweetman v Coillte Teoranta (C-323/17) means that measures intended to avoid or reduce the harmful effects of a proposed project on a European site may no longer be taken into account by competent authorities at the Habitat Regulations Assessment ("HRA") "screening stage" when judging whether a proposed plan or project is likely to have a significant effect on the integrity of a European designated site.


Background to the case

The dispute before the CJEU concerned the assessment of the potential effects that the laying of the cable by Coillte Teoranta ("Coillte"), a company owned by the Irish State, to connect a wind farm to the electricity grid could have on two Special Areas of Conservation, one of which is that of the River Barrow and River Nore (Ireland). That river constitutes a habitat for the Irish subspecies of the freshwater pearl mussel (margaritifera durrovensis; ‘the Nore pearl mussel'), which is included in Annex II to the Habitats Directive. According to the domestic court, it was apparent from recent monitoring surveys that this species is threatened with extinction, on account of the high level of sedimentation of the bed of the River Nore (to which the species is particularly vulnerable). Under Irish law, certain "exempted development" projects (which would include the laying of underground mains, pipes, cables or other apparatus by an authorised undertaker to provide an electricity service) would not require planning consent under the Planning and Development Acts unless an appropriate assessment under Article 6(3) of the Habitats Directive is required.

Coillte, as a public authority, instructed consultants to prepare a HRA screening report to determine whether it was necessary to carry out an appropriate assessment. The screening report conceded that in the absence of protective measures there was the potential for release of suspended solids into waterbodies along the cable route including directional drilling. Coillte subsequently concluded that no appropriate assessment was required (and as such, no planning consent would be required) in light of recommendations drawn up based on the screening report, which took into account "protective measures": "As set out in detail in the ... appropriate assessment screening report, on the basis of the findings that the report and in light of the best scientific knowledge, the grid connection works will not have a significant effect on the relevant European sites in light of the conservation objectives of the European sites, alone or in combination with the Cullenagh wind farm and other plans or projects, and an appropriate assessment is not required. This conclusion was reached on the basis of the distance between the proposed Cullenagh grid connection and the European sites, and the protective measures that have been built into work design of the project."


"Protective measures" were regarded by the CJEU as "measures that are intended to avoid or reduce the harmful effects of the envisaged project on the site concerned". It seems, though it is not entirely clear, that the protective measures consisted of a construction methodology to control surface run-off into watercourses. The case was subsequently referred to the CJEU by the High Court (Ireland) for a preliminary ruling on "whether, or in what circumstances, mitigation measures can be considered when carrying out screening for appropriate assessment under Article 6(3) of the Habitats Directive".


The legal regime

Competent authorities (often Local Planning Authorities) are required to undertake a HRA where proposed plans or projects relate to conservation sites which have been selected and designated on scientific criteria under European law to protect certain species and habitats under the following network of areas:

  • Special Protection Areas ("SPAs") which are sites classified in accordance with Article 4 of the EC Birds Directive for certain rare and vulnerable birds, and for regularly occurring migratory species;[1]
  • Special Areas of Conservation ("SACs") which are designated under the EC Habitats Directive to protect high quality conservation sites that will make a significant contribution to conserving 189 habitat types and 788 species identified in Annexes I and II of the Directive.[2] The listed habitat types and species are those considered to be most in need of conservation at a European level (excluding birds).[3]


The HRA comprises several distinct stages.[4] The first stage of the HRA process includes formally screening a proposed plan or project to decide whether it is likely to have a significant effect on a European designated site. If, at the screening stage, any significant effects of a plan or project on a SPA or SAC (alone or in combination with other plans or projects) can be excluded, then the plan or project can be "screened out" and no further assessment is required. However, where any significant effect of a plan or project on a SPA or SAC (alone or in combination with other plans or projects) cannot be excluded, then the competent authority will be required to assess the effects in more detail through an appropriate assessment, to ascertain whether an adverse effect on the integrity of any SPA or SAC can be ruled out. Where such an adverse effect on the site cannot be ruled out (alone or in combination with other plans or projects), and no alternative solutions can be identified, then the project can only then proceed if there are imperative reasons of over-riding public interest and if the necessary compensatory measures can be secured.


Outcome of the recent CJEU decision

The CJEU reached the following conclusion in relation to "measures which avoid or reduce the harmful effects of a plan or project": "In the light of all the foregoing considerations, the answer to the question referred is that Article 6(3) of the Habitats Directive must be interpreted as meaning that, in order to determine whether it is necessary to carry out, subsequently, an appropriate assessment of the implications, for a site concerned, of a plan or project, it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects of the plan or project on that site" (paragraph 40).

Importantly, the CJEU pointed out that "taking account of such [avoidance / reduction] measures at the screening stage would be liable to compromise the practical effect of the Habitats Directive in general, and the assessment stage in particular, as the latter stage would be deprived of its purpose and there would be a risk of circumvention of that stage, which constitutes, however, an essential safeguard provided for by the directive" (paragraph 37).

The case will now return to the Irish High Court for final disposal.


Implications of the case

It is clear from the case that the CJEU sees a distinction between "the plan or project" itself and "measures intended to avoid or reduce the harmful effects of a plan or project on a European site". The key challenge arising from this case is knowing where exactly that distinction lies in future scenarios. Where, in any one case, is a particular "facet" of a "project" (to use an innocuous / neutral term) properly to be regarded as an integral part of the project (so that it is relevant to making an assessment of likely significant effect) and where is it "intended to avoid or reduce the harmful effects of a plan or project on a European site" (so that, according to the CJEU judgment, it is not relevant to making an assessment of likely significant effect)? Understanding this distinction is now necessary to be able to apply this case to scenarios in the future.

