Abstract
EDITORIAL
Yet another new year has rolled in, bringing with it both old and new problems. The world continued to see dramatic shifts in weather with the National Oceanic and Atmospheric Administration calculating that extreme weather across the USA resulted in more than $165 billion in damage in 2022. It is no wonder that the Joint Committee in its report last year was so concerned with the
There was a busy start to the year with a flurry of consultations and reports. In particular, there was a response to the Joint Committee on the National Security Strategy’s ‘Readiness for Storms Ahead’ report. Having been lambasted by the Joint Committee previously for generally having failed to address the significant vulnerabilities identified in the critical national infrastructure, the Government’s response was, perhaps, surprisingly lacklustre in its robustness. Whilst generally positive, the Government took a rather lackadaisical approach to many of the recommendations.
Yet more cases came before the courts in respect of demonstrations; in
Read on for more updates.
Environmental Law Review
2023
Update
Anna McClean
TRINITY CHAMBERS
EU LEGISLATION AND TEXTS
Commission Regulation (EU) 2023/3 of 3 January 2023 correcting the German language version of Regulation (EU) 2019/1781 laying down ecodesign requirements for electric motors and variable speed drives pursuant to Directive 2009/125/EC of the European Parliament and of the Council, amending Regulation (EC) No 641/2009 with regards to ecodesign requirements for glandless stand-alone circulators and glandless circulators integrated in products (Text with EEA relevance)
C/2023/17
Errors in the German language version of Commission Regulation (EU) 2019/1781 at Recital 7, Article 3 point (7) and Article 2(1)(a)(v) were corrected. No other language versions were affected.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A32023R0003&qid = 1682245433975
Decision (EU) 2023/136 of the European Parliament and of the Council of 18 January 2023 amending Directive 2003/87/EC as regards the notification of offsetting in respect of a global market–based measure for aircraft operators based in the Union (Text with EEA relevance)
PE/61/2022/REV/1
This introduces an amendment to aviation rules in the EU Emissions Trading System to implement Member States’ notification to EU-based airlines of the offsetting for the year 2021 under the Carbon Offsetting and Reduction Scheme for International Aviation of the International Civil Aviation Organisation.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A32023D0136&qid = 1682245433975
Commission Implementing Decision (EU) 2023/239 of 26 January 2023 adopting the fourteenth update of the list of sites of Community importance for the Pannonian biogeographical region (notified under document C(2023) 599)
C/2023/599
The fourteenth update of the list of sites of Community importance for the Pannonian biogeographical region as set out in the Annex is adopted.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A32023D0239&qid = 1682245433975
Commission Implementing Decision (EU) 2023/238 of 26 January 2023 adopting the sixteenth update of the list of sites of Community importance for the Atlantic biogeographical region (notified under document C(2023) 569)
C/2023/569
The sixteenth update of the list of sites of Community importance for the Atlantic biogeographical region as set out in the Annex is adopted.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A32023D0238&qid = 1682245433975
Commission Implementing Decision (EU) 2023/240 of 26 January 2023 adopting the tenth update of the list of sites of Community importance for the Macaronesian biogeographical region (notified under document C(2023) 584)
C/2023/584
The tenth update of the list of sites of Community importance for the Macaronesian biogeographical region as set out in the Annex is adopted.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A32023D0240&qid = 1682245433975
Commission Implementing Decision (EU) 2023/245 of 26 January 2023 adopting the sixteenth update of the list of sites of Community importance for the Boreal biogeographical region (notified under document C(2023) 610)
C/2023/610
The sixteenth update of the list of sites of Community importance for the Boreal biogeographical region as set out in the Annex is adopted.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A32023D0245&qid = 1682245433975
Regulation (EU) 2023/435 of the European Parliament and of the Council of 27 February 2023 amending Regulation (EU) 2021/241 as regards REPowerEU chapters in recovery and resilience plans and amending Regulations (EU) No 1303/2013, (EU) 2021/1060 and (EU) 2021/1755, and Directive 2003/87/EC
PE/80/2022/REV/1
Targeted amendments were introduced to Regulation (EU) 2021/241 (RRF Regulation) to integrate dedicated REPowerEU chapters in Member States’ existing National Recovery Resilience Plans. Additionally, amendments were made to: Regulation (EU) 1303/2013 (setting out common principles, rules and standards regarding the operation of the European Structural Funds); Regulation (EU) 2021/1060 (setting out common provisions for seven shared management funds in the framework of the Multiannual Financial Framework); Regulation (EU) 2021/1755 (setting out the establishment of a Brexit Adjustment Reserve); and, Directive 2003/87/EC (establishing an EU emissions trading system).
