Habitats and Water Abstraction Court Case (UK)

On 6th September ’22, the High Court granted judicial review of an Environment Agency decision in 2021 to restrict their investigation of water abstraction impacts on Sites of Special Scientific Interest (SSSI) in Norfolk. The judgment is here. Local press is here.

The claimants were private citizens, farmers, living in the Norfolk Broads, freehold owners of a fen and other land, and concerned that water abstraction (for food production primarily) is causing irremediable damage to the environment, their own land, including ecosystems that are legally protected. Their intervention had been on going for 14 years, and had already been instrumental in the decision of the defendant, the Environment Agency, not to renew two abstraction licences. They successfully supported the Environment Agency’s decision to vary the two licences when that decision was challenged on appeal.

The Environment Agency was established by section 1 of the Environment Act 1995. By section 6(1)(b) of the 1995 Act, its duties include the promotion of the conservation of flora and fauna which are dependent on an aquatic environment. It is responsible for the grant (and variation and revocation) of licences for the abstraction of water.

Groundwater is water that is present in the ground. Many ecosystems (habitats and species) are dependent on a supply of groundwater. Groundwater may be abstracted (in the Norfolk Broads, from either the chalk, the crag, or the Sandringham sands) for use by the public water supply, industry, and agriculture. A licence is required to extract groundwater. Such licences may either be permanent (with no requirement to renew) or time limited (with the possibility of periodic renewal). The Environment Agency has power to revoke abstraction licences: sections 52 and 53 of the Water Resources Act 1991.

Once changes to an ecosystem are apparent, it may be too late to put matters right; by that stage, irremediable damage may have occurred. For this reason, Natural England (which has statutory responsibility for providing advice to the Environment Agency and others) is an interested party and had advised the Environment Agency in October 2020 that it was necessary to consider water supply in the Broads and to take any necessary action to restore ground and surface water levels. For the same reason, the Environment Agency itself recognises an obligation to apply a “precautionary approach to dealing with adverse effects” such that it must take appropriate and proportionate action to ensure that licenced water abstraction does not lead to adverse effects.

The Norfolk Broads is, in terms of rainfall, one of the driest parts of the country. Long- term average annual rainfall is between 600mm and 730mm. The low rainfall is exacerbated by periods of drought. The Broads also lie within an area where a great deal of irrigated fruit and vegetable production takes place. This is reliant on water abstraction. In the Bure and Thurne Reporting Area alone, more than 60 million litres of ground water and surface water are abstracted each day. So, there is a relatively small amount of rainfall, but a considerable amount of water is taken from the ground.

The claimants believe that the Environment Agency ought to review more broadly the impact of water abstraction to decide whether other licences should also be withdrawn or altered. The court case is the claimants challenge, seeking judicial review, of the Environment Agency’s refusal to expand the scope of an investigation that it had conducted in 2021 into the effect of 240 abstraction licences. That investigation concerned the impact of abstraction on just three Sites of Special Scientific Interest (SSSIs).

The Environment Agency accepts that it must have regard to article 6(2) of the pre-Dec 2020 European Habitats Directive. It maintained that it had done so and that it had, after taking it into account, reasonably decided to limit its investigation of the impact of the 240 licences to the three SSSIs. It disputed that article 6(2) has direct effect in domestic law beyond the obligation to “have regard” to it. Irrespective, it maintained that it was acting compatibly with the requirements of article 6(2).

The High Court determined that the GB Habitats Regulations (2017) continue to have effect in domestic law even though they are EU-derived domestic legislation: by means of sections 1B(7) and 2(1) of the European Union (Withdrawal) Act 2018specifically –

“The Habitats Regulations are thus retained EU Law: section 6(7) of the 2018 Act. It follows that they must be interpreted in accordance with retained EU case law and retained principles of EU law: section 6(3) of the 2018 Act.

” Questions as to the meaning and effect of retained EU law (so, including the Habitats Regulations, and the obligation under article 6(2) which continues to have effect under section 4) must be decided in accordance with retained general principles of EU law: section 6(3)(a). The precautionary principle is a retained general principle of EU law: section 6(7).

The High Court decided on 4 matters –

(1) The ambit of the obligation, under regulation 9(3) of the GB Habitats Regulations (2017), to “have regard” to the requirements of the pre-Dec European Habitats Directive, including whether that mandates compliance with article 6(2) of that Habitats Directive.