In the case before the CJEU, the "measures intended to avoid or reduce the harmful effects of a plan or project on a European site" were the measures to prevent sediment from the cable works entering watercourses which may then lead to the River Nore SAC and harm the mussels. It follows then that the cable works were regarded as "the project". When identifying this distinction in future cases it is helpful to consider the exact words used by the CJEU ie "measures intended to avoid or reduce the harmful effects of a plan or project on a European site". So a starting point might be: What is the true primary purpose of / intention behind a particular facet of a project? Is it to protect European sites from the project? Or is it to advance the central purpose of the project? A related question might be "would the particular facet of the project have been provided in any event, even if there were no European site to be concerned with?" It does seem that this CJEU decision is a departure from the (until now) important domestic judgment of Sullivan J in the case of "Dilly Lane" (R on the application of Hart DC) v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin)).In the Dilly Lane case, Sullivan J ruled that mitigation measures that were "incorporated into the project" or which "formed part of the project" could properly be taken into account at the screening "likely significant effect" test stage of HRA (as long as they were effective). In that case the measure in question was the provision of a Suitable Alternative Natural Greenspace (SANG) so as to divert housing-development residents away from the nearby SPA. The SANG in that case was therefore in truth an avoidance (not a reduction) measure.


It seems that the difference between Sullivan in Hart and the CJEU in People Over Wind and Sweetman (2018) is in the interpretation and application of the word "project":

  • Sullivan J accepted that certain facets of a project, which are intended to avoid or reduce negative impacts on a European site, can still be regarded as "incorporated into the project" if they are promoted that way by the developer;

whereas ...

  • The CJEU appears to consider that measures intended to avoid or reduce impacts on a European site cannot at the same time be regarded as part of the "project".

Therefore, following this CJEU decision, it would appear that, since a proposed off-site SANG is a facet of a project specifically designed / intended to avoid recreational pressure of a housing development on a European site, it could not be relevant to the HRA "likely significant effect" test. However the matter gets more complex / difficult with facets of a development which might be said to have more than one purpose. Take, for example, an on-site SANG ie dog-walking areas within / around a proposed housing development. Is the green space within an on-site SANG designed specifically to protect European sites, or is it designed to make the housing development more attractive to new homeowners?

Would the greenspace be provided within the development in any event? If it would, then one can see that it may well be argued that such an on-site SANG is not a measure "intended to avoid or reduce the harmful effects of a plan or project on a European site", even if it will have that avoidance or reduction effect as a "by-product", and so should still be regarded as integral part of the project.

Another tricky example would be a stack associated with a factory through which fumes are discharged to the atmosphere. Its primary function / the intention behind it may well be to discharge the fumes high into the atmosphere for general environmental protection reasons, as well as for SPA / SAC protection reasons. Is this an integral part of the project or is it "intended to avoid or reduce the harmful effects of a plan or project on a European site"?

And is it relevant that the stack is included so as to prevent general environmental health problems as well as European site damage? The answer to this second question may be "no" since the People Over Wind and Sweetman case considered anti-water pollution protective measures which would clearly serve to protect all watercourses, not just the River Nore SAC, and yet the CJEU still considered those measures to be "intended to avoid or reduce the harmful effects of a plan or project on a European site". As can be seen, the CJEU's judgment is likely to cause some difficulties in interpretation.

This judgment marks a clear distinction between the Habitats Directive regime and the EIA regime, which is interesting since the CJEU has previously been keen to draw parallels between the two regimes. Under the recently implemented 2014 EIA Directive, it is made absolutely clear (in the wording of the Directive) (in contrast to People Over Wind and Sweetman (2018)) that (i) avoidance and prevention measures (but not reduction or offsetting measures) can be taken into account at the EIA screening stage; whereas (ii) reduction and offsetting measures may only be taken into account following the screening stage, at the Environmental Statement stage. For the avoidance of doubt, the CJEU has confirmed previously in Briels that protective measures forming part of that project aimed at avoiding or reducing any direct adverse effects for the site can be relied upon at the appropriate assessment stage of the HRA process, in order to conclude that a project does not adversely affect the integrity of the European site. By contrast protective measures provided for in a project which are aimed at compensating for the negative effects of the project on a Natura 2000 site cannot be relied upon at the appropriate assessment stage of the HRA process.




In a nutshell...

Freeths LLP has been advising on the launch of a new Great Crested Newt licensing scheme in the South Midlands region of England. The scheme allows development to progress more quickly and with fewer Great Crested Newt ("GCN") obstacles than has hitherto been possible. Natural England ("NE") has issued 7 new GCN "district licences" to 7 different local authorities in the South Midlands region. This means that, if a developer so chooses, development which could harm GCN in these areas can now be authorised by the local authority granting planning permission so that the developer can avoid having to obtain his own GCN "project licence" from NE after obtaining planning permission. The scheme has been developed by Naturespace Partnership Ltd. Naturespace administers the scheme on behalf of the 7 local authorities involved and Freeths LLP has assisted Naturespace in procuring the 7 licences for the 7 local authorities. NE's grant of these 7 district licences has been made possible by Defra's / NE's adoption of 4 new "European Protected Species" licensing policies in December 2016.

These policies have allowed significantly more flexibility in the licensing of all European Protected Species ("EPS"). The main EPS in England are GCN, all bats, dormouse and otter.This district licensing scheme is at present available in the South Midlands (the exact areas are listed below). However if a developer there or anywhere else in England wanted to obtain from NE a conventional "project based" EPS licence, it is essential that he / she and his ecological consultant still uses these 4 EPS policies in their EPS licence applications. Failure to do so risks wasted costs and unnecessary delays. Under these 4 policies we have worked with our clients and their ecologists to obtain "project based" licences which dispense with the need for trapping or fencing GCN and which are based on old or incomplete site survey data, so saving on time and costs.


South Midlands scheme in detail ...

There are significant advantages of the South Midlands district licensing approach for developers carrying out development works in the 7 areas. The following explains how the system works.


In which areas can a developer benefit from the South Midlands district licensing scheme?

The 7 areas in the South Midlands benefitting from the 7 district licences are:

  • Bedford Borough, Central Bedfordshire, Aylesbury Vale, Milton Keynes, Oxford City, Vale of White Horse & South Oxfordshire


What are the potential benefits for developers of delivering development through the South Midlands district licensing scheme rather than through the traditional "project-based" licensing scheme?