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A32023R0435&qid = 1682245433975
Commission Regulation (EU) 2023/443 of 8 February 2023 amending Regulation (EU) 2017/1151 as regards the emission type approval procedures for light passenger and commercial vehicles (Text with EEA relevance)
C/2023/843
This made various amendments to Regulation (EU) 2017/1151 including: aligning the definitions within the Regulation to those of Regulation (EU) 2018/858; introducing improvements to elements of the RDE methodology (UN Regulation on Real Driving Emissions) being developed by the UN World Forum for Harmonization of Vehicle Regulations into Regulation (EU) 2017/1151; amending the respective test procedure for the conformity of production assessment of carbon dioxide emissions of vehicle recommended by the Joint Research Centre; and, setting out the relevant steps to undertake a revision of the utility factors applied for the purpose of CO2 emission determination at type approval.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A32023R0443&qid = 1682245433975
Commission Decision (EU) 2023/693 of 27 March 2023 amending Decisions (EU) 2017/1214, (EU) 2017/1215, (EU) 2017/1216, (EU) 2017/1217, (EU) 2017/1218, (EU) 2017/1219 and (EU) 2018/680 as regards the period of validity of the EU Ecolabel criteria and of the related assessment and verification requirements (notified under document C(2023) 1886) (Text with EEA relevance)
C/2023/1886
To allow for the Commission to carry out, for detergent product groups and indoor cleaning services, relevant revisions needed to ensure coherence with Union policies the validity of the EU Ecolabel criteria was prolonged until 31 December 2026 for hand dishwashing detergents, industrial and institutional dishwasher detergents, dishwasher detergents, hard surface cleaning products, laundry detergents, and industrial and institutional laundry detergent. For indoor cleaning services, the period of validity was prolonged until 31 December 2027.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A32023D0693&qid = 1682245433975
Commission Implementing Decision (EU) 2023/695 of 27 March 2023 establishing the format of the report regarding the status and trends of wild bird species referred to in Article 12 of Directive 2009/147/EC of the European Parliament and the Council (Birds Directive) (notified under document C(2023) 1889)
C/2023/1889
Article 12 of Directive 2009/147/EC set out that Member States were required to forward to the Commission every 6 years a report on the implementation of measures taken under that Directive and the impact of those measures. This Decision set out the report format referred to in Article 12(1).
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A32023D0695&qid = 1682245433975
Commission Decision (EU) 2023/705 of 29 March 2023 amending Decisions (EU) 2017/175 and (EU) 2018/680 as regards the energy efficiency requirements for EU Ecolabel tourist accommodation and EU Ecolabel indoor cleaning services for certain energy-related products (notified under document C(2023) 2067) (Text with EEA relevance)
C/2023/2067
This updated Decisions (EU) 2017/175 and (UE) 2018/680 to account for changes to legislation. Additionally, amendments were required to account for the introduction of A to G rescaled energy efficiency labels for certain energy-related products, the expiry of the EU Energy Star programme (now to be brought in line with EN ISO 14024 type I ecolabel), and the inclusion of references to Commission Delegated Regulation No 666/2013 to account for the annulled Delegated Regulation (EU) No 665/2013.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A32023D0705&qid = 1682245433975
DOMESTIC CASE LAW
Conservation
Sunbeam Fishing Ltd v Secretary of State for Environment, Food and Rural Affairs [2023] CSOH 16
The owner and operator of a sandeel fishing vessel petitioned for judicial review of the Secretary of State’s decision that UK-registered fishing vessels would not be permitted to catch sandeel for commercial purposes. The petitioner held fixed quota allocation units and argued that the Secretary of State’s decision was contrary to art.1 of Protocol 1 of the European Convention on Human Rights. The court held that fishing quota units did qualify as ‘possessions’ for the purposes of art.1 of Protocol 1 despite the fact they carried with them no entitlement to quota or the income that might flow from them, but that any interference with the petitioner’s art.1 Protocol 1 rights was justified as the Secretary of State’s decision struck a fair balance between the public interest and the petitioner’s fundamental rights.
https://www.bailii.org/scot/cases/ScotCS/2023/2023_CSOH_16.html
Environmental information
Graham Garner v The Information Commissioner [2023] UKFTT 218 (GRC)
The appellant appealed against the Information Commissioner’s decision that Shardlow and Great Wilne Parish Council did not hold the information requested by the appellant relating to pruning and vegetation and, therefore, that the exception in reg.12(4)(a) Environmental Information Regulations 2004 applied. The tribunal found that the information was held by the Council but that it was publicly available and easily accessible to the appellant on the Council’s website and therefore the Council was not required to make the requested information available to the appellant in another format.