Decision – “…. the duty to “have regard” here does not implicitly permit the Environment Agency to act in a way that is inconsistent with the Habitats Directive (in other words to have regard to the requirements of the Directive but then deliberately decide to act in a way that is inconsistent with those requirements). Rather, it recognises that the Environment Agency is one part of a complex regulatory structure and, depending on the issue, it may have a greater or lesser role to play.”

“The duty on the Environment Agency to have regard to the requirements of the Habitats Directive means that the Environment Agency must take those requirements into account, and, insofar as it is (in a particular context) the relevant public body with responsibility for fulfilling those requirements, then it must discharge those requirements. In other words, the scope for departure that is ordinarily inherent in the words “have regard to” is considerably narrowed.”

“It is clear from all of the contemporaneous evidence (including internal emails) that the Environment Agency has regarded itself as bound by the Habitats Directive and has sought to act in compliance with its requirements”

(2) Whether article 6(2) of the pre-Dec 2020 Habitats Directive imposes an obligation of a kind recognised by the Court of Justice of the European Union (“CJEU”) or any court or tribunal in the United Kingdom in a case decided before 2021.

Decision – “…. by reason of section 4 of the 2018 Act, article 6(2) continues to be recognised and available in domestic law and is to be enforced accordingly.”

Detail – “The parties agree that the question of whether article 6(2) is enforceable by a UK court (irrespective of regulation 9(3) of the Habitats Regulations) turns on the application of section 4(2)(b) of the 2018 Act, namely whether the obligations under article 6(2) are of a kind recognised by the CJEU, or any court or tribunal in the United Kingdom, in a case decided before 11pm on 31 December 2020.”

“… That test is satisfied once a case is identified that recognises article 6(2) as being enforceable in domestic proceedings. The statute expressly provides that it is not necessary for that to be an essential part of the court’s decision. It is not relevant to the section 4(2) test to enquire as to whether the case was correctly decided or was decided per incuriam. The position might be different if the decision had been overturned on appeal, or later overruled, but that is not the case here.”

(3) Whether the Environment Agency has breached article 6(2) of the pre-Dec 2020 Habitats Directive by limiting its investigation of water abstraction to the three SSSIs.

Decision – “The claimants have demonstrated a breach of article 6(2) of the Habitats Directive and a breach of regulation 9(3) of the Habitats Regulations.”

4) Whether the Environment Agency acted irrationally by limiting its investigation of water abstraction to the three SSSIs.

Decision – “Having committed itself to discharge that obligation, it was irrational for the Environment Agency not to expand the RSA programme without having any alternative mechanism in place that could ensure compliance with article 6(2). It follows that even if (contrary to the findings I have made in respect of issues (1) and (2)) article 6(2) is not enforceable by the High Court, the Environment Agency’s decision is flawed on common law grounds. On this basis, the claimants’ rationality challenge also succeeds.”

Summary

(A) The claimants showed that water abstraction may be causing deterioration of protected habitats or significant disturbance of protected species within The Broads Special Area of Conservation.

(B) The Environment Agency must (by reason of regulation 9(3) of the Habitats Regulations) have regard to the requirements of article 6(2) of the pre-Dec 2020 Habitats Directive. It must therefore be in a position to justify any departure from those requirements. The Environment Agency’s obligation under article 6(2) continues to be enforceable in domestic law: section 4 of the 2018 Act. That obligation must continue to be interpreted in accordance with the precautionary principle: section 6 of the 2018 Act.

(C) The Environment Agency must take appropriate steps to ensure that, in the SAC (pre-Dec 2020 European Habitat designation adopted in UK law and applied to areas of Norfolk, including SSSIs), there is no possibility of the deterioration of protected habitats or the significant disturbance of protected species as a result of licensed water abstraction. The Environment Agency has discharged that obligation in respect of three sites of special scientific interest. But it has not done so in respect of all sites within the SAC. That is because its review of abstraction licences was flawed and (at least in relation to permanent licences) it has not conducted a sufficient further review to address those flaws. It is therefore in breach of regulation 9(3) of the Habitats Regulations and article 6(2) of the Habitats Directive.