The potential benefits for developers of delivering development through the South Midlands district licensing scheme are:

  • Not having to carry out GCN surveys to be authorised under the South Midlands district licence[5];
  • Not having to apply to NE and wait for a "project based" GCN licence from NE after receipt of planning permission before works on site can start;
  • Not having to retain part of the development site, or to provide other land, as compensatory habitat for GCN;
  • Being able to leave the delivery of GCN compensatory habitat to others better qualified to provide it;
  • In most cases, not having to face delays and costs of fencing the development site and trapping GCN before development works can start;
  • Being able to be authorised under the district licensing scheme with outline planning permission, as well as with full planning permission or with reserved matters approval; and
  • Thereby saving time and cost.


Is district licensing obligatory in these 7 areas in the South Midlands?

No. Developers in the 7 areas can choose, prior to obtaining planning permission, whether they want to enter the South Midlands district licensing scheme or not. The alternative is to follow the old "project based" licensing system and obtain their own GCN licence from NE, delivering any required compensatory habitat itself.


Developers normally have to obtain their own GCN licences, so how can this system be lawful?

If development works are to be carried out which could harm GCN in such a way as to lead to a criminal offence against one or more GCN under the Conservation of Habitats and Species Regulations 2017 then, to be lawful, the works must be carried out under a GCN licence issued by NE under the 2017 Regulations. In the past developers have had to obtain from NE and hold their own GCN "project based" licences for their individual development projects. The South Midlands district licensing scheme instead works by the developer being authorised to work under a GCN licence issued by NE to the local authority under the 2017 Regulations for the whole local authority area. In both cases, as long as the developer complies fully with the terms and conditions of the licence (whether the project based licence or the district licence), then the developer is legally authorised under the 2017 Regulations to carry out the works and is protected from any allegation of a criminal offence against GCN under the 2017 Regulations.

Under the Wildlife and Countryside Act 1981 ("WCA") offences, developers have always had to rely on the legal defence available under the WCA (since licences cannot be granted for development purposes under the Act). The "sliding scale" of mitigation measures which the district licensing scheme imposes on developers (dependent on the risk to GCN of their development site) would be the basis for reliance on this legal defence (where the works are otherwise lawful).


Developers normally have to carry out often complex mitigation and compensation measures for GCN under their own "project licences", so how does this work under the new district licensing system?

Compensatory habitat for GCN

NE has granted the district licenses to the 7 local authorities on the basis that Naturespace, working with a "compensation delivery partner" (the South Midlands Great Crested Newt Conservation Partnership), delivers compensatory habitat for GCN across the South Midlands region in pre-agreed strategic areas and in accordance with pre-agreed "development impact: compensatory habitat" ratios. This way compensatory habitat is provided on a strategic basis for GCN across the South Midlands region as development progresses. Developers entering the scheme do not therefore normally need to provide their own compensatory habitat on or near their development sites - instead the compensatory habitat is delivered strategically across the region through Naturespace.

The legal requirements for the delivery of the compensatory habitat are set out in detail in the conditions attached to the 7 district licences and are underpinned by detailed reporting and monitoring requirements enforced by NE.


Mitigation measures at the development site

When a developer makes a request to enter the South Midlands district licence scheme then his development site is assessed by Naturespace to ascertain the risk it poses to GCN (based on the GCN modelling that Naturespace has undertaken across the region). Based on this assessment of risk, Naturespace then determines (i) whether the development can be authorised under the district licence scheme (only in the highest impact cases would this not be possible); and (ii) the extent of the mitigation measures which must be adopted by the developer on site before / during build out. A "sliding scale" of mitigation measures will apply depending on the risks to GCN posed by the development. The local planning authority issuing the authorisation to the developer to carry out its development works under the district licence will then make clear, through the use of planning conditions attached to the planning permission, the mitigation measures with which the developer must comply. In most cases, fencing and trapping of GCN will not be required at a development site, saving the developer time and costs.


If fencing or trapping of GCN is not required for a development authorised under the district licensing scheme, then doesn't that mean that a GCN might be killed or injured in the development and how can that be lawful?

The 7 district licences authorise works to proceed which might trigger a number of criminal offences against GCN which are prohibited under the Conservation of Habitats and Species Regulations 2017, including deliberate killing or deliberate injury of GCN.As such, if a developer chooses to enter the district licensing scheme and is authorised by the local authority (when granting planning permission) to proceed with works under the GCN district licence, then the developer has legal protection under the district licence if a GCN is deliberately killed or injured, as long as the developer has fully complied with its obligations under the district licence. Since the South Midlands district licensing system operates by imposing a sliding scale of mitigation measures on developers based on the risk to GCN of the development site then, even without trapping and fencing, it can be expected that the risk of killing and injury of GCN will still be relatively low.


Does a developer entering the District Licensing scheme need to undertake its own GCN surveys to rely on the scheme?

No. GCN surveys of the developer's site do not need to be undertaken by the developer to rely on the district licensing scheme. This is because NE has been satisfied that sufficient surveying for the whole South Midlands region has already been provided in the applications for the 7 licences (Naturespace carried out this surveying).


How much does it cost a developer to enter the scheme?

Developers must apply to Naturespace prior to grant of planning permission to enter the scheme. The website is here: www.naturespaceuk.comFull details of the costs are on the website but put simply: For low GCN-risk development sites, there will be a single payment to Naturespace to enter the district licensing scheme. For higher GCN-risk developments, two payments to Naturespace will be necessary. The first payment is to allow the development to be fully assessed by Naturespace so as to ascertain whether the development can enter the scheme and on what basis (eg the level of any second stage payment that will apply; the mitigation measures that will apply; the planning permission conditions that will apply; any limitations on timeframe of development delivery). The second payment (if required) must be paid before the local authority can authorise the development to proceed under district licensing scheme.


Can the district licensing scheme be used by developers with outline planning permission?

Yes. A developer can be authorised by a local authority under its GCN district licence to undertake works harmful to GCN, when granting outline permission or full permission or reserved matters approval.


How does this district licensing scheme meet the "3 tests" that apply for any GCN licence issued by NE under the Conservation of Habitats and Species Regulations 2017?