Malcolm Reeves v The Information Commissioner [2023] UKFTT 353 (GRC)
The Information Commissioner applied to strike out the applicant’s notice of appeal against the Information Commissioner’s decision that the public authority was entitled to rely on reg.6(1)(b) Environmental Information Regulations 2004 to refuse to provide better quality (higher resolution) photographs than those appearing on its website. The tribunal refused the application. It found that the question of whether reg.6(1)(b) is engaged by photographs of different resolutions is a triable issue and the matter was fit to proceed to a hearing.
John Windas v The Information Commissioner [2023] UKFTT 341 (GRC)
The applicant appealed against the Information Commissioner’s decision that the public authority was entitled to refuse to comply with the applicant’s request for environmental information under s.12(1) Freedom of Information Act 2000 as the cost of compliance would exceed £450 or 18 staff hours. The tribunal found that the Information Commissioner was not entitled to rely on the exception in s.12(1) Freedom of Information Act 2000. The request for information had been made under the Environmental Information Regulations 2004, and there was no equivalent to s.12(1) FOIA in the EIR. However, the burden on a public authority of responding to a request for information is taken into account in considering whether a request for information is manifestly unreasonable under reg.12(4)(b) EIR. The tribunal found that the appellant’s request for information was motivated by a genuine concern relating to the protection of the environment and was not manifestly unreasonable.
Roger Bird v The Information Commissioner [2023] UKFTT 300 (GRC)
This case concerned an application to the local authority for a copy of the recording of a meeting between the local authority and local residents relating to the issue of responsibility for the maintenance of an underground sewer pipe and flooding to residents’ properties. The tribunal held that the request constituted a request for ‘environmental information’ under the Environmental Information Regulations 2004 and the Information Commissioner’s decision was not in accordance with the law because it had been based on s.40(2) Freedom of Information Act 2000. However, as the recording contained personal data of a number of residents present at the meeting (they gave their names and addresses and discussed the impact of the sewer pipe and flooding on their lives and homes), the local authority was entitled to refuse to disclose it under reg.5(3) and reg.13(1) EIR.
Environmental impact assessment
R (on the application of Ashchurch Rural Parish Council) v Tewkesbury BC [2023] EWCA Civ 101
Ashchurch Rural Parish Council appealed against the refusal to grant judicial review of the local planning authority’s decision to grant planning permission for a road bridge over a mainline railway. The bridge was intended to facilitate, and was essential to, the development of a proposed new ‘garden town’ which was to be delivered in phases. One of the grounds of the appeal was that the local planning authority had not taken the correct approach in determining whether an EIA was necessary by treating the bridge as a stand-alone project. The court held that the proposed development was an integral part of a wider future development, and it did not matter that the details of the wider project had not been finalised. The planning authority had, therefore, erred in treating the bridge as a stand-alone project.
Planning
R (on the application of Whitley Parish Council) v North Yorkshire CC [2023] EWCA Civ 92
Whitley Parish Council appealed against the dismissal of its claim for judicial review of North Yorkshire County Council’s decision to grant planning permission for the extraction of pulverised fuel ash (PFA) from a former PFA disposal site within the green belt. The planning officer’s report stated that it did not consider that criterion in the local development plan relating to the criterion for determining the best practical environmental option could be given any weight as it was no longer part of national policy to establish whether a proposal represented the best practicable environmental option. The court held that this was rational planning advice, not legal advice, and the planning officer had not departed from the territory of planning judgement and ventured into the realm of planning law.