(D) Having decided to comply with article 6(2), it was not rational for the Environment Agency to limit its investigation to just three sites without undertaking further work to ensure compliance with article 6(2) across the entire SAC.

The High Court will issue Directions.

This was a court case in which the claimants relied on a pre-Dec 2020 EU Directive to gain relief. The judgment confirmed the direct influence of EU Law if, prior to 1st Jan 2021, those rules had been found by a court (the CJEU or a local UK court) to be directly enforceable against public authorities.

The Prime Minister has promised to remove the influence of EU Law by end 2023. Please note my Blog post of some days ago re the forthcoming EOR Regulations (which when enacted may alter or revoke the 2017 Habitats Regulations).

The new DEFRA Secretary has cited water security as a key objective, along with food supplies.

Storm Water Overflows (England)

UPDATE: 7th September ’22 the new DEFRA Secretary wrote to water companies to write to him formally by 21st September ’22 with their plans to make significant improvements.

6th September ’22, an Urgent Question was asked (in the House of Commons) of the then DEFRA Secretary George Eustice about storm water overflows. His answers provided an update – (the DEFRA Secretary has now changed) –

(1) When appointed DEFRA Secretary in February 2020 Mr Eustice instructed officials to change the strategic policy statement for Ofwat to give the issue greater priority.

(2) The Environment Act 2021 sets a requirement for water companies to reduce the harm caused by sewage discharges.

(3) Water companies are investing £3.1 billion to deliver 800 storm overflow improvements across England by 2025. Mr Eustice stated this would deliver an average 25% reduction in discharges by 2025.

(4) In 2016, only 5% of storm overflows were monitored – almost 90% are now monitored, and Mr Eustice stated by next year 100% of all storm overflows would be required to have monitors fitted. There are 15,000 storm overflow discharge points in England.

(5) The Environment Agency and Ofwat have launched criminal and civil investigations into water companies, at more than 2,200 treatment works, following the improvements made to monitoring data. That follows 54 prosecutions against water companies since 2015, securing fines of nearly £140 million.

(6) The Environment Act 2021 makes it a legal requirement for companies to provide discharge data to the Environment Agency and to make it available to the public in near real time: within an hour.

(7) The Environment Act 2021 gives new powers to Ofwat to modify water company licence conditions. Mr Eustice stated Ofwat is currently consulting on proposals that will enable it to take enforcement action against companies that do not link dividend payments to their environmental performance or that are failing to be transparent about their dividend payouts. It’s possible the consultation referred to is one on PR24 here. Note Ofwat’s expectation (PR24) that investor returns would be linked to the ability of companies to create and deliver value for customers and the environment, and the expectation that companies would take significant action to improve the environment and resilience. The City Briefing of 7 July ’22 gives further detail – here.

(8) On 5th September ’22, the storm overflows discharge reduction plan (required by the Environment Act 2021) was laid before Parliament. This plan underpins the £56 billion of capital investment over the next 25 years cited by Mr Eustice and the initial £3 billion investment to reduce discharges by 25% by 2025 at point (3) above. The plan makes a priority of designated bathing waters and other priority sites with a target of 2035. The plan foresees significant reductions in discharges at 75% of high-priority sites. The government’s storm overflows discharge reduction plan (England) is here.

(9) On 27th June ’22, the Office for Environmental Protection announced its first investigation: of the roles of Ofwat, the Environment Agency and the DEFRA Secretary in the regulation of combined sewer overflows (CSOs) in England – the announcement is here.

(10) The Environment Agency’s costs for monitoring water companies’ permits for the management of combined storm overflows are cost-recovered through the permit. In addition, Mr Eustice said the government provides some support.

(11) Southern Water is one of the companies that was recently investigated, and it was subject to a record fine of close to £90 million. The fine precipitated a change in ownership of that company and additional equity injected – the Ofwat (August ’22) consultation on the transfer that took place in 2021 is here.

(12) Mr Eustice distinguished – one matter is the failure of water companies to abide by their permit conditions, the reason for the Environment Agency bringing multiple prosecutions. Another matter is the separate issue of the permitted use of storm overflows. That issue is about long-term investment in infrastructure, which is the focus of the government’s storm overflows discharge reduction plan.

Peat Ban (England)

On 27th August 2022 the UK government announced that all sales of peat to amateur gardeners in England would be banned by 2024. The press release is here.