NE has granted the 7 licences and so are clearly satisfied that the 3 legal tests are met for each of the 7 licences granted. It has been demonstrated that there is an imperative and overriding public interest need for development in all 7 districts benefiting from a district licence. In each case there is also no satisfactory alternative. Meeting this test has been aided by the South Midland scheme's robust approach to delivery of a "sliding scale" of mitigation measures at the development site dependent on the risk to GCN of a particular development (this being (in Freeths LLP's opinion) a distinct improvement compared with the earlier (2017) "Woking Borough" GCN district licence model).The favourable conservation status test has been met: through detailed work by Naturespace in modelling the presence of GCN across the South Midlands region; through the conditions attached to each of the 7 district licences relating to delivery of mitigation, compensation and monitoring measures; and underpinned by an agreement under the Natural Environment and Rural Communities Act 2006.


Will a GCN district licensing system be rolled out across the rest of the country?

Yes, this is the intention, although full details and timescales are not yet known.


Will this system apply to other European protected species?

Potentially yes, but no firm proposals have been announced as yet.[1] If entering the GCN district licensing scheme the developer would not be expecting to provide his own GCN survey data for the purpose of planning, although the developer should take his / her own legal advice where the development is EIA development.




UK Music recently reported that approximately 35% of music venues across the UK have closed in the last decade. One of the reasons is said to be frequent noise complaints by local residents. With the current demand for housing in the UK, it is not unusual to find new accommodation built close to existing, noise emitting businesses such as music venues and nightclubs. Smaller venues, in particular, may struggle with the viability of significant noise attenuation measures. Similar issues can arise for any business that generates noise: sports facilities, operators of industrial machinery, premises with external equipment such as extractor fans, air conditioning or cooling units.


What is the law?

Noise and/or vibration from premises can be a statutory nuisance under the Environmental Protection Act 1990.A local authority has a statutory duty to inspect its area to detect statutory nuisances and to take reasonably practicable steps to investigate complaints. Where the local authority is satisfied that a statutory nuisance exists, or is likely to recur, it should serve an abatement notice. Failure to comply with the terms of an abatement notice is a criminal offence.


What can I do?

An abatement notice may set out specific steps required to abate the alleged nuisance but, more commonly, it will simply say that the recipient must abate the nuisance, leaving him/her to determine what to do. Options might include sourcing quieter equipment, retrofitting sound insulation or restricting operating hours. Where the noise is from live music, sound levels might be reduced particularly at lower bass frequencies. For any business, though, the challenge is how to achieve this within financial and other practical constraints.


Can I appeal?

You can appeal an abatement notice but you must act quickly: the period for issuing the appeal is very short.

Grounds of appeal include:

  • the abatement notice is not justified (usually, on the basis that there is no statutory nuisance);
  • the requirements of the notice are unreasonable; and
  • the business has used best practicable means ("BPM") to prevent the nuisance.


BPM is assessed on a case by case basis and steps that are considered practicable for one venue may not be for another. It will be crucial that you can evidence what has been achieved by any adopted noise control measures as well as justifying any decision to reject other measures. You cannot build a case of BPM overnight. As well as legal support, you will need the input of an expert acoustic consultant as well as, say, a structural engineer where building constraints are an issue. There may be several options requiring careful technical and financial analysis, all of which takes time.


What about planning policy?

In March 2018, the government published a consultation draft of the revised National Planning Policy Framework ("NPPF").Paragraph 180 of the revised NPPF introduces the "agent of change" principle: "Planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (including places of worship, pubs, music venues and sports clubs). Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. Where an existing business or community facility has effects that could be deemed a statutory nuisance in the light of new development (including changes of use) in its vicinity, the applicant (or ‘agent of change') should be required to secure suitable mitigation before the development has been completed" (our emphasis).

The rationale behind this paragraph relates directly to the pressures faced by existing music venues and sports facilities when new development comes to the area. In a press release published on 18th January 2018, Housing Secretary Sajid Javid recognised the "high costs changes" often forced upon late-night venues and community sports clubs in such circumstances.

He said that those building new homes should be responsible for addressing noise issues, to protect both music venues and their neighbours:"... I have always thought it unfair that the burden is on long-standing music venues to solve noise issues when property developers choose to build nearby. That's why I consulted on this in February last year as part of the housing white paper. I am pleased to finally have an opportunity to right this wrong and also give more peace of mind to new residents moving into local properties."

The Agent of Change Principle is already adopted in some local planning policies and we have seen the positive effects first hand. We recently successfully quashed a noise abatement notice where residents of new development had complained about noise from existing sports facilities. The planning permission for the new development included a condition requiring the approval of noise mitigation measures prior to development and for those measures to be incorporated into the building. Such a condition is, perhaps, not particularly unusual. However, a less common feature in this case was the reason given for imposing the condition. It referred to protecting the amenity of new residents and to protecting ongoing activities of the community sports facilities. The judge hearing our client's appeal against the noise abatement notice took this into account when considering the character of the area and the nature and level of noise that would, or would not, be reasonable.

A common concern can be the level of scrutiny applied to the proposed mitigation scheme when the developer seeks to discharge the relevant planning condition. While we have seen the positive effects of appropriately worded conditions, and well designed schemes put forward by responsible developers, we have also seen poorly designed schemes passed without any significant level of independent analysis, resulting in developments lacking effective noise mitigation and unfortunate consequences for new residents and existing businesses alike. While it would be unusual for an application to discharge a planning condition to be subject to formal public consultation, those likely to be affected may wish to monitor such applications through the local planning authority's planning portal so that they can make representations if appropriate.

In the meantime, for any business receiving noise complaints, we recommend obtaining legal support as soon as the complaints begin, rather than waiting for an abatement notice or formal legal proceedings.




The Government has stated its commitment to tackling waste crime and has allocated additional funding to the Environment Agency ("EA") to tackle this issue. DEFRA are progressing a range of approaches to try to reduce illegal waste activities and new legislation has brought in new enforcement powers and new liabilities for illegal waste activities. These changes increase the risks to landowners where illegal waste activities are being undertaken on their land. They also significantly raise the stakes for development work, where the complexities of waste law (in particular in relation to the reuse of excavated material) often lead to inadvertent breaches of waste law.