Bristol Airport Action Network Co-ordinating Committee v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 171 (Admin)
The claimant applied for judicial review of the planning inspectors’ decision to allow an appeal against the refusal of planning permission for the expansion of Bristol Airport. The question before the court related to whether and the extent to which aviation emission should play a role in deciding whether to grant planning permission. The court dismissed the application. It held that: (1) the planning inspectors’ interpretation of Beyond the Horizon – the Future of UK Aviation: Making Best-Use of Existing Runways as meaning that aviation carbon should be considered at the national rather than local level was correct; (2) Para.122 of the National Planning Policy Framework requires planning decision-makers to assume that the Secretary of State will discharge his responsibilities regarding emissions under the Climate Change Act 2008; (3) the planning inspectors had engaged with the approach that the proposed development would consume the local authority’s entire local carbon budget and it was up to them how much weight to give this. The fact that they had given it no weight did not constitute illegality; (4) due to the scientific uncertainty regarding non-CO2 emissions and how to measure them, the planning inspectors were entitled to disregard them and leave them to be dealt with at a later date in line with updated targets and policies on non-CO2 GHG emissions.
Wathen-Fayed v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 92 (Admin)
The claimant applied to quash the decision of the planning inspector to allow a planning appeal and grant planning permission for a crematorium within the Green Belt and an Area of Outstanding Natural Beauty. The planning inspector allowed the appeal on the basis that the development would meet an existing and growing community need for cremation facilities and that this outweighed its harmful effects and demonstrated the very special circumstances required to justify the grant of planning permission in the green belt. The claimant contended that the inspector had erred in concluding that, having regard to the National Planning Policy Framework policy on flood risk and relevant guidance, there was no need for a sequential assessment of the sites for the proposed development and that there were no reasonable alternative sites. The court held that the planning inspector had recognised that the location of the site within Flood Zone 1 was not sufficient in itself to avoid the need to apply the sequential test and there was no force in the argument that the inspector had misunderstood or misapplied the relevant policy of the NPPF.
Nuisance
Transport for London v Lee [2023] EWHC 402 (KB)
In October 2022, Transport for London (TfL) obtained a without notice interim injunction preventing, for the purpose of protests, the blocking or slowing down of traffic on specific strategic London roads and locations by the named defendants and persons unknown who were protesting under the banner of Just Stop Oil. TfL sought an expedited trial of the final injunction hearing, an extension of the interim injunction until trial, and permission under r.31.22(1)(b) Civil Procedure Rules to disclose in the instant proceedings documents from its claim against Insulate Britain so that the court could see all the protest action undertaken by the named defendants and because of the lack of distinction between the two groups and the large overlap between those who protested on behalf of each. The court granted the applications. It held that it was in the public interest to determine as soon as possible whether there should be a final injunction. The only countervailing factor was that other cases would go further behind in the queue, but if the trial was expedited it would free up court time as it would no longer be necessary to extend the injunction. The court held that there were no grounds for declining to extend the injunction. The activities of Just Stop Oil had continued and the need to restrain them was as great as ever despite the change of tactics and reduced frequency of the protests. The court also held that it was in the interests of justice to make an order for disclosure under r.31.22(1)(b).
National Highways Ltd v Persons Unknown [2023] EWCA Civ 182
National Highways appealed against a judge’s refusal to grant a final anticipatory injunction against 109 named Insulate Britain protestors who had obstructed the M25 and other roads. National Highways had been granted three interim injunctions and issued proceedings pleading trespass, private nuisance and/or public nuisance, and subsequently, 24 named defendants were found to be in contempt of court for breaches of the interim injunctions. National Highways applied, inter alia, for summary judgement, seeking final anticipatory or
Davies v Bridgend County Borough Council [2023] EWCA Civ 80
The appellant appealed against the dismissal of its claim in nuisance in relation to Japanese knotweed that had spread from the respondent’s property onto the appellant’s neighbouring property. The court allowed the appeal. It held that whilst there was no actionable nuisance simply because the knotweed on the defendant’s land diminished the value of the claimant’s land, this did not mean that in a case where the elements of the tort of nuisance were satisfied the claimant could not recover for damage to their economic interests.
Fearn v Board of Trustees of the Tate Gallery [2023] 2 WLR 339
The appellants appealed against a decision of the Court of Appeal upholding the dismissal of their private nuisance claims against the art gallery. The court allowed the appeal and held although liability in nuisance could not arise from the mere fact that a building overlooked neighbouring land, the gallery’s viewing platform was an exceptional use of the gallery’s land. It found that the viewing platform attracted thousands of visitors a week, many of whom peered into and took photographs of the interior of the appellants’ flats, and this amounted to substantial interference with the ordinary use and enjoyment of the flats.