The press release states that “Bagged retail growing media accounts for 70% of the peat sold in the UK and is frequently misused, for example being used as a soil improver rather than a medium in which to propagate plants.”

This ban follows an extensive consultation that was held.

A ban for the professional horticulture sector will follow, but is not announced.

Natural England is working with Defra and partners on the ground to restore thousands of hectares of peatland habitats, and the press release states via round two of the Nature for Climate Fund Peatland Restoration Grant, Natural England awarded on 27th August nearly £11 million to six projects to support restoration works on over 7,000 hectares of peatland, adding to more than 8,000 hectares already funded through round one.

The press release states round two of the Restoration Grant has supported a blend of lowland and upland restoration works, with the Somerset Peatland Partnership convening to restore lowland sites in the south-west of England, and the Great North Bog and Moors for the Future partnerships restoring upland sites in the north of England.

UK BAT (UK)

Industrial installations undertaking specific types of activity are required to use ‘best available techniques’ (BAT), which means the best economically and technically viable techniques to prevent, minimise and reduce emissions to air, water, and land.

BAT is used to determine the types of abatement technologies and methods that operators should put in place. BAT conclusions describe the best techniques and associated emission levels, which are the basis of the limits placed within environmental permits.

The UK Government, the Scottish Government, the Welsh Government, and the Department of Agriculture, Environment and Rural Affairs (DAERA) are putting in place a new regime for the development of ‘BAT’ across the United Kingdom (UK), following the UK’s exit from the European Union (EU).

Northern Ireland – any ‘Best Available Techniques’ determined in Northern Ireland will need to ensure account is taken of the Northern Ireland Protocol, which requires some specific activities that interact with the Single Electricity Market to continue to align with the EU Industrial Emissions Directive (IED).

BAT was adopted and applied across the European Union (EU) by the European Commission as BAT Conclusions (BATC) under the IED (Directive 2010/75/EU).

Existing EU BATC continue to have effect in the UK through the EU Withdrawal Act 2018. They are available in best available technique reference documents or BREFS.

The UK no longer needs to meet the requirements of new EU BATC issued after 31 Dec 2020.

30 August 2022 – Policy Paper – here.

BATC will be published as statutory instruments and used as the basis for permit conditions for industry.

The UK BAT system will take between 1 to 3 years to create a set of BATC depending on the complexity of the industrial sector. The order of BATC to be reviewed will be announced in advance.

UK BAT will be established by technical working groups (TWG) for the relevant industrial sectors.

The first 4 industry sectors to establish BATC groups will be:

1 Ferrous metal processing – galvanising (FMPG).

2 Ferrous metals processing – forming (FMPF).

3 Textiles (TXT).

4 Waste gas treatment in the chemicals sector (WGC).

The TWG’s will be established from September 2022. It is anticipated that the BATC for the industry sectors above will be published in the second half of 2023.

A new governance structure will also be established, with new independent bodies – called the Standards Council and the Regulators Group – consisting of government officials and expert regulators from all four nations of the UK.

A UK Air Quality Governance Group will also be established to oversee the work of the Standards Council and the delivery of the requirements under this new framework. Interested parties from industry, academia and civil society will be able to engage in the running of the BAT system through an advisory group being set up by the UK BAT Team.

Local councils currently play a major role in regulating industrial installations in England and Wales and have a clear interest in the impact emissions have on the health of local communities and the environment. The new regime will bring local councils into the BAT framework for the first time by involving them in the governance and standard-setting processes.

Some sectors in the UK had already begun a separate review process under the old EU BAT framework. These sectors will complete the BAT process, drawing on UK data submitted to the EU as a starting point, then tailor the BAT to meet UK circumstances.

UK REACH (Britain)

On 30th June 2022, the various organisations involved published their rationale for prioritising substances within the UK REACH programme 2022-2023. This document is here.

Priorities are established for 2 types of activity in UK REACH:

• Restriction – a mechanism that can lead to controls on the use of a substance or group of substances

• Regulatory Management Options Analysis (RMOA) – analysis produced by HSE and/or the Environment Agency to understand the risks of using a substance, or group of substances, and make recommendations for managing them.