Landfill tax liabilities on illegal waste deposits

We reported in Spring 2017 on a consultation seeking views on whether illegal waste sites should be brought within the scope of landfill tax, please click here to view our previous article. The legislation implementing this change came into force on 1 April 2018 for England and Wales. This means that all illegally deposited material present on a site on or after 1 April 2018 will be liable to landfill tax. For sites in England, the rate will be the standard rate (currently £88.95/tonne) but sites in Wales will be liable for an unauthorised disposals rate (currently £133.45/tonne). In contrast to permitted sites (where some materials are exempt from landfill tax), all material deposited will be taxable. In addition, HMRC can charge an additional penalty of up to 100% of the landfill tax due and have the right to prosecute for failure to pay.

Any person who deposits the waste or knowingly causes or knowingly permits the deposit is jointly and severally liable for the landfill tax due and any penalties. The legislation assumes that certain parties did knowingly cause or knowingly permit the disposal unless it can be shown to HMRC's satisfaction that they did not. These parties include the owner or occupier of the land where the disposal was made, the controller of the vehicle from which the disposal was made, anyone who facilitated the transport or storage of the material and any party to a contract for the sale of the material. In addition, officers of liable companies are also assumed to be liable unless it can be shown otherwise. Thus the range of parties who could be responsible to HMRC for the tax is very wide. These liabilities are in addition to the risk of prosecution for waste offences and any fines imposed for such breaches.

The tax liabilities in relation to illegal deposits could be very large. In the HMRC consultation on these landfill tax changes, they highlighted a 2016 prosecution under environmental legislation for the illegal deposit of 6,000 tonnes of waste, resulting in fines of £170k. Had this new tax legislation been in place, the parties could have been additionally liable for over £1m in landfill tax and penalties to HMRC. Whilst the headlines have focussed on these HMRC powers being used against unscrupulous criminals operating illegal waste sites, they can be used whenever there has been an illegal deposit of waste. One area where inadvertent illegal deposits of waste are not uncommon is on development sites. This is because, if the necessary steps are not taken prior to excavation, excavated soils become waste at the moment of their excavation.

If the soil (now a waste) is then used elsewhere on the site (or on another development site) without a waste permit or waste exemption in place, there is an illegal deposit of waste (albeit often an unwitting one). So something as apparently innocuous as using clean soil excavated from a basement area to regrade other parts of the same site can be an illegal deposit of waste giving rise to a tax liability. Even where developers understand that the reuse of excavated material is a waste activity and waste exemptions are registered for these activities, there may still be tax liabilities. A recent audit by the EA and Natural Resources Wales ("NRW") found that around 30% of sites using registered exemptions were not in compliance with the exemptions. Thus, there may in fact be illegal deposits of waste even where waste exemptions are purportedly being used.Many of these breaches on development sites have been undetected to date, not least because the EA has very limited resources to police these activities.

However, in contrast, HMRC is well-funded and benefits directly from any taxes it collects. It also seems likely that EA and HMRC will be keen to use these new powers in some early high-profile cases, to show a robust response to waste crime. Thus not only are the consequences of inadvertent breaches of waste law now greater with the addition of the tax liability, but the likelihood of regulatory action is also greater.


New powers to require the removal of illegally stored waste

In addition to the new HMRC powers for illegal disposals, from 9 May 2018, the EA, NRW and local authorities will have new powers to serve a notice on an occupier requiring the removal of illegally stored waste even if the waste was initially deposited legally. Failure to comply with the notice will be a criminal offence. If the land is unoccupied or the regulator cannot identify the occupier without unreasonable expense, the notice can be served on the landowner. Equally, if the occupier fails to comply with a notice or where the notice is successfully appealed on certain grounds, a new notice can be served on the landowner.


Mitigating risks for landowners

These changes in waste regulation increase the chance that a landowner will bear the liability for clearing waste from their land placed there by a tenant or occupier and, possibly also, for paying landfill tax on any unlawful disposals. To protect themselves, landowners should undertake careful due diligence on potential tenants and other occupiers of their land where the land is to be used for waste management activities. They may also want to include provisions in the lease to protect themselves from potential liabilities, such as guarantees, bonds or other financial security. In addition, during the occupier's operations, the landowner should regularly check the waste activities on site against any permits or exemptions held by the tenant/occupier, to promptly identify any potential breaches, so that steps can be taken before problems escalate.


Managing risks for developers

The potential landfill tax liabilities that could arise from waste law breaches during development could be significant and the risk that officers of the development company could also be personally liable for these sums will be concerning for many developers. It is vital therefore that robust procedures are put in place for all development projects. These procedures should ensure that material management plans are thorough and properly identify all waste materials that will arise on the project and fully account for their treatment, use, storage and/or disposal. Use of the CLAIRE "Definition of Waste Code of Practice" approach can minimise the amount of waste generated on site and maximise reuse of excavated materials without breaching waste legislation. However, it is important to use an experienced consultant to prepare the documentation for this, as recent audits of projects undertaken using this approach found that many were in breach of waste legislation. In addition, developers should ensure that waste "duty of care" procedures for development sites comply fully with the current guidance.

If they do not, and waste from your site ends up being deposited at an illegal site, then, in addition to a potential waste prosecution for duty of care failures, you could be liable for the landfill tax due for the disposal.




From 1 April 2018, all Councils outside of London will have new litter regulation powers under the Littering From Vehicles Outside London (Keepers: Civil Penalties) Regulations 2018 (the "Regulations"). The Regulations introduce fixed civil penalties for littering offences from vehicles, allowing Local Authorities (outside London) to issue civil penalty notices to the keeper of a vehicle, from which litter is thrown, regardless of who it is thrown by, including a passenger. The relevant Local Authority will be determined by where the offence takes place, rather than the Local Authority to the keeper of the vehicle.

A Local Authority cannot issue a penalty notice:

  • more than 35 days after the littering offence occurred;
  • if a fixed penalty notice for littering under the Environmental Protection Act has been given to any person for the same offence (even when that person is not the vehicle's keeper); or
  • if a prosecution has been brought against any person under the Environmental Protection Act for the same offence (even when that person is not the vehicle's keeper and regardless of whether that prosecution has concluded or was successful).


The civil penalty notices will come with a right of appeal. Local Authorities will also be able to issue late payment notices if the civil penalty is not paid on time or in full.