Waste
Hyde v Simple Skips Ltd [2023] EWHC 672 (KB)
This case concerned settlement agreements entered between the parties under a consent order in relation to damages for and removal of waste from the claimant’s land. The issues before the court included whether the waste that the defendant was ordered to remove was that which was in existence at the date of the survey, the date of the consent order, the ‘operative date’ defined in the consent order, or some other date, and whether the amount of waste removed by the defendant should be measured by weight or by volume. The court held that the waste to be removed was that in existence at the date of the settlement agreement. As the defendant was required to clear all waste, the question of whether the waste was to be measured by weight or volume fell away.
EU CASE LAW
European Commission v Slovak Republic, Case C-342/21, 9 February 2023
The Court (Tenth Chamber) declared and ordered that:
The Slovak Republic has failed its obligations under Article 13(1) of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and clean air for Europe, by exceeding the daily limit value applicable to microparticles (PM10) in a systematic and persistent manner from the year 2005 until the year 2019 inclusive (with some limited exceptions) in area SKBB01, Banská Bystrica region in agglomeration SKKO01.1, Košice. Additionally, in the above area/agglomeration, as well as the area SKKO02, Kosiče region, the obligations incumbent on it under the second subparagraph of Article 23(1) of that Directive by not providing for appropriate measures in its air quality plans so that the period for exceeding this limit value is as short as possible. The Slovak Republic is ordered to pay the costs.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A62021CJ0342
European Commission v Hellenic Republic, Case C-633/21, 16 February 2023
The Court (Tenth Chamber) declared and ordered that:
The Hellenic Republic failed to fulfil its obligations under both the combined provisions of Article 13 and Annex CI of Directive 2008/50/EC and Article 23, paragraph 1 of Direction 2008/50 read in conjunction with Annex XV, Section A thereof, by having exceeded, systematically and persistently, from 2010 to 2020 inclusive, the annual limit value applicable to nitrogen dioxide (ΝΟ2) in the Athens area (EL 0003) and failing to adopt, from 11 June 2010, appropriate measures to ensure compliance with the annual limit value applicable to ΝΟ2 in that agglomeration thereby failing to ensure that air quality plans include appropriate measures to ensure that the period during which this limit value is exceeded is as short as possible. The Hellenic Republic is ordered to pay the costs.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A62021CJ0633&qid = 1682243167329
European Commission v Republic of Bulgaria, Case C-174/21, 16 March 2023
The Court (Third Chamber) held that the Commission was required not only to ascertain, throughout the pre-litigation procedure and before issuing the letter of formal notice, whether or not the judgement in question had been complied with but also to allege and establish with clarity,
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A62021CJ0174&qid = 1682243167329
CONSULTATIONS
NEWS AND MISCELLANEOUS
‘Climate change: World’s top court to weigh in’, BBC News, 29 March 2023
The world’s top court will for the first time advise on countries’ legal obligations to fight climate change, following a UN resolution on Wednesday. The International Court of Justice will now prepare an advisory opinion that could be cited in climate court cases.
‘Europe “failing its children” on air pollution, EEA says’, The Guardian, 24 April 2023
Europe is failing its children when it comes to air pollution, which causes the premature death of at least 1,200 children annually, exposing nearly all children across the continent to air that falls below healthy standards and delaying the clean-up of the sources of pollution, research has found.
‘Shell faces thousands of new claims in High Court over repeated oil spills’, The Telegraph, 2 February 2023
The energy giant Shell is being sued at the British High Court by more than 13,000 people from Nigeria over repeated oil spills that have devastated the health and ecology of local communities in the south of the country.
‘Why it matters that XR’s “Big One” has trade union support’, New Statesman, 21 April 2023
A shared sense of injustice across the climate and labour movements is re-galvanising issue-based politics.
‘Undrugging the environment: Europe’s plan to cut pharma pollution’, Politico, 17 April 2023
A leaked draft of the European Commission’s revision of the bloc’s pharmaceutical rules shows the EU is looking to crack down on pollution from medicines by ratcheting up environmental requirements.
‘EU warns Spain over expanding irrigation near prized wetland’, The Independent, 21 March 2023
The European Union has warned Spain that it won’t tolerate renewed plans by regional politicians in the Country’s south to expand irrigation near its endangered Doñana wetlands, which scientists and ecologists say are in danger of drying up.
‘Leading the field: New Zealand’s world-first cow burp tax – and the industry’s response’, The Independent, 6 February 2023
Rachel Pannett visits a South Waikato farm that’s embracing change to help mend the planet.