The following are 5 priorities –

1 Per- and polyfluoroalkyl substances (PFAS) – acting on the recommendations of an ongoing RMOA, due for publication in summer 2022

2 Intentionally added microplastics – an evidence project on identifying and managing the risks they pose

3 Formaldehyde and formaldehyde releasers in articles – an RMOA to review the evidence base and evaluate a potential restriction

4 Bisphenols in thermal paper – an RMOA to review the evidence base and evaluate a potential restriction

5 Hazardous flame retardants – reviewing and updating the existing evidence on potential environmental risks, to feed into wider chemicals policy.

In addition, the HSE is running a number of calls for evidence in relation to additions to the Annex 14 (UK Authorisation List). Addition to the List means prior authorisation is needed to use, or place on the market, the relevant substance, after the specified sunset date.

Note – the DEFRA Secretary of State, together with Welsh and Scottish Ministers will need to authorise any decision.

The HSE link is here.

Ban on Outdoor Use of Metaldehyde (UK)

Metaldehyde is used in slug pellets. It’s use is widespread.

Authorisation of Metaldehyde-containing products is regulated by EU law EC Regulation 1107/2009 (Plant Protection Products). This document is a retained law in Britain.

DEFRA announced in September 2020 it would not renew current authorisations for the outdoor use of mollusc-killer in the UK, where Metaldehyde is the active ingredient.

The details are here.

The effect of this decision is from 1st April 2022 Metaldehyde slug pellets should not be used outdoors.

Clean Air Zones (England)

Air quality objectives and standards in Britain follow those set by the EU (to 31st December 2020), meanwhile the WHO published new Global Air Quality Guidelines in 2021 here.

Repeated court decisions have determined breaches in Britain, and as a consequence DEFRA is obliging local authorities (England) to meet legal deadlines for improved air quality in hot spot areas. This is done via Local Air Quality Management (also an EU legacy).

Clean Air Zones are sometimes the result. In addition to the Low and Ultra Low Emission Zones in London, three Clean Air Zones are established in England. The Greater Manchester Clean Air Zone is delayed.

Information on Clean Air Zones is here. Note, there can be different types of Clean Air Zones.

Information on the London Zones is here. Note, London operates a Congestion Charge Zone, a Low Emission Zone and an Ultra Low Emission Zone.

Scotland is planning Low Emission Zones in 2022 – information is here.

Substances of Very High Concern (UK REACH) (Britain)

UPDATE (17 February 2022) : authorisation decisions for time-limited use of SVHC are here.

The government (UKG) has today published its policy on how new chemicals will be added or existing chemicals removed from the Substances of Very High Concern candidate list (SVHC) that was fossilised as at the EU list on 31st Dec 2020. The policy paper is here.

When UK REACH came into force, all substances that were on the EU REACH candidate list were carried over onto the UK REACH candidate list. UK REACH applies in Britain, not Northern Ireland which follows EU REACH.

The UK REACH work programme for 2021-22 committed to assess those substances that have been added to the EU REACH candidate list since UK REACH came into force, to consider if it was appropriate to add them to the UK REACH candidate list.

To aid this assessment, DEFRA (UKG) and the Welsh and Scottish Governments agreed interim principles for including SVHCs on the candidate list in UK REACH:

1 Including SVHCs on the candidate list should be used to encourage substitution away from particularly hazardous substances.

2 A substance should not be proposed for inclusion on the candidate list unless it is a good candidate for the authorisation list.

3 Regulatory Management Options Analysis (RMOA), informed by calls for evidence, should be used to determine if inclusion on the candidate list is the correct route.

The Health and Safety Executive (HSE), with the Environment Agency (EA), used these interim principles to assess the substances that have been added to the EU REACH candidate list since UK REACH came into force. HSE and EA identified four substance groups as priorities for further assessment via Regulatory Management Options Analysis (RMOA):

• dioctyltin dilaurate, stannane, dioctyl-, bis(coco acyloxy) derivatives, and any other stannane, dioctyl-, bis(fatty acyloxy) derivatives wherein C12 is the predominant carbon number of the fatty acyloxy moiety

• 1,4-dioxane

• small brominated alkylated alcohols (SBAA)

• phenol, alkylation products (mainly in para position) with C12-rich branched or linear alkyl chains from oligomerisation, covering any individual isomers and/or combinations thereof (PDDP)

These RMOAs will recommend the most appropriate route for managing any identified risks from these substances. This may include these substances being added to the candidate list, but HSE and EA may make other recommendations.