The Department for Environment, Food and Rural Affairs ("Defra") recently issued a new consultation on "Tackling Invasive Non-Native Species, A New Enforcement Regime" to seek views on proposed enforcement measures in England and Wales to prevent, detect, eradicate or manage a revised list of invasive plants and animal species. The proposed regime aims to implement the EU Invasive Alien Species Regulation (EC 1143/2014) ("the Regulation") which came into force on 1 January 2015 to address the problem of invasive non-native species that have been identified by the European Commission as representing major threats to plants and animals across the Union.


Legal background

Invasive non-native species ("INNS") (or "invasive alien species") are plants and animal species whose introduction and/or spread into Great Britain would threaten, or otherwise adversely impact, the biodiversity and related ecosystem services of native species. Certain types of INNS (such as Japanese Knotweed) can cause physical damage to buildings and land, which can in turn affect the value and insurability of properties. INNS are not only expensive and time-consuming to treat and eradicate, they are also hard to control from a regulatory perspective.The main piece of legislation dealing with INNS in England and Wales is the Wildlife and Countryside Act 1981 (as amended) ("WCA"). It is currently an offence under s.14 of the WCA to release into the wild[5] or allow to escape a species of any wild animal that is either i) not ordinarily resident in the wild and is not a regular visitor in Great Britain or ii) listed on Schedule 9 to the WCA. It is also a criminal offence to plant, or otherwise cause to grow, in the wild a plant listed on Schedule 9.Offences under section 14 of the WCA carry a fine (the amount of which is unlimited) and/or 6 months imprisonment on summary conviction (if convicted in the Magistrates' Court) or 2 years imprisonment on indictment (if convicted in the Crown Court).Further, it is an offence under s.14ZA of the WCA to sell, offer or expose for sale, or possess or transport for the purpose of sale, non-native species which are i) not ordinarily resident in Great Britain in the wild and a regular visitor or ii) a specimen of animal or plant species listed under Schedule 9, or iii) where the Secretary of State has ordered a ban on the sale of a particular species.

Owners and occupiers who fail to prevent INNS from spreading onto adjacent land may also be liable to under common law nuisance for the loss of enjoyment and the cost of removal of INNS suffered by their neighbours. In relation to Japanese Knotweed, an actionable nuisance claim could arise before physical damage is caused where the value of neighbouring properties are affected by the knotweed being less than seven metres from site boundary.[6] More recently in Smith v Line [2018] UK CC, the defendant was liable for a 10% loss in value of the claimant's £500,000 house for allowing Japanese Knotweed to spread onto an adjoining property. Although recent county court decisions on INNS are not binding, they shine a spotlight on the significance of this subject matter. Following the introduction of the Regulation in 2015, Member States (including the UK) are now required to prevent, eradicate and manage 49 INNS described as "species of Union concern". It is important to note that some species on the Union list are already subject to regulatory controls under the WCA, and have therefore not been included in the consultation.

Strict restrictions apply to such species; in particular, Article 7 of the Regulation prohibits (subject to exemptions) the intentional importing, keeping, breeding, transporting, selling, using or exchanging, permitting to reproduce, grown or cultivated, or release into the EU of listed INNS. Again, some of these restrictions are already covered by the WCA.


Proposed civil penalties

Among various requirements under the Regulation, the UK is under a duty to introduce penalties in domestic legislation for any breaches of restrictions under the Regulation (Article 30). It is anticipated by Defra that Natural England, Natural Resources for Wales, the Police and the Crown Prosecution Service (i.e. existing habitats and wildlife regulators) would be responsible for enforcing such restrictions. To allow regulators to distinguish between those with a good general approach to compliance and those who tend to disregard the law, Defra is proposing to introduce civil sanctions as an enforcement option for less serious breaches of the restrictions.


The specific types of civil penalties proposed are:

  • Fixed monetary penalty: a requirement on offenders to pay a monetary penalty of a fixed amount for technical or minor offences where previous advice and guidance has been ignored, or to remove marginal illicit financial gain. The proposed levels are £1,000 for individuals and £3,000 for businesses.
  • Variable monetary penalty: a requirement on offenders to pay a monetary amount determined by the regulator reflecting the circumstances of the offence. The maximum amount of the variable monetary penalty is £250,000.
  • Compliance notice: a requirement on offenders to take specified steps within a set period to secure that an offence does not continue or recur. Compliance notices may be combined with restoration notices, variable monetary penalties and stop notices at the regulator's discretion.
  • Restoration notice: a requirement on offenders to take specified steps within a set period to restore a position to what it would have been if no breach had occurred. Restoration notices may be combined with compliance notices, variable monetary penalties and stop notices at the regulator's discretion.
  • Enforcement undertaking: a promise to be given by an offender to a regulator to take one or more corrective actions set out in the undertaking.
  • Third party undertaking: this enforcement option enables an offender who has been issued with a notice by the regulator to issue a compliance notice, a restoration notice or variable monetary penalty to instead offer the regulator a commitment to take action to benefit a third party affected by their non-compliance (such as to make improvements to the local environment). Such an undertaking would be appropriate where harm has been caused to the wider community (such as loss of amenity or nuisance).
  • Stop notice: a requirement for a person to stop carrying on a particular activity described in the notice until it has taken steps. A stop notice may be issued with other civil penalties except a fixed monetary penalty.


To use a fixed monetary penalty, a variable monetary penalty, compliance notice or restoration notice, the regulator must:

  1. be satisfied on the balance of probabilities that a breach of a restriction under the Regulation has occurred; and
  2. first serve a "notice of intent" setting out the proposal to impose a penalty. A person receiving the notice of intent will have the right to make representations and objections to the proposal within 28 days. If the regulator subsequently decides that the penalty should be imposed, then a final notice would be served setting out the penalty, the process of appeal and consequences for non-compliance with the civil penalty.


Proposed criminal offences

Defra is also proposing to implement the restrictions under the Regulation through the two existing criminal offences under sections 14 and 14ZA of the WCA. It is suggested that the powers would be used to address intentional releases of species on the list of Union concern or where an offender persists with selling a species despite prior warnings or penalties.

As such, Defra is proposing to:

  • Extend the list of species in Schedule 9 to include the species listed as being of Union concern which are not already covered by the existing WCA framework.
  • Make a new ban on sale orders covering all species of Union concern.


In addition, Defra is seeking views on whether new and separate offences should be introduced to cover the following acts in relation to INNS (which are covered by the Regulation but not the WCA):

  • keeping
  • breeding
  • transporting
  • using or exchanging
  • permitting to reproduce, grown or cultivated


Although the Regulation aims to, among other things, impose a ban across the EU on the reproduction and growing of invasive alien species, in practical terms, it remains unclear what type of actions might constitute "permitting to reproduce, grown or cultivated, including in contained holding" under Article 7(1)(g) of the Regulation.

Importantly, the Regulation envisages that "only live specimens, and parts that can reproduce, represent a threat to biodiversity and related ecosystem services, human health or the economy, and therefore only those should be subject to the restrictions under this Regulation".[7]For site operators whose properties contain identified INNS, there is a risk that an offence could be committed under the proposed regime where such species are i) intentionally being bred and/or being grown or cultivated, or ii) where there has been a failure to prevent identified INNS from reproducing or growing on their premises or in the wider environment. The proposed offence could potentially go further than obligations section 14 WCA, which requires landowners to contain INNS within their land.[8] Under the current regime, failure to take reasonable measures to confine plant INNs to the cultivated area that results in it spreading to the wild could be considered as "causing to grow in the wild", and consequently an offence.[9]


Proposed powers

Defra also anticipates that new powers of entry and powers to search will be necessary in order for regulators to assess whether the following potential crime has been committed:

  • there is an unlawfully imported or acquired species on the premises;
  • a breach of a restriction under the Regulation has been or is being committed and the evidence of the breach may be found on the premises; or
  • a condition of a permit has or is being complied with.


The proposed regime would likely extend the powers of regulators under the WCA.As previously reported in our Environmental Bulletin: Summer 2017, species control agreements (SCAs) and species control orders (SCOs) have been introduced[10] as a mechanism to encourage and compel landowners to carry out control operations to manage identified INNS on their land. Regulators can enter into a voluntary SCA with an owner of premises and, if necessary, impose an SCO on the owner. SCAs and SCOs can provide for either the owner or the authority to carry out the control operations. The proposed enforcement regime would give regulators added powers to investigate suspected premises.



While the outcome of the consultation remains to be seen, Defra has confirmed that it intends to enact a new statutory instrument later this year to implement the Regulation. For landowners, developers and funders looking to invest, lease or sell real properties, the proposal to extend the list of INNS means that greater care will be required during the due diligence process to identify the potential presence of listed species (particularly plants) on proposed sites. In particular, those looking to acquire properties should be raising enquiries and commissioning appropriate surveys to assess for INNS. Where relevant, management plans should be considered to control or eradicate such species. Where landowners or occupiers have actual or constructive knowledge of INNS on their properties, they could be exposed to private nuisance claims (as we have seen recently in Smith v Line [2018] UK CC, as well as a wider range and combination of enforcement actions under the proposed regime.

The extension of Schedule 9 WCA could also mean that SCA and SCO provisions will apply to an even wider list of INNS (compared to the current regime).Finally, the plan to incorporate civil sanctions into the enforcement regime suggests that Defra is willing to adopt a more flexible and proportionate approach to implementing the Regulation. It is possible that, as a consequence, the use of civil sanctions (as compared to criminal sanctions) may become more commonplace for less serious INNS offences, particularly given that the former requires a lower standard of proof. Freeths LLP's Environmental Team will continue to monitor the outcome of this consultation, which ended on 3 April 2018.




In the recent round of the ClientEarth litigation saga which concluded on 21 February 2018, the High Court ruled that the government's 2017 Air Quality Plan is unlawful. This marks the third failed attempt by the government to devise an Air Quality Plan under the EU Air Quality Directive and the equivalent domestic legislation in England, the Air Quality Standards Regulations 2010 (SI 2010/1001).The Air Quality Plan, entitled "UK plan for tackling roadside nitrogen dioxide concentrations", and associated documents were issued by the Department for Environment, Food and Rural Affairs (Defra) in conjunction with the Department for Transport on 26 July 2017.Following the judgment in ClientEarth (No.3) v Secretary of State for the Environment, Food and Rural Affairs, Secretary of State for Transport and Welsh Ministers [2018] EWHC 315 (Admin), the government is now required to produce, as a matter of urgency, a supplement to the 2017 Plan containing sufficient measures to reduce exceedances of the maximum limits of NO2. To avoid any delay in its implementation, the 2017 will remain in force in the current state while the supplemental plan is being produced. The Judge also found that the Welsh Ministers have failed to produce a compliant Air Quality Plan for Wales, and accepted an undertaking from them to produce a draft compliant plan by April 2018 and a final supplemental plan by 31 July 2018.



The EU Air Quality Directive 2008 (2008/50/EC) sets limit and target values for a number of pollutants, including nitrogen dioxide. Under the 2008 Directive, the UK is required to:

  • Meet limited values for nitrogen dioxide and other pollutants, by specified dates;
  • Draw up air quality plans setting out measures for meeting limit values or target values as soon as possible. Importantly, the obligation imposed by Article 23 of the Directive is to devise air quality plans specific for each zone which met the threefold obligation of i) aiming to achieve compliance by the soonest date possible; ii) choosing a route to that objective which reduced exposure as quickly as possible and iii) taking steps which meant meeting the value limits was not just possible, but likely.


The 2017 Plan divided the UK in 43 zones for air quality reporting (of which 37 exceeded the limit value for nitrogen dioxide imposed by the EU Air Quality Directive in 2015). The zones were not coterminous with local authority areas, but local authorities were required to bring the plan into effect. The degree of non-compliance exhibited and forecast for different local authority areas vary widely.


These differences are summarised into three groups of areas:

  • Firstly, there are 23 local authorities representing areas with the greatest problem (i.e. exceedances are project beyond 2021);
  • Secondly, there are five cities that were previously the focus of the earlier 2015 Air Quality Plan; and
  • Thirdly, there are 45 local authority areas which currently have air quality exceedances, but which are expected to achieve compliance with nitrogen dioxide values by 2021.