The Defra Secretary of State, Welsh ministers, Scottish ministers and HSE can put a substance forward for inclusion on the candidate list. They can do so if they consider it fulfils one or more of the technical, hazard-based criteria to be considered an SVHC. HSE will then prepare a dossier on, and consult on, the proposed addition to the candidate list. The final decision on whether to add a substance to the candidate list is made by HSE (with the EA advising on environmental matters).

Environment Act 2021 – summary (UK)

The Act is not yet published, neither is any commencement order, nor any regulation.

The closest text is the text as introduced to the House of Lords – here. Note, Environment is a devolved matter, which means the bulk of the Environment Act 2021 provisions relate to England only.

Key points –

(1) the government must set long-term targets in priority areas for England (and may set other long-term targets) – by regulations – air quality, water, biodiversity, resource efficiency and waste reduction. The government must then review these targets in the context of the significant improvement test in section 6.

(2) the government must publish a statement of environmental principles, to be used in policy making.

(3) the government must publish a report (at specified intervals) on developments in international environmental law.

(4) an Office for Environmental Protection (OEP) must be established in England, to carry out certain scrutiny and advice functions. Schedule 3 deals with the OEP as respects Northern Ireland.

(5) Schedule 4 confers powers to make regulations on producer responsibility, replacing authority in earlier legislation which is revoked. Schedule 5 confers powers to charge for disposal costs.

(6) Schedule 8 confers powers to make regulations to create deposit schemes.

(7) Schedule 9 confers powers to make regulations about charges for single-use plastic items.

(8) the Environmental Protection Act 1990 is amended with provisions about the separate collection of recyclable waste in England – glass, metal, plastic, paper and card, food waste.

(9) the Environmental Protection Act 1990 is amended with updated provisions for hazardous waste in England and Wales.

(10) the Waste and Contaminated Land (Northern Ireland) Order 1997 is amended with updated provisions for hazardous waste.

(11) the Environmental Protection Act 1990 is amended with updated provisions for transfrontier waste shipment.

(12) the government may make regulations to recall vehicles or engines on environmental grounds (section 73).

(13) the Water Resources Act 1991 (applicable England and Wales) is amended to require sewerage undertakers to publish and maintain a drainage and sewerage management plan. These provisions were strengthened slightly following consideration in the House of Lords (final Act text not yet published).

(14) the government (and the relevant authorities in the devolved administrations) may make regulations to change water quality standards.

(15) Schedule 14 provides for biodiversity gain to be a planning condition.

(16) the Natural Environment and Rural Communities Act 2006 section 40 duty to conserve biodiversity (England) is substantively enhanced.

(17) local authorities in England must publish biodiversity reports at specified intervals.

(18) there must be more local nature recovery strategies so that they cover the whole of England.

(19) Natural England is empowered to publish a strategy for improving the conservation status of any species of flora or fauna (a special conservation strategy).

(20) Natural England is empowered to publish a strategy for improving the conservation and management of a protected site (a protected site strategy).

(21) local authorities in England must consult before felling street trees.

Further Border Control Delays (UK)

The UK government recently announced that movement of goods from GB to Northern Ireland (occurring under the grace arrangements in the Northern Ireland Protocol – NIP) would continue in the current manner indefinitely.

The UK government also recently announced that CE marked goods would continue to circulate in GB for the entire 2022. CE marked goods circulate in Northern Ireland by virtue of the NIP. This was included in the August Email Alert.

This morning, the UK government confirmed – here

• The requirement for pre-notification of agri-food imports will be introduced on 1 January 2022 as opposed to 1 October 2021.

• The new requirements for Export Health Certificates, which were due to be introduced on 1 October 2021, will now be introduced on 1 July 2022.

• Phytosanitary Certificates and physical checks on SPS goods at Border Control Posts, due to be introduced on 1 January 2022, will now be introduced on 1 July 2022.

• The requirement for Safety and Security declarations on imports will be introduced as of 1 July 2022 as opposed to 1 January 2022.

The timetable for the removal of the current easements in relation to full customs controls and the introduction of customs checks remains unchanged from the planned 1 January 2022.