In response, the 2017 Plan adopted different approaches depending on the degree of non-compliance forecast. The High Court found that the Government has imposed less onerous obligations on the 45 local authority areas expected to achieve compliance with the nitrogen dioxide limit values by 2021 (compared to the other 28 local authority areas).

As such, the High Court held that the Plan is unlawful due to the following reasons:

  • The 2017 Plan's application to the 46 local authority areas in England failed to meet the threefold obligation and lacked sufficient measures to ensure substantive compliance with the Air Quality Directive 2008 (and the implementing domestic legislation). The 2017 Plan adopted clean air zones ("CAZs") as the benchmark for assessing local solutions. These CAZs were expected to take three years to implement and achieve compliance. The court found that the CAZ benchmark was "pointless" and without any immediate significance given that compliance would be achieved in respect of the 45 local authority areas without the benchmark. The CAZ benchmark was also not zone-specific and there was also no mechanism for enforcing the local plan in respect of the 45 authorities. The High Court reminded the UK government that it is under a duty to ensure that Air Quality Plans were established. The failure to make mandatory any step in the case of the 45 authorities meant that the Government failed to show either that it was taking steps to ensure compliance or that compliance was likely.
  • the 2017 Plan does not include information required under Annex XV of the 2008 Directive (and Schedule 8 of the implementing domestic legislation) in respect of those 45 local authority areas, including detail of measures adopted in order to produce pollution.
  • It did not contain a compliant air quality plan for Wales.



The judge granted a mandatory order which would enable Clientearth to bring the matter back before the court without needing to apply for permission to bring a further judicial review challenge. The Court's willingness to exercise a more flexible supervisory jurisdiction in this case emphasises the growing importance of air quality issues, particularly from the perspective of town and country planning. Shortly before this case was decided in February 2018, the High Court rejected an appeal from Muller Strategic Projects against Cheshire East Council's adoption of the Local Plan Strategy in July 2017.

The challenge was brought after an external investigation was conducted into the Council's air quality monitoring procedures which found that serious errors were made as a "result of deliberate and systematic manipulation of data"[11] which may have affected the selection of sites and distribution of development in the local plan. The challenge was summarily dismissed by the High Court which found that shortcomings in the air quality data did not affect the substance of the Local Plan.

In Winter 2017, the High Court also passed two significant judgments in the case of Gladman (where a challenge by a property developer was dismissed due to air quality concerns) and Shirley (which involved a judicial review challenge brought by objectors against the Secretary of State's decision not to call-in a planning application due to the evidence on air quality assessment). Please click here to view our previous article in the Winter 2017/18 edition of the bulletin, where we reviewed the High Court decisions in detail.Although the case relating to Cheshire East Council was not reported, the high number of recent discussions surrounding air quality issues confirms that this is not an area to be overlooked by developers. It seems inevitable that air quality will become a key consideration at both plan-making level and when local authorities are determining planning decisions.


News: Round-up of Environmental News in Spring 2018

In our winter 2016 and summer 2017 environmental bulletins, we reported on developments in cost rules applicable to judicial review in environmental cases (Aarhus convention claims). As we explained, changes made to costs provisions in the Civil Procedure Rules ("CPR") in February 2017 were challenged in the case of The Royal Society for the Protection of Birds, Friends of the Earth Limited and Client Earth v Secretary of State for Justice and Lord Chancellor [2017] EWHC 2309 (Admin).

The judgment, given on 15 September 2017, concluded that while some of the changes were acceptable, some elements were not consistent with the UK's obligations under the Arhus Convention and others would benefit from clarification. The Civil Procedure (Amendment) Rules 2018 (SI 2018/239) respond to this judgement and will come into force on 23 April 2018.


They make the following key changes:

  • Claimants only have to provide aggregate information of third party donations and no longer a breakdown of individual donations; and
  • Courts no longer have the discretion to vary the costs cap of their own volition. Such variations can only arise on application by the claimant or defendant. Any such application should be made at the earliest opportunity, with a view to preventing a tactical application at a late stage in the proceedings.


On 13 December 2017, a publication on the judiciary's website also advised that the hearing of any application to vary the costs cap in an Arhus Convention claim will take place in private (rather than in open court) until further notice. This temporary arrangement has been put in place pending a comprehensive "open justice review" which includes an examination of wider provisions in the CPR as to when hearings should be held in private.


It should be noted that the April 2018 changes will not apply to ongoing Aarhus Convention claims that were issued before 28 February 2017.[1] Directive 2009/147/EC on the conservation of wild birds.[2] Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora.[3] Of the Annex I habitat types, 78 are believed to occur in the UK. Of the Annex II species, 43 are native to, and normally resident in, the UK (http://jncc.defra.gov.uk/page-23).[4] Articles 6(3) and (4) of Directive 92/43/EEC as implemented by Regulations 63 and 64 of the Conservation of Habitats and Species Regulations 2017/1012[5] If entering the GCN district licensing scheme the developer would not be expecting to provide his own GCN survey data for the purpose of planning, although the developer should take his / her own legal advice where the development is EIA development.[6]

The wild is "the diverse range of natural and semi-natural habitats and their associated wild native flora and fauna in the rural and urban environments in general. This can also be broadly described as the general open environment."[7] Williams v Network Rail Infrastructure Ltd [2017] UK CC[8] Paragraph 3 of the Preamble to Regulation 1143/2014 on the Prevention and Management of the Introduction and Spread of Invasive Alien Species.[9] Defra guidance: "where plants listed in Schedule 9 are grown in private gardens, larger scale gardens, estates or amenity areas, the landowner or occupier will take reasonable measures to confine them to cultivated area so as to prevent their spreading to the wider environment and beyond the landowner or occupier's control" (https://www.gov.uk/government/publications/preventing-the-release-into-the-wild-of-certain-plants-and-animals-guidance). [10] Ibid.[11] SCAs and SCOs were introduced by virtue of an amendment to the Wildlife and Countryside Act 1981 by the Infrastructure Act 2015. [12] https://www.cheshireeast.gov.uk/council_and_democracy/council_information/media_hub/media_releases/air-quality-monitoring.aspx


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